Suntharalinkam v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARANGESAN SUNTHARALINKAM, 
Petitioner, No. 04-70258
v.
 Agency No.
A79-784-825
ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 10, 2006—Pasadena, California
Filed August 18, 2006
Before: Kim McLane Wardlaw and Johnnie B. Rawlinson,
Circuit Judges, and Richard F. Cebull,* District Judge.
Opinion by Judge Wardlaw;
Dissent by Judge Rawlinson
*The Honorable Richard F. Cebull, United States District Judge for the
District of Montana, sitting by designation.
9929
SUNTHARALINKAM v. GONZALES 9933
COUNSEL
Visuvanathan Rudrakumaran, Law Office of Visuvanathan
Rudrakumaran, New York, New York, for the petitioner.
Genevieve Holm (argued) and Cynthia Stone (briefed), U.S.
Dept. of Justice, Civil Division, Office of Immigration Litiga-
tion, Washington, D.C., for the respondent. Also on brief for
the respondent, Lester M. Joseph and Michael E. Davitt, U.S.
Dept. of Justice, Criminal Division, Washington, D.C.
OPINION
WARDLAW, Circuit Judge:
Arangesan Suntharalinkam’s petition for review lies at the
intersection of the immigration and counterterrorism laws.
Suntharalinkam, a 27-year-old male from northern Sri Lanka,
petitions for review of the Board of Immigration Appeals’
(BIA) summary affirmance of the immigration judge’s (IJ)
denial of Suntharalinkam’s application for asylum, withhold-
ing of removal, and relief under the Convention Against Tor-
ture (CAT), 8 C.F.R. §§ 1208.16-1208.18. Suntharalinkam
9934 SUNTHARALINKAM v. GONZALES
claims that he was persecuted by the Sri Lankan government
because of its incorrect suspicion that he was a member of the
Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), a
terrorist organization at war with the Sri Lankan government;
the government, in turn, claims that Suntharalinkam was
never persecuted by the government, and is in fact a suspected
Tamil Tiger who seeks to enter the United States to further
that organization’s terrorist activities.
The IJ, apparently convinced by the government’s hypothe-
sis, denied relief, but not on any legal ground related to terror-
ism. Instead, the IJ veiled his concerns about
Suntharalinkam’s terrorist ties, denying his application for
relief based on a contrived adverse credibility finding. The
government urges us to ignore the tenuous foundation for the
adverse credibility finding, asking us to uphold it as supported
by substantial evidence despite the IJ’s own statements that
the purported “discrepancies” in Suntharalinkam’s story are
“minor” and individually could not support an adverse credi-
bility finding. We agree with the IJ that none of the supposed
“discrepancies” individually provides an adequate basis for
his finding. Given that none individually supports the adverse
credibility determination, however, the IJ incorrectly found
that the “discrepancies” cumulatively support the adverse
credibility finding. Although we have some sympathy for the
IJ’s and the government’s suspicion that Petitioner might be
a member of a terrorist organization (his tale of persecution
by the Sri Lankan government is equally consistent with
membership in the Tamil Tigers as it is with merely being
suspected of membership), as judges, we are charged with fol-
lowing the law—not our suspicions—and we must, therefore,
grant Suntharalinkam’s petition and remand to the BIA for
consideration of the remaining elements of Suntharalinkam’s
claims. Having said that, we note that the Department of
Homeland Security (DHS) has ample authority to deny admis-
sion to a suspected terrorist under both immigration and crim-
inal laws. We therefore remand for further proceedings.
SUNTHARALINKAM v. GONZALES 9935
I.
Suntharalinkam was issued a notice to appear in November
2001 after attempting to enter the United States the previous
month using a counterfeit document showing that he was
entering the country with a nonimmigrant visa. He conceded
both inadmissibility and removability and applied for asylum,
withholding of removal, and relief under the Convention
Against Torture (CAT), 8 C.F.R. §§ 1208.16-1208.18, claim-
ing that he had been targeted by the government as a result of
its false accusation that he was a member of the Tamil Tigers.
Suntharalinkam testified before the IJ that he had suffered
abuse at the hands of the Sri Lankan army on three occasions.
First, on January 19, 2000, several members of the army
entered his home, where Suntharalinkam was with his mother.
They assaulted him while his mother was locked in another
room. They tied him up, threw him into their military vehicle,
and drove him to a military camp, where he was locked in a
small room. His detention in the camp lasted for some sixty
days. During that time, Suntharalinkam testified, he was
stripped and beaten, burned with cigarettes, hung upside down
with his head submerged in water, and beaten with an electri-
cal wire. Suntharalinkam showed the IJ scars on his legs that
he said were the result of the cigarette burns and electrical
wire. He was released after his mother paid a bribe of ten
thousand rupees. Suntharalinkam was hospitalized for the
next ten days to receive treatment for the injuries he sustained
while he was in detention.
Second, Suntharalinkam was detained in August 2000. In
the middle of the night, approximately twenty soldiers arrived
at his home. Of those, five entered his home and arrested him.
He was subsequently detained for five days. Suntharalinkam’s
asylum application omitted reference to this detention. At the
hearing before the IJ, Suntharalinkam testified that his attor-
ney “may have missed it.”
9936 SUNTHARALINKAM v. GONZALES
Third, in May 2001, when Suntharalinkam was bringing his
sister home from school, they were stopped by ten soldiers
who asked them for identification and passports. The soldiers
asked Suntharalinkam and his sister to accompany them to a
camp. Suntharalinkam responded that he was working, and
that his sister was a student, but the soldiers accused Suntha-
ralinkam of being a Tamil Tiger and forced them to go to the
camp. Suntharalinkam’s sister was released the day after the
arrest as a result of her school principal’s intervention. Sun-
tharalinkam, however, was detained for seventy days. His
mother paid another bribe to secure his release. After this
third period of detention, Suntharalinkam decided to leave Sri
Lanka to avoid further abuse by the Sri Lankan army. He first
went to Colombo for ten days, where he made travel arrange-
ments to leave the country.
