Daniel Shantu v. Eric Holder, Jr.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: A088-052-021. Copies to all parties and the agency. [999886503]. [15-1175]

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 1 of 24

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1175

DANIEL GEMECHU SHANTU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued:

March 24, 2016

Decided:

July 13, 2016

Before KING, DIAZ, and HARRIS, Circuit Judges.

Petition for review granted; vacated and remanded by unpublished
opinion.
Judge Harris wrote the opinion, in which Judge King
and Judge Diaz joined.

ARGUED: Alan M. Parra, LAW OFFICE OF ALAN M. PARRA, Silver
Spring, Maryland, for Petitioner.
Rachel Louise Browning,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
ON BRIEF: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Blair O’Connor, Assistant Director,
Civil Division, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 2 of 24

PAMELA HARRIS, Circuit Judge:
When

an

alien’s

application

for

asylum

is

denied

on

discretionary grounds but the same alien is granted withholding
of removal, 8 C.F.R. § 1208.16(e) provides that “the denial of
asylum shall be reconsidered,” in light of certain enumerated
factors.

Petitioner

precisely

this

Daniel

position,

Gemechu

and

he

Shantu

contends

finds

that

himself

the

Board

in
of

Immigration Appeals (“BIA” or “Board”) has not reconsidered his
asylum application as required by the regulation.

Shantu filed

a motion for reconsideration with the BIA on that basis, which
the agency denied.
We agree that Shantu’s asylum claim has not yet received
reconsideration
reason,
denied

we

find

Shantu’s

under

8

that

the

motion.

C.F.R.
BIA

§ 1208.16(e),
abused

its

Accordingly,

we

and,

for

discretion
vacate

that

when

the

it

Board’s

decision and remand this matter to the agency.

I.
A.
Petitioner

Shantu

is

a

native

and

citizen

of

Ethiopia.

Shantu was persecuted in his home country on account of his
Oromo

ethnicity

and

his

religion,

and

multiple detentions, beatings, and arrests.

2

he

was

subjected

to

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 3 of 24

Traveling on a student visa, Shantu left Ethiopia in August
of 2004 to attend a graduate program in theology in Norway.

He

returned to Ethiopia about a year later to do research related
to his degree and to marry his fiancée, who was still living in
the country.

At Shantu’s wedding on October 15, 2005, a family

friend who was also an opposition leader made a speech that
touched on political issues.

Shantu and his wife were arrested

eleven days later, and although Shantu’s wife was soon released,
Shantu

was

detained,

tortured,

and

beaten

until

December

5,

2005.
Shantu and his wife immediately left Ethiopia for Norway,
departing on December 8, 2005.

Shantu’s wife traveled on a

“family reunification visa,” which Shantu had obtained for her
before leaving Norway.
2006,

before

States.

But Shantu left Norway again on July 20,

completing

his

degree,

to

come

the

United

He was admitted to the United States on a nonimmigrant

business visitor visa, which he overstayed.
timely

to

application

for

asylum,

withholding

Shantu submitted a
of

removal,

and

Convention Against Torture (“CAT”) protection.
Shantu’s wife visited him in the United States in 2007, and
he has not seen her since.

On April 7, 2008, she gave birth to

their son, whom Shantu has never met.

Shantu’s wife became a

student in Norway and remained there on a student visa, which,

3

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 4 of 24

according to Shantu, has now expired.

Shantu has never applied

for asylum in Norway.
B.
To

be

applicant

eligible

must

for

establish

asylum
that

in

he

the

is

United

States,

a

“refugee,”

8

an

U.S.C.

§ 1158(b)(1)(A) — that is, that he is unwilling or unable to
return to his country of citizenship “because of persecution or
a well-founded fear of persecution on account of” a protected
characteristic

like

religion

or

social group,” id. § 1101(a)(42).

“membership

in

a

particular

Even then, however, a refugee

is only “‘eligible for asylum,’ which the Attorney General (or
his or her designee) ‘in his [or her] discretion’ may grant.”
Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (alteration
and emphasis in original) (quoting INS v. Cardoza-Fonseca, 480
U.S. 421, 443 (1987)); see 8 U.S.C. § 1158(b)(1)(A).
Discretionary denials of asylum are “‘exceedingly rare’ and
are

generally

based

on

egregious

conduct

by

the

applicant.”

