Suganthan Pathmakanthan v. Eric Holder, Jr. , 612 F.3d 618 ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2644 & 08-3777
S UGANTHAN P ATHMAKANTHAN,
Plaintiff-Appellee,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Defendant-Appellant.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A099 031 921
A RGUED M ARCH 29, 2010—D ECIDED JULY 16, 2010
Before
C UDAHY and K ANNE , Circuit Judges, and
D ARRAH, District Judge. Œ
C UDAHY, Circuit Judge. As fighting raged between Sri
Lankan security forces and the separatist Tamil Tigers,
Suganthan Pathmakanthan (Petitioner) found himself
caught in the middle. Petitioner is an ethnic Tamil who
Œ
Honorable John W. Darrah, United States District Judge for
the Northern District of Illinois, is sitting by designation.
2 Nos. 08-2644 & 08-3777
lived in an area of Sri Lanka controlled by the Tigers.
Although he was not personally involved with the Tigers,
he was subject to repeated stops and questioning by the
Sri Lankan forces. Between 2002 and 2005, he was sub-
jected to some 15 arrests, after which he was detained,
questioned and promptly released each time. At one
point, Petitioner traveled to India and returned to Sri
Lanka without fleeing or seeking asylum. Sometime
after that return, though, he was arrested and threatened
with death. He was released without harm after 10 hours.
Petitioner subsequently fled Sri Lanka and, using false
Indian identification, boarded a plane that arrived at
Chicago’s O’Hare Airport on August 24, 2007.
Petitioner applied for asylum, withholding of removal
and relief under the United Nations Convention Against
Torture (CAT). After all three were denied by the Immigra-
tion Judge (IJ) and the Board of Immigration Appeals
(BIA), he moved to reopen based on changed circum-
stances in Sri Lanka (namely the reported breakdown of
the cease-fire between Sri Lankan security forces and the
Tamil rebels). The motion to reopen was denied.
Pathmakanthan now petitions for review of these deci-
sions.
Notwithstanding the many difficult experiences that he
endured, Petitioner has not shown that he had been the
subject of persecution. Further, despite the poor human-
rights conditions in Sri Lanka, Petitioner has not shown
that he faces a well-founded fear of future persecu-
tion. Moreover, the BIA did not abuse its discretion in
denying his motion to reopen. For these reasons, and
Nos. 08-2644 & 08-3777 3
the ones that follow, we deny the consolidated petition
for review.
I. BACKGROUND
Petitioner is an ethnic Tamil from the Northern
Province of Sri Lanka who is in his late 20s. Since he was
a child, his homeland has been the scene of an often-
brutal armed conflict between the Sri Lankan govern-
ment and the Liberation Tigers of the Tamil Eelam (LTTE),
a rebel group that regularly committed atrocities, which
resulted in its being designated a terrorist organization
by the U.S. State Department.
As a young, ethnic Tamil male, Petitioner was the
subject of attention, stops and questioning by the Sri
Lankan forces. In 1997, Petitioner and his parents were
detained at a refugee camp for four months and were
released only after his uncle posted a bond. Between 2002
and 2005, he was arrested and detained during round-ups
of Tamils in his area over 15 times. In each of these inci-
dents, the police both questioned him and presented him
to masked informants in order to determine whether he
was a Tiger militant or supporter. Each time they released
him after a short detention. He was never beaten or
physically injured.
In 2005, when Petitioner began working for the German
NGO, Sewalanka, as a monitoring officer overseeing
50 villages, he traveled extensively in the Tamil-controlled
region. He was stopped by security forces daily and
detained for up to two hours while he assured them that
4 Nos. 08-2644 & 08-3777
he was not a supporter or member of the LTTE. In the
course of his duties with the NGO, Petitioner traveled to
India for training. India admitted him based on a group
visa and Sri Lanka readmitted him based on his own
identification. While in India, Petitioner did not seek or
formally inquire about asylum. In August 2006, Petitioner
quit the NGO due to harassment and threats from the
authorities and personal fears for his safety. He began
working for his father’s construction business.
