United States Court of Appeals
For the First Circuit
No. 08-1494
SRISHANKAR BALACHANDRAN,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Stahl, Circuit Judges.
Visuvanathan Rudrakumaran and Law Office of Visuvanathan
Rudrakumaran on brief for petitioner.
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Gregory G. Katsas, Assistant Attorney General,
Civil Division, on brief for respondent.
May 22, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Srishankar Balachandran, of Sri
Lanka, petitions for review of a Board of Immigration Appeals
("BIA") order denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture
("CAT").
The BIA affirmed the finding of an Immigration Judge
("IJ") that Balachandran did not qualify for relief because he
failed to establish he had been persecuted in Sri Lanka or faced
future persecution. The IJ found that Balachandran was neither
credible nor had he corroborated his testimony from easily
obtainable sources. See REAL ID Act of 2005, Pub. L. No. 109-13,
119 Stat. 231. The IJ also found that Balachandran's claims of
persecution did not single him out from the general population,
which suffered from civil strife in the country brought about by a
"rampant terrorist organization," a separatist group called the
Tamil Tigers. Further, the IJ determined that even if she had
found Balachandran credible on his asylum claims she would, as a
matter of discretion, have denied him asylum because Balachandran
came before the immigration court with unclean hands.
The BIA affirmed and noted Balachandran had made no
effort to establish persecution of him individually separate from
the widespread civil strife between the government and the Tamil
Tigers, which has, sadly, affected all Sri Lankans. See generally
Ratnasingam v. Holder, 556 F.3d 10 (1st Cir. 2009). The primary
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argument made by the petition is that the IJ and BIA overlooked
petitioner's pattern-or-practice claim under 8 C.F.R.
§ 1208.13(b)(2) and so the case must be remanded. The premise of
the argument is wrong, and there is strong support in the record
for the denial of relief. We deny Balachandran's petition for
review.
I.
Immigration authorities detained Balachandran on
September 22, 2006, when he presented himself for inspection at the
airport in St. Thomas, U.S. Virgin Islands, intending to travel to
the mainland United States on his way to Canada. He had entered
the U.S. Virgin Islands two days earlier and was traveling under an
assumed name and with fraudulent Canadian identification documents.
He did not then claim asylum, and he refused to answer questions
about whether he feared going back to Sri Lanka.
The government served Balachandran with a Notice to
Appear on September 22, 2006, charging him with removability.
Balachandran, represented by counsel, completed an asylum
application. The IJ had granted his counsel two continuances to
allow him more time to prepare the application.
Balachandran's counsel failed to appear for the hearing
and Balachandran, after obtaining another continuance, elected to
proceed pro se. At his hearing, he testified that he was born in
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Sri Lanka in 1981 and is a member of the minority Tamil ethnic
group.
Balachandran described three incidents that made him fear
returning to Sri Lanka. On April 10, 2004, twenty members of the
Sri Lankan army entered his house, shouting "Koddiya" ("Tigers" in
the language of the majority Sinhalese ethnic group). They
assaulted Balachandran, as well as his father and sister, and
detained him. He was transported to an army camp where he was
beaten and mistreated for several months. He was released after
his father bribed an official. On December 24, 2004, Balachandran
was arrested along with several other young Tamils. After an
informant identified him as a Tiger, soldiers beat him, mistreated
him, and held him for two months. His father again secured his
release by paying a bribe. Finally, on January 3, 2006, members of
the army arrested Balachandran at his house after a bomb exploded
nearby. They accused him of being a Tiger, beat him, and detained
him until his father paid another bribe. He was hospitalized for
one week after his release. Balachandran left Sri Lanka on August
20, 2006. He traveled through several countries before arriving in
the Virgin Islands but did not seek asylum until he was detained.
Balachandran testified that he had not communicated with
his father and sister since arriving in the United States. He had,
however, been in contact with family in Canada who were able to
contact his father and sister. He said that he spoke with his
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Canadian relatives "once a week or once a month" and that they had
helped him to obtain from Sri Lanka his birth certificate and
identification papers, which he submitted with his application.