Zuh, 547 F.3d at 507 (quoting Huang v. INS, 436 F.3d 89, 92 (2d
Cir.

2006)).

“The

exercise

of

discretionary

judgment

with

respect to a refugee’s asylum claim,” we have explained, “should
include the examination of ‘a totality of the circumstances’ in
view of the BIA’s policy that ‘[t]he danger of persecution will
outweigh
Dankam

v.

all

but

the

Gonzales,

most

495

egregious

F.3d

113,
4

119

of

adverse

n.2

(4th

factors.’”
Cir.

2007)

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 5 of 24

(alteration and emphasis in original) (quoting Huang, 436 F.3d
at 98).

In Zuh, we articulated a non-exhaustive list of factors

to be balanced as part of the consideration of the “totality of
the

circumstances.”

547

F.3d

at

510–11.

“On

the

positive

side,” we explained, an IJ should weigh:
1) Family, business, community, and employment ties to
the United States, and length of residence and
property ownership in this country;
2) Evidence of hardship to the alien and his family if
deported to any country, or if denied asylum such that
the alien cannot be reunited with family members (as
derivative asylees) in this country;
3) Evidence of good character, value, or service to
the
community,
including
proof
of
genuine
rehabilitation if a criminal record is present;
4) General
health;

humanitarian

reasons,

such

as

age

or

5) Evidence of severe past persecution and/or wellfounded
fear
of
future
persecution,
including
consideration of other relief granted or denied the
applicant
(e.g.,
withholding
of
removal
or
CAT
protection).
Id. at 511.
consider the:

And “[o]n the negative side,” an IJ should

1)
Nature
and
exclusion ground;

underlying

circumstances

of

the

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;

5

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 6 of 24

4)
Lack
of
candor
with
immigration
officials,
including an actual adverse credibility finding by the
IJ;
5) Other evidence that indicates bad character or
undesirability for permanent residence in the United
States.
Id.

We emphasized that “an IJ need not analyze or even list”

every one of the enumerated factors, “[b]ut at the very least,
an IJ must demonstrate that he or she reviewed the record and
balanced

the

relevant

factors”

and

must

also

“discuss

the

positive or adverse factors that support his or her decision.”
Id. (emphasis in original).
As rare as a discretionary denial of asylum may be, it is
“even more rare” when the same applicant is granted withholding
of removal.

Id. at 507.

That is because withholding of removal

requires a more demanding showing than asylum:

The applicant

must establish by the preponderance of the evidence that his
“life or freedom would be threatened” on account of a protected
characteristic if he were deported to his home country.
U.S.C. § 1231(b)(3)(A); Zuh, 547 F.3d at 507 & n.2.
applicant

makes

deportation.

this

showing,

the

government

8 U.S.C. § 1231(b)(3)(A).

must

See 8
If the

withhold

But unlike an award of

asylum, withholding of removal does not permit the applicant to
become a lawful permanent resident or to bring his family to the
United States, and it leaves him “subject to deportation to a
willing third country.”

Zuh, 547 F.3d at 508 (citing Huang, 436
6

Appeal: 15-1175

F.3d

Doc: 31

at

Filed: 07/13/2016

95).

For

discretionary

denial

Pg: 7 of 24

that

reason,

of

asylum

we

have

coupled

made

clear

with

a

that

grant

a
of

withholding of removal leaves an applicant in an “unusual legal
status” and generally is justified only by especially “egregious
negative activity” by the applicant.

Id. at 507–08 (citation

and internal quotation marks omitted).
Consistent

with

this

understanding,

the

regulation

at

8

C.F.R. § 1208.16(e) 1 — upon which we relied in Zuh, 547 F.3d at
510 — “provide[s] special and unusual rights to an alien who has
been

denied

asylum”

on

discretionary

grounds

withholding of removal, Huang, 436 F.3d at 92.

but

granted

Specifically, 8

C.F.R. § 1208.16(e) states:
In the event that an applicant is denied asylum solely
in the exercise of discretion, and the applicant is
subsequently granted withholding of deportation or
removal
under
this
section,
thereby
effectively
precluding admission of the applicant's spouse or
minor children following to join him or her, the
denial of asylum shall be reconsidered. Factors to be
considered will include the reasons for the denial and
reasonable alternatives available to the applicant
such as reunification with his or her spouse or minor
children in a third country.

