Senathirajah v. INS ( 1998 )

Opinions of the United
1998 Decisions States Court of Appeals
for the Third Circuit
10-9-1998
Senathirajah v. INS
Precedential or Non-Precedential:
Docket 97-3607
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Filed October 9, 1998
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 97-3607
CHENTHILKUMARAN SENATHIRAJAH,
Petitioner
v.
IMMIGRATION & NATURALIZATION SERVICE,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
From Immigration & Naturalization Service
(No. 0313-2: A73 488 828)
Argued: May 19, 1988
Before: ROTH and McKEE, Circuit Judges and
O'NEILL, Senior District Judge*
(Filed October 9, 1998)
Chin W. Fong, Esq. (Argued)
Suite 505
7 Penn Plaza
New York, New York 10001
Attorney for Petitioner
_________________________________________________________________
*The Honorable Thomas N. O'Neill, Jr., Senior District Judge of the
United States District Court for the Eastern District of Pennsylvania,
sitting by designation.
Joan E. Smiley, Esq.
Karen F. Torstenson, Esq. (Argued)
Civil Division, Department of Justice
Michael P. Lindemann, Esq.
Vernon B. Miles, Esq.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
McKEE, Circuit Judge.
Chenthilkumaran Senathirajah appeals the decision of
the Board of Immigration Appeals ("BIA" or the "Board")
denying his petition for review of an immigration judge's
ruling denying his application for asylum and withholding
of deportation under 8 U.S.C. SS 1101(a)(42)(A), 1158(a) and
1253(h). For the reasons that follow we will grant the
petition and remand for further proceedings consistent with
this opinion.1
I.
Senathirajah is a fifty-one year old ethnic Tamil from Sri
Lanka who claims to have been tortured while detained by
the Indian Peace Keeping Forces ("IPKF "), the Sri Lankan
_________________________________________________________________
1. We have jurisdiction to review the BIA's final order pursuant to 8
U.S.C. S 1105(a)(1), as amended by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,
110 Stat. 3009. The IIRIRA repeals relevant portions of S 1105 and
replaces them with a new judicial review section codified at 8 U.S.C.
S 1252, et seq. However, this amendment does not apply here, as the
order that Senathirajah appeals was entered before September 30, 1996.
See Chang v. INS, 119 F.3d 1055, 1059 n.1 (3d Cir. 1997). For
simplicity, we will refer to the Immigration and Nationality Act as it
existed prior to amendment.
2
military and the Sri Lankan police.2 His claims include: (1)
a two year period of detention and torture beginning with
an arrest by the IPKF in March 1988 for suspected
membership in the Liberation Tigers of Tamil Eelam ("LTTE"
or "Tigers"); (2) detention and torture by the Sri Lankan
army beginning with an arrest in July 1992 for suspected
membership in the LTTE; and (3) detention and physical
abuse by the Sri Lankan police beginning with an arrest in
January 1994 for suspicion of membership in the LTTE.
Soon after the last detention alleged by Senathirajah, he
hired "an agent" to procure a Canadian passport for him to
travel outside of Sri Lanka. App. at 322. On February 2,
1995, Senathirajah arrived at Kennedy Airport in New York
where he signed a sworn statement before an Immigration
and Naturalization Service ("INS") inspector regarding his
attempted entry into the United States (the "affidavit"). The
affidavit, which is transcribed in hand-printed, question
and answer format contains the following:
Q: What is your level of education? Do you work?
A: I graduated college, I am a teacher-I teach English.
Q: Sir, have you answered all my questions truthfu lly?
A: Yes.
Q: Would it be a burden if you had to leave/return to
Sri Lanka at this time?
A: My house was burned by the Sri Lankan army and
I am coming for political asylum in Canada.
. . . .
Q: Sir, do you wish to add to this statement at th is
time?
A: No, only that I want political asylum in Canada.
Q: Sir, at this time you appear excludable . . . Y ou can
withdraw you[r] application to enter the U.S.
_________________________________________________________________
2. In Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), we discussed
at some length recent Sri Lankan history; therefore, we decline to do so
again here.
3
voluntarily or you can ask for an exclusion hearing at
a later date. Which do you choose?
A: I want to go to Canada, I cannot go back.
App. at 227. The INS subsequently charged Senathirajah
with excludability from the United States, under 8 U.S.C.
SS 1182(a)(7)(A)(I)(I) and 1182(a)(6)(C)(I) for attempting to
enter the United States by fraud and without a valid visa.3
App. at 357.
On May 1, 1995, Senathirajah submitted a formal
application for asylum using INS Form I-589. That form
contains the following:
1. Why are you seeking asylum?
If I returned to Sri Lanka, I will be arrested, detained,
tortured and be killed.
2. What do you think would happen to you if you
returned to the country from which you are claiming
persecution?
Due to my Tamil nationality and the suspicion that I
am a member of the LTTE and from Velvettithurai, if I
were returned to Sri Lanka, I will be persecuted.
App. at 317. In a statement that Senathirajah attached to
the application he stated:
1. I was born in Velvettithurai in the northern pr ovince
of Sri Lanka on the 26th of December 1947. I
completed my secondary education in 1968. After
working full time for a while, I studied full time from
1974 to 1977 at a technical college and obtained a
diploma in English.
