In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2475, 08-3147
S ASANKAN R AGHUNATHAN and
T HAIYALNAYAKI T HEVARAJAH,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petitions for Review of an Order of
the Board of Immigration Appeals.
Nos. A099-029-389, A099-029-391
A RGUED JANUARY 11, 2010—D ECIDED A PRIL 29, 2010
Before E ASTERBROOK, Chief Judge, and K ANNE, Circuit
Judge, and K ENNELLY, District Judge.
K ANNE, Circuit Judge. Petitioners Sasankan Raghuna-
than and Thaiyalnayaki Thevarajah, husband and wife,
The Honorable Matthew F. Kennelly, judge for the United
States District Court for the Northern District of Illinois, sitting
by designation.
2 Nos. 08-2475, 08-3147
are natives and citizens of Sri Lanka. In June 2007, they
attempted to enter the United States using fraudulent
Canadian passports. After discovery of their illegal
entry attempt, the Department of Homeland Security
issued the couple notices to appear, informing
them that they were subject to removal under
INA §§ 212(a)(6)(C)(i) and 212(a)(7)(A)(i)(I), which regu-
late the removal of aliens who seek to procure admis-
sion to the United States by fraud or who fail to possess
valid documentation at the time of admission, respectively.
Petitioners subsequently admitted the factual allega-
tions contained in the notices to appear and conceded
removability but also stated their intentions to apply
for asylum, withholding of removal, and protections
under the United Nations Convention Against Torture
and Other Cruel, Inhuman, or Degrading Treatment or
Punishment (“CAT”), 23 I.L.M. 1027 (1984). Following a
removal hearing, the immigration judge denied their
applications, finding that Petitioners failed to meet their
burden of proof for asylum, withholding of removal, and
protections under CAT. The immigration judge also
found Thevarajah ineligible for asylum and withholding
of removal because she provided material support to a
foreign terrorist organization, the Liberation Tigers of
Tamil Eelam (“LTTE”).
Petitioners appealed the immigration judge’s order to
the Board of Immigration Appeals, which affirmed the
decision in May 2008. Petitioners subsequently filed a
motion for reconsideration, which the Board denied in
July 2008. Petitioners then filed petitions for review of
Nos. 08-2475, 08-3147 3
both decisions with this court, and we consolidated
their petitions. We now deny their petitions for review.
I. B ACKGROUND
Raghunathan and Thevarajah are both Sri Lankan, and
both of the Tamil ethnic group living in that country.
According to their own testimony, both suffered years
of persecution as a result of their Tamil ethnicity.
Raghunathan testified before the immigration judge that
his persecution began when he was sixteen years old
and living with his family in Jaffna, Sri Lanka. He
claimed that one morning, members of the Sri Lankan
army arrested him on suspicion that he was supporting
the LTTE, although no other members of his family
were arrested. After his arrest, he claimed to have been
detained in an army camp for three months, where he
was interrogated, beaten, and burned.
Approximately one month after his release, Raghuna-
than said that he was arrested once more, but was
detained only for a few hours. After this second arrest,
he moved to the Sri Lankan capital where he lived for
two years. In 1997, he left Sri Lanka for London. He
applied for asylum in England, but was denied. Raghuna-
than remained in London for ten more years, when
he then attempted to enter the United States using a
fraudulent Canadian passport.
Thevarajah also claimed to have been persecuted as a
result of her Tamil ethnicity. She testified before the
immigration judge that for fourteen years she worked for
4 Nos. 08-2475, 08-3147
a Sri Lankan newspaper, Eelantham, which focused on
the plight of Tamils. In her employ at the paper,
Thevarajah worked in advertising, news collecting, and
reporting. Significantly, she admitted during testimony
her knowledge that the newspaper was produced by
the LTTE, and was distributed only in Tamil-populated
areas.
