Rasiah v. Holder

United States Court of Appeals
For the First Circuit

Nos. 08-1398, 08-1740

PRABAKARAN RASIAH,

Petitioner,

v.

ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

Respondent.

ON PETITIONS FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Visuvanathan Rudrakumaran, Law Office of Visuvanathan
Rudrakumaran, on brief for petitioner.
Anthony W. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, Gregory G. Katsas, Assistant Attorney
General, Civil Division, and Terri J. Scadron, Assistant Director,
Office of Immigration Litigation, on brief for respondent.

December 9, 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.
 BOUDIN, Circuit Judge. Prabakaran Rasiah is an ethnically

Tamil Sri Lankan citizen. He seeks review of a decision by the Board

of Immigration Appeals ("BIA") affirming an order by an Immigration

Judge ("IJ") that denied his applications for asylum, withholding of

removal, and relief under the Convention Against Torture ("CAT").

Rasiah sought this relief alleging that he had suffered persecution

at the hands of the Sri Lankan army because of his Tamil ethnicity.

The background events and proceedings can be briefly summarized.

Rasiah sought to enter the United States on May 4, 2007,

in San Juan, Puerto Rico, using a fraudulent non-immigrant visa.

Federal authorities began removal proceedings, and Rasiah conceded

removability, but applied for asylum, withholding of removal, and CAT

relief. Rasiah had an interview with an asylum officer on May 23,

2007, and was granted a hearing before an IJ. The hearing before the

IJ occurred on August 22, 2007, and Rasiah was represented by

counsel.

Rasiah was the only witness. He testified that he is an

ethnically Tamil Sri Lankan and to a number of incidents of past

persecution he and family members allegedly suffered at the hands of

the Sri Lankan army or others associated with the government: that

soldiers beat him and shot his brother and sister; that he had left

his job after soldiers inquired into his support for the Tamil

Tigers, a rebel group engaged in a long-running armed conflict with

the Sri Lankan government; that he was kidnapped, beaten and burned

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by three men dressed as civilians; and that soldiers shot an alleged

relative of his named Kandasamy Gowrivalan.

Rasiah submitted a variety of documents on the current

conditions in Sri Lanka, including a United Nations report and

articles from newspapers and online sources. Consistent with State

Department country reports on Sri Lanka, the materials confirmed that

Tamils were sometimes threatened, abused and worse on account of

their ethnic status or suspected ties to the Tamil Tigers. After the

hearing, Rasiah submitted a memorandum of law reiterating his past

persecution claims and claiming, for the first time, asylum

eligibility based on a pattern or practice of persecution against

Tamils.

The IJ issued an oral decision on October 3, 2007, that

denied Rasiah's application for asylum, withholding of removal, and

CAT relief. The IJ found Rasiah's testimony of past persecution of

himself and his family "not credible," saying she did not believe

him; the reasons she gave can be summarized as follows:

that he had failed to provide corroboration
for his stories, such as his claims that his
brother and sister were shot;

that several other Sri Lankan asylum seekers
claimed Gowrivalan was a relative and had
presented death certificates like the one
Rasiah presented in support;

that his claim he would be persecuted in Sri
Lanka was undercut by his ability to get a
passport from the Sri Lankan government and
his experiencing no difficulties when

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 traveling to or from Sri Lanka in the past;
and

that there were inconsistencies in his
testimony, including about the facts of the
alleged kidnapping and his job.

The IJ also found that Rasiah had not met his burden on future

persecution.

Rasiah appealed to the BIA where he challenged the IJ's

adverse credibility finding as to his past persecution; argued that

he had proved a pattern or practice of persecution of Tamils that the

IJ had ignored; and (for the first time) argued that he would be

persecuted in Sri Lanka as a failed asylum seeker. The BIA upheld

the finding that Rasiah's accounts of past persecution were

incredible, addressed Rasiah's pattern or practice claim by quoting

the IJ's conclusion that simply by being a Tamil Rasiah was not

entitled to "a blank check in order to receive asylum," and held that

his claim that he would be persecuted as a failed asylum seeker was

never presented to the IJ and so was forfeited.

