Sundar Krishnapillai v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2512
S UNDAR R. K RISHNAPILLAI,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A99-027-190
A RGUED JUNE 2, 2008—D ECIDED A PRIL 23, 2009
Before E ASTERBROOK, Chief Judge, and R OVNER and
W OOD , Circuit Judges.
R OVNER, Circuit Judge. Sundar R. Krishnapillai
1
(“Sundararajan”) , a native and citizen of Sri Lanka,
petitions for review of an order of the Board of Immigra-
1
Sri Lankan and Tamil naming conventions differ from our
own. We refer to the petitioner by the name set forth in the
narrative statement he submitted in support of his asylum
application. A.R. 394.
2 No. 07-2512
tion Appeals (the “BIA” or “Board”) sustaining the
denial of his requests for asylum, restriction on removal,
and relief under the United Nations Convention
Against Torture. Based on his own experiences in Sri
Lanka and on the adverse treatment of other ethnic
Tamils like himself, Sundararajan contends that he faces
likely persecution at the hands of both the Sri Lankan
authorities and terrorist insurgents if he is forcibly re-
turned. However, the Immigration Judge found
Sundararajan’s testimony regarding his own experiences
to be incredible and denied his claims based largely on
the adverse credibility finding, and the Board affirmed
that decision. Because the IJ’s decision, as supplemented
by the Board, is supported by substantial evidence and
is not tainted by any legal error, we deny Sundararajan’s
petition for review.
I.
Sundararajan’s requests for relief are founded on a
belief that he is at risk of harm from both the armed forces
of the Sri Lankan government and the Liberation Tigers
of Tamil Eelam (“LTTE”), a terrorist organization based
in northern Sri Lanka that for more than thirty years has
been waging a violent campaign to create an independent
state for Sri Lanka’s Tamil minority. Sundararajan,
himself an ethnic Tamil, gave the following account of the
events that brought him to the United States in his testi-
mony and in the narrative statement attached to his
asylum application.
No. 07-2512 3
Sundararajan was born in 1969 in Navatkuda, a town
in the Batticaloa district in eastern Sri Lanka. He has
worked both as a self-employed farmer and heavy truck
driver. He married in 1994 and now has three children,
aged five through thirteen. His wife and children remain
in Sri Lanka.
In 1990 or 1991, Sundararajan and his family lost their
home and most of their belongings in the midst of heavy
fighting between the LTTE and the Sri Lankan army. For
a time, they lived in a refugee camp in nearby
Vantharumoolai, but their fear of random arrests and
detention by the Sri Lankan army eventually led them
to depart for the coastline village of Navalady. The devas-
tating tsunami of December 2004 took the life of
Sundararajan’s brother and destroyed the hut his family
was living in, along with what few possessions they
had left.
In the wake of the tsunami, Sundararajan and his
family (including his parents) left the coastal region and
eventually relocated inland to an area then controlled by
the LTTE. For a year, they lived there in peace. But then
fighting broke out between the LTTE and the Sri Lankan
military, people living in the area became subject to
arrest and torture by the army, and the government
imposed an economic embargo on this and other areas
controlled by the LTTE. To help maintain its control of the
area, the LTTE organized a compulsory “self-defense”
training program, in which at least one member of each
family was expected to participate. Sundararajan testified
that he was contacted on multiple occasions about
4 No. 07-2512
taking the training and at first demurred. Eventually, he
felt that he had no alternative but to agree. After telling
the LTTE that he would participate in the training, he
advised his parents and his wife to move to an army-
controlled area and told them that he would join them
when he escaped from the LTTE. On the following day,
a date in April 2006, the LTTE picked him up and took
him to a training camp at Kokati Cholai, a rural area. The
camp was surrounded by a fence and patrolled by
armed guards. Sundararajan testified that after spending
two days in the camp, he managed to get away at four
o’clock in the morning by telling the guards (one of whom
he knew) that he was going out to buy cigarettes at a
nearby shop that opened at that early hour. He left the
LTTE-controlled area and joined his family in Arasady, a
government-controlled zone, where a priest gave them
shelter in a church. He spent one or two months there.
But the LTTE came looking for him, and Sundararajan’s
wife was warned that he would be killed if he did not
report back to an LTTE political office.
With his wife and parents urging him to flee Sri Lanka
for his own safety, Sundararajan re-located by himself to
Colombo, on the west coast of the country. There he
stayed in a private lodge for nearly a month, until he
was arrested in a round-up by Sri Lankan police. Despite
his protestations to the contrary, he was accused by
the authorities of being an LTTE member and was
beaten into unconsciousness. After seven or eight days in
police custody, he was finally released when his wife
arrived with documents showing that he was married
No. 07-2512 5
with three children and convinced the police that he
was not an LTTE member.
Seeing the arrests and abuse that other young Tamils like
himself were experiencing in Colombo, Sundararajan
decided that he could not remain there. A friend arranged
temporary employment for him in Singapore, and he
left Sri Lanka on September 28, 2006. But on arrival in
Singapore, he discovered that he could remain for no
longer than two weeks. Sundararajan met with an “agent,”
who in exchange for $3,000 provided him with a
forged passport and made arrangements for him to
travel to Canada via the United States. He was told that
if he was stopped by Immigration officials in the U.S.,
he could always ask for asylum.