In 2007, the Sri Lankan criminal-investigation depart-
ment arrested Petitioner, took him into custody and
brought him to a camp. There they interrogated him again
about his ties to the LTTE and threatened to kill him.
Petitioner stated that he believes he was not killed at the
time because his family knew of his arrest and pleaded
for his release.
In August 2007, Petitioner obtained false Indian docu-
mentation and fled Sri Lanka via Malaysia and Japan,
arriving at Chicago’s O’Hare Airport.
Under the Immigration and Nationality Act (INA), the
Department of Homeland Security (DHS) charged Peti-
tioner with removal based on his inadmissibility under
Section 212(a)(6)(C)(i) (entering the United States through
fraud or misrepresentation of material fact) and Section
212(a)(7)(A)(i)(I) (an immigrant not in possession of a
valid visa). 8 U.S.C. § 1182. Initially Petitioner conceded
to his removability on both charges, but was later
allowed to withdraw his concession of the fraud charge.
Petitioner immediately requested withholding of removal
pursuant to Section 241(b)(3) of the INA, asylum in the
Nos. 08-2644 & 08-3777 5
United States pursuant to Section 208 of the INA and
relief under the CAT. See 8 U.S.C. § 1227; 8 U.S.C. § 1158;
8 C.F.R. §§ 1208.16 et seq.
On January 17, 2008, the IJ issued a decision denying
Petitioner’s asylum request on the merits. Petitioner
timely appealed to the BIA, which adopted and affirmed
the IJ decision on June 5, 2008. Pathmakanthan peti-
tions this court for review of that order. Docket No. 08-
2644. On September 26, 2008, Petitioner filed a motion
with the BIA, requesting that the Board reopen the
earlier matter due to a change in country conditions.
On October 23, 2008, the BIA denied this request, citing
the Petitioner’s failure either to file within 90 days of the
prior decision or to provide sufficient evidence that
the circumstances had changed in Sri Lanka. See 8 C.F.R.
§ 1003.2(c)(3)(ii). Pathmakanthan also petitions for
review of the BIA’s refusal to reopen the matter. Docket
No. 08-3777. We have consolidated both matters.
II. DISCUSSION
Under 8 U.S.C. § 1158, the Attorney General or Secretary
of Homeland Security may grant asylum to aliens who
qualify as refugees as defined in 8 U.S.C. § 1101(42)(A).
In order to qualify as a refugee, an alien needs to demon-
strate two things. First, he must show that he has been
the victim of past persecution or has a well-founded fear
of future persecution. § 1101(42)(A). Second, he must
show that the persecution is on account of race, religion,
nationality, membership in a particular social group or
6 Nos. 08-2644 & 08-3777
political opinion. Id. Under the CAT, an alien may be
withheld from removal if she establishes that it is more
likely than not that she would be tortured if removed to
the proposed country of removal. 8 C.F.R. § 1208.16(c)(2).
The CAT standard is more stringent than the one for
asylum. See Selimi v. Ashcroft, 360 F.3d 736, 741 (7th
Cir. 2004).
We treat the BIA’s adoption of the IJ decision as a
final agency decision, and we reverse only if the
evidence compels a reasonable fact finder to another
conclusion. Ursachi v. INS, 296 F.3d 592, 594 (7th Cir. 2002);
Pop v. INS, 270 F.3d 527, 529 (7th Cir. 2001). Where, as
here, the BIA merely supplements the IJ’s opinion, that
opinion, as supplemented by the Board, forms the basis
for review. See Moab v. Gonzales, 500 F.3d 656, 659 (7th
Cir. 2007). In conducting our review, we will “inquire
only whether the Board’s decision has the support of
‘reasonable, substantial, and probative evidence on the
record considered as a whole.’ ” Toptchev v. INS, 295
F.3d 714, 720 (7th Cir. 2002) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). We review the BIA’s
denial of the motion to reopen for abuse of discretion. INS
v. Abudu, 485 U.S. 94, 107 (1988). We review matters of
law, including claims of denial of due process, de novo.