***
4. Since 1983, the Sri Lankan government has been
engaged in armed conflict with Tamil militants. In May
1987, the Sri Lankan armed forces launched a major
offensive in Velvettithurai . . . . During this offensive,
the Sri Lankan government engaged in indiscriminate
bombing. During one of the Sri Lanka government's
_________________________________________________________________
3. Senathirajah's attorney has conceded excludability. App. at 160.
4
bombing raids, the boat yard where I worked was
damaged severely. As a result, I left the village with my
family and moved to another village.
5. In August 1987, pursuant to the Indo-Sri Lankan
Accord, the Indian Peace Keeping Force (IPKF) came to
Sri Lanka to restore peace and normalcy. When the
IPKF arrived, the Sri Lankan armed forces were
confined to barracks. I returned to my village with my
family.
6. In October 1987, war broke out between the IPKF
and the LTTE. . . .
8. In March 1988, during a meeting of our communit y
center, the members of the IPKF came to our center
and arrested the Secretary and myself. We were taken
to the IPKF camp.
9. At the camp, we were asked about the whereabout s
of LTTE members. We denied any knowledge about the
LTTE. The next day we were subjected to an
identification parade. A man with a black mask was
brought in. We were brought in front of the man with
a black mask and the IPKF man asked the informant
whether we were LTTE members. When certain persons
were brought in front of the informant, he nodded his
head. When it was my turn, the informant nodded his
head. I was taken away, put in solitary confinement
and subjected to torture.
10. I was detained by the IPKF until its departure.
Following talks between the Sri Lankan government
and the LTTE, the IPKF left Sri Lanka.
11. . . . . In June 1991, war broke out between th e Sri
Lankan government and the LTTE.
12. . . . . In July 1992 . . . the Sri Lankan army
captured our town. The LTTE cadres left my village
when the Sri Lankan armed forces raided the area.
13. Around 10 p.m., the Sri Lankan military came t o
my house. When they entered my house, they hit me
with their guns and accused me of being a Tiger and
arrested me. I was taken to their camp.
5
14. At the camp, I was accused of being a member o f
the LTTE. They wanted to know the whereabouts of
LTTE members. When I said I didn't know, they
tortured me. I was detained and continually tortured
till October 1993. . . .
17. In January 1994, the Sri Lankan armed forces
raided my lodge [in Colombo]. When the Sri Lankan
armed forces came to my room, they asked for my
identification card. Upon seeing my card, they realized
that I was from the northern province. They
immediately accused me of being a Tiger and arrested
me.
18. I was first taken to the police station wher e I was
interrogated and tortured. . . .
20. Because I feared I would be arrested again, I
decided to leave Sri Lanka.
App. at 321-22.
Senathirajah had an asylum hearing on August 10, 1995.
During that hearing, he testified to enduring atrocities
similar to those set forth in the above statement, with some
additions. He testified that his house had been
"demolished" by the Sri Lankan military, that from 1988 to
1990 he was detained by the IPKF, denied proper food and
forced to wear the same clothing. App. at 191, 197-98. He
also testified that he had been arrested by the Sri Lankan
military in 1992 when the military came to his home and
accused him of being a member of the LTTE. He stated that
he was taken to a military camp where he underwent
torture that included having both hands tied behind his
back, being slapped, and being hit on the head with a bat.
He said members of the military made him undress and
drink his own urine whenever he asked for water. App. at
179-80. Senathirajah also testified about an arrest in
January 1994 in Colombo where he had gone for medical
treatment. App. at 180-183.
When asked about his fluency in English, as suggested
by the averments in his affidavit, Senathirajah replied
"yeah, some, little English." However, he added
"pronunciations" of foreigners "is a little difficult." App. at
6
192. He then stated that he had requested a Tamil
interpreter at the time of his airport interview, but was told
that none was available. Therefore, he proceeded to give the
statement without an interpreter.
Senathirajah testified at his hearing that he signed the
affidavit because he was "scared." He stated that "[t]he
officer told me to sign. The two people the agent brought
were (indiscernible) to sign the document, so I thought if I
sign also, I'll get released. With that intention I signed."
App. at 193. Senathirajah then insisted that he had been
unaware of the contents of the statement before he signed
it. Id.
The immigration judge denied Senathirajah's application
for asylum. We will quote her explanation for doing so at
length because her reasoning is at the heart of our inquiry.