In support of his application for asylum, withholding, and
CAT relief, Suntharalinkam also submitted United States
Department of State reports on Sri Lanka for the years 1998
to 2001, which documented large-scale abuses against Tamils
by the Sri Lankan government, arbitrary arrests, and torture
committed in detention centers. He also provided numerous
reports by nongovernmental organizations and news media
documenting instances of abuses against Tamils accused of
membership in the Tamil Tigers. The government submitted
the 2002 State Department country report, which noted that
while arbitrary arrest, detention, and targeting of Tamils had
been problems in the past, there were no reports of any such
abuses occurring during 2002.
In addition, at the hearing before the IJ, the government
presented the testimony by stipulation and written memoranda
of Senior Special Agent Steven W. Schultz of the Department
of Homeland Security (DHS) Joint Terrorism Task Force.
Schultz’s report was based on conclusions he made about the
group of twenty-three Sri Lankan individuals with whom Sun-
tharalinkam had traveled and attempted United States entry.
Schultz speculated that the members of the group were not
SUNTHARALINKAM v. GONZALES 9937
being persecuted by the Sri Lankan army, as each of them
claimed, but instead were members of the Tamil Tigers who
were being smuggled in by that group, which relies on alien
smuggling as a primary source of income. Agent Schultz
noted that the Tamil Tigers have been designated a foreign
terrorist organization by the State Department and that indi-
viduals who fund the activities of the LTTE are providing
material aid to a terrorist organization in violation of United
States law.
On August 14, 2003, the IJ denied relief on all three claims
after making an adverse credibility finding on the basis of the
cumulative effect of what he found to be several inconsisten-
cies. The IJ made special note of his consideration of the testi-
mony and opinions of Agent Schultz in making his decision.
The BIA affirmed without opinion on December 17, 2003.
Suntharalinkam timely petitioned for review.
II.
We have jurisdiction over a final order of removal pursuant
to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA affirms the
IJ’s decision without opinion, we review the IJ’s decision as
the final adjudication on the merits. See Falcon Carriche v.
Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003).
We review credibility determinations for substantial evi-
dence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002).
Because the IJ is in the best position to assess the applicant’s
testimony, we defer to the IJ’s credibility determination. See
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661-62 (9th
Cir. 2003). However, “[w]hile the substantial evidence stan-
dard demands deference to the IJ, [w]e do not accept blindly
an IJ’s conclusion that a petitioner is not credible. Rather, we
examine the record to see whether substantial evidence sup-
ports that conclusion and determine whether the reasoning
employed by the IJ is fatally flawed.” Gui, 280 F.3d at 1225
9938 SUNTHARALINKAM v. GONZALES
(second alteration in original) (internal quotation marks omit-
ted).
[1] The IJ must have “a legitimate articulable basis to ques-
tion the petitioner’s credibility, and must offer a specific,
cogent reason for any stated disbelief.” Hartooni v. INS, 21
F.3d 336, 342 (9th Cir. 1994). Any reason for disbelief “must
be substantial and bear a legitimate nexus to the finding.”
Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000) (per
curiam) (internal quotation marks omitted). Moreover, “spec-
ulation and conjecture cannot form the basis of an adverse
credibility finding, which must instead be based on substantial
evidence.” Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.
2004) (internal quotation marks omitted). As long as one of
the IJ’s identified reasons for disbelief underlying an adverse
credibility finding is supported by substantial evidence and
goes to the heart of the claims of persecution, we are bound
to accept the negative credibility finding. Li v. Ashcroft, 378
F.3d 959, 964 (9th Cir. 2004) (affirming adverse credibility
finding even though some grounds were unsupported by the
facts or irrelevant).
III.
A.
“To determine whether substantial evidence supports the
[IJ’s] credibility determination, we evaluate each ground cited
by the [IJ] for [his] finding.” Wang v. Ashcroft, 341 F.3d
1015, 1021 (9th Cir. 2003). The IJ identified eight discrepan-
cies that he believed “taken alone, appear minor,” but he nev-
ertheless concluded that “when taken in their entirety, they
weave a tapestry of inconsistency that simply strains credulity
to the breaking point.” Because the discrepancies relied upon
by the IJ either were not in fact discrepancies; did not go to
the heart of Suntharalinkam’s petition; placed undue emphasis
on the absence of information from Suntharalinkam’s asylum
application; or relied on unsubstantiated, generalized findings,
SUNTHARALINKAM v. GONZALES 9939
and because the IJ did not provide Suntharalinkam an oppor-
tunity to explain those apparent discrepancies that may have
had some connection to his claim for asylum, the IJ’s adverse
credibility finding is not supported by substantial evidence.
First, the IJ expressed concern regarding Suntharalinkam’s
testimony that he thought he was traveling from Mexico to
Canada rather than to the United States. The IJ opined that it
“strain[ed] credulity” to believe that Suntharalinkam was
unaware of the geography of the three countries, and noted
that “[w]hile this fact, standing alone, is not enough to under-
mine [Suntharalinkam’s] credibility, it does call that credibil-
ity into question.
[2] This assessment was based on “impermissible specula-
tion and conjecture,” and thus cannot support an adverse cred-
ibility finding. See Ge, 367 F.3d at 1124. The IJ based his
disbelief on his own unsubstantiated assumptions about Sun-
tharalinkam’s knowledge of geography. Suntharalinkam testi-
fied that he had studied Tamil, math, arithmetic, and some
English language in school, and noted that he had never stud-
ied geography and had never learned the location of the
United States or Europe. The IJ said he found it “bizarre” and
“interesting” that Suntharalinkam had not “learned about the
world” during his schooling. This finding rests solely on his
own knowledge of geography and his speculation about what
he imagines a person of Suntharalinkam’s background would
and would not know. There is no evidence in the record to
support the IJ’s world view. The idea that a person from Sri
Lanka with secondary-school education that did not include
geography classes could not accurately map out the Western
Hemisphere is neither bizarre nor interesting, especially given
studies showing that more than ten percent of 18- to 24-year-
old United States citizens cannot locate the United States on
a map. See Bijal P. Trivedi, “Survey Reveals Geographic Illit-
eracy,” National Geographic News, Nov. 20, 2002.1 More-
1
This can be found at http://news.nationalgeographic.com/news/2002/
11/1126_021120_TVGeoRoperSurvey.html.