Rasiah sought review in this court on March 27, 2008, and

then on April 3, 2008, filed a motion to reopen the administrative

proceedings, claiming that the persecution of Tamils had increased in

Sri Lanka and submitting additional documentary evidence of

conditions in Sri Lanka. He also argued that his pattern or practice

claim turned not on his credibility, but rather on his Tamil

ethnicity and objective evidence of the treatment of Tamils. The BIA

denied the motion to reopen, observing that the new information did

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not "ameliorate[] the factual bases of the adverse credibility

finding."

Rasiah petitioned to review this denial of the motion to

reopen, which we consolidated with his earlier petition contesting

the BIA's decision on the merits. In this court, Rasiah does not

challenge the IJ's factual finding that his testimony about past

persecution was incredible. His main argument is that the BIA erred

in failing to analyze separately his pattern or practice claim and in

failing to remand that issue to the IJ for development. He also

argues that the BIA should have decoded his claim that he would be

subject to persecution as a failed asylum seeker.

Review of the IJ or BIA's fact-bound determinations is

under the "substantial evidence standard," Ratnasingam v. Holder, 556

F.3d 10, 13 (1st Cir. 2009), which asks whether "any reasonable

adjudicator would be compelled to conclude to the contrary," Budiono

v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) (internal quotation marks

omitted). But, as already noted, Rasiah does not dispute the finding

that his testimony was incredible and his main objection is to BIA's

alleged failure to decide on the merits his pattern or practice

claim. However, the BIA--although more cryptic than the IJ--did

permissibly resolve Rasiah's claim.

Claims based on past persecution, reasonable fear of

future persecution or both ordinarily focus on past incidents or

future danger involving the asylum seeker or his family, which must

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be severe enough to constitute "persecution"--a fairly high standard,

Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir. 2000); the applicant

must also show that the persecution that occurred, or is threatened,

was "on account of race, religion, nationality, membership in a

particular social group, or political opinion," 8 U.S.C. §

1101(a)(42)(A) (2006); 8 C.F.R. § 208.13(b) (2009). A showing of

past persecution creates a rebuttable presumption of future

persecution. 8 C.F.R. § 208.13(b)(1).

An applicant can often reinforce his claim of

individualized harm or danger by showing that persecution of

similarly situated persons has occurred. See Kotasz v. INS, 31 F.3d

847, 852-54 (9th Cir. 1994). Thus, a history of violence toward

Tamils could help show that violence directed against Rasiah or his

family was based on their ethnicity rather than random crime or

disorder or that the source was the government or its indifference.

Such a showing could also make more credible and rational the fear of

the asylum seeker that past incidents would be repeated.

In fact, there is evidence, reflected in both case law and

State Department country reports, that ethnic Tamils in Sri Lanka

have been subject to incidents of violence in the past attributed to

the government or its indifference.1 As described by the State

1
See, e.g., U.S. Dep't of State, 2008 Country Reports on Human
Rights Practices: Sri Lanka (released Feb. 25, 2009); Krishnapillai
v. Holder, 563 F.3d 606, 609, 611-13, 620-21 (7th Cir. 2009);
Balasubramanrim v. INS, 143 F.3d 157, 158-59 (3d Cir. 1998);
Ravindran v. INS, 976 F.2d 754, 756 (1st Cir. 1992).

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Department's 2008 report, "[t]he government has been engaged in a

twenty-five year armed conflict with the" Tamil Tigers, which the

report describes as a "terrorist organization" controlling "a

shrinking area in the north of the country." As this conflict

escalated, "the government's respect for human rights declined," and

Tamils made up "the overwhelming majority of victims of human rights

violations."2

The 2008 report described "frequent harassment of young

and middle-aged Tamil men by security forces and paramilitary groups"

especially "in the conflict-affected north and east"; among the more

serious violations from 2008 noted in the report were approximately

800 civilian casualties, more than 500 disappearances and the

detention of several thousand individuals (although the majority were

released within 24 hours). So clearly many Tamils--particularly in

conflict-afflicted areas--have suffered substantial hardships.

