Kanapathippillai Thayaparan v. Jeff Sessions

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0261n.06
No. 16-4232
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KANAPATHIPPILLAI THAYAPARAN, )
FILED
) May 08, 2017
Petitioner, ) DEBORAH S. HUNT, Clerk
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
JEFF B. SESSIONS, U.S. Attorney General, ) BOARD OF IMMIGRATION
) APPEALS
Respondent. )
)
)
BEFORE: SUHRHEINRICH, WHITE, and STRANCH, Circuit Judges.
SUHRHEINRICH, Circuit Judge. Petitioner Kanapathippillai Thayaparan (Petitioner)
petitions for review of the Board of Immigration (Board) decision dismissing his appeal of an
immigration judge’s denial of asylum and related remedies.
I. BACKGROUND
Petitioner is a native and citizen of Sri Lanka. He is a carpenter, is married, and has three
children. He applied for admission to the United States on September 3, 2015, without valid
entry documents. Upon expressing his fear of returning to Sri Lanka, Petitioner was given a
credible fear interview by an asylum officer. After being served with a Notice to Appear (NOA),
Petitioner appeared with counsel, admitted the factual allegations in the NOA, and conceded he
was subject to removal. He applied for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT), claiming that he faced persecution and torture in Sri
No. 16-4232, Thayaparan v. Sessions
Lanka on account of (1) his Tamil ethnicity; (2) the Sri Lankan government’s mistaken belief
that he was part of a Tamil rebel group known as the Liberation Tigers of Tamil Eelam (LTTE),
a Tamil rebel group opposing the Sinhalese government; and (3) his status as a failed asylum
seeker if he was to be denied entry and returned to Sri Lanka. Petitioner’s asylum application (I-
589 Form) included a Statement (Original Statement). AR 865-66.1 Petitioner subsequently
filed an Amended Statement (Amended Statement). AR 834.
Petitioner’s Version of Events. Petitioner’s claim was based on five separate incidents in
Sri Lanka during which he claims he was arrested, beaten, and threatened. In 1993, a bomb
exploded near the Mayura Amman Temple, killing a defense minister. Petitioner, who was
working as a carpenter at the Temple, was suspected of being involved in the bombing because
he was Tamil and thought to be a member of the LTTE. He and his coworkers were arrested and
detained by the Criminal Investigation Department (CID). After detaining and torturing
Petitioner for five months, the CID transferred him to a police station where he was detained and
tortured for an additional fifteen days. A Temple administrator bribed the police, and Petitioner
was released.
In 1996, Petitioner and his family were forced to flee from their hometown after the army
captured it. While traveling to another town, Petitioner was arrested by the army after a masked
man mistakenly identified him as a rebel also named Thayaparan, and held him at an army camp
for twelve days. He was released after his wife and father-in-law paid a bribe.
1
The Board Decision is found at AR 3-6. The immigration judge’s decision is found at 83-126.
The transcript of the immigration proceedings is found at 128-469. The credible worksheet is
located at 470-84. Petitioner’s Form I-589 is found at 852-66. His Amended Statement is found
at 834-36.
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In May 2009 Petitioner was arrested by the army again and held at a camp until January
14, 2011.
In 2014, a relative of Petitioner’s maternal uncle came to his house for a visit. The visit
triggered an investigation by the CID. Petitioner was briefly detained, and then released on the
condition that he report to the local police station on the first Monday of every month and not
leave the area. After three months, he stopped reporting because he feared he would be
kidnapped and held for ransom.
On May 2, 2015, the CID came to Petitioner’s house. They beat and kicked his wife and
son, demanding to know where he was. Petitioner hid at his aunt’s house until he was able to
leave the country on May 15, 2015.
The Immigration Judge’s Decision. Petitioner was the only witness to testify at his
individual merits hearing. On April 13, 2016, the immigration judge found that Petitioner was
not credible based on internally inconsistent testimony and inconsistencies between his
testimony and other documentary evidence of record, including his credible fear interview.
AR 110. The immigration judge also ruled on the underlying merits of Petitioner’s claims,
finding that the country condition information submitted by the government and Petitioner
rebutted any showing of a well-founded fear of future persecution. AR 122-25. The judge noted
that Petitioner was able to relocate several times, and resided safely at his aunt’s house. AR 124.
The judge denied protection under the CAT because Petitioner had not demonstrated a
particularized threat of torture. AR 125-26.
