Arulnanthy v. Garland

• Decision Date: 08 November 2021
• Docket Number: No. 19-60760,19-60760
• Citation: 17 F.4th 586
• Parties: Jeevithan ARULNANTHY, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

17 F.4th 586

Jeevithan ARULNANTHY, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60760

United States Court of Appeals, Fifth Circuit.

FILED November 8, 2021

Visuvanathan Rudrakumaran, Esq., Attorney, New York, NY, for Petitioner.

Remi da Rocha-Afodu, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before Jolly, Haynes, and Oldham, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

The question presented is whether Jeevithan Arulnanthy is entitled to asylum and relief under the Convention Against Torture. We deny the petition on the first ground and remand on the second.

I.

Petitioner Jeevithan Arulnanthy grew up in Sri Lanka as part of that country's Tamil ethnic minority. He left in June 2018 and entered the United States through the Mexican border in September. Immigration officials apprehended Arulnanthy within hours of his arrival and determined that he had entered the country illegally. So they detained him in anticipation of removal proceedings.

Three weeks later, an asylum officer conducted a credible-fear interview. 8 U.S.C. § 1225(b)(1)(B). Arulnanthy stated during the interview that he feared returning to Sri Lanka based on two encounters with the Criminal Investigation Department ("CID") of the Sri Lanka Police. The first took place on January 3, 2018, after CID officials discovered that Arulnanthy was planning to participate in a local election as a member of the Tamil National Alliance Party. Arulnanthy explained that the officials "came to [his] home," "took [him] to their office," and "kept [him] for two days and beat [him]" while telling him he "should not contest the election and [should] not be involved in public issues." The second encounter took place on May 19, 2018, after Arulnanthy attended a "memorial function" the previous day. Arulnanthy told the asylum officer that CID officials once again came to his house but found only his mother there. The asylum officer ended the interview by asking Arulnanthy if he would like to alter or add to his statement and if there was anything else of import that they had not yet discussed. Arulnanthy responded "No" to both questions. The asylum officer determined that Arulnanthy had established a credible fear of persecution based on his political opinion as a supporter of the Tamil National Alliance Party.

Soon thereafter, the Department of Homeland Security issued a Notice to Appear alleging that Arulnanthy was subject to removal for entering the country at an impermissible location and without the required documentation. See 8 U.S.C. § 1182(a)(6)(A)(i), (7)(A)(i)(I). Arulnanthy conceded the charges against him, and the immigration judge ("IJ") found him removable. Arulnanthy indicated that he intended to apply for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), along with relief under the Convention Against Torture ("CAT").

Arulnanthy asked the Justice Department for relief in February 2019. When asked to explain why he feared torture and or other harm upon his return to Sri Lanka, Arulnanthy mentioned his past encounters with the CID, his Tamil ethnicity, and his political activity. Like his credible-fear interview, Arulnanthy's application included a summary of his January 3 and May 19 encounters with the CID. His description of the January 3 incident remained largely the same. But a central detail about the May 19 incident was different: Though Arulnanthy had previously asserted that CID officials spoke with his mother on that date after finding him absent, he now stated that the officials visited his home and "question[ed] [him]" directly about his participation in the memorial service. Arulnanthy also mentioned a CID run-in he hadn't before—namely, that "[o]n May 10, 2018, the CID came to my house again and ... w[ere] talking to my mother ... so I ran from the back door and went to my relative's house."

Arulnanthy testified in support of his application at a hearing before the IJ a few months later. Regarding his experience on January 3, Arulnanthy said the CID visited his home and "asked [him] to come to the CID office"—and that he voluntarily did so. The Government highlighted on cross-examination the inconsistency between that testimony and Arulnanthy's prior statement (in his credible-fear interview) that the CID "took him with them." Regarding the May 10 incident first mentioned in his asylum application, Arulnanthy repeated that he ran to his aunt's house after hearing CID officers conversing with his mother. And regarding the May 19 encounter, Arulnanthy testified that CID officers returned to his house and personally threatened him for attending the memorial service.

Arulnanthy submitted documentary evidence at the hearing to further support his application. Some of this evidence pertained to his past encounters with the CID. But much of it involved the general country conditions in Sri Lanka—and in particular, the situation facing many Tamils living there.

