Paramasamy v. Ashcroft

Decision Date16 July 2002
Docket NumberNos. 01-70584.,s. 01-70584.
Citation295 F.3d 1047
PartiesUthayarosa PARAMASAMY, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Carol L. Edward and Eric P. Lin, Law Offices of Carol L. Edward, Seattle, WA, for the petitioner.

James A. Hunolt and Barry Pettinato, Department of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A71-890-116.

Before: BRUNETTI, TROTT, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge:

Cookie cutter credibility findings are the antithesis of the individualized determination required in asylum cases. The integrity of the adjudicative process depends on judges reviewing each case on its merits. That integrity is called into question when boilerplate findings masquerade as individualized credibility determinations. Regrettably we have such a case here.

Uthayarosa Paramasamy, a young Tamil woman from Sri Lanka, petitions for review of a decision by the Board of Immigration Appeals ("Board"). The Board denied Paramasamy's application for asylum and withholding of removal, relying on the Immigration Judge's ("IJ's") adverse credibility determination. The IJ's adverse credibility finding focused on demeanor observations that were worded identically to findings in two other opinions that the judge issued in the same week. Many of the remaining findings are not supported by the record, or are an improper basis for making a credibility determination. Taken as a whole, these deficiencies are so significant that we conclude that the Board's decision is not supported by substantial evidence.

BACKGROUND

Paramasamy testified that she fled persecution by the Sri Lankan Army which detained and sexually assaulted her because she was a Tamil and consequently suspected of being a member of the rebel Liberation Tigers of Tamil Elam ("Tigers," or sometimes referred to in the record as "LTTE"). In fact, she claims that she was not a member and that she endured significant hardship resisting the Tigers because of her opposition to their terrorist tactics.

Paramasamy's account is consistent with reports in the record that document the situation in Sri Lanka at the time of her asylum application. The Sri Lankan Army had been engaged in an armed struggle with the Tigers for many years. The Tigers controlled portions of the northern and eastern areas of the country, with the ultimate objective of establishing an independent Tamil state. The Army controlled the south. According to the State Department country report, "both sides mistreat prisoners and arrest suspected opponents on an arbitrary basis." In the Army-controlled areas, young Tamils were at particular risk of persecution as suspected Tigers. Indeed, Paramasamy stated that her older brother was arrested by the Army and disappeared in 1990.

Paramasamy originally lived in Jaffna, a northern city under Tiger control. The Tigers attempted to recruit her forcibly as a young girl, but she refused because she did not agree with their terrorist methods. Her family paid a substantial sum to buy her freedom. This testimony is consistent with reports that the Tigers used forced conscription and a taxing system to support their organization.

Independent accounts in the record corroborate that, in 1995, the Tigers "emptied the city [Jaffna] by force" due to the Army's advance. Paramasamy stated that as she was fleeing, the Army arrested her and detained her in an army camp for about a month, although there was conflicting testimony about the time period that she was held. She was threatened and sexually assaulted by soldiers who removed her clothes and behaved "in an indecent manner." She testified to the assault only at the hearing, not during her previous interviews. Paramasamy explained that she could not tell the asylum officer about these sexual details because he was a man and relating the sexual assault was embarrassing. She later told her attorney and the IJ because they are women.

After her release, Paramasamy rejoined some of her family in a northern town under Army control. As a Tamil, she was required to register with the government every month and was frequently detained in the street and harassed. She was able to obtain permission to go to the national capital approximately 100 miles south, but only for two months. There, she said, the harassment continued, including frequent invasions of her home by government officials who conducted body searches. Finally, she fled to the United States, apparently attempting to rejoin her family members who, because of the harassment, have fled one by one to Canada. She does not speak English.

In an opinion that relied heavily on demeanor findings identical to those contained in two other cases before her, Immigration Judge Ho determined that Paramasamy was not credible. The IJ also highlighted perceived inconsistencies and failures of proof. She speculated that "[g]eneral fear of unsettled conditions in Sri Lanka and the anticipation of better job opportunities," as well as "a desire to leave the country to get married" were more likely reasons for Paramasamy's flight. Finally, the IJ cited Paramasamy's use of false documents to travel as "background" for the credibility determination.

