                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1175


DANIEL GEMECHU SHANTU,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   March 24, 2016                    Decided:   July 13, 2016


Before KING, DIAZ, and HARRIS, Circuit Judges.


Petition for review granted; vacated and remanded by unpublished
opinion.   Judge Harris wrote the opinion, in which Judge King
and Judge Diaz joined.


ARGUED: Alan M. Parra, LAW OFFICE OF ALAN M. PARRA, Silver
Spring, Maryland, for Petitioner.       Rachel Louise Browning,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Blair O’Connor, Assistant Director,
Civil Division, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PAMELA HARRIS, Circuit Judge:

     When       an     alien’s    application          for    asylum       is     denied     on

discretionary grounds but the same alien is granted withholding

of removal, 8 C.F.R. § 1208.16(e) provides that “the denial of

asylum shall be reconsidered,” in light of certain enumerated

factors.        Petitioner       Daniel       Gemechu       Shantu    finds       himself    in

precisely       this    position,       and    he    contends       that    the    Board     of

Immigration Appeals (“BIA” or “Board”) has not reconsidered his

asylum application as required by the regulation.                               Shantu filed

a motion for reconsideration with the BIA on that basis, which

the agency denied.

     We agree that Shantu’s asylum claim has not yet received

reconsideration         under     8     C.F.R.      § 1208.16(e),          and,    for     that

reason,    we    find    that     the    BIA       abused    its    discretion        when   it

denied    Shantu’s       motion.        Accordingly,          we    vacate      the   Board’s

decision and remand this matter to the agency.



                                               I.

                                               A.

     Petitioner         Shantu    is     a    native    and    citizen       of    Ethiopia.

Shantu was persecuted in his home country on account of his

Oromo    ethnicity       and     his    religion,       and    he    was     subjected       to

multiple detentions, beatings, and arrests.



                                               2
        Traveling on a student visa, Shantu left Ethiopia in August

of 2004 to attend a graduate program in theology in Norway.                    He

returned to Ethiopia about a year later to do research related

to his degree and to marry his fiancée, who was still living in

the country.      At Shantu’s wedding on October 15, 2005, a family

friend who was also an opposition leader made a speech that

touched on political issues.          Shantu and his wife were arrested

eleven days later, and although Shantu’s wife was soon released,

Shantu    was   detained,   tortured,     and   beaten   until      December    5,

2005.

     Shantu and his wife immediately left Ethiopia for Norway,

departing on December 8, 2005.             Shantu’s wife traveled on a

“family reunification visa,” which Shantu had obtained for her

before leaving Norway.        But Shantu left Norway again on July 20,

2006,    before   completing    his   degree,    to   come     to   the   United

States.     He was admitted to the United States on a nonimmigrant

business visitor visa, which he overstayed.              Shantu submitted a

timely    application   for    asylum,     withholding    of     removal,      and

Convention Against Torture (“CAT”) protection.

     Shantu’s wife visited him in the United States in 2007, and

he has not seen her since.        On April 7, 2008, she gave birth to

their son, whom Shantu has never met.              Shantu’s wife became a

student in Norway and remained there on a student visa, which,



                                      3
according to Shantu, has now expired.                              Shantu has never applied

for asylum in Norway.

                                                   B.

       To    be        eligible       for    asylum          in    the        United         States,     an

applicant        must     establish         that        he    is    a        “refugee,”        8    U.S.C.

§ 1158(b)(1)(A) — that is, that he is unwilling or unable to

return to his country of citizenship “because of persecution or

a well-founded fear of persecution on account of” a protected

characteristic           like     religion         or    “membership               in    a    particular

social group,” id. § 1101(a)(42).                            Even then, however, a refugee

is only “‘eligible for asylum,’ which the Attorney General (or

his or her designee) ‘in his [or her] discretion’ may grant.”

Zuh v. Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (alteration

and emphasis in original) (quoting INS v. Cardoza-Fonseca, 480

U.S. 421, 443 (1987)); see 8 U.S.C. § 1158(b)(1)(A).

       Discretionary denials of asylum are “‘exceedingly rare’ and

are    generally         based    on    egregious             conduct         by   the       applicant.”