Shmyhelskyy v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007).
A. Substantial Evidence Supports the IJ’s Determination
That Petitioner Did Not Suffer Past Persecution
Petitioner’s life story is compelling. Police and military
forces have detained him, interrogated him and even
Nos. 08-2644 & 08-3777 7
once threatened him with death while he was merely
trying to go about his business. He tells of his family’s
going into hiding and giving up their business after a
threat, and of his entire family’s being detained for
months in a refugee camp, only to be released when his
uncle posted a bond.1
A determinative definition of “persecution” has proven
elusive. There is no statutory definition; nor has the
BIA provided one. See, e.g., Chen v. Gonzales, 457 F.3d 670,
674 (7th Cir. 2006). However, we have characterized
persecution as “punishment or the infliction of harm for
political, religious, or other reasons that this country
does not recognize as legitimate.” Boci v. Gonzales, 473
F.3d 762, 766 (7th Cir. 2007) (quoting Dandan v. Ashcroft,
339 F.3d 567, 573 (7th Cir. 2003)). Persecution includes
threats to life or freedom as well as other violence or
abuse, yet it need not necessarily be life-threatening. See
Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir. 2005);
Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1990). But
“[p]ersecution involves harms that go beyond mere
harassment; it results from more than simply ‘unpleasant
or even dangerous conditions in [the applicant’s] home
country.’ ” Ahmed v. Gonzales, 467 F.3d 669, 673 (7th Cir.
2006) (quoting Nakibuka v. Gonzales, 421 F.3d 473, 476
(7th Cir. 2005)).
Petitioner certainly suffered harassment when the
police rounded him up with others some 15 times in
3 years and subjected him to interrogation and detention.
Each time, and quite understandably, he worried that
1
We note that the IJ deemed Petitioner’s testimony credible.
8 Nos. 08-2644 & 08-3777
the masked informant whose job it was to identify
Tiger rebels would mistakenly mark him for punish-
ment or worse. When he was employed by the NGO,
Petitioner was stopped almost daily at checkpoints and
questioned. These stops sometimes lasted up to two
hours and were undoubtedly intimidating and harassing.
Since we cannot know the full details of Pathmakanthan’s
experiences in Sri Lanka, his own behavior can be infor-
mative. It is important that Petitioner left the country
for India during this time. His return to Sri Lanka from
India is telling. Had Petitioner truly been in fear for his
life, or otherwise experienced persecution at the hands
of the Sri Lankan government, the prospect of returning
home would surely have been far from attractive. That
he chose not to seek asylum in India suggests that he
not been subject to persecution at that time. His being
subject to repeated stops and detentions was surely
anxiety-inducing and harassing. But it does not in
itself amount to past persecution.
We must consider the matter of the death threat made
against Petitioner during the Criminal Investigation
Department (CID) detention, which occurred after Peti-
tioner’s return from India. In May 2007, Pathmakanthan
was riding his motorbike when the CID stopped him,
arrested him and took him to a detention facility. The
CID held him at the camp for ten hours during which
it threatened his life. Petitioner’s detention was wit-
nessed by his family’s neighbors, and later that evening
he was released when his parents came to the camp and
demanded his release. Petitioner asserts that the public
nature of his arrest was the only reason he was threatened
Nos. 08-2644 & 08-3777 9
rather than actually killed at the camp. He contends that,
had his parents not arrived and insisted on his release, the
CID may have taken his life. Twelve years earlier, Peti-
tioner’s brother died, and while the government main-
tained that he was killed by a land mine, Petitioner be-
lieved that it was at the hands of the government. Once
threatened, he feared a similar fate for himself. After his
release from the camp, Petitioner hid for three months.
In response to an apparently unrelated threat to Peti-
tioner’s father, his father had to close his construction
business and his family had to pay a bribe to a pro-govern-
ment group.