I have observed the demeanor and testimony of the
Applicant, and for the following reasons, I find that his
testimony is not credible. 1) the Applicant has testified
that he was arrested on three different occasions, the
first time being for a period of two years, the second
time for a period of approximately a year and three
months, and on the third occasion for a period of a
year. He stated that the date of the employment as
regards his tutoring profession was indicated in the
Form I-589 as that being from January 1978 until
October 1993 because he had off and on been involved
in this profession for those years. However, it should
be noted the end date of the employment as a tutor as
indicated on the Form I-589 (the asylum application),
part E is that of October 1993. In fact, Applicant has
stated that he was jailed from July 1992 until October
1993. 2) The Applicant has indicated both on direct
examination and, although there was some confusion
as to his testimony on cross examination, the
Applicant had testified that he was in detention from
March of 1988 to March of 1990 by the IPKF. However,
it was only on redirect and upon specific questioning
by the Court that the Applicant testified that in
February of 1989, he was, in fact, for a period of one
month released from the IPKF. He stated that it was by
7
agreement, not physical force,4 that he then returned
back to the IPKF, and that he was then detained up
until March of 1990. There was absolutely no
testimony on direct or cross examination as to this
fact. 3) Although on direct examination the Applicant
stated that he was first arrested in March of 1988,
second arrested in July of 1992 and third arrested in
January of 1994, on cross examination, the Applicant
testified that the next time after his detention with the
IPKF that he had problems in Sri Lanka was in
January of 1994. It should also be noted that on direct
examination, the Applicant testified that he knew"little
English" and that he had requested that a Tamil
interpreter be provided for the questioning by the
inspector. While it may be true that the Applicant may
have had some difficulty in understanding the "foreign"
pronunciation, the response that he knew "little
English" is in direct contradiction to his written
application in the Form I-589 . . . where he indicates
"I am fluent in English." Further, he testified that he
has a degree in the English language, and that in fact
he had worked as an English tutor for a period that
covers over fifteen years. . . .
Immigration Judge Opn. at 10-12.
Then, in an explanation that is nothing short of
astounding for reasons we detail below, the immigration
judge further stated that even if she were to take
Senathirajah's claims as true, she would still find him
ineligible for relief because his suspected membership in
the Tigers, a purported violent group, is valid reason for the
government of Sri Lanka to investigate him. Id. at 13. The
Judge stated "[i]nvestigations as to the criminal conduct of
_________________________________________________________________
4. Senathirajah's actual testimony was that he was told that if he did not
return within a specified time after making funeral arrangements, his
captors told him they would "come and take me. I am the person who
has to do the funeral rights. That's why the village people spoke with the
officer, and the officer released me" subject to the threat of forceful
recapture if he did not return. App. at 219. Thus, the immigration
judge's characterization of Senathirajah's release and return as "by
agreement" is a misleading account of what he actually said.
8
the Tigers is a valid Governmental investigation, and not
persecution." Id. at 12.
The immigration judge was also influenced by
Senathirajah's failure to corroborate his testimony other
than by providing background materials on the conflict in
Sri Lanka, and by what she characterized as a failure to
provide detailed accounts of the abuse that he alleged. She
noted that Senathirajah's affidavit did not include any
discussion of the periods of detention that he testified to at
his asylum hearing.
Furthermore, the Applicant has not provided any
corroboration in support of his testimony other than
generalized background materials. It is also very
troubling to this Court that the Applicant in relaying
the three occasions that he was arrested and detained
has not relayed in any detailed manner the alleged
assaults and tortures. While he did mention that
various acts took place, there was not a detailed
account. It should also be noted that in the sworn
statement taken at the airport the Applicant made
absolutely no mention of the three periods of detention
which allegedly was for a period of over four years. In
fact, during today's hearing, the Applicant stated that
he relayed to the inspector that he had come to the
United States because his work place as well as his
home was destroyed, but he did not testify that he had
relayed any other information as to his detention to the
inspector.
Id. at 13.
The immigration judge ruled that Senathirajah had failed
to satisfy his burden as to both his asylum claim and as to
his withholding of deportation claim. The judge also found
that he had not met his burden of proof under the fraud
component of S 212(a)(6)(C)(I), since she determined that
Senathirajah had given a false name (Chenthilkumaran
Senathirajah)5 to the INS inspector at Kennedy Airport, and
he signed the affidavit using the assumed name.
Accordingly, the judge ordered Senathirajah excluded and
_________________________________________________________________
5. Petitioner's real name is Sittampalam Sundralingam.
9
deported from the United States pursuant to
SS 212(a)(7)(A)(I)(I) and 212(A)(6)(C)(I) of the Immigration Act.
The BIA affirmed the immigration judge's decision. 6 The
Board stated "[w]e do not ordinarily disturb an immigration
judge's credibility finding, and give an immigration judge's
credibility finding significant weight." BIA Opn. at 2 (citing
Matter of V-T-S-, Interim Decision 3308 at 7 (BIA 1997); see
Matter of Burbano, 20 I & N Dec. 872 (BIA 1994). However,
although the BIA affirmed the immigration judge, it
expressed concern over the judge's credibility determination
as the BIA found that Senathirajah sufficiently explained
some of the testimony that caused the judge to doubt his
credibility. Nonetheless, the BIA concluded that the
immigration judge "had substantial grounds for being
unwilling to credit the applicant's account of the events
that form the basis of his claim." Id. The Board was
particularly troubled with Senathirajah's professed difficulty
with English. The Board stated:
[w]e agree with the immigration judge's assessment of
the applicant's claim not to have understood the
pronunciation of the English-speaking Service officer
who examined him upon his attempted entry into the
United States. In this regard we observe that the
applicant testified that he studied English at the
college level (citation omitted). We also observe that in
his Application for Asylum and for Withholding of
Deportation . . . the applicant indicates that he is
fluent in English.