Zuh, 547 F.3d at 507 (quoting Huang v. INS, 436 F.3d 89, 92 (2d

Cir.    2006)).           “The    exercise         of        discretionary              judgment       with

respect to a refugee’s asylum claim,” we have explained, “should

include the examination of ‘a totality of the circumstances’ in

view of the BIA’s policy that ‘[t]he danger of persecution will

outweigh         all    but     the    most    egregious                of    adverse         factors.’”

Dankam      v.    Gonzales,       495       F.3d    113,          119    n.2       (4th      Cir.   2007)

                                                   4
(alteration and emphasis in original) (quoting Huang, 436 F.3d

at 98).   In Zuh, we articulated a non-exhaustive list of factors

to be balanced as part of the consideration of the “totality of

the   circumstances.”     547   F.3d       at   510–11.     “On   the   positive

side,” we explained, an IJ should weigh:

      1) Family, business, community, and employment ties to
      the United States, and length of residence and
      property ownership in this country;

      2) Evidence of hardship to the alien and his family if
      deported to any country, or if denied asylum such that
      the alien cannot be reunited with family members (as
      derivative asylees) in this country;

      3) Evidence of good character, value, or service to
      the    community,    including   proof    of    genuine
      rehabilitation if a criminal record is present;

      4) General   humanitarian        reasons,      such    as   age    or
      health;

      5) Evidence of severe past persecution and/or well-
      founded   fear    of   future    persecution,   including
      consideration of other relief granted or denied the
      applicant   (e.g.,   withholding   of   removal   or  CAT
      protection).

Id. at 511.     And “[o]n the negative side,” an IJ should
consider the:

      1)   Nature  and    underlying            circumstances     of    the
      exclusion ground;

      2) Presence of significant violations of immigration
      laws;

      3) Presence of a criminal record and the nature,
      recency, and seriousness of that record, including
      evidence of recidivism;




                                       5
      4)   Lack  of   candor  with   immigration  officials,
      including an actual adverse credibility finding by the
      IJ;

      5) Other evidence that indicates bad character or
      undesirability for permanent residence in the United
      States.

Id.   We emphasized that “an IJ need not analyze or even list”

every one of the enumerated factors, “[b]ut at the very least,

an IJ must demonstrate that he or she reviewed the record and

balanced    the    relevant     factors”      and    must   also    “discuss   the

positive or adverse factors that support his or her decision.”

Id. (emphasis in original).

      As rare as a discretionary denial of asylum may be, it is

“even more rare” when the same applicant is granted withholding

of removal.       Id. at 507.    That is because withholding of removal

requires a more demanding showing than asylum:                     The applicant

must establish by the preponderance of the evidence that his

“life or freedom would be threatened” on account of a protected

characteristic if he were deported to his home country.                     See 8

U.S.C. § 1231(b)(3)(A); Zuh, 547 F.3d at 507 & n.2.                        If the

applicant    makes    this    showing,       the    government     must   withhold

deportation.       8 U.S.C. § 1231(b)(3)(A).           But unlike an award of

asylum, withholding of removal does not permit the applicant to

become a lawful permanent resident or to bring his family to the

United States, and it leaves him “subject to deportation to a

willing third country.”         Zuh, 547 F.3d at 508 (citing Huang, 436

                                         6
F.3d       at   95).     For     that   reason,   we   have   made    clear   that    a

discretionary          denial      of   asylum    coupled     with     a   grant     of

withholding of removal leaves an applicant in an “unusual legal

status” and generally is justified only by especially “egregious

negative activity” by the applicant.                   Id. at 507–08 (citation

and internal quotation marks omitted).

       Consistent        with    this   understanding,      the   regulation    at    8

C.F.R. § 1208.16(e) 1 — upon which we relied in Zuh, 547 F.3d at

510 — “provide[s] special and unusual rights to an alien who has

been       denied      asylum”     on   discretionary     grounds      but    granted

withholding of removal, Huang, 436 F.3d at 92.                       Specifically, 8

C.F.R. § 1208.16(e) states:

       In the event that an applicant is denied asylum solely
       in the exercise of discretion, and the applicant is
       subsequently granted withholding of deportation or
       removal   under  this   section,  thereby  effectively
       precluding admission of the applicant's spouse or
       minor children following to join him or her, the
       denial of asylum shall be reconsidered. Factors to be
       considered will include the reasons for the denial and
       reasonable alternatives available to the applicant
       such as reunification with his or her spouse or minor
       children in a third country.




