Jathursan Thankarasa v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of a Decision of the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-3204
____________
JATHURSAN THANKARASA,
Appellant
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________
On Petition for Review of a Decision of the Board of
Immigration Appeals
(A240-087-525)
Immigration Judge: Adam Panopoulos
____________
Argued December 10, 2024
____________
Before: BIBAS, CHUNG, and ROTH, Circuit Judges
(Filed: April 10, 2025)
Visuvanathan Rudrakumaran [ARGUED]
Law Office of Visuvanathan Rudrakumaran
875 Avenue of Americas, Suite 2309

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New York, NY 10001
Counsel for Petitioner
Joannabelle Aquino
Allison Frayer [ARGUED]
U.S. Department of Justice, Civil Division
P.O. Box 878,
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
____________
OPINION OF THE COURT
____________
CHUNG, Circuit Judge.
Petitioner Jathursan Thankarasa, a native and citizen of
Sri Lanka, seeks review of the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal of an Immigration Judge’s
(“IJ”) order. In that order, the IJ granted Thankarasa’s
application for withholding of removal, but upon both initial
review and reconsideration, the IJ denied Thankarasa’s
application for asylum. Thankarasa argues that the IJ abused
his discretion in failing to consider evidence favorable to
Thankarasa and in determining that Thankarasa’s fraudulent
conduct outweighed the equities in Thankarasa’s favor. We
disagree and will deny the petition.
I. BACKGROUND
Thankarasa is an ethnically Tamil citizen of Sri Lanka,
“a country whose modern history has been marked by civil

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unrest and violence among the Sinhalese, Moor, and Tamil
populations.” Sathanthrasa v. Att’y Gen., 968 F.3d 285, 290
(3d Cir. 2020) (citing Mohideen v. Gonzalez, 416 F.3d 567,
568 (7th Cir. 2005)). On February 7, 2021, Thankarasa
participated in a protest in support of Tamil rights and was
arrested. The police beat, yelled at, and interrogated
Thankarasa to determine if he was planning pro-Tamil terrorist
acts against the Sri Lankan government. Thankarasa was kept
overnight at the police station and released the following day.
Over the next several weeks, Thankarasa was harassed
by groups of unknown people who appeared at his house
unannounced, threatened his life, and attempted to kidnap him.
Thankarasa was also called back to the police station, accused
of helping terrorists, interrogated, and beaten once again. To
avoid further harassment, abuse, and detention, Thankarasa
decided to leave Sri Lanka.
After hiring a smuggler, who provided Thankarasa with
a Sri Lankan passport, Thankarasa left Sri Lanka. At the
direction of the smuggler, Thankarasa spent two years
traveling through Europe, stopping in Romania, Belgium,
France, and Portugal. Throughout these travels, Thankarasa
used the Sri Lankan passport given to him by the smuggler. He
did not seek asylum or other immigration benefits from any of
the countries in which he stopped.
Just before Thankarasa came to the United States, the
smuggler gave him a genuine French passport belonging to
another person. The smuggler instructed Thankarasa to
memorize the passport’s details and assume the identity of the
passport holder when interacting with immigration officers in
the United States. Thankarasa then flew from Portugal to the

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United States. Upon his arrival, he presented the French
passport to an immigration officer as planned. At no point
during this interaction did Thankarasa tell the immigration
officer that he was seeking asylum or any other form of
immigration protection.
Because the immigration officer suspected Thankarasa
of using a fraudulent travel document, he sent Thankarasa to
secondary screening. There, Thankarasa admitted that the
French passport did not belong to him, and stated that his
purpose for coming to the United States was “[t]o claim
asylum.” App. 303. During this interview, Thankarasa was
asked “Are you applying for admission to the United States
utilizing the Visa Waiver Program today?” 1 to which he
responded, “I do not know. [The smuggler] just gave me an
electronic copy of the [visa].” App. 303. Thankarasa was
apparently referring to an Electronic System for Travel
Authorization (ESTA), an approved travel authorization that is
only available for citizens of a Visa Waiver Program country
who have valid passports from Visa Waiver Program
countries.2
1 The Visa Waiver Program allows citizens of specific
countries, such as France, to travel to the United States without
having to obtain a Visa. See Visa Waiver Program, U.S. DEP’T
OF STATE (available at
https://travel.state.gov/content/travel/en/us-visas/tourism-
visit/visa-waiver-program.html [https://perma.cc/P4UE-
26Z2]). Sri Lanka is not one of those specific countries. Id.
2 See Official ESTA Application, U.S. CUSTOMS &
BORDER PROTECTION (available at https://esta.cbp.dhs.gov/
[https://perma.cc/NT7N-DJ2U]).

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The interviewing officer determined that Thankarasa
was inadmissible under both 8 U.S.C. § 1182(a)(7)(A)(i)(I), as
a noncitizen who did not possess a valid travel document, and
8 U.S.C. § 1182(a)(6)(C)(i), as a noncitizen who sought
admission or other benefits through fraud or willful
misrepresentation. Because Thankarasa had requested asylum,
the Department of Homeland Security filed a Notice of
Referral to an IJ.
II. PROCEDURAL HISTORY
On May 9, 2023, with the assistance of counsel,
Thankarasa filed applications for asylum, withholding of
removal, and protection under the regulations implementing
the Convention Against Torture with the IJ. At a hearing
before the IJ, Thankarasa testified about the persecution that he
had endured due to his political views in Sri Lanka. When
asked what he thought would happen if he returned to Sri
Lanka, Thankarasa said that he would continue to fear for his
life because the police still had his personal information and
might try to abuse him again based on his political beliefs.
On July 5, 2023, the IJ denied Thankarasa’s motion for
asylum in his discretion, finding Thankarasa’s fraudulent use
of the French passport to be an egregious factor that
outweighed Thankarasa’s reasonable fear of future political
persecution. The IJ noted that Thankarasa “was twenty-four
years old when he left Sri Lanka and possesse[d] a level of
intelligence that [did] not mitigate his participation.” App. 70.
The IJ considered Thankarasa’s conduct to be particularly
egregious because it involved an immigration fraud that
attempted to take advantage of the Visa Waiver Program, a

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program only available to a select number of countries. After
denying Thankarasa’s asylum application, the IJ granted
Thankarasa’s application for withholding of removal.
Since asylum confers benefits that withholding of
removal does not, the immigration regulations provide that,
when a petitioner is denied asylum but granted withholding of
removal, the denial of asylum “shall be reconsidered.” 8
C.F.R. § 1208.16(e).3 Upon reconsideration, the IJ in his
discretion again denied Thankarasa’s application for asylum.
The IJ cited In re T-Z-, the only published BIA case discussing
8 C.F.R. § 1208.16(e), where the BIA emphasized the
importance of probing “the impact of the denial on the
respondent’s ability to be reunited with his spouse and minor
child.” See 24 I. & N. Dec. 163, 176 (BIA 2007). The IJ found
that this critical factor of reunification weighed against
Thankarasa, however, as Thankarasa “does not have
immediate family members … who would be eligible to
3 On October 21, 2020, the Department of Justice and the
Department of Homeland Security issued a final rule that
eliminates 8 C.F.R. §§ 1208.16(e) and 208.16(e). See
Procedures for Asylum and Bars to Asylum Eligibility, 85 Fed.
Reg. 67202, 67257 (Oct. 21, 2020). Although this rule was
scheduled to take effect on November 20, 2020, it was
preliminarily enjoined. See Pangea Legal Servs., v. Dep’t of
Homeland Sec., 501 F. Supp. 3d. 792, 798 (N.D. Cal. 2020);
Order on Defendants’ Motions to Stay, Pangea Legal Services,
No. 20-CV-07721-SI (N.D. Cal. Dec. 28, 2020). The order
granting that preliminary injunction remains on appeal before
the Ninth Circuit. See Pangea Legal Services, et al. v. Dep’t
of Homeland Sec., No. 20-17490 (9th Cir. filed Dec. 28, 2020).

