Senathirajah v. INS

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

10-9-1998

Senathirajah v. INS

Precedential or Non-Precedential:

Docket 97-3607

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Filed October 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3607

CHENTHILKUMARAN SENATHIRAJAH,

Petitioner

v.

IMMIGRATION & NATURALIZATION SERVICE,

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

From Immigration & Naturalization Service

(No. 0313-2: A73 488 828)

Argued: May 19, 1988

Before: ROTH and McKEE, Circuit Judges and

O'NEILL, Senior District Judge*

(Filed October 9, 1998)

Chin W. Fong, Esq. (Argued)

Suite 505

7 Penn Plaza

New York, New York 10001

Attorney for Petitioner

_________________________________________________________________

*The Honorable Thomas N. O'Neill, Jr., Senior District Judge of the

United States District Court for the Eastern District of Pennsylvania,

sitting by designation.

Joan E. Smiley, Esq.

Karen F. Torstenson, Esq. (Argued)

Civil Division, Department of Justice

Michael P. Lindemann, Esq.

Vernon B. Miles, Esq.

United States Department of Justice

Office of Immigration Litigation

Ben Franklin Station

P.O. Box 878

Washington, D.C. 20044

Attorneys for Respondent

OPINION OF THE COURT

McKEE, Circuit Judge.

Chenthilkumaran Senathirajah appeals the decision of

the Board of Immigration Appeals ("BIA" or the "Board")

denying his petition for review of an immigration judge's

ruling denying his application for asylum and withholding

of deportation under 8 U.S.C. SS 1101(a)(42)(A), 1158(a) and

1253(h). For the reasons that follow we will grant the

petition and remand for further proceedings consistent with

this opinion.1

I.

Senathirajah is a fifty-one year old ethnic Tamil from Sri

Lanka who claims to have been tortured while detained by

the Indian Peace Keeping Forces ("IPKF "), the Sri Lankan

_________________________________________________________________

1. We have jurisdiction to review the BIA's final order pursuant to 8

U.S.C. S 1105(a)(1), as amended by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208,

110 Stat. 3009. The IIRIRA repeals relevant portions of S 1105 and

replaces them with a new judicial review section codified at 8 U.S.C.

S 1252, et seq. However, this amendment does not apply here, as the

order that Senathirajah appeals was entered before September 30, 1996.

See Chang v. INS, 119 F.3d 1055, 1059 n.1 (3d Cir. 1997). For

simplicity, we will refer to the Immigration and Nationality Act as it

existed prior to amendment.

2

military and the Sri Lankan police.2 His claims include: (1)

a two year period of detention and torture beginning with

an arrest by the IPKF in March 1988 for suspected

membership in the Liberation Tigers of Tamil Eelam ("LTTE"

or "Tigers"); (2) detention and torture by the Sri Lankan

army beginning with an arrest in July 1992 for suspected

membership in the LTTE; and (3) detention and physical

abuse by the Sri Lankan police beginning with an arrest in

January 1994 for suspicion of membership in the LTTE.

Soon after the last detention alleged by Senathirajah, he

hired "an agent" to procure a Canadian passport for him to

travel outside of Sri Lanka. App. at 322. On February 2,

1995, Senathirajah arrived at Kennedy Airport in New York

where he signed a sworn statement before an Immigration

and Naturalization Service ("INS") inspector regarding his

attempted entry into the United States (the "affidavit"). The

affidavit, which is transcribed in hand-printed, question

and answer format contains the following:

Q: What is your level of education? Do you work?

A: I graduated college, I am a teacher-I teach English.

Q: Sir, have you answered all my questions truthfu lly?

A: Yes.

Q: Would it be a burden if you had to leave/return to

Sri Lanka at this time?

A: My house was burned by the Sri Lankan army and

I am coming for political asylum in Canada.

. . . .

Q: Sir, do you wish to add to this statement at th is

time?

A: No, only that I want political asylum in Canada.

Q: Sir, at this time you appear excludable . . . Y ou can

withdraw you[r] application to enter the U.S.

_________________________________________________________________

2. In Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), we discussed

at some length recent Sri Lankan history; therefore, we decline to do so

again here.

3

voluntarily or you can ask for an exclusion hearing at

a later date. Which do you choose?

A: I want to go to Canada, I cannot go back.

App. at 227. The INS subsequently charged Senathirajah

with excludability from the United States, under 8 U.S.C.