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The Board’s Decision.2 On September 29, 2016, the Board upheld the immigration
judge’s credibility assessment as not clearly erroneous. AR 3. The Board held that, although
each credibility concern, on its own, may not have been enough to render Petitioner not credible,
when viewed as a whole, the totality of the circumstances supported the immigration judge’s
finding. AR 5. The Board also rejected Petitioner’s argument that there was a pattern or practice
of persecution against Tamils in Sri Lanka. While the evidence showed that Tamils faced
hardships in Sri Lanka, Petitioner had not met the very high burden of establishing a pattern or
practice. AR 5-6. The Board next considered Petitioner’s argument that a remand was
warranted for the immigration judge to consider his claim that he will be persecuted or tortured
on account of his membership in a particular social group comprised of “failed asylum seekers”
returned to Sri Lanka. AR 6. The Board acknowledged the newspaper articles Petitioner
submitted discussing how returned asylum seekers are considers traitors by the Sri Lankan
government, but held that Petitioner had not shown that he is similarly situated to these
individuals. AR 6. Lastly, the Board upheld the immigration judge’s determination that
Petitioner did not establish eligibility for asylum or withholding of removal, independent of the
adverse credibility finding, and upheld the denial of Petitioner’s CAT claim. AR 6. On
December 13, 2016, the Board granted stay of removal. Petitioner seeks review.
II. ANALYSIS
Petitioner presents several arguments.3 First, he claims that the immigration judge’s and
Board’s (together “Agency”) adverse credibility findings are not supported by substantial
evidence. Second, he claims that the Agency erroneously “transferred” adverse credibility
2
The Board Decision was 2-1. The dissenting member did not file a separate opinion.
3
We have reordered the arguments.
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findings to unconnected events. Third, he argues that the Agency erroneously held that he failed
to establish a pattern or practice of persecution against Tamils in Sri Lanka warranting eligibility
for relief. Fourth, he asserts that the Board erred in denying his claim for asylum or CAT
protection as a failed asylum seeker. Fifth, he claims that the Agency erred in denying asylum
and CAT protection based on an arrest warrant issued for him on July 22, 2015.
This court has jurisdiction to review the final decision of the Board affirming the
immigration judge’s denials of asylum, withholding of removal, and CAT protection. Singh v.
Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). When the Board adopts the immigration judge’s
findings and adds additional comments, we review both the immigration judge’s decision and the
Board’s “additional remarks.” Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009);
accord Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). We review legal conclusions de novo
and factual findings and credibility determinations for substantial evidence. Zhao, 569 F.3d at
246. Although the substantial evidence standard is deferential, we are still obliged to give the
Agency’s decision a “hard look.” Marouf v. Lynch, 811 F.3d 174, 181 (6th Cir. 2016) (citation
omitted).
To qualify for discretionary asylum, Petitioner must show that he is unwilling or unable
to return to his country of residence because of past persecution or a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. §§ 1158, 1101(a)(42)(A); 8 C.F.R. § 1208.13(b); Marouf, 811 F.3d at
179. To qualify for mandatory withholding of removal under the Immigration and Nationality
Act, Petitioner must show past persecution or that “it is more likely than not” that he would be
persecuted in the future on account of one of the enumerated grounds. 8 C.F.R. § 1208.16(b)(2);
see also 8 U.S.C. § 1231(b)(3); Marouf, 811 F.3d at 179. To qualify for mandatory CAT
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protection, Petitioner must show that “it is more likely than not” that he “would be tortured if
removed” to Sri Lanka. 8 C.F.R. § 1208.16(c)(2); see also Marouf, 811 F.3d at 179.
A. Credibility Determination
In this case the Board specifically upheld the immigration judge’s negative credibility
determination based on three separate issues: (1) inconsistent testimony and evidence regarding
the 1996 arrest; (2) inconsistent statements regarding the 2015 incident; and (3) omissions
regarding the 1993 detention. AR 3-5.
Under the REAL ID Act, credibility determinations are based on the “totality of the
circumstances” and take into account “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). This
means that the immigration judge may base her credibility findings on any inconsistency
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim, or any other relevant factor.” Id.; El-Moussa v. Holder, 569 F.3d 250, 256 (6th
Cir. 2009). The immigration judge is also allowed to evaluate credibility based on “demeanor,
candor, or responsiveness,” as well as “the inherent plausibility of the applicant’s . . . account.”
8 U.S.C. § 1158(b)(1)(B)(iii). It does not matter that we would decide the credibility question
differently; such “determinations are conclusive unless any reasonable adjudicator would be
compelled to make a contrary conclusion.” Slyusar v. Holder, 740 F.3d 1068, 1073 (6th Cir.
