Thamotharam Thayalan v. Attorney General United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-2270
______________
THAMOTHARAM PILLAI THAYALAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
____________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A203-596-281)
Immigration Judge: Pallavi S. Shirole
____________
Argued: January 29, 2021
Before: RESTREPO, BIBAS, and PORTER,
Circuit Judges.
(Filed: May 10, 2021)
____________
Brian J. Slipakoff [Argued]
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103
Counsel for Petitioner Thamotharam Pillai Thayalan
Anthony C. Payne
Jennifer A. Bowen [Argued]
Raya Jarawan
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent Attorney General
of the United States of America
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
Thamotharam Pillai Thayalan is a native and citizen of
Sri Lanka. On July 10, 2019, he was apprehended in California
after illegally entering the United States. The Department of
Homeland Security initiated removal proceedings, and
Thayalan sought relief from removal in the form of asylum and
withholding of removal under the Immigration and Nationality
Act (“INA”).
2
Thayalan testified that in 2007, when he was about six-
teen years old, he was kidnapped and blindfolded by members
of the Sri Lankan army and taken to an army camp. While he
was detained, soldiers hit his head against a wall and punched
him in the stomach. He claims that this mistreatment consti-
tutes past persecution, entitling him to a presumption of a well-
founded fear of future persecution. Thayalan also claims a
well-founded fear of future persecution based on two incidents
in 2019, when members of the Eelam People’s Democratic
Party (“EPDP”) of Sri Lanka tried to extort money from him.
Thayalan maintains that he was targeted for extortion because
of the EPDP’s false belief that he financially supported a rival
political party.
The agency credited Thayalan’s testimony, but ordered
his removal to Sri Lanka. The agency determined that (1) the
Sri Lankan army’s mistreatment of Thayalan did not rise to the
level of persecution, and (2) the EPDP members targeted
Thayalan for extortion because they wanted his money, not
because of disapproval of any political opinion. As a result,
Thayalan failed to meet his burden of showing past persecution
or a well-founded fear of future persecution on account of a
ground protected by the INA and thus was ineligible for both
asylum and withholding of removal.
Thayalan petitions for review of the order of removal.
He contends that the agency’s past-persecution determination
contravenes this Court’s precedents and that substantial evi-
dence does not support the agency’s determination about what
motivated the EPDP’s extortion efforts. We disagree with
Thayalan on both counts, so we will deny the petition.
3
I
A
Thayalan was apprehended near the United States–
Mexico border after making an illegal entry. Thayalan
expressed to an asylum officer a fear of returning to Sri Lanka.
The asylum officer found that Thayalan had demonstrated a
credible fear of persecution. In proceedings before an immi-
gration judge (“IJ”), Thayalan conceded the Department of
Homeland Security’s charges of removability and applied for
asylum and withholding of removal.
B
Thayalan testified in support of his application. He told
the IJ that in 2007, when he was about sixteen years old, he and
other ethnic Tamils were kidnapped and blindfolded by mem-
bers of the Sri Lankan army after a bomb went off during the
Sri Lankan Civil War. He was taken to an army camp, where
men tied his arms together, hit his head against a wall, and
punched him in the stomach. He was released after two hours,
and while he did not seek medical help, he did experience
swelling on his head and pain in his stomach for three days.
Thayalan also testified about two incidents that
occurred in March and April 2019, when members of the EPDP
tried to extort him. Thayalan received a phone call from “the
EPDP people” telling him that he “had to pay them money.”
A.R. 115. The EPDP told Thayalan that since he gave money
to the Tamil National Alliance (“TNA”), a different political
party, he also had to give money to the EPDP. The TNA was
the ruling party in the Northern Province of Sri Lanka, where
Thayalan resided. Before hanging up the phone, the EPDP told
4
Thayalan, “you know if you don’t pay us money what will hap-
pen.” A.R. 125. Thayalan knew of a bar owner who the EPDP
shot and killed after he failed to comply with a demand for
money.
Thayalan refused to make the demanded payment, and
a few days after the phone call, EPDP members came to his
store. They threatened to shoot Thayalan if he did not pay them
a specified sum of money within three days. Rather than remit
payment, Thayalan fled to Colombo, a city in a different part
of Sri Lanka, for two weeks. The EPDP members came back
to Thayalan’s store after he fled, but did not search for him in
Colombo.
Asked during his hearing if the EPDP was “asking you
for money because you were a business owner,” Thayalan
replied that the EPDP asked him for money “[b]ecause I was
doing business, and also they were falsely accusing me that I’m
working for TNA, and I’m paying TNA the money.” A.R. 130.