Thevarajah claimed that in 1998 she was detained by
the army for a period of two weeks on suspicion of her
membership in the LTTE. While detained, she was
beaten and molested. After her release, Thevarajah
stated that she wanted to quit her job but remained
because she feared retaliation from the LTTE.
Thevarajah moved to the capital city in 2002. After a
bombing in 2004, she testified that she was again
arrested, this time for a week, during which she was
beaten and questioned about the bombing. After her
release, she traveled to London using fraudulent docu-
ments. While living in London, Thevarajah met
Raghunathan, and the two married in 2005. In 2007,
the couple left London together for the United States.
After their illegal entry attempt was discovered, Peti-
tioners were granted a hearing before an immigration
judge. At the hearing, the couple conceded removability,
but sought asylum, withholding of removal, and protec-
tion under CAT. The immigration judge denied the peti-
tion, finding that the couple failed to produce any corro-
borative evidence of their persecution in Sri Lanka or
of their applications for asylum in England. It also
found that even if their stories were credible, neither
Nos. 08-2475, 08-3147 5
presented evidence that they were still of interest to the
Sri Lankan government and would therefore suffer perse-
cution upon their return. The immigration judge also
found that Thevarajah was ineligible for asylum and
withholding of removal under both the Immigration and
Nationality Act (“INA”) and CAT regulations because
she provided material support to a terrorist organiza-
tion. Because the Petitioners did not prove that it was
more likely than not that they would be singled out for
persecution if returned to Sri Lanka, the immigration
judge denied their applications and ordered them re-
moved.
On appeal of the removal order, the Board of Immigra-
tion Appeals adopted and affirmed the immigration
judge’s ruling. The Board agreed that Petitioners failed
to produce corroborative evidence of their persecu-
tion in Sri Lanka and their applications for asylum in
England. It also agreed that the material support bar
applied to Thevarajah, barring her from asylum and
withholding of removal. After the Board affirmed the
removal order, Petitioners sought review.
Shortly after the Board affirmed the removal order,
Petitioners filed a motion for reconsideration, in which
they argued for the first time that Thevarajah’s duties
for the newspaper were protected by the First Amend-
ment and international law, and therefore did not con-
stitute material support to a terrorist organization. They
also challenged the immigration judge’s statement that
the newspaper was “owned by” the LTTE, arguing that the
paper was only a pro-LTTE publication. They claimed
6 Nos. 08-2475, 08-3147
that the Board failed to adequately consider their
eligibility for asylum under a “pattern or practice” theory
of persecution, and that the immigration judge’s CAT
analysis was in error.
The Board denied Petitioners’ motion to reconsider,
finding that the Petitioners could not identify any error
in its decision to uphold the immigration judge’s order
in light of their failure to produce corroborative
evidence after ordered to do so. It also found that the
immigration judge did not mischaracterize the newspa-
per’s affiliation, because the judge’s statement was
based on Thevarajah’s own testimony. It finally con-
cluded that it did not overlook any argument regarding
the applicability of the material support bar because
Thevarajah did not raise any meaningful argument
until her motion for reconsideration. Petitioners re-
quested review of that decision as well. We consolidated
the petitions, and both are before us now.
II. A NALYSIS
These petitions, although consolidated, represent two
distinct decisions. Our traditional practice would have
been to dismiss the motion for reconsideration and
decide the petition from the removal order because,
under our prior precedent, we lacked jurisdiction to
review denials of motions to reconsider. Johnson v.
Mukasey, 546 F.3d 403 (7th Cir. 2008). But while this
case was pending, the Supreme Court decided Kucana v.
Holder, 130 S. Ct. 827 (2010), where it held that federal
courts have jurisdiction to review the Board’s denial of a
Nos. 08-2475, 08-3147 7
motion to reconsider. To the extent that Kucana changes
our analysis, it merely provides us with jurisdiction
over an argument that we otherwise would have dis-
missed. And because the parties fully briefed the issue
of how the outcome would be affected if the Court deter-
mined that we have jurisdiction, it makes no practical
difference to our decision today; we will simply
examine the denial of the motion to reconsider on its
merits. With the jurisdictional issues resolved, we now
turn to the merits of each petition.