Threats alone, and particularly threats of death, can
amount to persecution under certain circumstances. In
Mitev, we considered the possibility that living under
threat of death by secret government forces might rise
to this level. Mitev, 67 F.3d at 1331. To live, day after
day, knowing that government forces might secretly
arrest and execute you is itself a form of mental anguish
that can constitute persecution. Yet, logic dictates that
for an unfulfilled threat to rise to the level of persecution,
it must be something extraordinarily ominous. It cannot
simply be a threat of death that, in context, is just a
matter of words. In Mitev, while we noted the potential
for threat-based persecution by the secret police, we
denied the petitioner’s appeal because his threats came
from co-workers unhappy with his political activism, not
the government itself. Id. at 1328-29. Even threats from
police did not amount to past persecution when they
were not acted on and, in context, were viewed as less
than likely to be fulfilled. Boykov v. INS, 109 F.3d 413, 416
10 Nos. 08-2644 & 08-3777
(7th Cir. 1997). “In the vast majority of cases . . . mere
threats will not, in and of themselves, compel a finding
of past persecution.” Id.Petitioner has not presented evidence that he suffered
past persecution due to the threat alone. We note that
he took the threat seriously, both because he says that
he did (and the IJ found him credible) and because he
went into hiding for three months after it. Yet, if the
government wanted to kill Petitioner, it seems unlikely
that it would have released him later that evening at the
insistence of his parents. Petitioner contends that the CID
did not execute him in the camp because there were
witnesses to his arrest. We cannot know the inner
workings of the Sri Lankan CID or whether it would
truly be motivated to spare a life under these circum-
stances, yet it seems logical that, even if the presence of a
witness thwarted the killing, the CID would not release
someone they wanted dead. One would expect that the
police would hold such a person pending some sort of
charge or investigation. In saying this, we do not
say that the threat against Petitioner was not serious,
frightening or real. Nevertheless, given the record, the
IJ’s determination that Pathmakanthan did not experi-
ence past persecution is supported by substantial evi-
dence. The context of the single death threat to which he
was subject is not so severe that no reasonable person
could fail to find that he was subject to persecution.
Toptchev, 295 F.3d at 720.
Nos. 08-2644 & 08-3777 11
B. Substantial Evidence Supports the IJ’s Determination
That Petitioner Does Not Have a Well-Founded Fear of
Future Persecution
Past persecution leads to a rebuttable presumption of
future persecution. Begzatowski v. INS, 278 F.3d 665, 669
(7th Cir. 2002). In the present case, though, where Peti-
tioner has not established past persecution, he may still
demonstrate a well-founded fear of future persecution.
Because the IJ found him to be credible, we take Petitioner
at his word that he has a subjective fear of being perse-
cuted upon his return to Sri Lanka. But a subjective fear
is not enough in itself; rather, an asylum seeker must
also demonstrate that the fear of future persecution
is objectively reasonable. See Ayele v. Holder, 564 F.3d
862, 868 (7th Cir. 2009).
We address two possible iterations of future persecu-
tion. First, even though living under the death threat did
not amount to past persecution, we will consider whether
the threat is sufficiently grave to give rise to a well-
founded fear of future persecution. Second, we will
consider petitioner’s claims of persecution in general
against young Tamil males from the Northern Province
of Sri Lanka.
Taking the former question first, we agree with the IJ
that the single death threat made to to Pathmakanthan
does not render his fear of future persecution objectively
reasonable. While any threat of death is serious, we do
not believe that this particular threat creates a well-
founded fear of future persecution because (1) the threat
was an isolated incident, not part of a series of ongoing
12 Nos. 08-2644 & 08-3777
threats, (2) the Petitioner was released within hours and
without having suffered any physical harm, and (to a
lesser degree) (3) to the extent the threat may have been
based on Petitioner’s perceived membership in the Tamil
Tigers, that group’s military defeat at the hands of
the government in 2009 could conceivably obviate the
motivation that underlay the single threat to which
Pathmakanthan was subject. See U.S. S TATE D EP’T, 2009
C OUNTRY R EPORTS ON H UMAN R IGHTS P RACTICES: S RI
L ANKA (noting that the government declared victory over
the Tigers on May 18, 2009); Balogun v. Ashcroft, 374
F.3d 492, 506-07 (7th Cir. 2004) (holding that we may
take judicial notice of country conditions documented
in State Department reports).