9940 SUNTHARALINKAM v. GONZALES
over, at the hearing before us, counsel representing the DHS
did not know the answer to the question, “What countries bor-
der Sri Lanka?” a lack of knowledge that bears no more upon
her credibility than Suntharalinkam’s lack of knowledge
about North American geography bears upon his. The only
basis for the IJ’s finding is his own conjecture, which cannot
lawfully support an adverse credibility determination. See Ge,
367 F.3d at 1124.
Second, the IJ found implausible Suntharalinkam’s testi-
mony that he was unaware that his asylum application did not
contain the information about his employment history that he
discussed at the hearing before the IJ. The IJ noted,
While at first blush this may seem plausible, the
Court notes that the respondent was given ample
opportunity prior to the commencement of proceed-
ings to review his application with his attorney for
accuracy and completeness. . . . It is implausible,
therefore, for the respondent to assert that he was
unaware of the omission regarding this employment
history in his application. Once again, taken alone,
this implausibility and omission from the application
does not appear significant as it relates to the respon-
dent[’]s overall credibility, but once again, it is a link
in the chain.
[3] The omitted employment information neither “go[es] to
the heart” of Suntharalinkam’s claim for relief, nor enhances
his claims of persecution, and thus has no bearing on his cred-
ibility. Malhi v. INS, 336 F.3d 989, 992-93 (9th Cir. 2003);
see also Singh v. Ashcroft, 362 F.3d 1164, 1171 (9th Cir.
2004); Wang, 341 F.3d at 1021; Shah v. INS, 220 F.3d 1062,
1068 (9th Cir. 2000). Moreover, “[i]t is well settled that an
applicant’s testimony is not per se lacking in credibility sim-
ply because it includes details that are not set forth in the asy-
lum application.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th
Cir. 1996). Contrary to the assertion of the dissent, Suntha-
SUNTHARALINKAM v. GONZALES 9941
ralinkam’s testimony about his employment history is not “in-
consistent with the details of the asylum application.”
Dissenting Op. at 9957. Instead, it merely included additional
details not set forth in the asylum application, and thus does
not render his testimony incredible. Lopez-Reyes, 79 F.3d at
911. Suntharalinkam does not speak English; he relied on his
attorney both to translate the inquiries in the application and
to translate his responses. If he failed to communicate this
employment information to his attorney, or if he did and the
attorney failed to include it, it very well may have been
because the information is irrelevant to his claim or to any of
the incidents of persecution he describes. The record does not
support a finding that the absence of the employment infor-
mation was not an innocent omission.
[4] For this same reason, we reject the IJ’s third finding
underlying his adverse credibility determination: the omission
of Suntharalinkam’s August 2000 detention from the asylum
application. The IJ described this as “a glaring inconsistency
between the respondent[’]s testimony and his ‘thoroughly
reviewed application,’ ” and he found unconvincing Suntha-
ralinkam’s explanation that his attorney “may have missed it.”
But the IJ had no reason to question Suntharalinkam’s expla-
nation, and neither did he have any legitimate basis to con-
sider the omission of the information as bearing on
Suntharalinkam’s credibility. Because we will not character-
ize testimony as not credible simply because it includes infor-
mation in addition to that in the asylum application, see
Aguilera-Cota v. INS, 914 F.2d 1375, 1382 (9th Cir. 1990),
we find that the IJ erred in relying upon this finding.
The dissent relies on Alvarez-Santos v. INS, 332 F.3d 1245,
1254 (9th Cir. 2003) in disagreeing with our analysis. The cir-
cumstances of Alvarez-Santos, however, are distinct, and its
holding is thus inapplicable here. At the end of his direct testi-
mony, Alvarez-Santos took a short break. After the break, he
was asked by his attorney whether he had anything to add. He
then stated that a group of men wearing black and carrying
9942 SUNTHARALINKAM v. GONZALES
guns had come to his house to look for him a few days before
he fled Guatemala, his native country. He tried to escape, but
the men caught him and stabbed him in the shoulder, telling
him that they were not going to kill him because they wanted
him alive. Alvarez-Santos had not mentioned the stabbing
either in his two asylum applications or in his direct testi-
mony. Id. at 1248-49. The panel affirmed the IJ’s adverse
credibility determination, holding that
[i]t is simply not believable that an applicant for asy-
lum would fail to remember, and thus to include in
either of his two asylum applications or his principal
testimony, a dramatic incident in which he was
attacked, stabbed, and fled to the mountains—the
very incident that precipitated his flight from
Guatemala—only to be reminded of it at the conclu-
sion of his testimony, after taking a break, and,
assertedly, because of an itch in his shoulder.
Id. at 1254. Here, in contrast, Suntharalinkam credibly
explained that his attorney may have accidentally omitted the
detention from his application, and he discussed the detention
in his principal testimony. He did not claim to have suddenly
remembered it, as Alvarez-Santos did; nor did he raise it at
the last minute of his hearing. In contrast to Alvarez-Santos,
the circumstances of Suntharalinkam’s discussion of the
August 2000 detention are not suspicious in themselves. The
dissent’s reliance upon this decision is thus misplaced.
[5] Fourth, the IJ focused on Suntharalinkam’s initial testi-
mony that the soldiers who entered his home in January 2000
had locked “other members of [his] family” in a room, and
then later, upon further questioning, explained that only his
mother was at home and locked in the room. Because this dis-
crepancy does not “go to the heart” of Suntharalinkam’s claim
for relief, Malhi, 336 F.3d at 992-993, the IJ should not have
factored it into the adverse credibility determination. Whether
solely Suntharalinkam’s mother or other members of the fam-
SUNTHARALINKAM v. GONZALES 9943
ily were present when he was assaulted and taken away does
not prove or disprove that he was assaulted and detained. Nor
does it have any bearing on the “reason” why he was detained
or the “nature of the torture that he allegedly suffered,” in
contrast to the significant discrepancies that justified an
adverse credibility finding in Singh-Kaur v. INS, 183 F.3d
1147, 1151-52 (9th Cir. 1999), cited by the dissent. Further-
more, it is likely that some of these “minor” discrepancies
may have been caused by the translation difficulties apparent
in the transcript. “[W]e have long recognized that difficulties
in interpretation may result in seeming inconsistencies, espe-
cially in cases . . . where there is a language barrier.” Men-
doza Manimbao, 329 F.3d at 662. We are especially cautious
in attributing any weight to an inconsistency that likely relates
more to a mismatch of terms after translation than to Suntha-
ralinkam’s claim.