SS 1182(a)(7)(A)(I)(I) and 1182(a)(6)(C)(I) for attempting to

enter the United States by fraud and without a valid visa.3

App. at 357.

On May 1, 1995, Senathirajah submitted a formal

application for asylum using INS Form I-589. That form

contains the following:

1. Why are you seeking asylum?

If I returned to Sri Lanka, I will be arrested, detained,

tortured and be killed.

2. What do you think would happen to you if you

returned to the country from which you are claiming

persecution?

Due to my Tamil nationality and the suspicion that I

am a member of the LTTE and from Velvettithurai, if I

were returned to Sri Lanka, I will be persecuted.

App. at 317. In a statement that Senathirajah attached to

the application he stated:

1. I was born in Velvettithurai in the northern pr ovince

of Sri Lanka on the 26th of December 1947. I

completed my secondary education in 1968. After

working full time for a while, I studied full time from

1974 to 1977 at a technical college and obtained a

diploma in English.

***

4. Since 1983, the Sri Lankan government has been

engaged in armed conflict with Tamil militants. In May

1987, the Sri Lankan armed forces launched a major

offensive in Velvettithurai . . . . During this offensive,

the Sri Lankan government engaged in indiscriminate

bombing. During one of the Sri Lanka government's

_________________________________________________________________

3. Senathirajah's attorney has conceded excludability. App. at 160.

4

bombing raids, the boat yard where I worked was

damaged severely. As a result, I left the village with my

family and moved to another village.

5. In August 1987, pursuant to the Indo-Sri Lankan

Accord, the Indian Peace Keeping Force (IPKF) came to

Sri Lanka to restore peace and normalcy. When the

IPKF arrived, the Sri Lankan armed forces were

confined to barracks. I returned to my village with my

family.

6. In October 1987, war broke out between the IPKF

and the LTTE. . . .

8. In March 1988, during a meeting of our communit y

center, the members of the IPKF came to our center

and arrested the Secretary and myself. We were taken

to the IPKF camp.

9. At the camp, we were asked about the whereabout s

of LTTE members. We denied any knowledge about the

LTTE. The next day we were subjected to an

identification parade. A man with a black mask was

brought in. We were brought in front of the man with

a black mask and the IPKF man asked the informant

whether we were LTTE members. When certain persons

were brought in front of the informant, he nodded his

head. When it was my turn, the informant nodded his

head. I was taken away, put in solitary confinement

and subjected to torture.

10. I was detained by the IPKF until its departure.

Following talks between the Sri Lankan government

and the LTTE, the IPKF left Sri Lanka.

11. . . . . In June 1991, war broke out between th e Sri

Lankan government and the LTTE.

12. . . . . In July 1992 . . . the Sri Lankan army

captured our town. The LTTE cadres left my village

when the Sri Lankan armed forces raided the area.

13. Around 10 p.m., the Sri Lankan military came t o

my house. When they entered my house, they hit me

with their guns and accused me of being a Tiger and

arrested me. I was taken to their camp.

5

14. At the camp, I was accused of being a member o f

the LTTE. They wanted to know the whereabouts of

LTTE members. When I said I didn't know, they

tortured me. I was detained and continually tortured

till October 1993. . . .

17. In January 1994, the Sri Lankan armed forces

raided my lodge [in Colombo]. When the Sri Lankan

armed forces came to my room, they asked for my

identification card. Upon seeing my card, they realized

that I was from the northern province. They

immediately accused me of being a Tiger and arrested

me.

18. I was first taken to the police station wher e I was

interrogated and tortured. . . .

20. Because I feared I would be arrested again, I

decided to leave Sri Lanka.

App. at 321-22.

Senathirajah had an asylum hearing on August 10, 1995.

During that hearing, he testified to enduring atrocities

similar to those set forth in the above statement, with some

additions. He testified that his house had been

"demolished" by the Sri Lankan military, that from 1988 to

1990 he was detained by the IPKF, denied proper food and

forced to wear the same clothing. App. at 191, 197-98. He

also testified that he had been arrested by the Sri Lankan

military in 1992 when the military came to his home and

accused him of being a member of the LTTE. He stated that

he was taken to a military camp where he underwent

torture that included having both hands tied behind his

back, being slapped, and being hit on the head with a bat.

