Lingeswaran v. U.S. Attorney Gen., No. 18-13489

• Decision Date: 13 August 2020
• Docket Number: No. 18-13489
• Citation: 969 F.3d 1278
• Parties: Karooshan LINGESWARAN, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

969 F.3d 1278

Karooshan LINGESWARAN, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

No. 18-13489

United States Court of Appeals, Eleventh Circuit.

August 13, 2020

Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY, for Petitioner.

Alison Marie Igoe, Kathryn M. McKinney, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Deitz P. Lefort, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, Washington, DC, Michelle Ressler, District Counsel's Office, USICE, Miami, FL, for Respondent.

Petitions for Review of a Decision of the Board of Immigration Appeals, Agency No. AXXX-XX1-751

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

BRANCH, Circuit Judge:

Karooshan Lingeswaran is a 26-year-old native and citizen of Sri Lanka. On February 8, 2017, the United States Coast Guard interdicted Lingeswaran approximately 12.5 nautical miles east of Miami, Florida, as he tried to enter the United States illegally. Thereafter, the Department of Homeland Security ("DHS") commenced removal proceedings, charging him with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I),¹ which Lingeswaran conceded. Lingeswaran applied for asylum and withholding of removal pursuant to the Immigration and Nationality Act ("INA"), and withholding of removal pursuant to Article 3 of the United Nations Convention Against Torture ("CAT"),² expressing a fear of persecution if he returned to Sri Lanka. The INA requires an alien seeking asylum to establish that he was persecuted "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A).³ To be eligible for relief pursuant to CAT, an applicant must establish "that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2).⁴ In order to meet the definition of torture, the harm must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 C.F.R. § 208.18(a).

The Board of Immigration Appeals ("BIA") denied his application for asylum and withholding of removal under the INA and withholding of removal under CAT and ordered him removed from the United States. We deny the petition.

I.

A. Background⁵

Lingeswaran is an ethnic Tamil from the Jaffna area of Sri Lanka. From the time he was born in 1993 until shortly before his departure from Sri Lanka in May 2010, the country was engulfed in a civil war between the Liberation Tigers of Tamil Eelam ("LTTE" or "Tamil Tigers") and the Sri Lankan government.⁶ To say that the Sri Lankan civil war greatly impacted Lingeswaran's life is an understatement. In 1995 (when Lingeswaran was two years old), the Sri Lankan army abducted and tortured his father for five days due to suspicion that he assisted the LTTE by deploying a bomb near his mechanic shop. Terrified, the family relocated to Mullaitivu, an area controlled by the LTTE. His father repaired cars and paid the LTTE monthly dues. Lingeswaran and his brother attended the LTTE-controlled school. Students at the school were expected to join a student group which participated in various events celebrating the LTTE. For example, on November 27 every year, the student group would place tents and flags along the road and put on plays to honor the revolutionary group. As class president, Lingeswaran organized and participated in the celebratory events and rallies.

Fourteen years after Lingeswaran's family relocated, on May 17, 2009, the Sri Lankan army captured the Mullaitivu area. Lingeswaran and his family surrendered, along with thousands of other Tamils, and the army took them to a refugee camp. Before entering the camp, the Sri Lankan army identified Lingeswaran's father as an LTTE member and dragged him away. Lingeswaran never saw his father again.

In October 2009, the Sri Lankan army brought Lingeswaran to the nearby army camp for an "investigation." The army accused Lingeswaran of LTTE involvement and, for about twenty minutes during the hour-long interrogation, beat Lingeswaran with their hands and a rope.⁷ Lingeswaran denied any LTTE involvement and they released him. Sometime after that interrogation, the Sri Lankan army again took Lingeswaran in for questioning and accused him of helping his aunt's family (who were LTTE members) escape from the camp. The second interrogation lasted roughly 15 minutes, during which the army members hit and kicked Lingeswaran and put a gun to his head. Afterwards, they put him in line with approximately 50 other Tamils to be taken to Boossa—a location where people were known to be tortured. Just then, a human rights organization arrived. That arrival prompted the army to tell those in line, including Lingeswaran, to return to the camp and that they would take them to Boossa later.