Sundararajan flew to the United States via Seoul, South
Korea on a forged Singaporean passport. He arrived in
this country on October 11, 2006. In response to question-
ing by customs officials, Sundararajan said that he was a
tourist on his way to Canada. But when officials deter-
mined that his passport was fraudulent, Sundararajan
admitted that he was fleeing Sri Lanka and had purchased
the false passport for $3,000. He was refused admission
into the United States and was taken into custody. He
subsequently obtained counsel and filed a Form I-589
application for relief in the form of asylum, see 8 U.S.C.
§ 1158, restriction on removal, 8 U.S.C. § 1231(b)(3)(A), and
withholding of removal pursuant to the United Nations
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984)
(“CAT”). His application was referred to an Immigration
6 No. 07-2512
Judge (“IJ”), who conducted an evidentiary hearing in
January 2007. Sundararajan was the sole witness at that
hearing.
In addition to his testimony before the IJ, Sundararajan
offered several documents to show that he and his family
had been the targets of abuse in Sri Lanka. These materials
were sent to the United States by Sundararajan’s wife,
who was contacted by Sundararajan’s cousin at the behest
of his counsel. Not included among the documents
was any statement from Sundararajan’s wife, although
she had been a witness to some of the events described
in his asylum application and testimony, including his
forced enrollment in LTTE training and his detention in
Colombo. When questioned on this point by the IJ,
Sundararajan would testify that he was not in regular
contact with his wife, and although he knew her where-
abouts in Sri Lanka, it would take at least fifteen days
for a letter to reach her.
The documents forwarded by Sundararajan’s wife
included the following. A translated extract from the
“information book” of a police station in Sri Lanka de-
scribes a complaint that his wife filed with the police
following his departure from Sri Lanka. Sundararajan’s
wife alleged that people had come to her residence
looking for her husband in previous weeks. In one in-
stance, some men came to the residence at ten o’clock in
the evening, woke everyone up, demanded to know her
husband’s whereabouts, threatened her, and then left.
She had also received telephone calls threatening the
lives of herself and her family members. Her husband, she
No. 07-2512 7
said, had left the country due to the same type of harass-
ment she and her children were experiencing. “[W]e live
with fear and insecurity,” she stated. A.R. 235. Also
submitted was a receipt indicating that a “Complaint of
Threat” had been filed with the Human Rights Com-
mission of Sri Lanka at its regional office in Batticaloa. A.R.
244. We are told that the complaint was filed on
Sundararajan’s behalf; however, the receipt does not
reveal the content of the complaint. Finally, there is a
translated letter dated November 30, 2006, from the
Reverend Father Jeremiah S. Arasarathinam, the director
of a home for senior citizens in Batticaloa. He indicates
that Sundararajan’s wife and three children had “under-
gone tremendous difficulties during the past few years
under the hands of an unknown armed group.” A.R. 245.
Their house had been damaged, they had moved their
residence due to threats, and they had spent the last
three months at the senior citizens’ residence “as refugees.”
A.R. 245. “Due to death threats given by some unknown
group to Mr. Sunthararajah [sic], he fled the country due
to fear about 4 months ago and I [have] come to under-
stand that he is presently in America.” A.R. 245.
Also in the record is the December 2006 report of the
United Nations Office of the High Commissioner for
Refugees (“UNHCR”) regarding asylum-seekers from
Sri Lanka. A.R. 249. The report notes a general deteriora-
tion in the security situation in Sri Lanka during the
preceding year due to an uprising within the LTTE and an
escalation in violence between the LTTE and the Sri
Lankan armed forces, with predictable consequences
for the civilians who are increasingly being drawn into
8 No. 07-2512
the conflict. The report also describes in some detail the
Catch-22 in which ethnic Tamils find themselves.
In addition to the situation of widespread insecurity
and the impact of the armed conflict in the North and
East, Tamils in and from these regions are at risk of
targeted violations of their human rights from all
parties to the armed conflict. Harassment, intimidation,
arrest, detention, torture, abduction and killing at
the hands of government forces, the LTTE and para-
military or armed groups are frequently reported to
be inflicted on Tamils from the North and East.
A.R. 253. Those suspected of LTTE affiliation are at risk of
abuse by either the authorities or government-sponsored
paramilitary groups. A.R. 253-54. On the other hand, they
may be targeted for abuse by the LTTE if they do not lend
their support to the insurgents: The LTTE has been impli-
cated in some 200 targeted killings, mostly of Tamils
suspected of opposing the LTTE. A.R. 254. The report
also notes the difficulties faced by Tamils in and from
Colombo. In addition to being at heightened risk for
security checks and the like by the authorities, “Tamils in
Colombo are especially vulnerable to abductions, disap-
pearances, and killings.” A.R. 257. The report characterizes
the overall situation in Sri Lanka “as one of generalized
violence and events seriously disturbing public order.”