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immigrate to the United States as derivative asylees.” App. 72.
On July 27, 2023, Thankarasa appealed the IJ’s decision
to the BIA. On November 15, 2023, the BIA affirmed and
adopted the IJ’s decision and dismissed Thankarasa’s appeal.
Specifically, the BIA considered that Thankarasa had falsely
presented a French passport “to enter the United States
pursuant to the Visa Waiver Program under an assumed
identity,” and found that the IJ had properly determined that
Thankarasa’s “fraudulent entry into the United States was
egregious enough to outweigh a well-founded fear of future
persecution in Sri Lanka.” App. 36–37. Thankarasa then
timely filed this petition.
III. DISCUSSION4
Asylum is a form of relief that turns on evidence of
“persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1158(b)(1); 8 U.S.C.
§ 1101(a)(42)(A). Even where a petitioner meets these
statutory requirements, “statutory eligibility for asylum does
not give rise to a ‘right to remain in the United States’” because
a grant of asylum requires both determining statutory
eligibility and deciding whether the applicant merits a
favorable exercise of discretion. Sathanthrasa, 968 F.3d at 294
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987));
see Dankam v. Gonzales, 495 F.3d 113, 120 (4th Cir. 2007)
(explaining that a grant of asylum involves two steps: (1)
4 The BIA had jurisdiction pursuant to 8 U.S.C. § 1103(g)
and 8 C.F.R. 1003.1(b), and we have jurisdiction pursuant to 8
U.S.C. § 1252(a).

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determining whether an alien qualifies under the statute, and if
so, (2) exercising discretion favorably or unfavorably as to the
alien’s asylum application).
“In making the substantive determination of whether an
alien qualifies for a discretionary grant of asylum, the
immigration agency must examine the totality of the
circumstances.” Huang v. INS, 436 F.3d 89, 98 (2d Cir. 2006).
Such an examination includes a “balancing of favorable and
adverse factors.”5 Id. “The danger of persecution should
5 As we explained in Sathanthrasa, 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).

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generally outweigh all but the most egregious of adverse
factors.” Sathanthrasa, 968 F.3d at 295; Zuh, 547 F.3d at 507
(noting that the grounds upon which asylum can be
discretionarily denied to an otherwise-eligible applicant are
limited to cases of “egregious conduct by the applicant” such
as fraud).
“In weighing these factors and making a discretionary
asylum determination, an IJ need not expressly address every
factor.” Sathanthrasa, 968 F.3d at 295. Indeed, it need not
“even list every factor.” Zuh, 547 F.3d at 511. Like the Fourth
Circuit, “we explicitly reject such an inflexible test and
recognize the undesirability and difficulty, if not impossibility,
of defining any standard in discretionary matters of this
968 F.3d at 294 (quoting Zuh v. Mukasey, 547 F.3d 504, 511
(4th Cir. 2008)) (brackets in original).
Meanwhile, 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.
Id. at 294–95 (quoting Zuh, 547 F.3d at 511) (brackets in
original).

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character.’” Id. (quotation omitted); see also Ojo v. Garland,
25 F.4th 152, 164 (2d Cir. 2022); Dehonzai v. Holder, 650 F.3d
1, 3 n.3 (1st Cir. 2011). The IJ must, however, “demonstrate
that he or she reviewed the record and balanced the relevant
factors and must discuss the positive or adverse factors that
support his or her decision.” Sathanthrasa, 968 F.3d at 295
(quoting Zuh, 547 F.3d at 511) (emphasis in original). These
guidelines apply equally to the IJ’s consideration of asylum in
the first instance and the IJ’s reconsideration of asylum under
8 C.F.R. § 1208.16(e). See Sathanthrasa, 968 F.3d at 295;
Thamotar v. Att’y Gen., 1 F.4th 958, 973 (11th Cir. 2021).
Upon reconsideration, some factors are more relevant
than others. Sathanthrasa, 968 F.3d at 295 (noting “points
bear[ing] particular emphasis” during reconsideration). This is
because one important difference between asylum and
withholding of removal is that asylum permits “admission of
the applicant’s spouse or minor children,” while withholding
does not.6 8 C.F.R. § 1208.16(e). Thus, in addition to
reweighing both the positive and negative factors initially
assessed, the regulations require the IJ to consider the “reasons
for the denial and reasonable alternatives available to the
applicant such as reunification with his or her spouse or minor
children in a third country.” Id. Specifically, the IJ must
consider evidence that “the alien cannot be reunited with
family members (as derivative asylees)” if asylum is not
granted, as well as the reasons for denial of asylum in the first
6 Asylum also provides a path to citizenship and
eligibility for certain government benefits. Asylum Eligibility
and Procedural Modifications, 84 Fed. Reg. 33,829, 33,832
(July 16, 2019).

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instance. Sathanthrasa, 968 F.3d at 295 (quoting Zuh, 547 F.3d
at 511); In re T-Z-, 24 I. & N. Dec. at 176 (“Under 8 C.F.R. §
1208.16(e), when an alien is denied asylum solely in the
exercise of discretion but is subsequently granted withholding
of removal, the [IJ] must reconsider the denial of asylum to
take into account factors relevant to family unification,” and
the IJ must “consider the impact of the denial on the
respondent’s ability to be reunited with his spouse and minor
child.”).
We review the IJ’s decision “where the BIA has
substantially relied on that opinion.” S.E.R.L. v. Att’y Gen.,
894 F.3d 535, 543 (3d Cir. 2018) (quoting Camara v. Att’y
Gen., 580 F.3d 196, 201 (3d Cir. 2009)). When the BIA has
adopted the IJ’s decision and conducted its own analysis, “we
review both the IJ’s and the BIA’s decisions.” Id. (quoting
Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 341 (3d Cir.
2016)). “We review a discretionary denial of asylum for abuse
of discretion, and we will remand if the decision was arbitrary,
irrational, or contrary to law.” Sathanthrasa, 968 F.3d at 292–
93 (quotations and citations omitted).
With these principles in mind, we find that the IJ’s
discretionary denial of Thankarasa’s asylum application both
in the first instance, and upon reconsideration under §
1208.16(e), was not an abuse of discretion.
A. The IJ Properly Considered the
Egregiousness of Thankarasa’s Immigration
Fraud.
Thankarasa challenges the IJ’s determination (and the
BIA’s adoption thereof) that Thankarasa’s fraudulent conduct