Thayalan also testified that the EPDP wanted “revenge” on him
“[b]ecause I’m a businessman, I work along with other Tamil
groups and help the Tamil people.” A.R. 115–16.
C
The IJ found that Thayalan “testified credibly and . . .
sufficiently corroborated his claim.” A.R. 57. But the IJ never-
theless denied Thayalan’s application for asylum and with-
holding of removal. The IJ determined that the harm Thayalan
experienced from the 2007 detention and beating did not
amount to persecution. As for the 2019 incidents, the IJ found
that Thayalan did not show the requisite connection between
the extortion attempts and a protected ground, because the
EPDP members were motivated to extort Thayalan by a desire
5
for money and not by any imputed pro-TNA political opinion.
In the IJ’s view, “the members of the EPDP seem[ed] to be
targeting [Thayalan] because they believed he was able to pay
another organization and, therefore, should also pay the
EPDP.” A.R. 60. And even if the EPDP members did harm
Thayalan on account of a protected ground, the IJ concluded
that he had not established a reasonable possibility that they
would harm him in the future. The IJ also determined that, if
Thayalan were removed, it would be reasonable for him to
relocate within Sri Lanka to prevent any future harm at the
hands of the EPDP. Thayalan thus failed to establish eligibility
for asylum or withholding of removal. Accordingly, the IJ
denied Thayalan’s application and ordered his removal.
D
Thayalan appealed to the Board of Immigration Appeals
(“BIA”), which upheld the IJ’s decision.
The BIA agreed with the IJ that the harm done to
Thayalan in 2007 did not amount to persecution. Turning to the
2019 extortion attempts, the BIA affirmed the IJ’s determina-
tion that the EPDP members who threatened Thayalan “were
motivated to extort [him] because he was a business owner
who [sic] they perceived to have the financial means to con-
tribute to the EPDP.” A.R. 4 (citing A.R. 60–61). The BIA
noted that the EPDP members never demanded that Thayalan
stop supporting the TNA or insisted that he change his political
opinions or support EPDP candidates. As a result, any pro-
TNA opinion that the EPDP may have imputed to Thayalan
was, at most, an “incidental, tangential, or superficial reason[]
for the extortion and threats by the EPDP members.” A.R. 4.
The BIA also concluded that Thayalan failed to show a reason-
able likelihood that the EPDP would persecute him upon his
6
return to Sri Lanka or that he could not relocate within Sri
Lanka to avoid any future harm. After agreeing with the IJ that
Thayalan was ineligible for asylum, the BIA likewise adopted
the IJ’s determination that Thayalan could not meet the higher
standard for withholding of removal.
This timely petition for review followed.
II
We have jurisdiction over this petition for review of a
final order of removal under 8 U.S.C. § 1252(a). Where, as
here, “the ‘BIA’s opinion directly states that the BIA is defer-
ring to the IJ, or invokes specific aspects of the IJ’s analysis
and factfinding in support of the BIA’s conclusions,’ we
review both decisions.” Uddin v. Att’y Gen., 870 F.3d 282, 289
(3d Cir. 2017) (quoting Oliva-Ramos v. Att’y Gen., 694 F.3d
259, 270 (3d Cir. 2012)).
We review challenges to the agency’s factual findings
under the familiar substantial-evidence standard. See Romero
v. Att’y Gen., 972 F.3d 334, 340 (3d Cir. 2020). Under our
“highly deferential” review, “[t]he agency’s ‘findings of fact
are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Nasrallah v. Barr,
140 S. Ct. 1683, 1692 (2020) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). “If a reasonable fact finder could make a par-
ticular finding on the administrative record, then the finding is
supported by substantial evidence.” Dia v. Ashcroft, 353 F.3d
228, 249 (3d Cir. 2003) (en banc).
“Whether an asylum applicant has demonstrated past
persecution or a well-founded fear of future persecution is a
factual determination reviewed under the substantial evidence
7
standard.” 1 Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005).