A.R. 260. For those citizens who have been singled out for
abuse by the LTTE, the report paints a grim picture.
“[T]here is no realistic flight alternative given the reach
of the LTTE and the inability of the authorities to pro-
vide assured protection.” A.R. 261. The point is made
No. 07-2512 9
more emphatically with respect to Tamils who, like
Sundararajan, hail from the North and East of Sri Lanka:
In relation to Tamils from the North or East fleeing
generalized violence, there is no internal flight alterna-
tive within the North or East given the situation of
armed conflict. Nor would it be possible and/or safe
to travel to other areas in light of the closure of the
A9 highway to civilians, lack of other travel routes,
and the risks entailed in traveling out of the North
and East. Tamils who are able to reach Colombo could
be vulnerable to arbitrary arrests, detention and
other forms of human rights abuses Tamils have
faced there. It may be noted that Tamils originating
from the North and East, in particular from LTTE-
controlled areas, are perceived by the authorities as
potential LTTE members or supporters, and are
more likely to be subject to arrests, detention, abduc-
tion and even killings. . . .
A.R. 261 (footnote omitted). The report thus recommends
that “[n]o Tamil from the North or East should be re-
turned forcibly until there is significant improvement in
the security situation in Sri Lanka.” A.R. 261. It makes
the same recommendation for Tamils from Colombo.
A.R. 262.
The U.S. State Department’s 2005 Country Report on
Human Rights Practices in Sri Lanka, A.R. 292, makes
some of the same observations as the UNHCR report,
without reaching the conclusion that Tamils should not
be returned involuntarily to the country. It acknowledges
that the LTTE has engaged in “targeted killings, kidnap-
10 No. 07-2512
ping, hijackings of truck shipments, and forcible recruit-
ment, including of children.” A.R. 297. The report also
acknowledges the abuses that occur on the part of the
authorities, including arbitrary arrests and detentions
(most often of Tamils) and the “endemic ” use of torture
to extract confessions. A.R. 294. “Impunity, particularly
for cases of police torture, was a severe problem,” in 2005.
A.R. 295. Although in far less detail and degree, the
Country Report does acknowledge the particular hard-
ships faced by ethnic Tamils. It indicates of the 339,000
internally displaced persons in Sri Lanka, some 50,000 of
them (primarily Tamils) are unable to resettle due to
ongoing conflict between the LTTE and the government
and the high-security zones associated with that conflict.
A.R. 300.
Various and sundry newspaper articles, communiqués
from human rights organizations, and internet postings
submitted by Sundararajan make similar points.
The adverse conditions these documents describe for
the citizens of Sri Lanka, and for Tamils in particular, are
consistent with the experiences that Sundararajan re-
counted in his asylum application and in his testimony
before the IJ.
But, after hearing Sundararajan’s testimony and consid-
ering the other evidence he submitted, Immigration
Judge Gabriel Videla denied his application for asylum
and other relief in a cogent decision. A.R. 56. “[T]he most
troubling point in this case is the respondent’s credibility
and I have tried very hard to overlook the credibility
problems present in this case and unfortunately I
No. 07-2512 11
cannot do so.” A.R. 74. The IJ noted inconsistencies in
Sundararajan’s testimony as to the timing of two key
events, both of which had occurred within one year of
the January 2007 hearing. First, Sundararajan had
wavered as to whether he was picked up and taken to the
LTTE camp for training in March or April 2006. A.R. 76.
And second, Sundararajan testified that he was arrested
by the police in Colombo on August 28, 2006, but that
date was off by several months from the date of May 20,
2006, that the IJ derived from the chronology of events
(from Sundararajan’s internment and escape from the
LTTE camp, to his brief reunification with his family,
and then his relocation to Colombo) that Sundararajan
had set forth at the hearing. A.R. 76-77. The inconsistency
as to the date of his arrest struck the IJ as particularly
significant. “Now I can understand a discrepancy of a
day or two, or even a month, but this is a serious dis-
crepancy because it is over three months and, when the
respondent was confronted with this, he really never
came up with a responsive answer and, to me, this individ-
ual testifying before the Court does not appear to be
testifying from actual experience.” A.R. 77. Judge Videla
also found Sundararajan’s testimony that he had escaped
from the LTTE camp by telling the guards that he
was going out to buy cigarettes implausible.
If these individuals were so intent in coming after the
respondent that they made not one contact or two
contacts, but three contacts, and they forcefully took
him away with armed individuals and they put him
in a camp surrounded by a fence and patrolled by
their people who had weapons, I very respectfully
12 No. 07-2512
find it difficult to believe that the respondent would
just be allowed to go buy cigarettes through the front
gate at 4:00 a.m. in the morning and simply never
go back. It does not make sense.
