Nigelarani Vakeesan v. Eric H. Holder, Jr. , 343 F. App'x 117 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0595n.06
No. 08-3622
UNITED STATES COURT OF APPEALS
FILED
FOR THE SIXTH CIRCUIT Aug 21, 2009
LEONARD GREEN, Clerk
NIGELARANI VAKEESAN, )
) ON PETITION FOR REVIEW
Petitioner, ) OF A DECISION FROM THE
) BOARD OF IMMIGRATION
v. ) APPEALS
)
ERIC H. HOLDER, JR., Attorney General of the ) OPINION
United States, )
)
Respondent.
BEFORE: CLAY and McKEAGUE, Circuit Judges; and HOLSCHUH, District Judge.*
HOLSCHUH, District Judge. In this immigration case, Nigelarani Vakeesan (“Vakeesan”)
petitions for review of the Board of Immigration Appeals’s (“BIA”) order denying her motion to
reopen removal proceedings. After finding Vakeesan to be not credible, the Immigration Judge
(“IJ”) denied her requests for asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (“CAT”), and ordered her removed to Sri Lanka. The BIA and
this court affirmed the IJ’s removal order. Over a year later, Vakeesan moved the BIA to reopen her
removal proceedings, citing changed country conditions in Sri Lanka. The BIA denied Vakeesan’s
*
The Honorable John D. Holschuh, United States District Judge for the Southern District of
Ohio, sitting by designation.
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Vakeesan v. Holder
motion to reopen, and she appealed. For the reasons below, we affirm the BIA’s decision and deny
Vakeesan’s petition for review.
I. Background and Procedural History
Vakeesan is a native and citizen of Sri Lanka. She lawfully entered the United States in
November 1999, but stayed beyond the date authorized in her visa. In June 2000, Vakeesan filed
an application for asylum, withholding of removal, and protection under CAT. If deported to Sri
Lanka, Vakeesan claimed, she would be persecuted by the Liberation Tigers of Tamil Eelam
(“LTTE”) because of her membership in a social group of young Tamils from Trincomalee, Sri
Lanka.2 Vakeesan claimed that she had been persecuted by the LTTE on multiple occasions before
fleeing to the United States and also by Sri Lankan government authorities who falsely accused her
of supporting the LTTE. In May 2001, Vakeesan was interviewed by an asylum officer. In July
2001, the Immigration and Naturalization Service (“INS”) (now reconstituted as the Citizenship and
Immigration Services, a component of the Department of Homeland Security (“DHS”)) initiated
removal proceedings against Vakeesan by filing a Notice to Appear before the Immigration Court.
The IJ conducted a removal hearing, during which Vakeesan conceded that she was removable as
charged in the Notice to Appear. Vakeesan also testified and presented evidence to support her
2
Tamils are an ethnic group native to Tamil Nadu, a state in India, and the north-eastern
region of Sri Lanka. Tamils speak their own language and have a recorded history as a distinct
ethnic group going back two millennia. Tamils constitute about eighteen percent of Sri Lanka’s
population. James Heitzman, Sri Lanka: A Country Study (Russell R. Ross & Andrea M. Savada
eds., Federal Research Division, Library of Congress) (1989), available at
http://lcweb2.loc.gov/cgi-bin/query/r?frd/cstdy:@field(DOCID+lk0061).
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asylum application. In December 2005, the IJ denied Vakeesan’s requests for asylum, withholding
of removal, and protection under CAT, and ordered her removed to Sri Lanka.
The IJ found that Vakeesan’s testimony was not credible. The IJ based her conclusion on
the following: inconsistencies between Vakeesan’s removal hearing testimony and her written
asylum application and testimony before the asylum officer; Vakeesan’s omission from her asylum
application of events pivotal to her claim, including alleged threatening phone calls she received
from the Sri Lankan army; the sparse detail provided in her removal hearing testimony; and the lack
of corroboration to support her testimony. Although 8 C.F.R. § 1208.13(a), cited by the IJ, provides
that “the testimony of the applicant, if credible, may be sufficient to sustain the burden of proof
without corroboration,” corroboration was required, the IJ found, because Vakeesan’s testimony was
not credible.
The IJ further found that even if Vakeesan had presented credible claims, her application
should be denied on the merits because of her failure “to establish a nexus to a protected ground.”3
(App. 291.) Moreover, the IJ found, “[t]he 2004 Country report confirms the majority of abuses are
carried out by the LTTE in the northern and eastern parts of Sri Lanka,” and Vakeesan failed to
3
This is a reference to the need to show persecution on the grounds of “race, religion,
nationality, membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.13(b)(1).
