Senathirajah v. I.N.S.

Decision Date09 October 1998
Docket NumberNo. 97-3607,97-3607
Citation157 F.3d 210
PartiesChenthilkumaran SENATHIRAJAH, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Chin W. Fong (Argued), New York, New York, Attorney for Petitioner.

Joan E. Smiley, Karen F. Torstenson (Argued), Civil Division, Department of Justice, Michael P. Lindemann, Vernon B. Miles, United States Department of Justice, Office

of Immigration Litigation, Washington, D.C., for Respondent.

Before: ROTH and McKEE, Circuit Judges and O'NEILL, Senior District Judge. *

OPINION OF THE COURT

McKEE, Circuit Judge.

Chenthilkumaran Senathirajah appeals the decision of the Board of Immigration Appeals ("BIA" or the "Board") denying his petition for review of an immigration judge's ruling denying his application for asylum and withholding of deportation under 8 U.S.C. §§ 1101(a)(42)(A), 1158(a) and 1253(h). For the reasons that follow we will grant the petition and remand for further proceedings consistent with this opinion. 1

I.

Senathirajah is a fifty-one year old ethnic Tamil from Sri Lanka who claims to have been tortured while detained by the Indian Peace Keeping Forces ("IPKF "), the Sri Lankan military and the Sri Lankan police. 2 His claims include: (1) a two year period of detention and torture beginning with an arrest by the IPKF in March 1988 for suspected membership in the Liberation Tigers of Tamil Eelam ("LTTE" or "Tigers"); (2) detention and torture by the Sri Lankan army beginning with an arrest in July 1992 for suspected membership in the LTTE; and (3) detention and physical abuse by the Sri Lankan police beginning with an arrest in January 1994 for suspicion of membership in the LTTE.

Soon after the last detention alleged by Senathirajah, he hired "an agent" to procure a Canadian passport for him to travel outside of Sri Lanka. App. at 322. On February 2, 1995, Senathirajah arrived at Kennedy Airport in New York where he signed a sworn statement before an Immigration and Naturalization Service ("INS") inspector regarding his attempted entry into the United States (the "affidavit"). The affidavit, which is transcribed in hand-printed, question and answer format contains the following:

Q: What is your level of education? Do you work?

A: I graduated college, I am a teacher-I teach English.

Q: Sir, have you answered all my questions truthfully?

A: Yes.

Q: Would it be a burden if you had to leave/return to Sri Lanka at this time?

A: My house was burned by the Sri Lankan army and I am coming for political asylum in Canada.

....

Q: Sir, do you wish to add to this statement at this time?

A: No, only that I want political asylum in Canada.

Q: Sir, at this time you appear excludable ... You can withdraw you[r] application to enter the U.S. voluntarily or you can ask for an exclusion hearing at a later date. Which do you choose?

A: I want to go to Canada, I cannot go back.

App. at 227. The INS subsequently charged Senathirajah with excludability from the United States, under 8 U.S.C. §§ 1182(a)(7)(A)(I)(I) and 1182(a)(6)(C)(I) for attempting to enter the United States by fraud and without a valid visa. 3 App. at 357.

On May 1, 1995, Senathirajah submitted a formal application for asylum using INS Form I-589. That form contains the following:

1. Why are you seeking asylum?

If I returned to Sri Lanka, I will be arrested, detained, tortured and be killed.

2. What do you think would happen to you if you returned to the country from which you are claiming persecution?

Due to my Tamil nationality and the suspicion that I am a member of the LTTE and from Velvettithurai, if I were returned to Sri Lanka, I will be persecuted.

App. at 317. In a statement that Senathirajah attached to the application he stated:

1. I was born in Velvettithurai in the northern province of Sri Lanka on the 26th of December 1947. I completed my secondary education in 1968. After working full time for a while, I studied full time from 1974 to 1977 at a technical college and obtained a diploma in English.

* * *

4. Since 1983, the Sri Lankan government has been engaged in armed conflict with Tamil militants. In May 1987, the Sri Lankan armed forces launched a major offensive in Velvettithurai.... During this offensive, the Sri Lankan government engaged in indiscriminate bombing. During one of the Sri Lanka government's bombing raids, the boat yard where I worked was damaged severely. As a result, I left the village with my family and moved to another village.

