3697.pdf

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Harvard University*
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ECON MISC
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Feb 11, 2024
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Cite as 25 I&N Dec. 341 (BIA 2010) Interim Decision #3697 1 Although the respondent's former attorney has been suspended from practice before the Board, the Immigration Court, and the Department of Homeland Security, his suspension was not in effect at the time he filed a brief in April 2009, so we have considered the arguments set forth in that brief. 2 We acknowledge and appreciate the very helpful briefs submitted by the parties and by amici curiae, the American Immigration Lawyers Association and the Federation for American Immigration Reform, Inc. 341 Matter of C-T-L-, Respondent Decided September 14, 2010 U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals The "one central reason" standard that applies to asylum applications pursuant to section 208(b)(1)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(1)(B)(i) (2006), also applies to applications for withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006). FOR RESPONDENT: Jaspreet Kalra Singh, Esquire, New York, New York 1 FOR THE DEPARTMENT OF HOMELAND SECURITY: Grace H. Cheung, Assistant Chief Counsel AMICI CURIAE: Michael M. Hethmon, Esquire; Joseph C. Hohenstein, Esquire; Paul O'Dwyer, Esquire; and Stephen W. Manning, Esquire, Washington, D.C. 2 BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members. MALPHRUS, Board Member: In a decision dated October 5, 2006, an Immigration Judge denied the respondent's applications for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"), and ordered him removed from the United States. We dismissed the respondent's appeal from that decision on January 7, 2008. The matter is now before us on remand from the United States Court of Appeals for the Ninth Circuit. Both parties and
Cite as 25 I&N Dec. 341 (BIA 2010) Interim Decision #3697 3 After amici curiae submitted their briefs, the Department of Homeland Security ("DHS") filed a motion to accept its supplemental brief. The DHS's unopposed motion will be granted. We have also accepted the respondent's supplemental brief, which was filed on August 6, 2010. 342 amici curiae have filed briefs. 3 The respondent's appeal will again be dismissed. I. FACTUAL AND PROCEDURAL HISTORY The respondent is a native and citizen of Brazil who was admitted to the United States as a nonimmigrant visitor in 1995. He was served with a Notice to Appear (Form I-862) dated January 24, 2006, charging him with marriage fraud under section 237(a)(1)(G)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(G)(i) (2006). At proceedings before the Immigration Judge on June 28, 2006, the respondent conceded removability and applied for asylum, withholding of removal under section 241(b)(3)(A) of the Act, 8 U.S.C. § 1231(b)(3)(A) (2006), and protection under the Convention Against Torture. Accordingly, these proceedings are governed by the provisions of the REAL ID Act of 2005, Division B of Pub. L. No. 109-13, 119 Stat. 302 ("REAL ID Act"). See Matter of S-B- , 24 I&N Dec. 42 (BIA 2006). The respondent sought relief based on three separate incidents. First, he expressed a fear of a former employer, a businessman and politician whom the respondent had criticized during the 1980s for the employer's involvement in the death of an American citizen. Second, after the respondent had relocated during the early to mid-1990s, he was involved in the business of registering automobiles with a government agency and was approached by police officers to participate in a blackmail scheme. The respondent reported the officers' scheme to the authorities, who disciplined and suspended the rogue officers for 2 months, and he later appeared on television to expose the officers' wrongdoings. Third, while in the United States, after being solicited by a drug dealer to engage in illegal activities, the respondent assisted law enforcement authorities in apprehending the dealer. The Immigration Judge found the respondent to be credible, but she denied his application for asylum because he failed to file for relief within a year after the date of his arrival in the United States, as required by section 208(a)(2)(B) of the Act, 8 U.S.C. § 1158(a)(2)(B) (2006). The respondent demonstrated no changed or extraordinary circumstances to excuse the delay. See section 208(a)(2)(D) of the Act; 8 C.F.R. §§ 1208.4(a)(4), (5) (2010). In addition, the Immigration Judge denied the respondent's request for withholding of removal, also referred to as restriction from removal, finding that he did not show that there was a nexus between the harm he fears and one of the protected grounds specified in the Act. Finally, the Immigration Judge
Cite as 25 I&N Dec. 341 (BIA 2010) Interim Decision #3697 343 determined that the respondent did not establish that he should be granted protection under the Convention Against Torture. In dismissing the respondent's appeal, we stated that he was unable to demonstrate that either his political opinion or his membership in a particular social group was a "central reason" for any feared persecution, as required by section 208(b)(1)(B)(i) of the Act. On November 19, 2008, the Ninth Circuit granted the Government's unopposed motion to remand these proceedings to determine whether section 208(b)(1)(B)(i) applies to applications for withholding of removal under section 241(b)(3)(A). In the motion, the parties acknowledged that although the respondent did not contest the applicability of the REAL ID Act to his request for withholding of removal, there was no developed or meaningful discussion by the parties addressing the applicability of the "one central reason" standard to withholding of removal claims. Thus, the record was remanded for us to "bring [our] expertise to bear upon the matter . . . through informed discussion and analysis." INS v. Orlando Ventura , 537 U.S. 12, 17 (2002). II. ANALYSIS A. REAL ID Act Amendments Section 208(b)(1)(A) of the Act provides that a "refugee" is eligible for asylum. That term is defined in section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42) (2006), as including a person who has been persecuted or who has a well-founded fear of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." See also INS v. Cardoza-Fonseca , 480 U.S. 421, 423 (1987). An alien who demonstrates past persecution or a well-founded fear of future persecution is eligible for asylum, subject to a discretionary determination. Id. at 423, 428 nn. 5-6. This standard is a broader one than that used to demonstrate eligibility for withholding of removal. Id. at 423-24. Eligibility for withholding of removal requires a showing that the alien's life or freedom would be threatened "because of . . . race, religion, nationality, membership in a particular social group, or political opinion." Section 241(b)(3)(A) of the Act. Thus, to establish eligibility for withholding of removal, an alien must show that there is a clear probability of persecution, or stated differently, that it is more likely than not that he or she would be subject to persecution. INS v. Stevic , 467 U.S. 407, 424 & n.19 (1984). We view the "clear probability" standard to be equivalent to, and interchangeable with, the "more likely than not" standard for purposes of withholding of removal. See id. at 429-30. See generally 8 C.F.R. §§ 208.16(b), 1208.16(b) (2010).
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