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was an egregious factor, “outweigh[ing] [Thankarasa’s]
positive equity relative to his fear of future harm for purposes
of the discretionary component of asylum.” App. 70. This
determination was not an abuse of discretion, however.
Upon initial consideration of Thankarasa’s asylum
application, the IJ applied the factors set forth by the BIA in
Matter of Pula, 19 I. & N. Dec. 467, 474 (BIA 1987).7
Specifically, the IJ found that the factors did not weigh in favor
of Thankarasa who (1) passed through Romania, Belgium,
France, and Portugal before coming to the United States;
(2) did not allege that orderly refugee procedures were not
available to help him in any of those countries;8 (3) made no
7 Matter of Pula listed seven factors to consider in this
highly fact-specific inquiry including, (1) “whether the alien
passed through any other countries or arrived in the United
States directly from his country”; (2) “whether orderly refugee
procedures were in fact available to help him in any country he
passed through”; (3) “whether he made any attempts to seek
asylum before coming to the United States”; (4) “the length of
time the alien remained in a third country, and his living
conditions, safety, and potential for long-term residency
there”; (5) “whether the alien has relatives legally in the United
States or other personal ties to this country which motivated
him to seek asylum here rather than elsewhere”; (6) “general
humanitarian considerations, such as an alien’s tender age or
poor health”; and (7) “if the alien engaged in fraud to
circumvent orderly refugee procedures, the seriousness of the
fraud should be considered.” 19 I. & N. Dec. at 473–74.
8 Compare Gulla v. Gonzales, 498 F.3d 911, 917 (9th Cir.
2007) (although asylum applicant had passed through Turkey,

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attempt to seek asylum or immigration benefits from any of
those countries;9 (4) remained safely in those countries for
more than two years; (5) has no relatives in the United States;
(6) is a healthy adult male with no medical needs for which
asylum would confer additional benefits; (7) has no children or
spouse and thus no one eligible to receive derivative asylee
benefits; and (8) engaged in serious fraud by using the passport
and Visa Waiver Program ESTA of another person when
entering the United States.10
Greece, and Mexico before arriving in the United States, “[h]is
stays in Turkey and Mexico were brief,” and “[t]he situation in
Turkey was not safe for” members of the particular sect of
Christianity to which the applicant belonged). Here,
Thankarasa failed to make any argument as to why asylum or
other immigration benefits would not be available to him in the
European countries through which he passed.
9 During Thankarasa’s June 28, 2023 hearing before the
IJ, the Government asked Thankarasa if he applied for asylum
or any immigration benefits in any of the countries he passed
through before attempting to enter the United States, and
Thankarasa said that he did not.
10 Thankarasa also argues that the IJ erred in determining
that portions of Thankarasa’s testimony were not credible and
in purportedly allowing that credibility determination to inform
his conclusion that Thankarasa’s immigration fraud was
egregious. We review adverse credibility determinations to
ensure that they are not “based on speculation or conjecture,
rather than on evidence in the record” and that they are
supported by “specific, cogent reasons.” Dia v. Ashcroft, 353
F.3d 228, 249 (3d Cir. 2003). Here, the IJ decided not to

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In addition, the IJ determined that “the attempted
circumvention of the immigration laws in this case is an
egregious factor under Matter of Pula.” His discussion of the
significance of the Visa Waiver Program suggests that he
viewed Thankarasa’s assumption of a French citizen’s identity
while presenting a genuine French passport to enter the United
States was closer to “the other extreme” of immigration fraud
on Matter of Pula’s spectrum of egregious conduct. Matter of
Pula, 19 I. & N. at 474 (noting that “[t]he use of fraudulent
documents to escape the country of persecution itself is not a
significant adverse factor while, at the other extreme, entry
under the assumed identity of a United States citizen with a
United States passport, which was fraudulently obtained by the
alien from the United States Government, is very serious
fraud.”); see also Matter of A-B-, 27 I. & N. Dec. 316, 345 n.12
(A.G. 2018) (explaining that the factors outlined in Matter of
Pula are “[r]elevant discretionary factors” and “remind[ing] all
asylum adjudicators that a favorable exercise of discretion is a
“credit [Thankarasa]’s purported lack of knowledge about
documents he was provided, or had in his possession, during
the two-year period that he was living in the European Bloc.”
App. 70. The IJ then listed four “specific, cogent reasons,”
why he believed Thankarasa’s statements were not credible,
and there was sufficient evidence in the record to support these
reasons. See Dia, 353 F.3d at 249. Although Thankarasa
argues that the egregiousness determination was erroneously
focused on Thankarasa’s use and knowledge of the Visa
Waiver Program (knowledge he denies), the IJ made no
findings regarding Thankarasa’s specific knowledge of the
Visa Waiver Program. On this record, we see no errors in the
IJ’s credibility determinations.

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discrete requirement for the granting of asylum and should not
be presumed or glossed over solely because an applicant
otherwise meets the burden of proof for asylum eligibility
under the INA”).11
Finally, the IJ declined to exercise his discretion and
grant Thankarasa asylum, after weighing the egregious adverse
factor of Thankarasa’s immigration fraud against Thankarasa’s
fear of future persecution in Sri Lanka. Upon reconsideration,
the IJ reweighed both the positive and negative factors initially
assessed, and considered the weight of Thankarasa’s egregious
conduct with a particular view to the critical factor of family
reunification.
In circumstances like these, where the asylum applicant
has demonstrated a well-founded fear of persecution, we have
held that such a fear effectively precludes a discretionary
denial of asylum unless the IJ can identify a sufficiently
11 Thankarasa also identifies other instances of egregious
conduct to argue that the fraudulent avoidance “of orderly
refugee procedures” is not an egregious factor. Op. Br. 16
(quotation omitted); see id. at 17 (citing Marouf v. Lynch, 811
F.3d 174, 180 (6th Cir. 2016) (collecting cases)). The
comparison fails, though, as several examples are analogous to
Thankarasa’s conduct. See Marouf, 811 F.3d at 180
(“Examples of reasons for discretionary denials upheld on
appeal include . . . visa fraud . . . marriage fraud . . . convictions
for counterfeiting . . . .”); Wu Zheng Huang v. INS, 436 F.3d
89, 98 (2d Cir. 2006) (“Adverse factors include criminal
convictions, as well as significant violations of national
immigration laws and the manner of entry into this country.”).

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“egregious adverse factor” to outweigh the credible threat of
future harm. Sathanthrasa, 968 F.3d at 297. Here, the IJ
considered the totality of Thankarasa’s circumstances guided
by the Matter of Pula factors and determined that Thankarasa’s
attempted fraudulent entry into the U.S. was an “egregious
adverse factor.” App. 70–71. While we have not required
consideration of a specific set of factors in determining
“egregiousness” under Sathanthrasa, we conclude that it was
not an abuse of discretion for the IJ to employ the Matter of
Pula factors in his analysis to discern the “totality of the
circumstances” of Thankarasa’s flight from Sri Lanka, see
Matter of Pula, 19 I. & N. at 473, nor to conclude that
Thankarasa’s fraudulent attempted entry in to the United States
was egregious in light of those circumstances.12 We also
12 Indeed, several of our sister circuits have favorably
viewed the IJ’s consideration of the Matter of Pula factors.
See, e.g., Thamotar, 1 F.4th at 970–974 (11th Cir. 2021) (citing
8 C.F.R. § 1003.1(g)(1),(2)) (holding that immigration judges
should consider the factors outlined in Matter of Pula and
noting that “these precedential agency decisions ‘are binding
… on immigration judges’ and cabin the scope of their
discretion to grant or deny asylum to an otherwise eligible
applicant”) ; Oloson v. INS, 51 F.3d 1045 (5th Cir. 1995)
(“[T]he BIA cited Matter of Pula, considered [the applicant’s]
plight in light of the appropriate Pula factors [and] made
relevant factual findings that are supported by the evidence …
Accordingly, we cannot conclude that the BIA acted arbitrarily
or capriciously or abused its discretion in denying [the
applicant’s] request for asylum”); Kouljinski v. Keisler, 505
F.3d 534, 542–43 (holding that an IJ did not abuse his
discretion in denying the applicant’s application for asylum
where the IJ’s opinion properly considered the Matter of Pula