To be statutorily eligible for asylum, an alien must establish that he or she is a refugee—one who
has suffered or will suffer persecution on one of these grounds.
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demonstrate, as required by 8 C.F.R. § 1208.13(b)(2)(ii), “that she could not safely internally relocate
in Sri Lanka.”4 (App. 295.)
Vakeesan appealed the IJ’s decision to the BIA. In January 2007, the BIA affirmed the IJ’s
decision and dismissed Vakeesan’s appeal. The BIA recounted the inconsistencies and
contradictions in Vakeesan’s testimony and found that “the Immigration Judge provided specific and
cogent reasons to conclude that the respondent provided incredible testimony.” (App. 272.) Absent
credible testimony, the BIA found, Vakeesan “failed to sustain the burden of proof applicable to
asylum and the more stringent burden applicable to withholding of removal.” (App. 272.)
Therefore, the BIA dismissed Vakeesan’s appeal.
Vakeesan appealed the BIA’s decision to this court. In December 2007, the petition for
review was denied. The court pointed out that:
[t]he denial of an application for asylum may be reversed only where the evidence
is so compelling that no reasonable factfinder could fail to find the requisite fear of
persecution. INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). We conclude that
the evidence in this case does not meet this standard.
Vakeesan v. Mukasey, No. 07-3112 (6th Cir. Dec. 12, 2007). The court found that the IJ’s adverse
credibility determination was sufficiently supported by evidence and explained in the IJ’s opinion,
and that the credibility finding was “a factual determination that cannot be reversed unless the
evidence compels a contrary conclusion. Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004).”
4
8 C.F.R. § 1208.13(b)(2)(ii) provides that “[a]n applicant does not have a well-founded fear
of persecution if the applicant could avoid persecution by relocating to another part of the applicant's
country of nationality . . . if under all the circumstances it would be reasonable to expect the
applicant to do so.”
4
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Id. Therefore, because the evidence did not compel a contrary conclusion, the petition for review
was denied.
On March 19, 2008, more than a year after the final administrative removal order was entered
against her, Vakeesan moved the BIA to reopen her removal proceedings, citing changed country
conditions in Sri Lanka. Vakeesan claimed that conditions had worsened in Sri Lanka since her
removal proceedings due to a resumption of a civil war. To support her claim, Vakeesan provided
five documents detailing the deepening crisis in Sri Lanka. According to that evidence, on January
2, 2008, the Sri Lankan government withdrew from a cease fire agreement with the LTTE,
formalizing a return to a conflict that has been underway since 2006. The evidence details the
humanitarian crisis that has accompanied the return to conflict. According to the International Crisis
Group’s report, more than 148,000 people have been displaced by renewed fighting in LTTE-
controlled northern parts of Sri Lanka. The International Crisis Group and the U.S. Department of
State agree that women are particularly vulnerable to human rights abuses. Women refugees in
conflict areas and camps frequently complain of increased sexual violence and enforced sex work
from soldiers and armed men. Those women arrested and detained complain of forced sex with
prison guards.
The reports also indicate that ethnic Tamil non-combatants are particularly vulnerable.
Displaced Tamils who have been forced to flee the war in the north face mass round-ups and
arbitrary detentions by the government in response to LTTE attacks. “With the collapse of the
ceasefire, the LTTE’s return to terror attacks and the government’s counter-terrorism measures, fear
and inter-ethnic tension have grown significantly. Tamils increasingly see themselves, not the Tigers,
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as the government’s target.” (App. 38.) Innocent Tamils “are likely to be hounded, arrested or
detained, put in buses and sent back to the north east.” (App. 38.) The December 2006 report of the
United Nations Office of the High Commissioner for Refugees (“UNOHCR”) regarding asylum
seekers from Sri Lanka recommends that “[n]o Tamil from the North or East should be returned
forcibly until there is significant improvement in the security situation in Sri Lanka.” (App. 94.)
Vakeesan recognized that her evidence of changed country conditions did not rebut the IJ’s
previous adverse credibility determination. Nevertheless, Vakeesan argued, her evidence of changed
country conditions, especially in light of her alleged past persecution in Sri Lanka, is sufficient to
demonstrate prima facie eligibility for asylum.5 In the alternative to reopening her removal
proceedings based on changed country conditions, Vakeesan requested that the BIA exercise its sua
sponte authority to reopen her proceedings.