The IJ denied Balachandran's application. She found
Balachandran not credible. The IJ also noted that it was clear
that it was never Balachandran's intention to come to the United
States to seek protection. She also concluded that Balachandran
had failed to corroborate his testimony in any way. He did not
provide affidavits from his family in Canada, who he testified knew
of what had happened to him in Sri Lanka, hospitalization records,
or any other documentation. The IJ concluded that Balachandran had
failed to establish a likelihood of persecution distinct from the
experience of other Sri Lankans and could not qualify for asylum or
withholding on the basis of conditions of general civil strife in
the country. CAT relief was also denied on grounds of lack of
credibility.
The BIA affirmed. It held that the respondent failed to
provide reasonably available corroborating evidence and failed to
establish persecution on account of a statutorily protected ground.
It also noted that because Balachandran's asylum claim was based on
"general conditions of violence" in Sri Lanka, he was not entitled
to refugee status. Finally, the BIA held that the record supported
the denial of the application for protection under the CAT because
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Balachandran failed to establish a likelihood he would be tortured
with government acquiescence.
II.
Where the BIA has issued its own opinion, we primarily
review the BIA's decision.
A. The Purported Pattern-or-Practice Claim
We address first Balachandran's procedural argument that
the BIA erred in failing to address his theory that he qualified
for relief on the basis of a pattern or practice of persecution in
Sri Lanka.
A petitioner who, like Balachandran, fails to establish
that he or she will be singled out for persecution may nevertheless
qualify for asylum by demonstrating that there is a "pattern or
practice in his or her country . . . of persecution of a group of
persons similarly situated to the applicant on account of race,
religion, nationality, membership in a particular social group, or
political opinion." 8 C.F.R. § 1208.13(b)(2)(iii)(A). The
pattern-or-practice theory requires the applicant to "present
evidence of 'systematic persecution' of a group," and to
demonstrate that "persecutors target the group specifically on
account of one of the five statutory grounds." Kho v. Keisler, 505
F.3d 50, 54 (1st Cir. 2007) (quoting Meguenine v. INS, 139 F.3d 25,
28 (1st Cir. 1998)).
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Balachandran's brief to the BIA contained only a cursory
argument on the pattern-or-practice issue. Balachandran did not
identify a specific group that was the subject of the alleged
pattern or practice of persecution, presented no evidence of
"systematic persecution," and failed even to identify which
statutory ground would have been the basis of persecution.
Balachandran only reproduced portions of the hearing transcript and
asserted he was eligible for asylum under a pattern-or-practice
theory. Assuming Balachandran did not waive the claim, it is
controlled by our decisions in Ravindran v. INS, 976 F.2d 754 (1st
Cir. 1992), and Ratnasingam.
We may affirm where the agency has implicitly addressed
a claim, as here. See Un v. Gonzales, 415 F.3d 205, 209 (1st Cir.
2005) ("[W]e expect an agency to make findings, implicitly if not
explicitly, on all grounds necessary for decision."). That is
especially so where the arguments made on the point to the agency
are far from clear. Here, the BIA noted it is "well-settled that
aliens whose asylum claims are based on the general conditions of
violence in a country are not entitled to 'refugee' status,"
implicitly holding that Balachandran failed to show a pattern or
practice of persecution based on statutorily protected grounds
rather than only hardship resulting from conditions of civil
strife. In Ratnasingam, we affirmed the BIA's rejection of a
pattern-or-practice claim by a Tamil Sri Lankan on identical
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grounds. We held that a pattern-or-practice claim cannot be based
on a group's suffering due to "violent civil conflict . . . in the
home country." Ratnasingam, 556 F.3d at 14 (omission in original)
(quoting Kho, 505 F.3d at 54); see also Ravindran, 976 F.2d at
759.1
B. Asylum and Other Claims for Relief: Credibility
Determination
Whether Balachandran has met his burden of proving
eligibility for relief is a question of fact, which we review under
the substantial evidence standard. Ratnasingam, 556 F.3d at 13.