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perceive nothing arbitrary or capricious in the IJ’s conclusion
that Thankarasa was not entitled to a favorable exercise of
discretion. The IJ set forth a thoroughly reasoned opinion in
which he considered Thankarasa’s immigration fraud in light
of the totality of the circumstances, with a specific focus upon
reconsideration of family reunification. We will therefore
deny the petition as to this challenge.
B. The IJ Did Not Abuse His Discretion in
Failing to Explicitly Address Thankarasa’s
Certificates of Character and Country
Conditions Materials.
Thankarasa also argues that the IJ abused his discretion
in both initial consideration and reconsideration of
Thankarasa’s asylum application, by failing to address the
certificates of good character and country condition materials
submitted with his asylum application.13 We perceive no abuse
of discretion in the IJ’s analysis.
As noted above, “an IJ need not expressly address every
factor,” and must only address “the relevant factors,” noting
how they support his or her decision. Sathanthrasa, 968 F.3d
at 295 (first emphasis added) (quotation omitted). While the IJ
factors and did not run afoul of the BIA’s guidance to consider
“the totality of the circumstances”).
13 Thankarasa makes this argument as to the BIA as well.
Op. Br. 12–13. As explained below, the IJ was not required to
specifically address the certificates of good character and
country condition materials submitted with Thankarasa’s
asylum application. For those same reasons, the BIA was also
not required to explicitly address these materials.

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did not explicitly address the country condition materials or
certificates of good character in his initial asylum ruling, the IJ
demonstrated that he “reviewed the record,” balanced what he
deemed to be “the relevant factors,” and indicated how they
supported his decision. Id. (quoting Zuh, 547 F.3d at 511).
The IJ addressed each of the seven factors identified in Matter
of Pula and explained how those factors supported his decision.
The IJ assessed the positive factors identified in Sathanthrasa
and found that, for the most part, they did not weigh in favor
of granting asylum because, while (1) “[Thankarasa] was
persecuted in the past on account of his actual or imputed
political opinion,” (2) “[Thankarasa]’s case d[id] not present
humanitarian concerns as they relate to his age or health” or
family ties, and (3) Thankarasa “d[id] not have employment
history in the United States or ties to the United States
community, property ownership, or any prior residence in the
United States.” App. 69, 71. Meanwhile, in assessing the
Sathanthrasa factors adverse to a discretionary asylum
decision, the IJ “afford[ed] a significant degree of weight to the
nature of the underlying Immigration fraud in this case,” and
found that “the weight of the evidence indicates that the
applicant knowingly participated and intended to defraud a
U.S. immigration officer in order to enter the United States.”
App. 69–70. This review did not constitute an abuse of
discretion as “there is no need to evaluate every factor
enunciated by case law,” see Ojo, 25 F.4th at 164. The IJ
considered the entire record,14 explicitly addressed how he
weighed relevant considerations and why, and his analysis was
14 This includes the country condition materials, which the
IJ explicitly addressed in his consideration of Thakarasa’s
application for withholding of removal.

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not marred by any arbitrary or capricious reasoning. See
Sathanthrasa, 968 F.3d at 295.
The IJ’s review of these factors upon reconsideration
was an equally permissible exercise of discretion. As noted
above, the IJ cited the seminal BIA case on 8 C.F.R.
§ 1208.16(e) reconsideration, In re T-Z-, which like
Sathanthrasa recognized the importance of family unification,
and stated that he would “take into account factors relevant to
issues of family unification.” App. 71. The IJ accurately noted
that Thankarasa has no immediate family members who would
qualify as derivative asylees and, accordingly, concluded that
this critical factor weighed against granting asylum. The IJ’s
reconsideration of his discretionary denial of asylum satisfied
the requirements of 8 C.F.R. § 1206(e).15 Recognizing the
enormous caseloads faced by IJs, we do not perceive any abuse
of discretion—whether upon initial review or
reconsideration—when IJs do not expressly address every
factor identified in caselaw when it is clear they have
considered all the evidence presented to them, have conducted
the analysis required by statute and precedent, and have
provided sufficient explanation to review their decisions.
For the foregoing reasons, it was not an abuse of
15 The BIA, in reviewing the IJ’s analysis, stated, “[t]he
applicant was 26 years old at the time of his hearing, single
without children, and lacked ties to the United States,”
reaffirming the IJ’s conclusion that reunification
considerations cut against Thankarasa. App. 31– 32. The BIA
concluded that the IJ “properly considered the relevant factors
and did not err in finding the applicant did not meet his burden
to establish his equities outweighed his visa fraud under the
circumstances in this case.” App. 37.

-- 19 of 39 --

20
discretion for the IJ to not expressly consider country
conditions or certificates of good character in his discretionary
denial of asylum, or reconsideration thereof.
IV. CONCLUSION
Because we perceive nothing arbitrary or capricious in
the IJ’s thoroughly reasoned conclusion that Thankarasa was
not entitled to a favorable exercise of discretion upon initial
review, and because the IJ reconsidered the discretionary
denial of asylum in this case in the manner prescribed by
§ 1208.16(e) and our caselaw, the IJ did not abuse his
discretion in denying Thankarasa’s asylum application.
Accordingly, we will deny Thankarasa’s petition.

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1
ROTH, Circuit Judge, dissenting.
Jathursan Thankarasa joined a political demonstration
in support of Tamils in Sri Lanka. For this, the Sri Lankan
government detained him, beat him, and burnt his stomach
with cigarettes. Then, government supporters threatened to kill
him, assaulted his family, and tried to abduct him from home
under cover of night. So, with the help of a smuggler, he fled.
Following the smuggler’s instructions, he travelled first to
Europe and then onward to the United States, where an
Immigration Judge (IJ) found he would be persecuted if
deported. Nevertheless, the IJ determined that Thankarasa’s
fraudulent use of a French passport was so egregious that he
did not deserve U.S. protection. For that reason, the IJ denied
his petition for asylum. The Board of Immigration Appeals
(BIA) and the Majority agree. In so doing, the Majority
misapplies our precedent, overlooks significant procedural
errors by the BIA, and places us in conflict with the broad
consensus of our sister circuits.
I. The BIA’s Decision Was Procedurally Deficient.
In denying Thankarasa’s petition for asylum, the BIA
made three independent procedural errors—each of which
justifies granting his petition and remanding for further
proceedings. First, the BIA rested its decision, at least in part,
on an abrogated standard. Second, the BIA failed to
meaningfully address (and appears to have treated as
irrelevant) Thankarasa’s country-conditions evidence. Third,
the BIA factored Thankarasa’s withholding of removal into its
denial of his asylum, despite our instructions that such
factoring is impermissible.