The difficulty for Rasiah is that simply because civil

strife causes substantial hardships for an ethnic minority, that does

not automatically entitle all members of that minority to asylum.

Ratnasingam, 556 F.3d at 14; Kho v. Keisler, 505 F.3d 50, 54 (1st

Cir. 2007); see also Krishnapillai, 563 F.3d at 620. The governing

regulations and the case law do in some extreme cases allow relief

2
In May 2009, the Sri Lankan government declared victory over the
Tigers in the conflict, Vakeesan v. Holder, No. 08-3622, 2009 WL
2591034, at *11, n.6 (6th Cir. Aug. 21, 2009) (citing Sri Lanka Says
Leader of Rebels Has Died, N.Y. Times, May 18, 2009, at A4), so the
situation of Tamils may have changed in recent months.

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for asylum seekers solely based on their membership in a protected

group under the pattern or practice rubric, 8 C.F.R. §§

208.13(b)(2)(ii), 208.16(b)(2); Kho, 505 F.3d at 54; however, the

standard is demanding and in substance requires a showing of regular

and widespread persecution creating a reasonable likelihood of

persecution of all persons in the group, see Krishnapillai, 563 F.3d

at 620; Kotasz, 31 F.3d at 852.

Attempts by Tamils to meet this standard have been

regularly rejected. This circuit has recently sustained BIA findings

that treatment of Tamils in Sri Lanka does not rise to the level

necessary to establish a pattern or practice claim that standing

alone permits relief. Balachandran v. Holder, 566 F.3d 269, 272-73

(1st Cir. 2009); Ratnasingam, 556 F.3d at 14-15. Other circuits are

in accord. Krishnapillai, 563 F.3d at 620; Vakeesan, 2009 WL

2591034, at *11; Paramanathan v. U.S. Att'y Gen., No. 08-13916, 2009

WL 2477762, at *4-5 (11th Cir. Aug. 14, 2009) (per curiam).

The record in this case neither compels a contrary finding

nor supports Rasiah's assertion that his claim was ignored. Rasiah

himself raised his pattern or practice claim only after his hearing

before the IJ, but the IJ dealt with it exactly as one might expect:

Even though the Country Reports and background
information provided by the respondent clearly
depicted that Sri Lanka is a country in
turmoil, that there [are] abuses from the
government, there [are] abuses from the army,
there [are] abuses from the Tigers, the
respondent, by the fact that he is a Tamil, by
the fact he is from Sri Lanka, that does not

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 give him a blank check in order to receive
asylum in the United States.

The BIA cited this portion of the IJ's decision in a footnote,

effectively adopting the IJ's treatment, which was itself adequate in

light of the nature of the claim and the case law.

The IJ's explicit references to "the Country Reports" and

other "background information" and its discussion of conditions in

Sri Lanka indicate that the IJ and, in turn, the BIA considered but

rejected Rasiah's pattern or practice claim, see Malek v. Mukasey,

274 F. App'x 1, 7-8 (1st Cir. 2008), and Rasiah presented no evidence

to distinguish his purported pattern or practice claim from those

rejected in Balachandran and Ratnasingam. The treatment of Tamils,

however deplorable, is not of a reach that entitles every Tamil in

Sri Lanka to asylum based on ethnicity alone.

What Rasiah needed was evidence that he himself had been

persecuted or targeted for persecution. With that foundation, he

might well have benefitted (in ways described above) from a showing

based on country reports or other generalized evidence that Tamils

were sometimes persecuted because of their political activities or

even their ethnicity alone. But because the IJ disbelieved broadly

Rasiah's claims of personal or family persecution--and he does not

contest that finding in this court--he has no past persecution or

threats of future persecution of him or family members that might

gain weight or color from the treatment of others.

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 An adverse credibility finding by itself would not

automatically doom a claim for asylum. For example, an applicant

might be disbelieved as to past episodes of persecution while his own

(or independent) evidence might show that he faced threats of future

persecution--for example, direct threats from government forces--that

established both his genuine belief and an objective likelihood that

he would be persecuted. Paul v. Gonzalez, 444 F.3d 148, 154 (2d Cir.