In November 2009, Lingeswaran escaped from the camp and made his way to Colombo, Sri Lanka. He left Sri Lanka in May 2010 and travelled to France. While in France, he applied for asylum, received 300 euros a month in benefits from the French government, and worked in a store. According to Lingeswaran, he failed to appear for an immigration interview because he planned to come to the United States, and his application for asylum in France was denied. He then left France and made his way to the United States by way of the Bahamas, using a passport given to him by an "agent" arranging his travel.

Meanwhile, in June 2010, Lingeswaran's mother and brother fled to India. They returned to Sri Lanka in April 2015. Upon their arrival, the Sri Lankan government forces arrested Lingeswaran's brother and tortured him for one week. The army released him, but told him that until Lingeswaran returned, he would have to check in with the army every month. They also told his brother that Lingeswaran's name was on a list at the airport and Lingeswaran would be arrested and killed if he came back.

B. Immigration Court and BIA Proceedings

The Immigration Judge ("IJ") denied Lingeswaran's claims and ordered his removal to Sri Lanka. With regard to his asylum claim, the IJ found that the evidence showed that the Sri Lankan army interrogated Lingeswaran on account of his possible involvement with a terrorist organization and not on account of a protected ground. Moreover, the IJ concluded that the Sri Lankan army's treatment of Lingeswaran did not rise to the level of persecution. The IJ further found that Lingeswaran did not show that he had a well-founded fear of persecution if he returned because the Sri Lankan civil war ended in 2009 and his family appeared to be living there safely now. And because Lingeswaran had not shown a well-founded fear of persecution that qualified for asylum, he also necessarily fell short of carrying his burden for the higher standard required for withholding of removal. The IJ concluded that Lingeswaran's CAT claim failed because "there [wa]s no objective evidence in the file" that the Sri Lankan government would specifically target him. Rather, the evidence showed that the Sri Lankan government was "trying to take every measure that they can to get the country back on track" and no longer supported the mistreatment of Tamils.

Lingeswaran appealed to the BIA. The BIA agreed with the IJ's decision regarding Lingeswaran's CAT claim and with the IJ's determinations on the issues of past persecution and well-founded fear of being singled out for persecution underlying Lingeswaran's asylum claim. But the BIA held that remand was necessary because the IJ had failed to consider the remaining issue underlying Lingeswaran's asylum claim: whether Lingeswaran had established a well-founded fear of future persecution based on a pattern or practice of persecuting Tamils.

On remand, the IJ determined that there was not a pattern or practice of persecution of Tamils in Sri Lanka.⁸ The IJ observed that the country background materials submitted by the parties showed that Tamils face discrimination and harassment in Sri Lanka. But although the Sri Lankan government "has been slow to implement change," the IJ found that "the government has continued to improve the situation for Tamils since the war ended in 2009." The IJ emphasized that the Sri Lankan government has established the "Office of National Unity and Reconciliation" to protect the rights of all citizens and heal communities affected by the war. Further, the IJ noted that "the Sri Lankan Prime Minister [publicly] stated that Sri Lanka will not prosecute Sri Lankan asylum seekers who left the country illegally." The IJ observed, "[i]f the Sri Lankan government is not prosecuting returning asylum seekers and is not imputing those returning to Sri Lanka to be LTTE members, this evidence makes it less likely that the government is persecuting Tamils." Accordingly, the IJ found that Lingeswaran did not qualify for asylum.

On appeal, the BIA sympathized with Lingeswaran: "We have no wish to minimize the suffering of ethnic Tamils in Sri Lanka, and we understand why the respondent does not wish to return to that country."⁹ But it upheld the IJ's decision because the IJ's factual findings did not reveal that "the mistreatment of ethnic Tamils in Sri Lanka is [ ] so extreme and pervasive as to establish a ‘pattern or practice’ of persecution, such that we can say all Tamils qualify for asylum and withholding of removal in the United States, whether or not they have a particularized fear of persecution." This petition for review followed.

II.

We review the BIA's legal conclusions de novo . D-Muhumed v. U.S. Att'y Gen. , 388 F.3d 814, 817 (11th Cir. 2004). Its factual findings, however, "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We therefore review the BIA's findings of fact under the "highly deferential substantial evidence test." Adefemi v....