Anandarajah v. Atty Gen USA , 258 F. App'x 495 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-19-2007
Anandarajah v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3538
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-3538
____________
JULIAN RAJANAYAGAN ANANDARAJAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A97 302 954)
Immigration Judge: Eugene Pugliese
____________
Submitted Under Third Circuit LAR 34.1(a)
October 25, 2007
Before: FISHER, STAPLETON and COWEN, Circuit Judges.
(Filed: December 19, 2007 )
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Julian Rajanayagan Anandarajah, a native and citizen of Sri Lanka, petitions for
review of an order of the Board of Immigration Appeals (BIA) affirming the decision of
the Immigration Judge (IJ) to deny his applications for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). For the reasons that follow,
we will deny the petition.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Anandarajah joined the Sri Lankan Navy in 1977 and was posted on land until July
1983, when he was transferred to a naval ship. While on deck, his co-workers accused
him of being a member of the Liberation Tigers of Tamil Eelam (LTTE) minority and
threatened to throw him overboard. Anandarajah fled and went to speak with the ship’s
captain about the incident, but no formal action was taken. Anandarajah contends that he
became fearful of his co-workers, and he went Absent Without Leave (AWOL) in
September 1984 by deserting the navy and gaining employment in Saudi Arabia.
In 1991, the company which Anandarajah alleges he worked for in Saudi Arabia
closed down, so he returned to Sri Lanka. Upon arrival at the airport, he alleges that he
was detained by Sri Lankan investigators and handed over to the Sri Lankan Navy for
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being a deserter. He also alleges that thereafter, he was kept in a detention camp and
accused of being a member of the LTTE, until a court martial was conducted and
Anandarajah was sentenced to six months in jail.
In 1992, Anandarajah was again taken into custody by Sri Lankan police and
questioned about the death of a Sri Lankan naval officer. The police beat him, accusing
him of having information on the assassination. After four days’ detention, he was
released due to efforts by his father and a church reverend. As a result, Anandarajah
decided to leave the country, but was detained by Sri Lankan police once more. He was
beaten for eighteen days before his father obtained an attorney, bribed police officers, and
secured his release on the condition that he report to the police station every Sunday.
Instead, Anandarajah fled to Tunisia, then Sicily, then Germany, where he sought to
obtain refugee status, but was denied. Then, Anandarajah traveled to Canada to seek
asylum, but was denied there, too.
In March 2004, he entered the United States and was soon charged as inadmissible
and subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). As a result, Anandarajah
applied for asylum, withholding of removal, and protection under the CAT. During a
hearing on February 4, 2005, the IJ determined that Anandarajah was subject to removal
and denied his claims for relief. The BIA adopted and affirmed the decision of the IJ and
dismissed Anandarajah’s appeal. The instant petition for review followed.
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II.
We have jurisdiction pursuant to 8 U.S.C. § 1252. “Because the BIA affirmed and
adopted the IJ’s opinion, we review the decisions of both the BIA and the IJ.” Luciana v.
Attorney Gen., 502 F.3d 273, 279 (3d Cir. 2007). We uphold their findings of fact and
adverse credibility determinations so long as they are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Filja v.
Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Factual findings “are conclusive unless ‘any
reasonable adjudicator would be compelled to conclude to the contrary.’” Ilchuk v.
Attorney Gen., 434 F.3d 618, 621 (3d Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).
Finally, we review de novo claims of a violation of due process. Abdulrahman v.
Ashcroft, 330 F.3d 587, 595-96 (3d Cir. 2003).
III.
Anandarajah advances multiple arguments. First, he argues that the numerous
inconsistencies between his asylum applications in the United States and Canada and his
testimony before the IJ were insufficient to sustain the IJ’s adverse credibility
determination. Second, Anandarajah argues that the IJ’s analysis of his CAT claim
constituted legal error. Third, he contends that he was deprived of due process because
the IJ was biased and so denied him a full and fair hearing.