2006). But Rasiah made no such independent showing: the only

evidence of harm or threats to him or his family that he offered was

the evidence that the IJ disbelieved and there was no evidence of a

pattern or practice of persecution of Tamils beyond that our case law

already has rejected as insufficient.

The BIA also did not err in denying Rasiah's motion to

reopen the proceedings. Motions to reopen are disfavored and are

reviewed only for abuse of discretion. Lemus v. Gonzalez, 489 F.3d

399, 401 (1st Cir. 2007). Rasiah provided no new evidence as to why

he should be believed, see id., and did not show that country

conditions had worsened dramatically, see Ratnasingam, 556 F.3d at

15. What he offered was far from the necessary showing of "new

evidence [that] establishes a prima facie case for the underlying

substantive relief." Chikkeur v. Mukasey, 514 F.3d 1381, 1383 (1st

Cir. 2008).

Finally, as already noted, Rasiah contends he is entitled

to asylum because he is part of the "particular social group" of

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"failed asylum seekers." The BIA held this claim barred because

Rasiah failed to raise it before the IJ. He points to nothing that

shows he did raise it earlier, so the BIA was on firm ground.

Kechichian v. Mukasey, 535 F.3d 15, 21-22 (1st Cir. 2008).

The petition for review is denied.

- Dissenting Opinion Follows -

-11-
 LIPEZ, Circuit Judge, dissenting. In an effort to avoid

remanding this case to the BIA, the majority constructs reasoning not

present in, and indeed directly contradicted by, the BIA's decision.

As I shall explain, the BIA did not consider and reject Rasiah's

claim of pattern or practice persecution on the merits. Instead, on

initial appeal and again on the motion to reopen, the BIA declined to

address Rasiah's pattern or practice claim in view of the IJ's

adverse credibility finding as to Rasiah's personal accounts of past

persecution. The BIA committed a legal error by concluding that the

adverse credibility finding as to past persecution doomed Rasiah's

pattern or practice claim. Therefore, I respectfully dissent. This

case must be remanded to the BIA so that Rasiah's properly presented

pattern or practice claim may be heard in the first instance.3

3
The majority appears to fault Rasiah for not raising his pattern
or practice claim orally at the hearing before the IJ, and instead
raising this claim for the first time in a written memorandum
submitted after the hearing. However, the majority fails to note
that at the conclusion of Rasiah's testimony before the IJ, Rasiah's
counsel asked to present oral argument. The IJ instructed counsel
that "if you want to submit a closing, submit it in written form . .
. ." In compliance with that instruction, Rasiah then filed a
written memorandum of law in which he squarely raised his pattern or
practice claim, citing to the governing regulations and the
documentary evidence of country conditions he had submitted at the
hearing. This memorandum was submitted prior to the IJ's issuance of
her decision, and the government could easily have responded in a
reply memorandum. Rasiah cannot be faulted for complying with the
IJ's express instruction and presenting his argument in written form,
rather than orally at the hearing.

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 I.

In our review of the BIA's decision, we cannot invent

grounds for affirmance and ascribe them to the agency. Instead, we

must "judge the action of an administrative agency based only on

reasoning provided by the agency, and not based on grounds

constructed by the reviewing court." El Moraghy v. Ashcroft, 331

F.3d 195, 203 (1st Cir. 2003) (quotation marks and citation omitted)

(remanding where IJ failed to state conclusions on several important

issues); see also Halo v. Gonzales, 419 F.3d 15, 18-19 (1st Cir.

2005) ("[A] reviewing court . . . must judge the propriety of

[administrative] action solely by the grounds invoked by the agency,

and that basis must be set forth with such clarity as to be

understandable." (internal quotation marks and citation omitted)).

In this case, the majority affirms not on grounds provided by the

BIA, but on grounds constructed by the majority.