Petitioner contends that the Sri Lankan government has
an ongoing pattern and practice of persecuting young
Tamil males from the Northern Province and that he
would be subject to this persecution as a member of this
ethnic group. We acknowledge that persecution can be
directed at an entire subset of a population, and
asylum can be granted on such a basis. See 8 C.F.R.
§ 208.13(b)(2)(iii). Yet, this provision is very limited and
we hold such claims to a high standard. “There must be
a ‘systematic, pervasive, or organized’ effort to kill,
imprison, or severely injure members of the protected
group, and this effort must be perpetrated or tolerated
by state actors.” Mitreva v. Gonzales, 417 F.3d 761, 765
(7th Cir. 2005); see also Mitev, 67 F.3d at 1330 (“A more
generous interpretation of ‘persecution’ would ‘qualify
the entire population of many war-torn nations for asy-
lum’ and thus make congressionally-imposed limitations
Nos. 08-2644 & 08-3777 13
on immigration virtually meaningless.” Id. (quoting
Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir. 1992)).
“Consequently, conditions of political upheaval which
affect the populace as a whole or in large part are gen-
erally insufficient to establish eligibility for asylum.”
Sivaainkaran, 972 F.2d at 165; see also Kaharudin v. Gonzales,
500 F.3d 619, 623-25 (7th Cir. 2007).
Petitioner has presented anecdotal evidence of harass-
ment by Sri Lankan government authorities and other
evidence such as U.S. State Department reports. This
evidence demonstrates a harsh, battle-torn environment,
in which the Tamils as a group are often ill-treated. Never-
theless, we agree with the IJ that many of the deten-
tions and interrogations described by Pathmakanthan
may have been necessary evils for a government en-
trenched in a ferocious civil war with a terrorist group.
And despite the fact that the State Department’s 2009
report on Sri Lanka paints a grim picture for Tamils
generally, it does not necessarily demonstrate that the
Sri Lankan government persecutes young Tamil males.
What Petitioner has demonstrated does not rise to the
high standard we set for considering entire ethnicities (or
even large subsets of them) eligible for blanket asylum.2
2
In 2009 we made a determination that the practices of the Sri
Lankan government did not rise to a pattern or practice of
persecution of ethnic Tamils. Krishnapillai v. Holder, 563 F.3d 606(7th Cir. 2009). Petitioner in this case has relied on much of the
same background information. Although circumstances for
male Tamils in Sri Lanka may have changed since the Tigers’
military defeat, any argument as to changed country conditions
(continued...)
14 Nos. 08-2644 & 08-3777
Thus, substantial evidence supports the BIA and IJ’s
finding that Petitioner has not established past persecu-
tion or a well-founded fear of future persecution.
C. Petitioner Is Not Entitled to Relief Under the Convention
Against Torture
The CAT standard presents a higher threshold than the
asylum standard. Selimi v. Ashcroft, 360 F.3d 736, 741 (7th
Cir. 2004). Because Petitioner has not met the burden to
establish asylum, he has not met the burden for
protection under the CAT. See, e.g., Ishitiaq v. Holder, 578
F.3d 712, 718 (7th Cir. 2009). Petitioner contends that
he will be subject to torture as a failed asylum seeker
returning to Sri Lanka, even if he has not shown a
pattern of torture that would otherwise afford protec-
tion under the CAT. Nevertheless, he has not met the
burden of showing that he is more likely than not to be
tortured upon his return because of his status as a
failed asylum seeker, or for any other reason.