5. In August 1987, pursuant to the Indo-Sri Lankan Accord, the Indian Peace Keeping Force (IPKF) came to Sri Lanka to restore peace and normalcy. When the IPKF arrived, the Sri Lankan armed forces were confined to barracks. I returned to my village with my family.

6. In October 1987, war broke out between the IPKF and the LTTE....

8. In March 1988, during a meeting of our community center, the members of the IPKF came to our center and arrested the Secretary and myself. We were taken to the IPKF camp.

9. At the camp, we were asked about the whereabouts of LTTE members. We denied any knowledge about the LTTE. The next day we were subjected to an identification parade. A man with a black mask was brought in. We were brought in front of the man with a black mask and the IPKF man asked the informant whether we were LTTE members. When certain persons were brought in front of the informant, he nodded his head. When it was my turn, the informant nodded his head. I was taken away, put in solitary confinement and subjected to torture.

10. I was detained by the IPKF until its departure. Following talks between the Sri Lankan government and the LTTE, the IPKF left Sri Lanka.

11. .... In June 1991, war broke out between the Sri Lankan government and the LTTE.

12. .... In July 1992 ... the Sri Lankan army captured our town. The LTTE cadres left my village when the Sri Lankan armed forces raided the area.

13. Around 10 p.m., the Sri Lankan military came to my house. When they entered my house, they hit me with their guns and accused me of being a Tiger and arrested me. I was taken to their camp.

14. At the camp, I was accused of being a member of the LTTE. They wanted to know the whereabouts of LTTE members. When I said I didn't know, they tortured me. I was detained and continually tortured till October 1993....

17. In January 1994, the Sri Lankan armed forces raided my lodge [in Colombo]. When the Sri Lankan armed forces came to my room, they asked for my identification card. Upon seeing my card, they realized that I was from the northern province. They immediately accused me of being a Tiger and arrested me.

18. I was first taken to the police station where I was interrogated and tortured....

20. Because I feared I would be arrested again, I decided to leave Sri Lanka.

App. at 321-22.

Senathirajah had an asylum hearing on August 10, 1995. During that hearing, he testified to enduring atrocities similar to those set forth in the above statement, with some additions. He testified that his house had been "demolished" by the Sri Lankan military, that from 1988 to 1990 he was detained by the IPKF, denied proper food and forced to wear the same clothing. App. at 191, 197-98. He also testified that he had been arrested by the Sri Lankan military in 1992 when the military came to his home and accused him of being a member of the LTTE. He stated that he was taken to a military camp where he underwent torture that included having both hands tied behind his back, being slapped, and being hit on the head with a bat. He said members of the military made him undress and drink his own urine whenever he asked for water. App. at 179-80. Senathirajah also testified about an arrest in January 1994 in Colombo where he had gone for medical treatment. App. at 180-183.

When asked about his fluency in English, as suggested by the averments in his affidavit, Senathirajah replied "yeah, some, little English." However, he added "pronunciations" of foreigners "is a little difficult." App. at 192. He then stated that he had requested a Tamil interpreter at the time of his airport interview, but was told that none was available. Therefore, he proceeded to give the statement without an interpreter.

Senathirajah testified at his hearing that he signed the affidavit because he was "scared." He stated that "[t]he officer told me to sign. The two people the agent brought were (indiscernible) to sign the document, so I thought if I sign also, I'll get released. With that intention I signed." App. at 193. Senathirajah then insisted that he had been unaware of the contents of the statement before he signed it. Id.

The immigration judge denied Senathirajah's application for asylum. We will quote her explanation for doing so at length because her reasoning is at the heart of our inquiry.

I have observed the demeanor and testimony of the Applicant, and for the following reasons, I find that his testimony is not credible. 1) the Applicant has testified that he was arrested on three different occasions, the first time being for a period of two years, the second time for a period of approximately a year and three months, and on the third occasion for a period of a year. He stated that the date of the employment as regards his tutoring profession was indicated in the Form I-589 as that being from January 1978 until October 1993 because he had off and on been involved in this profession for those years. However, it should be noted the end date of the employment as a tutor as indicated on the Form I-589 (the asylum application), part E is that of October 1993. In fact, Applicant has stated that he was jailed from July 1992 until October 1993. 2) The Applicant has indicated both on direct examination and, although there was some confusion as to his testimony on cross examination, the Applicant had testified that he was in detention from March of 1988 to March of 1990 by the IPKF. However, it was only on...

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