A. Motion for Reconsideration
We review a denial of a motion for reconsideration
for abuse of discretion. INS v. Abudu, 485 U.S. 94, 96
(1988); Patel v. Gonzales, 442 F.3d 1011, 1015-16 (7th
Cir. 2006). The abuse of discretion standard is highly
deferential, Ali v. Ashcroft, 395 F.3d 722, 731 (7th Cir.
2005), perhaps even more so in the immigration context
than in other administrative contexts. Abudu, 485 U.S.
at 110. Unless the Board’s decision “ ‘was made without a
rational explanation, inexplicably departed from estab-
lished policies, or rested on an impermissible basis,’ ” we
will deny the petition for review. Mungongo v. Gonzales,
479 F.3d 531, 534 (7th Cir. 2007) (quoting Singh v.
Gonzales, 404 F.3d 1024, 1027 (7th Cir. 2005)).
We review for substantial evidence factual findings
made by the Board in the course of a motion for recon-
sideration. See, e.g., Huang v. Mukasey, 525 F.3d 559, 564
(7th Cir. 2008); Dandan v. Ashcroft, 339 F.3d 567, 572 (7th
8 Nos. 08-2475, 08-3147
Cir. 2003); see also Nehad v. Mukasey, 535 F.3d 962, 966 (9th
Cir. 2008). Under the substantial evidence standard, the
agency’s determination will stand if it is “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” Khan v. Filip, 554 F.3d 681,
690 (7th Cir. 2009) (quoting BinRashed v. Gonzales, 502
F.3d 666, 670 (7th Cir. 2007)). In essence, administrative
findings of fact “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the con-
trary.” 8 U.S.C. § 1252(b)(4)(B); see also Kedjouti v. Holder,
571 F.3d 718, 720-21 (7th Cir. 2009).
1. Pattern or Practice
Petitioners claim that the Board erred in denying
their pattern or practice claim. A pattern or practice
claim starts with the presumption that an alien failed
to establish that he was persecuted or is reasonably
likely be singled out for persecution. Despite the absence
of this evidence, an alien may prevail by establishing a
pattern or practice of persecution in his native country
based on a protected trait. 8 C.F.R. § 208.13(B)(2)(iii);
Krishnapillai v. Holder, 563 F.3d 606, 620 (7th Cir. 2009).
But the level of persecution must be extreme for an alien
to prevail under this theory. Krishnapillai, 563 F.3d at
620. The threshold for establishing a practice or pattern
is high because a successful showing means that, in
theory, every other person belonging to that same pro-
tected group would be entitled to asylum in the United
States. Id. We therefore require evidence of a “systematic,
pervasive, or organized effort to kill, imprison, or severely
Nos. 08-2475, 08-3147 9
injure members of the protected group . . . .” Id. (quoting
Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir. 2005)).
Petitioners have failed to meet the high standard re-
quired to succeed on a pattern or practice claim,
especially under an abuse of discretion standard of
review. Our decision in Krishnapillai virtually ex-
tinguishes any chance of success for Petitioners’ pattern
or practice argument. In that case, an alien claimed that
he could not return to Sri Lanka because of fighting
between the government and the LTTE. As evidence of
his claim of persecution, he offered a December 2006
United Nations Office of the High Commissioner for
Refugees report, which recommended that no Tamil be
returned to Sri Lanka until security conditions improved
in that country. We closely analyzed that report, but
reached the ultimate conclusion that although life is
difficult for Tamils in Sri Lanka, the evidence did not
“reflect the extreme degree of mistreatment necessary
to establish a pattern or practice of persecution.” 563
F.3d at 620. That decision applies with equal force
to Petitioners’ claim in this case.
