CA11 on Reconsideration of Asylum: Thamotar v. Atty. Gen.

Thamotar v. Atty. Gen.

"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 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."

[Hats off to Visuvanathan Rudrakumaran!]