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2
A. The BIA employed the wrong standard.
We have had limited opportunity to address the issue of
when discretionary denials of asylum constitute an abuse of
discretion.1 Nevertheless, our precedent imposes certain clear
constraints on the BIA.2 Foremost among these is the BIA’s
obligation to exercise its discretion consistently with its own
precedent.3
As the parties recognize, the most significant precedent
to this petition is Matter of Pula,4 where the BIA departed from
its previously held position in opinions like Matter of Salim5
that entry fraud was “an extremely adverse factor” and an
1 See Sathanthrasa v. Att’y General, 968 F.3d 285, 296 (3d Cir.
2020) (“Discretionary denials of asylum are exceedingly rare,
and are even more rare when the IJ or BIA has found the
applicant entitled to withholding of removal.”).
2 At oral argument, counsel for the government suggested
that—even where a petitioner has shown the BIA abused its
discretion—the petitioner must still make an independent
showing that the government acted contrary to law in some
fashion. This suggestion has been recognized as “legally
untenable,” Ojo v. Garland, 25 F.4th 152, 164 n.8 (2d Cir.
2022), and our caselaw expressly precludes it, see
Sathanthrasa, 968 F.3d 285 at 292–93.
3 See Sathanthrasa, 968 F.3d at 294 (“The BIA has
established—and federal courts have enforced—extensive
limitations on an IJ’s exercise of discretion.”) (cleaned up).
4 19 I. & N. Dec. 467 (BIA 1987).
5 18 I. & N. Dec. 311 (BIA 1982).

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3
almost per-se bar to asylum.6 Retreating from this view, the
BIA in Pula recognized that Salim had “placed too much
emphasis on the circumvention of orderly refugee procedures.”
The BIA adopted instead a totality-of-the-circumstances test
under which manner of entry was only one consideration
among many and danger of persecution would “outweigh all
but the most egregious adverse factors.”7
Here, the BIA cited Matter of Pula and purported to
apply it. The BIA held, however, that Thankarasa’s fraudulent
entry was so egregious that it singlehandedly precluded an
6 Id. at 315-16; see also Matter of Gharadaghi, 19 I. & N. Dec.
311, 314-15 (BIA 1985); Matter of Shirdel, 19 I. & N. Dec. 33,
38 (BIA 1984); Matter of McMullin, 19 I. & N. Dec. 90, 99
(BIA 1984); cf. Matter of Rojas, 15 I. & N. Dec. 492, 493 (BIA
1975).
7 Pula, 19 I. & N. Dec. at 473; see also Matter of D-X- & Y-Z-
, 25 I. & N. Dec. 664, 666 (BIA 2012) (“It is well settled that
an alien is not faulted for using fraudulent documents to escape
persecution and seek asylum in the United States.”); In re H-,
21 I. & N. Dec. 337, 348 (BIA 1996) (reaffirming that “the
danger of persecution should generally outweigh all but the
most egregious of adverse factors.”) (quotation omitted); In re
Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996) (same); Matter
of Chen, 20 I. & N. Dec. 16, 21 (BIA 1989) (concluding “the
likelihood that the respondent intended to abandon his
residence in China and remain in the United States
permanently at the time he was admitted to this country as a
nonimmigrant student” was not “controlling for the reasons set
forth in Matter of Pula”).

-- 23 of 39 --

4
award of asylum.8 The BIA’s sole authority that Thankarasa’s
fraud in fact qualified as an egregious adverse factor was its
own pre-Pula precedent in Matter of Shirdel, which it cited as
substantive authority that “entering the United States with the
aid of professional smugglers after escaping the country of
feared persecution is a strong negative factor supporting a
discretionary denial of asylum.”9 Shirdel expressly applied the
Salim standard under which entry fraud almost definitionally
precluded asylum.10 The BIA did not purport to hold that the
petitioner’s conduct was more egregious than that in Salim.
Moreover, in the 37 years since Salim was abrogated the BIA
has never, to my knowledge, relied upon Shirdel’s substantive
analysis as support for a discretionary denial.11 Reliance on
abrogated authority is, of course, reversible error, particularly
8 While the BIA noted that Thankarasa was healthy and lacked
a family-based need for asylum, our precedent makes clear that
the presence of either of these factors would have been an
additional positive equity, rather than their absence functioning
as a negative one. See Sathanthrasa, 968 F.3d at 294-95.
9 C.A.R. 32 (citing Shirdel, 19 I. & N. Dec. at 38).
10 See Shirdel, 19 I. & N. Dec. at 38 (noting the BIA
“considered it a strong negative factor to enter the United
States with the aid of a professional smuggler” and citing pre-
Pula authority); see also id. (concluding that the IJ properly
denied asylum in light of Salim).
11 The BIA has at times cited Shirdel for the general
proposition that asylum applicants bear the burden of proving
asylum is warranted, see, e.g., Matter of H-, 21 I. & N. Dec.
337, 347 (BIA 1996), or for its unrelated analysis of 8 U.S.C.
§ 1182, see, e.g., Matter of Y-G-, 20 I. & N. Dec. 794, 797 (BIA
1994).

-- 24 of 39 --

5
where that authority goes towards the central dispute on
appeal.12
B. The BIA failed to consider material favorable
evidence.
Let us assume though that the BIA did not rely upon
Shirdel and undertook a properly guided review of
Thankarasa’s equities. As we recognized in Sathanthrasa,
12 A brief word is in order regarding the Majority’s contention
that the IJ made an adverse credibility finding regarding
Thankarasa. As an initial matter, the government denies that
the IJ made any such finding. Moreover, the BIA expressly
held that Thankarasa’s entry fraud was enough, standing on its
own, to justify denial, and to the extent we find this holding
erroneous we are required to remand. See Sathanthrasa, 968
F.3d at 295. Nevertheless, the Majority’s assertion that the IJ
“listed four specific, cogent reasons” for disbelieving
Thankarasa, Maj. Op. at 12 n.10, misstates both the record and
Thankarasa’s argument. At no point has Thankarasa contested
that he was aware of the contents of the French passport he
used to enter the United States. Indeed, he affirmatively
admitted awareness in his asylum interview. What Thankarasa
has argued is that the IJ erred in concluding he was aware of
the contents of his Sri Lankan passport (which he never used
to enter the United States). None of the listed reasons referred
to by the Majority have any bearing on Thankarasa’s
awareness of that passport. It is moreover unclear what
bearing Thankarasa’s knowledge of his Sri Lankan passport
has on his asylum eligibility.

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6
such review would have required it to examine the “totality of
the circumstances to determine whether” Thankarasa was
“entitled to a discretionary grant of asylum.”13
While neither an IJ nor the BIA is required to “expressly
address every factor” relevant to a discretionary grant, they are
required to “demonstrate that [they] reviewed the record and
balanced the relevant factors.”14 And they must do so in a
fashion that adequately shows that all evidence relevant to
those factors has been “meaningfully considered.”15 Although
the BIA is not required to “discuss every piece of evidence
mentioned by an asylum applicant, it may not ignore evidence
favorable” to the applicant, particularly where the
“administrative brief expressly calls the BIA’s attention to
it.”16 Moreover, while a boilerplate statement that “all
evidence and testimony has been considered, even if not
specifically addressed” may suffice in some circumstances, it
does not where the agency has chosen to discount evidence
favorable to the petitioner.17 Instead, “if evidence is to be
disregarded, we need to know why.”18 We have specifically
13 968 F.3d at 294.
14 Id. at 295 (emphasis in original) (noting that this “explicit
requirement of balancing is consonant with the principle that
we may affirm an agency's decision only on the grounds
invoked by the agency” (emphasis added and quotation
omitted)).
15 Fei Yan Zhu v. Att’y General, 74 F.3d 268, 272 (3d Cir.
2014).
16 Huang v. Att’y General, 620 F.3d 372, 387 (3d Cir. 2010).
17 Quinteros v. Att’y General, 945 F.3d 772, 786 (3d Cir. 2019)
(quotation omitted).
18 Id. at 786.