A.R. 78. Finally, the IJ noted the inconsistency be-
tween Sundararajan’s testimony that he left Sri Lanka on
September 28, 2006, and the asylum application which his
attorney had prepared and that he had reviewed and
signed, which repeatedly indicated that he departed Sri
Lanka on July 19, 2006. A.R. 79. He rejected the possibility
that the date on the application was a mistake, as
Sundararajan’s attorney suggested. A.R. 79-80. Based on
these inconsistencies, the IJ concluded that Sundararajan
was not a credible witness. A.R. 74.
Given Sundararajan’s lack of credibility as a witness, the
IJ found it reasonable to expect that he would present
additional evidence to corroborate his account, including
for example a letter from his wife, who according to his
testimony was a witness to some of the events he had
described. A.R. 80-81. But he had not done so, although
such evidence was reasonably available to him.
Sundararajan had, for example, mentioned a letter he
had received from someone in New York describing the
difficulties his wife was experiencing in Sri Lanka. Yet
Sundararajan had inexplicably thrown the letter away
despite the fact that his asylum application was
pending and he understood the need for documents
supporting his claims. A.R. 80-81.
Notwithstanding the lack of credible evidence that
Sundararajan had experienced past persecution in Sri
No. 07-2512 13
Lanka, the IJ went on to consider the possibility that he
might be persecuted upon his return to that country
given his Tamil ethnicity. The IJ acknowledged that the
situation for Tamils in Sri Lanka is “quite dire,”
but without additional evidence suggesting that
Sundararajan in particular would be singled out, the
judge was unwilling to assume based on Sundararajan’s
ethnicity alone that he was likely to be persecuted. A.R. 82.
Although the background evidence of human rights
violations and torture in Sri Lanka was “quite significant,”
the Judge did not find it sufficient to establish a pattern
and practice of persecuting Tamils in Sri Lanka that
would relieve Sundararajan of presenting proof that he
in particular would face such abuses upon return to his
homeland. A.R. 82-83.
Judge Videla concluded for these reasons that
Sundararajan had not proven that he had a well-founded
fear of persecution in Sri Lanka such that he was eligible
for asylum. A.R. 83. Because his claim for restriction on
removal was subject to a higher burden of proof, it fol-
lowed that he had not established his eligibility for that
relief either. A.R. 83. And because the judge had found
Sundararajan’s testimony lacking in credibility, his request
for relief under the CAT also failed. A.R. 83-84. Specifically,
Sundararajan had not shown that he was likely to be
arrested upon his return to Sri Lanka and that, if he were
arrested, he would be physically mistreated. A.R. 84.
The BIA sustained the IJ’s adverse credibility determina-
tion. A.R. 2. The Board agreed with Sundararajan that
his inconsistent testimony as to whether the LTTE took
14 No. 07-2512
him to the training camp in March or April of 2006 was a
minor inconsistency, most likely a slip of the tongue
which, prior to enactment of the REAL ID Act of 2005, P.L.
109-13, 119 Stat. 231, 302, would not have justified an
adverse credibility finding. A.R. 4. “Even under the new
legislation, we cannot find that the applicant’s ‘slip’ is
sufficient to doubt his entire claim, although it could, in
viewing the totality of the circumstances, provide addi-
tional evidence for an adverse credibility finding.” A.R. 4.
But the Board believed that the IJ was fully justified in
citing the discrepancy in Sundararajan’s testimony as to
the date of his arrest in Colombo as a reason to doubt his
credibility. The Board rejected Sundararajan’s contention
that the IJ, in reasoning that he should be able to accurately
recall the date of so traumatic episode as his arrest and
subsequent detention, was simply speculating as to the
traumatic nature of that event. “The very fact that the
applicant relies on this incident to support his claim of
fear from governmental forces in Sri Lanka is sufficient
to conclude that it was a traumatic event for him, leading
in part to his departure.” A.R. 4. The Board similarly
rejected Sundararajan’s contention that the IJ was speculat-
ing when he found the account of his escape from the
LTTE camp implausible. “It is not merely speculative to
say that the applicant’s claim of being forcefully
removed from his home and forced to remain in a camp
run by the LTTE is at odds with his statement that he
‘escaped’ when allowed to go to the store to buy ciga-
rettes.” A.R. 4-5. Finally, the Board concluded that
Sundararajan had not adequately explained the discrep-
ancy between his testimony and his asylum application
No. 07-2512 15
as to when it was that he left Sri Lanka. A.R. 5. “All of
these inconsistencies taken together are sufficient to
support the Immigration Judge’s adverse credibility
finding.” A.R. 5.
The Board went on to sustain the IJ’s demand for evi-
dence to corroborate Sundararajan’s account as well as his
conclusion that Sundararajan had failed to present ade-
quate corroboration. In the Board’s view, the IJ had con-
sidered what evidence Sundararajan had tendered, but
found it inadequate to substantiate his story. In particular,
the Board noted that the background evidence of
the civil strife and human rights abuses to which
Sundararajan pointed, although it was “important general-
ized evidence” of the types of abuses occurring in Sri
Lanka, was not “sufficient to rehabilitate his suspect
credibility about [his own] past personal experiences.” A.R.
5. The Board thus sustained the IJ’s conclusion that
Sundararajan failed to prove he was the victim of past
persecution.