We will reverse the BIA's findings "only if 'any reasonable
adjudicator would be compelled to conclude to the contrary.'"
Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) (quoting 8
U.S.C. § 1252(b)(4)(B)). The substantial evidence standard also
applies to the BIA's determination regarding the availability of
corroborating evidence and the effect of non-production. Chhay v.
Mukasey, 540 F.3d 1, 6 (1st Cir. 2008).
Balachandran argues that the BIA erred in upholding the
IJ's conclusion that he failed to provide adequate corroboration.
The REAL ID Act provides that an IJ can require corroboration, even
1
Balachandran filed a Rule 28(j) letter with this court
urging remand to the BIA. See Fed. R. App. P. 28(j). He noted
that the government filed a motion to remand in the 11th Circuit
where the BIA had failed to address a pattern-or-practice theory in
any way. See Vijayaratnam v. Holder, No. 09-10275 (11th Cir. Apr.
21, 2009). Here, the BIA considered and rejected Balachandran's
arguments. Vijayaratnam is not relevant.
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if a petitioner gives credible testimony, and that "such evidence
must be provided unless the applicant does not have the evidence
and cannot reasonably obtain the evidence." REAL ID Act
§ 101(a)(3), 119 Stat. at 303 (codified at 8 U.S.C.
§ 1158(b)(1)(B)(ii)).
The IJ said she was "not expecting somebody from Sri
Lanka to send a letter" and correctly noted that it was reasonable
to expect Balachandran to secure corroboration from his family in
Canada. Balachandran testified that he was in contact with his
Canadian relatives (in fact, they helped to arrange for his initial
lawyer) and that they were aware of what had happened to him in Sri
Lanka. He also testified that they communicated with his Sri
Lankan family through a telephone owned by neighbors in Sri Lanka.
Balachandran was represented by counsel while he obtained
documentation in support of his asylum application, and he obtained
two continuances from the IJ to enable him to prepare his
application. He submitted official documents from Sri Lanka,
showing both that he was able to obtain corroborating items from
his relatives and that he was aware of the need to provide
documentation in support of his application.2
2
Balachandran also argues that the BIA erred in finding no
connection between the government's treatment of him and a
protected ground, namely imputed political opinion. See 8 U.S.C.
§ 1101(a)(42)(A). We need not reach this issue. Balachandran
based his asylum claim solely on his testimony, and the BIA
supportably found he failed to provide adequate corroboration.
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Finally, Balachandran challenges the BIA's determination
that he did not qualify for protection under the CAT.3 He argues
the BIA erred in finding that the Sri Lankan government did not
acquiesce in the torture. The BIA did not base its conclusion on
the lack of governmental acquiescence in torture; rather, it held
that Balachandran had failed to establish a likelihood of his being
tortured with government acquiescence as is required for CAT
protection. See 8 C.F.R. §§ 1208.16(c), 1208.18(a)(1).
The BIA's conclusion is supported by substantial
evidence. Although Balachandran provided documentary evidence
regarding general country conditions, Balachandran's CAT claim was,
like his asylum claim, based primarily on his uncorroborated
testimony and not credible. The record does not compel the
conclusion that it is more likely than not he would be tortured if
returned to Sri Lanka. See Khan v. Mukasey, 541 F.3d 55, 58 (1st
Cir. 2008) (upholding denial of CAT claim where claim depended on
the same uncorroborated testimony underlying asylum claim); see
also Ratnasingam, 556 F.3d at 15 (upholding denial of CAT claim,
based in part on country conditions, by Sri Lankan Tamil).
The petition for review is denied.
3
Balachandran makes no argument regarding the BIA's denial
of his claim for withholding of removal; the argument is waived.
See Scatambuli v. Holder, 558 F.3d 53, 61 (1st Cir. 2009).
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