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7
emphasized that the “Board has a duty to explicitly consider
any country conditions evidence submitted by an applicant that
materially bears on his claim.”19
Neither the IJ nor the BIA lived up to this mandate.
While Thankarasa submitted extensive country-conditions
evidence documenting the torture, systematic sexual violence,
and death that frequently face Tamil activists in Sri Lanka,
particularly those who have been deported after requesting
asylum,20 the IJ did not explicitly or implicitly refer to this
evidence. He provided no indication beyond a boilerplate
disclaimer that he had considered it at all.21 Instead, he rested
19 Arckange Saint Ford v. Att’y General, 51 F.4th 90, 98 (3d
Cir. 2022) (quotation omitted and emphasis added).
20 See, e.g., C.A.R. 234-46 (State Department Human Rights
Report documenting the arbitrary detention, torture, and killing
by Sri Lankan government of ethnic minorities and dissenters);
id. at 370–73 (Article documenting “culture of torture”
directed at Sri Lankan detainees); id. at 379–82 (Article
documenting abduction of foreign embassy employee by Sri
Lankan government to obtain information about foreign
asylum applicants); 383–91 (Articles documenting control of
the Sri Lankan government by individuals with history of anti-
Tamil human rights abuses); id. at 397–400 (Article titled
“How Torture is Institutionalized in Sri Lanka”); id. at 401–02
(Article titled “Tamil asylum seekers deported from Australia
raped and tortured”); id. at 403–07 (Article titled “British
groom detained in Sri Lanka has been arrested and tortured,
say family”).
21 Thankarasa separately challenges the IJ’s failure to consider
affidavits he submitted attesting to his good character. While
I agree that the IJ’s failure to do so constituted error, the BIA

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8
his entire persecution analysis on Thankarasa’s past
experiences, and the regulatory presumption they created. 22
And although Thankarasa highlighted this omission in his brief
to the BIA, its decision likewise contained no reference to
Thankarasa’s country-conditions evidence.
When questioned at oral argument, counsel for the
Government argued that—having found that Thankarasa met
the statutory definition of refugee—additional evidence
towards that point was legally irrelevant, and that the IJ and
BIA therefore had no need to consider it. This argument is both
logically implausible and legally untenable. While a petitioner
facing a 10% chance of being beaten and one facing a 99%
chance of being slowly tortured to death may be equally
eligible for asylum from a statutory perspective,23 they are not
equally situated when it comes to the exercise of discretion—
did adequately weigh this evidence. Although Thankarasa
suggests the BIA should have remanded to the IJ to consider
these affidavits in the first instance, he provides no argument
for why such remand would have been warranted. I therefore
concur with my colleagues that this omission is not a sufficient
basis for remand.
22 The Majority notes that the IJ did refer to Thankarasa’s
evidence that the rally at which he was arrested in fact took
place. Maj. Op. at 16 n.14 (citing C.A.R. 71). That is a far cry
from considering Thankarasa’s evidence regarding the
persecution he would likely face if returned.
23 See Doe v. Att’y General, 956 F.3d 135, 151 (3d Cir. 2020)
(citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987))
(noting that a petitioner can establish eligibility for asylum
based on a 10% risk of future persecution).

-- 28 of 39 --

9
and a reasonable actor might well choose to grant asylum to
the latter where they would not to the former.24
Here, Thankarasa’s evidence of past persecution created
a presumption that it was more likely than not that he would be
persecuted if deported to Sri Lanka.25 The distance between
51% and 100% is vast, and that presumption did not render his
country-conditions evidence any less significant towards the
exercise of discretion. Thankarasa’s country-conditions
evidence was directly probative of his risk of being detained,
tortured, raped, and/or killed by government-sponsored actors
if returned to Sri Lanka.26 It therefore went directly to both the
24 See Sathanthrasa, 968 F.3d at 295 (noting that a petitioner
who has established a 51% chance of persecution is more in
need of asylum than one who has simply established a well-
founded fear); Chen, 20 I. & N. Dec. at 18 (noting that the
“likelihood of present or future persecution” is “relevant as to
the exercise of discretion” in asylum cases); Kasinga, 21 I. &
N. Dec. at 367 (treating severity of feared persecution as
relevant to the exercise of discretion).
25 See 8 C.F.R. 208.13(b)(1).
26 See supra n.20; see also Jathursan v. Att’y General, 17 F.4th
1365, 1371–75 (11th Cir. 2021) (granting petition where BIA
failed to meaningfully consider similar evidence suggesting
that Tamil failed asylum seekers “faced unthinkable sexual
abuse and torture condoned by the highest levels of Sri Lankan
governance” upon deportation (quotation omitted));
Thayaparan v. Sessions, 688 F. App’x 359, 366–71 (6th Cir.
2017) (granting petition where BIA failed to meaningfully
consider similar evidence showing Tamil deportees,
particularly those who had requested asylum, were likely to be
detained tortured, raped and/or killed with impunity upon

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10
severity and probability of persecution that he would face if
deported, and as such to the discretionary equities regarding
his application. The IJ and BIA’s failure to consider it was
error.
C. The BIA improperly considered Thankarasa’s
withholding of removal.
Merely considering all proper factors is of course still
not sufficient—the BIA must also avoid considering improper
ones. Our decision in Sathanthrasa made clear that, while the
government may look to a wide range of considerations before
granting (or denying) asylum, it may not treat as relevant the
fact that a petitioner “has been granted another form of relief,
such as withholding.”27 Instead, the BIA is required to assume
that the petitioner continues to face a well-founded fear of
persecution if the petition is denied, and to adjudicate the
asylum claim as if no other relief had been granted.28
return); Gaksakuman v. Att’y General, 767 F.3d 1164, 1170–
71 (11th Cir. 2013) (same). Notably, each of these decisions
was also part of the record submitted to the IJ.
27 968 F.3d at 295 (first citing Zuh v. Mukasey, 547 F.3d 504,
512 n.5 (4th Cir. 2008); then citing Huang v. I.N.S., 436 F.3d
89, 98 n.11 (2d Cir. 2006)).
28 See id. (noting that “[o]therwise, those very asylum-seekers
who met the higher standard of proof for persecution required
for withholding of removal (and thus those persons most in
need of this nation’s asylum relief) would be the ones who
received less protection” (quotation omitted)).