An agency determination about whether an asylum applicant
has established the requisite nexus between the persecution he
has suffered or will suffer and his protected characteristic is
also reviewed for substantial evidence. See INS v. Elias-
Zacarias, 502 U.S. 478, 481 & n.1, 483–84 (1992); Gonzalez-
Posadas v. Att’y Gen., 781 F.3d 677, 686 (3d Cir. 2015). We
will not, however, defer to a factual finding that is “based on a
1
We suggested last year that, where “[n]either party disputes
the facts underlying [a petitioner’s] past-persecution claim,”
we “review the BIA’s application of our past-persecution
standard to those facts de novo.” Herrera-Reyes v. Att’y Gen.,
952 F.3d 101, 106 (3d Cir. 2020). In Herrera-Reyes, we
applied de novo review to the question of whether the BIA
misapprehended the legal methodology we have prescribed for
assessing persecution. 952 F.3d at 108–09. We concluded that
it was legal error for the agency to examine incidents of alleged
past persecution in isolation from each other rather than
cumulatively and to restrict qualifying harm to that inflicted on
the petitioner herself, excluding harm to family members or
close associates. See id. at 108–11. In contrast, where the
agency does not misapprehend applicable law, we apply the
substantial-evidence standard to an agency determination that
an alien did not suffer harm rising to the level of persecution
even where the underlying facts about how an alien was
mistreated are undisputed. See Jarbough v. Att’y Gen., 483
F.3d 184, 191–92 (3d Cir. 2007); Al-Fara v. Gonzales, 404
F.3d 733, 738–40 (3d Cir. 2005); Chen v. Ashcroft, 381 F.3d
221, 234–35 (3d Cir. 2004) (Alito, J.); Abdille v. Ashcroft, 242
F.3d 477, 483, 492–95 (3d Cir. 2001). We do so because the
question of whether a particular fact pattern rises to the level
of persecution is largely fact-driven.
8
misunderstanding of the law.” Doe v. Att’y Gen., 956 F.3d 135,
141 (3d Cir. 2020).
III
To be eligible for asylum, an alien must demonstrate
that he is unable or unwilling to return to his home country
“because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a par-
ticular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); see id. § 1158(b); Sunuwar v. Att’y Gen.,
989 F.3d 239, 244 n.2 (3d Cir. 2021). An alien can establish
eligibility for asylum based on past persecution if he shows “(i)
that he was targeted for mistreatment ‘on account of one of the
statutorily-protected grounds,’ (ii) that the ‘incident, or inci-
dents’ of mistreatment ‘rise to the level of persecution,’ and
(iii) that the persecution was ‘committed by the government or
forces the government is either unable or unwilling to con-
trol.’” Doe, 956 F.3d at 141–42 (quoting Abdulrahman v.
Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003)). “A showing of
past persecution gives rise to a rebuttable presumption of a
well-founded fear of future persecution.” Toure v. Att’y Gen.,
443 F.3d 310, 317 (3d Cir. 2006) (citing 8 C.F.R.
§ 208.13(b)(1)). An alien who has not suffered past persecution
can establish eligibility for asylum by showing a “reasonable
possibility” of future persecution on account of a protected
ground. Doe, 956 F.3d at 151 (internal quotation marks omit-
ted) (quoting Lukwago v. Ashcroft, 329 F.3d 157, 175 (3d Cir.
2003)). Persecution is on account of a protected ground only if
that ground “was or will be at least one central reason for per-
secuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
To be granted withholding of removal under the INA,
an alien bears the heavier burden of proving that he would
9
more likely than not be persecuted on account of race, religion,
nationality, membership in a particular social group, or politi-
cal opinion if returned to the proposed country of removal. See
8 U.S.C. § 1231(b)(3)(A); Gonzalez-Posadas, 781 F.3d at 684.
An alien who establishes past persecution is entitled to a rebut-
table presumption that he would more likely than not be perse-
cuted if removed. See Kaita v. Att’y Gen., 522 F.3d 288, 296
(3d Cir. 2008) (citing 8 C.F.R. § 1208.16(b)(1)). Because with-
holding of removal requires a showing of a greater-than-fifty-
percent chance of persecution rather than just a reasonable pos-
sibility, “an applicant who cannot meet the standard for asylum
will necessarily be unable to meet the standard for withholding
of removal.” Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 348–
49 (3d Cir. 2008). As with asylum, persecution is not on
account of a protected ground unless that ground is at least
“one central reason” why the applicant was or will be targeted.
Gonzalez-Posadas, 781 F.3d at 684–85 & n.6.
This case requires us to resolve two questions. First, did
the agency err in determining that the Sri Lankan army’s mis-
treatment of Thayalan does not rise to the level of
persecution? 2 Second, does the record compel rejection of the
agency’s conclusion that the EPDP did not target Thayalan on
account of a protected ground?