Furthermore, despite the fact that both Petitioners
have family who remain in Sri Lanka, they presented
no corroborative evidence from similarly situated family
members showing that as Tamils, they are subject to
persecution. If their family members are not suffering
persecution as Tamils, then it is unlikely Petitioners
will suffer persecution merely because of their Tamil
ethnicity. See, e.g., Guardia v. Mukasey, 526 F.3d 968, 972
(7th Cir. 2008) (“Evidence that an applicant’s family
10 Nos. 08-2475, 08-3147
members remain unharmed in their home country may
support a finding that the applicant is unlikely to suffer
future persecution.” (citing Ambati v. Reno, 233 F.3d 1054,
1061 (7th Cir. 2000))). We find that the Board did not
abuse its discretion in reaching the conclusion that Peti-
tioners could not establish a pattern or practice theory.
2. Thevarajah’s Withholding of Removal
In denying Thevarajah’s withholding of removal, the
immigration judge explained that “general danger and
violence in an alien’s country is insufficient to establish
eligibility for relief, unless the alien can establish special
circumstances that go beyond the general danger
affecting everyone.” (App. at 123.) Although Petitioners
argue that this comment evidenced the immigration
judge’s error in failing to distinguish between incidents
of civil war and persecution in the context of civil war,
even if true, this argument is irrelevant. The Board did not
abuse its discretion in denying Petitioners’ motion to
reconsider based on the immigration judge’s comment
because the immigration judge correctly stated the law.
We have stated that generalized conditions affecting
large segments of a population do not, by themselves,
prove that an individual faces persecution. Capric v.
Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004). Unless an
alien can produce evidence that he or she is likely to be
singled out for persecution, a generalized condition has
no significance. See id. It was Thevarajah’s burden to
produce this evidence. Because she failed to do so, the
distinction between incidents of civil war and persecution
Nos. 08-2475, 08-3147 11
in the context of civil war matters little. Thevarajah
failed to make the particularized showing necessary to
differentiate her circumstances from those facing all
Tamils, so the Board was within its discretion in
denying reconsideration of this issue.
3. Material Support Bar
Thevarajah also argues that the Board erred in denying
the motion to reconsider her argument that the material
support bar was inapplicable to her situation. Yet the
reason the Board denied reconsideration of this issue
was because it found that Thevarajah failed to argue it
adequately in her initial appeal. In fact, in her appeal to
the Board, Thevarajah’s challenge to the immigration
judge’s ruling consisted only of the statement: “The
female respondent claims that she worked as a journalist
for a newspaper which is under the control of the LTTE.
Her argument is that working as a journalist does not
amount to material support.” (App. at 59.) But stating
blankly what one’s argument is and actually arguing a
position are different things. “Perfunctory and undevel-
oped arguments are waived, especially when . . . ’a party
fails to develop the factual basis of a claim on appeal
and, instead, merely draws and relies upon bare con-
clusions.’ ” Campania Mgmt. Co., Inc. v. Rooks, Pitts & Poust,
290 F.3d 843, 852 n.6 (7th Cir. 2002) (quoting Spath v.
Hayes Wheels Int’l-Ind. Inc., 211 F.3d 392, 397 (7th Cir.
2000)). The Board utilized this exact reasoning when it
explained that it was denying Thevarajah’s appeal be-
cause her argument was “vague and unsupported.” (App.
at 42.)
12 Nos. 08-2475, 08-3147
Now, however, Thevarajah does not challenge this
denial, but instead challenges the rejection of the new
argument she made in her motion to reconsider. There,
Thevarajah argued that the material support bar did not
apply to her because she was protected by the First
Amendment and international law. And although this
may very well be true, the Board found that Thevara-
jah’s failure to articulate this argument on appeal of the
immigration judge’s order was fatal. We have held
that the Board is not required to grant a motion for re-
consideration to address issues that could have been
raised earlier. Ahmed v. Ashcroft, 388 F.3d 247, 251 (7th
Cir. 2004). Because Thevarajah’s new argument was
raised for the first time in a motion for reconsideration,
the Board did not abuse its discretion in declining to
hear Thevarajah’s material support argument. Therefore,
the Board’s decision to deny Thevarajah’s motion for
reconsideration was proper.