He said members of the military made him undress and

drink his own urine whenever he asked for water. App. at

179-80. Senathirajah also testified about an arrest in

January 1994 in Colombo where he had gone for medical

treatment. App. at 180-183.

When asked about his fluency in English, as suggested

by the averments in his affidavit, Senathirajah replied

"yeah, some, little English." However, he added

"pronunciations" of foreigners "is a little difficult." App. at

6

192. He then stated that he had requested a Tamil

interpreter at the time of his airport interview, but was told

that none was available. Therefore, he proceeded to give the

statement without an interpreter.

Senathirajah testified at his hearing that he signed the

affidavit because he was "scared." He stated that "[t]he

officer told me to sign. The two people the agent brought

were (indiscernible) to sign the document, so I thought if I

sign also, I'll get released. With that intention I signed."

App. at 193. Senathirajah then insisted that he had been

unaware of the contents of the statement before he signed

it. Id.

The immigration judge denied Senathirajah's application

for asylum. We will quote her explanation for doing so at

length because her reasoning is at the heart of our inquiry.

I have observed the demeanor and testimony of the

Applicant, and for the following reasons, I find that his

testimony is not credible. 1) the Applicant has testified

that he was arrested on three different occasions, the

first time being for a period of two years, the second

time for a period of approximately a year and three

months, and on the third occasion for a period of a

year. He stated that the date of the employment as

regards his tutoring profession was indicated in the

Form I-589 as that being from January 1978 until

October 1993 because he had off and on been involved

in this profession for those years. However, it should

be noted the end date of the employment as a tutor as

indicated on the Form I-589 (the asylum application),

part E is that of October 1993. In fact, Applicant has

stated that he was jailed from July 1992 until October

1993. 2) The Applicant has indicated both on direct

examination and, although there was some confusion

as to his testimony on cross examination, the

Applicant had testified that he was in detention from

March of 1988 to March of 1990 by the IPKF. However,

it was only on redirect and upon specific questioning

by the Court that the Applicant testified that in

February of 1989, he was, in fact, for a period of one

month released from the IPKF. He stated that it was by

7

agreement, not physical force,4 that he then returned

back to the IPKF, and that he was then detained up

until March of 1990. There was absolutely no

testimony on direct or cross examination as to this

fact. 3) Although on direct examination the Applicant

stated that he was first arrested in March of 1988,

second arrested in July of 1992 and third arrested in

January of 1994, on cross examination, the Applicant

testified that the next time after his detention with the

IPKF that he had problems in Sri Lanka was in

January of 1994. It should also be noted that on direct

examination, the Applicant testified that he knew"little

English" and that he had requested that a Tamil

interpreter be provided for the questioning by the

inspector. While it may be true that the Applicant may

have had some difficulty in understanding the "foreign"

pronunciation, the response that he knew "little

English" is in direct contradiction to his written

application in the Form I-589 . . . where he indicates

"I am fluent in English." Further, he testified that he

has a degree in the English language, and that in fact

he had worked as an English tutor for a period that

covers over fifteen years. . . .

Immigration Judge Opn. at 10-12.

Then, in an explanation that is nothing short of

astounding for reasons we detail below, the immigration

judge further stated that even if she were to take

Senathirajah's claims as true, she would still find him

ineligible for relief because his suspected membership in

the Tigers, a purported violent group, is valid reason for the

government of Sri Lanka to investigate him. Id. at 13. The

Judge stated "[i]nvestigations as to the criminal conduct of

_________________________________________________________________

4. Senathirajah's actual testimony was that he was told that if he did not

return within a specified time after making funeral arrangements, his

captors told him they would "come and take me. I am the person who

has to do the funeral rights. That's why the village people spoke with the

officer, and the officer released me" subject to the threat of forceful

recapture if he did not return. App. at 219. Thus, the immigration

judge's characterization of Senathirajah's release and return as "by

agreement" is a misleading account of what he actually said.

8

the Tigers is a valid Governmental investigation, and not

persecution." Id. at 12.

The immigration judge was also influenced by

Senathirajah's failure to corroborate his testimony other

than by providing background materials on the conflict in

Sri Lanka, and by what she characterized as a failure to

provide detailed accounts of the abuse that he alleged. She

noted that Senathirajah's affidavit did not include any

discussion of the periods of detention that he testified to at

his asylum hearing.

