Rashiah v. Ashcroft

• Decision Date: 16 November 2004
• Docket Number: No. 03-3316.,No. 03-3317.,No. 03-3315.,03-3315.,03-3316.,03-3317.
• Citation: 388 F.3d 1126
• Parties: George Malcom Anthony RASHIAH, Salomi Hiranthie Anthony Rashiah, and Anne Oshani Anthony Rashiah, Petitioners, v. John D. ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

388 F.3d 1126

George Malcom Anthony RASHIAH, Salomi Hiranthie Anthony Rashiah, and Anne Oshani Anthony Rashiah, Petitioners, v. John D. ASHCROFT, Respondent.

No. 03-3315.

No. 03-3316.

No. 03-3317.

United States Court of Appeals, Seventh Circuit.

Argued September 24, 2004.

Decided November 16, 2004.

Petition for review of the decision of the Board of Immigration Appeals.

Visuvanathan Rudrakumaran (argued), New York, NY, for Petitioners.

George P. Katsivalis, Department of Homeland Security Office of the District Counsel, Chicago, IL, Michele Y.F. Sarko (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, Keith I. Bernstein, Department of Justice Civil Division, Immigration Litigation, Washington, D.C., for Respondent.

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Petitioners George Malcom Anthony Rashiah, his wife Salomi, and their daughter Anne, petition for review of an order of the Board of Immigration Appeals ("BIA") denying their applications for asylum and withholding of removal. For the reasons stated herein, we affirm the decision of the BIA.

I. Background

Petitioners, natives and citizens of Sri Lanka, were admitted to the United States on December 19, 1998, as nonimmigrant visitors with authorization to remain in the United States for up to six months. After petitioners overstayed their visas, the former Immigration and Naturalization Service ("INS")¹ began removal proceedings. At a hearing before an Immigration Judge ("IJ"), petitioners conceded removability but requested asylum and withholding of removal under the Immigration and Nationality Act and the Convention Against Torture ("CAT"). In the alternative, petitioners requested voluntary departure.

The lead petitioner² is a thirty-two-year-old man of Tamil ethnicity, whose native language is Tamil. Although he attended school when he was young, petitioner had difficulty because the language of instruction was Sinhalese, the language of the majority of Sri Lankans who are ethnically Sinhalese. In 1986, petitioner abandoned his hopes of pursuing higher studies and accepted a job as a sales agent for a pharmaceutical company.

Petitioner's troubles in Sri Lanka began in 1983. That year, a group of Tamils were attacked by Sinhalese, with the help of the Sri Lankan armed forces, in retaliation for the bombing of a government truck. This incident led to a wave of violence against Tamil people throughout Sri Lanka. During this time, petitioner's house in the capital, Colombo, was looted and his family fled to a refugee camp where they stayed for three days. Upon return, they found their house in severe disarray. Also during this time, police forces scrutinized petitioner when he traveled, inspecting his identity card, separating him from other passengers, and searching his belongings. On two or three occasions, officers took petitioner to a police station for questioning where he was "abused with words," such as "you are a [Tamil] Tiger³ and the police do awful things to the Tigers." On one occasion, he was slapped by an officer. Petitioner testified that nearly all Tamils in Colombo were subjected to similar harassment.

In 1994, petitioner married his wife, Salomi, who is Sinhalese. The two experienced many problems as an ethnically mixed couple. For example, they were verbally abused by members of the army when traveling and Salomi was ostracized by her family. Neither, however, was ever physically harmed.

On April 25, 1995, petitioner and his wife had a daughter, Anne, whom they gave Salomi's Sinhalese surname. The couple was able to obtain adequate medical care for their daughter, and they did not suffer any abuse at the hospital because they were an ethnically mixed family.

In August 1997, petitioner became an independent businessman, buying and selling cosmetics and textiles, and maintaining a small shop in which to store his goods. In December 1997, members of the LTTE came to petitioner's store to demand money and support for the organization. In February 1998, he witnessed his shop being looted but he did not report the incident to police because he believed they would not help a Tamil man. Petitioner once gave 2000 rupees, approximately one-fifth of his monthly earnings, to LTTE members who asked for money. He did this out of fear of what would happen if he refused.

