Palihawadana Perera v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PALIHAWADANA A. DUNSTAN No. 10-71276
PERERA; DEHIWATTAGE C. R.
FERNANDO, Agency Nos. A088-223-764
A088-223-765
Petitioners,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2014**
Pasadena, California
Before: PREGERSON and WARDLAW, Circuit Judges, and BURRELL, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Garland E. Burrell, Jr., Senior District Judge for the
U.S. District Court for the Eastern District of California, sitting by designation.
Palihawadana A. Dunstan Perera (“Perera”) and Dehiwattage C.R. Fernando
(“Fernando”), husband and wife, natives and citizens of Sri Lanka, petition for
review of a Board of Immigration Appeals (“BIA”) order dismissing their appeal
from an immigration judge’s (“IJ’s”) decision denying their applications for
asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and protection under
the Convention Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C.
§ 1252, and we grant the petition for review.
Factual Background
Because the IJ found Perera credible, we take Perera’s testimony as true.
Baballah v. Ashcroft, 367 F.3d 1067, 1071 n.1 (9th Cir. 2004).
Perera’s father is a longtime activist for Sri Lanka’s United National Party.
After the People’s Alliance—which opposes the United National Party—won Sri
Lanka’s 2005 general and presidential elections, groups of armed People’s
Alliance supporters began threatening perceived supporters of the United National
Party. Some of these People’s Alliance supporters began targeting Perera’s parents
because of Perera’s father’s affiliation with the United National Party. They
attacked the Perera family home—the home Petitioners had shared with Perera’s
parents, when Petitioners lived in Sri Lanka—at night. They would try to break the
1
Fernando’s application is derivative of lead petitioner Perera’s application.
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house’s windows, bang on doors, and scream and curse at Perera’s mother and
father. When Perera’s father complained to the police, some of these same
attackers came to the Perera home one night, dragged Perera’s father outside, beat
him, and broke his leg. Later, Perera’s mother and father were deliberately run off
the road, in an apparent attempt on their lives. Perera’s father was gravely injured,
and he was hospitalized for about a month. Anonymous callers later told Perera’s
parents that the attackers had intended to kill them, and that the attackers still
intended to kill the entire family.
Analysis: Asylum
To be eligible for asylum, Petitioners must show that they are unwilling or
unable to return to Sri Lanka “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see also 8 U.S.C.
§ 1158(b)(1)(A).
“A well-founded fear of persecution must be both subjectively genuine and
objectively reasonable.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001)
(internal quotation marks omitted). In this case, it is undisputed that Petitioners’
fear of persecution is subjectively genuine. Thus, the question is whether
Petitioners’ fear of persecution is objectively reasonable.
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The record compels a reasonable factfinder to conclude that Petitioners’ fear
of persecution is objectively reasonable. The politically motivated violence
directed against Perera’s mother and father amounts to persecution. See Navas v.
INS, 217 F.3d 646, 658 (9th Cir. 2000). That Perera’s parents in Sri Lanka have
been persecuted makes it objectively reasonable for Petitioners to fear that they,
too, will be persecuted if they rejoin Perera’s parents in Sri Lanka. See Mgoian v.
INS, 184 F.3d 1029, 1036 (9th Cir. 1999). Moreover, the people persecuting
Perera’s mother and father have threatened to persecute—and, indeed,
kill—Petitioners’ entire family. Thus, it is reasonable for Petitioners to fear that
they will be persecuted if they return to Sri Lanka. See Kaiser v. Ashcroft, 390
F.3d 653, 658 (9th Cir. 2004).
Likewise, substantial evidence compels the conclusion that Petitioners have
established a well-founded fear of persecution on account of imputed political
opinion, which is a protected ground. See Al-Harbi, 242 F.3d at 888.
Uncontroverted evidence establishes that Perera’s father has been targeted for
persecution based on his political beliefs, and that the rest of his family has been
targeted because of his political affiliation. This, in turn, establishes that
Petitioners—as members of Perera’s father’s family—fear persecution based on
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imputed political opinion. See Silaya v. Mukasey, 524 F.3d 1066, 1070-72 (9th
Cir. 2008); Navas, 217 F.3d at 659.
Because Petitioners have established a well-founded fear of persecution
based on a protected ground, Petitioners are eligible for asylum.
Analysis: Withholding of Removal
Under 8 U.S.C. § 1231(b)(3), the Attorney General is required to withhold
removal of an applicant who can “prove that it is more likely than not that he will
be persecuted on account of a statutorily-protected ground.” Navas, 217 F.3d at
655 (internal quotation marks omitted).
Substantial evidence compels the conclusion that Petitioners are more likely
than not to be persecuted based on imputed political opinion if they are removed to
Sri Lanka. Perera’s father’s political activity has caused his entire family to be
targeted for persecution. As a result, Perera’s parents—who live in Sri
Lanka—have suffered persecution. Only one thing has saved Petitioners from
joining Perera’s parents in suffering this persecution: Petitioners, unlike Perera’s
parents, do not live in Sri Lanka. “[Petitioners have] not suffered persecution
simply because [their] would be abusers cannot reach [them].” Njuguna v.
Ashcroft, 374 F.3d 765, 770 (9th Cir. 2004). If Petitioners are removed to Sri
Lanka, however, the people who have persecuted Perera’s parents will also be able
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to reach—and persecute—Petitioners. Thus, it is more likely than not that
Petitioners will be persecuted if removed to Sri Lanka, and Petitioners are entitled
to withholding of removal. See id. at 771-72.
Because Petitioners are entitled to withholding of removal under 8 U.S.C.
§ 1231(b)(3), we need not decide whether Petitioners are also entitled to protection
under CAT.
Conclusion
Substantial evidence compels the conclusion that Petitioners are eligible for
asylum. Likewise, substantial evidence compels the conclusion that Petitioners are
entitled to withholding of removal. Thus, we GRANT the petition for review with
respect to Petitioners’ asylum and withholding claims. We REMAND to the BIA
for an exercise of the Attorney General’s discretion to determine whether
Petitioners should be granted asylum, with instructions that Petitioners also be
granted withholding of removal.
GRANTED and REMANDED.
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