K. Perinpanathan v. INS ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1012
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Kirupanathan Perinpanathan, *
*
Petitioner, *
* On Petition for Review of a
v. * Decision of the Board of
* Immigration Appeals.
Immigration and Naturalization Service; *
John Ashcroft, United States Attorney *
General, *
*
Respondents. *
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Submitted: October 9, 2002
Filed: November 12, 2002
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Before HANSEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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HEANEY, Circuit Judge.
This is an immigration case in which the petitioner, Kirupanathan
Perinpanathan, seeks review of a final order of the Board of Immigration Appeals
(BIA), which found that Perinpanathan did not qualify for asylum, withholding of
removal, or relief under the Convention Against Torture. The issues before us are:
(1) whether substantial evidence supports the BIA’s conclusion that the petitioner was
not credible; and (2) whether substantial evidence supports the BIA’s conclusion that
the petitioner failed to show that in the event he is removed to Sri Lanka, it is more
likely than not that he would be tortured by a government agent. We affirm.
I. Background
Perinpanathan is a native and citizen of Sri Lanka. In April 2000, he was
apprehended by the Immigration and Naturalization Service when he attempted to
enter the United States at the Minneapolis/St. Paul International Airport using a
falsified Canadian passport. He was interviewed under oath by an immigration
officer at the airport with the aid of an interpreter. He stated that he was a member
of the Liberation Tigers of Tamil Eelam (LTTE) and that he had participated in its
military activities in Sri Lanka because the LTTE was an organization that “fights for
the Tamil people.” He indicated that he identified with the LTTE by stating “[w]e
fight against the Singhalese Army,” and that he “went to the front to take the
wounded from the war.” He did not imply that he had been coerced by the LTTE in
his decision to join the group.
Perinpanathan retained an attorney by May 2, 2000, when he had his second
interview with an immigration officer for asylum pre-screening. During that
interview, petitioner claimed the LTTE had coerced him into helping the group under
threat of death. He also testified that the Sri Lankan government had detained and
beat him. When asked about the inconsistencies in his testimony, the petitioner
denied that he had changed his story, and attributed any differences to translation
errors. The asylum officer referred the petitioner to immigration court for a full
hearing on his claims for asylum, withholding of removal, and relief under the
Convention Against Torture.
On May 15, 2000, in connection with the referral for a full hearing, the INS
served Perinpanathan with a Notice to Appear, charging him with removability under
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8 U.S.C. § 1182 (a)(6)(C)(i), as an alien who sought to obtain admission into the
United States by fraud or willful misrepresentation of a material fact. Perinpanathan
appeared at a hearing before an immigration judge in June 2000 and conceded that
he was removable as charged. He filed an application for asylum and withholding of
removal.
A hearing on the merits of the application was held in August 2000. The
presiding immigration judge concluded that the petitioner had failed to show that he
was qualified for asylum or withholding of removal because he was not credible. The
immigration judge believed that petitioner had changed the facts of his original
admission, in which he stated that he had voluntarily assisted the LTTE, because he
later learned that his affiliation with the LTTE would bar him from relief. The judge
also determined that even if the petitioner had shown that he qualified for asylum, he
would have denied Perinpanathan relief because he had attempted to gain admission
to the United States by using a falsified passport, and because he had traveled through
several other countries without applying for asylum in any of those countries.
Petitioner appealed to the BIA, which adopted most of the immigration judge’s
credibility findings. It remanded the case to the immigration judge to develop the
record regarding the petitioner’s claim under the Convention Against Torture, and
specifically, to examine whether “any young Tamil has a good reason to fear torture.”
In a July 2001 decision, the immigration judge held that Perinpanathan had not shown
by a preponderance of the evidence that he would be tortured by government officials
if he returned to Sri Lanka. The immigration judge relied on testimony and extensive
country condition reports in the record in reaching this conclusion. The petitioner
again appealed to the BIA, which upheld the immigration judge’s decision.
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II. Discussion
The BIA’s determination that an alien is not eligible for asylum or withholding
of deportation is reviewed for substantial evidence, and may not be overturned unless
“the evidence was so compelling that no reasonable fact finder could fail to find the
requisite fear of persecution.” Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997).