We answer each question in the negative. As a result,
Thayalan’s asylum and withholding-of-removal claims fail,
2
If we concluded that Thayalan was subjected to persecution,
a remand to the agency would be appropriate for a determina-
tion of whether the presumption of a well-founded fear of
future persecution could be rebutted. See Herrera-Reyes, 952
F.3d at 112 (citing 8 C.F.R. § 208.13(b)(1)(i)).
10
and we need not address the agency’s alternative grounds for
denying Thayalan relief from removal.
A
We consider first whether the 2007 detention and beat-
ing rises to the level of persecution. We emphasize at the outset
of our analysis that the Sri Lankan army’s treatment of
Thayalan was deeply troubling. But the fact that an alien has
been treated deplorably by his government does not necessarily
mean that he has suffered persecution. “Persecution” is “an
extreme concept.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir.
1993) (Alito, J.). “While it includes ‘threats to life, confine-
ment, torture, and economic restrictions so severe that they
constitute a threat to life or freedom,’ . . . it ‘does not encom-
pass all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional.’” Al-Fara v. Gonzales, 404
F.3d 733, 739 (3d Cir. 2005) (quoting Fatin, 12 F.3d at 1240).
Though a single incident may be extreme enough to constitute
persecution, a past-persecution claim will usually be stronger
where government actors “were engaged in a ‘program or cam-
paign to drive away or subjugate’” the applicant. Voci, 409
F.3d at 614 (ellipsis omitted) (quoting Fatin, 12 F.3d at 1240
n.10).
The BIA concluded that, although Thayalan was only
sixteen years old at the time of the incident, the harm he suf-
fered “does not rise to the level of persecution.” A.R. 3–4. It
emphasized that Thayalan did not seek medical care for his
injuries. And it cited three of our past decisions in support of
its conclusion: Chen v. Ashcroft, 381 F.3d 221, 223, 234–35
(3d Cir. 2004) (Alito, J.), Kibinda v. Attorney General, 477
F.3d 113, 119–20 (3d Cir. 2007), and Doe, 956 F.3d at 143.
11
The agency’s reliance on Chen and Kibinda was proper, but its
discussion of Doe borders on error.
In Chen, the petitioner was informed by Chinese offi-
cials that his fiancée’s child would have to be aborted. 381 F.3d
at 223. When those officials came to the petitioner’s home
looking for his fiancée, the petitioner refused to disclose her
whereabouts. Id. The officials began hitting him with sticks,
and the petitioner fought back with a plumbing tool. Id. The
petitioner’s parents intervened to end the scuffle. Id. The offi-
cials left, warning the petitioner that he would be arrested if his
fiancée “did not report for an abortion in three days.” Id. We
concluded that the petitioner had not suffered past persecution
because his “scuffle with the local officials does not appear to
have been serious” and the petitioner “never alleged that this
altercation resulted in any injuries that required medical treat-
ment.” Id. at 235.
In Kibinda, the petitioner, a member of the Angolan
army, was detained for five days for violating a curfew order.
477 F.3d at 117. At one point during his detention, a guard
threw a heavy object that struck the petitioner’s jawbone, caus-
ing a laceration that required seven stiches. Id. We held that the
petitioner’s “detention by the Angolan army and the attendant
circumstances of that detention simply do not rise to the level
of persecution as we have defined it” because the mistreatment,
“as offensive as it may be, was far from unusual or extreme.”
Id. at 119. We explained that “the injury [the petitioner] suf-
fered . . . , though it left a scar, was certainly not severe, requir-
ing as it did only a few stitches.” Id. While agreeing with the
agency’s conclusion that the conduct did not amount to perse-
cution, we also cautioned that we were not “suggest[ing] that
the severity of an injury should be measured in stitches.” Id. at
120. But because the petitioner “provided no other objective
12
evidence to demonstrate that the single injury he suffered was
severe enough to constitute persecution under our stringent
standard,” we upheld the agency’s decision. Id.These cases support the BIA’s decision here because
they show that physical abuse, even in the context of detention,
may not rise to the level of past persecution, especially in the
absence of concrete and menacing threats of violence or death.
An alien who can show an “escalating pattern of mistreatment”
will tend to have a stronger past-persecution claim. Herrera-
Reyes v. Att’y Gen., 952 F.3d 101, 112 (3d Cir. 2020); accord
Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020) (“Persecu-
tion . . . has the quality of a sustained, systematic effort to tar-
get an individual on the basis of a protected ground.” (emphasis
omitted)). Thayalan has not shown such a pattern here. Instead,
the mistreatment he faced was a true one-off. There is no indi-
cation that Thayalan was threatened or that the Sri Lankan
army pursued him after his release. And, like the petitioner in
Kibinda, he has not produced evidence to show that he suffered
any severe or protracted injury (whether or not of a physical
nature) that would further support his past-persecution claim.