On April 18, 2008, the BIA denied Vakeesan’s motion to reopen. To the extent Vakeesan
argued that her removal proceedings should be reopened because of changed country conditions, the
BIA found that Vakeesan failed “to show a reasonable likelihood of success on the merits if the
5
The primary focus of Vakeesan’s motion to reopen is her asylum claim, as opposed to her
withholding of deportation claim. “To establish eligibility for nondiscretionary withholding of
deportation, the alien must show that there is a ‘clear probability’ that her ‘life or freedom would be
threatened in such country on account of race, religion, nationality, membership in a particular social
group, or political opinion.’” Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir. 2004) (quoting
Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998)). An alien who fails to establish that she is
a refugee eligible for asylum under 8 U.S.C. § 1158 will necessarily fail to satisfy the “clear
probability” requirement for a withholding of deportation claim. Id. at 637; see also INS v. Cardoza-
Fonseca, 480 U.S. 421, 449-50 (1987); Mikhailevitch, 146 F.3d at 391. Therefore, Vakeesan’s
withholding of deportation claim is irrelevant unless she can demonstrate a prima facie asylum
claim.
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proceedings were reopened.” (App. 2.) According to the BIA, Vakeesan’s substantive asylum
claims—that, if returned to Sri Lanka, she would likely be persecuted because of her Tamil ethnicity,
her past involvement in reporting human rights abuses, and her gender—were the same as those
addressed previously in her removal proceedings and found to lack credibility. Moreover, the BIA
found, “it has long been established that claims based on simply wishing to avoid generalized civil
strife do not give rise to eligibility for a grant of asylum, withholding, or protection under the
Convention Against Torture.” (App. 2.) The BIA also noted that Vakeesan failed to establish in her
motion that she is a member of a statutorily recognized social group. Therefore, to the extent
Vakeesan’s motion to reopen was based on changed country conditions, the BIA denied that motion.
The BIA also declined to exercise its sua sponte authority to reopen Vakeesan’s removal
proceedings. According to the BIA, a factor in its decision not to reopen proceedings sua sponte was
the fact that Vakeesan filed her motion to reopen after being taken into custody for removal by the
DHS, and seemingly not because of any material change in Sri Lanka’s conditions. Vakeesan
appealed the BIA’s decision to this court.
II. Standard of Review
This court reviews the BIA’s denial of a motion to reopen for abuse of discretion. Haddad
v. Gonzales, 437 F.3d 515, 517 (6th Cir. 2006); Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.
2004). This standard requires us to “‘decide whether the denial of [the] motion to reopen . . . was
made without a rational explanation, inexplicably departed from established policies, or rested on
an impermissible basis such as invidious discrimination against a particular race or group.’”
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Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir. 2005) (quoting Balani v. INS, 669 F.2d 1157, 1161
(6th Cir.1982)).
The court reviews the BIA’s underlying legal conclusions de novo. Patel v. Gonzales, 432
F.3d 685, 692 (6th Cir. 2005). But the court must defer to the BIA’s reasonable interpretation of the
statutes and regulations that it administers. Id.; INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25
(1999).
III. Analysis
A. Timeliness of the Motion to Reopen
The BIA held that Vakeesan’s motion to reopen “is untimely and will be denied.” (App. 2.)
A motion to reopen must “be filed within 90 days of the date of entry of a final administrative order
of removal.” 8 U.S.C. § 1229a(c)(7)(C)(1); see also 8 C.F.R. § 1003.2(c)(2). The ninety-day period
for filing a motion to reopen is subject to four narrow exceptions:
(1) where the BIA reopens the proceedings sua sponte; (2) where the parties agree
to reopen the proceedings; (3) changed circumstances in the country of nationality
of which there is new, material evidence that could not have been discovered or
presented at the time of the original proceeding; and (4) certain in absentia decisions.
Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008) (quoting Qeraxhiu v. Gonzales, 206 F. App’x
476, 480 (6th Cir. 2006)); see also 8 C.F.R. §§ 1003.2(a), (c)(3)(ii).
In this case, Vakeesan did not file her motion within ninety days of the final administrative
removal order. Both parties agree, however, that Vakeesan’s motion to reopen falls within one of
these exceptions, as it alleges changed conditions in Sri Lanka. See 8 C.F.R. § 1003.2(c)(3)(ii).
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B. BIA’s Sua Sponte Authority to Reopen
Vakeesan argues that reversal of the BIA’s decision is appropriate because the BIA
incorrectly found that she moved to reopen in response to being detained by the DHS for deportation.