1

Shantu’s motion for reconsideration relied on both 8
C.F.R.
§§ 208.16(e)
and
1208.16(e),
which
are
identical
regulations.
“As applied to the BIA,” however, “8 C.F.R.
§ 208.16(e) . . .
is
actually
designated
at
8
C.F.R.
§ 1208.16(e).”
Huang, 436 F.3d at 90 n.1.
Accordingly, we
refer only to 8 C.F.R. § 1208.16(e) in this opinion.

7

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 8 of 24

The application of this regulation to Shantu’s case is at issue
here.
C.
Shantu’s

application

for

asylum,

withholding

of

removal,

and CAT protection was referred to immigration court, and Shantu
appeared

before

Maryland.

an

Immigration

Judge

(“IJ”)

in

Baltimore,

presented

Shantu admitted that he was a removable alien and
three

witnesses,

as

well

as

his

own

testimony,

in

support of his claims.
On

August

2,

2007,

the

IJ

issued

a

decision

denying

Shantu’s application for asylum but granting him withholding of
removal. 2

The IJ found the testimony of Shantu and his three

witnesses credible and concluded that Shantu had suffered past
persecution
persecution.

and

possessed

a

well-founded

fear

of

future

He also found that Shantu had not been “firmly

resettled” in Norway.

J.A. 127.

But despite the fact that

Shantu was eligible for asylum, the IJ denied Shantu’s asylum
application in an exercise of discretion.
The
factors.

IJ

based

the

discretionary

denial

of

asylum

on

two

First, the IJ found that Shantu had engaged in “forum

shopping” by “com[ing] to the United States seeking asylum in
2

The IJ found that Shantu’s application for CAT protection
was mooted by the grant of withholding of removal and Shantu
does not contest this conclusion.

8

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 9 of 24

this nation rather than seeking protection” in Norway, where “he
clearly was permitted to be.”

J.A. 127.

The IJ concluded that

Shantu “should not be rewarded as a matter of discretion for
forum shopping when he clearly was safe in Norway.”
Second,

the

IJ

found

that

Shantu

had

lied

to

J.A. 128.
immigration

officials when he obtained a visitor visa because he came to the
United States with the intention of seeking asylum here.
The

IJ

did

find,

however,

that

Shantu

was

eligible

for

withholding of removal because it was “more likely than not,
given the past history, that [his] life or freedom [would] be
placed

in

danger

Ethiopia.”
of

asylum

status”

if

J.A. 128.
or

of

he

were

be

required

to

return

to

The IJ did not then reconsider the denial

contemplate

being

to

the

granted

effect

that

withholding

of

the

“unusual

removal

but

legal
denied

asylum would have on Shantu’s ability to reunite with his wife.
See Zuh, 547 F.3d at 508 (quoting Huang, 436 F.3d at 95); see
also 8 C.F.R. § 1208.16(e).
Shantu

appealed

the

IJ’s

decision

to

the

Board

of

Immigration Appeals and, on April 24, 2009, a single member of
the Board

dismissed

the

matter.

The

Board’s

decision

first

noted its obligation under In re Pula, 19 I. & N. Dec. 467, 473
(B.I.A. 1987), to examine the “totality of the circumstances” in
making

a

discretionary

acknowledged

Zuh,

which

asylum
we

decision.

decided
9

after

Next,
the

IJ

the

Board

issued

his

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 10 of 24

opinion but before the BIA ruled on Shantu’s appeal.

The Board

listed some of the factors enumerated in that opinion, including
“evidence of hardship to the alien and his family if deported to
any country, or if denied asylum such that the alien cannot be
reunited

with

“general

family

members”;

humanitarian

“evidence

reasons”;

of

“evidence

good
of

character”;
severe

past

persecution or a well-founded fear of future persecution”; “lack
of candor with immigration officials”; “presence of a criminal
record

or

significant

violations

of

immigration

laws”;

and

“other evidence of bad character or undesirability for permanent
residence in the United States.”
But

the

Shantu’s

Board

personal

did

not

J.A. 95.

apply

circumstances

most
or

of

these

weigh

considerations against the negative ones.

factors

the

to

positive

Rather, the Board

simply adopted and affirmed the IJ’s decision.

