[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13916 ELEVENTH CIRCUIT
AUGUST 14, 2009
________________________
THOMAS K. KAHN
CLERK
Agency No. A88-834-001
ILANGEERAN PARAMANATHAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 14, 2009)
Before EDMONDSON, BLACK and SILER,* Circuit Judges.
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
PER CURIAM:
Petitioner Ilangeeran Paramanathan (“Petitioner”) petitions for review of the
Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s
(“IJ”) decision denying Petitioner’s application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Because
substantial evidence supports the BIA’s denial of Petitioner’s asylum and
withholding of removal based on a well-founded fear of future persecution --
including individual and pattern-or-practice persecution -- we deny those aspects
of the petition. We dismiss Petitioner’s CAT claim for lack of jurisdiction.
I. B ACKGROUND
Petitioner is a native and citizen of Sri Lanka. On 3 October 2007, Petitioner
arrived at a Florida airport and sought entry into the United States. He told
immigration officials that he feared returning home to Sri Lanka. Later, the
Department of Homeland Security charged Petitioner with inadmissability as an
immigrant not in possession of a valid entry document. 8 U.S.C. §
1182(a)(7)(A)(i)(I). In January 2008, Petitioner submitted an application for
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asylum, withholding of removal, and protection under the CAT. The IJ denied all
three applications. Petitioner then appealed to the BIA, which affirmed the IJ’s
decision. He now petitions this Court for review of the BIA’s decision.
The facts pertinent to Petitioner’s appeal are these facts: Petitioner belongs
to Sri Lanka’s Tamil ethnic minority. During a credible-fear interview, Petitioner
told an immigration officer that the Sri Lankan army accused all young Tamil men
-- and especially male university students -- of being members of the Liberation
Tigers of Tamil Eelam (“Tigers”). The Tigers are a rebel group that engages in
armed conflict with the Sri Lankan government.
Petitioner claimed1 that he was, on several occasions -- because he was a
student and a Tamil -- accused of being a Tiger. For example, Petitioner says that
Sri Lankan soldiers often harassed him while he attended university in Jaffna, Sri
Lanka. Soldiers, Petitioner claims, also shot a fellow student during a peaceful
campus protest and beat protesters on campus.
In addition, Petitioner claims that the Sri Lankan army took him into custody
at an army camp 10-12 times. During those detentions, which each lasted around
30 minutes, the army forced Petitioner to kneel with his hands tied while a solider
1
According to the IJ, “the Court does not have any specific issues relating to the
respondent’s credibility [but it] does have an issue with plausibility. . . . the plausibility of the
respondent’s account[] is at question, and, possibly embellished.”
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pointed a gun at Petitioner and shouted at him in a language Petitioner did not
understand. Petitioner contends that during one of these sessions, he observed
fellow Tamils being tortured. He testified that he also saw Tamils blindfolded,
handcuffed, and transported away from the camp in a van; some of their bodies
were later found by the side of the road. Petitioner also testified that one soldier
warned him that “If I take you into custody again, I’ll kill you.”
Petitioner’s brother had been killed some years earlier when a shell fired by
the Sri Lankan army hit Petitioner’s family home. Because his parents feared for
Petitioner’s safety, they sent him to live in a lodge in Colombo, the capital of Sri
Lanka. Petitioner stayed there for four or five months. During that time, the army
allegedly raided the lodge where Petitioner lived and took Tamils into custody.
But because Petitioner had just been released from the hospital for an ulcer
treatment, the army did not take him. They warned, however, that they would take
Petitioner if he stayed in Colombo longer. Petitioner fled the country in October
2007. He says that he intended to seek asylum in Canada, where he has relatives;
but he first sought entry into the United States.
After entering the United States and being ordered to appear in immigration
court, Petitioner told the IJ that the Sri Lankan army would kill Petitioner if he
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returned to Sri Lanka. Petitioner further testified that he would be targeted as a
Tamil who was a former university student.
The IJ found that Petitioner “failed to establish past persecution or any well-
founded fear of persecution based on any protected ground.” The IJ further found
no real evidence was presented that Petitioner had actually been harmed in Sri
Lanka, despite his detentions. Petitioner was always released after each detention.
That Petitioner’s family still lived unharmed in Sri Lanka also undercut
Petitioner’s fear of persecution. Moreover, the IJ found that Petitioner’s account
was “possibly embellished.” The IJ denied all three applications: asylum,
withholding of removal, and protection under the CAT.