2014) (emphasis added); accord El-Moussa, 569 F.3d at 256 (quoting 8 U.S.C. § 1252(b)(4)(A),
(B)). In other words, “compulsion is required.” Slyusar, 740 F.3d at 1073.
This credibility standard applies to claims for asylum, withholding of removal, and for
relief under the torture convention. Id. at 1074.
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1996 Arrest and Detention. As the Board acknowledged, Petitioner first testified that he
met up with his mother and wife after his family fled their town, Vanni, and they traveled
together to Vavuniya. AR 3-4; 228-29. Petitioner stated that he was trying to go to Colombo.
AR 222. Petitioner’s claim was inconsistent with his wife’s statement. His wife said that
Petitioner was travelling to Kilinochchi, not Colombo. AR 370-71. When confronted with his
wife’s inconsistent statement, Petitioner replied that his wife, who has lived in Sri Lanka all of
her life, may not have known the names of the cities. AR 371, 380. Petitioner then testified that
his wife and mother were in Kilinochchi (not Vanni) and that he “went for employment to
Colombo through Vavuvuniya.” AR 373. When the government attempted to clarify his story,
Petitioner stated that his wife and mother did not leave Vanni with him but separately traveled to
Vavuniya after learning that he had been arrested. AR 374-75. Petitioner also inconsistently
testified as to whether his wife was detained in Vavuniya. AR 229 (his wife was detained);
AR 369 (his wife was arrested when “she came in search of [him]”); AR 378 (his wife watched
the army arrest him and “screamed and cried”); AR 647 (wife’s statement; only Petitioner was
arrested). The government then asked Petitioner to explain why he told the asylum officer that
his wife and children met him in Vanni in 1996, despite the fact that his children were not born at
that time. AR 388. Petitioner responded that he met his wife and mother in Kilinochchi after he
went to Vanni. AR 388. Petitioner blamed the asylum officer for misrecording his statements.
AR 389.
Petitioner acknowledges in his brief that his testimony is inconsistent, but does not
attempt to explain or reconcile his story. Pet’r Br. 29. Rather, he states that his inability to recall
precise dates of events decades later should not be dispositive on his credibility. This court has
recognized that “victims of abuse often confuse the details of particular incidents,” Slyusar,
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740 F.3d at 1075 (quoting Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011)), and we have
“urge[d] the exercise of due care in evaluating such inconsistencies when reaching a credibility
determination,” id. But the REAL ID Act permits immigration judges to deny asylum
applications based on inconsistencies that are unrelated to the claim itself. Id. at 1073 (“under
the REAL ID Act, even ancillary inconsistencies in a petitioner's testimony support adverse
credibility determinations”). Although we may not have viewed these discrepancies in testimony
regarding a distant event the same way, we cannot say that the Agency’s decision lacks support
in the record. Cf. Slyusar, 740 F.3d at 1073 (“[W]hile another [immigration judge] might have
ruled differently, we find that no evidence has been presented that compels a different ruling.
We are thus bound by the decision of the [immigration judge] and the additional observations of
the [Board].”).
The 2015 Questioning. The record also supports the Board’s conclusion that Petitioner
offered inconsistent testimony concerning the 2015 incident. In his Amended Statement,
Petitioner wrote that the CID beat both his wife and his son in 2015 when they came looking for
Petitioner. AR 836. However, his wife’s statement and his own testimony asserted that only his
son was beaten. AR 648, 244. On appeal Petitioner claims that the inconsistency should not
count against him because he did not witness the event, relying on a pre-REAL ID Act case.
Again, although we may tend to agree with Petitioner, especially since it is undisputed that the
CID beat his son, under the REAL ID Act the immigration judge is entitled to rely on such an
inconsistency.
