Tuesday, March 31, 2009

Ndayshimiye: Mixed Motive Can Be Valid Even If Subordinate To Other Motives

Ndayshimiye v. Holder
February 24, 2009
No. 07-3201

Judges Scirica, Fuentes, and Hardiman. Decision by Judge Fuentes.

IJ Mirlande Tadal. For Mr. Ndayshimiye, Kelly A. Carrero (argued), Matthew V. Barter, and William J. Hine of Jones Day (NY, NY). For amicus curiae, Richard D. Steel and Deborah E. Anker of the Harvard Immigration and Refugee Clinical Program (Cambridge, MA). For the government, Julie M. Iversen (argued), Allen W. Hausman, Margaret J. Perry, and Jeffrey S. Bucholt of OIL.

The BIA issued a precedential decision about analyzing mixed motives for persecution that qualifies for asylum protection. The Third Circuit held that the BIA made a legal mistake but that Mr. Ndayshimiye nevertheless loses.

The issue was whether he and his family were afraid of persecution that was motivated by their imputed nationality or social group. Under the REAL ID Act, there is a mixed-motives standard in INA 208(b)(1)(B)(i) that requires showing that the protected ground was or will be at least one central reason for persecution. The IJ denied asylum and the BIA affirmed that in Matter of J-B-N-, 24 I&N Dec. 208 (BIA 2007). The BIA reasoned that requiring one central reason to be the protected ground does not need to be the single dominant reason. Strangely, though, the BIA held that to be one central reason, it had to be more than incidental, tangential, superficial, or subordinate to another motive.

The Third Circuit concluded that the requirement that the motive be "subordinate" to other motives was not a valid construction of the statute. Unfortunately, the Third Circuit then held that the rest of the requirements were rational. It is possible, though, that lawyers should still challenge the BIA's controversial interpretation of the statute.

Ultimately, the Third Circuit held that the BIA surely used the wrong standard but then held that they would have lost anyone under the appropriate standard and therefore they should be deported.


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