Fifth, the IJ found unconvincing Suntharalinkam’s account
of the abuses he suffered during his sixty-day detention from
January to March 2000. Suntharalinkam testified that he was
burned with cigarettes on three occasions, and he showed the
IJ the resulting scars on his legs. The IJ viewed the burns and
did not question that they were in fact burns. He nevertheless
did not credit Suntharalinkam’s testimony that they were
made by cigarettes, noting that their size, about the size of a
dime, a quarter, and a silver dollar, was inconsistent with cig-
arettes. However, the IJ failed to ask Suntharalinkam to
explain the size discrepancies. The IJ stated that “[i]n light of
the disparity and size” of the scars, he “very much doubts”
that the scars were in fact caused by cigarette burns.
[6] Again, the IJ’s incredulity was based on speculation and
conjecture. Just as in Bandari v. INS, 227 F.3d 1160 (9th Cir.
2000), where we rejected the IJ’s credibility determination,
based on the judgment that it was “incredible and implausi-
ble” that the petitioner “would have been beaten for a period
of 20 minutes with a rubber hose and not bleed,” because the
finding was “based solely on her subjective view of when a
9944 SUNTHARALINKAM v. GONZALES
person should bleed given her view of the severity of the flog-
ging,” Id. at 1167 (internal quotation marks omitted), the IJ
here had no basis to conclude that torturing a person over
sixty days with burning cigarettes would result in small dis-
crete burns the size of American cigarettes. Depending on the
patterns of the burning that caused the scarring and the size
of the cigarettes, scars like Suntharalinkam’s could very well
result. The IJ had no basis for knowing how the burn scars
were made, how many times Suntharalinkam was burned, or
what sort of scarring results from torture over a sustained
period by burning cigarettes. Nor did the IJ ask Suntha-
ralinkam to explain the “supposed” size discrepancy, which
may not have been a discrepancy at all. The IJ must provide
applicants with a reasonable opportunity to explain any per-
ceived inconsistencies that factor into the adverse credibility
finding. See Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.
2004) (reversing negative credibility finding because, inter
alia, petitioner was denied a reasonable opportunity to explain
a perceived inconsistency); Guo v. Ashcroft, 361 F.3d 1194,
1200 (9th Cir. 2004) (same). Because the IJ failed to adhere
to this requirement, and because there was not necessarily any
discrepancy at all, the IJ should not have relied upon the size
of the burns in making the adverse credibility determination.
[7] Sixth, the IJ commented that it was “noteworthy” that
Suntharalinkam had testified during the hearing that he was
hospitalized for some ten days following his release from
detention, whereas his asylum application did not mention
hospitalization and instead only referred to medical treatment
that he received at that time. The IJ’s concern is unfounded,
as in fact there is no “discrepancy” between the application
and Suntharalinkam’s testimony that can legally form the
basis of an adverse credibility decision. An adverse credibility
finding cannot be based on petitioner providing testimony that
is more detailed than the information presented in the asylum
application. See Singh v. INS, 292 F.3d 1017, 1021 (9th Cir.
2002) (holding that an adverse credibility determination can-
not be based on trial testimony that is more detailed than the
SUNTHARALINKAM v. GONZALES 9945
applicant’s initial statements at the airport). Here, there is no
contradiction between the two accounts.
Suntharalinkam’s asylum application states that he “took
medical treatment for injuries due to army’s mistreatments,”
an account that does not conflict in any way with his testi-
mony that he was hospitalized. When asked to explain why he
only generally recounted that he had received medical treat-
ment rather than specifying that he was hospitalized, Suntha-
ralinkam responded, “I, I thought only state that I took
treatment what would be enough.” Because there is no incon-
sistency, but merely provision of greater detail at the hearing,
this, too, is an inadequate basis for the IJ’s credibility determi-
nation.
The IJ also based his adverse credibility determination on
what he saw as a conflict between the medical records Sun-
tharalinkam produced to prove that he was hospitalized for
injuries after the first detention and his testimony regarding
the medical treatment he received. The medical records, while
supporting Suntharalinkam’s testimony that he received medi-
cal treatment following his release from detention, failed to
mention that Suntharalinkam was treated for any injuries
resulting from torture, but instead stated only that he was
treated for hepatitis. The IJ’s finding is problematic for two
reasons. First, this purported “discrepancy” is not necessarily
a discrepancy at all. The IJ’s characterization of the two as
conflicting stems once again from his own speculation as to
what a Sri Lankan medical record should state. The IJ knew
nothing about Suntharalinkam’s health at the time he was
released from the torture center, nor did he ask about it. There
is no basis in the record to decide that the medical record is
inconsistent with Suntharalinkam’s testimony. Suntha-
ralinkam may in fact have been treated for hepatitis at the
hospital. In the United States, for example, hepatitis in correc-
tional settings is prevalent, and incarcerated persons suffer
from hepatitis at a far greater rate than the average population.
See Cindy Weinbaum et al., Prevention and Control of Infec-
9946 SUNTHARALINKAM v. GONZALES
tions with Hepatitis Viruses in Correctional Settings, Jan. 24,
2003.2 The same may very well be true for persons newly
released from detention in Sri Lanka, where it would be logi-
cal to assume unsanitary conditions and contaminated food in
detention centers for suspected terrorists.