In fact, the DHS never took Vakeesan into custody. While the BIA did err by finding that Vakeesan
was taken into custody for removal by the DHS, that error factored only into the BIA’s decision not
to exercise its sua sponte authority to reopen Vakeesan’s proceedings. And the BIA’s decision not
to exercise its sua sponte authority is not subject to judicial review.
We have previously held that “[t]he decision whether to invoke sua sponte authority
[under 8 C.F.R. § 1003.2(a)] is committed to the unfettered discretion of the BIA”
and therefore is not subject to judicial review. Harchenko v. I.N.S., 379 F.3d 405,
410-11 (6th Cir. 2004) . . . Section 1003.2(a) “allows the BIA to reopen proceedings
in exceptional situations; it does not require the BIA to do so.” Harchenko, 379 F.3d
at 411. “Harchenko affirmed the principle that review is not to be had if the statute
is drawn so that a court would have no meaningful standard against which to judge
the agency’s exercise of discretion.” Randhawa v. Gonzales, 184 Fed. App’x 502,
503 (6th Cir. 2006) . . . .
Barry v. Mukasey, 524 F.3d 721, 723 (6th Cir. 2008).
Therefore, we lack jurisdiction to review the BIA’s decision to forgo the exercise of its sua
sponte authority. Id. at 724. That leaves us with jurisdiction to consider only whether the BIA
abused its discretion by denying Vakeesan’s motion to reopen based on changed country conditions.
C. Changed Country Conditions
After an alien’s asylum application is denied and a final deportation order is issued, an alien
may move to reopen removal proceedings “based on changed circumstances arising in the country
of nationality or in the country to which deportation has been ordered, if such evidence is material
and was not available and could not have been discovered or presented at the previous hearing.” 8
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C.F.R. § 1003.2(c)(3)(ii). Evidence of changed country conditions does not in itself warrant the
reopening of an alien’s removal proceedings. The evidence must be material to the alien’s case, i.e.,
it must be sufficient, if proved, to change the outcome. See id.; Jaber v. Mukasey, 274 F. App’x 469,
474 (6th Cir. 2008); Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005). Stated differently, the alien
must make a prima facie showing that he or she is statutorily eligible for the relief requested. The
alien must demonstrate a reasonable likelihood that, if removal proceedings are reopened, the alien
will satisfy the statutory requirements for asylum. See 8 C.F.R. § 1003.2(c)(1) (“[A] motion to
reopen proceedings . . . may be granted if the alien demonstrates that he or she was statutorily
eligible for such relief prior to the entry of the administratively final order of deportation.”); Alizoti
v. Gonzales, 477 F.3d 448, 451-52 (6th Cir. 2007); Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986)
(“[A] motion to reopen should not be granted unless the petitioner makes a prima facie showing that
the statutory requirements for the underlying relief have been met.”).
To be statutorily eligible for asylum, an alien must establish that she is a refugee. 8 U.S.C.
§ 1158(b)(1)(A); 8 C.F.R. § 1208.13. An alien qualifies as a refugee in one of two ways. 8 C.F.R.
§ 1208.13(b). First, the alien can show that she has suffered past persecution in her country of origin
on the basis of her “race, religion, nationality, membership in a particular social group, or political
opinion.” Id. at § 1208.13(b)(1). An alien found to have suffered past persecution is presumed to
have a well-founded fear of future persecution if deported to that country. Id. The government can
rebut the presumption by showing, by a preponderance of the evidence, that a fundamental change
has occurred in the country such that the alien no longer has a well-founded fear of future
persecution or the alien could avoid future persecution by relocating, if reasonable, to another part
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of the country. Id. If the presumption is successfully rebutted, the alien must establish a well-
founded fear of future persecution.
Second, an alien can qualify as a refugee by demonstrating a well-founded fear of future
persecution. Id. at § 1208.13(b)(2). If an alien establishes a well-founded fear of future persecution,
the alien need not demonstrate past persecution. An alien has a well-founded fear of future
persecution if:
(A) The applicant has a fear of persecution in his or her country of nationality or, if
stateless, in his or her country of last habitual residence, on account of race, religion,
nationality, membership in a particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution if he or she were
to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself or herself of the
protection of, that country because of such fear.