-- 30 of 39 --

11
Neither the IJ nor the BIA explicitly addressed whether
Thankarasa’s grant of withholding factored into their
decisions, or whether asylum would have been granted had the
possibility of deportation been more palpably proximate.
However, when pressed at oral argument about how the BIA
could justify sending a 24-year-old torture victim back to likely
death because his human-trafficker instructed him to fake his
nationality,29 the government expressly argued that the BIA
had taken his withholding into account, and that “in
recognition of the fact that his life is in danger if he returns to
Sri Lanka, he is not facing deportation.” They further argued
that “the government has protected [Thankarasa] and will
continue to do so” through the grant of withholding, and
suggested that because he will likely be permitted to stay in the
United States for the foreseeable future, his past persecution
was not legally significant. In other words, the government
argued that we should credit it for making the exact calculation
our precedent squarely prohibits. While the government’s
concern for Thankarasa’s well-being is laudable, its admission
that Thankarasa’s denial was partially influenced by his grant
of withholding means that denial cannot stand.
I would therefore remand for the BIA to address in the
first instance whether Thankarasa’s petition for asylum would
have been granted had the correct standard been employed, the
correct evidence been weighed, and the only alternative been
deportation to Sri Lanka.
29 Thankarasa testified to the BIA that the reason his smuggler
pressed him to pass as quickly as possible through immigration
was to ensure they could retain custody of him until his full
debt had been paid off.

-- 31 of 39 --

12
II. The BIA’s Decision Was Substantively
Aberrant.
My conclusion that the BIA failed to weigh all relevant
factors (and chose to weigh irrelevant ones) means that, unlike
the Majority, I do not need to decide if the conclusion it
reached was substantively permissible. Yet it is impossible to
ignore that, by all accounts, the BIA’s decision here was an
outlier. While our circuit has not previously explored the
substantive contours of a “most egregious adverse factor,” our
sister circuits have—and have repeatedly concluded that, post-
Pula, “manner of entry cannot, as a matter of law, suffice as a
basis for a discretionary denial of asylum in the absence of
other adverse factors.”30 As such, they have held that using
30 Huang, 436 F.3d at 99; see also Shantu v. Lynch, 654 F.
App’x 608, 617 (4th Cir. 2017) (holding that manner of entry
cannot be the sole basis for denying asylum); Mamouzian v.
Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004) (concluding that
“the way in which [petitioner] entered this country is worth
little if any weight in the balancing of positive and negative
factors”); Nreka v. U.S. Att’y Gen., 408 F.3d 1361, 1368 (11th
Cir. 2005) (noting that “documents to facilitate travel or gain
entry into the United States cannot in and of themselves be
used as the basis to deny asylum”); cf. Hussam v. Sessions, 897
F.3d 707, 719 (6th Cir. 2018) (holding that the “failure to
disclose that [a] passport was not obtained in the usual manner”
could not “reasonably be termed the ‘most egregious’ of
factors”); E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742,
772–73 (9th Cir. 2018) (collecting authority holding that
discretionary denial of asylum cannot, as a matter of law, be
based solely on manner of entry).

-- 32 of 39 --

13
smugglers,31 lying to immigration officials,32 and utilizing
fraudulent entry documents33 cannot justify a discretionary
denial when weighed against the threat of persecution. This
31 See, e.g., Huang, 436 F.3d at 99; Mamouzian, 390 F.3d at
1138; Yuesu Weng v. U.S. Dep’t of Just., 205 F. App’x 896,
899 (2d Cir. 2006) (concluding that “there is no authority to
suggest that clandestine entry alone can be considered a serious
adverse factor supporting discretionary denial of an asylum
claim”).
32 See, e.g., Gunawan v. Mukasey, 276 F. App’x 563, 564 (9th
Cir. 2008) (reversing where the IJ “gave undue negative weight
to petitioner’s use of false statements as a means to gain entry
into the United States”); Jiang v. Att’y General, 173 F. App’x
929, 931 (2d Cir. 2006) (reversing discretionary denial where
petitioner “falsely represented herself as a citizen upon entry
into the United States” since “evading normal refugee
procedures is not sufficient to warrant discretionary denial”);
see also Shantu, 654 F. App’x at 99 (cautioning the BIA on
remand that lying to consular officials to obtain a visa likely
did not qualify as a “most egregious” adverse factor).
33 See, e.g., Hai Yu Lin v. Holder, 334 F. App’x 859, 859 (9th
Cir. 2009) (reversing where “IJ abused his discretion in
denying asylum on discretionary grounds solely on the basis of
[the petitioner’s] use of a false passport to enter this country”);
Yang v. Gonzales, 197 F. App’x 34, 37 (2d Cir. 2006) (holding
that “the fact that [petitioner] used a fraudulent travel
document to enter the United States, by itself,” could not
“support the IJ’s denial of asylum” (emphasis in original));
Khodaverdyan v. Ashcroft, 111 F. App’x489, 491 (9th Cir.
2004) (reversing where the IJ “erred by giving dispositive
weight to Khodaverdyan’s attempt to enter the United States
with a false passport”).

-- 33 of 39 --

14
includes fraudulent entry under the exact visa waiver provision
that Thankarasa violated.34
The Majority does not address this body of precedent,
and its focus on Thankarasa’s pre-arrival time abroad does not
negate it.35 While these opinions do not often discuss the
34 See, e.g., Nreka, 408 F.3d at 1368 (finding use of fraudulent
passport to obtain entry under the visa waiver program could
not justify denying asylum). This consensus that entry fraud is
not a “most egregious” aggravating factor is particularly stark
when contrasted with other justifications for denial, such as
repeated or violent criminal convictions, see, e.g., Kouljinski v.
Keisler, 505 F.3d 534, 542–43 (6th Cir. 2007); Jian v. I.N.S.,
28 F.3d 256, 258 (2d Cir. 1994), and post-admission
immigration fraud, see, e.g., Hosseini v. Gonzales, 471 F.3d
953, 957 (9th Cir. 2006); Htun v. Lynch, 818 F.3d 1111, 1121
(10th Cir. 2010), which courts have generally affirmed. See
generally Matter of O-D-, 21 I. & N. Dec. 1079, 1080 (BIA
1998) (distinguishing between using fraudulent documents to
enter the United States and using them post-admission).
35 The Majority does cite to language in some cases listing
fraud as a potentially significant adverse factor. Even setting
aside that neither of the Majority’s cited authorities ultimately
affirmed the BIA’s decision, this authority cannot do the work
the Majority requires of it (and in some instances directly
supports Thankarasa).
The Majority relies on the Second Circuit Court of
Appeals’ statement in Huang that “significant violations of
national immigration laws and the manner of entry into this
country” can qualify as an adverse factor, Maj. Op. at 13 n.11
(citing Huang, 436 F.3d at 98), but overlooks that Huang then

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15
petitioner’s travel itinerary, it is clear in many instances the
petitioner passed through other (safer) countries while in route
to the United States, and that this did not alter their calculus
that entry fraud is not a “most egregious” adverse factor.36
explicitly concluded that this could not, “as a matter of law,”
be the sole basis for denying asylum, 436 F.3d at 99–100.
The Majority then cites Marouf v. Lynch, which listed
“visa fraud” as an instance where a discretionary denial had
been previously upheld on appeal. Maj. Op. at 13 n.11 (citing
811 F.3d 174, 180 (6th Cir. 2016)). Even setting aside that
Marouf’s discretionary analysis may not have commanded a
majority, see 811 F.3d at 191 (McKeague, J., concurring in
judgement); id. at 191 (White, J., concurring in judgement),
this passage in Marouf was dictum—since the petitioner there
had not engaged in any fraud whatsoever—and was cited only
to highlight the non-egregiousness of the at-issue conduct. See
Marouf, 811 F.3d at 18–-90.
Even Aiqin Xue v. Holder, the sole (non-precedential)
visa–fraud case cited by Marouf, does not support the BIA.
538 F. App’x35 (2d Cir. 2013). In Aiqin Xue, the petitioner
proceeded to provide materially false testimony during their
asylum interview. Id. at 37; see also supra n.34. More
importantly, the court in Aiqin Xue viewed the risk of
persecution to the petitioner as negligible because they had
been granted withholding of removal, 538 F. App’x at 37, an
approach expressly barred by our precedent. See supra n.28.
It is a very thin reed on which to rest departure from East Bay,
Gunawan, Hai Yu Lin, Huang, Jiang, Khodaverdyan,
Mamouzian, Nreka, Shantu, Yang, and Yuesu Wang.
36 See, e.g., Huang, 436 F.3d at 91 (Chinese refugee arrived in
United States via Mexico); Hussam, 897 F.3d at 713 (Syrian
refugee arrived in United States via Turkey).