The 1993 Incident. First, the immigration judge noted that Petitioner testified on direct
examination and in his Amended Statement that he was arrested and detained in 1993 because he
was under suspicion of involvement in the bomb blast that killed a defense minister. However,
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in his credible fear interview, he did not mention the bomb blast that killed the defense minister,
the “precipitating event that gave rise to this very arrest in 1993.” AR 112. Second, as the
immigration judge and Board noted, Petitioner was specifically asked by the asylum officer
whether he had ever been detained, and failed to mention that after being held for five months on
the “fourth floor,” a floor of the Sri Lankan intelligence department known for torture, he was
transferred to the local police station and detained for an additional fifteen days. Third, he
neglected to tell the asylum officer that people from the Temple had to pay money to get him out
of jail, but included this fact in his testimony and amended statement. AR 113. The immigration
judge rejected Petitioner’s explanation that his emotional state allowed him to give only short
answers during his credible fear interview. AR 113-15. Although we “are reluctant to sustain an
adverse credibility finding on the grounds that an applicant’s testimony during a credible fear
assessment was not as complete as at the final hearing,” Toma v. Gonzales, 189 Fed. App’x 492,
498 (6th Cir. 2006), the record reflects that Petitioner understood the process, received the
assistance of an interpreter, and was given an opportunity to explain his story. See, e.g., Singh-
Kaur v. Holder, 575 F. App’x 770, 770 (9th Cir. 2014) (pre-REAL ID Act case upholding
adverse credibility determination based on an inconsistency between the petitioner’s testimony
and his record of sworn statement). Moreover, given the other bases underpinning the adverse
credibility finding, we express no opinion as to whether the omissions in the credible fear
interview, standing alone, would be sufficient to sustain the adverse credibility finding.
The bottom line: Although we might deem some of the Agency’s credibility findings as
relatively inconsequential to Petitioner’s asylum and related claims, they still serve as bases for
an adverse credibility determination under the REAL ID Act standard. Thus, the Board’s
adverse credibility determination, which is supported by evidence, prevents any reliance on
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Petitioner’s testimony as evidence for his claims of asylum, withholding of removal, and CAT
protection. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be sufficient
to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier
of fact that the applicant’s testimony is credible. . . . In determining whether the applicant has
met the applicant’s burden, the trier of fact may weigh the credible testimony along with other
evidence of record.”). Because Petitioner’s claim of past persecution depended almost entirely
on his own testimony, and he does not argue on appeal that his other evidence of past persecution
(in the form of statements by relatives) was independently sufficient, his claims for asylum and
withholding of removal based on past persecution fail.
Notwithstanding, we wish to add a cautionary note. As we remarked in Slyusar, because
the REAL ID Act allows immigration judges to deny asylum applications based on de minimis
omissions or inaccuracies unrelated to the claim itself, immigration judges should “exercise . . .
due care” when making credibility determinations. See Slyusar, 740 F.3d at 1075; cf. Marouf,
811 F.3d at 182 (REAL ID Act affords administrative fact finder broad discretion, but it does not
“permit a judge to ‘cherry pick’ facts or inconsistencies to support an adverse credibility finding
that is not supported by the record as a whole”) (citation omitted). The immigration judge’s
zealous mining of some relatively inconsequential inconsistencies compels us to reiterate that
concern here.
B. Transferred Credibility Determinations
Petitioner also contends that the Board improperly “transfer[red] adverse credibility
determinations “to . . . unconnected independent event[s].” Pet’r Br. at 20. More specifically, he
claims that the immigration judge’s adverse credibility determinations as to the 1993, 1996, and
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2015 incidents do not apply to the 2009 and 2014 incidents, which are independent events.
Thus, the 2009 and 2014 incidents were proper grounds for granting asylum. This argument is
unavailing because the adverse credibility determination extended to Petitioner’s testimony about
his experience in Sri Lanka and was not limited to three specific incidents. See AR 3-5; 110-21.
The immigration judge clearly stated that the “not credible” finding was “[b]ased upon the
totality of the circumstances and after considering all of the testimony and documentary evidence
of record . . . .” AR 110. Furthermore, under the REAL ID Act, the Board was not required to
confine an adverse credibility determination in such a manner. See El-Moussa, 569 F.3d at 256(noting that inconsistencies need not go to the heart of the applicant’s claim).
C. Future Persecution
Petitioner also challenges the Agency’s rejection of his claim that he has a fear of future
persecution. AR 5-6. Regardless of the adverse credibility determination, Petitioner can still
demonstrate eligibility for asylum or withholding of removal if he can establish through other
credible evidence that he has a well-founded fear of future persecution. 8 C.F.R.
§ 1208.13(b)(2). To be eligible for discretionary asylum, Petitioner bears the burden of
establishing either that “there is a reasonable possibility he . . . would be singled out individually
for persecution” on an enumerated ground if he returns to Sri Lanka, 8 C.F.R.
§ 1208.13(b)(2)(iii), or that “there is a pattern or practice . . . of persecution of a group of persons
similarly situated” and that he is included within that group, 8 C.F.R. § 1208.13(b)(2)(iii)(A)(B).