The Board agreed

with the IJ that Shantu had found “safe haven” in Norway and saw
no

evidence

that

Shantu

could

not

return

there.

The

Board

further noted that Shantu’s family ties were in Norway because
his wife was still there.

And the Board agreed with the IJ’s

findings that Shantu had engaged in forum shopping by choosing
to apply for asylum in the United States, and that Shantu had
lied to immigration officials to obtain a visa.

Finally, and

“very importantly,” J.A. 96, the Board relied on the fact that
Shantu

had

been

granted

withholding
10

of

removal

as

a

factor

Appeal: 15-1175

Doc: 31

supporting

Filed: 07/13/2016

the

discretionary

Pg: 11 of 24

denial

of

asylum,

in

that

it

protected Shantu from further persecution in Ethiopia.
Shantu

did

not

seek

direct

review

of

the

Board’s

2009

decision, but on May 18, 2010, he filed a motion asking the BIA
to reopen his case under its sua sponte authority.
§ 1003.2(a).

Shantu

explained

that

his

wife

See 8 C.F.R.

was

unable

to

sponsor him for a family reunification visa in Norway because he
had already sponsored her for one, and that his inability to
reunite
family.

with

his

wife

and

son

was

causing

hardship

for

his

The same single member of the Board denied the motion

on March 16, 2011, finding that Shantu had not shown that his
circumstances were “materially different” than before.

J.A. 66.

Shantu subsequently obtained new counsel and, on September
15,

2014,

he

filed

a

motion

to

reconsider

the

discretionary

denial of asylum under 8 C.F.R. § 1208.16(e), the regulation
directly at issue here.

He argued that neither the IJ nor the

BIA had meaningfully examined whether he could be reunited with
his family in light of the grant of withholding of removal, as
required by the regulation, and that the IJ had just assumed,
without factual basis, that he could return to Norway.

He also

stated that his Ethiopian passport had expired, and that his
wife’s and son’s temporary Norwegian visas had also expired.
And he produced evidence that he had attempted to obtain a visa
to return to Norway, but his application was denied because he
11

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 12 of 24

did not have a valid United States travel document — a result of
his withholding of removal status.
the

previous

decisions

in

his

Finally, Shantu argued that
case

were

legally

erroneous

because the IJ and BIA had improperly relied on the finding that
Norway was a “safe haven,” and had failed to properly weigh the
factors outlined in Zuh.
The same single member of the Board denied Shantu’s motion
for reconsideration on January 27, 2015.
C.F.R.

§ 1208.16(e)

“require[s]

The Board noted that 8

reconsideration

of

any

discretionary denial of asylum when the alien is subsequently
granted

withholding

factors

including

of

the

removal,
reasons

and

for

directs
the

consideration

denial

of

available alternatives for family reunification.”

asylum

J.A. 3.

of
and
The

Board also noted that the expiration of visas and passports was
“an ordinary occurrence with the lapse of time,” and that Shantu
had

failed

to

address

his

“lack

of

candor

to

immigration

officials under which discretionary asylum was properly denied.”
Id.

Finally, the Board stated that “the factors prescribed by

regulation

and

Zuh

considered”

by

the

decisions.

v.
IJ

Mukasey”
and

the

had

already

Board

Id. (citation omitted).

in

the

been
three

“properly
previous

Accordingly, the motion for

reconsideration was denied.
Shantu

filed

a

timely

petition

for

denial of his motion for reconsideration.
12

review

of

the

BIA’s

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 13 of 24

II.
We first consider the requirements of the regulation at the
heart of this case, 8 C.F.R. § 1208.16(e).

The provision states

that a discretionary denial of asylum “shall be reconsidered” in
the

event

withholding

that
of

the

applicant

deportation

or

is

“subsequently

removal,”

because

granted

this

rare

situation “effectively preclud[es] admission of the applicant’s
spouse or minor children following to join him or her.”
C.F.R. § 1208.16(e).