The IJ reviewed Arulnanthy's application and evidence and determined he was not entitled to relief. The IJ found that Arulnanthy was not a credible witness based on three omissions and discrepancies. First, Arulnanthy testified to the IJ that CID officers visited his home on January 3 and that he went to their office on his own. But he said in his credible-fear interview that they took him to the office against his will. Second, Arulnanthy testified that the next time he encountered the CID was on May 10 when officers visited his home and spoke with his mother. But he never mentioned this event in his credible-fear interview. Finally, Arulnanthy told the IJ that CID officers personally spoke with and threatened him on May 19 after he attended the memorial service. But he told the asylum officer conducting the credible-fear interview that he was not home for that incident and only heard about it from his mother.

Arulnanthy appealed to the Board of Immigration Appeals ("BIA") on several grounds. Mainly, he contended the IJ failed to consider Arulnanthy's background evidence on country conditions. That mattered for asylum purposes, he said, because the country reports showed a "pattern or practice ... of persecution" of Tamils. See 8 C.F.R. § 1208.13(b)(2). And it mattered for CAT purposes because the IJ had a regulatory obligation to consider "all evidence relevant to the possibility of future torture," including "evidence of gross, flagrant or mass violations of human rights within the country of removal" and "other relevant information regarding conditions in the country of removal." See 8 C.F.R. § 1208.16(c)(3). Arulnanthy also argued that the IJ's credibility assessment was erroneous, specifically because of the IJ's treatment of Arulnanthy's testimony regarding the January 3 and May 10 incidents. Arulnanthy did not mention his testimony about what happened on May 19. Nor did he challenge the IJ's finding that his testimony of past persecution was insufficiently corroborated.

The BIA dismissed Arulnanthy's appeal. It upheld the IJ's credibility and corroboration determinations because, it said, they were based on the totality of the circumstances and not clearly erroneous. Given that holding, it followed that Arulnanthy could not carry his burden of credibly establishing past persecution for asylum purposes. As to his fear of both future persecution (asylum) and future torture (CAT), the BIA noted Arulnanthy's reliance on general country-conditions evidence regarding Sri Lanka. But it refused to consider that evidence because "the Immigration Judge's adverse credibility finding is dispositive and is fully supported by the record, and we see no reason to disturb it." Since the BIA did not find the IJ's adverse credibility finding clearly erroneous, it "decline[d] to address the [IJ's] alternate bases for denying relief in this case."

Arulnanthy filed a timely petition for review with this court. He then filed an emergency motion for a stay of removal, which our court denied. The Government has since indicated that, on January 28, 2020, it removed Arulnanthy from the United States. We review the BIA's decision, and we review the IJ's decision only to the extent it influenced the BIA. Tibakweitira v. Wilkinson , 986 F.3d 905, 910 (5th Cir. 2021). We review the BIA's legal conclusions, along with the legal question of our own jurisdiction, de novo . See ibid. But we review the BIA's factual findings, including adverse credibility findings, only for substantial evidence. Ibid. ; Wang v. Holder , 569 F.3d 531, 540 (5th Cir. 2009). Substantial evidence supports a decision unless "the evidence is so compelling that no reasonable fact finder could fail to find the petitioner statutorily eligible for relief." Mirza v. Garland , 996 F.3d 747, 752 (5th Cir. 2021) (quotation omitted). But we cannot affirm a decision that "fail[s] to address key evidence." Cabrera v. Sessions , 890 F.3d 153, 162 (5th Cir. 2018) (quotation omitted); see also Abdel-Masieh v. INS , 73 F.3d 579, 585 (5th Cir. 1996) ("While we do not require that the BIA address evidentiary minutiae or write any lengthy exegesis, its decision must reflect meaningful consideration of the relevant substantial evidence supporting the alien's claims." (quotation omitted)).

II.

"[J]urisdiction is always first." United States v. Shkambi , 993 F.3d 388, 389 (5th Cir. 2021) (quotation omitted). The Government points out that Arulnanthy's removal to Sri Lanka raises a jurisdictional question because Congress gave us jurisdiction to review "a final order of removal." 8 U.S.C. § 1252(a)(1). "In cases challenging [such an order], the petitioner's removal from the United States generally renders the petition moot." Mendoza-Flores v. Rosen , 983 F.3d 845, 847 (5th Cir. 2020) ; see also FDIC v. Belcher , 978 F.3d 959, 961 n.1 (5th Cir. 2020) ("[M]ootness is a jurisdictional question."). We've nonetheless held that a petitioner's removal...