BIA Opn. at 2.
_________________________________________________________________
6. On October 19, 1995, Petitioner filed a Motion to Withdraw Appeal,
stating that the INS had agreed to parole him to Canada where he would
be granted asylum and where he had relatives. App. at 104. On
December 15, 1995, the BIA acknowledged by order that Senathirajah's
appeal was withdrawn. App. at 103. On March 21, 1996, Petitioner filed
a Motion to Reopen with the Immigration judge, stating that on
December 26, 1995, the INS district director had "changed his policy of
paroling individuals to Canada to seek asylum." App. at 91. On April 29,
1996, the Immigration judge denied the Motion to Reopen. App. at 84-
85. The BIA then certified the case to allow consideration of the appeal.
App. at 2-5.
10
The BIA also stated that, despite the lack of detail of the
questions on the sworn statement, "the harm the applicant
claimed to have suffered, also as reflected in the sworn
statement, is not the kind of harm that the applicant's
testimony indicates is the basis of his application for
asylum." Id. The Board then affirmed the decision of the
immigration judge as it found Senathirajah "not a credible
claimant for asylum and withholding of deportation." BIA
Opn. at 3. This appeal followed.
II.
A "refugee" is defined as
any person who is outside any country of such
person's nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail himself
or herself of the protection of, that country because of
persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.
8 U.S.C. S 1101(a)(42)(A) (emphasis added). In the Refugee
Act of 1980, Congress amended the Immigration and
Nationalization Act to include section 208(a). That section
gave the Attorney General discretion to grant asylum to
those who qualify as refugees. It also amended section
243(h) so as to require that deportation be withheld if an
alien "demonstrates a clear probability of harm on account
of one of the enumerated factors." Chang v. INS, 119 F.3d
1055, 1061 (3d Cir. 1997).
One of Congress's primary purposes in enacting the
1980 law was to harmonize United States law with the
United Nations Protocol Relating to the Status of
Refugees ("U.N. Protocol"), to which the United States
became a party in 1968.
Id. (internal quotation marks omitted). The immigration Act
thus requires the Attorney General to determine if an alien
is a refugee. 8 U.S.C. S 1158 (1994). The alien has the
burden of "show[ing] that he qualifies as a refugee . . . ."
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998).
To qualify as a refugee, an applicant must establish" by
11
objective evidence that it is more likely than not that he or
she will be subject to persecution upon deportation." INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987).
The Attorney General must withhold deportation if the
applicant demonstrates that upon deportation his or her
life or freedom would be threatened on account of one of
the statutorily enumerated factors. 8 U.S.C. S 1253(h);
Chang, 119 F.3d at 1066; see also Balasubramanrim, 143
F.3d at 164 n.10. To meet this test, the alien must
demonstrate that there is a greater-than-fifty-percent
chance of persecution upon his or her return. Vilorio-Lopez
v. INS, 852 F.2d 1137, 1140 (9th Cir. 1987). If the alien
fails to establish that his or her life or freedom will be
threatened upon return so as to require that deportation be
withheld, the Attorney General may still exercise her
discretion and not deport the alien by a grant of asylum
under S 208 of the Immigration Act. The latter requires that
the alien establish a subjective fear of persecution that is
supported by objective evidence that persecution is a
reasonable possibility. Chang, at 1066.
It is obvious that one who escapes persecution in his or
her own land will rarely be in a position to bring
documentary evidence or other kinds of corroboration to
support a subsequent claim for asylum. It is equally
obvious that one who flees torture at home will rarely have
the foresight or means to do so in a manner that will
enhance the chance of prevailing in a subsequent court
battle in a foreign land. Common sense establishes that it
is escape and flight, not litigation and corroboration, that is
foremost in the mind of an alien who comes to these shores
fleeing detention, torture and persecution. Accordingly,
corroboration is not required to establish credibility. The
law allows one seeking refugee status to "prove his
persecution claim with his own testimony if it is credible."
Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996) (citing
Aguilera-Cota v. INS, 914 F.2d 1375, 1379 (9th Cir. 1990)).
Here, Senathirajah claims that the BIA's "adverse credibility
finding is not supported by the record [or] by law."
Petitioner's Br. at 10. We agree.
12
III.
As noted above, the BIA's ruling results in substantial
part from the deference it gave the immigration judge's
decision. However, while affirming the immigration judge's
conclusion as to Senathirajah's credibility, the BIA noted
that it believed some of the immigration judge's skepticism
was not warranted. Nevertheless, the Board affirmed the
decision of the immigration judge even though the Board
believed that "some of the aspects of the applicant's
testimony with which the immigration judge had difficulty
[were] adequately explained by the applicant." App. at 3.7
Nevertheless, the BIA appears to have substantially relied
upon the adverse credibility ruling of the immigration judge
in rejecting Senathirajah's petition. The BIA may defer to
the credibility rulings of an immigration judge who actually
heard the testimony, and observed the witnesses. However,
the BIA is not required to do so, and it ought not to defer
when such deference is not supported by its own
independent review of the record.