The Board also rejected Sundararajan’s contention
that, regardless of his own experience in Sri Lanka, he
was entitled to relief in view of a pattern or practice of
persecution of Tamils in Sri Lanka. The Board acknowl-
edged the ongoing civil strife between the LTTE and Sri
Lankan armed forces and recognized that “human rights
violations do occur on a large scale in Sri Lanka,” but it
found the evidence of those abuses insufficient to estab-
lish a “pattern or practice” of persecution on the basis of
race, ethnicity, or another protected ground. A.R. 6. It
also found the evidence insufficient to establish a likeli-
16 No. 07-2512
hood that Sundararajan would be tortured if returned to
Sri Lanka. A.R. 6.
Finally, the BIA rejected Sundararajan’s contention
that a remand was necessary because the IJ had neglected
to adjudicate the additional claim that he would face
harm in Sri Lanka as a failed asylum-seeker. A.R. 5 n.1.
The Board found no error in the IJ’s omission to address
this claim specifically, even assuming that failed asylum
seekers are a social group who could be said to share
an immutable characteristic, such that they could claim
a right to asylum. The Board saw this claim as dependent
on Sundararajan’s credibility, and “[w]e affirm the Im-
migration Judge’s adverse credibility determination.”
A.R. 5 n.1.
II.
We review the IJ’s decision as supplemented by the
Board’s own analysis. E.g., Bakarian v. Mukasey, 541 F.3d
775, 781 (7th Cir. 2008). We examine the IJ’s factual deter-
minations deferentially and will uphold them so long as
they have the support of substantial evidence. E.g.,
Ingmantoro v. Mukasey, 550 F.3d 646, 649 (7th Cir. 2008). At
the core of both the IJ’s decision and the Board’s order
upholding it was the determination that Sundararajan
had failed to show that he has a well-founded fear that
he will be persecuted if returned to Sri Lanka. We will
disturb that determination only if the evidence of likely
persecution was “ ‘so compelling that no reasonable
factfinder could fail to find the requisite degree of per-
secution.’ ” Chatta v. Mukasey, 523 F.3d 748, 752 (7th Cir.
No. 07-2512 17
2008) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 484, 112
S. Ct. 812, 817 (1992)).
A. Adverse credibility determination
As was true before the BIA, Sundararajan’s first chal-
lenge is to the IJ’s determination that his testimony was
not credible. He contends, contrary to the Board’s deci-
sion, that the adverse credibility determination was
unfounded, and in support of that contention he cites
three aspects of the reasoning employed by the IJ and/or
the Board that he believes were flawed. First, the Board
represented that he contradicted himself as to the date
of his arrest in Colombo: “he originally alleged that he
was arrested in May of 2006, but later testified the arrest
occurred on August 25, 2006.” A.R. 4. In fact, Sundararajan
points out, he never cited May as the month of his
arrest, only August. He adds that the UNHCR report
supports his testimony that his arrest would have taken
place in August.2 S econd, he contends that the IJ, in
discounting as implausible his account of escaping from
2
Sundararajan also faults the Board for characterizing his
arrest in Colombo as a traumatic event whose date he should
be able to recall correctly, when it was his forced enrollment in
the LTTE training camp that the IJ cited as a traumatic event.
It is true that the IJ questioned Sundararajan about the
traumatic nature of being taken involuntarily for training, A.R.
192, and cited that event as a traumatic one in his decision, A.R.
76. But the IJ elsewhere referred to both events as traumatic,
A.R. 75, and as the Board itself pointed out, the fact that
Sundararajan cited his arrest as a basis for his fear of persecu-
tion speaks to the traumatic nature of that event. A.R. 4.
18 No. 07-2512
the LTTE camp, mischaracterized his testimony and
assumed facts that were not borne out by the record. In
particular, the IJ assumed that he had been taken
forcibly to the camp and that the camp was secure, such
that he would not have been permitted to simply walk out
of the camp in order to buy cigarettes. In reality,
Sundararajan represents, he never testified that he was
taken to the camp by force, and although the camp was
both fenced and patrolled, he testified that people were
free to come and go from the camp. Third, although
he acknowledges the discrepancy between his testimony
and his asylum application as to the date of his departure
from Sri Lanka, he insists that the discrepancy was ade-
quately explained. He testified that he was in custody
when his attorney prepared the application and conse-
quently was only able to consult with his counsel over
the telephone, thus suggesting that the mistake was
simply the result of miscommunication or oversight
rather than prevarication.3
The INA, as amended by the REAL ID Act of 2005, sets
forth the parameters for the Immigration Judge’s cred-
ibility determinations:
3
Sundararajan adds that in the statement attached to his
asylum application, he stated that he was in Singapore for
fourteen days, which tallies with his testimony that he left Sri
Lanka on September 28, 2006 and arrived in the United States
on October 11. That is true as far as it goes. But it does not
resolve the patent inconsistency between his asylum applica-
tion and his testimony as to the date of his departure from
Sri Lanka.