In sum, the Board did not abuse its discretion by re-
jecting Petitioners’ motion to reconsider. We deny the
petition for review of Petitioners’ reconsideration
motion and we now turn to the Board’s affirmance of
the immigration judge’s order removing Petitioners
from the United States.
B. Petition for Review of Board’s Decision Affirming the
Immigration Judge
The second petition before us arises from the Board’s
affirmance of the immigration judge’s order denying
Petitioners asylum, withholding of removal, and protec-
Nos. 08-2475, 08-3147 13
tion under CAT. The Board found that the immigration
judge did not commit error when he determined that
Petitioners’ failure to produce or adequately explain the
absence of corroborating evidence was fatal to their
claims. Petitioners now argue that the Board’s decision
was in error.
When the Board’s order supplements an immigration
judge’s decision, the immigration judge’s opinion “as
supplemented by the [Board’s] opinion becomes the
basis for review.” Liu v. Ashcroft, 380 F.3d 307, 311 (7th
Cir. 2004). The standard for our review of that supple-
mented decision comes from the REAL ID Act, Pub. L.
No. 109-13, § 101, 119 Stat. 231, 302 (2005), which was
enacted, in part, to prevent terrorists from obtaining
relief from removal. The REAL ID Act provides that
when reviewing an immigration judge’s decision, “[n]o
court shall reverse a determination made by a trier of
fact with respect to the availability of corroborating
evidence . . . unless the court finds . . . that a reason-
able trier of fact is compelled to conclude that such cor-
roborating evidence is unavailable.” Id. § 101, 119 Stat. at
304 (amending 8 U.S.C. § 1252). Therefore, we review
the immigration judge’s determination, as supplemented
by the Board, under the substantial evidence standard.
See Krishnapillai, 563 F.3d at 609; Liu, 380 F.3d at 311.
Petitioners argue that the Board erred when it affirmed
the immigration judge’s decision holding that Petitioners
were required and failed to produce or adequately
explain the absence of evidence corroborating their
claims. Yet Petitioners point to no evidence that compels
14 Nos. 08-2475, 08-3147
a contrary conclusion. Under the REAL ID Act, an im-
migration judge exercises “substantial leeway to demand
corroboration of an asylum applicant’s allegations
whether or not the judge finds the applicant credible.”
Krishnapillai, 563 F.3d at 618. In fact, “[w]here the trier of
fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant
does not have the evidence and cannot reasonably
obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). In es-
sence, when an immigration judge requires an applicant
to produce corroborating evidence, that evidence is
required (unless it cannot be reasonably obtained), even
if the judge finds the applicant credible. Krishnapillai, 563
F.3d at 618. Therefore, the immigration judge was well
within his discretion when he required Petitioners to
corroborate their claims. Unless Petitioners can show
that corroborating evidence was reasonably unavailable,
their failure to produce it was fatal to their claims.
Petitioners therefore argue that corroborating evidence
was unavailable and that both the immigration judge
and the Board improperly made a determination to the
contrary. We first address Petitioners’ argument that
documentation regarding their asylum applications in
England was unavailable. The government argues that
this argument is waived because Petitioners failed to
raise it in their appeal to the Board. Mekhtiev v. Holder, 559
F.3d 725, 729 (7th Cir. 2009) (explaining how waiver
may occur with any argument not exhausted through
administrative remedies). We agree with the government
that, before the Board, Petitioners failed to raise the
Nos. 08-2475, 08-3147 15
argument that documentation supporting their asylum
applications was unavailable. (See App. at 50-52.) Peti-
tioners therefore waived this argument.