Where the immigration judge makes a credibility
determination, the Board can independently assess
that determination and make de novo findings on
credibility. See Damaize-Job v. INS, 787 F.2d 1332,
1338 (9th Cir. 1986) ("The Board has the power to
review the record de novo and make its own findings of
fact.")
Balasubramanrim, at 161.
Here, although the Board did grant some deference to the
immigration judge, it appears that the Board also
conducted an independent examination of the record, and
also concluded that Senathirajah was not credible. We
must sustain the BIA's adverse credibility determination if
there is substantial evidence in the record to support it.
Chang, at 1060; see also Hartooni v. INS, 21 F.3d 336, 340
(9th Cir. 1994); Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st
Cir. 1994). "Substantial evidence is more than a mere
scintilla and is such relevant evidence as a reasonable
_________________________________________________________________
7. In its brief opinion, the BIA did not state to what it was referring
when
it made this statement.
13
mind might accept as adequate to support a conclusion."
Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987). An
immigration judge who "rejects a witness's positive
testimony because in his or her judgment it lacks
credibility should offer a specific, cogent reason for [his or
her] disbelief." Turcios, 821 F.2d at 1399 (citation and
internal quotations omitted). We "evaluate those reasons to
determine whether they are valid grounds upon which to
base a finding that the applicant is not credible." Vilorio-
Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) (citing
Damaize-Job v. INS, 787 F.2d 1332, 1337-78 (9th Cir.
1986)).
The Board's credibility determination was based upon the
following factors: (1) it disbelieved Senathirajah's testimony
that he could not understand English as spoken by the INS
inspector since Senathirajah testified that he had studied
English at the college level and had stated on his asylum
application that he was fluent in English; (2) Senathirajah
did not "specifically claim that the Record of Sworn
Statement . . . misrepresents his actual statement to the
examining Service officer.";8 and (3) the harm that
Senathirajah claimed that he suffered in his sworn
statement or affidavit was not the same as that which he
testified was the basis of his asylum application. BIA Opn.
at 2.
The circumstances of Senathirajah's petition are quite
similar to those that were before us in Balasubramanrim.
There, the petitioner was also a Tamil from Sri Lanka
seeking asylum and withholding of deportation. In ruling
upon Balasubramanrim's petition for review, we noted the
persecution facing residents of Sri Lanka who were
identified as being Tamil, and the historical roots of
that oppression. See Balasubramanrim, at 159.
Balasubramanrim "claim[ed] to have been arrested,
detained, and tortured on several occasions by the armed
forces of the Sri Lankan government, the Indian
peacekeeping forces and the Liberation Tigers."
Balasubramanrim, at 159. Balasubramanrim also claimed
_________________________________________________________________
8. In fact, the BIA considered Petitioner's testimony as a confirmation of
the accuracy of the sworn statement. BIA Opn. at 2.
14
that he would be subject to additional detention and torture
if he returned to Sri Lanka because he was Tamil. On his
application he stated that the following events occurred
before he left Sri Lanka:
1. In March 1988, he was arrested by the Indian
Peacekeeping Forces and taken to a camp where he
was accused of being a Tiger and beaten;
2. In November 1989, he was again arrested . . .
because he refused to join the ranks of one of the
political fighting forces, was tortured for an entire day,
and remained in custody for five days;
3. In March 1990, the Tigers arrested him for 10 d ays
and accused him of being an informant for the Indian
Peacekeeping Forces, a charge which he claims was
untrue;
4. In 1991, his brother disappeared after being
arrested by the Sri Lankan army;
5. In 1993, his father was killed by Sri Lankan air
bombs;
6. In October 1993, he fled northern Sri Lanka but
was arrested for failing to register in the new area;
7. Also in October 1993, after accusing
Balasubramanrim of being a Tiger, the Sri Lankan
army arrested, detained and tortured him for one year
and ten days; eventually, his wife bribed the army for
his release;
8. In late 1994, Sri Lankan armed forces arrested him
at the airport as he was trying to leave the country
with his family, and he was detained and tortured for
four months and ten days.
Id. After the ``94 arrest, Balasubramanrim left Sri Lanka
using a fake Canadian passport, ultimately arriving at
Kennedy Airport. There, INS officials interviewed him in
English without the aid of a translator. The result of this
encounter was a handwritten document with 25 questions
and answers about Balasubramanrim's past and his
reasons for seeking asylum.
15
Thereafter, Balasubramanrim appeared before an
immigration judge where he told of the atrocities that he
had endured. The immigration judge found him
"excludable, denied his application for asylum and
withholding of deportation, and ordered him deported to Sri
Lanka." Id. at 160. The judge concluded that
Balasubramanrim had not been truthful about his "prior
arrests and his fears about returning to Sri Lanka. The [ ]
judge also expressed doubts about his credibility because
Balasubramanrim did not look at him while testifying and
instead stared straight ahead ``as though in a trance.' " Id.
The BIA affirmed the immigration judge's decision
because of perceived inconsistencies between
Balasubramanrim's testimony at the hearing and his
airport statement.
