Don v. Gonzales

• Decision Date: 09 February 2007
• Docket Number: No. 03-74431.,03-74431.
• Citation: 476 F.3d 738
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Sahajeewa Rathnakumara Loku Kankanamge DON, Shiyamalie Amaratunga Achthi, Minul Thankula Kankanamge, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

476 F.3d 738

Sahajeewa Rathnakumara Loku Kankanamge DON, Shiyamalie Amaratunga Achthi, Minul Thankula Kankanamge, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-74431.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2006.

Filed February 9, 2007.

Dan E. Korenberg (briefed), Orit Levit (argued), Korenberg, Abramowitz & Feldun, Sherman Oaks, CA, for the petitioners.

Emily Anne Radford (briefed), David E. Dauenheimer (argued), Office of Immigration Litigation, United States Dept. of Justice, Civil Division, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A79-519-692, A79-519-693, A79-519-694.

Before KIM McLANE WARDLAW and JOHNNIE B. RAWLINSON, Circuit Judges, and RICHARD F. CEBULL,^* District Judge.

RAWLINSON, Circuit Judge.

Petitioners Sahajeewa Rathnakumara Loku Kankanamge Don (Don), his wife, Shiyamalie Amaratunga Achthi, and their minor son, Minul Thankula Kankanamge,¹ natives and citizens of Sri Lanka, legally entered the United States in 2000 as visitors and overstayed their allotted time. They conceded that they are removable, but requested asylum, withholding of removal, and protection under the Convention Against Torture (CAT), based on alleged persecution by the Liberation Tigers of Tamil Eelam (LTTE), a rebel terrorist group in Sri Lanka also referred to as the Tamil Tigers. They also alleged persecution by the Terrorist Detective Bureau (TDB), a special unit of the Sri Lankan government formed by the army and police. They petition for review of the decision of the Board of Immigration Appeals (BIA) adopting and affirming the adverse credibility determination of the Immigration Judge (IJ) and the concomitant denial of asylum.² Because substantial evidence supports the adverse credibility determination, we deny the petition.

I. BACKGROUND

Don alleges that he and his family received threats of physical harm from both the LTTE and the TDB, because a cook employed at the restaurant owned by Don was arrested by the TDB as a suspected LTTE terrorist. Don testified before the Immigration Judge (IJ) that prior to that incident in January 2000, he and his family were not threatened or harmed by the government or any terrorist groups, he did not support nor was he active in any political group, and he did not know that the cook was a Tamil Tiger until his arrest. Don stated that subsequently his life was threatened by the LTTE once in person outside of Colombo, and repeatedly by telephone, specifically warning that Don would be harmed if he did not get the police to release his former cook. Don speculated that the LTTE believed he had informed the TDB about the cook's LTTE connection, but offered no direct testimony on that point. The LTTE never came to Don's home, and neither he nor his family was physically harmed.³ Don agreed to try to get the cook released, and contacted several of his friends at the police station where the cook was imprisoned. He also submitted translated copies of several police reports made by his wife and him reporting death threats from the LTTE.

Don testified that he fled from his home to live in safety with relatives and, in his absence, the TDB came to his home twice to question him and requested that his wife convey a message to him to contact the TDB. Don's wife testified that the TDB told her that if her husband did not come to the TDB headquarters, he would "know what is going to happen." Don stated that he fears the TDB because of atrocities committed by the TDB in 1990, and that he told the Colombo police that he was afraid because the TDB was looking for him. He further testified that he spoke to the TDB by telephone and told them about the police reports that he made concerning the LTTE, but he never showed the reports to the TDB.

In support of his application, Don submitted a newspaper article reporting that an LTTE terrorist working at the Chinese Restaurant in Padukka was arrested and the TDB was unable to "interrogate" the unnamed owner of the restaurant, who fled. Don introduced into evidence a copy of his business license to establish that he was one of two partners owning a Chinese restaurant in Padukka. However, the IJ noted a discrepancy between the license date on the translated copy and the original.

The IJ cited material inconsistencies in Don's testimony and the evidence related to the LTTE threats, and found Don's account of threats from the TDB to be implausible.

Consequently, the IJ found that Don had not "made a credible and plausible claim for asylum let alone that it is more likely than not that he would be subjected to persecution on any grounds should he return."

