Krishnapillai v. Holder

• Decision Date: 23 April 2009
• Docket Number: No. 07-2512.,07-2512.
• Citation: 563 F.3d 606
• Parties: Sundar R. KRISHNAPILLAI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

563 F.3d 606

Sundar R. KRISHNAPILLAI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 07-2512.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 2008.

Decided April 23, 2009.

Visuvanathan Rudrakumaran, Attorney (argued), Law Office of Visuvanathan Rudrakumaran, New York, NY, for Petitioner.

Walter M. Evans, Attorney (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and ROVNER and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Sundar R. Krishnapillai ("Sundararajan")¹, a native and citizen of Sri Lanka, petitions for review of an order of the Board of Immigration Appeals (the "BIA" or "Board") sustaining the denial of his requests for asylum, restriction on removal, and relief under the United Nations Convention Against Torture. Based on his own experiences in Sri Lanka and on the adverse treatment of other ethnic Tamils like himself, Sundararajan contends that he faces likely persecution at the hands of both the Sri Lankan authorities and terrorist insurgents if he is forcibly returned. However, the Immigration Judge found Sundararajan's testimony regarding his own experiences to be incredible and denied his claims based largely on the adverse credibility finding, and the Board affirmed that decision. Because the IJ's decision, as supplemented by the Board, is supported by substantial evidence and is not tainted by any legal error, we deny Sundararajan's petition for review.

I.

Sundararajan's requests for relief are founded on a belief that he is at risk of harm from both the armed forces of the Sri Lankan government and the Liberation Tigers of Tamil Eelam ("LTTE"), a terrorist organization based in northern Sri Lanka that for more than thirty years has been waging a violent campaign to create an independent state for Sri Lanka's Tamil minority. Sundararajan, himself an ethnic Tamil, gave the following account of the events that brought him to the United States in his testimony and in the narrative statement attached to his asylum application.

Sundararajan was born in 1969 in Navatkuda, a town in the Batticaloa district in eastern Sri Lanka. He has worked both as a self-employed farmer and heavy truck driver. He married in 1994 and now has three children, aged five through thirteen. His wife and children remain in Sri Lanka.

In 1990 or 1991, Sundararajan and his family lost their home and most of their belongings in the midst of heavy fighting between the LTTE and the Sri Lankan army. For a time, they lived in a refugee camp in nearby Vantharumoolai, but their fear of random arrests and detention by the Sri Lankan army eventually led them to depart for the coastline village of Navalady. The devastating tsunami of December 2004 took the life of Sundararajan's brother and destroyed the hut his family was living in, along with what few possessions they had left.

In the wake of the tsunami, Sundararajan and his family (including his parents) left the coastal region and eventually relocated inland to an area then controlled by the LTTE. For a year, they lived there in peace. But then fighting broke out between the LTTE and the Sri Lankan military, people living in the area became subject to arrest and torture by the army, and the government imposed an economic embargo on this and other areas controlled by the LTTE. To help maintain its control of the area, the LTTE organized a compulsory "self-defense" training program, in which at least one member of each family was expected to participate. Sundararajan testified that he was contacted on multiple occasions about taking the training and at first demurred. Eventually, he felt that he had no alternative but to agree. After telling the LTTE that he would participate in the training, he advised his parents and his wife to move to an army-controlled area and told them that he would join them when he escaped from the LTTE. On the following day, a date in April 2006, the LTTE picked him up and took him to a training camp at Kokati Cholai, a rural area. The camp was surrounded by a fence and patrolled by armed guards. Sundararajan testified that after spending two days in the camp, he managed to get away at four o'clock in the morning by telling the guards (one of whom he knew) that he was going out to buy cigarettes at a nearby shop that opened at that early hour. He left the LTTE-controlled area and joined his family in Arasady, a government-controlled zone, where a priest gave them shelter in a church. He spent one or two months there. But the LTTE came looking for him, and Sundararajan's wife was warned that he would be killed if he did not report back to an LTTE political office.