8

Among the “[f]actors to be considered”

upon reconsideration are “the reasons for the denial” and the
“reasonable

alternatives

available

to

the

applicant

such

as

reunification with his or her spouse or minor children in a
third country.”
Neither

Id.

the

BIA

nor

the

federal

courts

have

had

much

occasion to interpret 8 C.F.R. § 1208.16(e), perhaps because the
situation to which the regulation applies hardly ever arises.
See Zuh, 547 F.3d at 507 (noting that a discretionary denial of
asylum is “exceedingly rare” and that a grant of withholding of
removal to someone denied discretionary asylum is “even more
rare” than that).
case,

however,

“reconsideration”

As the Board itself acknowledged in this
it

is

clear

mandatory.

that
And

“reconsideration” is plain enough.

the

the

regulation

meaning

of

the

makes
word

See Dickenson-Russell Coal

Co. v. Sec’y of Labor, 747 F.3d 251, 258 (4th Cir. 2014) (“The
13

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 14 of 24

plain meaning of language in a regulation governs unless that
meaning would lead to absurd results.” (quoting Forest Watch v.
U.S. Forest Serv., 410 F.3d 115, 117 (2d Cir. 2005))).
regulation

clearly

mandates

that

a

discretionary

denial

The
of

asylum be reexamined if withholding of removal is granted, in
light of the enumerated considerations.
But beyond this basic requirement, the meaning of 8 C.F.R.
§ 1208.16(e) is less clear.
from

the

provision’s

text

For instance, it is not apparent
when

in

the

asylum

adjudication

process the required reconsideration must occur, or who — the
Board or an IJ — must do the reconsidering.

And as the Second

Circuit has observed, the regulation also “does not specify the
mechanism

that

initiates

review

—

i.e.,

by

motion,

through

direct appeal, or as a result of the BIA’s own initiative.”
Huang, 436 F.3d at 93.
Both the Second Circuit and the BIA have considered some of
these

questions,

definitively

at

least

resolved

in

them.

passing,
In

although

Huang,

the

neither

Second

has

Circuit

rejected the government’s contention that 8 C.F.R. § 1208.16(e)
“place[d]

a

duty

solely

on

[a]

petitioner

to

move

for

reconsideration, as opposed to requiring the BIA (or the IJ for
that matter) to reconsider any denial of asylum sua sponte.”
Id.

at

93.

The

court

then

held

that

a

petitioner

is

not

required to bring a motion for reconsideration under 8 C.F.R.
14

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 15 of 24

§ 1208.16(e) — but it did not rule out the possibility that a
petitioner could bring such a motion.

See id. at 93–94.

In

addition, the court observed that the command “‘the denial of
asylum shall be reconsidered’” is phrased in the passive voice,
and that, “[r]ead normally, the passive voice in such a phrase
mandates action by the party which previously had acted, i.e.,
the BIA.”

Id. at 93 (emphasis in original) (quoting 8 C.F.R.

§ 1208.16(e)).
analysis

or

But the following year, the Board said — without

discussion — that,

“[u]nder

8

C.F.R.

§ 1208.16(e)

(2006), when an alien is denied asylum solely in the exercise of
discretion but is subsequently granted withholding of removal,
the Immigration Judge must reconsider the denial of asylum.”
re

T-

Z-,

24

I.

&

N.

Dec.

163,

176

(B.I.A.

2007).

In

Taken

together, these opinions suggest that either the Board or an IJ
is authorized to provide the reconsideration required under 8
C.F.R.

§ 1208.16(e),

either

sua

sponte

or

in

response

appears

to

have

to

a

motion.
In

this

case,

the

government

approach different from the one it advanced in Huang.

taken

an

Though it

did not address the matter in its brief, at oral argument the
government asserted that 8 C.F.R. § 1208.16(e) is intended to
trigger “automatic reconsideration” by the IJ at the time of
initial

review

of

an

asylum

application.