Furthermore, the Applicant has not provided any

corroboration in support of his testimony other than

generalized background materials. It is also very

troubling to this Court that the Applicant in relaying

the three occasions that he was arrested and detained

has not relayed in any detailed manner the alleged

assaults and tortures. While he did mention that

various acts took place, there was not a detailed

account. It should also be noted that in the sworn

statement taken at the airport the Applicant made

absolutely no mention of the three periods of detention

which allegedly was for a period of over four years. In

fact, during today's hearing, the Applicant stated that

he relayed to the inspector that he had come to the

United States because his work place as well as his

home was destroyed, but he did not testify that he had

relayed any other information as to his detention to the

inspector.

Id. at 13.

The immigration judge ruled that Senathirajah had failed

to satisfy his burden as to both his asylum claim and as to

his withholding of deportation claim. The judge also found

that he had not met his burden of proof under the fraud

component of S 212(a)(6)(C)(I), since she determined that

Senathirajah had given a false name (Chenthilkumaran

Senathirajah)5 to the INS inspector at Kennedy Airport, and

he signed the affidavit using the assumed name.

Accordingly, the judge ordered Senathirajah excluded and

_________________________________________________________________

5. Petitioner's real name is Sittampalam Sundralingam.

9

deported from the United States pursuant to

SS 212(a)(7)(A)(I)(I) and 212(A)(6)(C)(I) of the Immigration Act.

The BIA affirmed the immigration judge's decision. 6 The

Board stated "[w]e do not ordinarily disturb an immigration

judge's credibility finding, and give an immigration judge's

credibility finding significant weight." BIA Opn. at 2 (citing

Matter of V-T-S-, Interim Decision 3308 at 7 (BIA 1997); see

Matter of Burbano, 20 I & N Dec. 872 (BIA 1994). However,

although the BIA affirmed the immigration judge, it

expressed concern over the judge's credibility determination

as the BIA found that Senathirajah sufficiently explained

some of the testimony that caused the judge to doubt his

credibility. Nonetheless, the BIA concluded that the

immigration judge "had substantial grounds for being

unwilling to credit the applicant's account of the events

that form the basis of his claim." Id. The Board was

particularly troubled with Senathirajah's professed difficulty

with English. The Board stated:

[w]e agree with the immigration judge's assessment of

the applicant's claim not to have understood the

pronunciation of the English-speaking Service officer

who examined him upon his attempted entry into the

United States. In this regard we observe that the

applicant testified that he studied English at the

college level (citation omitted). We also observe that in

his Application for Asylum and for Withholding of

Deportation . . . the applicant indicates that he is

fluent in English.

BIA Opn. at 2.

_________________________________________________________________

6. On October 19, 1995, Petitioner filed a Motion to Withdraw Appeal,

stating that the INS had agreed to parole him to Canada where he would

be granted asylum and where he had relatives. App. at 104. On

December 15, 1995, the BIA acknowledged by order that Senathirajah's

appeal was withdrawn. App. at 103. On March 21, 1996, Petitioner filed

a Motion to Reopen with the Immigration judge, stating that on

December 26, 1995, the INS district director had "changed his policy of

paroling individuals to Canada to seek asylum." App. at 91. On April 29,

1996, the Immigration judge denied the Motion to Reopen. App. at 84-

85. The BIA then certified the case to allow consideration of the appeal.

App. at 2-5.

10

The BIA also stated that, despite the lack of detail of the

questions on the sworn statement, "the harm the applicant

claimed to have suffered, also as reflected in the sworn

statement, is not the kind of harm that the applicant's

testimony indicates is the basis of his application for

asylum." Id. The Board then affirmed the decision of the

immigration judge as it found Senathirajah "not a credible

claimant for asylum and withholding of deportation." BIA

Opn. at 3. This appeal followed.

II.

A "refugee" is defined as

any person who is outside any country of such

person's nationality . . . and who is unable or unwilling

to return to, and is unable or unwilling to avail himself

or herself of the protection of, that country because of

persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a

particular social group, or political opinion.

8 U.S.C. S 1101(a)(42)(A) (emphasis added). In the Refugee

Act of 1980, Congress amended the Immigration and

Nationalization Act to include section 208(a). That section

gave the Attorney General discretion to grant asylum to

those who qualify as refugees. It also amended section

243(h) so as to require that deportation be withheld if an

alien "demonstrates a clear probability of harm on account

of one of the enumerated factors." Chang v. INS, 119 F.3d

1055, 1061 (3d Cir. 1997).