If Petitioner establishes the same but to the higher “more likely than not” standard, he is entitled
to mandatory withholding of removal. See 8 C.F.R. § 1208.16(b)(2). Evidence of general unrest
does not establish a fear of future persecution; the harm must be aimed at the applicant or his
group. See Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir. 2006); see also Vakeesan v.
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Holder, 343 F. App’x 117, 127 (6th Cir. 2009) (“[B]y finding that Vakeesan’s evidence
demonstrates only ‘generalized civil strife’ in Sri Lanka resulting from the civil war, the [Board]
necessarily found that Vakeesan's evidence does not demonstrate a pattern or practice of
persecution of innocent Tamils in Sri Lanka.”).
The Board reviewed the immigration judge’s factual findings and held that Petitioner had
“not met the very high burden of establishing a pattern or practice against Tamils in Sri Lanka.”
AR 6. The Board acknowledged that the immigration judge “considered the serious problems
and abuses perpetrated by the Sri Lankan government” and noted that “the evidence shows that
Tamils face hardships in Sri Lanka,” but found that they did not rise to the heightened level of
demonstrating a pattern or practice of persecution against Tamils. Id. The Board did not
reference any specific evidence, however.
The immigration judge found that the government rebutted any showing of a well-
founded fear of future persecution based on country condition evidence submitted by both the
government and Petitioner, namely the United States Department of State Country Reports on
Human Rights Practice for 2014 (“2014 Country Report”). See AR 670-97. Noting that
Petitioner’s “entire claim” is based on harm inflicted by government forces, the immigration
judge pointed out that the 2014 Country Report indicates that the authorities “maintained
effective control over the security forces” during the 2010 elections. AR 122. The immigration
judge acknowledged that the report discussed other serious problems, including unlawful killings
by security forces and government-allied paramilitary groups in Tamil-dominated areas and that
the Sri Lankan government is engaged in ongoing conflict with the LTTE. AR 122. Despite
this, the immigration judge held that the “unfortunate political landscape” would not result in
Petitioner having a fear of returning to Sri Lanka, because many of the articles dealt with
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upheaval from 2009-2012 and Petitioner’s own articles stated that the United Nations “is actively
engaged in having Sri Lanka take steps to ensure accountability for alleged war crimes.”
AR 123. Further, although some articles raised concerns regarding the 2015 presidential election
and torture accounts, this did not establish that Petitioner would be persecuted for his perceived
involvement in the LTTE if he returned. AR 123.
Yet, as the immigration judge observed, the 2014 Country Report also stated that “[t]he
major human rights problems reported over the year were attacks on, and harassment of, civil
society activists, journalists, and persons viewed as sympathizers of the . . . [LTTE] by
individuals allegedly tied to the government; involuntary disappearances, arbitrary arrest and
detention, torture abuse of detainees . . . and widespread impunity for a broad range of human
rights abuses.” AR 670. The 2014 Country Report’s finding regarding the government’s control
over the security forces is limited to the 2010 elections. AR 670. The 2014 Country Report also
stated that “[d]iscrimination against . . . the ethnic Tamil minority continued, and a
disproportionate number of the victims of human rights abuses were Tamils.” AR 670. The
report also indicates that “Tamils throughout the country, but especially in the north and east,
reported that security forces and paramilitary groups frequently harassed young and middle-aged
Tamil men.” AR 694.
Other documents, which the immigration judge seemingly glossed over, suggest a
continued pattern or practice of persecution against Tamils and sympathizers of LTTE. For
example, a resolution passed by the Northern Province Council (“Resolution”) “provides an
overview of the evidence demonstrating successive Sri Lankan governments’ genocide against
Tamils,” and urges the United Nations Office of the High Commission for Human Rights
Investigation on Sri Lanka (OISL) “to investigate the claim of genocide and recommend
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appropriate investigations and prosecutions by the International Criminal Court.” AR 733. The
Resolution references a report issued in March 2014 by an expert who contributed to the
Secretary-General’s United Nations Report, concluding that abduction, arbitrary detention,
torture, rape, and sexual violence have increased since 2009 and that “[t]hese widespread and
systematic violations by the Sri Lankan security forces occur in a manner that indicates a
coordinated, systematic plan approved by the highest levels of government.” AR 738. The
report “found ‘a pattern of targeting Tamils for abduction and arbitrary detention unconnected to
a lawful purpose, involving widespread acts of torture and rape.’” AR 738. The Resolution
found that the report “paints a chilling picture of the continuation of the conflict against the
ethnic Tamil Community with the purpose of sowing terror and destabilizing community
members who remain in the country.” AR 738. The Resolution concludes that “[t]o this day,
Tamils in the NorthEast suffer from Sri Lanka’s ongoing genocide.” AR 743.