The majority asserts that the BIA "addressed Rasiah's

pattern or practice claim by quoting the IJ's conclusion that simply

by being a Tamil Rasiah was not entitled to a 'blank check in order

to receive asylum.'" The majority then proceeds to affirm this

purported reasoning by the BIA, concluding that "[t]he treatment of

Tamils, however deplorable, is not of a reach that entitles every

Tamil in Sri Lanka to asylum based on ethnicity alone." However, the

record makes clear that the BIA did not, as the majority suggests,

consider the submitted evidence of country conditions and conclude

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that Rasiah failed to establish systematic persecution of Tamils in

Sri Lanka. See 8 C.F.R. § 208.13(b)(2)(iii); Balachandran, 566 F.3d

at 272. Instead, the BIA expressly deemed it unnecessary to address

Rasiah's pattern or practice claim in light of the IJ's prior adverse

credibility finding as to Rasiah's accounts of past persecution.

Proving a well-founded fear of future persecution

"generally requires individualized evidence that the applicant will

be 'singled out' for persecution upon return to his home country."

Kho, 505 F.3d at 54. The analysis of a pattern or practice claim,

however, is different. Under the governing regulations, an asylum

applicant need not demonstrate that he will be "singled out

individually" for future persecution if the applicant establishes (1)

"that there is a pattern or practice in his or her country of

nationality . . . 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," and

(2) "his or her own inclusion in, and identification with, such group

of persons such that his or her fear of persecution upon return is

reasonable." 8 C.F.R. § 208.13(b)(2)(iii).

As the majority recognizes, evidence of prevailing country

conditions may be relevant to either an individualized persecution

claim or a pattern or practice claim. For example, evidence of

country conditions may provide context and corroboration for the

asylum applicant's personal accounts of past persecution, thereby

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bolstering an individualized showing of persecution. See El Moraghy,

331 F.3d at 203-04. Alternatively, evidence of prevailing country

conditions may establish a pattern or practice of persecution of

persons similarly situated to the applicant, making it unnecessary

for the applicant to demonstrate that he will be singled out

individually for persecution.

In this case, the BIA decision's only reference to

Rasiah's pattern or practice claim appears in a footnote in which the

BIA expressly deemed it unnecessary to address the claim. The BIA

concluded:

Inasmuch as the respondent cannot meet his
burden of proof without providing credible
testimony as a result of the amendments
created by the REAL ID Act, we do not deem it
necessary to address his arguments on appeal
pertaining to either his "pattern or practice"
theory of relief or his claim based on a
"particular social group" consisting of failed
Sri Lankan asylum seekers.

(Emphasis added.) The majority ignores this express statement of the

BIA that it was not necessary to address Rasiah's pattern or practice

claim, and instead asserts that the BIA addressed and rejected this

claim on the merits. The majority relies on a portion of the BIA

decision in which the BIA adopted the IJ's reasoning that although

Rasiah submitted country reports and other evidence of widespread

abuses of Tamils in Sri Lanka, his Tamil ethnicity "does not give

[the respondent] a blank check in order to receive asylum." However,

read in context, it is clear that this portion of the BIA decision

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was addressed to Rasiah's individualized persecution claim, not his

pattern or practice claim. In the portion of the BIA decision

highlighted by the majority, the BIA concluded that the IJ properly

based her adverse credibility finding in part on Rasiah's failure to

corroborate basic elements of his past persecution claim, including

his testimony that his brother and sister were shot and that his

alleged relative, Gowrivalan, was shot and killed. The BIA then

stated, in a footnote:

On appeal the respondent contends that the
Immigration Judge erroneously failed to
consider the "overwhelming background
materials" on country conditions as
corroborative of the respondent's asylum
claim. . . . However, as the Immigration
Judge explained in her decision, just arriving
in the United States from Sri Lanka "does not
give [the respondent] a blank check in order
to receive asylum" (I.J. at 21). Rather,
first and foremost, the respondent must be
credible, and then the respondent must meet
his burden of proof of establishing that he is
a refugee within the meaning of the Act. See
sections 208(b)(1)(B)(i), (iii) of the Act
(added by REAL ID Act § 101(a)(3)); 8 C.F.R.
§ 1208.13(a); Matter of J-Y-C-, [24 I & N Dec.
260,] 266 [(BIA 2007)]. In this case, the
respondent failed to testify credibly and, as
a result, failed to meet his burden of proof.