The BIA summarily affirmed the IJ's decision stating: "The Immigration Judge's conclusions regarding the inconsistencies in the respondent's testimony form a sufficient basis for an adverse credibility finding." Don timely appealed.

II. STANDARDS OF REVIEW

Where the BIA adopts the decision of the IJ, we review the IJ's decision. See Karouni v. Gonzales, 399 F.3d 1163, 1170 (9th Cir.2005). The standard of review for factual findings made by the IJ is a deferential substantial evidence standard, and credibility findings will be upheld unless the evidence compels a contrary result. Id. (emphasis added). This deferential standard of review "precludes relief absent a conclusion that no reasonable fact-finder could have reached the agency's result." Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.2005) (citation and internal quotation marks omitted).

III. DISCUSSION

A. Adverse Credibility Determination

When the IJ denies asylum based "on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner's claim."⁴ Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (citations and internal quotation marks omitted). Also, the IJ "must provide a petitioner with a reasonable opportunity to offer an explanation of any perceived inconsistencies that form the basis of a denial of asylum." Ordonez v. INS, 345 F.3d 777, 786 (9th Cir.2003).

The IJ based his adverse credibility finding on inconsistency in the evidence presented regarding a crucial date, the implausibility of Don's account, and Don's propensity for dishonesty.

1. Inconsistency in Evidence Presented Regarding a Crucial Date

Don provided the police "a date in writing" that the cook started working for him six months prior to the cook's arrest in 2000, his testimony was that the cook was hired in 1996, and in his interview with the Immigration Officer he stated that the cook began work in 1998. The IJ questioned Don about the discrepancies and Don admitted that he lied to the police in Sri Lanka⁵ and did not remember the correct date when he was interviewed by the Immigration Officer. Nevertheless, Don professed to remember the actual date at the hearing.⁶ The IJ made an adverse credibility finding because of the lack of consistency about the important detail (date of employment) regarding the cook. Don's inability to "state as to when it was that this man who was the source of him having to flee his country started to work for him" went to the heart of Don's claim because it involved the very event upon which he predicated his claim for asylum. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001) (explaining that inconsistencies in the details of events that form the basis for the asylum claim, specifically "testimony about the events leading up to [petitioner's] departure," go to the heart of the claim, and support an adverse credibility finding); see also, Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir.2006) (affirming that "[a] single supported ground for an adverse credibility finding is sufficient if it relates to the basis for petitioner's alleged fear of persecution and goes to the heart of the claim," and "[a]n inconsistency goes to the heart of a claim if it concerns events central to petitioner's version of why he was persecuted and fled") (citations, alteration, and internal quotation marks omitted).

Although trivial discrepancies in dates cannot support an adverse credibility determination, see Kaur, 418 F.3d at 1065, the lack of details regarding the event that allegedly spurred the LTTE and the TDB to threaten Don goes to the heart of his persecution claim and is not trivial, particularly since Don's testimony is vital to his claim that the terrorist cook was in his employ at the time of the arrest.⁷ See DeLeon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.1997) (affirming that "discrepancies relat[ing] to the basis for [an] alleged fear of persecution ... support [a] negative credibility finding.") (citations omitted); see also Singh, 367 F.3d at 1142-43 (upholding adverse credibility finding where discrepancy about date of key event "caused doubt about whether the [event] had occurred at all").

Don's assertion that lying about the employment date did not enhance his persecution claim and is therefore not relevant to a credibility determination is unpersuasive. Although generally, if the inconsistency does not "enhance" the applicant's persecution claim, it will not be relevant to the credibility determination, see Lin v. Gonzales, 434 F.3d 1158, 1165 n. 2 (9th Cir.2006), "when inconsistencies that weaken a claim for asylum are accompanied by other indications of dishonesty—such as a pattern of clear and pervasive inconsistency or contradiction—an adverse credibility determination may be supported by substantial evidence." Kaur, 418 F.3d at 1067.

The dissenting opinion excuses this critical discrepancy by referencing Don's "explanation that he lied to police in Sri Lanka regarding the cook's hiring date because he was afraid for his life and he did not want the police to accuse him of being affiliated with the LTTE." Dissenting opin., p. 748....