A Freedom from Torture report (“FFT Report”) by the Medical Foundation for the Care
of Victims of Torture, dated January 5, 2016, one year after the January 5, 2015 presidential
election in Sri Lanka, noted that the Foundation has continued to receive numerous referrals for
people tortured in Sri Lanka, and warned that “the Government must place a higher priority on
tackling torture by the country’s military, police and security services.” AR 554. The FFT
report quotes Sonya Sceats, Director of Policy and Advocacy, who stated that: “We have
medical evidence of torture by the Sri Lankan military and intelligence services since [the new
president] came to power, which suggest that an abusive ‘deep state’ is still terrorizing
communities and impeding Sri Lanka’s post-war revival.” AR 555.4
4
Interestingly, the report states that two of the survivors identified a notorious camp run by the
military in Vavuniya as a torture facility, and “[o]thers reported torture facilities included in the
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The International Truth and Justice Project on Sri Lanka Report (“ITJP Report”), dated
January 2016, states that despite the Sri Lankan government’s promise at the Human Rights
Council in Geneva in September 2015 to deliver post-war accountability, “[h]uman rights
violations by the security forces continue with impunity and a predatory climate against Tamils
prevails.” AR 565. The report documents abductions and unauthorized detentions of twenty Sri
Lankan Tamils all occurring after the January 2015 presidential elections. AR 568. It explains
that the victims “were abducted in targeted pre-planned operations. There was nothing random
or opportunistic about the security forces’ actions.” AR 569. It states that some of the 2015
victims were targeted “[t]o deter them and other Tamils from exercising their legitimate,
democratic political rights,” and some “[a]s a form of post-war ethnic cleansing in order to make
their life so fearful and unbearable, . . . that they flee the country.” AR 569. An additional listed
reason is “[p]ersecution.” AR 569. In its conclusion, the ITJP Report states that the twenty
documented cases
reveal not only that torture and oppression continue in Sri Lanka but that they
remain widespread and systematic. They are the work of a well-organised
machine which continues to thrive within the Sri Lankan police and military
fueled by extortion. It is responsible for terrorizing and oppressing Tamils. This
is therefore not a question of a few rotten apples in the system, as the new
government suggests, but rather the result of structures that have long been
corrupted.
AR 593.
In short, these articles tend to undermine the immigration judge’s finding that the United
Nations’ attempts to reform the Sri Lankan government’s approach to terror and torture have
been effective and they require a closer inspection upon remand. See generally Marouf,
fourth floor headquarters of the Criminal Investigation Department in Colombo and a makeshift
jungle camp . . . .” AR 555. This information resembles Petitioner’s account.
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811 F.3d at 187 (holding that the immigration judge “impermissibly ‘cherry-pick[ed]’ a general
statement that was belied by more specific and relevant evidence in the same report”). Granted,
the Report of the Office of the United Nations High Commissioner for Human Rights on
Promoting Reconciliation, Accountability and Human Rights in Sri Lanka dated September 16,
2015 stated that the new president of Sri Lanka has pledged in public statements a need for
justice for all citizens. AR 702, 709, 712. But it is otherwise a scathing account of continuing
human rights abuses in Sri Lanka. See AR 702-03 (stating that the new government has yet to
“embark on any comprehensive process of demilitarization,” and that torture and sexual violence
remain a critical concern), 704-09.
We recognize that Petitioner provided “a plethora of information regarding problems that
are occurring in Sri Lanka.” AR 123. However, Petitioner’s alternate ground for asylum or
withholding of removal deserved the same vigorous attention the immigration judge accorded to
the credibility determination. The Board’s summary endorsement of the immigration judge’s
reasoning added nothing to this analysis. The foregoing examples appear to support an
objectively reasonable fear of future persecution based on Petitioner’s Tamil ethnicity, and his
ethnicity is not disputed. Because the agency failed to give “reasoned consideration” to
Petitioner’s application for asylum or withholding of removal based on a well-founded fear of
future prosecution, and we are “unable to review the evidence in the first instance,” we vacate
the order denying the petition for review and remand for further proceedings. See Gaksakuman
v. U.S. Att’y Gen., 767 F.3d 1164, 1170, 1171 (11th Cir. 2014) (internal quotation marks and
citations omitted) (holding that the Board failed to give “reasoned consideration” to the
petitioner’s application for asylum based on documents supporting his status as an failed asylum
seeker in Sri Lanka); see also Ruiz-Del-Cid v. Holder, 765 F.3d 635, 639 (6th Cir. 2014)
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(holding that if the Board fails to adequately explain its reasoning, the court of appeals should
not try to correct the deficiencies but should remand for further analysis). After examining these
materials, the immigration judge may ultimately reach the same conclusion. But a more detailed
analysis is required to facilitate appellate review.