Id. at § 1208.13(b)(2)(i). An alien does not have a well-founded fear of future persecution if the
applicant could avoid future persecution by relocating, where reasonable, to another part of the
country in question. Id. at § 1208.13(b)(2)(ii). Moreover, an alien must demonstrate that a
reasonable possibility exists that he or she will be singled out individually for persecution unless:
(A) The applicant establishes that there is a pattern or practice in his or her country
of nationality or, if stateless, in his or her country of last habitual residence, of
persecution of a group of persons similarly situated to the applicant on account of
race, religion, nationality, membership in a particular social group, or political
opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with,
such group of persons such that his or her fear of persecution upon return is
reasonable.
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Id. at § 1208.13(b)(2)(iii). To demonstrate such a pattern or practice, the level of persecution must
be extreme. Krishnapillai v. Holder, 563 F.3d 606, 620 (7th Cir. 2009); see also Mitreva v.
Gonzales, 417 F.3d 761, 765 (7th Cir. 2005).
“There must be a systematic, pervasive, or organized effort to kill, imprison, or
severely injure members of the protected group, and this effort must be perpetrated
or tolerated by state actors.” Id. (internal quotation marks and citations omitted).
The standard for showing a pattern or practice is high because it relieves the
individual alien of presenting evidence that he in particular would likely experience
persecution if returned to his country and in theory would entitle everyone else from
his country who belongs to the protected group to asylum in the United States. Id.Krishnapillai, 563 F.3d at 620 (citing Mitreva, 417 F.3d at 765).
Therefore, to successfully move to reopen removal proceedings based on changed country
conditions, an alien seeking asylum must demonstrate, with new evidence that was not previously
obtainable, a reasonable likelihood that if her removal proceedings were reopened, the IJ would find
either that the alien has been persecuted in the past or that the alien has a well-founded fear of future
persecution on the basis of race, religion, nationality, membership in a particular social group, or
political opinion.
In this case, Vakeesan’s motion to reopen essentially comes down to this: with the
resumption of civil war between the Sri Lankan government and the LTTE since her removal
proceedings, conditions have deteriorated in Sri Lanka such that Vakeesan, as an ethnic Tamil
woman, will be persecuted if deported. But as explained above, changed country conditions,
standing alone, do not warrant the reopening of an alien’s removal proceedings. The alien must also
demonstrate prima facie eligibility for asylum, either by showing past persecution with the
presumption of a well-founded fear of future persecution or, absent past persecution, by showing a
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well-founded fear of future persecution. It is unclear from Vakeesan’s motion to reopen and brief
on appeal whether her underlying asylum claim is based on past persecution or a well-founded fear
of future persecution. As will be explained below, however, regardless of whether Vakeesan’s
motion to reopen is construed as asserting a past persecution-based asylum claim or a well-founded
fear of future persecution-based asylum claim, her motion fails.
1. Past Persecution
To the extent Vakeesan’s underlying asylum claim is based on past persecution, her claim
is precluded by the IJ’s previous adverse credibility determination. The IJ undisputedly found
Vakeesan’s allegations of past persecution not to be credible. The IJ specified a number of internal
inconsistencies in Vakeesan’s removal hearing testimony, along with contradictions between that
testimony and her original asylum application and testimony before the asylum officer. The IJ found
that Vakeesan’s testimony was vague and sparsely detailed regarding events important to her past
persecution claim. The IJ also found that, in light of the inconsistencies and contradictions in her
testimony, Vakeesan failed to sufficiently corroborate her past persecution allegations. Based on this
adverse credibility determination, the IJ denied Vakeesan’s past persecution-based asylum claim.
The BIA and this court affirmed the IJ’s adverse credibility determination. This court found
that:
[a]n applicant’s testimony alone can be sufficient where it is believable, consistent,
and detailed. Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004). Here,
Vakeesan’s testimony was not believable or consistent, and she failed to submit any
corroboration that should have been available to her. She argues before this court
that the IJ’s adverse credibility finding is not based on sufficient or complete reasons,
and should not be upheld, citing Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004).
However, the IJ pointed out all of the above inconsistencies, thus giving specific
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reasons for the adverse finding. The credibility finding is a factual determination that
cannot be reversed unless the evidence compels a contrary conclusion. Marku v.
Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004). Under the evidence presented in this
case, a reasonable factfinder might have overlooked the inconsistencies and lack of
corroboration, but certainly would not be compelled to do so. Therefore, the denial
of Vakeesan’s asylum claim cannot be reversed.
Vakeesan v. Mukasey, No. 07-3112 (6th Cir. Dec. 12, 2007). Vakeesan’s right to appeal the IJ’s
adverse credibility determination was exhausted when this court dismissed Vakeesan’s appeal, and
the issue cannot be revisited.