As this passage makes clear, the BIA was responding to

Rasiah's argument that the evidence of country conditions

corroborated his testimony that he and his family had personally

experienced past persecution. Adopting the IJ's reasoning, the BIA

concluded that Rasiah had failed to credibly testify that he or his

family were targeted for past persecution, and therefore he had made

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no individualized showing of past persecution that might be

corroborated or otherwise supported by evidence of country

conditions. The BIA did not address the distinct question of whether

the evidence of country conditions established a pattern or practice

of persecution under 8 C.F.R. § 208.13(b)(2)(iii), a claim that could

have succeeded regardless of whether Rasiah credibly testified that

he and his family were singled out for persecution in the past.

The BIA similarly declined to address the merits of

Rasiah's pattern or practice claim on his motion to reopen. The BIA

concluded that "even the fairly voluminous evidence of current

country conditions in Sri Lanka that the respondent has submitted

with his motion would [not] have resulted in a different disposition

of the respondent's case because none of this evidence ameliorates

the factual bases of the adverse credibility finding."

The majority relies on prior cases in which we have

sustained the BIA's rejection of pattern or practice claims by

ethnically Tamil Sri Lankans. See, e.g., Balachandran, 566 F.3d at

272-73; Ratnasingam, 556 F.3d at 14. In these cases, however, we

reviewed a finding by the BIA that the petitioner had failed to

establish a pattern or practice of persecution in his country, and

concluded that the evidence did not compel a contrary conclusion. By

contrast, in cases in which the BIA has failed to address a Sri

Lankan Tamil's pattern or practice claim altogether, courts have

remanded to the BIA to address this issue in the first instance. See

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Rasananthan v. U.S. Att'y Gen., No. 08-10151, 2009 WL 2105539, at *2

(11th Cir. Jul. 17, 2009) (per curiam) (remanding where BIA failed to

address pattern or practice claim by ethnically Tamil Sri Lankan);

Thavendran v. Gonzales, 211 F. App'x 74, 75 (2d Cir. 2007)(summary

order)(same); see also Balachandran, 566 F.3d at 273 n.1 (concluding

that the BIA "considered and rejected" Sri Lankan Tamil's pattern or

practice claim, and distinguishing a case cited by the petitioner in

which "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," Vijayaratnam v. Holder, No. 09-10275 (11th Cir. Apr. 21,

2009)).

In this case, the BIA did not consider the evidence Rasiah

submitted of frequent and escalating violence against Tamils in Sri

Lanka, but instead expressly deemed it unnecessary to address

Rasiah's pattern or practice claim. Because the BIA failed to

address the pattern or practice claim on the merits, the case must be

remanded to the BIA to address this issue in the first instance. See

INS v. Ventura, 537 U.S. 12, 16 (2002)(per curiam); see also id. at

17 (citing considerations that support the "ordinary remand

requirement" in the immigration context, including that "[t]he agency

can bring its expertise to bear upon the matter; it can evaluate the

evidence; it can make an initial determination; and, in doing so, it

can, through informed discussion and analysis, help a court later

determine whether its decision exceeds the leeway that the law

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provides"); Cordejo-Trejo v. INS, 40 F.3d 482, 492 (1st Cir. 1994)

(remanding where BIA failed to address petitioner's claim of pattern

or practice persecution).

The majority goes to great lengths to construct grounds

for affirmance and avoid remanding this case to the BIA. In the end,

the majority's opinion appears to be driven by a conviction that

remand would be futile because Rasiah's pattern or practice claim

would likely be rejected by the BIA. However, the reviewing court is

not authorized to make that determination in the first instance.

Regardless of whether this court believes Rasiah's claim will be

successful, he is entitled to have his claim heard and addressed on

the merits by the BIA.

II.