Alternatively, Petitioner may also show an individualized fear of future persecution by
offering “specific information showing a real threat.” Dieng v. Holder, 698 F.3d 866, 872 (6th
Cir. 2012); see also 8 C.F.R. 1208.13(b)(2)(iii). We think that the arrest warrant may suffice.
On July 22, 2015, an arrest warrant was issued for Petitioner under the Prevention of Terrorism
Act (“PTA”). AR 656-57.5 The 2014 Country Report indicates that the PTA gives security
forces “sweeping powers to search, arrest, and detain” often “for prolonged periods without
charge.” AR 677. The PTA “has attracted universal condemnation ever since it was enacted,”
because it “encourages the pervasive violation of human rights” and “has been deployed to . . .
inflict physical harm and mental distress” on Sri Lankans. AR 611. In a September 2015 report,
the Office of the United Nations High Commissioner for Human Rights in Sri Lanka suggested
its repeal. AR 715. Yet the record indicates that it remains in force. AR 713.6
The immigration judge did not make any finding regarding the arrest warrant and the
Board does not mention it. This also leads us to conclude that the Agency failed to give
“reasoned consideration” to Petitioner’s asylum or withholding of removal claims based on a
5
The arrest warrant is not fully translated. But the relevant portion is translated to state:
“Charges against under the prevention of Terrorism Act. 427.” AR 656.
6
An article from the Global Legal Monitor, by Constance Johnson, “Sri Lanka: New Terrorism
Law Being Drafted,” dated November 22, 2016, states that the Sri Lankan government is
drafting new anti-terrorism legislation to replace the existing Prevention of Terrorism Act.
Constance Johnson, Sri Lanka: New Terrorism Law Being Drafted, LAW LIBRARY OF CONGRESS,
(Nov. 22, 2016), http://www.loc.gov/law/foreign-news/article/sri-lanka-new-terrorism-law-
being-drafted/
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No. 16-4232, Thayaparan v. Sessions
fear of future persecution requiring a remand for review of the evidence in the first instance. See
Gaksakuman, 767 F.3d at 1171. The government responds that the document is not relevant
because it does not specify that Petitioner “will be indefinitely detained, charged, tortured.”
Resp’t Br. 34. But we think it very unlikely that the government would telegraph its intent to
commit human rights abuses on the face of a warrant.
The immigration judge’s other reasons for denying Petitioner’s asylum and withholding
of removal claims based on a fear of future persecution do not save the Agency’s order. The
immigration judge found that the government rebutted any showing of a well-founded fear of
future persecution because Petitioner “was able to remain at his aunt’s house before his departure
from Sri Lanka for a period of time” without harm, and his wife and children remain in Sri
Lanka safely. AR 124. Further, Petitioner himself was able to live in various places and work
despite the alleged acts of harm in 1993, 1996, 2009, and 2014. AR 124. The immigration
judge’s logic is problematic. First, Petitioner stated that he had no problems at his aunt’s house
because he did not go out. AR 99. And “the period of time” he remained there was only thirteen
days. This is slim evidence of a safe environment. Second, Petitioner, as a middle-aged Tamil
male, is not similarly situated to his wife and children; indeed the evidence suggests that Tamil
males are the primary target of the armed forces. (Besides, Petitioner and his wife agreed that
their son was beaten, undermining the immigration judge’s assertion that Petitioner’s children
are safe.) Third, the immigration judge merely conjectured that Petitioner could safely relocate
to another part of the country and also did not find that it would be reasonable to expect the
applicant to do so under all the circumstances. 8 C.F.R. § 1208.13(b)(1)(i)(A), (B). In short, at
this juncture these proffers do not refute Petitioner’s fear of future persecution.