Vakeesan argues that “there has been no determination that all of [her] claim was not
credible,” and suggests that the IJ’s previous adverse credibility determination does not foreclose the
possibility that portions of her previous testimony were in fact credible. (Mot. to Reopen 11
(emphasis in original)). Vakeesan does not, however, identify which portions of her testimony were
allegedly credible and which portions were not. Moreover, Vakeesan’s “partial credibility” argument
is belied by the record. The IJ did not parse Vakeesan’s testimony and find some portions credible
and others incredible. The IJ reviewed the entirety of Vakeesan’s testimony and found that
Vakeesan’s asylum claim was not credible. The case cited by Vakeesan, Zhao v. United States
Department of Justice, 265 F.3d 83, 94 (2d Cir. 2001), to support her argument that her credible
testimony should be parsed from her incredible testimony, is distinguishable from this case. In Zhao,
the court found that the immigration judge’s decision could be read as “not passing on the
truthfulness of the testimony, but rather faulting petitioner for inconsistency and generality.” Id.More importantly, the court found that unquestioned documents fully corroborated the petitioner’s
testimony regarding the critical fact that his wife had been sterilized against her will. Id. In this
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case, Vakeesan provided no evidence to corroborate her inconsistent and contradictory accounts of
past persecution, even though that evidence could reasonably have been provided.
The government argues that Vakeesan’s past persecution-based asylum claim fails because
she failed, in her motion to reopen, to rebut the IJ’s adverse credibility determination and rehabilitate
her credibility. Despite the government’s suggestion that the outcome might be different if Vakeesan
rebutted the adverse credibility determination, we question whether Vakeesan is entitled to a second
opportunity in her motion to reopen in order to revisit and attempt to repair the testimony she gave
in a hearing four years ago. She had her opportunity during the removal proceedings to present the
corroborative evidence and details found to be lacking, and to rectify the inconsistencies and
contradictions that gave rise to the adverse credibility determination. That question is moot in this
case, however, given Vakeesan’s concession that her motion to reopen is devoid of any evidence to
rebut the IJ’s adverse credibility determination. (Mot. to Reopen 11.) Therefore, given that
Vakeesan’s past persecution-based asylum claim has already been found to be unbelievable, her
motion to reopen, to the extent it relies on past persecution to demonstrate a prima facie asylum
claim, is meritless.
2. Well-Founded Fear of Future Persecution
We recognize that an adverse credibility determination with respect to an alien’s past
persecution claim does not necessarily preclude a well-founded fear of future persecution-based
asylum claim. To demonstrate a well-founded fear of future persecution, an alien need not
demonstrate past persecution. See 8 C.F.R. § 1208.13(b)(2); Mitreva, 417 F.3d at 765 (“Unable to
show past persecution, Mitreva faces a high burden in demonstrating that she has a well-founded fear
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of future persecution if returned to Bulgaria.”). It follows, therefore, that an alien may “prevail on
a theory of future persecution despite an IJ’s adverse credibility ruling as to past persecution, so long
as the factual predicate of [her] claim of future persecution is independent of the testimony that the
IJ found not to be credible.” Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (3d Cir. 2007) (quoting
Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006)); see also Mansour v. INS, 230 F.3d 902, 908
(7th Cir. 2000) (noting that an adverse credibility determination in the asylum context should not
“wash over” into a separate claim based on distinct facts).
In this case, however, the factual predicate of Vakeesan’s well-founded fear of future
persecution claim is not independent of the testimony that the IJ found to be unbelievable. See
Gebreeyesus, 482 F.3d at 955. Vakeesan continues to rely on her accounts of past persecution in an
attempt to satisfy an element of her well-founded fear of future persecution claim—individualized
risk. To demonstrate a well-founded fear of future persecution, an alien generally must show that,
if deported, a reasonable possibility exists that he or she will be singled out individually for
persecution. 8 C.F.R. § 1208.13(b)(2)(iii). In her motion to reopen, Vakeesan relies solely on her
accounts of past persecution in an attempt to show that she personally will be persecuted if returned
to Sri Lanka. Vakeesan alleges that “the return to war has placed [Vakeesan] in direct and particular
danger in light of her prior experiences being targeted by the LTTE.” (Mot. to Reopen 11.)