Having concluded that the BIA did not address Rasiah's

pattern or practice claim on the merits and that the reviewing court

cannot address that claim in the first instance, I next address the

question of whether the BIA erroneously deemed it unnecessary to

address his pattern or practice claim in light of the IJ's adverse

credibility finding.4 I conclude that the BIA erred in determining

that the adverse credibility finding as to Rasiah's accounts of past

4
This claim of error applies with equal force to both the BIA's
denial of Rasiah's initial appeal and its subsequent denial of his
motion to reopen: in both decisions, the BIA deemed it unnecessary
to address the merits of his pattern or practice claim in light of
the IJ's adverse credibility finding.

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persecution precluded him from establishing a pattern or practice

claim.

As the majority acknowledges, a prior adverse credibility

finding as to past persecution does not necessarily foreclose a claim

for asylum based on independent evidence of future persecution. As

the Second Circuit has explained, with respect to petitions for both

asylum and withholding of removal, "an applicant may prevail on a

theory of future persecution despite an IJ's adverse credibility

ruling as to past persecution, so long as the factual predicate of

the applicant's claim of future persecution is independent of the

testimony that the IJ found not to be credible." Paul v. Gonzales,

444 F.3d 148, 154 (2d Cir. 2006). The other circuits to have

addressed this issue are in accord. See Vakeesan v. Holder, No.

08-3622, 2009 WL 2591034, at *9 (6th Cir. Aug. 21, 2009);

Rasananthan, 2009 WL 2105539, at *2; Gebreeyesus v. Gonzales, 482

F.3d 952, 955 (7th Cir. 2007).

In Paul, the IJ denied the petitioner's asylum claim on

adverse credibility grounds, finding his stories of past persecution

unsupported, but credited his testimony that he was a practicing

Christian. 444 F.3d at 152. The petitioner filed a motion to reopen

based on updated country reports indicating increased persecution of

Christians in Pakistan, and the BIA denied the motion, reasoning that

the petitioner had failed to present any evidence challenging the

adverse credibility finding. Id. On appeal, the court concluded

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that the petitioner's claim that he feared future persecution as a

Christian "could have succeeded regardless of the IJ's view of

petitioner's stories of past persecution." Id. at 154-55. It thus

held that the BIA abused its discretion in denying his motion to

reopen without considering the objective evidence of deteriorating

conditions for Christians in Pakistan. Id. at 155; see also Lin v.

U.S. Dep't of Justice, 247 F. App'x 228, 232 (2d Cir. 2007)(summary

order)(applying Paul to hold that remand was required where BIA did

not address the merits of petitioner's pattern or practice claim and

this claim was independent of the testimony found not credible).

Here, too, Rasiah's claim for asylum based on a pattern or

practice of persecution against Tamils relies on facts independent of

the testimony found not credible, and the prior adverse credibility

finding does not foreclose his pattern or practice claim. The IJ

found, and the BIA agreed, that Rasiah's accounts of past persecution

were inconsistent and uncorroborated. However, Rasiah's pattern or

practice claim is a claim that he has a well-founded fear of future

persecution. It relies not on his personal accounts of past

persecution, but on proof of (1) objective evidence of a pattern or

practice of persecution of Tamils in Sri Lanka, and (2) his Tamil

ethnicity. See 8 C.F.R. § 208.13(b)(2)(iii). Thus, Rasiah's claim

for asylum based on a pattern or practice of persecution of Tamils

"could have succeeded regardless of the IJ's view of [Rasiah's]

stories of past persecution," see Paul, 444 F.3d at 154-155, and the

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BIA erred in failing to consider Rasiah's proffered evidence of

deteriorating conditions for Tamils in Sri Lanka.

The government relies on Ramsameachire v. Ashcroft, 357

F.3d 169 (2d Cir. 2004), a Second Circuit case decided prior to Paul,

to argue that the IJ's adverse credibility determination precluded

Rasiah from demonstrating a subjective fear of future persecution.