One of Congress's primary purposes in enacting the

1980 law was to harmonize United States law with the

United Nations Protocol Relating to the Status of

Refugees ("U.N. Protocol"), to which the United States

became a party in 1968.

Id. (internal quotation marks omitted). The immigration Act

thus requires the Attorney General to determine if an alien

is a refugee. 8 U.S.C. S 1158 (1994). The alien has the

burden of "show[ing] that he qualifies as a refugee . . . ."

Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998).

To qualify as a refugee, an applicant must establish" by

11

objective evidence that it is more likely than not that he or

she will be subject to persecution upon deportation." INS v.

Cardoza-Fonseca, 480 U.S. 421, 430 (1987).

The Attorney General must withhold deportation if the

applicant demonstrates that upon deportation his or her

life or freedom would be threatened on account of one of

the statutorily enumerated factors. 8 U.S.C. S 1253(h);

Chang, 119 F.3d at 1066; see also Balasubramanrim, 143

F.3d at 164 n.10. To meet this test, the alien must

demonstrate that there is a greater-than-fifty-percent

chance of persecution upon his or her return. Vilorio-Lopez

v. INS, 852 F.2d 1137, 1140 (9th Cir. 1987). If the alien

fails to establish that his or her life or freedom will be

threatened upon return so as to require that deportation be

withheld, the Attorney General may still exercise her

discretion and not deport the alien by a grant of asylum

under S 208 of the Immigration Act. The latter requires that

the alien establish a subjective fear of persecution that is

supported by objective evidence that persecution is a

reasonable possibility. Chang, at 1066.

It is obvious that one who escapes persecution in his or

her own land will rarely be in a position to bring

documentary evidence or other kinds of corroboration to

support a subsequent claim for asylum. It is equally

obvious that one who flees torture at home will rarely have

the foresight or means to do so in a manner that will

enhance the chance of prevailing in a subsequent court

battle in a foreign land. Common sense establishes that it

is escape and flight, not litigation and corroboration, that is

foremost in the mind of an alien who comes to these shores

fleeing detention, torture and persecution. Accordingly,

corroboration is not required to establish credibility. The

law allows one seeking refugee status to "prove his

persecution claim with his own testimony if it is credible."

Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996) (citing

Aguilera-Cota v. INS, 914 F.2d 1375, 1379 (9th Cir. 1990)).

Here, Senathirajah claims that the BIA's "adverse credibility

finding is not supported by the record [or] by law."

Petitioner's Br. at 10. We agree.

12

III.

As noted above, the BIA's ruling results in substantial

part from the deference it gave the immigration judge's

decision. However, while affirming the immigration judge's

conclusion as to Senathirajah's credibility, the BIA noted

that it believed some of the immigration judge's skepticism

was not warranted. Nevertheless, the Board affirmed the

decision of the immigration judge even though the Board

believed that "some of the aspects of the applicant's

testimony with which the immigration judge had difficulty

[were] adequately explained by the applicant." App. at 3.7

Nevertheless, the BIA appears to have substantially relied

upon the adverse credibility ruling of the immigration judge

in rejecting Senathirajah's petition. The BIA may defer to

the credibility rulings of an immigration judge who actually

heard the testimony, and observed the witnesses. However,

the BIA is not required to do so, and it ought not to defer

when such deference is not supported by its own

independent review of the record.

Where the immigration judge makes a credibility

determination, the Board can independently assess

that determination and make de novo findings on

credibility. See Damaize-Job v. INS, 787 F.2d 1332,

1338 (9th Cir. 1986) ("The Board has the power to

review the record de novo and make its own findings of

fact.")

Balasubramanrim, at 161.

Here, although the Board did grant some deference to the

immigration judge, it appears that the Board also

conducted an independent examination of the record, and

also concluded that Senathirajah was not credible. We

must sustain the BIA's adverse credibility determination if

there is substantial evidence in the record to support it.

Chang, at 1060; see also Hartooni v. INS, 21 F.3d 336, 340

(9th Cir. 1994); Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st

Cir. 1994). "Substantial evidence is more than a mere

scintilla and is such relevant evidence as a reasonable

_________________________________________________________________

7. In its brief opinion, the BIA did not state to what it was referring

when

it made this statement.

13

mind might accept as adequate to support a conclusion."

Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987). An

immigration judge who "rejects a witness's positive

testimony because in his or her judgment it lacks

credibility should offer a specific, cogent reason for [his or

her] disbelief." Turcios, 821 F.2d at 1399 (citation and

internal quotations omitted). We "evaluate those reasons to

determine whether they are valid grounds upon which to

base a finding that the applicant is not credible." Vilorio-

Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) (citing

Damaize-Job v. INS, 787 F.2d 1332, 1337-78 (9th Cir.

1986)).

The Board's credibility determination was based upon the

following factors: (1) it disbelieved Senathirajah's testimony

that he could not understand English as spoken by the INS

inspector since Senathirajah testified that he had studied

English at the college level and had stated on his asylum

application that he was fluent in English; (2) Senathirajah

did not "specifically claim that the Record of Sworn

Statement . . . misrepresents his actual statement to the

examining Service officer.";8 and (3) the harm that

Senathirajah claimed that he suffered in his sworn

statement or affidavit was not the same as that which he

testified was the basis of his asylum application. BIA Opn.

at 2.

The circumstances of Senathirajah's petition are quite

similar to those that were before us in Balasubramanrim.

There, the petitioner was also a Tamil from Sri Lanka

seeking asylum and withholding of deportation. In ruling

upon Balasubramanrim's petition for review, we noted the

persecution facing residents of Sri Lanka who were

identified as being Tamil, and the historical roots of

that oppression. See Balasubramanrim, at 159.

Balasubramanrim "claim[ed] to have been arrested,

detained, and tortured on several occasions by the armed

forces of the Sri Lankan government, the Indian

peacekeeping forces and the Liberation Tigers."

Balasubramanrim, at 159. Balasubramanrim also claimed

_________________________________________________________________

8. In fact, the BIA considered Petitioner's testimony as a confirmation of

the accuracy of the sworn statement. BIA Opn. at 2.

14

that he would be subject to additional detention and torture

if he returned to Sri Lanka because he was Tamil. On his

application he stated that the following events occurred

before he left Sri Lanka:

1. In March 1988, he was arrested by the Indian

Peacekeeping Forces and taken to a camp where he

was accused of being a Tiger and beaten;

2. In November 1989, he was again arrested . . .

because he refused to join the ranks of one of the

political fighting forces, was tortured for an entire day,

and remained in custody for five days;

3. In March 1990, the Tigers arrested him for 10 d ays

and accused him of being an informant for the Indian

Peacekeeping Forces, a charge which he claims was

untrue;

4. In 1991, his brother disappeared after being

arrested by the Sri Lankan army;

5. In 1993, his father was killed by Sri Lankan air

bombs;

6. In October 1993, he fled northern Sri Lanka but

was arrested for failing to register in the new area;

7. Also in October 1993, after accusing

Balasubramanrim of being a Tiger, the Sri Lankan

army arrested, detained and tortured him for one year

and ten days; eventually, his wife bribed the army for

his release;

8. In late 1994, Sri Lankan armed forces arrested him

at the airport as he was trying to leave the country

with his family, and he was detained and tortured for

four months and ten days.

Id. After the `94 arrest, Balasubramanrim left Sri Lanka

using a fake Canadian passport, ultimately arriving at

Kennedy Airport. There, INS officials interviewed him in

English without the aid of a translator. The result of this

encounter was a handwritten document with 25 questions

and answers about Balasubramanrim's past and his

reasons for seeking asylum.

15

Thereafter, Balasubramanrim appeared before an

immigration judge where he told of the atrocities that he

had endured. The immigration judge found him

"excludable, denied his application for asylum and

withholding of deportation, and ordered him deported to Sri

Lanka." Id. at 160. The judge concluded that

Balasubramanrim had not been truthful about his "prior

arrests and his fears about returning to Sri Lanka. The [ ]

judge also expressed doubts about his credibility because

Balasubramanrim did not look at him while testifying and

instead stared straight ahead `as though in a trance.' " Id.

The BIA affirmed the immigration judge's decision

because of perceived inconsistencies between

Balasubramanrim's testimony at the hearing and his

airport statement.