However, we concluded that Balasubramanrim's airport
interview did not necessarily accurately reflect the
persecution that he suffered in Sri Lanka, nor the danger
he would face if he were forced to return. We expressed
concern that: (1) the handwritten record of the airport
interview may not be reliable since "[w]e [did] not know how
the interview was conducted or how the document was
prepared"; (2) the airport statement was not an application
for asylum; (3) an arriving alien may, because of past
interrogation, be unwilling to disclose much information to
government officials; and (4) the BIA may not have
accurately assessed Balasubramanrim's English skills. Id.
at 162-63.
We thus concluded that any discrepancy between
Balasubramanrim's airport statement and his testimony
was insufficient, by itself, to support the BIA's finding that
the petitioner was not credible. Id. at 164 (citing Aguilera-
Cota, 914 F.2d at 1382). We recognized that the BIA did not
pursue Balasubramanrim's asylum and withholding of
deportation claims because of its adverse credibility finding.
However, " ``[i]n the absence of substantial evidence
supporting a finding of adverse credibility, the BIA is
required explicitly to consider a petitioner's claims for
asylum and withholding of deportation.' " Id. at 165
(quoting Mosa, 89 F.3d at 605).
16
We therefore granted Balasubramanrim's petition and
remanded the case to the BIA with further instruction to
remand to the immigration judge for a determination of
Balasubramanrim's asylum and withholding of deportation
claims "without reliance on the adverse credibility finding."
Id. Specifically, we held that "because of ambiguities in the
airport statement and the circumstances under which it
was made, that statement does not provide sufficient
evidence to support the adverse credibility determinations
upon which the immigration judge and BIA denied the
petition." Id.Here, as in Balasubramanrim, the immigration judge and
the BIA gave far too much weight to the affidavit taken
during Senathirajah's airport interview. The government
offered no testimony as to the circumstances under which
that affidavit was obtained, or whether it was necessary to
use sign language and/or gestures to communicate with
Senathirajah. It is uncontested that he asked for an
interpreter before he gave the affidavit and none was
provided. As in Balasubramanrim, the affidavit here was not
an application for asylum, and it should neither have been
treated as such, nor read with the exacting eye that the BIA
might use to examine statements that accompany Form I-
589. By placing too much reliance on an airport interview
under the circumstances here, and ignoring more detailed
accounts in Form I-589 as well as testimony at an asylum
hearing, the INS seriously undermined the reliability of the
administrative process. Given Senathirajah's allegations of
torture and detention, he may well have been reluctant to
disclose the breadth of his suffering in Sri Lanka to a
government official upon arriving in the United States even
if he could understand the questions he was being asked at
the airport.
The BIA affirmed the ruling of the immigration judge
primarily because it agreed with the judge's conclusion that
Senathirajah was fluent in English and could therefore be
held to the statements in the affidavit and the apparent
inconsistencies between those statements, the averments in
Form I-589, and his later testimony at his asylum hearing.
However, neither the BIA nor the immigration judge
considered the limitations of the airport interview.
17
Moreover, Form I-589 allows for only two choices when
inquiring about an applicant's facility with English. It asked
only if Senathirajah was fluent, with no attempt to inquire
into various degrees of proficiency one may have with a
foreign language.9 Furthermore, neither the BIA nor the
immigration judge appears to have given any consideration
to the difficulty someone from Sri Lanka may have in
understanding "American English," particularly under the
stressful circumstances of entry into a new country. 10
During the asylum hearing, Senathirajah testified as
follows:
Q: Did you complete high school?
A: Yes.
Q: Did you complete college?
A: I went to advanced level.
Q: I'm sorry, to what?
A: To advanced level, advanced level.
Q: Of college?
A: There they say college is still advanced level. College
is university. They say that university.
Q: So you went to university?
A: I went for community college.
. . . .
_________________________________________________________________
9. The asylum application asks that the applicant select one of two
choices identifying his language facility. The application states:
17. Native Language: a. __ I am fluent in English.
b. __ I am not fluent in English, but I am
fluent in Tamil.
10. Sri Lanka, which until 1972 was known as Ceylon, became an
independent nation in 1948, after almost 150 years of British colonial
rule. Consequently, the English taught to Sri Lankans is more than
likely not of a vernacular commonly used in the United States. It seems
no stretch, then, to assume that Petitioner might have needed an
interpreter even if he technically "spoke the same language" as the INS
inspector.
18
Q: . . . . What was your major, what was your course
of study?
A: Diplomat and English.
App. at 195-96. Although it is not clear if Senathirajah
meant to say that he had a "diploma" in English, or if he
meant to say he studied "diplomacy" and English, it is clear
that he had significant trouble in both speaking and
understanding English during the asylum hearing. One
cannot read the transcript from that hearing without
realizing that there was significant difficulty communicating
with Senathirajah even with the presence of a Tamil
interpreter. For instance, though the immigration judge and
BIA placed substantial reliance on Senathirajah's testimony
that he had "tutored" English, throughout his testimony he
continually used "tuition" for "tutor" thus illustrating far
more significant difficulty with the language than either the
immigration judge or the BIA realized. For example
Senathirajah declared:
Sometimes I go to houses and give tuition to
students at their place. Sometime -- it's a private
tutoring. That's why (indiscernible).
***
It was often I was giving tuition when I was detained.
Then afterwards when I come from detention then I
went to tuition.
