Professional Documents
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Department of Justice
Name: S , G A 625
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
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Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Userteam: Docket
In re: G S
APPEAL
CHARGE:
The respondent, a native and citizen of India, appeals from the Immigration Judge's
September 13, 2016, decision denying his application for asylum as a matter of discretion, but
granting his application for withholding of removal and protection under the Convention Against
Torture. The Department of Homeland Security has filed a brief in opposition to the appeal.
The record will be remanded for further proceedings consistent with this decision.
We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter ofS-H-, 23 l&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
Citing the respondent's two extended periods of stay in the United Kingdom without seeking
asylum as the "overriding negative discretionary consideration," the Immigration Judge denied the
respondent's asylum application as a matter of discretion (I.J. at 9-10). The respondent on appeal
argues that the Immigration Judge failed to consider the totality of the circumstances in denying
as a matter of discretion (Resp.'s Brief at 8-10). The respondent further contends that, pursuant to
8 C.F.R. 1208.16(e}, the Board is required to reconsider the discretionary denial of asylum,
specifically considering his ability to be reunified with his wife and minor children (Resp.' s
Brief at 10-11).
We find it necessary to remand the record to the Immigration Judge for further consideration
of whether the respondent should be denied asylum as a matter of discretion. In detennining
whether a favorable exercise of discretion is warranted, Immigration Judges must consider the
totality of circumstances, including actions of an alien in his flight from the country where he fears
persecution, as well as general humanitarian concerns. Matter ofPula, 19 l&N Dec. 467, 473-74
(BIA 1987); see also Matter of H-, 21 I&N Dec. 337, 347-48 (BIA 1996); Gulla v. Gonzales,
Cite as: G-S-, AXXX XXX 625 (BIA June 5, 2017)
625
498 F.3d 911, 916 (9th Cir. 2007); Kalubi v. Ashcroft, 364 F.3d 1134, 1139 & n.5 (9th Cir. 2004)
(citing Shahandeh-Pey v. INS, 831 F.2d 1384, 1387-88 (7th Cir. 1987)). Other than a passing
reference to the severe persecution the respondent experienced in India, the Immigration Judge's
discretionary analysis focuses exclusively on the respondent's time in the United Kingdom and his
decision not to seek asylum there (l.J. at 9-10). The Immigration Judge did not adequately address
or consider any humanitarian concerns or other positive factors (see Resp.'s Brief at 9-10).
On remand, the Immigration Judge should also reconsider his decision to deny asylum as a
matter of discretion in light of 8 C.F.R. 1208.16(e). See Shantu v. Lynch, 654 Fed. Appx. 608
(4th Cir.2016); Matter ofT-Z-, 24 l&N Dec. 163, 176 (BIA 2007). Under 8 C.F.R. 1208.16(e),
when an alien is denied asylum solely in the exercise of discretion but is subsequently granted
withho lding of removal, the denial of asylum must be reconsidered to take into account factors
relevant to family reunification. Specifically, the Immigration Judge must consider whether there
are "reasonable alternatives available to the applicant such as reunification with his . . . spouse
[and] minor children in a third country." Id
ORDER: The record is remanded for further proceedings consistent with this decision and
for the entry of a new decision.
'
F15ifTHE BOARD
2
Cite as: G-S-, AXXX XXX 625 (BIA June 5, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SEATTLE, WASHINGTON
In the Matter of
)
G S ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
On September 17, 2013, the Bureau of Immigration and Customs Enforcement issued a
Notice to Appear alleging that the respondent was unlawfully seeking entry into the
United States and that he should be ordered removed from the United States. See
Exhibit 1.
respondent, appearing pro se, admitted the factual allegations contained in the Notice to
and unequivocal evidence in nature. Woodby v. INS, 385 U.S. 276 (1966).
Based on the respondent's admission of Indian citizenship, the Court has designated
India as the country for prospective removal in the event that removal should be
required.
removal to India, and relief pursuant to Article 3 of the U.N. Torture Convention.
particular country, an applicant must demonstrate that his life or freedom would be
social group or political opinion. INA Section 241(b)(3). The Supreme Court has held
that this requires an applicant to show that there is a clear probability that he will be
persecuted or, in other words, to show that persecution is more likely than not to occur.
INS v. Stevie, 467 U.S. 407 (1984). If that standard is met, a grant of withholding of
removal is mandatory.
persecution by the government or a group that the government cannot control, based on
the above enumerated grounds. Section 208 of the INA. The Supreme Court has held
fear of persecution and further show that this fear is objectively reasonable, or in other
words, well-founded.
for asylum is less stringent than the clear probability standard for withholding of
removal. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). The Board of Immigration
Appeals has clarified that an applicant for asylum has established a well-founded fear if
persecution if returned to his native country. Matter of Mogharrabi, 19 l&N Dec. 439
(BIA 1987).
applicable to asylum cases. Desir v. llchert, 840 F.2d 723 (9th Cir. 1988); Matter of
Chen, Int. Dec. 3104 (BIA 1989). Once past persecution is demonstrated, the likelihood
of future persecution becomes relevant in the exercise of discretion and the burden
shifts to the Service to present evidence demonstrating that conditions in the home
country have changed so significantly that there is not a well-founded fear of future
persecution. Matter of H-, Int. Dec. 3276 (BIA 1996); 8 C.F.R. Section 1208.13.
applying for such relief are often limited in the additional evidence they can obtain to
prove past or future persecution. Plateros-Cortez v. INS, 804 F.2d 1127 (9th Cir. 1986).
sufficiently detailed to provide a plausible and coherent account of the basis for the fear.
Qiu v. Ashcroft, 329 F.3d 140 (2nd Cir. 2003); Mogharrabi, supra. However, it is not
is insufficient to establish eligibility for asylum. The statute requires that such harm be
nexus to a protected ground must be shown. INS v. Elias-Zacarias, 502 U.S. 478
(1992); Matter of Y-B-, Int. Dec. 3337 (BIA 1998). Additionally, even if statutorily eligible
for relief, an asylum applicant must demonstrate that he merits the favorable exercise of
discretion.
alien shall not be returned to his country of origin if substantial grounds exist for
believing that the respondent would be subjected to torture there upon his return. The
Convention mandates that the finder of fact take into account all relevant
mass violations of human rights. Torture is defined in the regulations as an act causing
written application for relief, see Exhibit 2, Form 1-589, as well as the supplementary
materials presented in support of the claim, see Exhibit 5 and Exhibit 6A.
overall positive credibility determination on this case. The Court will further note that the
interview on September 12, 2013, and on the occasion of his apprehension upon
case.
satisfied that the respondent has repeatedly been subjected to physical mistreatment
and persecution at the hands of the authorities in India on account of his imputed
political opinion.
respondent, as well as various members of his family, including his father and an uncle,
were rounded up by the police in response to the kidnapping of the child of a local
dignitary by Sikh terrorists. The respondent testified that although his family was in no
way implicated in the kidnapping, that,_ nevertheless... the police physically mistreated the
charges were pressed against the respondent or his immediate family members, that he
was repeatedly harassed by the police who would frequently require the respondent to
appear at the police station, where he would be mentally or physically mistreated, and
The respondent testified that one of the more severe incidents of this type
of persecution occurred in 1993 when the respondent struck one of the officers who had
struck him during the course of detention. The respondent testified that as punishment
hands of the police which occurred in 1995, when he was taken into custody for refusing
farmer and become a truck driver to avoid being sedentary and at the mercy of the
police.
persecution, in 2001, and that he obtained a visa to travel to the United Kingdom, where
attained a refugee in England, that he never bothered to apply for asylum or refugee
status in that country, as it was always his intention to return to India in the hopes that
the situation in that country would improve. The respondent provided this testimony
notwithstanding his testimony during the course of additional questioning by the Court,
to the effect that he was learning from his wife that conditions were not improving in
India during this period of time. The respondent testified that, among other things, he
learned from his wife that an uncle had been arrested, beaten, and died, at the hands of
the police, and that a number of his brothers were also beaten by the police.
the hands of the police, the respondent clearly knew that the situation in India was not
circumstances regarding the death of his uncle at the hands of the police, and that he
j ustice.
that one of his brothers had been severely mistreated by the authorities and that the
authorities following his return to India in 2007. He testified that he was repeatedly
called in for questioning by the police, and was able to avoid detention only by paying
costly bribes. The respondent testified that in 2012 he was physically mistreated by
policemen at a sporting event, where he was publicly beaten. The respondent testified
that following this incident, one of his nephews was arrested by the authorities on a
false charge, and that he learned from his nephew that the police were inquiring as to
his whereabouts.
The respondent testified that he decided to flee India for a second time to
of 2013, and, once again, made no effort to apply for asylum or refugee status in that
country, despite fleeing India on account of his fear of persecution at the hands of the
authorities.
was able to secure a j ob, and that he decided to continue on to the United States to be
he believes that the police will continue to subject him to physical and emotional
mistreatment and that he fears that he could be jailed or possibly killed at the hands of
As previously noted, the Court is satisfied that the respondent has testified
credibly, that he has been subjected to past persecution in India based on his imputed
respondent confirm that the political situation in India continues to be tenuous, and that
Group Exhibit 6.
The Court further finds that the respondent has demonstrated by a clear
The respondent has also sought relief pursuant to Article 3 of the U.N.
Torture Convention. The Court finds that various acts of mistreatment perpetrated upon
the respondent do rise to the level of torture. The respondent has credibly testified that
his thumbs were crushed by the police with a brick when he resisted them, and the
Court finds that the respondent's resistance was justified. The respondent has further
testified that he was urinated upon by the authorities for again resisting unjust
summonses.
The Court finds such treatment to rise to the level of torture and the Court
considers that the respondent has demonstrated that it is more likely than not that he
to INA Section 241(b)(3) and pursuant to Article 3 of the U.N. Torture Convention will be
granted.
Court must find that he is not deserving of that relief in the exercise of discretion.
The Court concludes that the respondent's repeated periods of stay in the
United Kingdom, where he had ample opportunity to apply for asylum or refugee status
case.
country legally with a visa. The respondent has indicated in response to questioning
from the Court that he was able to communicate in the English language, and he was
able to secure employment which earned him income, which could have assisted him in
The respondent, furthermore, was fully an adult at the time that he was in
did not apply for asylum or refugee status in England when he had the opportunity to do
wife that conditions were not improving for his family while he was in the United
Kingdom. In any event, even if conditions were improving, the respondent resided in
England initially from 2001 to 2007, and has admitted to fleeing to that country to avoid
case.
forms of persecution in India. However, it would appear that the most severe
incidences of persecution occurred to the respondent before 2001, when he had his
thumbs crushed by the authorities and was urinated upon. The respondent was
subsequently in the United Kingdom for approximately six years following these
incidents and despite the severity of this persecution, he chose not to apply for asylum
or refugee status.
Consequently, the Court finds that the respondent, having failed to apply
for asylum or refugee status when he had the opportunity, on two separate occasions,
discretion. Accordingly, the application for asylum must and will be denied.
have been completed and there is nothing negative to report as a result of these
ORDER
in this case.
granted.
signature
PAUL DEFONZO
Immigration Judge