Suntharalinkam v. Gonzales

• Decision Date: 18 August 2006
• Docket Number: No. 04-70258.,04-70258.
• Parties: Arangesan SUNTHARALINKAM, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

458 F.3d 1034

Arangesan SUNTHARALINKAM, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-70258.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2006.

Filed August 18, 2006.

Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY, for the petitioner.

Genevieve Holm (argued) and Cynthia Stone (briefed), U.S. Dept. of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent. Also on brief for the respondent, Lester M. Joseph and Michael E. Davitt, U.S. Dept. of Justice, Criminal Division, Washington, DC.

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

Before: WARDLAW and RAWLINSON, Circuit Judges, and CEBULL,^* District Judge.

WARDLAW, Circuit Judge:

Arangesan Suntharalinkam's petition for review lies at the intersection of the immigration and counterterrorism laws. Suntharalinkam a 27-year-old male from northern Sri Lanka, petitions for review of the Board of Immigration Appeals' (BIA) summary affirmance of the immigration judge's (IJ) denial of Suntharalinkam's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16-1208.18. Suntharalinkam claims that he was persecuted by the Sri Lankan government because of its incorrect suspicion that he was a member of the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), a terrorist organization at war with the Sri Lankan government; the government, in turn, claims that Suntharalinkam was never persecuted by the government, and is in fact a suspected Tamil Tiger who seeks to enter the United States to further that organization's terrorist activities.

The IJ, apparently convinced by the government's hypothesis, denied relief, but not on any legal ground related to terrorism. Instead, the IJ veiled his concerns about Suntharalinkam's terrorist ties, denying his application for relief based on a contrived adverse credibility finding. The government urges us to ignore the tenuous foundation for the adverse credibility finding, asking us to uphold it as supported by substantial evidence despite the IJ's own statements that the purported "discrepancies" in Suntharalinkam's story are "minor" and individually could not support an adverse credibility finding. We agree with the IJ that none of the supposed "discrepancies" individually provides an adequate basis for his finding. Given that none individually supports the adverse credibility determination, however, the IJ incorrectly found that the "discrepancies" cumulatively support the adverse credibility finding. Although we have some sympathy for the IJ's and the government's suspicion that Petitioner might be a member of a terrorist organization (his tale of persecution by the Sri Lankan government is equally consistent with membership in the Tamil Tigers as it is with merely being suspected of membership), as judges, we are charged with following the law—not our suspicions—and we must, therefore, grant Suntharalinkam's petition and remand to the BIA for consideration of the remaining elements of Suntharalinkam's claims. Having said that, we note that the Department of Homeland Security (DHS) has ample authority to deny admission to a suspected terrorist under both immigration and criminal laws. We therefore remand for further proceedings.

I.

Suntharalinkam was issued a notice to appear in November 2001 after attempting to enter the United States the previous month using a counterfeit document showing that he was entering the country with a nonimmigrant visa. He conceded both inadmissibility and removability and applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16-1208.18, claiming that he had been targeted by the government as a result of its false accusation that he was a member of the Tamil Tigers.

Suntharalinkam testified before the IJ that he had suffered abuse at the hands of the Sri Lankan army on three occasions. First, on January 19, 2000, several members of the army entered his home, where Suntharalinkam was with his mother. They assaulted him while his mother was locked in another room. They tied him up, threw him into their military vehicle, and drove him to a military camp, where he was locked in a small room. His detention in the camp lasted for some sixty days. During that time, Suntharalinkam testified, he was stripped and beaten, burned with cigarettes, hung upside down with his head submerged in water, and beaten with an electrical wire. Suntharalinkam showed the IJ scars on his legs that he said were the result of the cigarette burns and electrical wire. He was released after his mother paid a bribe of ten thousand rupees. Suntharalinkam was hospitalized for the next ten days to receive treatment for the injuries he sustained while he was in detention.

Second, Suntharalinkam was detained in August 2000. In the middle of the night, approximately twenty soldiers arrived at his home. Of those, five entered his home and arrested him. He was subsequently detained for five days. Suntharalinkam's asylum application omitted reference to this detention. At the hearing before the IJ, Suntharalinkam testified that his attorney "may have missed it."

Third, in May 2001, when Suntharalinkam was bringing his sister home from school, they were stopped by ten soldiers who asked them for identification and passports. The soldiers asked Suntharalinkam and his sister to accompany them to a camp. Suntharalinkam responded that he was working, and that his sister was a student, but the soldiers accused Suntharalinkam of being a Tamil Tiger and forced them to go to the camp. Suntharalinkam's sister was released the day after the arrest as a result of her school principal's intervention. Suntharalinkam, however, was detained for seventy days. His mother paid another bribe to secure his release. After this third period of detention, Suntharalinkam decided to leave Sri Lanka to avoid further abuse by the Sri Lankan army. He first went to Colombo for ten days, where he made travel arrangements to leave the country.

In support of his application for asylum, withholding, and CAT relief, Suntharalinkam also submitted United States Department of State reports on Sri Lanka for the years 1998 to 2001, which documented large-scale abuses against Tamils by the Sri Lankan government, arbitrary arrests, and torture committed in detention centers. He also provided numerous reports by nongovernmental organizations and news media documenting instances of abuses against Tamils accused of membership in the Tamil Tigers. The government submitted the 2002 State Department country report, which noted that while arbitrary arrest, detention, and targeting of Tamils had been problems in the past, there were no reports of any such abuses occurring during 2002.

In addition, at the hearing before the IJ, the government presented the testimony by stipulation and written memoranda of Senior Special Agent Steven W. Schultz of the Department of Homeland Security (DHS) Joint Terrorism Task Force. Schultz's report was based on conclusions he made about the group of twenty-three Sri Lankan individuals with whom Suntharalinkam had traveled and attempted United States entry. Schultz speculated that the members of the group were not being persecuted by the Sri Lankan army, as each of them claimed, but instead were members of the Tamil Tigers who were being smuggled in by that group, which relies on alien smuggling as a primary source of income. Agent Schultz noted that the Tamil Tigers have been designated a foreign terrorist organization by the State Department and that individuals who fund the activities of the LTTE are providing material aid to a terrorist organization in violation of United States law.

On August 14, 2003, the IJ denied relief on all three claims after making an adverse credibility finding on the basis of the cumulative effect of what he found to be several inconsistencies. The IJ made special note of his consideration of the testimony and opinions of Agent Schultz in making his decision. The BIA affirmed without opinion on December 17, 2003. Suntharalinkam timely petitioned for review.

II.

We have jurisdiction over a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA affirms the IJ's decision without opinion, we review the IJ's decision as the final adjudication on the merits. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003).

We review credibility determinations for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Because the IJ is in the best position to assess the applicant's testimony, we defer to the IJ's credibility determination. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 661-62 (9th Cir.2003). However, "[w]hile the substantial evidence standard demands deference to the IJ, [w]e do not accept blindly an IJ's conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed." Gui, 280 F.3d at 1225 (second alteration in original) (internal quotation marks omitted).

The IJ must have "a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994). Any reason for disbelief "must be substantial and bear a legitimate nexus to the finding." Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000) (per curiam) (internal quotation marks omitted). Moreover, "speculation and conjecture cannot form the basis of an adverse credibility finding, which must instead be based on substantial evidence." Ge v. Ashcroft, 367 F.3d 1121, 1124 (9th Cir.2004) (internal quotation marks omitted). As long as one of the IJ's identified reasons...