Petitioner timely appealed to the BIA, arguing, among other things, that he
had a well-founded fear of persecution based on a pattern or practice of the Sri
Lankan army persecuting young Tamil males. Adopting the IJ’s decision “in
whole,” the BIA affirmed the denial of asylum, withholding of removal, and CAT
protection. Petitioner now seeks review of the BIA’s decision.
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II. S TANDARD OF R EVIEW
The BIA reviews the IJ’s factual determinations for clear error. 8 C.F.R. §
1003.1(d)(3). We review only the BIA, “except to the extent the BIA expressly
adopts the IJ’s decision.” Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890
(11th Cir. 2007). Here, because the BIA adopted and affirmed the IJ’s decision, we
review both. We must uphold the BIA’s factual findings if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 112 S. Ct. 812, 815 (1992) (quoting 8 U.S.C. §
1105a(a)(4)). “[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). To reverse an administrative factual determination under this test,
we must conclude that “the evidence not only supports [a contrary] conclusion, but
compels it.” Elias-Zacarias, 112 S. Ct. at 815 n.1. “[O]nly in a rare case does the
record compel the conclusion that an applicant for asylum suffered past
persecution or has a well-founded fear of future persecution.” Silva v. U.S. Att’y
Gen., 448 F.3d 1229, 1239 (11th Cir. 2006).
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III. D ISCUSSION
A. Asylum Based on Well-Founded Fear of Future Persecution
To establish asylum eligibility, an applicant must show “with specific and
credible evidence . . . (1) past persecution on account of a statutorily listed factor,
or (2) a ‘well-founded fear’ that the statutorily listed factor will cause future
persecution.” Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290 (11th Cir. 2006)
(internal citation omitted); see also 8 C.F.R. § 208.13(a),(b). The BIA determined
that Petitioner failed to establish harm severe enough to rise to the level of past
persecution. See Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th
Cir. 2007) (reaffirming that “mere harassment does not amount to persecution”). It
also determined that Petitioner failed to demonstrate an objectively reasonable,
individualized fear of future persecution.
Because Petitioner essentially concedes that his past mistreatment did not
rise to the level of persecution, he argues that the BIA clearly erred by finding that
Petitioner had no individualized, well-founded fear of future persecution. To
substantiate his future fear, Petitioner notes that he was threatened by army soldiers
in Jaffa and Colombo; that the army would treat Petitioner worse than his brothers
-- who still live in Sri Lanka unharmed -- because Petitioner is an educated Tamil;
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and that the cumulative effect of 10-12 detentions points to well-founded fear. See
Poradisova v. Gonzales, 420 F.3d 70, 79–81 (2d Cir. 2005) (reversing denial of
asylum because, among other reasons, BIA failed to view events cumulatively).
Petitioner specifically contends that the BIA erred by finding that the
reasonableness of Petitioner’s fear was undercut, considering that Petitioner’s
family remains in Sri Lanka relatively unharmed. See Matter of A-E-M, 21 I&N
Dec. 1157, 1160 (BIA 1998); see also De Santamaria v. U.S. Att’y Gen., 525 F.3d
999, 1011–12 (11th Cir. 2008) (examining whether asylum applicant’s family still
lives in home country “without incident” as part of objective evaluation into
applicant’s fear of future persecution); Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1259 (11th Cir. 2006) (that applicant’s family continued to live in home country
without incident undercut fear of future persecution). To the contrary, Petitioner
argues that no evidence exists that his parents or siblings are safe in Sri Lanka; he
never offered such evidence to the IJ.2
But Petitioner bears the burden of proving a well-founded fear of future
persecution: a burden he does not carry here. See Zheng, 451 F.3d at 1291.
Because Petitioner offers no evidence that compels a conclusion different than that
2
Petitioner admits, however, that when questioned about his brothers, Petitioner testified
that they were only subjected to questioning by the army “about twice.”
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of the BIA -- that his family’s apparent safety in Sri Lanka undercut Petitioner’s
reasonable fear of future persecution -- we must uphold the BIA’s finding.
Furthermore, even viewed cumulatively -- that is, looking at the effect of ten
or even twelve brief detentions -- and accounting for the IJ’s determination of
Petitioner’s credibility, Petitioner’s claims do not necessarily rise to a well-founded
fear of future persecution. See Zheng, 451 F.3d at 1289–92 (even five-day
detention did not give rise to well-founded fear of future persecution); Silva, 448
F.3d at 1237 (mere threats do not give rise to well-founded fear of future
persecution). Petitioner neither demonstrates “objectively reasonable fear of
persecution” based on a protected characteristic, nor does he offer substantial
evidence that compels reversal of the BIA’s findings. He is therefore ineligible for
asylum and withholding of removal on this ground, see Zheng, 451 F.3d at 1292,
and we DENY this part of the petition.
