https://media.ca11.uscourts.gov/opinions/pub/files/201912019.pdf
Thamotar v. U.S. Att’y Gen., 11th Cir., 06-17-21, Published
PANEL: WILSON, JILL PRYOR and LAGOA, Circuit Judges.
OPINION: JILL PRYOR, Circuit Judge
KEY QUOTE:
Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R.
§ 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification.2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration.
Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore
1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e).
2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision.
2
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manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand to the Immigration Judge for reconsideration of the discretionary denial of asylum.
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Lots of work for a bogus asylum denial by EOIR! And the utter nonsense isn’t over! Just a “remand” to give EOIR yet another chance to deny for specious reasons (as they have already done twice). This idiocy will continue until Judge Garland replaces the BIA with real judges who will properly, fairly, and timely apply the law and regulations!
The poor analysis of the IJ, mindlessly affirmed by the BIA, failed to come anywhere close to the “most egregious adverse factors” requirement of the BIA’s own precedent in Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996):
A grant of asylum to an eligible applicant is discretionary. The final issue is whether the applicant merits a favorable exercise of discretion. The danger of persecution will outweigh all but the most egregious adverse factors. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).
Get this, folks! The IJ and the BIA both found that meeting the higher standard for withholding of deportation based on probability of persecution somehow was an “adverse factor” that outweighed family separation! That’s right, an “adverse factor!”
I can’t imagine how this gang of so-called “judges, got through law school and admitted to the bar! Maybe “imposters” took their exams for them! THIS is the best American justice has to offer? If not, why are they making life or death decisions and imposing potential permanent family separation on refugees?
Notwithstanding the assembly line climate and lackadaisical approach to law in Garland’s Immigration “Courts,” these are NOT TRAFFIC COURTS! They are more like “death penalty courts” or “courts of last resort” and those humans appearing before them and their representatives deserve better.
Judge Garland and his team should hypothesize that this type of inferior justice were being meted out in life or death cases to THEIR FAMILY MEMBERS AND LOVED ONES — actual human beings, NOT “just migrants” who, according to Garland’s EOIR, appear to exist in a twilight zone beneath the rest of humanity. That’s what the ongoing “Dred Scottification of the other” still being permitted and promoted by Garland at DOJ is all about!
A fitting celebration of the first Federal Juneteenth Holiday would have been to remove the entire BIA so that they can no longer inflict “Dred Scottification” on migrants of color, their families, their friends, and their communities, among others! Symbolism is only effective if followed by action. And, so far, Garland’s actions on wiping out the “vestiges of Dred Scott at Justice” have fallen woefully short!
This raises serious, unaddressed questions of why such weakly qualified individuals are on the bench in the first place when there are many immigration experts out there who can and would do better. Much better! And it wouldn’t take them years and multiple hearings, appeals, and trips to the Circuit to grant asylum.
This isn’t a “deep” case except that it represents the “deep dodo” 💩 at EOIR, the stench of which is fouling our entire justice system and shaking the foundations of our democracy! This case is about following the Code of Federal Regulations, properly applying precedent, and fairly treating asylum seekers. It’s “Law 101” — things L-1s would have to know to get to L-2! I can’t begin to think what the paper would look like like if one of my students gave me this kind of garbage on a final exam. Fortunately, to date, nobody ever has!
Nor is this a Circuit renowned for critical analysis or holding the Government to a high standards in immigration cases. Indeed, the Eleventh Circuit itself bears some responsibility for this mess! They are well aware of the anti-asylum bias and poor decision-making emanating from the Atlanta Immigration Court, within their jurisdiction, and have chosen to ignore it. See, e.g., https://immigrationcourtside.com/2019/04/22/11th-circuit-judge-adelberto-jose-jordan-outs-the-atlanta-immigration-court-for-equal-protection-charade-in-a-dissenting-opinion-in-my-view-ms-diaz-r/
Those who want a more complete run down of the ongoing “Atlanta disgrace” — a cancer on our justice system — should just go to the “Atlanta Immigration Court” tab on immigrationcourtside.com. There is more than enough compiled to have triggered an investigation, removals from office, and corrective action in a functioning Government! And my collection is just “the tip of the iceberg” on what has been written about the disgraceful, systemic denial of fairness, impartiality, and justice in Atlanta!
And, why was OIL defending this ridiculous mess in the first place? It’s a “comedy” of errors, questionable ethics, and amateurish legal work that the DOJ should be ashamed of and which Garland should end — NOW! No wonder this ridiculous national embarrassment has created an unnecessary 1.3 million case backlog that continues to grow under Garland!
Don’t let Garland or anyone else in the Administration tell you that this self-created backlog justifies a truncation of due process or more “bogus attempts to expedite” asylum cases. NO! What it requires is for Garland to bring in real judges and experts from the private/NGO sector to fix the Immigration Courts so they comply with due process and fundamental fairness!
Judge Garland, “come on man!” These deadly robed clowns and their “defenders” represent YOU — “the top legal officer in our Executive Branch!” YOU have a responsibility to the American people (NOT just the failed DOJ or the President) to “get out the big hook” and “yank” these anti-due process, anti-immigrant, anti-asylum, anti-racial-justice clowns 🤡 off YOUR bench and replace them with competence and fairness. A little (now missing) diversity wouldn’t hurt either! It’s called fulfilling the promises made by Biden and Harris during the election!
It’s not going to improve until Garland replaces the BIA with qualified judges, hires only Immigration Judges who know how to fairly adjudicate asylum cases, (with outstanding public reputations for fairness, scholarship, timeliness, teamwork, and respect), and AAG Vanita Gupta brings in better leadership at OIL to put an end to this tragic, totally unnecessary, disgracefully wasteful abuse of our Federal Judicial system and the resulting human carnage!
NDPA warriors, don’t be fooled or lured into complacency by this week’s long overdue positive developments in A-B- and L-E-A- — things that experts said should have been done by Judge Garland on “Day 1.” Keep showing your total dis-satisfaction and disgust with the glacial pace of reform at DOJ and the myriad of highly unqualified “judges” still being allowed to continue to inflict racial injustice and “worst imaginable practices” on vulnerable individuals (and their lawyers) who are entitled to due process and justice — not a continuing deadly ☠️ clown 🤡 show! Keep letting Garland, Monaco, Gupta, Clarke, Biden, Harris, Congress, the Article IIIs, and the American people know that “The EOIR Clown Show Has Got To Go!” NOW! There will be neither racial justice nor equal justice for all in America (wake up, Vanita Gupta and Kristen Clarke) while Garland operates his “star chamber courts” at EOIR!
🇺🇸Due Process Forever! Garland’s “Asylum Free Zones,” Never!
PWS
06-19-21