In Ramsameachire, the IJ found that the petitioner had not

demonstrated a credible fear of future persecution, noting that his

stated reasons for fearing return to his native country had changed.5

Id. at 176-77. The BIA upheld the IJ's adverse credibility finding

and reasoned that, in light of that finding, it need not address the

petitioner's pattern or practice claim. Id. at 177. The Second

Circuit affirmed the BIA's decision, holding that the IJ's adverse

credibility finding as to his subjective fear of future persecution

foreclosed his claim for asylum based on a pattern or practice of

persecution, because "[a]lthough [the petitioner's] pattern or

practice evidence was relevant to the objective reasonableness of his

fear of persecution, the BIA's adverse credibility determination

precluded him from establishing the subjective prong of the well-

founded fear standard." Id. at 183.

Even if I were to adopt Ramsameachire's reasoning, it

would not lead me to the conclusion that the IJ's credibility finding

5
The IJ further found that the petitioner had not established
that he had suffered past persecution, and noted inconsistencies in
his accounts of alleged past persecution. Id. at 176.

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in this case precluded Rasiah from establishing a subjective fear of

future persecution. Unlike in Ramsameachire, where the IJ noted the

petitioner's shifting explanations for his claimed fear of returning

to his native country and expressly concluded that he failed to

establish a credible subjective fear of future persecution, see id.

at 176-77, here the IJ disbelieved Rasiah's stories of past

persecution. As the Second Circuit explained in Paul, an adverse

credibility finding as to past persecution does not preclude a

petitioner from showing a subjective fear of future persecution.

Instead, the adverse finding affects how the petitioner can prove the

subjective element of his fear. 444 F.3d at 154 n.5. In Paul, for

example, the court noted that the petitioner could not "assert that

he subjectively fears persecution on the basis of what his family

purportedly endured in the past" because the IJ had disbelieved those

accounts of past persecution. Id. However, the petitioner could

"still validly claim that he subjectively fears persecution because

he is a Christian." Id. Similarly, here, Rasiah cannot claim a

subjective fear of future persecution based on the discredited

accounts of past persecution, but he could still attempt to establish

that he subjectively fears future persecution based on his Tamil

ethnicity and a pattern or practice of persecution of Tamils.

Of course, if the IJ had found that Rasiah failed to

credibly establish his Tamil ethnicity, his pattern or practice claim

would necessarily fail. See 8 C.F.R. § 208.13(b)(2)(iii)(B) (an

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asylum applicant must establish "his or her own inclusion in, and

identification with, such group of persons such that his or her fear

of persecution upon return is reasonable"). However, the IJ did not

indicate, and the government does not contend, that the IJ

disbelieved petitioner's testimony as to his Tamil ethnicity.

Indeed, the IJ appeared to credit this testimony, stating that "the

respondent, by the fact that he is a Tamil, by the fact he is from

Sri Lanka, that does not give him . . . a blank check in order to

receive asylum in the United States."6

In its denial of Rasiah's initial appeal, and again in its

denial of his motion to reopen, the BIA committed an error of law in

concluding that the adverse credibility finding as to Rasiah's

accounts of past persecution precluded him from establishing a claim

of pattern or practice persecution. I would remand this case to the

6
In denying Rasiah's motion to reopen, the BIA relied on Lemus
v. Gonzales, 489 F.3d 399 (1st Cir. 2007), in which we held that the
petitioner's motion to reopen could not succeed because, inter alia,
she had not presented evidence rebutting the IJ's prior adverse
credibility finding. We affirmed the BIA's denial of petitioner's
motion to reopen, noting that "[t]o cinch matters, the newly
proffered information does nothing to rehabilitate the petitioner's
failed credibility -- and as said, the final administrative decision
in this case hinged mainly on an adverse credibility determination."
Id. at 401. In Lemus, however, the discredited testimony as to
petitioner's past political activity was the very testimony
underlying her asylum claim on the motion to reopen. Id. at 400-01.
Here, the discredited testimony as to Rasiah's experiences of past
persecution is entirely independent of his claim of future
persecution based on a pattern or practice of persecution of Tamils.

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BIA to address the merits of Rasiah's pattern or practice claim in

the first instance. See Ventura, 537 U.S. at 16.

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