Thayalan v. Attorney Gen. of the U.S.

• Decision Date: 10 May 2021
• Docket Number: No. 20-2270,20-2270
• Citation: 997 F.3d 132
• Parties: Thamotharam Pillai THAYALAN, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

997 F.3d 132

Thamotharam Pillai THAYALAN, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent

No. 20-2270

United States Court of Appeals, Third Circuit.

Argued: January 29, 2021

Filed: May 10, 2021

Brian J. Slipakoff [Argued], Duane Morris LLP, 30 South 17th Street, Philadelphia, PA 19103, Counsel for Petitioner Thamotharam Pillai Thayalan

Anthony C. Payne, Jennifer A. Bowen [Argued], Raya Jarawan, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent Attorney General of the United States of America

Before: RESTREPO, BIBAS, and PORTER, Circuit Judges.

OPINION OF THE COURT

PORTER, Circuit Judge.

Thamotharam Pillai Thayalan is a native and citizen of Sri Lanka. On July 10, 2019, he was apprehended in California after illegally entering the United States. The Department of Homeland Security initiated removal proceedings, and Thayalan sought relief from removal in the form of asylum and withholding of removal under the Immigration and Nationality Act ("INA").

Thayalan testified that in 2007, when he was about sixteen years old, he was kidnapped and blindfolded by members of the Sri Lankan army and taken to an army camp. While he was detained, soldiers hit his head against a wall and punched him in the stomach. He claims that this mistreatment constitutes past persecution, entitling him to a presumption of a well-founded fear of future persecution. Thayalan also claims a well-founded fear of future persecution based on two incidents in 2019, when members of the Eelam People's Democratic Party ("EPDP") of Sri Lanka tried to extort money from him. Thayalan maintains that he was targeted for extortion because of the EPDP's false belief that he financially supported a rival political party.

The agency credited Thayalan's testimony, but ordered his removal to Sri Lanka. The agency determined that (1) the Sri Lankan army's mistreatment of Thayalan did not rise to the level of persecution, and (2) the EPDP members targeted Thayalan for extortion because they wanted his money, not because of disapproval of any political opinion. As a result, Thayalan failed to meet his burden of showing past persecution or a well-founded fear of future persecution on account of a ground protected by the INA and thus was ineligible for both asylum and withholding of removal.

Thayalan petitions for review of the order of removal. He contends that the agency's past-persecution determination contravenes this Court's precedents and that substantial evidence does not support the agency's determination about what motivated the EPDP's extortion efforts. We disagree with Thayalan on both counts, so we will deny the petition.

I

A

Thayalan was apprehended near the United States–Mexico border after making an illegal entry. Thayalan expressed to an asylum officer a fear of returning to Sri Lanka. The asylum officer found that Thayalan had demonstrated a credible fear of persecution. In proceedings before an immigration judge ("IJ"), Thayalan conceded the Department of Homeland Security's charges of removability and applied for asylum and withholding of removal.

B

Thayalan testified in support of his application. He told the IJ that in 2007, when he was about sixteen years old, he and other ethnic Tamils were kidnapped and blindfolded by members of the Sri Lankan army after a bomb went off during the Sri Lankan Civil War. He was taken to an army camp, where men tied his arms together, hit his head against a wall, and punched him in the stomach. He was released after two hours, and while he did not seek medical help, he did experience swelling on his head and pain in his stomach for three days.

Thayalan also testified about two incidents that occurred in March and April 2019, when members of the EPDP tried to extort him. Thayalan received a phone call from "the EPDP people" telling him that he "had to pay them money." A.R. 115. The EPDP told Thayalan that since he gave money to the Tamil National Alliance ("TNA"), a different political party, he also had to give money to the EPDP. The TNA was the ruling party in the Northern Province of Sri Lanka, where Thayalan resided. Before hanging up the phone, the EPDP told Thayalan, "you know if you don't pay us money what will happen." A.R. 125. Thayalan knew of a bar owner who the EPDP shot and killed after he failed to comply with a demand for money.

Thayalan refused to make the demanded payment, and a few days after the phone call, EPDP members came to his store. They threatened to shoot Thayalan if he did not pay them a specified sum of money within three days. Rather than remit payment, Thayalan fled to Colombo, a city in a different part of Sri Lanka, for two weeks. The EPDP members came back to Thayalan's store after he fled, but did not search for him in Colombo.