“Under this standard, this court must determine whether, based on the record
considered as a whole, the BIA’s decision was supported by reasonable, substantial,
and probative evidence.” Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir. 1999)
(citing Hajiana-Niroumand v. INS, 26 F.3d 832, 838 (8th Cir. 1994)). This court
defers to an immigration judge’s credibility finding where the finding is “supported
by a specific, cogent reason for disbelief.” Ghasemimehr v. INS, 7 F.3d 1389, 1391
(8th Cir. 1993) (citing Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th
Cir.1992)); see also Estrada v. INS, 775 F.2d 1018, 1021 (10th Cir.1985) ("because
the immigration judge is in the best position to evaluate an alien's testimony, his or
her credibility determinations are to be given much weight").
Under the Immigration and Nationality Act, the Attorney General has the
discretion to grant asylum to a refugee, defined as a person who is unable or
unwilling to return home “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a political social
group, or political opinion.” 8 U.S.C. §§ 1158(b)(1) and 1101(a)(42)(A). “In most
cases, the critical inquiry is whether the applicant has a well-founded fear of future
persecution upon return to his or her country.” Kratchmarov, 172 F.3d at 553(citation omitted). The applicant must demonstrate a fear that is subjectively genuine
and objectively reasonable. Id. For an alien's fear of persecution to be objectively
reasonable, the fear must have basis in reality and must be neither irrational nor so
speculative or general as to lack credibility. 8 U.S.C. § 1101(a)(42)(A). “The
applicant is entitled to a presumption of a well-founded fear of future persecution if
past persecution is established, and the burden then shifts to the INS to show by a
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preponderance of the evidence that ‘conditions in the applicant’s country . . . have
changed to such an extent that the applicant no longer has a well-founded fear of
being persecuted if he or she were to return.’” Id., citing Cigaran v. Heston, 159 F.3d
355, 357 (8th Cir. 1998).
Perinpanathan has presented the following evidence to support his request for
asylum: He claims that he was harmed by the Sri Lankan Army when troops rounded
people up in his village to determine if anyone was an LTTE member or supporter;
that his father was shot and killed by the Sri Lankan army in front of his mother and
brother; that he was detained and beaten repeatedly by the Sri Lankan government;
and that he was forced to assist the LTTE. When he refused to help the LTTE in May
1997, the organization tore up his National Identity card. He claims that if he returns
to Sri Lanka, a government agent will take Perinpanathan to “the fourth floor,”
apparently the location where Tamils are tortured.
Petitioner has failed to provide documentary evidence to support his identity,
race, nationality, membership in a particular social group, and political opinion. He
has not presented the temporary identity card issued to him in Sri Lanka, his father’s
death certificate, nor his Sri Lankan passport, documents he claimed to have had in
his possession. As a result, he has also failed to show that his fear of persecution is
objectively reasonable. Perinpanathan’s conflicting testimony regarding his
involvement with the LTTE, whether he and family members had been beaten and
tortured by government forces, and whether he knew he was traveling illegally to the
United States raises questions about, and undermines, his credibility. His failure to
authenticate any of his testimony in general further weakens his case. We are
required to give the immigration judge’s credibility finding “much weight.” Hajiani-
Niroumand v. INS, 26 F.3d 832, 838 (8th Cir. 1994). We affirm the BIA’s decision
that the substantial evidence shows that petitioner is lacking in credibility.
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Furthermore, if Perinpanathan provided “material support” to the LTTE, which
is listed by the Department of State as a foreign terrorist organization, he is barred
from claiming asylum and is therefore removable. See 8 U.S.C. §
1158(b)(2)(A)(v)(2000) (alien who is inadmissible or removable due to terrorist
activity is ineligible for asylum); 8 U.S.C. § 1182(a)(3)(B)(i)(I)(2000) (alien who has
engaged in a terrorist activity is inadmissible); 8 U.S.C. § 1182(a)(3)(iii)(2000)
(“engage in terrorist activity” includes any act of terrorist activity or act that provides
material support to any terrorist organization); People’s Mojehedin Organization of
Iran v. Albright, 182 F.3d 17, 24-25 (D.C.Cir. 1999) (holding that LTTE was properly
designated as a foreign terrorist organization under 8 U.S.C. § 1189); 67 Fed. Reg.
12633 (Mar. 19, 2002) (designation of LTTE as terrorist organization subject to
economic sanctions pursuant to executive order 13224 of September 23, 2001). We
agree with the BIA that the substantial evidence shows that petitioner voluntarily
participated in LTTE activities, and because it is a terrorist organization, he is barred
from claiming asylum relief.
The inadequate and contradictory nature of petitioner's testimony supports the
finding that such testimony lacks credibility. Moreover, in light of petitioner's
involvement with the LTTE, the BIA properly denied petitioner asylum as a matter
of discretion, even if petitioner had proven a well-founded fear of persecution.
Therefore, we conclude the BIA did not abuse its discretion in denying asylum.
The burden of proof is on the applicant to establish eligibility for withholding
of removal under the Convention. 8 C.F.R. § 208.16(c)(2). An applicant for
protection under the Convention must establish that it is more likely than not that he
or she would be tortured if returned to the proposed country of removal. Id. In
determining whether an applicant is entitled to protection under the Convention, all
evidence relevant to the possibility of future torture in the country of removal shall
be considered, including: past torture inflicted upon the applicant; evidence that the
applicant could relocate to another part of the country where he would not be
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subjected to torture; mass violations of human rights; and other relevant information.
8 C.F.R. § 208.16(c)(3). According to torture convention regulations, the torture
must be “inflicted by or at the instigation of or with the consent or acquiescence of
a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a).
The immigration judge received and considered extensive country condition1
information in its consideration of whether young Tamils such as Perinpanathan are
in danger of torture by the government forces in Sri Lanka should they return to Sri
Lanka. The immigration judge and the BIA relied on a letter from the State
Department that specifically addressed whether failed asylum seekers were vulnerable
to torture upon their return to Sri Lanka. The letter concluded that several countries
and the UNHCR have monitored the return of thousands of Sri Lankans who have
sought asylum, and that there is no evidence that the returnees have been tortured.
Furthermore, petitioner cannot successfully argue that he fears he will be
tortured by the LTTE under the Convention Against Torture because the LTTE is an
illegal terrorist organization, and its participants cannot be considered government
officials. Finally, Perinpanathan’s lack of credibility and failure to document reasons
why he believes he will be tortured by government officials if returned to Sri Lanka
eliminate his eligibility for relief under Article 3 of the Convention Against Torture.
The BIA affirmed the immigration judge’s conclusion that:
1
Department of State country condition reports are persuasive authority for
determining whether an asylum-seeker has a well-founded fear of persecution. See
Kratchmarov, 172 F.3d 551 at 553; Kazlauskas v. Immigration and Naturalization
Service, 46 F.3d 902, 906 (9th Cir. 1995) (stating that the country condition reports
are “the most appropriate and perhaps the best resource” for “information on political
situations in foreign nations”)(quoting Rojas v. Immigration and Naturalization
Service, 937 F.2d 186, 190 n.1 (5th Cir. 1991).
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The respondent may have a subjective fear of being harmed amidst the
general civil strife that is present in Sri Lanka today; however, the
respondent has failed to show that it is more likely than not that he
would be tortured by the government or someone acting on behalf of the
government if he were returned to Sri Lanka. Furthermore, the
respondent has failed to show he is unable to relocate to another part of
Sri Lanka where it would be safer for him. Also, since the Court has
already found the respondent to be not credible, the Court will not
disturb the credibility finding and will again deny his application for
relief under the Convention Against Torture.
In the Matter of Kirupanathan Perinpanathan, File No. A77 866 545, Supplemental
Written Decision of the Immigration Judge, at 8, July 3, 2001. The BIA explained,
“[i]n considering the totality of the evidence, the Board cannot exclude the possibility
that the respondent will be mistreated if he returns to Sri Lanka. We are unable to
conclude, however, that it is more likely than not that he will be tortured if he returns
there.” In re Perinpanathan Kirupanathan in Removal Proceedings, Board of
Immigration Appeals Decision, December 17, 2001 at 2.
III. Conclusion
For the reasons cited above, we affirm the BIA’s decision that the substantial
evidence shows that Perinpanathan is not credible and that he failed to show that he
is eligible for relief under the Convention Against Torture.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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