Instead, we simply refer to that relief under either the INA or the CAT as "withholding of removal." In In re A-H-, 23 I. N. Dec. 774, 788 (2005), the Attorney General construed the exception as referring to "any nontrivial level of danger" or "any nontrivial degree of risk." He further interpreted the provision to establish a "reasonable person standard," which he deemed to be "satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security."
In addition, the Attorney General formulated a new test to determine whether, in spite of not qualifying for asylum, Mr. Haddam qualified for withholding of removal under the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1253(h) (1994); Matter of A-H-, 23 I. & N. Dec. 774 (A.G. 2005). We conclude that the Attorney General's new test is not a permissible construction of the INA under step two of Chevron.
In those proceedings, the immigration judge ("IJ") found that Mirza "pose[d] a danger to the national security of the United States." Relying on 8 U.S.C. § 1158(b)(2)(A)(iv) and the Attorney General's precedential interpretation of that statute in Matter of A-H- , 23 I. & N. Dec. 774 (A.G. 2005), the IJ terminated Mirza's asylum status. That made Mirza subject to removal from the United States under 8 U.S.C. § 1158(c)(3).
In its thirteen lines of argument and three footnotes, the government's brief does not cite any agency decisions to which it asks us to defer. A subsequent precedential opinion by the Attorney General, In re A-H-, 23 I. & N. Dec. 774, 2005 WL 1541121 (A.G.2005), does discuss the persecutor bar here at issue. A-H-'s factual posture differs from the one before us, however, in that the Attorney General addressed the relief applications of "a self-proclaimed leader-in-exile of the Islamic Salvation Front of Algeria."
Failure to pay income taxes is another factor the BIA has used to deny discretionary asylum. See Matter of A-H, 23 I. & N. Dec. 774, 783 (BIA 2005) (denying asylum, in part, because the applicant failed to pay taxes). Farahi makes much of the IJ's reliance on the FBI memo, and her finding that Farahi "declined to be a [confidential informant] despite his privileged position to observe suspicious behavior, and considering the opportunities he had because of his many connections to convicted terrorists and his position as Imam in a mosque frequented by some of them."
In addressing the phrase "reasonable grounds for regarding the alien as a danger to the security of the United States" as used in former § 243(h)(2)(D) of the Immigration and Nationality Act ("INA"), the Attorney General has found that the bar applies "if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security." Matter of A-H-, 23 I. N. Dec. 774, 789 (A.G. 2005) (emphasis added). The Attorney General concluded that this standard was "substantially less stringent than preponderance of evidence."
The BIA's decision relies heavily on the Attorney General's interpretation of the national security bar in Matter of A-H-, which equated the standard with "reasonable cause; sufficient cause; reasonable grounds" under the probable cause standard. Matter of A-H-, 23 I. N. Dec. 774, 789 (2005). In Matter of A-H-, the Attorney General looked back to the First Circuit's decision in Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990), in which the court held that the statutory reference to "reasonable" grounds "implies the use of a reasonable person standard."
The BIA's decision relies heavily on the Attorney General's interpretation of the national security bar in Matter of A-H-, which equated the standard with "reasonable cause; sufficient cause; reasonable grounds" under the probable cause standard. Matter of A-H- 23 I. N. Dec. 774, 789 (2005). In Matter of A-H-, the Attorney General looked back to the First Circuit's decision in Adams v. Baker, 909 F.2d 643, 649 (1st Cir. 1990), in which the court held that the statutory reference to "reasonable" grounds "implies the use of a reasonable person standard."
Among other factors, immigration judges should consider whether the noncitizen passed through other countries before arriving in the United States, whether orderly refugee procedures were available to him in any country he passed through, whether he engaged in fraud, and whether general humanitarian considerations favor granting asylum, such as age or poor health. Matter of Pula , 19 I. & N. Dec. at 473–74 ; see also Matter of A-H- , 23 I. & N. Dec. 774, 782–83 (A.G. 2005) (evaluating an applicant's individualized equities and adverse factors before denying asylum in the exercise of discretion); Matter of H- , 21 I. & N. Dec. 337, 347–48 (B.I.A. 1996) ("Our caselaw also recognizes that general humanitarian reasons ... such as [an applicant's] age, health, or family ties, should also be considered in the exercise of discretion."). These precedential agency decisions "are binding on ... immigration judges" and cabin the scope of their discretion to grant or deny asylum to an otherwise eligible applicant.
Though the INA does not define the phrase "reason to believe" in the context of § 1182(a)(2)(C), the BIA here interpreted it as a " ‘probable cause’ requirement." Admin. R. at 4; cf. Matter of A-H-, 23 I. & N. Dec. 774, 788-89 (A.G. 2005) (equating "reasonable grounds for regarding" with the "probable cause" standard). We have recently applied the same interpretation to similar language in the Act.