USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 1 of 32 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 19-12019 ________________________ Agency No. A209-230-482 VISAVAKUMAR THAMOTAR, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (June 17, 2021) Before WILSON, JILL PRYOR and LAGOA, Circuit Judges. JILL PRYOR, Circuit Judge: USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 2 of 32 Visavakumar Thamotar, a Sri Lankan citizen of Tamil ethnicity, seeks review of the Board of Immigration Appeals’ (“BIA”) order affirming an Immigration Judge’s discretionary denial of his application for asylum and grant of withholding of removal. Mr. Thamotar argues that because removal was withheld, federal regulation 8 C.F.R. § 1208.16(e)1 required reconsideration of his asylum claim, which the Immigration Judge and BIA failed to give. We agree with Mr. Thamotar that the agency failed to conduct the proper reconsideration. When an asylum applicant is denied asylum but granted withholding of removal, 8 C.F.R. § 1208.16(e) requires reconsideration anew of the discretionary denial of asylum, including addressing reasonable alternatives available to the petitioner for family reunification. 2 And where the Immigration Judge has failed to do so, the BIA must remand for the Immigration Judge to conduct the required reconsideration. Here, the Immigration Judge failed to reconsider Mr. Thamotar’s asylum claim under § 1208.16(e). The BIA’s failure to remand on this issue was therefore 1 Mr. Thamotar refers to both 8 C.F.R. §§ 208.16(e) and 1208.16(e) in his briefing. The two provisions are identical in substance, but § 1208.16(e) specifically applies to the BIA (and Immigration Judges) because of the enactment of the Homeland Security Act of 2002, Pub. L. No. 107-296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192 (Nov. 25, 2002) (as amended), and the promulgation of final rule 68 Fed. Reg. 9823, effective February 28, 2003. 68 Fed. Reg. 9823, 9824–25, 9834 (Feb. 28, 2003); see Huang v. INS, 436 F.3d 89, 90 n.1 (2d Cir. 2006) (discussing this legislative history). For consistency, we will refer only to 8 C.F.R. § 1208.16(e). 2 Because we vacate the BIA’s order on this ground, we do not address Mr. Thamotar’s additional challenges to the order, which included that the BIA erred by affirming the Immigration Judge’s adverse credibility determination, which he contends was not supported by substantial evidence, and relying on his method of entry into the United States when affirming the Immigration Judge’s decision. 2 USCA11 Case: 19-12019 Date Filed: 06/17/2021 Page: 3 of 32 manifestly contrary to law and an abuse of discretion. It is clear that neither the Immigration Judge nor the BIA conducted the proper reconsideration because the record contained no information about Mr. Thamotar’s ability to reunite with his family, information that the agency must review under § 1208.16(e). Thus, the BIA should have remanded the case for further factfinding. We grant the petition, vacate the BIA’s order, and remand to the BIA with instructions to remand …
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