No. 07-2512 19
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
determination on the demeanor, candor, or responsive-
ness of the applicant or witness, the inherent plausibil-
ity of the applicant’s or witness’s account, the con-
sistency between the applicant’s or witness’s written
and oral statements (whenever made and whether or
not under oath, and considering the circumstances
under which the statements were made), the internal
consistency of each such statement, the consistency of
such statements with other evidence of record (includ-
ing the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in
such statements, without regard to whether an incon-
sistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant factor. . . .
8 U.S.C. § 1158(b)(1)(B)(iii). As the terms of the statute
make clear, the IJ is no longer required to link inconsisten-
cies, inaccuracies, and falsehoods in a witness’s testi-
mony to the heart of the immigrant’s claim before
relying on those defects as a reason to discredit a wit-
ness’s testimony. Mitondo v. Mukasey, 523 F.3d 784, 787-88
(7th Cir. 2008). The IJ does remain obliged to distinguish
between inconsistencies and the like that are material
and those that are not. Kadia v. Gonzales, 501 F.3d 817, 822
(7th Cir. 2007). Obviously, the IJ, having heard the testi-
mony first hand, is far better situated to assess the cred-
ibility of a witness than we are. Garcia v. INS, 31 F.3d 441,
444 (7th Cir. 1994) (quoting Estrada v. INS, 775 F.2d
1018, 1021 (9th Cir. 1985)). Only in extraordinary circum-
stances will we upset his credibility assessment. E.g.,
Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir. 2008).
20 No. 07-2512
Having reviewed the decisions of the IJ and the Board
along with the evidentiary record, we discern no basis on
which to disturb the IJ’s decision not to credit
Sundararajan’s testimony. To begin, there was an incon-
sistency in his testimony as to whether his arrest in Co-
lombo occurred in May or August 2006. It is true that
Sundararajan never mentioned May 2006 as the date of
his arrest, as the Board suggested. A.R. 4. It was, instead,
the IJ who derived that date from the sequence of events
to which Sundararajan had testified. But the IJ’s infer-
ence in that regard was nonetheless grounded in
Sundararajan’s testimony, and the IJ explicitly set forth
the bases for inferring that Sundararajan had been
arrested in May. A.R. 76-77. Sundararajan has not shown
that the IJ’s calculation of the May date was off-base,
and we find that it is consistent with the chronology to
which Sundararajan testified. So when Sundararajan
testified that he was arrested in August, rather than
May, he implicitly contradicted the chronology he had
already set forth in his testimony. The UNHCR report is
of no help to Sundararajan in explaining the discrepancy:
The report simply confirms that Tamils were at heightened
risk of security checks, arbitrary searches, harassment, and
the like as the result of new governmental regulations
imposed in April and December 2006. A.R. 257. The
report supports the notion that Sundararajan could have
been arrested within the April to December time period,
but it does not point to either May or August as the likely
date. We also note that Sundararajan confessed to con-
fusion and an inability to recall the date of his arrest and
the chronology of events leading up to it with specificity
No. 07-2512 21
when pressed on this point by the IJ. A.R. 199 (“Because
of the tension I couldn’t remember it properly. . . . Actu-
ally, I can’t calculate the months because I was—I wasn’t
thinking clearly. I can’t remember the months.”). How-
ever, his confusion, although understandable, does not
ameliorate the doubts raised by the inconsistencies in his
testimony, let alone compel the IJ and the Board to
credit his testimony.
We also conclude that the IJ was on solid ground in
doubting Sundararajan’s account of escaping from the
LTTE camp. It is true that Sundararajan, both on cross-
examination by the government and during supple-
mental questioning by the IJ, soft-pedaled the confining
nature of the camp. A.R. 181, 193. But when specifically
asked by the IJ as to whether he was taken to the camp
against his will, he testified expressly that “they forcibly
took me.” A.R. 191. He also testified that the people who
took him had weapons. A.R. 192. Moreover, the camp
was, by Sundararajan’s own account, both fenced and
patrolled by guards. A.R. 180-81, 396. Under those circum-
stances, the IJ not unreasonably concluded that
Sundararajan and other “guests” of the LTTE would not
have been free to come and go as they wished, and that
Sundararajan would not have been permitted to leave
the camp at 4:00 a.m., never to return. Sundararajan
himself described his departure using various forms of
the word “escape,” which suggests that the LTTE had
him in its custody. A.R. 165, 182, 195, 396.
As for the discrepancy between Sundararajan’s asylum
application and his testimony regarding the date of his
22 No. 07-2512
departure from Sri Lanka, the IJ was by no means com-
pelled to accept the explanation that the date on the
application was a mistake owing to Sundararajan’s inabil-
ity to consult with his attorney in person during the
preparation of the application. Sundararajan’s counsel
speaks the Tamil language and on the application form
itself verified that it had been read to his client in his
native language, A.R. 391, and Sundararajan acknowl-
edged that he had reviewed the application before signing
it, A.R. 149-51. As the IJ pointed out, the date of his depar-
ture is discussed more than once in the application, and it
consistently states or implies that Sundararajan left Sri
Lanka in July rather than September as he later testified,
making it less likely that Sundararajan would have over-
looked any error. A.R. 383, 389; see also A.R. 386 (listing
his last dates of residence and employment in Sri Lanka
as July 2006).
