U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Cipolla, Erin OHS/ICE Office of Chief Counsel - SEA
EC Immigration Law 1000 Second Avenue, Suite 2900
7511 Greenwood Ave N, Suite 508 Seattle, WA 98104
Seattle, WA 98103

Name: S , G A 625

Date of this notice: 6/5/2017

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

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: G-S-, AXXX XXX 625 (BIA June 5, 2017)

 U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 625 - Seattle, WA Date: JUN - 5 2117

In re: G S

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Erin I. Cipolla, Esquire

ON BEHALF OF DHS: Tiffany T. Tull

Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(7}(A)(i)(I}, l&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] -

Immigrant - no valid immigrant visa or entry document

APPLICATION: Asylum; remand

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).

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Accordingly, a remand is necessary for further fact-finding and legal analysis by the
Immigration Judge. See Matter of S-H-, supra, at 465 (stating that the Board has limited
fact-finding ability on appeal, which heightens the need for Immigration Judges to include
complete findings of fact that are supported by the record).

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

We express no opinion on the ultimate disposition of these proceedings. Accordingly, the

following order will be entered.

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

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File: 625 September 13, 2016

In the Matter of

)
G S ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 212(a)(7)(A)(i)(I), an immigrant arriving in the United States

not in possession of an immigrant visa.

APPLICATIONS: Asylum; withholding of removal; relief pursuant to Article 3 of the

U.N. Torture Convention.

ON BEHALF OF RESPONDENT: ERIN I. CIPOLLA, Esquire

ON BEHALF OF OHS: TIFFANY T. TULL, Esquire

Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 48-year-old married male, native and citizen of India.

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.

At a master calendar proceeding conducted at the detention facility in

Eloy, Arizona before Immigration Judge Spencer-Walters, on October 15, 2013, the

respondent, appearing pro se, admitted the factual allegations contained in the Notice to

Appear. Based on the respondent's admissions, Judge Spencer-Walters found the

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respondent removable as charged by evidence which I consider to be clear, convincing

and unequivocal evidence in nature. Woodby v. INS, 385 U.S. 276 (1966).

The respondent has not designated a country for prospective removal.

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.

In lieu of removal, the respondent has applied for asylum, withholding of

removal to India, and relief pursuant to Article 3 of the U.N. Torture Convention.

STATEMENT OF THE LAW

Separate standards of proof apply to the respondent's applications for

asylum and withholding of removal. In order to qualify for withholding of removal to a

particular country, an applicant must demonstrate that his life or freedom would be

threatened there on account of his race, religion, nationality, membership in a particular

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.

An applicant for asylum, on the other hand, must demonstrate that he is

unwilling to return to his homeland because of persecution or a well-founded fear of

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

625 2 September 13, 2016

that an applicant for asylum must demonstrate an actual and genuinely held subjective

fear of persecution and further show that this fear is objectively reasonable, or in other

words, well-founded.

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The Supreme Court has held that the well-founded fear standard required

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

he demonstrates that a reasonable person in similar circumstances would fear

persecution if returned to his native country. Matter of Mogharrabi, 19 l&N Dec. 439

(BIA 1987).

Past persecution alone is sufficient to meet the refugee definition

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.

An asylum applicant's testimony is extremely important since individuals

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).

An alien's own testimony, without corroborative evidence, may be sufficient to prove a

well-founded fear of persecution where that testimony is believable, consistent and

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

inappropriate to require corroborating testimony or documentation when it could

625 3 September 13, 2016

reasonably be assumed to be available. Matter of Dass, Int. Dec. 3122 (BIA 1989).

However, persecution or a well-founded fear of persecution standing alone

is insufficient to establish eligibility for asylum. The statute requires that such harm be

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on account of one of the specific grounds enumerated in the Act. In other words, a

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.

Article 3 of the United Nations Convention Against Torture and Other

Forms of Cruel, Inhuman and Degrading Treatment or Punishment provides that an

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

considerations, including the existence of a consistent pattern of gross, flagrant, or

mass violations of human rights. Torture is defined in the regulations as an act causing

severe pain or suffering, physical or mental in nature, which is intentionally inflicted.

Torture is described as an extreme form of cruel and inhuman treatment.

STATEMENT AND FINDINGS OF FACT

The respondent provided testimony in a merits hearing conducted before

the undersigned on September 13, 2016.

He has generally testified consistently with information contained in his

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.

Based on the respondent's consistent testimony, the Court will make an

overall positive credibility determination on this case. The Court will further note that the

625 4 September 13, 2016

respondent has testified generally consistently with information provided by him to

officers of the Immigration Service on two separate occasions, at a credible fear

interview on September 12, 2013, and on the occasion of his apprehension upon

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seeking entry into the United States on August 27, 2013. See credible fear materials

attached to Group Exhibit 4.