In fact, his detention was far shorter than the five-day detention
the petitioner suffered in Kibinda. For these reasons, consider-
ing the totality of the circumstances, we uphold as supported
by substantial evidence the agency’s finding that Thayalan has
not suffered past persecution.
While we leave undisturbed the BIA’s ultimate disposi-
tion of this case, we pause to comment on its treatment of our
decision in Doe. The BIA cited Doe for the proposition that
“isolated incidents of beatings that do not result in serious
injury do not rise to the level of persecution.” A.R. 4 (citing
Doe, 956 F.3d at 143). That was a poor paraphrasing of Doe’s
quotation of our decision in Voci. It is true that in Voci, we
13
suggested that “isolated incidents that do not result in serious
injury do not rise to the level of persecution.” 409 F.3d at 615.
But the BIA treated this as a hard-and-fast rule. It is not. We
explained in Doe that “[n]either Chen nor Kibinda foreclosed
the possibility that outrageous conduct, even if limited to a sin-
gle event without physical harm, could rise to the level of per-
secution.” Doe, 956 F.3d at 145 n.5; see id. at 145 (“We have
never held that persecution requires more than one incident.
Rather, we have left open the possibility that a single incident,
if sufficiently egregious, may constitute persecution.”). In fact,
we held in Doe that the BIA “committed legal error by finding
that a single beating without severe physical injury” is never
persecution. 3 Id. at 146.
Thayalan contends that Doe “refutes [the] very founda-
tions” of the BIA’s decision in this case. Pet’r Br. 13. But a
comparison of the facts of Doe to the facts here reveals other-
wise. The petitioner in Doe was a man born and raised in
Ghana, where he had a secret homosexual relationship with
another man. Doe, 956 F.3d at 139. He knew that being gay in
Ghana was considered unacceptable, so he refrained from
speaking to his family about his sexual orientation. Id. One
morning in January 2016, the petitioner’s father “unexpectedly
entered [his] bedroom at the break of dawn and discovered him
having sex with his partner.” Id. His father began shouting that
3
In Blanco v. Attorney General, 967 F.3d 304 (3d Cir. 2020),
which we decided a few weeks after the BIA’s decision in this
case, we reiterated that the lack of physical harm from an attack
“is not dispositive in establishing past persecution” where an
applicant also experienced concrete and menacing threats. Id.
at 312. “[E]valuating past persecution is not as simple as
comparing the severity of each injury.” Id.14
his son was having sex with a man and called on others to wit-
ness the petitioner’s conduct. Id. The petitioner’s father
accused his son of bringing shame to their family and promised
that he would face punishment for his homosexuality. Id.Upon hearing the petitioner’s conflict with his father, “a
crowd of neighbors gathered at [the petitioner’s] house, form-
ing a violent mob.” Id. “Together with his father, the mob
began to beat the two young men with stones, wooden sticks,
and iron rods, and dragged them into a courtyard.” Id. Some in
the mob wanted to report the petitioner and his partner to the
police, “but others began to argue over how best to punish
them: death by burning or beheading.” Id. The petitioner was
then doused with kerosene, while members of the crowd called
for him to be set on fire. Id. Someone in the mob brandished a
sword. Id. “Fearing that his life was in danger, [the petitioner]
managed to escape and ran naked, hurt and bleeding to a
friend’s house about ten minutes away.” Id. He “told his friend
about the attack and about his sexual relationship with his part-
ner.” Id. His friend became worried that they could both be
killed if it were discovered that the petitioner was hiding at his
house. Id. Too frightened to call the police or seek medical
care, the petitioner fled to Togo. Id. But he feared being
attacked there, too. Id. So with a friend’s help, he retrieved his
passport from his home and flew to Ecuador, eventually enter-
ing the United States without valid documents. Id. at 139–40.
After arriving in the United States, the petitioner “heard that
his father has publicly disowned him for being gay, that he is
still looking for him, and that he intends to kill him if he finds
him.” Id.The BIA determined that the petitioner’s beating did not
rise to the level of persecution because it was a single, isolated
incident that did not cause serious physical injury. Id. at 145.