D. The BIA Did Not Deny Petitioner Due Process of Law
Petitioner claims that the BIA confused his case with
another and therefore denied him due process of law.
There are a few instances where the BIA fumbled the
language, most notably calling Petitioner’s request an
“adjustment of status” rather than “withholding of re-
(...continued)
should be presented to the BIA at the first instance. 8 C.F.R.
§ 1003.2(c)(3)(ii).
Nos. 08-2644 & 08-3777 15
moval.” While this raises the possibility of confusion, a
reading of the entire decision makes it apparent that
this was a semantic error and that the BIA did fully
consider Petitioner’s unique circumstances. This error
was therefore harmless. Likewise, the BIA’s failure to
expound on the fact that Petitioner would be a failed
asylum seeker returning to Sri Lanka does not mean it
did not consider it; denying asylum obviously results in
his being a failed asylum seeker. The BIA did not deny
Petitioner’s due-process rights.
E. The BIA Did Not Abuse its Discretion in Denying Peti-
tioner’s Motion to Reopen
On September 26, 2008, Petitioner filed a motion to
reopen with the BIA, arguing that conditions in Sri Lanka
had changed in light of the breakdown of a cease-fire
between the Tigers and Sri Lankan government. In
support of his motion, he submitted the 2007 Country
Report on Human Rights Practices, amongst many other
documents. On October 23, 2008, the BIA denied the
motion on the grounds that it was untimely filed and
the evidence submitted in support was not sufficiently
strong to show changed country conditions for the
purpose of 8 C.F.R. § 1003.2(c)(3)(ii). Pathmakanthan has
also petitioned for review of this order of the BIA.
We note the government’s November 3, 2008, motion
to dismiss for lack of jurisdiction at the outset. This
motion will be denied in light of the Supreme Court’s
decision in Kucana v. Holder, which held that federal
courts have jurisdiction to review administrative deci-
16 Nos. 08-2644 & 08-3777
sions to reopen removal proceedings. 130 S. Ct. 827, 840
(2010).
We review Pathmakanthan’s petition for review of the
Board’s denial of his motion to reopen for abuse of dis-
cretion. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007).
We deny the petition because the decision of the BIA
was supported by rational explanation. Pelinkovic v.
Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004). Nor did it
inexplicably depart from established policies or rest on
an impermissible basis. Id. Specifically, the BIA correctly
observed that the information contained in the 2007
Country Report predated the IJ’s January 2008 decision.
The Board also noted that the materials submitted by
Pathmakanthan revealed that fighting had been ongoing
since 2006, notwithstanding the cease-fire, so the
official end of the truce in 2008 was not sufficient to
show changed country conditions. Nor did the materials
reveal that conditions for Tamils in the country had
worsened due to the end of the cease-fire. Therefore, the
BIA did not abuse its discretion in denying Petitioner’s
motion to reopen.
Nevertheless, we note with some concern the State
Department’s 2009 report on Sri Lanka, which paints a
grim picture for Tamils generally and young male Tamils
in particular. 2009 C OUNTRY R EPORTS: S RI L ANKA
(observing that “the overwhelming majority of victims of
human rights violations . . . were young male Tamils” and
noting that “[i]n July the UN High Commissioner for
Refugees (UNHCR) reaffirmed his recommendation
that Tamils from and in the north be eligible for asylum
Nos. 08-2644 & 08-3777 17
status given the human rights situation in the country”).
Given that the situation in Sri Lanka may have changed
markedly since Pathmakanthan filed his last motion to
reopen, he may wish to file another motion to reopen
with the BIA in light of changed country conditions
since the time of the hearing. See 8 C.F.R. § 1003.2(c)(3)(ii);
Asani v. INS, 154 F.3d 719, 725 n.2 (7th Cir. 1998).
III. CONCLUSION
For the foregoing reasons, the government’s motion to
dismiss for lack of jurisdiction and the consolidated
petitions for review are
D ENIED.
7-16-10