The Court will make an overall positive credibility determination in this

case.

Based on the respondent's consistent and credible testimony, the Court is

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.

The respondent has credibly testified that in December of 1991, the

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

respondent and various family members by beating them in public.

The respondent testified that subsequent to this incident, although no

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

compelled him to pay bribes.

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

625 5 September 13, 2016

for his act of impudence, his thumbs were crushed by a brick at the hands of the police.

The respondent testified to another incident of severe mistreatment at the

hands of the police which occurred in 1995, when he was taken into custody for refusing

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to report on time to the police, and was urinated on his face.

The respondent testified that he was compelled to quit his occupation as a

farmer and become a truck driver to avoid being sedentary and at the mercy of the

police.

Nevertheless, the respondent was repeatedly required by the police to

report to them, upon returning from his sojourns.

The respondent testified that he decided to flee India to avoid further

persecution, in 2001, and that he obtained a visa to travel to the United Kingdom, where

he stayed until 2007, a period of approximately six years.

The respondent testified during cross-examination that although having

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.

While the respondent's brothers sought to minimize their mistreatment at

the hands of the police, the respondent clearly knew that the situation in India was not

improving for his family.

In any event, the respondent testified that he decided to return to India in

625 6 September 13, 2016

2007 as he learned that one of his sisters was afflicted with terminal cancer.

He testified that he learned upon returning to India of more detailed

circumstances regarding the death of his uncle at the hands of the police, and that he

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became involved with the "India Against Corruption" movement in the hope of seeking

j ustice.

The respondent further testified that upon returning to India, he learned

that one of his brothers had been severely mistreated by the authorities and that the

brother had fled to the United States.

The respondent testified that he continued to be harassed by 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

England, and that he did so in late 2012.

The respondent testified that he remained in England through late August

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.

The respondent testified during re-direct examination that in England he

was able to secure a j ob, and that he decided to continue on to the United States to be

reunited with his brother.

625 7 September 13, 2016

 The respondent has testified that he fears returning to India at this time, as

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

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the authorities in a false criminal encounter.

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

political opinion, and that he has demonstrated a well-founded fear of persecution

should he be compelled to return to India. Background materials presented by the

respondent confirm that the political situation in India continues to be tenuous, and that

the authorities do engage in mistreatment of individuals with impunity. See background

materials attached to Group Exhibit 6, as well as Mah*moud's statement attached to

Group Exhibit 6.

The Court further finds that the respondent has demonstrated by a clear

probability of the evidence that he would be subjected to persecution should he be

compelled to return to India.

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

would be subjected to torture should he be compelled to return to India.

625 8 September 13, 2016

 Accordingly, the applications for withholding of removal to India pursuant

to INA Section 241(b)(3) and pursuant to Article 3 of the U.N. Torture Convention will be

granted.

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The remaining issue iswas whether the respondent is deserving of a grant

of asylum in the exercise of discretion.

Although the respondent appears to be statutorily eligible for asylum, the

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

and chose not to do so, is an overriding negative discretionary consideration on this

case.

On both occasions when the respondent fled to India, he entered the

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

securing legal counsel.

The respondent, furthermore, was fully an adult at the time that he was in

England in 2001 and then again in 2012.

The Court finds the explanation advanced by the respondent as to why he

did not apply for asylum or refugee status in England when he had the opportunity to do

so to be unsatisfactory. The respondent was aware while in communication with his

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

persecution from the authorities.

625 9 September 13, 2016

 The Court finds the extended periods of time that the respondent resided

in the country of England to be an overriding negative discretionary consideration in this

case.

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The Court notes that the respondent has been subjected to some severe

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,

following severe persecution, is undeserving of a grant of the asylum in the exercise of

discretion. Accordingly, the application for asylum must and will be denied.

The Service has advised that database checks mandated by regulation

have been completed and there is nothing negative to report as a result of these

checks. Accordingly, the following orders will be entered:

ORDER

IT IS HEREBY ORDERED that the respondent's application for asylum be

and hereby is denied in the negative exercise of discretion.

IT IS FURTHER ORDERED that an order of removal to India be entered

in this case.

IT IS FURTHER ORDERED that the respondent's application for

withholding of removal to India pursuant to INA Section 241(b)(3) be and hereby is

granted.

625 10 September 13, 2016

 IT IS FURTHER ORDERED that the respondent's application for

withholding of removal to India pursuant to Article 3 of the U.N. Torture Convention be

and hereby is granted.

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Date: September 13, 2016 Please see the next page for electronic

signature
PAUL DEFONZO
Immigration Judge

625 11 September 13, 2016

/Is//

Immigration Judge PAUL DEFONZO

defonzop on February 1, 2017 at 3:55 PM GMT

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625 12 September 13, 2016