       1
       Shantu’s motion for reconsideration relied on both 8
C.F.R.   §§ 208.16(e)   and   1208.16(e),   which  are   identical
regulations.    “As applied to the BIA,” however, “8 C.F.R.
§ 208.16(e) . . .    is   actually    designated  at   8    C.F.R.
§ 1208.16(e).”    Huang, 436 F.3d at 90 n.1.      Accordingly, we
refer only to 8 C.F.R. § 1208.16(e) in this opinion.



                                            7
The application of this regulation to Shantu’s case is at issue

here.

                                              C.

     Shantu’s        application        for   asylum,       withholding        of    removal,

and CAT protection was referred to immigration court, and Shantu

appeared       before      an    Immigration        Judge     (“IJ”)      in    Baltimore,

Maryland.          Shantu admitted that he was a removable alien and

presented      three      witnesses,     as    well    as    his    own   testimony,       in

support of his claims.

     On       August      2,    2007,   the    IJ     issued    a    decision        denying

Shantu’s application for asylum but granting him withholding of

removal. 2      The IJ found the testimony of Shantu and his three

witnesses credible and concluded that Shantu had suffered past

persecution         and     possessed     a        well-founded      fear       of    future

persecution.           He also found that Shantu had not been “firmly

resettled” in Norway.                J.A. 127.         But despite the fact that

Shantu was eligible for asylum, the IJ denied Shantu’s asylum

application in an exercise of discretion.

        The   IJ    based      the   discretionary      denial      of    asylum      on   two

factors.       First, the IJ found that Shantu had engaged in “forum

shopping” by “com[ing] to the United States seeking asylum in

        2
       The IJ found that Shantu’s application for CAT protection
was mooted by the grant of withholding of removal and Shantu
does not contest this conclusion.



                                              8
this nation rather than seeking protection” in Norway, where “he

clearly was permitted to be.”                      J.A. 127.              The IJ concluded that

Shantu “should not be rewarded as a matter of discretion for

forum shopping when he clearly was safe in Norway.”                                       J.A. 128.

Second,     the        IJ     found       that    Shantu        had       lied    to     immigration

officials when he obtained a visitor visa because he came to the

United States with the intention of seeking asylum here.

      The       IJ    did     find,    however,         that       Shantu     was      eligible    for

withholding of removal because it was “more likely than not,

given the past history, that [his] life or freedom [would] be

placed    in         danger    if     he    were        to    be     required       to    return    to

Ethiopia.”           J.A. 128.        The IJ did not then reconsider the denial

of   asylum      or     contemplate         the     effect          that    the   “unusual      legal

status”     of       being     granted          withholding          of    removal       but   denied

asylum would have on Shantu’s ability to reunite with his wife.

See Zuh, 547 F.3d at 508 (quoting Huang, 436 F.3d at 95); see

also 8 C.F.R. § 1208.16(e).

      Shantu          appealed        the        IJ’s        decision       to    the     Board     of

Immigration Appeals and, on April 24, 2009, a single member of

the Board        dismissed          the    matter.            The    Board’s      decision      first

noted its obligation under In re Pula, 19 I. & N. Dec. 467, 473

(B.I.A. 1987), to examine the “totality of the circumstances” in

making      a    discretionary             asylum        decision.            Next,      the    Board

acknowledged          Zuh,     which       we     decided       after       the   IJ     issued    his

                                                   9
opinion but before the BIA ruled on Shantu’s appeal.                             The Board

listed some of the factors enumerated in that opinion, including

“evidence of hardship to the alien and his family if deported to

any country, or if denied asylum such that the alien cannot be

reunited     with    family     members”;       “evidence     of     good      character”;

“general         humanitarian       reasons”;      “evidence        of      severe       past

persecution or a well-founded fear of future persecution”; “lack

of candor with immigration officials”; “presence of a criminal

record      or    significant       violations     of    immigration         laws”;      and

“other evidence of bad character or undesirability for permanent

residence in the United States.”                J.A. 95.