15
We rejected its determination. Id. “In addition to having his life
credibly threatened by accompanying acts of violent intimida-
tion,” we explained, the petitioner “suffered actual physical
harm from the beating, not to mention the emotional suffering
he has endured.” Id. The petitioner’s own father encouraged a
violent mob to attack him, and the situation progressed to the
point that “[a]ll that was left for the mob to do was to cut off
his head or set him on fire.” Id. at 144.
The facts here are markedly different—Thayalan did
not suffer physical mistreatment or threats that, considered
cumulatively, compel the conclusion that he suffered persecu-
tion. Unlike Doe, there is no evidence in this record that
Thayalan’s oppressors continued to pursue him even after he
was physically attacked. And it appears that Thayalan did not
seek medical care because he did not feel that he needed it, not
because he was unable to do so. Cf. Doe, 956 F.3d at 146 (not-
ing that the petitioner “did not seek medical care because he
feared for his well-being” rather than because he “did not
require medical treatment” (emphasis and internal quotation
marks omitted)). The agency may consider whether a physical
beating caused enough harm to require medical care in
assessing a claim of past persecution so long as it does not give
that consideration dispositive weight. See Chen, 381 F.3d at
235 (concluding that a petitioner’s mistreatment “does not
appear to have been serious” in part because he did not suffer
“any injuries that required medical treatment”); Jarbough v.
Att’y Gen., 483 F.3d 184, 191 (3d Cir. 2007) (upholding a find-
ing of no past persecution where the petitioner “suffered bruis-
ing” from an attack but “did not go to a doctor” because “his
injuries did not ‘require immediate medical intervention’”);
Voci, 409 F.3d at 614 (concluding that the fact that a beating
required an “extended hospitalization” weighed in favor of a
16
finding of past persecution); Doe, 956 F.3d at 145 (noting that
this Court does not “condition[] a finding of past persecution
on whether the victim required medical attention or on whether
he was too hurt to escape his aggressors”).
In short, Thayalan “has provided no other objective
evidence to demonstrate that the single injury he suffered was
severe enough to constitute persecution under our stringent
standard.” Kibinda, 477 F.3d at 120. And he has given no
explanation for his decision to remain in Sri Lanka for over a
decade after his detention and beating, which further under-
mines his claim of past persecution. See Gjetani, 968 F.3d at
399 (explaining that when “an alien has endured a threat or
assault but has nevertheless chosen to stay in his home country
for a period of time,” that “choice to stay tends to weaken [a]
claim of persecution”). We thus uphold the agency’s determi-
nation that the harm Thayalan suffered does not amount to past
persecution. Thayalan’s attempt to establish eligibility for asy-
lum based on his mistreatment by the Sri Lankan army fails.
B
We now turn to the agency’s nexus finding with respect
to the 2019 extortion attempts. Thayalan does not contend that
these incidents constitute past persecution. Rather, he argues
that they give rise to a reasonable possibility that he would be
persecuted on account of an imputed pro-TNA political opin-
17
ion if he were removed to Sri Lanka. 4 The agency disagreed. It
ruled that the EPDP’s extortion efforts were not, as Thayalan
contends, centrally motivated by an imputed pro-TNA political
opinion, and thus do not give rise to a reasonable possibility of
future persecution on account of a protected ground. We con-
clude that this finding is supported by substantial evidence.
As we previously noted, the INA requires that an appli-
cant for asylum and withholding of removal demonstrate that
his protected characteristic “was or will be at least one central
reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(i) (asy-
lum); see Gonzalez-Posadas, 781 F.3d at 684–85 & n.6 (hold-
ing that the “one central reason” standard applies in the context
of withholding of removal). “For a protected characteristic to
qualify as ‘one central reason’, it must be an essential or prin-
cipal reason for the persecution.” Gonzalez-Posadas, 781 F.3d
at 685. As a result, neither asylum nor withholding of removal
may be granted “when the characteristic at issue ‘played only
an incidental, tangential, or superficial role in persecution.’”
Id. (quoting Ndayshimiye v. Att’y Gen., 557 F.3d 124, 130 (3d
Cir. 2009)). The characteristic “must be both a but-for cause of
[the] persecution and it must play more than a minor role that
is neither incidental nor tangential to another reason for the
harm or a means to a non-protected end.” Matter of A-B-, 28 I.
4
An alien may establish eligibility for asylum by showing that
he was targeted because of a political opinion that was
attributed to him, but that he did not actually hold. See Singh v.
