Arulampalam v. Ashcroft

• Decision Date: 19 December 2003
• Docket Number: No. 02-71267.,02-71267.
• Parties: Sasetharan ARULAMPALAM, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.3d 679

Sasetharan ARULAMPALAM, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-71267.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 6, 2003 — Pasadena, California.

Filed December 19, 2003.

Judith L. Wood and Jesse A. Moorman, Los Angeles, California, for the petitioner.

John S. Hogan and Cindy S. Ferrier, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: Harry Pregerson, Ferdinand F. Fernandez, and Marsha S. Berzon, Circuit Judges.

OPINION

BERZON, Circuit Judge.

Sasetharan Arulampalam, a native and citizen of Sri Lanka, petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of an Immigration Judge's ("IJ") denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252. As the BIA adopted the IJ's reasoning, we review the latter, Paramasamy v. Ashcroft, 295 F.3d 1047, 1050 (9th Cir.2002), grant the petition for review, and remand.

BACKGROUND

Arulampalam was born on November 20, 1978 in northern Sri Lanka, where he lived for two decades with his family. He is a Hindu of Tamil ethnicity. Arulampalam attended school intermittently from ages 5 to 15. He cannot read or write well and worked as a farmer alongside his father.

The Liberation Tigers of Tamil Eelam ("LTTE" or "Tigers") is, according to the State Department's 2001 Country Report, "an insurgent organization fighting for a separate ethnic Tamil state in the north and east of [Sri Lanka]."¹ Tamils are an ethnic minority in Sri Lanka, constituting 18% of the population as of 2001. Both the LTTE and the Sri Lankan government were reported by the State Department to engage regularly in acts of persecution.

Arulampalam's testimony and asylum documents establish the following: In May 1999, when in the city of Mannar to buy supplies for his family's farm, Arulampalam was arrested by the Sri Lankan army and taken to a camp. He was detained for a week, until the supply merchant came and spoke to the army commander, securing Arulampalam's release.

On September 20, 2000, Arulampalam was playing ball with eight other young men. Three members of the LTTE drove up and used physical compulsion combined with a death threat to force Arulampalam and two others to dig bunkers and fill sandbags for two days. This abduction was repeated on September 28, 2000, when LTTE members came to Arulampalam's family farm. While digging bunkers this second time, Arulampalam had to take cover on several occasions to avoid army bombardment.

While Arulampalam was working for them, the Tigers repeatedly asked him to join the organization. Arulampalam refused because he felt a responsibility to his family; feared that membership would be dangerous; and was averse to fighting and killing, which his religion forbids. After the second abduction, during which the LTTE indicated that he would be expected to work again, Arulampalam decided that he had to leave the area immediately. His family arranged to have him taken in a van to Colombo, the country's capital in the south, which is not LTTE-controlled territory. Although a pass was required to make the trip, the person transporting Arulampalam apparently avoided checkpoints.

Once Arulampalam arrived in Colombo, he stayed with relatives. An older man living in the relatives' house took Arulampalam's identification card to the police station and registered him. On October 8, about a week after Arulampalam's arrival, police came to the house and arrested him, marking the start of a 22-day detention with five days of torture.

Arulampalam's identification was taken and he was blind-folded. While in custody, he was beaten with a pipe; his head was slammed against a wall; his throat was tied; and the police put gasoline in a shopping bag before placing the bag over Arulampalam's head to make him breathe the fumes. Arulampalam was also forced three times to assume a position whereby his arms were wrapped around his knees and his wrists tied together, following which a stick was inserted behind his knees so that he could be hung from two hooks in the ceiling and beaten on the soles of his feet with a plastic pipe. Arulampalam demonstrated this physical position to the IJ, explained how the restraints worked, and stated that he was "almost kind of unconscious" after being untied.

The police repeatedly questioned why Arulampalam came to Colombo and accused him of planning to plant a bomb. In Arulampalam's opinion, he was suspected because he is Tamil and had recently arrived in Colombo. The police interrogators asked if Arulampalam belonged to the LTTE. He always replied in the negative. They responded: "So how do we believe you guys, we always, everybody's saying this same thing, and after that, you throw bombs to us." Arulampalam did not tell the police about the occasions when the Tigers forced him to dig bunkers and fill sandbags because he believed that disclosure would endanger his life.