      But    the     Board    did    not   apply    most     of    these       factors     to

Shantu’s         personal     circumstances         or       weigh       the      positive

considerations against the negative ones.                          Rather, the Board

simply adopted and affirmed the IJ’s decision.                       The Board agreed

with the IJ that Shantu had found “safe haven” in Norway and saw

no   evidence      that     Shantu   could   not    return        there.         The    Board

further noted that Shantu’s family ties were in Norway because

his wife was still there.               And the Board agreed with the IJ’s

findings that Shantu had engaged in forum shopping by choosing

to apply for asylum in the United States, and that Shantu had

lied to immigration officials to obtain a visa.                             Finally, and

“very importantly,” J.A. 96, the Board relied on the fact that

Shantu   had       been   granted     withholding       of   removal        as   a     factor

                                           10
supporting     the     discretionary          denial        of   asylum,      in    that     it

protected Shantu from further persecution in Ethiopia.

      Shantu     did      not   seek       direct    review      of   the    Board’s       2009

decision, but on May 18, 2010, he filed a motion asking the BIA

to reopen his case under its sua sponte authority.                            See 8 C.F.R.

§ 1003.2(a).         Shantu         explained       that   his    wife      was    unable    to

sponsor him for a family reunification visa in Norway because he

had already sponsored her for one, and that his inability to

reunite   with      his    wife      and    son     was    causing    hardship       for    his

family.   The same single member of the Board denied the motion

on March 16, 2011, finding that Shantu had not shown that his

circumstances were “materially different” than before.                             J.A. 66.

      Shantu subsequently obtained new counsel and, on September

15,   2014,    he   filed       a   motion    to     reconsider       the    discretionary

denial of asylum under 8 C.F.R. § 1208.16(e), the regulation

directly at issue here.               He argued that neither the IJ nor the

BIA had meaningfully examined whether he could be reunited with

his family in light of the grant of withholding of removal, as

required by the regulation, and that the IJ had just assumed,

without factual basis, that he could return to Norway.                               He also

stated that his Ethiopian passport had expired, and that his

wife’s and son’s temporary Norwegian visas had also expired.

And he produced evidence that he had attempted to obtain a visa

to return to Norway, but his application was denied because he

                                              11
did not have a valid United States travel document — a result of

his withholding of removal status.                  Finally, Shantu argued that

the   previous      decisions     in    his     case        were    legally       erroneous

because the IJ and BIA had improperly relied on the finding that

Norway was a “safe haven,” and had failed to properly weigh the

factors outlined in Zuh.

      The same single member of the Board denied Shantu’s motion

for reconsideration on January 27, 2015.                     The Board noted that 8

C.F.R.    § 1208.16(e)           “require[s]          reconsideration              of     any

discretionary denial of asylum when the alien is subsequently

granted   withholding       of   removal,       and    directs        consideration        of

factors   including     the      reasons      for     the    denial       of     asylum   and

available alternatives for family reunification.”                             J.A. 3.     The

Board also noted that the expiration of visas and passports was

“an ordinary occurrence with the lapse of time,” and that Shantu

had   failed     to   address     his    “lack        of     candor      to     immigration

officials under which discretionary asylum was properly denied.”

Id.   Finally, the Board stated that “the factors prescribed by

regulation     and    Zuh   v.    Mukasey”       had        already       been    “properly

considered”    by     the   IJ   and    the     Board       in     the    three    previous

decisions.     Id. (citation omitted).              Accordingly, the motion for

reconsideration was denied.

      Shantu   filed    a   timely      petition       for       review    of     the   BIA’s

denial of his motion for reconsideration.

                                           12
                                             II.

      We first consider the requirements of the regulation at the

heart of this case, 8 C.F.R. § 1208.16(e).                         The provision states

that a discretionary denial of asylum “shall be reconsidered” in

the     event   that         the     applicant         is    “subsequently        granted

withholding     of     deportation          or     removal,”       because     this   rare

situation “effectively preclud[es] admission of the applicant’s

spouse or minor children following to join him or her.”                                  8

C.F.R. § 1208.16(e).               Among the “[f]actors to be considered”

upon reconsideration are “the reasons for the denial” and the

“reasonable     alternatives             available     to    the    applicant    such   as

reunification with his or her spouse or minor children in a

third country.”        Id.

