Establishing “Egregious Adverse Factor” Threshold in Asylum Discretion: Thankarasa Precedent

Introduction

Jathursan Thankarasa v. Attorney General of the United States (3d Cir. Apr. 10, 2025) clarified when and how immigration fraud may be deemed so “egregious” as to overcome a well-founded fear of persecution for purposes of discretionary asylum relief. The case arose after a Sri Lankan Tamil dissident (Thankarasa) fled systemic violence, traveled through Europe, and entered the United States using a smuggler-provided French passport. An Immigration Judge (IJ) granted withholding of removal but denied asylum, reasoning that Thankarasa’s fraud—particularly his misuse of the Visa Waiver Program—“outweighed” his fear of persecution. The Board of Immigration Appeals (BIA) affirmed, and the Third Circuit denied review by a 2–1 vote. This commentary examines the background, key holdings, the majority’s reasoning, the dissent, and the potential impact on U.S. asylum doctrine.

Summary of the Judgment

1. Facts. Thankarasa, a Tamil in Sri Lanka, was beaten and harassed by police and non-state actors on account of his political views. To escape further abuse, he hired a smuggler, traveled for two years through Romania, Belgium, France, and Portugal on a Sri Lankan passport, then used a French passport to enter the United States under the Visa Waiver Program.

2. Proceedings. On arrival, he admitted asylum claims but was found inadmissible for lack of a valid travel document and fraud. Before the IJ, he sought asylum, withholding of removal, and CAT relief. The IJ granted withholding but denied asylum—first in discretion and then again upon “reconsideration” under 8 C.F.R. § 1208.16(e), because asylum would confer derivative benefits for family reunification that withholding does not.

3. BIA and Third Circuit. The BIA adopted the IJ’s finding that the smuggler-facilitated passport fraud was an “egregious” adverse factor outweighing statutory eligibility. The Third Circuit affirmed, holding no abuse of discretion where the IJ and BIA:

Analyzed the totality of circumstances under Matter of Pula (19 I.&N. Dec. 467 (BIA 1987));
Viewed the Visa Waiver Program misuse as “highly egregious” fraud; and
Reconsidered family-reunification equities under § 1208.16(e) and In re T-Z- (24 I.&N. Dec. 163 (BIA 2007)).

The petition was denied by a 2–1 vote; Judge Roth dissented, contending that the BIA employed abrogated standards, ignored country-condition evidence, and improperly factored in withholding of removal.

Analysis

Precedents Cited

Matter of Pula (19 I.&N. Dec. 467 (BIA 1987)): Introduced a seven-factor, totality-of-the-circumstances test for weighing fraud in discretionary asylum determinations. It emphasized that only “the most egregious adverse factors” could outweigh a well-founded fear of persecution.
Matter of Salim (18 I.&N. Dec. 311 (BIA 1982)): Earlier BIA line of cases treating fraudulent entry as an almost per-se bar to asylum; expressly superseded by Pula.
In re T-Z- (24 I.&N. Dec. 163 (BIA 2007)): Clarified § 1208.16(e) reconsideration must account for family-reunification equities (derivative asylee benefits).
Sathanthrasa v. Att’y Gen. (968 F.3d 285 (3d Cir. 2020)): Held that an IJ must “review the record,” “balance relevant factors,” and that asylum discretion should not be denied unless an “egregious conduct” finding outweighs “the danger of persecution.”

Legal Reasoning of the Majority

• Totality of Circumstances: The court upheld the IJ’s reliance on Matter of Pula’s multi-factor balancing, finding no rigid requirement to address every factor but requiring a clear record of consideration.
• Egregious Adverse Factor: The misuse of a genuine French passport—facilitated by professional smugglers and designed to exploit the Visa Waiver Program—was judged by the majority to be at the “more egregious” end of Pula’s spectrum. The majority concluded that this singular factor justified denying asylum, despite statutory eligibility and credible testimony of fear.
• § 1208.16(e) Reconsideration: Upon granting withholding, the IJ was required to “reconsider” asylum, placing special emphasis on family-reunification prospects. Because Thankarasa had no spouse or minor children eligible for derivative status, that factor “weighed against” asylum.

Potential Impact on Future Cases

It reaffirms that immigration fraud—when deemed sufficiently “egregious”—can alone justify discretionary asylum denials, even if the applicant meets all statutory criteria.
It underscores the continued vitality of Matter of Pula in the Third Circuit’s discretionary analysis, contrasting with other circuits that limit Pula’s reach or hold that entry fraud alone cannot defeat asylum.
It places heightened scrutiny on family-reunification equities under § 1208.16(e), particularly focusing on the absence of derivative beneficiary rights.
Practitioners should meticulously document positive equities (family ties, good character, extended stays in third countries) and address adverse-factor arguments head on, as the IJ’s discretion remains broad.

Complex Concepts Simplified

Egregious Adverse Factor: An element so serious—like violent criminal convictions or certain types of immigration fraud—that it can tip the scales against asylum, even when an applicant demonstrates persecution risk.
Totality-of-Circumstances Test (Matter of Pula): A framework of seven factors—ranging from the applicant’s travel route to humanitarian considerations—used to balance positive and negative equities in asylum discretion.
Withholding of Removal vs. Asylum: Withholding requires a “more likely than not” risk of persecution but bars derivative benefits and social services. Asylum has a lower risk threshold ("well-founded fear") and provides derivative status for spouses and minor children, plus a path to permanent residence.
Reconsideration Under 8 C.F.R. § 1208.16(e): When withholding is granted but asylum is denied, the IJ must “reconsider” asylum, giving special attention to family-reunification and reasons for the initial denial.

Conclusion

Thankarasa v. Attorney General establishes that, in the Third Circuit, smuggler-facilitated passport fraud designed to exploit U.S. immigration programs may constitute an “egregious adverse factor” sufficient to deny asylum in the exercise of discretion. Although applicants who meet statutory eligibility continue to have a robust presumption in their favor, this decision emphasizes the court’s willingness to weigh certain acts of misrepresentation heavily—even in isolation. The dissent’s concerns about procedural deficiencies (e.g., weighing abrogated standards, overlooking country-condition evidence, factoring in withholding) highlight continuing tensions in asylum jurisprudence. Going forward, asylum seekers and their counsel must present detailed positive equities and address adverse-factor arguments directly, while administrative judges must rigorously document their consideration of every material facet of the record.