When Arulampalam was released on October 30, 2000, he was told that he had to sign a paper written in Sinhala,² but he does not read Sinhala. A translation and copy of the original paper indicate that Arulampalam was released by a magistrate after a police sub-inspector "informed the court that there was insufficient evidence against the accused to prosecute." The police cautioned Arulampalam that they still thought he was an LTTE member and that he was subject to re-arrest at any time. Thereafter, Arulampalam was required to report at the police station on a weekly basis.

Arulampalam complied with this requirement without incident each week until May 21, 2001. On that day he was alerted that those who had gone to the police station for their sign-in were arrested. The IJ termed this information "some gossip from friends." Asked why he thought the police were arresting people, Arulampalam replied: "Because they're suspect, and suddenly, they may arrest people, and sometimes, they kill people." Counsel pointed to record evidence of LTTE bombings in April 2001 and suggested that the government was rounding up Tamils in response.

On May 24, the day before he was due to report again, Arulampalam left Sri Lanka. His family paid an agent to get him to the United States. Arulampalam arrived at Honolulu airport on July 25 without proper travel documents. In an airport interview, he expressed fear of persecution if returned to Sri Lanka, stating that "I had a lot of trouble with the army and the government. They were beating us[;] that is why I wanted to escape." Nine days later an asylum officer determined that Arulampalam had established a credible fear of persecution.

At petitioner's removal hearing in Seattle on November 27, 2001, IJ Kendall Warren expressed frequent frustration at Arulampalam's testimony, including tangential matters such as his use of Tamil words to describe various people and family relationships, as well as the complexity of place names in Sri Lanka: "more long words that are going to have to be spelled out."

Although as a matter of course we do not excerpt removal hearings at length, it is appropriate in this case to do so, given the nature of the determinative credibility issue. Our reproduction of the following passages demonstrates the tenor of the exchanges between Arulampalam and the IJ, which compounded the fact that "most witnesses," particularly uneducated, non-English speakers seeking asylum, "are uncomfortable and nervous when being cross-examined and, perhaps, when being questioned by a judge." Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999).

First, the IJ repeatedly expressed irritation about Arulampalam's use of the Tamil word "annai" to describe older men. The judge instructed Arulampalam: "Let's not talk about annais anymore because that doesn't tell us anything."

Similarly, after Arulampalam explained that the equivalent word for a female was "akkaa," the IJ responded:

You said that about 15 times. What I want to know is, you referred to her [a woman who visited Arulampalam in the Colombo detention facility] as your akkaa, and I'm wondering what relation she is to you.

A: My father's brother's daughter.

IJ: That would be your cousin, wouldn't it?

A: We call her cousin.

IJ: Well, akkaa applies to every woman in Sri Lanka that's older than you, right?

A: Yes.

IJ: That doesn't tell us very much. It narrows it down to a few million women. So it's more accurate to say — if it's your father's brother's daughter, it would be your cousin, wouldn't it?

A: We call petiappa (phonetic sp.) daughter.

IJ to translator: What?

Translator: We call petiappa daughter.

IJ: Petiappa?

Translator: Petiappa. In Tamil, we call petiappa.

IJ: What does that mean? Doesn't petiappa have an interpretation?

Translator: It means my father, father — my father's brother, I call petiappa.

IJ: Your father's brother, would that mean — does petiappa mean uncle then?

Translator: No, in our language, we say petiappa.

IJ: Doesn't it have a mean equivalent to something in English? Normally, your father's brother is your uncle.

Translator: In English, we call uncle, but in our language, we call petiappa.

In addition, the degree of detail in Arulampalam's testimony was a recurring point of contention. The IJ sometimes thought Arulampalam's narrative was too specific, while at other junctures petitioner's answers were deemed insufficiently precise.

As an example of the former, when describing his second abduction by the LTTE, Arulampalam began:

A: It was second time, on 28th, I was at the farm, then I have my shovel I take to the home, then I went from home.

IJ: So the second time, you were at your farm, and they came by to pick you up at the farm.

A: Yes.

IJ: Well, what about the shovel?

A: Yes, that's what...