      Neither    the    BIA        nor    the    federal     courts     have    had   much

occasion to interpret 8 C.F.R. § 1208.16(e), perhaps because the

situation to which the regulation applies hardly ever arises.

See Zuh, 547 F.3d at 507 (noting that a discretionary denial of

asylum is “exceedingly rare” and that a grant of withholding of

removal to someone denied discretionary asylum is “even more

rare” than that).             As the Board itself acknowledged in this

case,    however,       it     is        clear     that      the     regulation       makes

“reconsideration”        mandatory.              And   the    meaning     of    the   word

“reconsideration” is plain enough.                     See Dickenson-Russell Coal

Co. v. Sec’y of Labor, 747 F.3d 251, 258 (4th Cir. 2014) (“The

                                             13
plain meaning of language in a regulation governs unless that

meaning would lead to absurd results.” (quoting Forest Watch v.

U.S. Forest Serv., 410 F.3d 115, 117 (2d Cir. 2005))).                                              The

regulation         clearly        mandates    that           a    discretionary            denial    of

asylum be reexamined if withholding of removal is granted, in

light of the enumerated considerations.

       But beyond this basic requirement, the meaning of 8 C.F.R.

§ 1208.16(e) is less clear.                   For instance, it is not apparent

from    the     provision’s         text     when        in       the        asylum    adjudication

process the required reconsideration must occur, or who — the

Board or an IJ — must do the reconsidering.                                       And as the Second

Circuit has observed, the regulation also “does not specify the

mechanism       that    initiates          review       —        i.e.,       by    motion,    through

direct appeal, or as a result of the BIA’s own initiative.”

Huang, 436 F.3d at 93.

       Both the Second Circuit and the BIA have considered some of

these       questions,       at    least     in    passing,             although       neither      has

definitively         resolved       them.          In        Huang,          the    Second    Circuit

rejected the government’s contention that 8 C.F.R. § 1208.16(e)

“place[d]       a    duty         solely     on        [a]       petitioner           to   move     for

reconsideration, as opposed to requiring the BIA (or the IJ for

that matter) to reconsider any denial of asylum sua sponte.”

Id.    at    93.       The    court    then       held        that       a    petitioner      is    not

required to bring a motion for reconsideration under 8 C.F.R.

                                                  14
§ 1208.16(e) — but it did not rule out the possibility that a

petitioner could bring such a motion.                          See id. at 93–94.            In

addition, the court observed that the command “‘the denial of

asylum shall be reconsidered’” is phrased in the passive voice,

and that, “[r]ead normally, the passive voice in such a phrase

mandates action by the party which previously had acted, i.e.,

the BIA.”         Id. at 93 (emphasis in original) (quoting 8 C.F.R.

§ 1208.16(e)).          But the following year, the Board said — without

analysis     or    discussion — that,             “[u]nder     8    C.F.R.   § 1208.16(e)

(2006), when an alien is denied asylum solely in the exercise of

discretion but is subsequently granted withholding of removal,

the Immigration Judge must reconsider the denial of asylum.”                                In

re   T-    Z-,    24    I.    &    N.    Dec.    163,   176    (B.I.A.     2007).      Taken

together, these opinions suggest that either the Board or an IJ

is authorized to provide the reconsideration required under 8

C.F.R.     § 1208.16(e),           either       sua   sponte   or    in    response    to    a

motion.