The following paragraphs represent the IJ's findings on Paramasamy's demeanor. With the exception of the erratically altered pronouns, this passage is word-for-word identical to the credibility findings from this IJ's decision in Somasundaram, INS File No. A71-890-117, and, save for the bracketed italicized detail, from her decision in Karunakaran, INS File No. A71-890-115.1

With regard to the applicant's demeanor and her manner of recounting her alleged experiences, in the Court's judgment, there was an unnatural manner in her delivery of her testimony without the occasional pauses one would expect while she stopped to remember the details of terrible experiences. There was no visible change in her countenance or signs of emotional upheaval except at one point later in the proceedings when she was not describing the dark room [the lack of food, the dark room], but rather, her wish not to return to Sri Lanka in the end of her testimony.

The court, in its judgment, did not see any indication in the respondent's countenance or manner of speech indicating if he [sic] was reliving these terrible experiences. In fact, the applicant failed to mention that she was abused by the Sri Lankan Army prior to the hearing on the merits of the case. [In fact, the applicant failed to mention that he was burned by cigarettes by the soldiers in January, 2000. ...]. Since the abuse [the cigarette burn] is indicative of torture, and is material to her asylum and torture convention claim, the failure to mention it at the merits' hearing [sic] is material inconsistency between her testimony and her statement to the asylum officer, immigration officer and her own asylum application.

The Court has made allowance for the fact that she testified through an interpreter. This may be difficult for the applicant in recounting his [sic] experiences, but the court is not satisfied as the sincerity of the respondent based on her demeanor. Again, this determination is not dispositive of the claim, but provides a background for other observations.

The Board dismissed the appeal, holding that the copied passages did not provide a basis to disturb the demeanor findings. The Board relied on certain findings it believed were individualized and supportive of the adverse credibility determination. Finally, it reasoned that reliance on the use of false documents for travel, although improper, "was not a significant factor in the Immigration Judge's credibility analysis."

DISCUSSION

Congress has directed the Attorney General to consider asylum requests from refugees who arrive on our shores, 8 U.S.C. §§ 1158(b), 1225(b)(1), and has mandated that they not be removed to countries where their life or freedom would be threatened, 8 U.S.C. § 1231(b)(3). Paramasamy's extremely serious claims must be fairly measured against the standards established by Congress.

We review the Board's determination that Paramasamy was not eligible for asylum, 8 U.S.C. § 1252, and must uphold it if it is supported by substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Rios v. Ashcroft, 287 F.3d 895, 899 (9th Cir. 2002). Because the Board adopted IJ Ho's decision, we must also review her reasoning. Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996). Examining both opinions under this deferential standard, we nonetheless conclude that they are unsupported by the requisite substantial evidence.

I. BOILERPLATE DEMEANOR "FINDINGS"

We begin with the proposition that we accord credibility findings, and particularly the IJ's demeanor findings, substantial deference. Abovian v. INS, 219 F.3d 972, 977-78(9th Cir.2000) (as amended). This deference presupposes, however, that "[e]ach case is evaluated on its own merits." Platero-Cortez v. INS, 804 F.2d 1127, 1130 (9th Cir.1986). Because of the basic tenet that each petitioner is entitled to an individualized hearing, it is no surprise then that we have repeatedly insisted that we "will not tolerate boilerplate" decisions. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). The rationale is obvious: "Boilerplate opinions ... neither afford the petitioner the BIA review to which he or she is entitled, nor do they provide an adequate basis for this court to conduct its review." Castillo v. INS, 951 F.2d 1117, 1121(9th Cir.1991).

Although not a high bar, the Board must "provide a comprehensible reason for its decision sufficient for us to conduct our review and to be assured that the petitioner's case received individualized attention." Ghaly, 58 F.3d at 1430. The Board and the IJ failed to meet even this...

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