As

a

procedural

matter, according to the government, the regulation does not
15

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 16 of 24

give the Board authority to reconsider a denial of asylum after
a case is closed; such reconsideration may proceed only under a
different regulation, 8 C.F.R. § 1003.2. 3
We need not, and do not, consider arguments raised for the
first time at oral argument.

See W. Va. CWP Fund v. Stacy, 671

F.3d 378, 389 (4th Cir. 2011).

But to the extent the government

has suggested that Shantu’s motion under 8 C.F.R. § 1208.16(e)
was improper, we note that the Board took no issue with Shantu’s
procedural choice and did not deny his motion on that basis.
And perhaps for that reason, the government expressly stated at
oral

argument

that

it

was

not

seeking

dismissal

on

jurisdictional grounds, but rather explaining its interpretation
of a rarely-invoked regulation.

Finally, given that neither the

BIA nor any court has adopted the government’s latest position —
which is directly contrary to the one it advanced in Huang, when
it

argued

that

“reconsideration”

under

8

C.F.R.

§ 1208.16(e)

could proceed only on a separate motion by the applicant, see
3

This provision authorizes the Board to, “at any time[,]
reopen or reconsider on its own motion any case in which it has
rendered a decision,” and it outlines the requirements for a
motion for reconsideration filed by a party.
8 C.F.R.
§ 1003.2(a)–(b).
The government noted in its brief that a
motion to reconsider under 8 C.F.R. § 1003.2(b) must be filed
within 30 days of the Board’s final decision, but it waived
reliance on this requirement, conceding that the time limit was
“not a basis for the Board’s decision” to deny reconsideration
in this case.
Gov’t Br. at 22 n.5; see also 8 U.S.C.
§ 1229a(c)(6)(B).

16

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 17 of 24

436 F.3d at 93 — we observe that Shantu had every reason to
believe he was entitled to file a motion for reconsideration
pursuant to that regulation.
We need not delve further into the questions surrounding 8
C.F.R. § 1208.16(e) to resolve this case.

Regardless of whether

it was the Board or the IJ that was required to reconsider
Shantu’s application for asylum, or precisely how and when that
reconsideration

was

to

take

place,

the

unambiguous

and

fundamental command of 8 C.F.R. § 1208.16(e) is that there be
some

reexamination

of

a

discretionary

denial

of

asylum

when

withholding of removal is granted, under the factors set out in
the regulation.

And as we discuss below, that requirement was

not satisfied here.

III.
A.
We have jurisdiction to review Shantu’s petition under 8
U.S.C.

§ 1252.

We

assume

without

deciding

that

the

Board’s

decision may be reviewed only for an abuse of discretion, as the
government contends. 4

Accordingly, we will reverse the Board’s

4

This is the standard of review that applies to a motion
for reconsideration brought under 8 C.F.R. § 1002.3, see Narine
v. Holder, 559 F.3d 246, 249 (4th Cir. 2009), and Shantu has not
argued that a different standard should apply here.

17

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 18 of 24

denial of Shantu’s motion for reconsideration “only if the Board
acted arbitrarily, irrationally, or contrary to law.”

Narine v.

Holder, 559 F.3d 246, 249 (4th Cir. 2009) (quoting Mohammed v.
Gonzales, 400 F.3d 785, 791 (9th Cir. 2005)).
B.
We find that the Board abused its discretion when it denied
Shantu’s

motion

for

reconsideration.

The

Board

denied

the

motion based on its conclusion that “the factors prescribed by
regulation and Zuh v. Mukasey were properly considered by the
Immigration Judge and the Board in prior decisions.”
(citation omitted).

J.A. 3

But an examination of the BIA’s and IJ’s

“prior decisions” reveals this determination to be contrary to
law.

We are mindful, of course, that our review is limited to

the Board’s January 27, 2015 decision denying Shantu’s motion
for reconsideration; the BIA’s earlier decisions were not timely
appealed.

But because that 2015 decision expressly incorporates

and relies upon the Board’s and IJ’s previous decisions, we can
determine whether the Board abused its discretion in 2015 only
by examining its prior reasoning.

See Nken v. Holder, 585 F.3d

818, 822 (4th Cir. 2009) (“[A]n administrative order,” including
one of the BIA, “cannot be upheld unless the grounds upon which
the agency acted . . . were those upon which its action can be
sustained.”