      In    this       case,      the    government     appears      to    have    taken    an

approach different from the one it advanced in Huang.                             Though it

did not address the matter in its brief, at oral argument the

government asserted that 8 C.F.R. § 1208.16(e) is intended to

trigger “automatic reconsideration” by the IJ at the time of

initial     review       of       an    asylum    application.        As     a    procedural

matter, according to the government, the regulation does not

                                                 15
give the Board authority to reconsider a denial of asylum after

a case is closed; such reconsideration may proceed only under a

different regulation, 8 C.F.R. § 1003.2. 3

       We need not, and do not, consider arguments raised for the

first time at oral argument.       See W. Va. CWP Fund v. Stacy, 671

F.3d 378, 389 (4th Cir. 2011).          But to the extent the government

has suggested that Shantu’s motion under 8 C.F.R. § 1208.16(e)

was improper, we note that the Board took no issue with Shantu’s

procedural choice and did not deny his motion on that basis.

And perhaps for that reason, the government expressly stated at

oral       argument   that   it   was     not      seeking   dismissal    on

jurisdictional grounds, but rather explaining its interpretation

of a rarely-invoked regulation.          Finally, given that neither the

BIA nor any court has adopted the government’s latest position —

which is directly contrary to the one it advanced in Huang, when

it   argued    that   “reconsideration”    under    8   C.F.R.   § 1208.16(e)

could proceed only on a separate motion by the applicant, see

       3
       This provision authorizes the Board to, “at any time[,]
reopen or reconsider on its own motion any case in which it has
rendered a decision,” and it outlines the requirements for a
motion for reconsideration filed by a party.          8 C.F.R.
§ 1003.2(a)–(b).    The government noted in its brief that a
motion to reconsider under 8 C.F.R. § 1003.2(b) must be filed
within 30 days of the Board’s final decision, but it waived
reliance on this requirement, conceding that the time limit was
“not a basis for the Board’s decision” to deny reconsideration
in this case.      Gov’t Br. at 22 n.5; see also 8 U.S.C.
§ 1229a(c)(6)(B).



                                    16
436 F.3d at 93 — we observe that Shantu had every reason to

believe he was entitled to file a motion for reconsideration

pursuant to that regulation.

       We need not delve further into the questions surrounding 8

C.F.R. § 1208.16(e) to resolve this case.                 Regardless of whether

it was the Board or the IJ that was required to reconsider

Shantu’s application for asylum, or precisely how and when that

reconsideration       was        to   take     place,    the     unambiguous    and

fundamental command of 8 C.F.R. § 1208.16(e) is that there be

some       reexamination    of    a   discretionary     denial    of   asylum   when

withholding of removal is granted, under the factors set out in

the regulation.        And as we discuss below, that requirement was

not satisfied here.



                                         III.

                                          A.

       We have jurisdiction to review Shantu’s petition under 8

U.S.C.      § 1252.    We    assume     without   deciding     that    the   Board’s

decision may be reviewed only for an abuse of discretion, as the

government contends. 4           Accordingly, we will reverse the Board’s



       4
       This is the standard of review that applies to a motion
for reconsideration brought under 8 C.F.R. § 1002.3, see Narine
v. Holder, 559 F.3d 246, 249 (4th Cir. 2009), and Shantu has not
argued that a different standard should apply here.



                                          17
denial of Shantu’s motion for reconsideration “only if the Board

acted arbitrarily, irrationally, or contrary to law.”               Narine v.

Holder, 559 F.3d 246, 249 (4th Cir. 2009) (quoting Mohammed v.

Gonzales, 400 F.3d 785, 791 (9th Cir. 2005)).

                                      B.

       We find that the Board abused its discretion when it denied

Shantu’s    motion   for   reconsideration.       The    Board    denied      the

motion based on its conclusion that “the factors prescribed by

regulation and Zuh v. Mukasey were properly considered by the

Immigration Judge and the Board in prior decisions.”                    J.A. 3

(citation omitted).        But an examination of the BIA’s and IJ’s

“prior decisions” reveals this determination to be contrary to

law.    We are mindful, of course, that our review is limited to

the Board’s January 27, 2015 decision denying Shantu’s motion

for reconsideration; the BIA’s earlier decisions were not timely

appealed.     But because that 2015 decision expressly incorporates

and relies upon the Board’s and IJ’s previous decisions, we can

determine whether the Board abused its discretion in 2015 only

by examining its prior reasoning.          See Nken v. Holder, 585 F.3d

818, 822 (4th Cir. 2009) (“[A]n administrative order,” including

one of the BIA, “cannot be upheld unless the grounds upon which

the agency acted . . . were those upon which its action can be

sustained.”    (quoting    SEC   v.   Chenery   Corp.,   318     U.S.   80,    95

(1943))).