First, Anandarajah argues that the IJ’s adverse credibility determination was not
supported by substantial evidence. We disagree. The IJ found numerous inconsistencies
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among the various documents submitted, between the documents and Anandarajah’s
testimony at the hearing, and even between statements he made at the same hearing. For
example, Anandarajah testified that he gave the LTTE money because the LTTE asked
him for money. However, he also testified that he personally never gave the LTTE any
money; his father was the only one who did as the head of the family. In addition, the IJ
found numerous inconsistences between his Canadian application for asylum and his
United States application, including the following:
(1) the Canadian application states that his navy vessel co-workers
attempted to kill him in August 1984, whereas his United States
application lists the date as August 1983;
(2) the Canadian application alleges that while he was in Saudi Arabia,
on separate occasions the Sri Lankan Navy harassed his family, and
Sri Lankan armed forces beat his wife, whereas neither of these
allegations appears in his United States application;
(3) the Canadian application states that he sent his wife money to
purchase vans to open a transport business in 1987, whereas his
United States application does not mention any involvement with a
bus business until 1991; and
(4) numerous other statements made in the Canadian application are
omitted from his United States application.
Also, Anandarajah’s United States written application indicates that when he was arrested
and sentenced in Sri Lanka in 1991, he had already been detained for seven months, so he
was released without a jail term. However, he testified at his hearing that he was
sentenced to six months and also served six months, with no mention of any credit for
time served. Further, Anandarajah’s application states that he was in Tunisia for two
months, whereas he testified at his hearing that he was in Tunisia for two weeks.
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Accordingly, the IJ had substantial evidence to determine that all of these
inconsistencies, taken together, suggest that Anandarajah’s testimony was not credible
and that they go to the heart of his claim, which is required for asylum applications filed
on or before May 11, 2005. See Chukwu v. Attorney Gen., 484 F.3d 185, 189 (3d Cir.
2007); Mudric v. Attorney Gen., 469 F.3d 94, 101 (3d Cir. 2006) (“When an IJ denies an
asylum claim based in part on an adverse credibility determination, . . . we review that
determination to ensure that it was appropriately based on inconsistent statements,
contradictory evidences, and inherently improbable testimony.” (internal quotation marks
omitted)). Further, the IJ found that Anandarajah’s demeanor contributed to the
conclusion that he was not credible. See Dia v. Ashcroft, 353 F.3d 228, 252 n.23 (3d Cir.
2003) (en banc) (typically, IJ’s reliance “on her personal observations of [applicant]’s
demeanor or any other observations [is something] to which we must accord an even
greater degree of deference”). For all of these reasons, the IJ did not improperly deny
Anandarajah asylum on the basis of an adverse credibility finding.
Because Anandarajah is unable to establish his eligibility for asylum, his claim for
withholding of removal also fails. Mudric, 469 F.3d at 102 n.8. Although Anandarajah is
correct that his application for CAT relief must be analyzed separately, see Zubeda v.
Ashcroft, 333 F.3d 463, 476 (3d Cir. 2003), in this case the adverse credibility finding is
dispositive because the alleged facts on which the applicant bases the CAT claim are the
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same as those underlying the asylum application. See Tarrawally v. Ashcroft, 338 F.3d
180, 188 (3d Cir. 2003).
Finally, Anandarajah argues that the IJ was biased because he took into
consideration the fact that Anandarajah had come before tribunals in other countries
seeking asylum; Anandarajah contends that as a result, he was denied a full and fair
hearing. Applicants have the “right to a full and fair hearing that allows them a
reasonable opportunity to present evidence on their behalf.” Jarbough v. Attorney Gen.,
483 F.3d 184, 192 (3d Cir. 2007). To establish a violation of due process, an applicant
“must show substantial prejudice.” Id.
We conclude that Anandarajah was not denied due process. He himself introduced
his Canadian application for asylum and the record of those proceedings as a part of the
record for the instant proceedings, so it was not improper for the IJ to consider such
evidence. The remarks of the IJ with regard to the former proceedings therefore do not
establish that Anandarajah was denied a “full and fair hearing.” See Abdulrahman, 330
F.3d at 596 (finding that, even where the IJ went “beyond the bounds of propriety to
make some additional and problematic generalized assertions . . . in the context of the
record as a whole there is insufficient evidence to conclude that the overall proceedings
were biased in violation [the applicant’s] right to due process”).
IV.
For the foregoing reasons, we will deny the petition for review.
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