(quoting

SEC

v.

Chenery

(1943))).
18

Corp.,

318

U.S.

80,

95

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 19 of 24

First, there can be no doubt that the IJ did not reexamine
his own discretionary denial of asylum after granting Shantu
withholding

of

removal,

as

the

government

§ 1208.16(e) required him to do.

suggests

8

C.F.R.

The IJ considered Shantu’s

asylum application only once in his sixteen-page opinion, and he
did so in the paragraphs preceding the grant of withholding of
removal.

And at no point did the IJ address most of the factors

enumerated by 8 C.F.R. § 1208.16(e).

He made no mention of 8

C.F.R. § 1208.16(e) itself, nor did he address the hardship that
Shantu’s unusual immigration status might place on his family.
Rather, he simply concluded that Shantu’s “forum shopping” and
dishonesty

when

obtaining

his

visa

precluded

a

discretionary

grant of asylum.
The Board did not provide the reconsideration required by 8
C.F.R. § 1208.16(e), either.

The Board issued its 2009 opinion

rejecting Shantu’s appeal of the IJ’s determination after we
decided Zuh, which clarified our view that the decision to grant
withholding

of

removal

while

denying

discretionary

asylum

is

typically justified “only when the Government has demonstrated
egregious negative activity by the applicant.”

547 F.3d at 507.

Yet although the Board acknowledged the factors we enumerated in
Zuh, it did not apply them to Shantu’s particular case, balance
them, or consider whether any misconduct by Shantu was, in fact,
“egregious.”

Rather,

the

Board
19

simply

affirmed

the

IJ’s

Appeal: 15-1175

Doc: 31

decision,

Filed: 07/13/2016

concluding

that

Pg: 20 of 24

Shantu

had

found

“safe

haven”

in

Norway and had “family ties” there, that Shantu had engaged in
impermissible “forum shopping,” and that Shantu had “lied to
immigration officials” to obtain his United States visa.

J.A.

95–96.
Finally, in the brief decision denying Shantu’s motion to
reopen,

the

Board

incorrectly

stated

that

“the

factors

considered by the Immigration Judge complied with law in the
United

States

declined

to

Court

of

“further

Appeals
consider

application for asylum.”
to

“further

for

consider”

the

J.A. 66.
Shantu’s

the

Fourth

Circuit,”

denial

of

and

[Shantu’s]

The Board’s express refusal
case

cannot

constitute

the

“reconsideration” required by 8 C.F.R. § 1208.16(e).
Accordingly,

we

find

that

neither

the

IJ

nor

the

Board

provided the reconsideration of Shantu’s asylum application that
8

C.F.R.

§ 1208.16(e)

determination
discretion.

otherwise

requires,
was

and

contrary

to

See Narine, 559 F.3d at 249.

that
law

the

and

an

Board’s
abuse

of

We therefore remand

this matter to the BIA so that Shantu’s asylum application may
be

reconsidered

§ 1208.16(e)

and

in
the

light
law

of
of

the
this

requirements
Circuit.

of

See

8

C.F.R.

Cordova

v.

Holder, 759 F.3d 332, 338 (4th Cir. 2014) (“[W]hen a BIA order
does not demonstrate that the agency has considered an issue,
the proper course, except in rare circumstances, is to remand to
20

Appeal: 15-1175

the

Doc: 31

agency

Filed: 07/13/2016

for

additional

Pg: 21 of 24

investigation

(quoting Nken, 585 F.3d at 822)).

or

explanation.”

We reiterate our view that

Shantu’s current immigration status is disfavored and justified
only by “egregious negative activity.”

Zuh, 547 F.3d at 507.

IV.
A.
Although the BIA must determine how best to proceed with
this case on remand, we offer a few additional observations that
might inform the agency’s reconsideration.

First, we note that

the Board’s 2009 decision relies on the suggestion in In re Pula
that

a

grant

of

withholding

of

removal

makes

the

denial

of

discretionary asylum more justifiable, given that the applicant
will not be deported into harm’s way.
474.