                                      18
     First, there can be no doubt that the IJ did not reexamine

his own discretionary denial of asylum after granting Shantu

withholding    of    removal,    as   the     government   suggests   8     C.F.R.

§ 1208.16(e) required him to do.                 The IJ considered Shantu’s

asylum application only once in his sixteen-page opinion, and he

did so in the paragraphs preceding the grant of withholding of

removal.     And at no point did the IJ address most of the factors

enumerated by 8 C.F.R. § 1208.16(e).               He made no mention of 8

C.F.R. § 1208.16(e) itself, nor did he address the hardship that

Shantu’s unusual immigration status might place on his family.

Rather, he simply concluded that Shantu’s “forum shopping” and

dishonesty    when    obtaining    his    visa    precluded   a   discretionary

grant of asylum.

     The Board did not provide the reconsideration required by 8

C.F.R. § 1208.16(e), either.            The Board issued its 2009 opinion

rejecting Shantu’s appeal of the IJ’s determination after we

decided Zuh, which clarified our view that the decision to grant

withholding    of    removal    while    denying    discretionary     asylum    is

typically justified “only when the Government has demonstrated

egregious negative activity by the applicant.”                547 F.3d at 507.

Yet although the Board acknowledged the factors we enumerated in

Zuh, it did not apply them to Shantu’s particular case, balance

them, or consider whether any misconduct by Shantu was, in fact,

“egregious.”         Rather,    the     Board    simply    affirmed   the    IJ’s

                                         19
decision,     concluding        that       Shantu      had     found       “safe         haven”    in

Norway and had “family ties” there, that Shantu had engaged in

impermissible “forum shopping,” and that Shantu had “lied to

immigration officials” to obtain his United States visa.                                         J.A.

95–96.

      Finally, in the brief decision denying Shantu’s motion to

reopen,     the      Board      incorrectly            stated        that        “the        factors

considered by the Immigration Judge complied with law in the

United    States     Court      of   Appeals         for    the    Fourth        Circuit,”        and

declined      to     “further        consider          the        denial       of        [Shantu’s]

application for asylum.”               J.A. 66.            The Board’s express refusal

to   “further       consider”        Shantu’s         case        cannot      constitute          the

“reconsideration” required by 8 C.F.R. § 1208.16(e).

      Accordingly,        we    find    that         neither      the    IJ    nor       the    Board

provided the reconsideration of Shantu’s asylum application that

8    C.F.R.        § 1208.16(e)         requires,            and     that        the         Board’s

determination       otherwise        was    contrary         to    law     and      an    abuse    of

discretion.        See Narine, 559 F.3d at 249.                         We therefore remand

this matter to the BIA so that Shantu’s asylum application may

be   reconsidered         in    light      of    the       requirements          of      8     C.F.R.

§ 1208.16(e)        and   the    law    of      this       Circuit.           See     Cordova      v.

Holder, 759 F.3d 332, 338 (4th Cir. 2014) (“[W]hen a BIA order

does not demonstrate that the agency has considered an issue,

the proper course, except in rare circumstances, is to remand to

                                                20
the     agency          for     additional     investigation          or    explanation.”

(quoting Nken, 585 F.3d at 822)).                       We reiterate our view that

Shantu’s current immigration status is disfavored and justified

only by “egregious negative activity.”                    Zuh, 547 F.3d at 507.



                                               IV.

                                               A.

       Although the BIA must determine how best to proceed with

this case on remand, we offer a few additional observations that

might inform the agency’s reconsideration.                          First, we note that

the Board’s 2009 decision relies on the suggestion in In re Pula

that       a    grant      of   withholding    of    removal    makes      the    denial   of

discretionary asylum more justifiable, given that the applicant

will not be deported into harm’s way.                         See 19 I. & N. Dec. at

474.           But    in    Zuh,   we   made    it    clear — relying        in    part     on

§ 1208.16(e) itself 5 — that the opposite is true:                         The government

needs          an   especially     compelling        reason    to   deny    discretionary

asylum to a refugee who meets the high standard for withholding

of removal, given the disfavored nature of that status.                                    547

F.3d at 507–08, 510.                 To the extent that In re Pula and Zuh

conflict, the Board of course is bound by our ruling in Zuh.


