Raghunathan v. Holder
| Decision Date | 29 April 2010 |
| Docket Number | 08-3147.,No. 08-2475,08-2475 |
| Citation | 604 F.3d 371 |
| Parties | Sasankan RAGHUNATHAN and Thaiyalnayaki Thevarajah, Petitioners,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Visuvanathan Rudrakumaran (argued), Law Office of Visuvanathan Rudrakumaran, New York, NY, for Petitioners.
Jeffrey L. Menkin (argued), Annette M. Wietecha, Attorney, Department of Justice, Washington, DC, for Respondent.
Before EASTERBROOK, Chief Judge, and KANNE, Circuit Judge, and KENNELLY, District Judge.*
Petitioners Sasankan Raghunathan and Thaiyalnayaki Thevarajah, husband and wife, are natives and citizens of Sri Lanka. In June 2007, they attempted to enter the United States using fraudulent Canadian passports. After discovery of their illegal entry attempt, the Department of Homeland Security issued the couple notices to appear, informing them that they were subject to removal under INA §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I), which regulate the removal of aliens who seek to procure admission to the United States by fraud or who fail to possess valid documentation at the time of admission, respectively.
Petitioners subsequently admitted the factual allegations contained in the notices to appear and conceded removability but also stated their intentions to apply for asylum, withholding of removal, and protections under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), 23 I.L.M. 1027 (1984). Following a removal hearing, the immigration judge denied their applications, finding that Petitioners failed to meet their burden of proof for asylum, withholding of removal, and protections under CAT. The immigration judge also found Thevarajah ineligible for asylum and withholding of removal because she provided material support to a foreign terrorist organization, the Liberation Tigers of Tamil Eelam (“LTTE”).
Petitioners appealed the immigration judge's order to the Board of Immigration Appeals, which affirmed the decision in May 2008. Petitioners subsequently filed a motion for reconsideration, which the Board denied in July 2008. Petitioners then filed petitions for review of both decisions with this court, and we consolidated their petitions. We now deny their petitions for review.
Raghunathan and Thevarajah are both Sri Lankan, and both of the Tamil ethnic group living in that country. According to their own testimony, both suffered years of persecution as a result of their Tamil ethnicity. Raghunathan testified before the immigration judge that his persecution began when he was sixteen years old and living with his family in Jaffna, Sri Lanka. He claimed that one morning, members of the Sri Lankan army arrested him on suspicion that he was supporting the LTTE, although no other members of his family were arrested. After his arrest, he claimed to have been detained in an army camp for three months, where he was interrogated, beaten, and burned.
Approximately one month after his release, Raghunathan said that he was arrested once more, but was detained only for a few hours. After this second arrest, he moved to the Sri Lankan capital where he lived for two years. In 1997, he left Sri Lanka for London. He applied for asylum in England, but was denied. Raghunathan remained in London for ten more years, when he then attempted to enter the United States using a fraudulent Canadian passport.
Thevarajah also claimed to have been persecuted as a result of her Tamil ethnicity. She testified before the immigration judge that for fourteen years she worked for a Sri Lankan newspaper, Eelantham, which focused on the plight of Tamils. In her employ at the paper, Thevarajah worked in advertising, news collecting, and reporting. Significantly, she admitted during testimony her knowledge that the newspaper was produced by the LTTE, and was distributed only in Tamil-populated areas.
Thevarajah claimed that in 1998 she was detained by the army for a period of two weeks on suspicion of her membership in the LTTE. While detained, she was beaten and molested. After her release, Thevarajah stated that she wanted to quit her job but remained because she feared retaliation from the LTTE.
Thevarajah moved to the capital city in 2002. After a bombing in 2004, she testified that she was again arrested, this time for a week, during which she was beaten and questioned about the bombing. After her release, she traveled to London using fraudulent documents. While living in London, Thevarajah met Raghunathan, and the two married in 2005. In 2007, the couple left London together for the United States.