Gonzales, 406 F.3d 191, 196 (3d Cir. 2005). In determining
whether an alien was persecuted on account of an imputed
political opinion, “we focus on whether the persecutor has
attributed a political view to the victim and acted on that attrib-
ution.” Id.18
& N. Dec. 199, 211 (A.G. 2021). A persecutor may “have more
than one central motivation for his or her actions.”
Ndayshimiye, 557 F.3d at 129.
Thayalan contends that “the persecutors’ own state-
ments” reveal that “the EPDP targeted [him] because of his
purported support for the TNA.” Pet’r Br. 19. Thayalan first
testified that he was targeted by the EPDP because he was “a
businessman.” A.R. 116. But later in his testimony, he stated
that the EPDP members who sought to extort him “falsely
accus[ed]” him of “working for TNA” and “paying TNA the
money.” A.R. 130. It is this latter piece of testimony that
Thayalan now relies on in attacking the agency’s nexus find-
ing.
The BIA credited this testimony, but concluded that
Thayalan still failed to meet his burden of establishing nexus.
“While this evidence demonstrates that the EPDP members
believed [Thayalan] provided support for the TNA,” the BIA
reasoned, “it does not establish that [his] . . . imputed political
opinion was a characteristic the EPDP members sought to
overcome.” A.R. 4 (citing Matter of L-E-A-, 27 I. & N. Dec.
40, 44 & n.2 (B.I.A. 2017), aff’d in part and rev’d in part, 27
I. & N. Dec. 581 (A.G. 2019)). The BIA explained that the
EPDP members never demanded that Thayalan “stop support-
ing the TNA” or “change his political opinion and support”
EPDP candidates, and that Thayalan had not “presented any
evidence that [the] EPDP members have any particular animus
toward . . . supporters of the TNA.” A.R. 4. Defending the
BIA’s decision, the government argues that the false accusa-
tions made by the EPDP members do not render unreasonable
the agency’s view that they “targeted [Thayalan] due to . . .
their perception that, as a business owner, he had the means to
pay their extortion demands.” Resp’t Br. 18.
19
The applicable standard of review places a heavy
burden on Thayalan. “[T]o obtain judicial reversal of the BIA’s
determination” that the EPDP did not target him on account of
a protected ground, “he must show that the evidence he pre-
sented was so compelling that no reasonable factfinder could
fail to find” the nexus requirement satisfied. Elias-Zacarias,
502 U.S. at 483–84. It is “[q]uite beside the point” that the rec-
ord may be adequate to support the conclusion that at least one
central reason for the efforts to extort Thayalan was an imputed
political opinion. Id. at 481 n.1. The substantial-evidence
standard does not permit this Court to re-weigh evidence or to
substitute its own factual determinations for those of the
agency. See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356,
359 (3d Cir. 2011). We are to decide only whether a reasonable
factfinder could agree with the agency’s determination—that
is, whether the agency’s determination is supported by substan-
tial evidence. See Dia, 353 F.3d at 247–49; Gonzalez-Posadas,
781 F.3d at 688 (explaining that even when “there is more than
one way to view the record,” this Court is “required to uphold
the decision of the [agency]” if there is substantial evidence to
support it).
Thayalan’s challenge to the nexus finding fails because
the record provides ample support for the agency’s view that
the EPDP did not target Thayalan principally because of an
imputed political opinion. The BIA properly relied on the fact
that the EPDP members never tried to get Thayalan to stop sup-
porting—financially or otherwise—any other political party or
political viewpoint to support its conclusion that any imputed
pro-TNA political opinion was, at most, of minor interest to the
EPDP. And while the EPDP members did mention Thayalan’s
alleged financial support for the TNA during their first extor-
tion attempt, the agency took the reasonable view that the
20
EPDP members inferred from that support only that Thayalan
had the wherewithal to fund the EPDP in addition to the TNA.
Considering the strength of the BIA’s reasoning and the
entirety of the record, we cannot conclude that any reasonable
adjudicator would be compelled to find that an imputed pro-
TNA political opinion was a central reason for the EPDP’s
decision to target Thayalan for extortion. The agency’s conclu-
sion that getting Thayalan’s money was the EPDP’s only cen-
tral motivation for its criminal behavior is therefore supported
by substantial evidence. As this Court has held before, an alien
targeted out of a simple desire for money has not experienced
persecution on account of a ground protected by the INA. See
Gonzalez-Posadas, 781 F.3d at 686; Shehu v. Att’y Gen., 482
F.3d 652, 657 (3d Cir. 2007). Thayalan has not shown that his
mistreatment by the EPDP gives rise to a reasonable possibility
of future persecution based on an imputed political opinion.