B. Asylum Based on Pattern or Practice
An applicant may also show a well-founded fear of future persecution by
proving a pattern or practice of a country persecuting a “group of persons similarly
situated to the applicant” based on a protected characteristic. To obtain relief for
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pattern-or-practice persecution, the applicant must also demonstrate membership in
the protected group. 8 C.F.R. § 208.13(b)(2)(iii)(A),(B).
Petitioner argues that the BIA failed to adjudicate his pattern-or-practice
claim, which he raised before the BIA by citing the relevant statute, see 8 C.F.R. §
208.13(b)(2)(iii), and by proffering to the IJ and the BIA specific evidence of
categorical discrimination against Tamils and young male Tamils in Sri Lanka.
Because the BIA order failed explicitly to mention pattern or practice, Petitioner
argues, this aspect of his petition should be remanded for a BIA decision.
Fear of future persecution is one basis for asylum. Two lines of proof are
possible to establish this basis. Petitioner has the burden of proving either (1) that
he would be singled out for future persecution, see Ruiz, 440 F.3d at 1257, or that
(2) a group of persons similarly situated to him suffered a pattern or practice of
persecution. See Silva, 448 F.3d at 1261. The Government contends that when the
BIA in this proceeding wrote Petitioner failed to carry his burden of proof to
establish “a well-founded fear of future persecution . . . on account of one of the
statutorily protected grounds, including race, religion, and political opinion . . . or
any other protected ground,” the BIA decided that Petitioner’s future persecution
claim showed no merit as an individual or as a member of a group, such as Tamils
or young Tamil males. The Government says the appeal is ready for our review.
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Although fairly detailed BIA orders help us, the BIA is not obligated to
discuss in its order every strand of evidence that is presented by a petitioner
seeking asylum on the basis of future persecution. See Morales v. INS, 208 F.3d
323, 328 (1st Cir. 2000) (“[E]ach piece of evidence need not be discussed in a
decision.”). We accept that, where the BIA recognizes the Petitioner’s membership
in a group that is a group for the purposes of the asylum statutes and is the group
that Petitioner contends is the subject of pattern-or-practice persecution, a BIA
declaration that Petitioner has failed to show well-founded fear of persecution
decides and rejects the theories of both individual and group persecution, unless
the BIA order clearly says otherwise. The BIA can effectively recognize
Petitioner’s group membership by either words in the BIA’s own order or adopting
an IJ’s decision that expressly acknowledges membership in the pertinent group.
In this case, the BIA through its own order and through the adopted words of the
IJ, recognized that Petitioner was a Tamil and a young Tamil male. We conclude
that Petitioner’s pattern-or-practice contention was decided by the BIA and can
now be reviewed.
We will uphold the BIA’s factual determination that Petitioner failed to
prove a well-founded fear of future persecution based on pattern or practice unless
the evidence compels a contrary conclusion. Elias-Zacarias, 112 S. Ct. at 816 n.1.
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As the Government points out, however, a pattern-or-practice contention will
prevail only if it is so extreme that it shows “systematic, pervasive, or organized
effort to kill, imprison, or severely injure members of the protected group.” Ahmed
v. Gonzales, 467 F.3d 669, 675 (7th Cir. 2006) (internal quotations omitted).3
Petitioner failed to meet the burden of proving a well-founded fear of
individualized, future persecution; he also failed to prove the more “extreme”
persecution required for a pattern-or-practice claim. He offers no binding caselaw
in which Tamils or young Tamil males have obtained asylum or withholding of
removal based on a pattern-or-practice contention, nor does he offer substantial
evidence that compels reversal of the BIA’s findings. Accordingly, we DENY this
part of the petition.
C. Convention Against Torture Claim
Petitioner claims that the BIA insufficiently stated the basis of its denial of
Petitioner’s CAT claim; he requests a remand on the issue. See Kamalthas v. INS,
251 F.3d 1279, 1283 (9th Cir. 2001) (CAT is not “merely a subset” of asylum and
withholding claims).
3
Once a court grants asylum based on a pattern-or-practice claim, “every member of the
group is eligible for asylum.” Id.
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We need not reach this claim, however, because although Petitioner asked
for asylum and withholding of removal, he did not raise a CAT claim before the
BIA. Therefore, even though the BIA summarily dismissed Petitioner’s CAT
claim, we do not have jurisdiction to review it. See Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (we lack jurisdiction over claims
not raised before BIA, even if BIA reviews issue sua sponte). Therefore, we
DISMISS this part of the petition.
Petition DENIED in part and DISMISSED in part.
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