Perinpanathan v. I.N.S.
| Decision Date | 12 November 2002 |
| Docket Number | No. 02-1012.,02-1012. |
| Citation | 310 F.3d 594 |
| Parties | Kirupanathan PERINPANATHAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE; John Ashcroft, United States Attorney General, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Before HANSEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.
This is an immigration case in which the petitioner, Kirupanathan Perinpanathan, seeks review of a final order of the Board of Immigration Appeals (BIA), which found that Perinpanathan did not qualify for asylum, withholding of removal, or relief under the Convention Against Torture. The issues before us are: (1) whether substantial evidence supports the BIA's conclusion that the petitioner was not credible; and (2) whether substantial evidence supports the BIA's conclusion that the petitioner failed to show that in the event he is removed to Sri Lanka, it is more likely than not that he would be tortured by a government agent. We affirm.
Perinpanathan is a native and citizen of Sri Lanka. In April 2000, he was apprehended by the Immigration and Naturalization Service when he attempted to enter the United States at the Minneapolis/St. Paul International Airport using a falsified Canadian passport. He was interviewed under oath by an immigration officer at the airport with the aid of an interpreter. He stated that he was a member of the Liberation Tigers of Tamil Eelam (LTTE) and that he had participated in its military activities in Sri Lanka because the LTTE was an organization that "fights for the Tamil people." He indicated that he identified with the LTTE by stating "[w]e fight against the Singhalese Army," and that he "went to the front to take the wounded from the war." He did not imply that he had been coerced by the LTTE in his decision to join the group.
Perinpanathan retained an attorney by May 2, 2000, when he had his second interview with an immigration officer for asylum pre-screening. During that interview, petitioner claimed the LTTE had coerced him into helping the group under threat of death. He also testified that the Sri Lankan government had detained and beat him. When asked about the inconsistencies in his testimony, the petitioner denied that he had changed his story, and attributed any differences to translation errors. The asylum officer referred the petitioner to immigration court for a full hearing on his claims for asylum, withholding of removal, and relief under the Convention Against Torture.
On May 15, 2000, in connection with the referral for a full hearing, the INS served Perinpanathan with a Notice to Appear, charging him with removability under 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who sought to obtain admission into the United States by fraud or willful misrepresentation of a material fact. Perinpanathan appeared at a hearing before an immigration judge in June 2000 and conceded that he was removable as charged. He filed an application for asylum and withholding of removal.
A hearing on the merits of the application was held in August 2000. The presiding immigration judge concluded that the petitioner had failed to show that he was qualified for asylum or withholding of removal because he was not credible. The immigration judge believed that petitioner had changed the facts of his original admission, in which he stated that he had voluntarily assisted the LTTE, because he later learned that his affiliation with the LTTE would bar him from relief. The judge also determined that even if the petitioner had shown that he qualified for asylum, he would have denied Perinpanathan relief because he had attempted to gain admission to the United States by using a falsified passport, and because he had traveled through several other countries without applying for asylum in any of those countries.
Petitioner appealed to the BIA, which adopted most of the immigration judge's credibility findings. It remanded the case to the immigration judge to develop the record regarding the petitioner's claim under the Convention Against Torture, and specifically, to examine whether "any young Tamil has a good reason to fear torture." In a July 2001 decision, the immigration judge held that Perinpanathan had not shown by a preponderance of the evidence that he would be tortured by government officials if he returned to Sri Lanka. The immigration judge relied on testimony and extensive country condition reports in the record in reaching this conclusion. The petitioner again appealed to the BIA, which upheld the immigration judge's decision.
The BIA's determination that an alien is not eligible for asylum or withholding of deportation is reviewed for substantial evidence, and may not be overturned unless "the evidence was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution." Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). "Under this standard, this court must determine whether, based on the record considered as a whole, the BIA's decision was supported by reasonable, substantial, and probative evidence." Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir.1999) (citing Hajiani-Niroumand v. INS, 26 F.3d 832, 838 (8th Cir.1994)). This court defers to an immigration judge's credibility finding where the finding is "supported by a specific, cogent reason for disbelief." Ghasemimehr v. INS, 7 F.3d 1389, 1391 (8th Cir.1993) (citing Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992)); see also Estrada v. INS, 775 F.2d 1018, 1021 (9th Cir.1985) ().
Under the Immigration and Nationality Act, the Attorney General has the discretion to grant asylum to a refugee, defined as a person who is unable or unwilling to return home "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a political social group, or political opinion." 8 U.S.C. §§ 1158(b)(1) and 1101(a)(42)(A). "In most cases, the critical inquiry is whether the applicant has a well-founded fear of future persecution upon return to his or her country." Kratchmarov, 172 F.3d at 553 (citation omitted). The applicant must demonstrate a fear that is subjectively genuine and objectively reasonable. Id. For an alien's fear of persecution to be objectively reasonable, the fear must have basis in reality and must be neither irrational nor so speculative or general as to lack credibility. 8 U.S.C. § 1101(a)(42)(A). "The applicant is entitled to a presumption of a well-founded fear of future persecution if past persecution is established, and the burden then shifts to the INS to show by a preponderance of the evidence that `conditions in the applicant's country ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.'" Id., citing Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998).
Perinpanathan has presented the following evidence to support his request for asylum: He claims that he was harmed by the Sri Lankan Army when troops rounded people up in his village to determine if anyone was an LTTE member or supporter; that his father was shot and killed by the Sri Lankan army in front of his mother and brother; that he was detained and beaten repeatedly by the Sri Lankan government; and that he was forced to assist the LTTE. When he refused to help the LTTE in May 1997, the organization tore up his National Identity card. He claims that if he returns to Sri Lanka, a government agent will take Perinpanathan to "the fourth floor," apparently the location where Tamils are tortured.
Petitioner has failed to provide documentary evidence to support his identity, race, nationality, membership in a particular social group, and political opinion. He has not presented the temporary identity card issued to him in Sri Lanka, his father's death certificate, nor his Sri Lankan passport, documents he claimed to have had in his possession. As a result, he has also failed to show that his fear of persecution is objectively reasonable. Perinpanathan's conflicting testimony regarding his involvement with the LTTE, whether he and family members had been beaten and tortured by government forces, and whether he knew he was traveling illegally to the United States raises questions about, and undermines, his credibility. His failure to authenticate any of his testimony in general further weakens his case. We are required to give the immigration judge's credibility finding "much weight." Hajiani-Niroumand v. INS, 26 F.3d 832, 838 (8th Cir.1994). We affirm the BIA's decision that the substantial evidence shows that petitioner is lacking in credibility.
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