Shaker Ullah v. Merrick Garland, No. 22-1026 (4th Cir. 2023)

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On July 6, 2023, the Fourth Circuit granted Petitioner's petition for review, reversed the agency’s denial of asylum and withholding of removal, and remanded with instructions to grant Petitioner's application. The Attorney General filed a petition for panel hearing, claiming that the Immigration and Nationality Act and implementing regulations require that the Attorney General make a discretionary judgment as to whether asylum should be granted, even where a noncitizen has met the statutory requirements.

The Fourth Circuit agreed. The power to grant asylum is vested solely in the hands of the Attorney General and, even if a noncitizen is otherwise eligible, the Attorney General is empowered by statute to deny relief. While discretionary denials of asylum are exceedingly rare Petitioner's claim that there are no grounds to deny asylum as a matter of discretion must first be considered by the Attorney General.

This opinion or order relates to an opinion or order originally issued on July 6, 2023.

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FILED: October 12, 2023 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-1026 SHAKER ULLAH, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. ORDER The Attorney General requests that we amend our opinion issued on July 6, 2023, in which we granted Shaker Ullah’s petition for review, reversed the agency’s denial of asylum and withholding of removal, and remanded with instructions to grant Ullah’s application. The Attorney General asserts that the Immigration and Nationality Act and implementing regulations require that the Attorney General make a discretionary judgment as to whether asylum should be granted, even where a noncitizen has met the statutory requirements. We construe the Attorney General’s motion as a petition for panel rehearing, see Fed. R. App. P. 40(a), and grant relief. We agree that the power to grant asylum is vested solely in the hands of the Attorney General, 8 U.S.C. § 1158(b)(1), and that even if a noncitizen is otherwise eligible, the Attorney General is empowered by statute to deny relief, id.; INS v. Cardoza–Fonseca, 480 U.S. 421, 428 n.5 (1987); Mejia v. Sessions, 866 F.3d 573, 578 (4th Cir. 2017). We have considered Ullah’s arguments in opposition to the Attorney General’s motion and conclude that they lack merit. While discretionary denials of asylum are exceedingly rare, Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir. 2008), Ullah’s claim that there are no grounds to deny asylum as a matter of discretion must first be considered by the Attorney General or his designee. Because the decision to grant asylum is for the Attorney General to make in the first instance, we GRANT the petition for panel rehearing and modify our opinion to the extent that we remand the case to the Attorney General for further proceedings consistent with that opinion.∗ The Attorney General does not request that we amend that part of our opinion directing that Ullah be granted withholding of removal. And we would deny such a request if he had done so. See Mejia, 866 F.3d at 578-79 (noting that if a noncitizen establishes his claim for withholding of removal, he cannot be removed to his native country). 2 ∗ Entered at the direction of the panel: Chief Judge Diaz, Judge Gregory, and Judge Thacker. For the Court /s/ Nwamaka Anowi, Clerk 3

Primary Holding

The Fourth Circuit granted the Attorney General's petition for rehearing en banc, finding that the Immigration and Nationality Act and implementing regulations require that the Attorney General make a discretionary judgment as to whether asylum should be granted, even where a noncitizen has met the statutory requirements.

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