Third Circuit Court of Appeals in Sathanthrasa v. Attorney General

Jersey City, New Jersey – Immigration law is complicated. The nuances are subtle and never-ending. But they are also critical. A recent decision by the Third Circuit Court of Appeals in Sathanthrasa v. Attorney General illustrates these points.

Sathanthrasa is a Sri Lankan citizen. In removal proceedings, he applied for asylum and Withholding of Removal, two related but different reliefs from removal. Both require showing a likelihood of future persecution if returned to the applicant’s native country. Both require a nexus to a protected grounds such as religion, political opinion, ethnicity or membership in a particular social group. There are some key differences, though. The burden of proof for withholding of removal is higher. A grant of asylum permits the applicant to eventually become a permanent resident and subsequently become a US citizen. It also allows the applicant to obtain the same status for his or her immediate family members. Withholding of removal does not provide a path to permanent residence or family reunification. A grant of withholding of removal is mandatory if the applicant meets the requirements, but a grant of asylum is subject to discretionary review by the immigration judge. When an immigration judge denies asylum for discretionary reasons, but grants withholding of removal, the judge is required to reconsider the asylum discretionary asylum decision focusing on certain required factors of the reasons for the discretionary denial and reasonable alternatives available for family reunification.

In this case, the Third Circuit adopted additional factors an immigration judge must evaluate when making an initial discretionary decision on asylum and when reconsidering a discretionary denial in these circumstances. The positive factors to consider are: (1) family, business, community and employment ties to the U.S., as well as length of residence and property ownership in the U.S.; (2) evidence of hardship to the alien and his/her family in another country if removed to a third country other than the U.S. or the native country; (3) evidence of good character, value or service to the community, including proof of genuine rehabilitation if a criminal record exists; (4) general humanitarian reasons such as age and health, and (5) evidence of severe past persecution and/or well-founded fear of future persecution including the grant of non-asylum relief. The negative factors to consider are: (1) nature and underlying circumstances of the exclusion ground; (2) presence of significant violations of immigration laws; (3) presence of a criminal record and the nature, recency, and seriousness of that record, including evidence of recidivism; (4) lack of candor with immigration officials including an actual adverse credibility finding by the IJ, and (5) other evidence that indicates bad character or undesirability for permanent residence in the U.S.

It is incumbent upon those applying for asylum and withholding of removal to include evidence of these discretionary factors with evidentiary submissions and during testimony before the immigration court to strengthen the argument for positive exercise of discretion, and it is incumbent upon the immigration judge to evaluate all these factors when reaching a discretionary decision.