Both the IJ and the Board accurately recited the gov-
erning criteria for credibility determinations, A.R. 4, 58-61,
and the IJ’s decision not to credit Sundararajan, as
affirmed by the Board, is reasonable and consistent with
the record evidence. Perhaps a different factfinder might
have credited Sundararajan, but we cannot say that it
was unreasonable for Judge Videla not to do so. See
Balogun v. Ashcroft, 374 F.3d 492, 507-08 (7th Cir. 2004).
B. Corroboration
After concluding that Sundararajan’s account of his
experiences in Sri Lanka was not credible, the IJ deter-
mined that it was reasonable to expect him to provide
No. 07-2512 23
corroboration of the events to which he testified,
including some sort of statement from his wife. A.R. 80-81.
Sundararajan had failed to supply such corroboration,
in the IJ’s view, and that failure contributed to the IJ’s
conclusion that Sundararajan had presented insufficient
evidence to support the notion that he would be perse-
cuted if returned to Sri Lanka. Sundararajan faults this
portion of the IJ’s analysis for overlooking what corrob-
orative evidence he did present to the court. He notes
that the UNHCR report and other background evidence
he presented do substantiate the types of abusive prac-
tices by both the LTTE and Sri Lankan authorities that he
described in his testimony. And as for substantiation of
his own allegations, he reminds us that he submitted
proof that a complaint was made on his behalf to the
Human Rights Commission of Sri Lanka, a letter from
Reverend Jeremiah Arasarathinam, and an extract from
a police station book. The IJ’s decision was silent as to
these three documents. Finally, he contends that he
adequately explained why he could not produce a letter
or other evidence from his wife: He testified that she
had been staying with Reverend Arasaratnam in the past,
but that, at the time of the hearing, she was moving from
place to place in order to avoid the Sri Lankan armed
forces and he did not know how to reach her.
Given the modifications to the Immigration and Nation-
ality Act effected by the REAL ID Act, an immigration
judge now enjoys substantial leeway to demand corrob-
oration of an asylum applicant’s allegations whether or
not the judge finds the applicant credible. Rapheal v.
Mukasey, 533 F.3d 521, 527 (7th Cir. 2008). Only if such
24 No. 07-2512
evidence is beyond the reasonable ability of the immi-
grant to obtain is the judge precluded from demanding
corroboration. 8 U.S.C. § 1252(b)(4); Eke v. Mukasey,
512 F.3d 372, 381 (7th Cir. 2008).
We find no error in the Immigration Judge’s expecta-
tion that Sundararajan produce additional evidence to
corroborate his account of past persecution. We note
that the Judge’s adverse credibility determination was
made independent of the lack of corroboration; only
after he had deemed Sundararajan incredible—and, as we
have discussed, that finding was not erroneous—did the
judge look for corroboration of his account. A.R. 80. It
was not unreasonable for the judge to look for corrob-
oration from Sundararajan’s wife in particular, given
that she was a witness to some of the harassment and
coercion he allegedly experienced from the LTTE and it
was she who allegedly got him out of jail in Colombo.
Although it is true that Sundararajan seemed to suggest
at one point in his testimony that he did not know how to
reach her in Sri Lanka, his testimony on this score was
inconsistent, for at other times the clear implication of
his testimony was that he knew “where about she [was],”
and could reach her, although only by mail. A.R. 176.
Plus, she had supplied other evidence to support
Sundararajan’s case, so it was not unreasonable to
surmise that she could have submitted her own state-
ment at that time, even if she later fell out of contact with
her husband. As for the Immigration Judge’s failure to
specifically address all of the background and other
evidence that Sundararajan did submit, any omission
in that respect was harmless, as the evidence did not
No. 07-2512 25
materially corroborate the events to which he testified.
The UNHCR report, for example, speaks to the types of
human rights abuses that occur in Sri Lanka but
says nothing about what did or did not happen to
Sundararajan. See Rashiah v. Ashcroft, 388 F.3d 1126, 1133
(7th Cir. 2004). The evidence as to the complaint filed with
the Sri Lankan Human Rights Commission says nothing
beyond that a complaint was filed. A.R. 244. The police
report that Sundararajan’s wife filed makes only a
passing allegation that he left Sri Lanka due to harassment
similar to what she and her children were experiencing
and does not meaningfully corroborate the events to
which he testified before the IJ. A.R. 235. And the Rever-
end’s letter suggests that he has no personal knowledge
of what Sundararajan had experienced; moreover, like
Sundararajan’s asylum application, it suggests that
Sundararajan left Sri Lanka in July rather than
September 2006. A.R. 245.