       5
       In Zuh we cited 8 C.F.R. § 208.16(e), 547 F.3d at 510,
but,   again,  that  provision  is  identical   to  8  C.F.R.
§ 1208.16(e). See supra n.1.


                                               21
      Second, although the IJ found expressly that Shantu was not

“firmly resettled” in Norway, both the IJ and the Board relied

heavily      on     a     determination        that        Shantu      had        engaged    in

impermissible “forum shopping” because he had found “safe haven”

in Norway.        But as the Second Circuit has noted, “the regulation

giving IJs discretion to deny asylum to applicants staying in a

‘safe third country’ before arrival in the United States” was

repealed on January 5, 2001.                  Tandia v. Gonzales, 437 F.3d 245,

248   (2d    Cir.       2006)   (per     curiam).              Accordingly,       the   Second

Circuit     went     on    to   hold,    an    IJ    may       only   deny    discretionary

asylum based on a stay in a third country if the applicant was

“firmly resettled” there.                Id. at 249 (citations omitted); see

also Alsagladi v. Gonzales, 450 F.3d 700, 702 (7th Cir. 2006)

(“[T]he United States does not require refugees to remain in the

first nation they reach after their escape, unless they have

become      firmly        settled   there,          or    a      treaty      so    provides.”

(citations        omitted)).            Although         the     government        takes    the

position that “safe haven” remains a factor that may properly be

considered in a discretionary asylum determination, the Board

may wish to consider on remand whether that is so — and whether,

in any event, the so-called “forum shopping” in this case rose

to the level of “egregious negative activity,” see Zuh, 547 F.3d

at 507.



                                              22
      Finally,       we    observe      that    the       only    other       basis          for     the

discretionary denial of Shantu’s asylum application was the IJ’s

and   the    Board’s        conclusion         that       Shantu        lied        to       consular

officials to obtain his visa.                  We do not question the importance

of discouraging fraudulent conduct by asylum seekers.                                    But given

that “[t]he BIA has explicitly cautioned that manner of entry

cannot,     as   a    matter       of    law,        suffice       as     a     basis          for     a

discretionary denial of asylum in the absence of other adverse

factors,” Huang, 436 F.3d at 99 (citing In re Pula, 19 I. & N.

Dec. at 473–74), we do question whether the way in which Shantu

obtained his temporary visa constituted “egregious” misconduct.

                                               B.

      In addition, we note that this case may provide the BIA an

opportunity      to        clarify      its         interpretation             of        8     C.F.R.

§ 1208.16(e).             While    we     find        the       meaning        of        the       word

“reconsider”     to       be   evident,        we     have       noted    above          that        the

regulation’s text does not reveal when in the normal process of

adjudicating     an       asylum   application            the    reconsideration               should

occur, or what entity should do the reconsidering.                                       We do not

reach these questions because they do not affect the resolution

of the case that is before us; Shantu’s asylum application was

not   properly        reconsidered        at        any     stage        of     the          process.

Furthermore, we are cognizant that the BIA should interpret the

regulation in the first instance.                     Cf. INS v. Orlando Ventura,

                                               23
537 U.S. 12, 16 (2002) (“Generally speaking, a court of appeals

should remand a case to an agency for decision of a matter that

statutes place primarily in agency hands.”); Gonzales v. Thomas,

547 U.S. 183, 186 (2006); Nken, 585 F.3d at 822.               We encourage

the BIA to take that opportunity on remand.



                                    V.

      Because   Shantu’s   asylum   application    did   not    receive   the

reconsideration mandated by 8 C.F.R. § 1208.16(e), we find that

the BIA’s denial of his motion for reconsideration was an abuse

of   discretion.    Accordingly,    we   grant    Shantu’s     petition   for

review and remand the case to the BIA for further proceedings.



                                          PETITION FOR REVIEW GRANTED;
                                                  VACATED AND REMANDED




                                    24
