Ramsameachire v. Ashcroft
| Decision Date | 03 February 2004 |
| Docket Number | Docket No. 01-4071. |
| Citation | 357 F.3d 169 |
| Parties | Nadarjh RAMSAMEACHIRE, Petitioner, v. John ASHCROFT, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY, for petitioner.
Megan L. Brackney, Assistant United States Attorney for the Southern District of New York (James B. Comey, United States Attorney for the Southern District of New York, on the brief; Kathy S. Marks and Gideon A. Schor, Assistant United States Attorneys, of counsel), New York, NY, for respondent.
Before: FEINBERG and SOTOMAYOR, Circuit Judges.*
Petitioner Nadarjh Ramsameachire ("petitioner" or "Ramsameachire"), a citizen of Sri Lanka and a member of that nation's ethnic Tamil minority, appeals from the decision of the Board of Immigration Appeals ("BIA") denying his application for asylum and withholding of removal pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158 and 1231, respectively, and for withholding of removal pursuant to the Convention Against Torture ("CAT") and its implementing regulations, see 8 C.F.R. § 208.16. At his removal hearing, Ramsameachire testified as to his purported past persecution on the basis of his ethnicity and imputed political beliefs, as well as his fear of further persecution if returned to Sri Lanka. The Immigration Judge ("IJ") determined that Ramsameachire's testimony at the hearing differed substantially from his prior statements to an asylum officer during his airport interview, and based on these inconsistencies, found that Ramsameachire had no well-founded fear of persecution, and had not established that there was any danger that he would be persecuted or tortured if he was removed to Sri Lanka. The IJ concluded that Ramsameachire's lack of credibility therefore precluded relief under both the INA and CAT. The BIA affirmed the IJ's decision, including the credibility determination.
Ramsameachire now challenges the basis for the BIA's adverse credibility finding, arguing that his airport statement cannot provide the sole basis for discounting his hearing testimony. He also argues that even if the credibility determination was correct, the BIA and IJ should not have relied upon it in rejecting his alternative basis for fearing persecution, that Tamils as a group are subject to a pattern or practice of persecution. Finally, he challenges the rejection of his CAT claim, asserting that the BIA and IJ were required to consider his proffered evidence of the conditions in Sri Lanka before concluding that he was not entitled to withholding of removal pursuant to CAT.
We hold that (1) although airport statements can, in some circumstances, be unreliable, the BIA was entitled to consider Ramsameachire's airport interview statements in making its credibility determination, because the airport interview was carefully conducted with the assistance of a Tamil interpreter and because it is clear that Ramsameachire understood the nature of the proceedings; (2) the BIA's determination that Ramsameachire's testimony was not credible, and its consequent conclusion that he had not established his eligibility for asylum, are supported by substantial evidence; (3) the BIA's finding that Ramsameachire was not credible also precluded holding that he was entitled to asylum based on a pattern or practice of persecution; (4) the BIA's determination that Ramsameachire failed to establish his entitlement to withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A) is supported by substantial evidence; and (5) the BIA's failure to consider Ramsameachire's evidence of country conditions before rejecting his CAT claim violated CAT's implementing regulations. We therefore affirm the BIA's rejection of Ramsameachire's claims for asylum and withholding of removal under the INA, and vacate and remand its decision on his CAT claim.
Ramsameachire is a native and citizen of Sri Lanka, and a member of its ethnic Tamil minority, which comprises roughly eighteen percent of Sri Lanka's population. For over fifteen years, Sri Lanka's Tamils have been engaged in a civil war with the majority Sinhalese population, which controls the government. See Balasubramanrim v. INS, 143 F.3d 157, 159-60 (3d Cir.1998). The fighting is primarily conducted by the Liberation Tigers of Tamil Eelam (LTTE). Ramsameachire alleges that, although he has never been a member or supporter of LTTE, the government suspected him of being affiliated with the group simply because he was an adult Tamil male. He claims that he was repeatedly harassed and arrested as a result.
