REAL ID Act's effect on withholding-of-removal cases in which aliens assert claims of persecution

A three-judge panel of the United States Court of Appeals for the Fifth Circuit has refused to review a decision in which the Board of Immigration Appeals (BIA) denied an Ismaili Muslim’s petition for withholding of removal on the grounds of religious persecution. The case (Fifth Circuit docket number 09-60237) involves the REAL ID Act of 2005 and two federal statutes, 8 U.S.C. § 1231 and 8 U.S.C. § 1158.

The panel’s written opinion, which was filed on November 19, 2009, reveals that Abbas Shaikh is a citizen of India and an Ismaili Muslim. The opinion goes on to state that Mr. Shaikh entered the United States in November 2000 and overstayed his non-immigrant visitor authorization. In order to avoid removal from the U.S. back to India, Mr. Shaikh claimed that he feared persecution from Shiv Sena, a Hindu nationalist organization, based on his status as an Ismaili Muslim.

An immigration judge denied Mr. Shaikh’s petition for withholding of removal, and the BIA agreed with the decision. Mr. Shaikh then asked the Fifth Circuit to review the decisions of the BIA and the immigration judge.

The panel found that substantial evidence supported the BIA’s determination that Mr. Shaikh was not persecuted on account of a “protected ground.” In reaching its decision, the panel considered the impact that the REAL ID Act had on petitions for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A), which currently states:

Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.

With regard to Mr. Shaikh’s burden of proof, the panel accepted the BIA’s interpretation of 8 U.S.C. § 1158 after the REAL ID Act:

[U]nder the REAL ID Act, an alien must “establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(A) (emphasis added); see also Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208, 212 (BIA 2007). The BIA’s interpretation is that although a statutorily protected ground need not be the only reason for harm, it cannot be “incidental, tangential, superficial, or subordinate to another reason for harm.” Id. at 214. (emphasis, quotations, and citations in original)

The panel concluded that Mr. Shaikh’s testimony supported the decisions of the immigration judge and the BIA. The REAL ID Act has generated much controversy. Now Mr. Shaikh can add his name to the long list of critics.