But

in

Zuh,

we

made

it

See 19 I. & N. Dec. at

clear — relying

§ 1208.16(e) itself 5 — that the opposite is true:
needs

an

especially

compelling

reason

to

deny

in

part

on

The government
discretionary

asylum to a refugee who meets the high standard for withholding
of removal, given the disfavored nature of that status.
F.3d at 507–08, 510.

547

To the extent that In re Pula and Zuh

conflict, the Board of course is bound by our ruling in Zuh.

5

In Zuh we cited 8 C.F.R. § 208.16(e), 547 F.3d at 510,
but,
again,
that
provision
is
identical
to
8
C.F.R.
§ 1208.16(e). See supra n.1.

21

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 22 of 24

Second, although the IJ found expressly that Shantu was not
“firmly resettled” in Norway, both the IJ and the Board relied
heavily

on

a

determination

that

Shantu

had

engaged

in

impermissible “forum shopping” because he had found “safe haven”
in Norway.

But as the Second Circuit has noted, “the regulation

giving IJs discretion to deny asylum to applicants staying in a
‘safe third country’ before arrival in the United States” was
repealed on January 5, 2001.
248

(2d

Circuit

Cir.
went

2006)
on

to

(per
hold,

Tandia v. Gonzales, 437 F.3d 245,

curiam).

Accordingly,

an

only

IJ

may

deny

the

Second

discretionary

asylum based on a stay in a third country if the applicant was
“firmly resettled” there.

Id. at 249 (citations omitted); see

also Alsagladi v. Gonzales, 450 F.3d 700, 702 (7th Cir. 2006)
(“[T]he United States does not require refugees to remain in the
first nation they reach after their escape, unless they have
become

firmly

(citations

settled

omitted)).

there,

or

Although

a
the

treaty

so

government

provides.”
takes

the

position that “safe haven” remains a factor that may properly be
considered in a discretionary asylum determination, the Board
may wish to consider on remand whether that is so — and whether,
in any event, the so-called “forum shopping” in this case rose
to the level of “egregious negative activity,” see Zuh, 547 F.3d
at 507.

22

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Finally,

we

observe

Pg: 23 of 24

that

the

only

other

basis

for

the

discretionary denial of Shantu’s asylum application was the IJ’s
and

the

Board’s

conclusion

that

officials to obtain his visa.

Shantu

lied

to

consular

We do not question the importance

of discouraging fraudulent conduct by asylum seekers.

But given

that “[t]he BIA has explicitly cautioned that manner of entry
cannot,

as

a

matter

of

law,

suffice

as

a

basis

for

a

discretionary denial of asylum in the absence of other adverse
factors,” Huang, 436 F.3d at 99 (citing In re Pula, 19 I. & N.
Dec. at 473–74), we do question whether the way in which Shantu
obtained his temporary visa constituted “egregious” misconduct.
B.
In addition, we note that this case may provide the BIA an
opportunity

to

clarify

§ 1208.16(e).
“reconsider”

While
to

be

we

its

interpretation

find

evident,

the

meaning

have

we

noted

of
of
above

8

C.F.R.

the

word

that

the

regulation’s text does not reveal when in the normal process of
adjudicating

an

asylum

application

the

reconsideration

occur, or what entity should do the reconsidering.

should

We do not

reach these questions because they do not affect the resolution
of the case that is before us; Shantu’s asylum application was
not

properly

reconsidered

at

any

stage

of

the

process.

Furthermore, we are cognizant that the BIA should interpret the
regulation in the first instance.
23

Cf. INS v. Orlando Ventura,

Appeal: 15-1175

Doc: 31

Filed: 07/13/2016

Pg: 24 of 24

537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals
should remand a case to an agency for decision of a matter that
statutes place primarily in agency hands.”); Gonzales v. Thomas,
547 U.S. 183, 186 (2006); Nken, 585 F.3d at 822.

We encourage

the BIA to take that opportunity on remand.

V.
Because

Shantu’s

asylum

application

did

not

receive

the

reconsideration mandated by 8 C.F.R. § 1208.16(e), we find that
the BIA’s denial of his motion for reconsideration was an abuse
of

discretion.

Accordingly,

we

grant

Shantu’s

petition

for

review and remand the case to the BIA for further proceedings.

PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED

24