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D. Failed Asylum Seeker
The Board also rejected Petitioner’s claims for asylum, withholding of removal, and CAT
protection based on his status as a “failed asylum seeker.” The immigration judge did not
address this argument.7 The Board did, noting that Petitioner “submitted newspaper articles
discussing claims that some asylum seekers who traveled by boat to Australia were detained and
suffered mistreatment upon return to Sri Lanka,” but ruled that Petitioner had not shown he was
similarly situated to those individuals. AR 6.
We disagree. Petitioner submitted several documents pertaining to the arrest, detention,
and torture of returned asylum seekers, and not just those returning from Australia. AR 781-801.
More to the point, Petitioner is similarly situated because they are all “failed asylum seekers” and
most are Tamil. The method of transport for departure is not the defining characteristic of the
group. For example, an Amnesty International report from 2011 states that the Sri Lankan
government “ha[d] a history of arresting and detaining Sri Lankan asylum seekers upon their
return and we are aware of cases of people being tortured.” AR 791. Another document quotes
an official of the Catholic Church’s Edmund Rice Centre as saying, “The difficulty here is that
there is a view in Sri Lanka that anybody who left the country through an unauthorised manner,
of unauthorised means, is an LTTE sympathizer[.]” AR 793. For that reason, “sending them
back is sending them back into danger.” AR 794. More recently, an article in the Colombo
Telegraph dated March 21, 2014, states that since the civil war ended in 2009, the Sri Lankan
government has developed an extensive surveillance and intelligence system that targets Tamils
returning to Sri Lanka, who upon returning have “become victims of abductions, arbitrary
7
The government contends that Petitioner did not make this claim until closing argument. It is,
however, presented in Petitioner’s memorandum of law to the immigration judge, AR 912-13,
and the Board addressed it.
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No. 16-4232, Thayaparan v. Sessions
detentions, torture and sexual violence.” AR 755. The article states that five years after the end
of the civil war, the Sri Lankan government “regards every Tamil in the North and East as a
potential LTTE suspect” and that “[i]ts practices are neither consistent with the government
claims of reconciliation or its assertions as to the respect of human rights.” AR 755.
Two of these reports are mentioned in the Eleventh Circuit’s opinion in Gaksakuman.8
There, the Eleventh Circuit held that the evidence tended to prove that failed asylum seekers
were at the risk of being detained and tortured regardless of whether they were actually Tamil
with ties to the LTTE. Gaksakuman, 767 F.3d at 1170. The Gaksakuman court examined a
number of documents, which “tended to prove that officials in Sri Lanka tortured at least some
failed asylum seekers, particularly if they had an actual or perceived association with the
Liberation Tigers.” Id. Because the Board failed to give “reasoned consideration” to the
petitioner’s application, the case was remanded for further proceedings to determine whether he
was likely to suffer torture if returned to Sri Lanka as a failed asylum seeker. Id. at 1171.
We think the same course of action is in order here. On remand we ask that the Board
provide a more careful and accurate explanation of its conclusions based on all of the evidence
submitted by Petitioner. See Gaksakuman, 767 F.3d at 1171 (remanding for further proceedings
because appellate court was “‘unable to review’ the evidence in the first instance”); Tan v. U.S.
Att’y Gen., 446 F.3d 1369, 1377 (11th Cir. 2006) (holding that the immigration judge did not
give “reasoned consideration” to petition for withholding of removal and his findings were
inadequate). Although this court has held that the Board “has no duty to write an exegesis on
every contention,” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003) (citation omitted), it is
8
Curiously, the government does not mention, let alone address, Gaksakuman, despite the fact
that Petitioner cites it in his brief. See Pet’r Br. 12 (quoting his brief to the Board). The Board in
its decision also did not address Gaksakuman.
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No. 16-4232, Thayaparan v. Sessions
required to consider all the evidence submitted by the petitioner, see Tan, 446 F.3d at 1376, and
to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has
heard and thought and not merely reacted,” Scorteanu, 339 F.3d at 412 (citation omitted).
E. Arrest Warrant
Petitioner has offered evidence in the form of the arrest warrant pursuant to the PTA
issued against him shortly after he left Sri Lanka. As noted, the immigration judge made no fact
findings regarding the arrest warrant. For this reason remand for further consideration of
Petitioner’s claims based on this evidence is appropriate.
III. CONCLUSION
For the foregoing reasons, we GRANT the petition for review as to Petitioner’s claims
for asylum, withholding of removal, and CAT protection based on a fear of future persecution,
VACATE the order of the Board, and REMAND for further proceedings consistent with this
opinion.
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