Immigration Law
| Publication year | 2022 |
Immigration Law
Bianca N. DiBella
Hannah Couch
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This Article surveys cases from the United States Court of Appeals for the Eleventh Circuit from January 1, 2021, through December 31, 2021, in which immigration law was a central focus of the case.1 The Article begins with a discussion of asylum relief, followed by summaries of cases disposed on procedural or jurisdictional grounds. It then discusses the standard of review the Eleventh Circuit applies to cases decided by the Board of Immigration Appeals (BIA) and the Immigration Court. It then describes the Eleventh Circuit's recent jurisprudence around issues of habeas corpus law.
A. Well-Founded Fear of Future Persecution
The Eleventh Circuit issued several opinions this past year regarding whether a petitioner established past persecution or an individualized well-founded fear of future persecution supporting asylum or withholding of removal.2
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In Jathursan v. U.S. Attorney General,3 Jathursan applied for asylum, withholding of his removal, and Convention Against Torture (CAT) protection, arguing that he previously suffered persecution and had a well-founded fear of future persecution on the statutorily protected grounds of race or ethnicity, political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE),4 imputed LTTE membership through his brother, and status as a Tamil-failed asylum seeker.5 At his removal hearing, he testified that he endured several beatings, including his limbs being tied together and having an iron rod forced through his rectum by the Eelam People's Democratic Party (EPDP), which operates with the tacit consent of the Sri Lankan government. Jathursan claimed he reported this to the police, who did nothing. Jathursan feared persecution from the Sri Lankan army, as Sri Lankan army soldiers once approached him at his car repair shop, demanded his services or merchandise, and refused to pay. He claimed the EPDP and Sri Lankan army work together to persecute Tamils and feared they will persecute him again based on his status as a Tamil-failed asylum seeker, who are presumed to support the LTTE. He presented news articles outlining the torture Tamil-failed asylum seekers face upon their return to Sri Lanka.6
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Although the Immigration Judge (IJ) found Jathursan credible, he denied relief based on past persecution and a well-founded fear of future persecution because Jathursan had not shown a sufficient nexus between the past persecution and a protected ground.7 The IJ found that the Sri Lankan army and EPDP were motivated by pecuniary gain and that Jathursan's proposed group of "returned asylum seekers" was not a cognizable social group because it "lacked particularity and social distinction."8 The IJ also denied Jathursan's withholding-of-removal claim because it "naturally followed" from the denial of asylum that Jathursan "could not meet the higher burden of proof for withholding of removal."9 Finally, the judge denied Jathursan's CAT claim due to insufficient evidence to show that he would "more likely than not" be tortured in the future, despite Jathursan's presentation of "ample evidence that the Sri Lankan government has committed human rights violations against Tamils in the past."10
Jathursan appealed, and the BIA affirmed.11 The BIA stated it "agreed with the [IJ] that the record evidence does not establish an objectively reasonable fear of persecution . . . based on Tamil ethnicity, having sought asylum, or both," despite the IJ making no such finding.12 Because the BIA found Jathursan could not meet the standard for his asylum claim based on past persecution or a well-founded fear of future persecution, it assumed Jathursan could not meet the heightened standard for his withholding-of-removal claim.13
The Eleventh Circuit agreed with the BIA that Jathursan failed to show past persecution in connection with a protected ground, but held that the BIA failed to give reasoned consideration to Jathursan's evidence showing a well-founded fear of future persecution due to its misstatements of the record, remanding to the BIA to determine whether Jathursan met the asylum standard.14 The court also remanded to the BIA the issue of whether Jathursan met the heightened standard for his withholding-of-removal claim based on his well-founded fear of future persecution.15
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The court also held that the BIA "flatly ignore[d] the grounds presented" by Jathursan for CAT relief.16 The court held that the BIA (1) relied only on Jathursan's documentary evidence involving Tamil detainees and ignored Jathursan's testimony regarding his detainment and torture by the EPDP; (2) failed to address that the EPDP works with the Sri Lankan government; and (3) stated that "the [I]mmigration [J]udge did not make adequate findings on whether that mistreatment was inflicted with the consent or acquiescence of a public official[,]" thereby admitting it was unable to consider whether Jathursan would face future torture.17 Accordingly, the court vacated and remanded Jathursan's CAT claim.18