Nor is there any information in the record about record-
keeping in medical clinics in Sri Lanka. Neither the IJ nor we
have any basis to assume that the medical records would
include every wound as is typical of hospitals in the United
States. Perhaps the clinic physicians and staff routinely fail to
document evidence of torture by security forces, for fear of
retribution by the government against themselves, and instead
listed Suntharalinkam as afflicted only with hepatitis, when he
could have had hepatitis and other wounds. Perhaps the clinic
is run by the government and as a result the staff and physi-
cians are instructed not to document the nature of a govern-
ment torture victim’s injuries. Given that the government was
at the time prosecuting a war and engaging in arbitrary arrests
and torture, according to the State Department reports, either
of these possibilities is more compelling than a conclusion
that Suntharalinkam, knowing that his credibility was on the
line, intentionally submitted a Sri Lankan document that he
knew was inconsistent with his testimony after the IJ had
asked him to provide documentation to corroborate his testi-
mony about his medical treatment. He obviously believed that
it supported his testimony based on his personal knowledge of
how Sri Lankan medical records are created and maintained.
This is precisely why the IJ was required to provide Sun-
tharalinkam an opportunity to explain why his medical record
only accounted for his treatment for hepatitis, a requirement
with which the IJ failed to comply, and the second of the two
reasons this ground does not support the adverse credibility
finding. See Chen, 362 F.3d at 618 (reversing negative credi-
2
This can be found at http://www.cdc.gov/mmwr/preview/mmwrhtml/
rr5201a1.htm.
SUNTHARALINKAM v. GONZALES 9947
bility finding where petitioner was denied a reasonable oppor-
tunity to explain a perceived inconsistency); Guo, 361 F.3d at
1200 (same). Where we are left to wonder whether a discrep-
ancy exists between the medical records and Suntha-
ralinkam’s testimony, or whether there is a reasonable
explanation to reconcile the two had the IJ simply adhered to
his obligation to inquire into such an explanation, we will not
uphold an adverse credibility finding. Contrary to the govern-
ment’s argument, putting Suntharalinkam on notice that his
credibility generally was left open to question is not suffi-
cient. The IJ is required to give the petitioner the opportunity
to explain specific perceived discrepancies. Otherwise, the IJ
is free to base an adverse credibility finding on disparities
that, if given an opportunity, could be explained credibly by
the petitioner, and we are left to speculate as to whether there
is some rational explanation for the discrepancy the IJ thinks
he sees. See Chen, 362 F.3d at 618 (holding that because peti-
tioner “was denied a reasonable opportunity to explain what
the IJ perceived as an inconsistency in her testimony[,] [t]he
IJ’s doubt about the veracity of her story . . . cannot serve as
a basis for the denial of asylum”).
[8] Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir. 2004),
cited by the dissent, is inapposite. Singh did not involve a
conflict between medical records and testimony as to the inju-
ries which the petitioner claimed were the result of persecu-
tion. Instead, the conflict in Singh was regarding the date of
a letter submitted by petitioner to corroborate injuries that he
testified he received, but which were not evident in a photo-
graph taken at the time of the alleged injuries. Id. at 1141.
Singh, unlike Suntharalinkam, was asked to explain the date
discrepancy on the letter he submitted, and the panel there
upheld the IJ’s determination that Singh’s explanation was
unconvincing. Id. at 1142-43. Here, in contrast, we do not
know whether Suntharalinkam has a convincing explanation
for the discrepancy or whether he has no explanation for it.
This is why the law imposes on the IJ an obligation to request
an explanation for perceived inconsistencies, and why we
9948 SUNTHARALINKAM v. GONZALES
may not uphold an adverse credibility finding that is based on
a purported discrepancy that the petitioner is not given an
opportunity to explain. We do not hold that a discrepancy
between Suntharalinkam’s medical records and testimony, if
any, would per se be inadequate to support an adverse credi-
bility finding. Instead, we hold that it is unclear whether there
is a discrepancy at all, and because the IJ failed to adhere to
his duty to ask for an explanation for the purported discrep-
ancy, we will not uphold this as a basis for the adverse credi-
bility finding.
[9] We find similar error in the IJ’s focus on Suntha-
ralinkam’s testimony that soldiers who detained him in May
2001 “asked” him to come to the camp, which the IJ charac-
terizes as inconsistent with Suntharalinkam’s description of
the incident as an arrest. The IJ did not give Suntharalinkam
an opportunity to explain this seeming discrepancy at the
hearing; the government’s attorney asked only whether he
was forced or requested to join the officers. Suntharalinkam
responded that he was forced, but the IJ was apparently
unconvinced by his answer, though he did not request further
explanation. Suntharalinkam now explains that the IJ misun-
derstands political conditions in Sri Lanka, and that when a
group of officers “asks” an individual to accompany them,
that is not a request, but rather is an order that the individual
is not free to refuse. If the IJ had pointed out his disbelief dur-
ing the hearing and asked Suntharalinkam for further explana-
tion, as he was required to do, Suntharalinkam would have
been able to address the IJ’s concerns about whether he was
arrested or whether he joined the officers by choice. Without
that opportunity, this supposed discrepancy cannot form the
basis of an adverse credibility finding. The IJ’s suggestion
that Suntharalinkam’s choice of words renders his testimony
incredible, moreover, is based on speculation and conjecture.
The IJ has no basis for assuming that the fact that Suntha-
ralinkam was “asked” to accompany the soldiers to the camp
means that he was not in fact arrested and detained as he testi-
fied.
SUNTHARALINKAM v. GONZALES 9949
The IJ also focused on what he characterized as discrepan-
cies in Suntharalinkam’s account of his sister’s experience
during the May 2001 detention. Specifically, Suntha-
ralinkam’s asylum application stated that a bribe paid by his
mother secured “our” release, whereas he testified at the hear-
ing that his sister was released the day after they were first
detained. The IJ asked Suntharalinkam to explain why he used
the word “our” in his declaration, but Suntharalinkam’s
response was “indiscernible” according to the hearing tran-
script. Because this detail does not affect or enhance the mer-
its of Suntharalinkam’s claim, and because it was probably
the result of a translation difficulty, we hold that an adverse
credibility finding cannot be based on this purported inconsis-
tency, which, again, may not have been one at all. See Zahedi
v. INS, 222 F.3d 1157, 1167-68 (9th Cir. 2000) (holding that
IJ’s adverse credibility was not supported by substantial evi-
dence where “there were significant communication and
translation problems . . . during the asylum hearing” and the
discrepancies at issue were not crucial to petitioner’s claim).
[10] Eighth, the IJ noted that during Suntharalinkam’s
interactions with United States border officials at San Ysidro
and in his asylum application, he had stated that his father had
died in the year 2000 of natural causes, whereas his father’s
death certificate indicated that he died in 1994 of a heart
attack. The IJ acknowledged Suntharalinkam’s argument that
statements given to officials at the time of arrest should not
be given much weight in light of the conditions of custody,
and noted that he considered the inconsistent statement “as
just one of many made.” The time and cause of Suntha-
ralinkam’s father’s death, however, are wholly irrelevant to
Suntharalinkam’s claim for relief. The circumstances of the
death neither undermine nor enhance his claim of persecution.
“If discrepancies cannot be viewed as attempts by the appli-
cant to enhance his claims of persecution, [they] have no
bearing on credibility.” Shah v. INS, 220 F.3d 1062, 1068 (9th
Cir. 2000) (alteration in original) (internal quotation marks
omitted).
9950 SUNTHARALINKAM v. GONZALES
[11] The IJ explained that the adverse credibility finding
rested not on any one of the discrepancies he identified in par-
ticular, but instead on what he described as “a tapestry of
inconsistency that simply strains credibility to the breaking
point.” The IJ acknowledged repeatedly that each discrepancy
appeared minor but concluded that overall Suntharalinkam’s
credibility was ultimately damaged by the sum of the discrep-
ancies. The IJ did not err in assessing the discrepancies in
light of all the evidence presented rather than in isolation. See
Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005) (con-
cluding that the “repeated and significant inconsistencies in
[petitioner’s] testimony deprive[d] her claim of the requisite
‘ring of truth’ ”). But the inconsistencies on which the IJ
relied in finding the cumulative impact sufficient to support
an adverse credibility finding were not “significant,” and the
totality of the purported inconsistencies does not add up to a
sufficient basis for an adverse credibility finding. Since only
one of eight alleged discrepancies was actually a discrepancy
(the time and cause of Suntharalinkam’s father’s death), and
the one was entirely unrelated to Suntharalinkam’s claim,
none supports the adverse credibility determination either
individually or in combination. Just as under criminal law
“one error is not cumulative error,” United States v. Sager,
227 F.3d 1138, 1149 (9th Cir. 2000), one discrepancy that
does not go to the heart of the claim cannot cumulatively sup-
port an adverse credibility finding.
[12] We further note that the IJ erred in relying on the testi-
mony and report offered by Agent Schultz in making his deci-
sion. Schultz’s conclusions rested in large part on the
similarities in the asylum applications of the members of the
group with whom Suntharalinkam traveled: They were all
Tamil and were from LTTE-controlled areas on the Jaffna
Peninsula; all had been detained and tortured by the Sri Lan-
kan army on account of their suspected membership in the
LTTE; all were not members of the LTTE; and all claimed to
have traveled from Jordan to Mexico but in fact had traveled
through Bangkok, South Africa, and Brazil. Agent Schultz did
SUNTHARALINKAM v. GONZALES 9951
not provide any information about Suntharalinkam in particu-
lar. Instead, he relied on Canadian intelligence reports that
“most if not all of the subjects” were members or associates
of the LTTE and were being smuggled by an organization
controlled by the LTTE based in Toronto. Schultz opined that
“if a person is Tamil they are expected to support the LTTE.
. . . If that support is not received the punishment will be swift
and violent . . . . If a Tamil person wanted to reach Canada,
by other than legitimate means, they would have to do so
through the LTTE. If they did not their remaining family in
Sri Lanka would face retribution.” Schultz’s conclusions thus
rest on assumptions about the political affiliations of Tamils
in Sri Lanka and the ways by which a Tamil in Sri Lanka
could reach the United States.
The IJ may consider generalized reports, such as the State
Department’s Country Reports, in evaluating a petitioner’s
credibility. See Zheng v. Ashcroft, 397 F.3d 1139, 1143 (9th
Cir. 2005). However, we have repeatedly explained that just
as the IJ may not rely on his or her own speculation and con-
jecture, neither may the IJ rely on the speculation and conjec-
ture of a government report. The conclusions in Agent
Schultz’s report derive from his analysis of general trends and
conditions in Sri Lanka, not from individualized facts about
Suntharalinkam or the evidence presented before the IJ.
Moreover, the IJ must conduct an individualized credibility
analysis, and it is improper to rely exclusively on a general
assertion in a government report to declare an applicant not
credible. See Ge, 367 F.3d at 1126 (to the extent that the IJ
relied on blanket statements in the State Department report
regarding detention conditions in China, the IJ’s finding was
not sufficiently individualized); Shah, 220 F.3d at 1069 (hold-
ing that the IJ may not rely “on a factually unsupported asser-
tion in a State Department report to deem [an applicant] not
credible”). Here, Schultz bases his conclusion that Suntha-
ralinkam is an LTTE member on his generalized surmises
about the fact that a Tamil living in particular areas of Sri
Lanka cannot avoid being a member of the LTTE; that a
9952 SUNTHARALINKAM v. GONZALES
Tamil cannot reach Canada other than through means orga-
nized by the LTTE; and that the group traveled with escorts
who have been involved in alien smuggling that provides
funding for the LTTE. These generalized statements are insuf-
ficient to support an adverse credibility decision; indeed,
Schultz’s judgments about Suntharalinkam are based on spec-
ulation and conjecture regarding the provenance of the group
of twenty-two and political conditions in Sri Lanka. Because
the IJ must determine Suntharalinkam’s credibility based on
the circumstances of his particular situation, the general
trends that Schultz points out to the IJ should not be relied
upon to support the credibility determination.
Moreover, even if Schultz’s intelligence regarding the
smugglers was correct, we cannot find any reason why the
fact that Suntharalinkam relied on an agent affiliated with the
LTTE to get him to the United States should have any bearing
on his credibility, as the IJ would have it. Suntharalinkam tes-
tified that he was persecuted by the government because of its
suspicion that he was a member of the LTTE. Whether he
took advantage of the LTTE’s expertise in alien smuggling to
flee arbitrary arrest and detention in Sri Lanka does not bear
on his account of the abuses he suffered in Sri Lanka at the
hands of government security forces.
Moreover, Suntharalinkam never claimed that his smug-
glers were not affiliated with the LTTE; indeed, the matter
was never addressed at the hearing. Credibility is simply not
at issue on this point, despite the IJ’s attempts to find some
basis in Schultz’s testimony for an adverse credibility finding.
Further, that all members of the group posed as actors in Mex-
ico and traveled through the same route is indicative of noth-
ing other than that they indeed traveled as a group, another
fact not at issue. The house of cards upon which the IJ built
his adverse credibility determination thus collapses under
serious review. It appears that the IJ manufactured a ground
for denying relief in light of the charges contained in
Schultz’s report.
SUNTHARALINKAM v. GONZALES 9953
We are sympathetic to the IJ’s interest in preventing a
member of a terrorist organization from obtaining asylum in
this country, and we recognize the government’s absolute and
critical interest in preventing the admission of an individual
that it believes is a member of a terrorist organization. If in
fact there is reasonable suspicion that Suntharalinkam is a ter-
rorist, then it is in all our interests that the DHS investigate
and pursue him if not through criminal avenues, then by
asserting the terrorist bar to asylum, see 8 U.S.C.
§ 1158(b)(2)(A)(iv), the application of which automatically
bars withholding and CAT relief, see Bellout v. Ashcroft, 363
F.3d 975, 977-79 (9th Cir. 2004), or by relying on the Attor-
ney General’s exercise of discretion to deny asylum to indi-
viduals who are suspected members of terrorist organizations,
see Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir. 2004).
We cannot disregard the law because it appears that Suntha-
ralinkam may have terrorist affiliations; as the IJ virtually
acknowledged, Suntharalinkam told a credible story.
B.
The IJ properly rejected admission of Suntharalinkam’s
proposed corroborating evidence on the ground of its ques-
tionable authenticity. The IJ denied admission of three letters
written by Velautham Kumarasamy, a Sri Lankan Justice of
the Peace who attested to Suntharalinkam’s three detentions,
sustaining the government’s objection to the letters that the
documents “d[id] not meet the most minimal requirements for
a submission into evidence.”
[13] “Documents may be authenticated in immigration pro-
ceedings through any recognized procedure, such as those
required by INS regulations or by the Federal Rules of Civil
Procedure.” Khan v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001)
(per curiam) (internal quotation marks omitted). While the IJ
neglected to note that “8 C.F.R. § 287.6 provides one, but not
the exclusive, method for establishing a sufficient basis for
admission of a writing in a deportation proceeding,” Iran v.
9954 SUNTHARALINKAM v. GONZALES
INS, 656 F.2d 469, 472 n.8 (9th Cir. 1981), the IJ nonetheless
was correct in determining that the documents were not prop-
erly authenticated, as there was no indication that they were
in fact from a government official. Of course, the failure to
supply affirmative authentication for documents does not sup-
port an adverse credibility finding. See Wang, 352 F.3d at
1254. But here, the IJ did not purport to rely on the lack of
authentication as part of the adverse credibility finding.
Instead, the lack of authentication motivated only his refusal
to admit the documents into evidence, and thus was not error.
Contrary to Suntharalinkam’s claim that the IJ failed to
consider the background materials he provided, the IJ in fact
considered these documents. The IJ noted the background
materials Suntharalinkam provided and specifically referred
to the Department of State reports as well as other items from
the news media. The IJ mentioned the reports’ discussions of
the ceasefire in Sri Lanka, the present state of the conflict, and
the apparent end to abuses previously committed by the Sri
Lankan Army and by the LTTE. Thus, Suntharalinkam’s
claim that the IJ failed to consider this information lacks
merit.
C.
[14] Nor did the IJ err in declining to consider Suntha-
ralinkam’s eligibility for asylum based on a “pattern or prac-
tice” of persecution. 8 C.F.R. § 208.13(b)(2)(iii) allows an
asylum applicant to prove a well-founded fear of persecution
without an individualized showing as long as the applicant
can establish membership in a group against which “there is
a pattern or practice . . . of persecution against persons simi-
larly situated on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.”
Suntharalinkam failed to establish, however, that he is a mem-
ber of a group against which there is a pattern or practice of
persecution. Although Tamil civilians may have at one time
been persecuted by the Sri Lankan government or security
SUNTHARALINKAM v. GONZALES 9955
forces, the record supports the IJ’s conclusion that this no lon-
ger is the case. Suntharalinkam provided background reports
detailing, for example, the “[l]arge-scale round-ups of Tamil
civilians [that] continue to take place, particularly following
LTTE attacks.” The 2001 State Department Country Report
also affirmed “[l]arge-scale arrests of Tamils . . . during the
year,” and reported that despite legal prohibitions against tor-
ture, security forces and police continued to torture persons in
custody, especially Tamils who were detained on suspicion of
being members or supporters of the LTTE. The IJ, however,
credited the more recent 2002 State Department report, which
noted that “there were no large-scale arrests of Tamils during
the year,” and commented that although in the past arbitrary
arrest and detention “were problems,” “[t]here were no
reports of arbitrary arrests during the year.” In rejecting Sun-
tharalinkam’s testimony that he feared he would still be in
danger in Sri Lanka, the IJ relied on reports that abuses by the
Sri Lankan army had ceased, as well as on the ceasefire agree-
ment and the fact that the war had not resumed. Thus, the IJ’s
conclusion that Suntharalinkam was not eligible for asylum
under a “pattern or practice” theory is supported by substan-
tial evidence.
D.
Suntharalinkam argues that the IJ erred in denying him
relief under the CAT on the ground that he was not credible.
We reject the government’s contention that Suntharalinkam
failed to raise this claim before the BIA and therefore did not
preserve this matter for appellate review. See Barron v. Ash-
croft, 358 F.3d 674, 678 (9th Cir. 2004). Although Suntha-
ralinkam did not specifically contend that the IJ’s analysis
under the CAT was error, he did appeal the IJ’s decision to
deny relief under the CAT, and therefore he preserved the
issue for appeal. We decline to reach the merits of this claim,
however, because we remand the question to the BIA.
9956 SUNTHARALINKAM v. GONZALES
IV.
[15] Because the adverse credibility finding is not sup-
ported by substantial evidence, we remand to the BIA to con-
sider, taking his testimony as true, whether Suntharalinkam
has met the necessary conditions for eligibility for asylum,
withholding of removal, and relief under the Convention
Against Torture, as well as any other issues that may preclude
his admission into this country. See INS v. Ventura, 537 U.S.
12, 17 (2002) (per curiam); see also Chen, 362 F.3d at 621-
23.
PETITION GRANTED; REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS CON-
SISTENT WITH THIS OPINION.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent. I simply cannot agree that we are
compelled to find Suntharalinkam credible. See Malhi v. INS,
336 F.3d 989, 993 (9th Cir. 2003) (explaining the special def-
erence accorded to the BIA’s credibility determination). As
the majority opinion recognizes, so long as one of the Immi-
gration Judge’s identified reasons for disbelieving Suntha-
ralinkam is supported by substantial evidence and goes to the
heart of the persecution claim, we must accept the Immigra-
tion Judge’s adverse credibility determination. Majority Opin-
ion at 9938. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.
2004). Additionally, we have endorsed the concept of cumula-
tive incredulity. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.
2000).
The majority opinion takes issue with the IJ’s finding that
Suntharalinkam’s testimony regarding employment that was
not included in his asylum application supported an adverse
credibility finding. Majority Opinion at 9940. However, we
SUNTHARALINKAM v. GONZALES 9957
have specifically recognized testimony that is inconsistent
with the details of the asylum application as supporting an
adverse credibility determination. See id.
The majority also faults the IJ for relying on the omission
of Suntharalinkam’s August, 2000, detention from his asylum
application. Majority Opinion at 9941. However, we have
upheld an adverse credibility determination for just that rea-
son. See Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.
2003).
I disagree with the majority’s conclusion that Suntha-
ralinkam’s discrepant testimony regarding the soldiers’ foray
into the family’s home was not significant. Majority Opinion
at 9941-42. Because the incident with the soldiers is a critical
component of Suntharalinkam’s persecution claim, any incon-
sistency in the details of this crucial incident may support an
adverse credibility finding. See Singh-Kaur v. INS, 183 F.3d
1147, 1151-52 (9th Cir. 1999).
I also take issue with the majority’s conclusion regarding
the conflict between Suntharalinkam’s testimony describing
his medical treatment and the records produced to support that
testimony. Majority Opinion at 9943-46.
Suntharalinkam testified that he was treated for injuries
sustained when he was beaten. However, the hospital records
he produced reflect that he was treated for hepatitis, not for
injuries suffered as a result of a beating. We have held that a
conflict between testimony and medical documents offered to
bolster that testimony constitutes substantial evidence to sup-
port an adverse credibility determination. See Singh v. Ash-
croft, 367 F.3d 1139, 1143 (9th Cir. 2004). And we did so
without imposing any requirement that the applicant be
afforded an opportunity to explain any discrepancy between
his testimony and the documentary evidence. See id.
Neither of the two cases cited by the majority is to the con-
trary.
9958 SUNTHARALINKAM v. GONZALES
In Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir. 2004),
we ruled that “unclear testimony may not serve as substantial
evidence for an adverse credibility finding when an applicant
is not given the chance to attempt to clarify his or her testimo-
ny.” (citation omitted) (emphasis added). Similarly, in Chen
v. Ashcroft, 362 F.3d 611, 617 (9th Cir. 2004), we explored
the IJ’s finding that the applicant, in her testimony, had not
“offered a ‘reasonable explanation’ as to why she and her hus-
band did not request official permission from state family
planning authorities to have their first child.” We focused on
the fact that
[t]he IJ did not question her further concerning her
failure to request permission to become pregnant.
Instead, he moved on to another subject, leaving this
court to speculate whether Mrs. Chen did not fully
understand the nature of the question due to the diffi-
culties of translation, or whether she had feared that
a fine would be assessed immediately, or worse, that
she would have been required to abort her child.
Id. at 618 (emphasis added).
In view of the translation difficulties and the vague nature
of the applicant’s response, we understandably concluded that
the IJ should have afforded the applicant an opportunity to
explain any perceived inconsistencies in her testimony in
response to questions posed by the IJ. See id.
In this case, there has been no assertion that Suntha-
ralinkam’s testimony was vague or unclear. Neither was there
a hint of translation difficulties.3 Suntharalinkam testified
clearly and directly that he was treated for injuries sustained
when he was beaten. Yet his documentary evidence reflects
3
Although the majority opinion refers to “translation difficulties appar-
ent in the transcript,” Majority Opinion at 9943, no reference to translation
difficulties was made by the Petitioner.
SUNTHARALINKAM v. GONZALES 9959
treatment for hepatitis rather than for injuries sustained in a
beating. In this circumstance, our precedent does not mandate
that the IJ explicitly question the applicant further about a dis-
crepancy between the applicant’s testimony and documentary
evidence offered to support that testimony. See Singh, 367
F.3d at 1143. This is especially true when one considers the
fact that Guo and Chen imposed the requirement of giving the
applicant the opportunity to clarify his testimony when that
testimony is in response to questions posed by the IJ. See
Guo, 361 F.3d at 1200 (discussing a “colloquy between the IJ
and [the witness]”); see also Chen, 362 F.3d at 618 (referring
to questioning by the IJ).
The majority concedes that the IJ appropriately assessed
credibility in view of all the evidence presented. Majority
Opinion at 9947-48. Yet, the majority does not consider the
cumulative discrepancies as adequate to support an adverse
credibility determination. See id. My view is exactly the
opposite. I consider each of the discrepancies discussed above
as adequate to sustain the IJ’s credibility determination, when
viewed through the extremely deferential lens we must don.
See Malhi, 336 F.3d at 993. As I am not of the view that we
are compelled to find Suntharalinkam credible, I would deny
his petition.