The Third Circuit has sustained an appeal of a discretionary denial of asylum where the IJ granted withholding of removal. The court noted that 8 C.F.R. § 1208.16(e) provides that a denial of asylum shall be reconsidered when an applicant is denied asylum solely in the exercise of discretion and is subsequently granted withholding, and requires that the IJ take into account the reasons for the denial and reasonable alternatives available to the applicant such as reunification with the spouse or minor children in a third country. The IJ in the instant matter refused to consider the issue of family reunification or the significance of the petitioner having established a well-founded fear of persecution.
The court went on to adopt a non-exhaustive list of factors for a court to consider when evaluating whether asylum should be granted in the exercise of discretion.
Positive factors include: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 humanitarian reasons, such as age or health; [and] 5) Evidence of severe past persecution and/or well-founded fear of future persecution, including consideration of other relief granted or denied the applicant (e.g., withholding of removal or CAT protection).
Negative factors include: 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 United States.
Based largely on the IJ’s refusal to consider family reunification, the court remanded the case to the agency.
The full text of Sathanthrasa v. Attorney General can be found here: