11th Circuit Asylum Update: Pattern and Practice Claims, and the Mixed Motive Standard

Recently, the 11th Circuit published a precedent decision dismissing a petition for review of the denial of an asylum application.  There is a lengthy discussion about the difference between individualized persecution claims, and claims involving a pattern and practice of persecution. 

The main thrust of the case was a discussion about the Ninth Circuit’s “‘disfavored group’ test, under which an applicant who cannot show a pattern or practice of persecution is nevertheless eligible for asylum if he can establish that (1) he is a member of the group that is ‘disfavored,’ and (2) he has ‘an individualized risk of being singled out for persecution.’”Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1292 (11th Cir. 2020) (citing Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir. 2004)).  As per that “Ninth Circuit precedent, these elements operate in tandem, meaning that the more serious and widespread the threat to the group in general, the less individualized the threat of persecution needs to be.” Id. at 1292-93 (citation and punctuation omitted).  “Under that test, asylum applicants are eligible for relief if they establish membership in a group that is ‘disfavored,’ and they have ‘an individualized risk of being singled out for persecution.’” Id. at 1293 (citation omitted).  In essence, the Ninth Circuit uses a sliding scale analysis when a case falls in the middle between an individualized persecution claim, and a pattern and practice claim.

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The Court held that, “[b]ecause the ‘disfavored group’ test departs from the plain language of the statute, [it will join its] sister circuits in rejecting this ‘judicially created alternative to the statutory and regulatory scheme.’”  Id. (citing Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007); Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6 (7th Cir. 2005); Lie v. Ashcroft, 396 F.3d 530, 538 n.4 (3d Cir. 2005)).  Thus, there is a 4-to-1 split on whether the disfavored group test is a permissible method for analyzing an asylum claim.

But this case is also important because it foreshadows a bigger issue about the mixed motive analysis, and suggests that the resolution of that issue might be unfavorable to asylum applicants.  Writing for the majority, Judge Branch (joined by Judge Julie Carnes) addressed the issue in a footnote as follows:

• Judge Wilson concurs with our decision in this case, but writes specially to note that he agrees with Judge Jordan’s interpretation of the INA’s “at least one central reason” standard, as set out in 8 U.S.C. § 1158(b)(1)(B)(i).  See Diaz-Rivas v. U.S. Att’y Gen., 769 F. App’x 748, 758-65 (11th Cir. 2019) (Jordan, J., concurring in part and dissenting in part).  Notably, on that point, Judge Jordan was writing in dissent in the unpublished, non-precedential decision in Diaz-Rivas.  In contrast, Judge Grant, who authored the majority opinion in Diaz-Rivas, interpreted the term “central reason” to mean “a reason of primary importance to the persecutors, one that is essential to their decision to act.  . . .  In other words, a motive qualifies as central if the persecutor would not have harmed the applicant if the protected trait did not exist.” 769 F. App’x at 754 (quotations omitted).  We find Judge Grant’s interpretation to be well-reasoned.  Nonetheless, we agree with Judge Wilson that given the particular facts of the case now before us, we do not have to resolve the question at issue in Diaz-Rivas.

 Id. at 1294 n.16.

In contrast, Judge Wilson wrote: 

• I agree with Judge Jordan’s interpretation of the “at least one central reason” standard.  See Diaz-Rivas v. U.S. Att’y Gen., 769 F. App’x 748, 758–65 (11th Cir. 2019) (Jordan, J., concurring in part and dissenting in part).  The statute plainly contemplates the possibility that a persecutor may have “multiple central reasons” for persecuting an applicant.  Id. at 763.  If the facts of a case bear out that possibility, the statute requires only that a protected reason be “one” of the multiple central reasons shown.  § 1158(b)(1)(B)(i).  “[T]he applicant is not required to show that the protected reason was the primary or dominant reason they were persecuted.”  Diaz-Rivas, 769 F. App’x at 760.  “Requiring primacy or dominance would recast the inquiry as one into ‘the central’ as opposed to ‘at least one central’ reason for persecution and would vitiate the possibility of a mixed motive claim.”  Id. (alterations adopted) (internal quotation marks omitted).

Id. at 1294-95 (Wilson, J., concurring) (emphasis added).  

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As Judge Wilson aptly noted (in agreement with Judge Jordan), this intra-circuit split could spell an eventual end to mixed motive claims in this circuit.  As practitioners, we need to keep an eye out for this issue, and should assume that an astute DHS attorney will likely make similar arguments in future cases.