After their illegal entry attempt was discovered, Petitioners were granted a hearing before an immigration judge. At the hearing, the couple conceded removability, but sought asylum, withholding of removal, and protection under CAT. The immigration judge denied the petition, finding that the couple failed to produce any corroborative evidence of their persecution in Sri Lanka or of their applications for asylum in England. It also found that even if their stories were credible, neither presented evidence that they were still of interest to the Sri Lankan government and would therefore suffer persecution upon their return. The immigration judge also found that Thevarajah was ineligible for asylum and withholding of removal under both the Immigration and Nationality Act (“INA”) and CAT regulations because she provided material support to a terrorist organization. Because the Petitioners did not prove that it was more likely than not that they would be singled out for persecution if returned to Sri Lanka, the immigration judge denied their applications and ordered them removed.
On appeal of the removal order, the Board of Immigration Appeals adopted and affirmed the immigration judge's ruling. The Board agreed that Petitioners failed to produce corroborative evidence of their persecution in Sri Lanka and their applications for asylum in England. It also agreed that the material support bar applied to Thevarajah, barring her from asylum and withholding of removal. After the Board affirmed the removal order, Petitioners sought review.
Shortly after the Board affirmed the removal order, Petitioners filed a motion for reconsideration, in which they argued for the first time that Thevarajah's duties for the newspaper were protected by the First Amendment and international law, and therefore did not constitute material support to a terrorist organization. They also challenged the immigration judge's statement that the newspaper was “owned by” the LTTE, arguing that the paper was only a pro-LTTE publication. They claimed that the Board failed to adequately consider their eligibility for asylum under a “pattern or practice” theory of persecution, and that the immigration judge's CAT analysis was in error.
The Board denied Petitioners' motion to reconsider, finding that the Petitioners could not identify any error in its decision to uphold the immigration judge's order in light of their failure to produce corroborative evidence after ordered to do so. It also found that the immigration judge did not mischaracterize the newspaper's affiliation, because the judge's statement was based on Thevarajah's own testimony. It finally concluded that it did not overlook any argument regarding the applicability of the material support bar because Thevarajah did not raise any meaningful argument until her motion for reconsideration. Petitioners requested review of that decision as well. We consolidated the petitions, and both are before us now.
These petitions, although consolidated, represent two distinct decisions. Our traditional practice would have been to dismiss the motion for reconsideration and decide the petition from the removal order because, under our prior precedent, we lacked jurisdiction to review denials of motions to reconsider. Johnson v. Mukasey, 546 F.3d 403 (7th Cir.2008). But while this case was pending, the Supreme Court decided Kucana v. Holder, ---U.S. ----, 130 S.Ct. 827, --- L.Ed.2d ---- (2010), where it held that federal courts have jurisdiction to review the Board's denial of a motion to reconsider. To the extent that Kucana changes our analysis, it merely provides us with jurisdiction over an argument that we otherwise would have dismissed. And because the parties fully briefed the issue of how the outcome would be affected if the Court determined that we have jurisdiction, it makes no practical difference to our decision today; we will simply examine the denial of the motion to reconsider on its merits. With the jurisdictional issues resolved, we now turn to the merits of each petition.
We review a denial of a motion for reconsideration for abuse of discretion. INS v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988); Patel v. Gonzales, 442 F.3d 1011, 1015-16 (7th Cir.2006). The abuse of discretion standard is highly deferential Ali v. Ashcroft, 395 F.3d 722, 731 (7th Cir.2005), perhaps even more so in the immigration context than in other administrative contexts. Abudu, 485 U.S. at 110, 108 S.Ct. 904. Unless the Board's decision “ ‘was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis,’ ” we will deny the petition for review. Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir.2007) ( quoting Singh v. Gonzales, 404 F.3d 1024, 1027 (7th Cir.2005)).
We review for substantial evidence factual findings made by the Board in the course of a motion for reconsideration. See, e.g., Huang v. Mukasey, 525 F.3d 559, 564 (7th Cir.2008); Dandan v. Ashcroft, 339 F.3d 567, 572 (7th Cir.2003); see also Nehad v. Mukasey, 535 F.3d 962, 966 (9th Cir.2008). Under the substantial evidence standard, the agency's...
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