* * *
To sum up, we uphold as supported by substantial evi-
dence the agency’s findings that (1) the 2007 detention and
beating by the Sri Lankan army did not rise to the level of past
persecution, and (2) the 2019 extortion attempts by the EPDP
were not motivated by an imputed political opinion. 5 Thayalan
5
We also disagree with Thayalan that the IJ erred by failing to
analyze whether there is a “pattern or practice of persecution
against ethnic Tamils.” Pet’r Br. 23. Thayalan did not make a
pattern-or-practice argument to the IJ, and the BIA declined to
consider an “issue . . . raised for the first time on appeal.” A.R.
5. Yet Thayalan now contends that the IJ should have con-
ducted a pattern-or-practice analysis even though he failed to
raise the issue. The applicable regulation, 8 C.F.R.
§ 1208.13(b)(2)(iii), provides in relevant part:
21
[An IJ] shall not require [an] applicant to provide
evidence that there is a reasonable possibility he
or she would be singled out individually for per-
secution if . . . [t]he applicant establishes that
there is a pattern or practice in his or her country
. . . of persecution of a group of persons similarly
situated to the applicant on account of race, reli-
gion, nationality, membership in a particular
social group, or political opinion.
We do not think that this regulation required the IJ to specifi-
cally analyze in her decision whether Thayalan established a
pattern or practice of persecution, or that the BIA was required
to entertain an argument that could have been raised before the
IJ. See Ye v. Lynch, 845 F.3d 38, 45 (1st Cir. 2017) (holding
that where an applicant “did not argue before the IJ that, inde-
pendent of his claims of past persecution, he had a well-
founded fear of future persecution because there was a pattern
or practice of persecuting Christians in China,” the “BIA did
not err in concluding that the argument was not exhausted”).
Thayalan relies on Banks v. Gonzales, 453 F.3d 449 (7th Cir.
2006), where the Seventh Circuit held that 8 C.F.R.
§ 1208.13(b)(2)(iii) “governs not only the proofs at the hearing
but also an IJ’s process of reasoning, and it must be followed
whether or not an alien draws it to the agency’s attention.” Id.
at 452. But even assuming the Seventh Circuit’s interpretation
of the regulation is correct, see Vakeesan v. Holder, 343 F.
App’x 117, 127 (6th Cir. 2009) (unpublished opinion) (disa-
greeing with Banks), it does not follow that an alien need not
preserve the argument that he is eligible for asylum even if he
cannot show that he would be singled out for persecution. See
22
is thus not eligible for asylum. And because he is not eligible
for asylum, he is “unable to meet the [higher] standard for with-
holding of removal.” Gomez-Zuluaga, 527 F.3d at 348–49. We
therefore uphold the agency’s denial of both forms of relief
from removal.
Banks, 453 F.3d at 453 (noting that the applicant, by claiming
asylum based on the Liberian government’s mistreatment of its
enemies, preserved the pattern-or-practice issue); Aguilar-
Mejia v. Holder, 616 F.3d 699, 704 (7th Cir. 2010) (“In Banks,
. . . we still required the applicant to preserve the issue.”).
Thayalan did not claim asylum based on “systematic, perva-
sive, or organized” persecution of Tamils by the Sri Lankan
government; he claimed asylum based on a single detention
and beating in 2007 and two extortion attempts more than a
decade later. Gonzalez-Posadas, 781 F.3d at 687 & n.8 (inter-
nal quotation marks omitted) (quoting Lie v. Ashcroft, 396 F.3d
530, 537 (3d Cir. 2005)). As the BIA acknowledged, Thayalan
“testified generally on cross-examination that Tamils are
attacked in Sri Lanka.” A.R. 5. But Thayalan’s asylum claim
was based on a fear of being singled out individually for per-
secution, not a fear of pervasive attacks on Tamils. Cf.
Sukwanputra v. Gonzales, 434 F.3d 627, 630–31, 637 (3d Cir.
2006). In these circumstances, we will not fault the IJ for fail-
ing to include a pattern-or-practice analysis in her decision or
the BIA for deeming the issue unpreserved and declining to
remand the case. See Prabhudial v. Holder, 780 F.3d 553, 555
(2d Cir. 2015) (per curiam) (“[T]he BIA may refuse to consider
an issue that could have been, but was not, raised before an
IJ.”).
23
IV
For the foregoing reasons, we will deny the petition for
review. The stay of removal this Court previously granted is
vacated.
24