-- 35 of 39 --

16
Indeed, there is serious reason to doubt whether such transit is
ever a legally permissible consideration.
It is true that in Pula the BIA treated third-country
transit as relevant.37 Subsequently, however, Congress passed
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, 38 and the BIA enacted a series of implementing
regulations, which tightly govern the availability of asylum for
applicants who have passed through potentially safe
countries.39 Those regulations initially permitted the BIA to
consider such transit in its discretionary (as well as mandatory)
analysis, but strictly cabined how that discretion could be
exercised.40 The BIA later eliminated the provision allowing
for discretionary denials in its entirety, and its regulations
currently only call for consideration of such transit where a
petitioner has been “firmly resettled” in a safe third country.41
37 19 I. & N. Dec. at 473–74.
38 See 8 U.S.C. § 1158(a)(2)(A), (b)(2)(A)(vi).
39 See generally E. Bay Sanctuary Covenant v. Barr, 385
F.Supp.3d 922, 939–43 (N.D. Cal. 2019) (summarizing the
relevant legislative and regulatory history).
40 See 8 C.F.R. § 208.13(d) (1999) (repealed 2000) (providing
that “[a]n asylum application may be denied in the discretion
of the Attorney General if the alien can be removed to a third
country which has offered resettlement and in which the alien
would not face harm or persecution”).
41 See generally 8 C.F.R. § 208.15.

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17
The Second42 and Ninth43 Circuit Courts of Appeals
have both concluded that this statutory and regulatory
framework (particularly when viewed in its historical context)
was intended to partially supersede Pula’s discretionary
analysis and fully determine when the BIA may deny asylum
based on travel through a safe third country. The Fourth
Circuit Court of Appeals has indicated it would hold the same
way.44 These courts have concluded that, as a matter of law,
42 See Tandia v. Gonzalez, 437 F.3d 245, 248–49 (2d Cir. 2006)
(holding that, post-2000, transit through a safe third country is
“relevant only to a finding that [the petitioner had] ‘firmly
resettled’” and may not be used as a discretionary factor); see
also Lin Yan v. Att’y General, 236 F. App’x 671, 676 (2d Cir.
2007).
43 See E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962,
982–83 (9th Cir. 2020) (noting that Matter of Pula has been
superseded, and can no longer justify denial based on “failure
to apply for asylum in a country through which the alien had
passed”); Mamouzian, 390 F.3d at 1138 (“Stays in third
countries are now governed by 8 C.F.R. § 208.15, which
specifies how and when an opportunity to reside in a third
country justifies a denial of asylum.”); Andriasian v. I.N.S, 180
F.3d 1033, 1043–44 (9th Cir. 1999) (“Matter of Pula was the
BIA’s attempt to fill a gap left in INS regulations, a gap that
has now been filled by the subsequent action of the INS.”
(cleaned up)); see also Mikaleylen v. Mukasey, 261 F. App’x
39, 43 (9th Cir. 2007) (holding that “unless an applicant has
been ‘firmly resettled’ in a third country” an “IJ may not deny
asylum on the grounds that an alien has spent time in another
country before coming to the United States”).
44 In Shantu v. Lynch, the Fourth Circuit Court of Appeals
suggested that the BIA consider adopting this position, but

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the BIA may not, in exercising its discretion, consider the fact
that a petitioner traveled through or stayed in a third country
(even where they could have applied for asylum or otherwise
sought safety).45 Indeed, the government appears to have
acknowledged in other ongoing cases that the portions of Pula
on which the Majority relies are no longer good law.46
given alternative grounds for remand did not need to decide the
issue. 654 F. App’x 608, 617 (4th Cir. 2016).
45 This is true even where that transit terminated in entry-fraud
on the part of the petitioner. See Mamouzian, 390 F.3d at 1138.
46 See E. Bay, 994 F.3d at 983 (noting that, on appeal, the
government abandoned its argument that Pula justified
discretionary denial based upon transit through a safe third
country). While it is perhaps arguable that the Attorney
General’s decision in Matter of A-B- revivified this portion of
Pula’s holding, 27 I. & N. Dec. 316, 345 n.12 (Atty. Gen.
2018), that decision was subsequently vacated in its entirety
and is no longer good law, 28 I. & N. Dec. 307, 309 (Atty. Gen.
2021). Likewise, while BIA regulations enacted in 2020 would
have provided for renewed consideration of third-party transit
as a discretionary factor, see Procedures for Asylum and
Withholding of Removal; Credible Fear and Reasonable Fear
Review, 85 Fed. Reg. 80274 (Dec. 11, 2020) (amending, inter
alia, 8 C.F.R. § 208.13(d)), those regulations were later
enjoined, see Pangea Legal Servs. v. U.S. Dep’t of Homeland
Sec., 512 F. Supp. 3d 966, 977 (N.D. Cal. 2021), and that
injunction remains in effect, see Ullah v. Barr, 72 F.4th 597,
603 n.3 (4th Cir. 2023). Finally, while DHS enacted
emergency regulations in May of 2023, which provide for
limited consideration of such travel, those regulations are
expressly limited to petitioners entering the United States via
the southern border. See Circumvention of Lawful Pathways,

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One need not go as far as the Second and Ninth Circuit
Courts of Appeals’ categorical approach to conclude that entry
fraud is not a “most egregious adverse factor.” Moreover, the
BIA’s pervasive procedural errors make it unnecessary for me
to determine whether those circuits have correctly analyzed the
regulatory field.47 The Majority, however, has no such license.
As the government acknowledges that Thankarasa has not been
firmly resettled, the Majority’s dismissal of Thankarasa’s
petition necessarily places our Court in the minority without
analysis.
III.
The effect of today’s opinion on Jathursan Thankarasa
remain uncertain. He has been granted withholding, and it may
be that the practical effects of denying him asylum prove
limited. But the effects of today’s decision on our immigration
system are as certain as they are troubling. For this reason, I
respectfully dissent.
88 Fed. Reg. 31314, 31315 n.2 (May 16, 2023) (amending 8
C.F.R.§ 208.33); Securing the Border, 89 Fed. Reg. 81156 (Oct
7, 2024) (extending rule applicability).
47 It appears that the Seventh Circuit Court of Appeals has
continued to treat Pula’s third-country-transit analysis as good
law, albeit without analyzing or substantively addressing the
relevant regulatory field. See Alsagladi v. Gonzales, 450 F.3d
700, 701–02 (7th Cir. 2006).

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