With his wife and parents urging him to flee Sri Lanka for his own safety, Sundararajan re-located by himself to Colombo, on the west coast of the country. There he stayed in a private lodge for nearly a month, until he was arrested in a round-up by Sri Lankan police. Despite his protestations to the contrary, he was accused by the authorities of being an LTTE member and was beaten into unconsciousness. After seven or eight days in police custody, he was finally released when his wife arrived with documents showing that he was married with three children and convinced the police that he was not an LTTE member.

Seeing the arrests and abuse that other young Tamils like himself were experiencing in Colombo, Sundararajan decided that he could not remain there. A friend arranged temporary employment for him in Singapore, and he left Sri Lanka on September 28, 2006. But on arrival in Singapore, he discovered that he could remain for no longer than two weeks. Sundararajan met with an "agent," who in exchange for $3,000 provided him with a forged passport and made arrangements for him to travel to Canada via the United States. He was told that if he was stopped by Immigration officials in the U.S., he could always ask for asylum.

Sundararajan flew to the United States via Seoul, South Korea on a forged Singaporean passport. He arrived in this country on October 11, 2006. In response to questioning by customs officials, Sundararajan said that he was a tourist on his way to Canada. But when officials determined that his passport was fraudulent, Sundararajan admitted that he was fleeing Sri Lanka and had purchased the false passport for $3,000. He was refused admission into the United States and was taken into custody. He subsequently obtained counsel and filed a Form I-589 application for relief in the form of asylum, see 8 U.S.C. § 1158, restriction on removal, 8 U.S.C. § 1231(b)(3)(A), and withholding of removal pursuant to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984) ("CAT"). His application was referred to an Immigration Judge ("IJ"), who conducted an evidentiary hearing in January 2007. Sundararajan was the sole witness at that hearing.

In addition to his testimony before the IJ, Sundararajan offered several documents to show that he and his family had been the targets of abuse in Sri Lanka. These materials were sent to the United States by Sundararajan's wife, who was contacted by Sundararajan's cousin at the behest of his counsel. Not included among the documents was any statement from Sundararajan's wife, although she had been a witness to some of the events described in his asylum application and testimony, including his forced enrollment in LTTE training and his detention in Colombo. When questioned on this point by the IJ, Sundararajan would testify that he was not in regular contact with his wife, and although he knew her whereabouts in Sri Lanka, it would take at least fifteen days for a letter to reach her.

The documents forwarded by Sundararajan's wife included the following. A translated extract from the "information book" of a police station in Sri Lanka describes a complaint that his wife filed with the police following his departure from Sri Lanka. Sundararajan's wife alleged that people had come to her residence looking for her husband in previous weeks. In one instance, some men came to the residence at ten o'clock in the evening, woke everyone up, demanded to know her husband's whereabouts, threatened her, and then left. She had also received telephone calls threatening the lives of herself and her family members. Her husband, she said, had left the country due to the same type of harassment she and her children were experiencing. "[W]e live with fear and insecurity," she stated. A.R. 235. Also submitted was a receipt indicating that a "Complaint of Threat" had been filed with the Human Rights Commission of Sri Lanka at its regional office in Batticaloa. A.R. 244. We are told that the complaint was filed on Sundararajan's behalf; however, the receipt does not reveal the content of the complaint. Finally, there is a translated letter dated November 30, 2006, from the Reverend Father Jeremiah S. Arasarathinam, the director of a home for senior citizens in Batticaloa. He indicates that Sundararajan's wife and three children had "undergone tremendous difficulties during the past few years under the hands of an unknown armed group." A.R. 245. Their house had been damaged, they had moved their residence due to threats, and they had spent the last three months at the senior citizens' residence "as refugees." A.R. 245. "Due to death threats given by some unknown group to Mr. Sunthararajah [sic], he fled the country due to fear about 4 months ago and I [have] come to understand that he is presently in America." A.R. 245.

Also in the record is the December 2006 report of the United Nations Office of the High Commissioner for Refugees ("UNHCR") regarding asylum-seekers from Sri Lanka. A.R. 249. The report notes a general deterioration in the security situation in Sri Lanka during the preceding year due to an uprising within the LTTE and an...