In 1998, petitioner and his wife and daughter decided to come to the United States to seek asylum. In preparation for their departure, each obtained a Sri Lankan passport and visa after telling U.S. Embassy officials that they were going to visit Salomi's sister in New York, New York. In November 1998, fifteen days before his departure from Sri Lanka, petitioner closed his store and liquidated most of his stock. Shortly before leaving, petitioner was detained by the police for two days, verbally assaulted, and threatened. There is no evidence that this was connected to his imminent departure.

Petitioner and his wife and daughter arrived in New York on December 19, 1998, and moved in with petitioner's sister-in-law. The three remained in New York until July 2000, when they moved to Chicago, Illinois, and applied for asylum.

Petitioner believes that if he returns to Sri Lanka he will be asked to give money to the LTTE again and that he will be shot if he refuses. Petitioner also fears that the government will scrutinize and harass him, that his wife is in danger of being harmed or attacked because she is married to a Tamil man, and that his daughter will experience some of the same problems that he has experienced. Petitioner does not believe that there are any areas in Sri Lanka where he would be safe from the kind of verbal abuse and taunting he experienced in Colombo.

On August 1, 2001, the IJ issued a decision denying petitioner's applications for asylum, withholding of removal, and CAT protection. The IJ found that petitioner's asylum application was time-barred because he had failed to file it within one year of his arrival in the United States and no "exceptional circumstances" existed to excuse the untimely filing.⁴ The IJ noted, however, that "[e]ven assuming that the lead [petitioner] were able to somehow avoid the one year limit on applying for asylum, he does not qualify for asylum because he has not presented evidence establishing either past persecution or a well-founded fear of future persecution." In addition, the IJ denied petitioner's application for withholding of removal, finding as to the CAT application that he had not established "that it would be `more likely than not' that he would be tortured if returned to Sri Lanka." Petitioner was granted voluntary departure.

Petitioner timely appealed the IJ's decision to the BIA. On August 4, 2003, the BIA adopted and affirmed the IJ's decision and dismissed the appeal. This petition for review, in which petitioner challenges only the denial of withholding of removal under CAT, followed.

II. Discussion

Petitioner challenges the BIA's order on several grounds. First, he argues that the BIA incorrectly applied the one-year filing deadline for asylum applications to his claim for protection under CAT.⁵ A fair reading of the BIA's order, however, does not support this contention.

The IJ's decision analyzes petitioner's requests for asylum and CAT protection separately, applying the one-year filing rule only to the former. The BIA adopted and affirmed this decision, explaining in its order that its "conclusions upon review of the record coincide with those the Immigration Judge articulated in his or her decision." Though the order reiterates the basis for the denial of the asylum application, namely, petitioner's untimely filing, it does not suggest that the BIA has applied this rule to the CAT claim as well.

Next, petitioner argues that the BIA violated his due process rights by failing to consider his brief on appeal. Whether an alien's right to due process has been violated is a legal question which we review de novo. See Kuschchak v. Ashcroft, 366 F.3d 597, 602 (7th Cir.2004) (citing Nazarova v. INS, 171 F.3d 478, 482 (7th Cir.1999)). The BIA's actions are entitled to a presumption of regularity, and thus the burden is on petitioner to convince us that the BIA failed to consider the evidence and arguments presented. Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.1991) (citations omitted).

Petitioner's assertion is based on the BIA's reference in its order to his "Notice of Appeal," but not to his appellate brief.⁶ This does not rebut the presumption of regularity, however, because the BIA is authorized to issue summary affirmances and is not required to list in its order the filings upon which it has relied. See 8 C.F.R. § 1003.1(e)(4)(ii). In the absence of evidence that the BIA neglected its duty to fully review the decision of the IJ, we will not presume neglect simply because it did not list the steps it has taken. Cf. Ememe v. Ashcroft, 358 F.3d 446, 451 (7th Cir.2004) (the BIA's practice of issuing summary affirmances does not violate applicants' due process rights) (citing Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir.2003)).

As to the arguments regarding the one-year filing rule and his appellate brief, petitioner relies on omissions, rather than affirmative statements, in the BIA's order. The BIA, however, is not required to "write an exegesis on every contention." Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000) (citations omitted). Rather, it is required merely to "consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Id. In both of the cases cited by petitioner, Mansour and Chitay-Pirir v. INS, 169 F.3d 1079 (7th Cir.1999), we remanded because of factual errors in the BIA's order which suggested that it had not sufficiently considered or understood the petitioners' claims. In this case,...