Vakeesan maintains, in her brief before this court, that “[i]n light of the past attacks, [she] faces near
certain harm if she is returned to Sri Lanka.” (Pet’r Brief 28.) Given that her accounts of past
persecution have already been found to be unbelievable, Vakeesan cannot now use those accounts
to support the individualized risk of persecution element of her well-founded fear claim. Absent the
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accounts of past persecution, the record is devoid of any evidence to suggest that Vakeesan faces a
reasonable possibility of being singled out individually for persecution if deported to Sri Lanka. See
Zhang v. Mukasey, 543 F.3d 851, 854-55 (6th Cir. 2008) (“When a necessary element of
[petitioner’s] claim—whether she faced a risk of individual persecution—failed, so did [petitioner’s]
entire motion.”). And as the BIA recognized, “it has long been established that claims based on
simply wishing to avoid generalized civil strife do not give rise to eligibility for a grant of asylum,
withholding, or protection under the Convention Against Torture.” (App. 2.) Therefore, Vakeesan’s
well-founded fear of future persecution-based asylum claim fails. See Zhang, 543 F.3d at 854-55.
Vakeesan could have argued that the exception created by 8 C.F.R. § 1208.13(b)(2)(iii)
applies in this case, making it unnecessary for her to demonstrate an individualized risk of
persecution if deported to Sri Lanka. That regulation provides that:
(iii) In evaluating whether the applicant has sustained the burden of proving that he
or she has a well-founded fear of persecution, the asylum officer or immigration
judge shall not require the applicant to provide evidence that there is a reasonable
possibility he or she would be singled out individually for persecution if:
(A) The applicant establishes that there is a pattern or practice in his or her country
of nationality or, if stateless, in his or her country of last habitual residence, of
persecution of a group of persons similarly situated to the applicant on account of
race, religion, nationality, membership in a particular social group, or political
opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with,
such group of persons such that his or her fear of persecution upon return is
reasonable.
8 C.F.R. § 1208.13(b)(2)(iii). An alien “may prevail on his asylum claim even without credible
evidence that he is likely to be singled out for persecution if he can establish a pattern or practice of
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persecution in Sri Lanka based on a protected trait (e.g., ethnicity) that he shares.” Krishnapillai,
563 F.3d at 620; see also Abusada v. Gonzales, 212 F. App’x 488, 495 (6th Cir. 2007) (“An
applicant is not required to establish a reasonable possibility that he would be singled out
individually for persecution if he shows that there is a pattern or practice in his country of
persecution of a group of persons similarly situated to the applicant on the basis of one of the
statutorily protected grounds.”). As the Ninth Circuit explained in Kotasz v. INS, extreme situations
can exist:
in which members of an entire group—though perhaps not of an entire nation—are
systematically persecuted. In such cases, group membership itself subjects the alien
to a reasonable possibility of persecution, so that he or she will be able to satisfy the
objective component of the well-founded fear standard simply by proving
membership in the targeted group. As the systematic attempt to annihilate the Jews
in Nazi Germany conclusively demonstrates, persecution of an entire group can
render proof of individual targeting entirely superfluous.
31 F.3d 847, 852 (9th Cir. 1994).
In this case, however, Vakeesan fails to allege a pattern or practice of persecution in Sri
Lanka. Nowhere in her motion to reopen or in her brief does she even mention 8 C.F.R. §
1208.13(b)(2)(iii). “[B]efore raising an immigration issue in federal court, a petitioner must
normally present all reviewable issues to the BIA . . . If the petitioner fails to exhaust an issue before
the BIA, that issue is normally deemed to be waived.” Khalili v. Holder, 557 F.3d 429, 432 (6th Cir.
2009); see also Sterkaj v. Gonzalez, 439 F.3d 273, 279 (6th Cir. 2006); Hasan v. Ashcroft, 397 F.3d
417, 420 (6th Cir. 2005); Ramani v. Ashcroft, 378 F.3d 554, 560 (6th Cir. 2004). Therefore, by
failing to raise the issue before the BIA, Vakeesan waived any claim under 8 C.F.R. §
1208.13(b)(2)(iii).
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The Seventh Circuit has held that even when an alien fails to explicitly rely on 8 C.F.R. §
1208.13(b)(2)(iii) to support a motion to reopen, the BIA is required to comply with that provision.
Banks v. Gonzales, 453 F.3d 449, 452-53 (7th Cir. 2006). According to the Seventh Circuit, an
alien’s failure to explicitly raise a pattern or practice claim under 8 C.F.R. § 1208.13(b)(2)(iii):
would be a forfeiture if the regulation were one that imposed on the alien a burden
of production, burden of persuasion, or need to object. But it is not expressed as a
rule of conduct for the alien. It is addressed, rather, to “the asylum officer or
immigration judge” and says that these public officials “shall not require the
applicant” to provide certain evidence. That rule 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. A litigant's failure to remind an IJ of some
rule assuredly does not entitle the IJ to contradict that rule and require the very sort
of proof that the regulation says he “shall not require.”