Ramsameachire arrived in the United States via Haiti on July 28, 2000, having departed Sri Lanka a few weeks before. He attempted to enter the United States with a fraudulent Canadian passport, rendering him inadmissible under 8 U.S.C. § 1182(a)(6) and (7), which provide that aliens in possession of fraudulent documentation may not be admitted into the United States. Ramsameachire claimed asylum, however, and was referred to an Immigration and Naturalization Service ("INS")1 officer for an interview, to be conducted at the airport where he was being detained. Because the INS had already determined that Ramsameachire was inadmissible, the purpose of the interview was to determine whether further review of his asylum claim was warranted, or whether he should be immediately removed. See 8 U.S.C. § 1225(b)(1)(ii).
During the interview, Ramsameachire was given the assistance of a Tamil interpreter. He indicated that he understood the officer's questions as communicated by the interpreter, and that he understood that the nature of the proceeding was to determine whether he should be admitted into the United States despite his inadmissibility. The INS officer informed Ramsameachire that After indicating that he was comfortable speaking to the officer in a private room, Ramsameachire stated that he was on his way to Canada to find a job, and that he had relatives there. He claimed that he would be arrested if returned to Sri Lanka, because he "went abroad illegally without permission," and that he "could have been harmed anytime" because "[t]here is a war going on." When asked whether he had ever been arrested, he answered that he was arrested several times "for suspicion and immediately released" when he displayed his national identity card, but that he did not remember the dates of the arrests.
Ramsameachire was then referred for a "credible fear" interview, at which he gave a more detailed account of his experiences with the Sri Lankan authorities. He stated that he had lived in Colombo since birth, and that he left Sri Lanka because he was afraid that he would be arrested because he was a Tamil. He alleged that he had been arrested three times before, and that he was held for a period of days each time. According to Ramsameachire, the first arrest occurred on May 25, 1997, and was precipitated by suspicion that Ramsameachire was melting gold to assist the LTTE movement. During that arrest, Ramsameachire was allegedly beaten and held for twenty-two days. The second arrest occurred on July 16, 1999, again because of suspected assistance to the LTTE. The third arrest took place on December 20, 1999, at which point Ramsameachire was told that if he were arrested again, he would die in jail.
Ramsameachire filed a formal application for asylum on September 1, 2000, asserting that he had suffered past persecution because of his status as a Tamil and the political beliefs imputed to him because of his ethnicity, and that he feared that he would suffer future persecution on the same basis. He also sought CAT relief on the ground that he would be tortured if he returned to Sri Lanka. Ramsameachire subsequently testified in a removal hearing before the IJ in September 2000, repeating many of the statements he made at his credible fear interview. Ramsameachire asserted that he had lived in Colombo for most of his life, but had spent substantial periods living in other cities in Sri Lanka. He repeated his account of the three arrests and beatings, although his account of the reasons for those arrests varied from his statements at the credible fear interview. At the removal hearing, he initially testified that his first arrest occurred because he had been forced to give the LTTE money, but later stated that he was arrested because he was suspected of melting gold for the LTTE. He indicated that he was released from custody following each arrest only after his employer or a member of his family paid a bribe to the authorities. Finally, Ramsameachire explained the inconsistencies between his testimony and his statements at the airport interview by asserting that he had been nervous at the interview, and had thought that if he told the truth about his arrests, the INS officer would think he was a criminal and refuse to allow him into the country.
The IJ denied Ramsameachire's request for asylum, finding that he had failed to establish that he had suffered past persecution or that he had a credible fear of future persecution. The IJ's decision was based entirely on his finding that Ramsameachire's hearing testimony was not credible because of its inconsistency with his airport interview. Specifically, the IJ noted that Ramsameachire's stated reasons for his fear of returning to Sri Lanka had changed: in his airport interview, he stated that he would be punished for leaving the country, while in his asylum application, he claimed that he would be persecuted because he was...
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