Asked during his hearing if the EPDP was "asking you for money because you were a business owner," Thayalan replied that the EPDP asked him for money "[b]ecause I was doing business, and also they were falsely accusing me that I'm working for TNA, and I'm paying TNA the money." A.R. 130. Thayalan also testified that the EPDP wanted "revenge" on him "[b]ecause I'm a businessman, I work along with other Tamil groups and help the Tamil people." A.R. 115–16.

C

The IJ found that Thayalan "testified credibly and ... sufficiently corroborated his claim." A.R. 57. But the IJ nevertheless denied Thayalan's application for asylum and withholding of removal. The IJ determined that the harm Thayalan experienced from the 2007 detention and beating did not amount to persecution. As for the 2019 incidents, the IJ found that Thayalan did not show the requisite connection between the extortion attempts and a protected ground, because the EPDP members were motivated to extort Thayalan by a desire for money and not by any imputed pro-TNA political opinion. In the IJ's view, "the members of the EPDP seem[ed] to be targeting [Thayalan] because they believed he was able to pay another organization and, therefore, should also pay the EPDP." A.R. 60. And even if the EPDP members did harm Thayalan on account of a protected ground, the IJ concluded that he had not established a reasonable possibility that they would harm him in the future. The IJ also determined that, if Thayalan were removed, it would be reasonable for him to relocate within Sri Lanka to prevent any future harm at the hands of the EPDP. Thayalan thus failed to establish eligibility for asylum or withholding of removal. Accordingly, the IJ denied Thayalan's application and ordered his removal.

D

Thayalan appealed to the Board of Immigration Appeals ("BIA"), which upheld the IJ's decision.

The BIA agreed with the IJ that the harm done to Thayalan in 2007 did not amount to persecution. Turning to the 2019 extortion attempts, the BIA affirmed the IJ's determination that the EPDP members who threatened Thayalan "were motivated to extort [him] because he was a business owner who [sic] they perceived to have the financial means to contribute to the EPDP." A.R. 4 (citing A.R. 60–61). The BIA noted that the EPDP members never demanded that Thayalan stop supporting the TNA or insisted that he change his political opinions or support EPDP candidates. As a result, any pro-TNA opinion that the EPDP may have imputed to Thayalan was, at most, an "incidental, tangential, or superficial reason[ ] for the extortion and threats by the EPDP members." A.R. 4. The BIA also concluded that Thayalan failed to show a reasonable likelihood that the EPDP would persecute him upon his return to Sri Lanka or that he could not relocate within Sri Lanka to avoid any future harm. After agreeing with the IJ that Thayalan was ineligible for asylum, the BIA likewise adopted the IJ's determination that Thayalan could not meet the higher standard for withholding of removal.

This timely petition for review followed.

II

We have jurisdiction over this petition for review of a final order of removal under 8 U.S.C. § 1252(a). Where, as here, "the ‘BIA's opinion directly states that the BIA is deferring to the IJ, or invokes specific aspects of the IJ's analysis and factfinding in support of the BIA's conclusions,’ we review both decisions." Uddin v. Att'y Gen. , 870 F.3d 282, 289 (3d Cir. 2017) (quoting Oliva-Ramos v. Att'y Gen. , 694 F.3d 259, 270 (3d Cir. 2012) ).

We review challenges to the agency's factual findings under the familiar substantial-evidence standard. See Romero v. Att'y Gen. , 972 F.3d 334, 340 (3d Cir. 2020). Under our "highly deferential" review, "[t]he agency's ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1692, 207 L.Ed.2d 111 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B) ). "If a reasonable fact finder could make a particular finding on the administrative record, then the finding is supported by substantial evidence." Dia v. Ashcroft , 353 F.3d 228, 249 (3d Cir. 2003) (en banc).

"Whether an asylum applicant has demonstrated past persecution or a well-founded fear of future persecution is a factual determination reviewed under the substantial evidence standard."¹

Voci v. Gonzales , 409 F.3d 607, 613 (3d Cir. 2005). An agency determination about whether an asylum applicant has established the requisite nexus between the persecution he has suffered or will suffer and his protected characteristic is also reviewed for substantial evidence. See INS v. Elias-Zacarias , 502 U.S. 478, 481 & n.1, 483–84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) ; Gonzalez-Posadas v. Att'y Gen. , 781 F.3d 677, 686 (3d Cir. 2015). We will not, however, defer to a factual finding that is "based on a misunderstanding of the law." Doe v. Att'y Gen. , 956 F.3d 135, 141 (3d Cir. 2020).

III

To be eligible for asylum, an alien must demonstrate that he is unable or unwilling to return to his home country "because of persecution or a well-founded...