C. Remand for hearing on persecution as failed asylum-
seeker
Sundararajan next argues that the Board erred in declin-
ing to remand the case to the IJ with directions to con-
sider the possibility that Sundararajan may face persecu-
tion as a failed asylum seeker. In the statement that
Sundararajan attached to his I-589 application for
asylum and other relief, he stated that the Sri Lankan
authorities typically arrest at the airport anyone
returned to the country involuntarily, and that Tamil
refugees have often disappeared while in detention at the
26 No. 07-2512
airport. A.R. 398. He made a similar assertion in his
testimony. A.R. 177. At the conclusion of the evidentiary
hearing before the Immigration Judge, Sundararajan’s
attorney argued in closing that he had an independent
claim for relief as a failed asylum-seeker. A.R. 221-23. But
the IJ never explicitly addressed this possibility in his
decision. For its part, the Board in a footnote indicated
that it was unnecessary for the IJ to do so given the
judge’s adverse evaluation of Sundararajan’s credibility.
A.R. 5 n.1. Sundararajan faults that reasoning as untenable,
given that the IJ’s credibility determination related to
his past experiences in Sri Lanka, which have nothing to
do with the possibility that he might be persecuted for
having unsuccessfully sought asylum in the United States.
Given the lack of record evidence supporting this
claim, however, Sundararajan was not entitled to a
hearing. The only evidence in the record supporting
the notion that Sundararajan might face persecution as
a failed asylum seeker is his own statement in support
of his asylum application and his testimony at the hear-
ing. This evidence is itself minimal, and Sundararajan
never articulated the basis for his knowledge that failed
asylum seekers face arrest and abuse upon their return
to Sri Lanka. Given that the IJ did not credit him as a
witness, there was effectively no evidence to support this
claim. And although Sundararajan points out that the
Second Circuit ordered a hearing on a similar claim in
Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.
2004), notwithstanding the IJ’s adverse credibility deter-
mination, in that case the alien had proffered evidence
No. 07-2512 27
sufficient to support the claim, see id. at 184. Sundararajan
failed to offer sufficient evidence here.
D. Pattern or practice claim
As Sundararajan points out and as both the IJ and the
Board recognized, he 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 persecution in Sri Lanka based on a pro-
tected trait (e.g., ethnicity) that he shares. See 8 C.F.R.
§ 208.13(b)(2)(iii). But the level of persecution must be
extreme in order to demonstrate such a pattern or prac-
tice. 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 pro-
tected 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.The background evidence that Sundararajan has sub-
mitted, 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
28 No. 07-2512
to return) gives us pause, as it did the IJ. A.R. 82. 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 mem-
bers are engaged in an insurgency against the govern-
ment, 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.
No. 07-2512 29
E. CAT claim
Finally, Sundararajan challenges the summary rejection
of his CAT claim, which neither the Board nor the IJ
addressed at any length. The IJ noted that because he had
not found Sundararajan to be a credible witness, “I cannot
find that the respondent has established that it is more
likely than not that, if he is returned to Sri Lanka, first,
that he would be arrested by anyone and, secondly,
that the respondent, in fact, after being arrested, will be
physically mistreated which would constitute torture
under the Convention.” A.R. 84. The Board affirmed the
IJ’s reasoning on that point. A.R. 6. Sundararajan
contends that because his CAT claim is premised on
different factors than his asylum claim, it was error to
dismiss this claim out of hand without more extensive
analysis. Even if his testimony about his experiences in
Sri Lanka is discounted, Sundararajan maintains, he still
has a viable claim under the CAT based on his Tamil
ethnicity and his status as a failed asylum seeker.
In order to establish his eligibility for relief under the
CAT, Sundararajan must show that it is more likely than
not that he will be tortured in Sri Lanka, e.g., Khan v. Filip,
554 F.3d 681, 690 (7th Cir. 2009), and substantial evidence
supports the Board’s determination that he did not
make such a showing. The statement Sundararajan at-
tached to his asylum application and his testimony
before the IJ supplied the sole evidentiary support for
his CAT claim, and given the IJ’s adverse credibility
determination, Sundararajan did not present credible
evidence either that he had experienced past persecution
30 No. 07-2512
in Sri Lanka or that, as a failed asylum seeker, he was
likely to face torture upon his return to that country. And
as we have already discussed with regard to the pattern
or practice claim, although Tamils have undoubtedly
faced severe hardships in Sri Lanka, the evidence does
not support the conclusion based on Sundararajan’s
ethnicity alone that he is more likely than not to
experience torture in Sri Lanka.
III.
The decision whether to follow the UNHRC’s recom-
mendation not to return Tamils to Sri Lanka until condi-
tions there improve belongs to the Executive Branch. Our
authority is limited to reviewing the decisions of the
Immigration Judge and the BIA based on the evidence
presented in this particular case. Substantial evidence
supports the Board’s conclusion that Sundararajan does
not have a well-founded fear of persecution in Sri Lanka
and that he has not shown it to be more likely than not
he will be persecuted and/or tortured upon his return to
that country. We therefore DENY Sundararajan’s petition
for review of the BIA’s order refusing him his requests
for asylum, restriction on removal, and relief under
the CAT.
4-23-09