***
In the application I put total (indiscernible), but I was
given (indiscernible). Because the tuition work I was
doing was not profit. Same time I was detained, and
then I come back from detention, then I give tuition.
App. at 60, 63. Nevertheless, when asked "are you fluent in
English?", Senathirajah responded: "Yeah, some, little
English." Id. at 53. It is clear from the transcript that
whatever Senathirajah thought "fluent" meant, his facility
with English is less than one might expect from the use of
that term. It is clear that his ability to speak and
understand the language is not without difficulty.
19
Senathirajah argues that "advanced levels" in the British
educational system in Sri Lanka translates into the first
year of undergraduate studies in the United States. Letter
from Chin Wei Fong, Attorney for Petitioner, 5/14/98, p.2.
The government offered no evidence at the hearing to
establish that Senathirajah's level of education would have
allowed him more proficiency with English than he
admitted to. It is undisputed that Senathirajah requested
an interpreter when he arrived at the airport but that none
was available. Although he signed the affidavit, we are
unimpressed with the affidavit's reliability, or probative
value. Senathirajah's testimony that he provided the
interview after being kept at the airport for "three or four
hours without water or food . . . I was feeling faintish," App.
at 54, was not rebutted. Yet, the immigration judge and the
BIA held Senathirajah to a level of proficiency in English
that is inconsistent with his request for an interpreter, the
circumstances under which the affidavit was taken, or with
the transcript of the asylum hearing.
Moreover, we believe that it is irrelevant that
Senathirajah does not assert that the affidavit
misrepresents his actual statement at the airport.
Senathirajah claims that the affidavit is incomplete because
of ambiguous and incomplete questioning that did not
effectively elicit information relevant to a subsequent claim
for asylum and withholding of deportation. We agree. The
following exchange is illustrative.
Q: Would it be a burden if you had to leave/depart to
Sri Lanka at this time?
A: My house was burned by the Sri Lankan army and
I am coming for political asylum in Canada.
App. at 227. The inspector's next question was:"Do you
have any friends or relatives here in the U.S?" Id.
Senathirajah argues that had the inspector asked a more
precise question--perhaps a question about persecution
rather then whether he had any relatives or friends--the
inspector would have elicited a more complete account of
the suffering that Senathirajah had suffered in the past and
the likelihood of future suffering. In Balasubramanrim, we
noted that the immigration judge also placed too much
20
reliance upon an airport interview where, after
Balasubramanrim stated he would be killed if he returned
home, "the next question was: ``How did you get to the U.S.
from Sri Lanka?' " Balasubramanrim, at 163.
The BIA affirmed the immigration judge's credibility
finding partly on the ground that the harm that
Senathirajah mentioned in the affidavit (his house being
burned) was not the same as that mentioned during his
testimony (arrests, detentions and physical abuse).
However, there is nothing inconsistent in those two
responses. At the airport, Senathirajah was asked if"it
would be a burden" to return to Sri Lanka. He responded
that his house had been burned down. Surely, having one's
house burned down results in a burden. Senathirajah's
statement that his house had been burned does not negate
his subsequent testimony that he had been tortured during
periods of detention. His statement regarding the burning
of his home is responsive to the question he was asked. It
is clearly a burden for one who is homeless to have to
return home. At the hearing, neither the government nor
the immigration judge asked Senathirajah why he did not
tell the INS inspector about his detention or torture in Sri
Lanka. It is unfair to fault him for not volunteering that
information in response to the questions the INS inspector
asked.
Similarly, the immigration judge discredited
Senathirajah's testimony because he did not give a detailed
account of what he had endured either during his airport
interview or during his testimony. The judge stated:
It is also very troubling to this Court that the Applicant
in relaying the three occasions that he was arrested
and detained has not relayed in any detailed manner
the alleged assaults and tortures. While he did mention
that various acts took place, there was not a detailed
account. It should also be noted that in the sworn
statement taken at the airport the Applicant made
absolutely no mention of the three periods of detention
which allegedly was for a period of over four years. In
fact, during today's hearing, the Applicant stated that
he relayed to the inspector that he had come to the
United States because his work place as well as his
21
home was destroyed, but he did not testify that he had
relayed any other information as to his detention to the
inspector.
Opn. at 13. Taking these concerns in turn we again note
that Senathirajah answered those questions he was asked
at the hearing. He told of being forced to drink his own
urine when he asked for water, being kicked, and beaten on
the head with a baseball bat. If the immigration judge
wanted greater detail she should have asked appropriate
follow up questions that may have elicited it. Thus, the
immigration judge and the BIA ignore the most obvious
reason for Senathirajah's purported failure to provide
greater detail. He was not asked. When asked about the
details of his detention, he told of beatings, and being
forced to drink his own urine. We do not understand what
further detail the immigration judge expected, and we
surely can't fault Senathirajah for not knowing. Our review
of the affidavit reveals no question that would have elicited
any information about detention in Sri Lanka, let alone
torture and persecution.
The immigration judge conceded that Senathirajah "may
have had problems in understanding the oral language,"
Opn. at 12, when she discussed the answers he gave the
INS inspector at the airport. Yet, she dismissed that
possibility by concluding "he has signed a document. That
is the Applicant had ample opportunity to review the
question and answers that were written on [the affidavit]."