Banks, 453 F.3d at 452-53 (quoting 8 C.F.R. § 1208.13(b)(2)(iii)). Contrary to the Seventh Circuit’s
reading of 8 C.F.R. § 1208.13(b)(2)(iii), however, the regulation specifically does impose on the
alien a burden of production and persuasion because the benefit of the regulation—no need to prove
an individualized risk of persecution—applies if and only if the alien establishes through evidence
the necessary pattern or practice of persecution and the alien’s inclusion in the group being
persecuted by that pattern or practice. Therefore, we are unpersuaded by the Seventh Circuit’s
argument in Banks, and find that the exhaustion requirement applies to claims under 8 C.F.R. §
1208.13(b)(2)(iii).
Moreover, by finding that Vakeesan’s evidence demonstrates only “generalized civil strife”
in Sri Lanka resulting from the civil war, the BIA necessarily found that Vakeesan’s evidence does
not demonstrate a pattern or practice of persecution of innocent Tamils in Sri Lanka. After finding
that Vakeesan’s evidence shows “generalized civil strife” in Sri Lanka, the BIA “owed no duty to
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No. 08-3622
Vakeesan v. Holder
rehearse the rest of her evidence for sake of completeness.” Zhang, 543 F.3d at 854-55 (“We do not
require the Board's opinion to mention every piece of evidence before it or every logical element of
a motion.”). Furthermore, the BIA’s finding that Vakeesan’s evidence shows only generalized civil
strife in Sri Lanka certainly was not irrational so as to constitute an abuse of discretion. See
Allabani, 402 F.3d at 675. In a recent case, the Seventh Circuit applied the high standard for
showing a pattern or practice of persecution to facts almost identical to those before us today:
The background evidence that Sundararajan has submitted, including in particular the
December 2006 UNHCR report documenting the mistreatment of Tamils in Sri
Lanka (and which recommends that no Tamil from the northern or eastern regions
of the country be forced to return) gives us pause, as it did the IJ . . . The lengthy
armed conflict between the LTTE and the Sri Lankan armed forces has resulted in
human rights abuses by both sides, and there is little reason to doubt that innocent
Tamils have been arrested, imprisoned, and even tortured by the authorities. But our
cases make clear that civil strife in a country that causes substantial hardships for an
ethnic minority, some of whose members are engaged in an insurgency against the
government, does not automatically render each non-combatant member of that
minority a subject of persecution. See Selimi v. Ashcroft, 360 F.3d 736, 740-41 (7th
Cir. 2004); see also Ratnasingam v. Holder, 556 F.3d 10, 14 (1st Cir. 2009); Garcia
v. Gonzales, 500 F.3d 615, 618-19 (7th Cir. 2007); Rashiah v. Ashcroft, supra, 388
F.3d at 1133. Sundararajan has shown that many Tamils in Sri Lanka have suffered
grave deprivations of their human rights, but the Board's conclusion that this does not
rise to the level of systemic persecution of Tamils based on their ethnicity was not
unreasonable. The background evidence indicates that Tamils face an extremely
difficult life in Sri Lanka, but it does not reflect the extreme degree of mistreatment
necessary to establish a pattern or practice of persecution. Although we are deeply
concerned about the abuses that have taken place in Sri Lanka, we cannot say that the
evidence Sundararajan has presented is so compelling as to permit us to disturb the
Board's finding that it does not show systemic persecution of ethnic Tamils like
himself.
Krishnapillai, 563 F.3d at 620-21.6
6
Since Vakeesan filed her motion to reopen, the Sri Lankan government appears to have
ended the civil war by defeating the LTTE in a military offensive into the LTTE-controlled regions
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IV. Conclusion
For the reasons above, Vakeesan has failed to demonstrate a reasonable likelihood that if her
proceedings were reopened, she would be able to establish eligibility for asylum. Therefore, the BIA
did not abuse its discretion by denying Vakeesan’s motion to reopen, and we DENY her petition for
review.
of northeastern Sri Lanka. On May 19, 2009, after confirming the death of the LTTE’s leader, the
Sri Lankan President officially declared victory over the LTTE and an end to the decades long
insurgency. Sri Lanka Says Leader of Rebels Has Died, N.Y. TIMES, May 19, 2009, at A4.
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