With regard to Petitioners’ claim that the Board erred
in finding that the documents they submitted did not
satisfy the corroboration requirement, the evidence is to
the contrary. Petitioners only submitted two things: (1) an
order from a British court sustaining a lower court’s
finding that Raghunathan “would be of no further
interest to the [LTTE] or the Sri Lankan authorities,” and
(2) a cover sheet to the court’s order affirming the denial
of Thevarajah’s asylum application. (App. at 366, 368.)
These two documents were unresponsive to the immigra-
tion judge’s request that Petitioners produce the British
asylum petitions or British court decisions denying them,
or provide an explanation for their inability to do so.
Furthermore, the explanation that Petitioners offered
suffers from the same infirmity: Raghunathan’s claim
that his British attorney failed to send him application
materials and was eventually disbarred is not supported
by the record. And in any event, this explanation
does not resolve why Raghunathan himself could not
obtain the documents, even if his attorney did not
assist him. Thevarajah, on her part, offered no explana-
tion at all, so her argument is waived. See Mekhtiev, 559
F.3d at 729. Petitioners’ argument that they offered a
sufficient explanation for their inability to produce cor-
roboration regarding their asylum applications is with-
out merit.
Next, Raghunathan claims that the judge erred in
requiring him to show his history of medical treatment,
16 Nos. 08-2475, 08-3147
which he received to remedy the abuse suffered at the
hands of the Sri Lankan army. Raghunathan’s explana-
tion for his failure to provide this information is his
assertion that it was never established that he received
medical treatment for his injuries. But this contradicts
his testimony before the immigration judge in which
he said that he was treated at a hospital. (App. at
272.) Therefore, the Board did not err in affirming the
immigration judge’s determination that Raghunathan
failed to offer a reasonable explanation for the lack of
evidence corroborating his medical treatment.
Raghunathan also claims that the immigration judge
excluded a letter purportedly sent by Raghunathan’s
mother in which she recounted events that happened in
Sri Lanka. But the evidence shows that the immigration
judge did not exclude the evidence. Instead, the judge
determined that it deserved very little weight because
Raghunathan did not authenticate the letter, detail how it
was obtained by his sister in Canada, or explain why
Raghunathan—who had very little recent contact with
his mother—suddenly had a letter from her supporting
his version of events. In any event, the letter did not
independently corroborate Raghunathan’s claim because
his mother did not witness the events in question, but
merely retold Raghunathan’s version of events. We agree
that under these circumstances, the Board did not err in
affirming the immigration judge’s decision that the
letter was insufficient corroboration.
Finally, Petitioners argue that the immigration judge
did not make the requisite findings necessary to deny
Nos. 08-2475, 08-3147 17
their applications based on a lack of corroboration. But
Petitioners’ argument is premised on superceded pre-
REAL ID Act authority, which has no application to this
case. See, e.g., Rapheal v. Mukasey, 533 F.3d 521, 527 (7th
Cir. 2008) (“[U]nder the REAL ID Act, corroborating
evidence may be required even if the applicant is credi-
ble. By codifying the corroboration rule, Congress re-
moved any doubt as to the validity of that rule. Thus,
the . . . three-part test, established for purposes of
assessing the validity of the INS’s debatable interpreta-
tion of the corroboration rule, no longer controls.”). As
discussed, if an immigration judge requests corrobora-
tion, that request ends the inquiry when Petitioners fail
to produce that evidence or explain its absence,
Krishnapillai, 563 F.3d at 618, as they did here.
Because Petitioners do not claim that the Board was
incorrect in its holding that Petitioners failed to meet
their burden of production under the CAT regulations,
that argument is waived. Corcoran v. Levenhagen, 593
F.3d 547, 551 (7th Cir. 2010). This disposes of all of Peti-
tioners’ arguments.
III. C ONCLUSION
Because Petitioners have failed to show that the Board
abused its discretion in denying Petitioners’ motion for
reconsideration or that the Board erred in affirming
the immigration judge’s decision ordering removal of
Petitioners, the petitions for review are D ENIED.
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