Id. However, if Senathirajah did not understand the
questions that were asked of him, it is irrelevant that he
had time to review the response that the inspector
attributed to him. In addition, as noted above,
Senathirajah's testimony of the circumstances under which
he gave the written statement remain uncontroverted.
Finally, the immigration judge and BIA placed too much
weight upon the fact that Senathirajah's written statement
contained time frames that are not identical to those he
testified to. "Minor inconsistencies in the record such as
discrepancies in dates which reveal nothing about an
asylum applicant's fear for his safety are not an adequate
basis for an adverse credibility finding." Vilorio-Lopez, 852
F.2d at 1141. For example, the immigration judge was
22
troubled by Senathirajah's testimony that he was employed
as a "tutor" during the time he was purportedly detained.
Yet, his testimony was that he was self-employed and
provided "tutoring" part time, and that he resumed tutoring
upon his release. Thus, he may have well viewed himself as
a tutor even though he was detained. He testified:"I was
often I was giving tuition when I was detained. Then
afterwards when I come from detention I went to tuition."
App. at 199.
The asylum process ought to be a determination of
whether someone is entitled to either a withholding of
deportation, or a discretionary grant of asylum. It is a
process that Congress has enacted, at least in part, to align
the immigration laws of the United States with the law of
nations. See Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir.
1996) ("[T]he Refugee Act brought the domestic laws of the
United States into conformity with its treaty obligations
under the United Nations Protocol Relating to the Status of
Refugees"). The procedures for requesting asylum and
withholding of deportation are not a search for a
justification to deport. Justice requires that an applicant
for asylum or withholding of deportation be afforded a
meaningful opportunity to establish his or her claim.
Deportation is always a harsh measure; it is all the
more replete with danger when the alien makes a claim
that he or she will be subject to death or persecution
if forced to return to his or her home country. In
enacting the Refugee Act of 1980 Congress sought to
give the United States sufficient flexibility to respond to
situations involving political or religious dissidents and
detainees throughout the world.
INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (internal
quotation marks omitted). We do not operate under any
rule that prevents an asylum applicant from elaborating
upon the circumstances underlying an asylum claim when
given the opportunity to take the witness stand.
Before concluding our discussion of the merits of
Senathirajah's petition for review, it is necessary for us to
clarify a misconception expressed by the immigration judge.
As noted above, the immigration judge concluded that she
23
would deny Senathirajah's application even if he were
credible because "[i]nvestigations as to the criminal conduct
of the Tigers is a valid Governmental investigation, and not
persecution." Op. at 12. Although claims of torture, without
more, do not afford Senathirajah the relief he seeks here,
we emphasize that torture does not constitute valid
governmental investigation, and conduct such as beatings
with bats, and forcing one to drink one's own urine when
thirsty ought not to be mistaken for legitimate
governmental investigations by any judge.
In light of the universal condemnation of torture in
numerous international agreements, and the
renunciation of torture as an instrument of official
policy by virtually all of the nations of the world (in
principle if not in practice), we find that an act of
torture committed by a state official against one held in
detention violates established norms of the
international law of human rights, and hence the law
of nations.
Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2nd Cir,. 1980).
See also Universal Declaration of Human Rights, General
Assembly Resolution, 217 (III)(A)(Dec. 10, 1948) ("no one
shall be subjected to torture"), American Convention on
Human Rights, Art. 5, OAS Treaty Series No. 36 at 1, OAS
Off. Rec. OEA/Ser 4 v/II 23, doc 21, rev.2. (English ed.
1975) ("No one shall be subjected to torture or to cruel,
inhuman or degrading punishment or treatment"). The
immigration judge's proclamation was apparently based
upon her belief that the Tigers were a subversive
organization and that "legitimate" forces in Sri Lanka
therefore had a right to investigate. However, there is
absolutely no evidence in this record that Senathirajah was
a member of the Tigers, and even if he was, we disagree
with the immigration judge's belief that the Sri Lankan
government could use torture as part of its investigation
into his activity.11 "Although torture was once a routine
_________________________________________________________________
11. Our holding in Balasubramanrim establishes that the treatment of
the Tamil in Sri Lanka, and the persecution that has resulted from the
activities of the Tigers could be sufficient to support a claim for asylum
or withholding of deportation. However, that decision was after
Senathirajah's asylum hearing and the immigration judge here did not
have the benefit of that discussion.
24
concomitant of criminal interrogations in many nations,
during the modern and hopefully more enlightened era it
has been universally renounced. According to one survey,
torture is prohibited, expressly or implicitly, by the
constitutions of over fifty-five nations. . . ." Pena-Irala, 630
F.2d at 884.
IV.
For the reasons set forth above, we conclude that the BIA
did not have substantial evidence for its finding of adverse
credibility. We therefore hold that the BIA erred in affirming
the decision of the immigration judge. Thus, we will remand
this case to the BIA with instructions that the matter be
remanded to the immigration judge, for a ruling on
Senathirajah's asylum and withholding of deportation
claims without consideration of the prior adverse credibility
findings.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
25