In Murugan v. U.S. Attorney General,19 Murugan applied for asylum, withholding of removal, and CAT relief.20 Murugan claimed that he suffered past persecution in Sri Lanka when he was arrested by the Sri Lankan army three times: once while returning home from work, after which he was jailed overnight; once while distributing humanitarian aid to refugees who had come from a village controlled by the LTTE, after which he was tied up, tortured, and interrogated for four days; and once for continuing to help refugees, after which he was threatened with going to the "fourth floor," otherwise known as the army torture camp for LTTE affiliates, but instead was released after six hours.21 Murugan claims he was arrested on account of an imputed political opinion and membership in the particular social group of Tamils and that he would suffer future persecution and torture if he returned to Sri Lanka.22
After his removal hearing, where he conceded removability, the IJ denied Murugan's application for asylum, withholding of removal, and CAT relief.23 "The IJ found that the harms Murugan suffered did not rise to the level of past persecution," and that Murugan failed to demonstrate a well-founded fear of future persecution because (1) he failed to offer evidence, other than his testimony, that anyone had indicated that they would harm him upon his return; (2) his family remains unharmed; and (3) Murugan could "safely relocate within Sri
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Lanka and that it is reasonable to expect him to do so."24 Finally, the IJ found that Murugan "failed to demonstrate a nexus between the alleged persecution and an imputed political opinion . . . [or] his Tamil ethnicity," or "that the proposed group of returned asylum seekers was 'overbroad and not socially distinct.'"25 The BIA adopted the IJ's decision on appeal, concluding that, because Murugan "failed to establish his eligibility for asylum, . . . he failed to establish eligibility for withholding of removal or CAT relief."26
On appeal, Murugan argued that the BIA and the IJ "committed various legal and factual errors in analyzing his claims."27 The court held that the harms Murugan suffered—both physical and mental—"do not rise to the extreme level of persecution."28 Because he did not show past persecution, Murugan was required to show that he had a "subjectively genuine and objectively reasonable" fear of future persecution if he returned to Sri Lanka, even if he relocated within Sri Lanka, which he failed to do.29 Specifically, the court noted that while "some" materials Murugan submitted to the IJ and BIA were considered outdated and others were not, the IJ and BIA considered all materials and found no pattern or practice of persecution of Tamils in Sri Lanka.30 "Under the highly deferential substantial evidence standard, [the court] review[ed] the evidence in the light most favorable to the agency's decision and dr[ew] all reasonable inferences in favor of that decision."31 Because the record did not compel a reversal, the court upheld the BIA's and IJ's findings.32
Furthermore, the court held that Murugan failed to show a nexus between the persecution and his imputed political opinion as favoring the LTTE by aiding refugees.33 "But when Murugan's counsel asked Murugan . . . whether the army questioned Murugan about whether he was involved in the LTTE, Murugan responded: 'No, no, no, they were just suspecting and that they were saying that I had contact with these people during war time.'"34 The court found that this "undercut his prior
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assertions" and held that the BIA did not lack a "substantial basis for its conclusion that Murugan's fear of persecution on account of the allegedly imputed political opinion was not well-founded."35 Because Murugan did not succeed on his asylum claim, he "necessarily failed to establish eligibility for withholding of removal or protection under CAT."36
Judge Beverly Martin37 dissented38 on the majority's analysis and conclusion that Murugan failed to establish a "subjectively genuine and objectively reasonable" fear of future persecution if he returned to Sri Lanka.39 She stated that the BIA and the majority failed to consider evidence "that in October 2018, the Sri Lankan government changed drastically when the former president, who had been accused of authorizing war crimes and other human rights abuses against Tamils 'blindsided' political observers and 'suddenly' returned as prime minister[,]" whereas she saw it "as substantial and highly probative evidence of a pattern or practice of government persecution of Tamils."40 Additionally, Judge Martin believed Murugan sufficiently established a pattern or practice of persecution, and stated the IJ's and BIA's findings that Murugan failed to produce evidence showing that conditions persisted beyond 2016 were not...
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