However, we concluded that Balasubramanrim's airport

interview did not necessarily accurately reflect the

persecution that he suffered in Sri Lanka, nor the danger

he would face if he were forced to return. We expressed

concern that: (1) the handwritten record of the airport

interview may not be reliable since "[w]e [did] not know how

the interview was conducted or how the document was

prepared"; (2) the airport statement was not an application

for asylum; (3) an arriving alien may, because of past

interrogation, be unwilling to disclose much information to

government officials; and (4) the BIA may not have

accurately assessed Balasubramanrim's English skills. Id.

at 162-63.

We thus concluded that any discrepancy between

Balasubramanrim's airport statement and his testimony

was insufficient, by itself, to support the BIA's finding that

the petitioner was not credible. Id. at 164 (citing Aguilera-

Cota, 914 F.2d at 1382). We recognized that the BIA did not

pursue Balasubramanrim's asylum and withholding of

deportation claims because of its adverse credibility finding.

However, " `[i]n the absence of substantial evidence

supporting a finding of adverse credibility, the BIA is

required explicitly to consider a petitioner's claims for

asylum and withholding of deportation.' " Id. at 165

(quoting Mosa, 89 F.3d at 605).

16

We therefore granted Balasubramanrim's petition and

remanded the case to the BIA with further instruction to

remand to the immigration judge for a determination of

Balasubramanrim's asylum and withholding of deportation

claims "without reliance on the adverse credibility finding."

Id. Specifically, we held that "because of ambiguities in the

airport statement and the circumstances under which it

was made, that statement does not provide sufficient

evidence to support the adverse credibility determinations

upon which the immigration judge and BIA denied the

petition." Id.

Here, as in Balasubramanrim, the immigration judge and

the BIA gave far too much weight to the affidavit taken

during Senathirajah's airport interview. The government

offered no testimony as to the circumstances under which

that affidavit was obtained, or whether it was necessary to

use sign language and/or gestures to communicate with

Senathirajah. It is uncontested that he asked for an

interpreter before he gave the affidavit and none was

provided. As in Balasubramanrim, the affidavit here was not

an application for asylum, and it should neither have been

treated as such, nor read with the exacting eye that the BIA

might use to examine statements that accompany Form I-

589. By placing too much reliance on an airport interview

under the circumstances here, and ignoring more detailed

accounts in Form I-589 as well as testimony at an asylum

hearing, the INS seriously undermined the reliability of the

administrative process. Given Senathirajah's allegations of

torture and detention, he may well have been reluctant to

disclose the breadth of his suffering in Sri Lanka to a

government official upon arriving in the United States even

if he could understand the questions he was being asked at

the airport.

The BIA affirmed the ruling of the immigration judge

primarily because it agreed with the judge's conclusion that

Senathirajah was fluent in English and could therefore be

held to the statements in the affidavit and the apparent

inconsistencies between those statements, the averments in

Form I-589, and his later testimony at his asylum hearing.

However, neither the BIA nor the immigration judge

considered the limitations of the airport interview.

17

Moreover, Form I-589 allows for only two choices when

inquiring about an applicant's facility with English. It asked

only if Senathirajah was fluent, with no attempt to inquire

into various degrees of proficiency one may have with a

foreign language.9 Furthermore, neither the BIA nor the

immigration judge appears to have given any consideration

to the difficulty someone from Sri Lanka may have in

understanding "American English," particularly under the

stressful circumstances of entry into a new country. 10

During the asylum hearing, Senathirajah testified as

follows:

Q: Did you complete high school?

A: Yes.

Q: Did you complete college?

A: I went to advanced level.

Q: I'm sorry, to what?

A: To advanced level, advanced level.

Q: Of college?

A: There they say college is still advanced level. College

is university. They say that university.

Q: So you went to university?

A: I went for community college.

. . . .

_________________________________________________________________

9. The asylum application asks that the applicant select one of two

choices identifying his language facility. The application states:

17. Native Language: a. __ I am fluent in English.

b. __ I am not fluent in English, but I am

fluent in Tamil.

10. Sri Lanka, which until 1972 was known as Ceylon, became an

independent nation in 1948, after almost 150 years of British colonial

rule. Consequently, the English taught to Sri Lankans is more than

likely not of a vernacular commonly used in the United States. It seems

no stretch, then, to assume that Petitioner might have needed an

interpreter even if he technically "spoke the same language" as the INS

inspector.

18

Q: . . . . What was your major, what was your course

of study?

A: Diplomat and English.

App. at 195-96. Although it is not clear if Senathirajah

meant to say that he had a "diploma" in English, or if he

meant to say he studied "diplomacy" and English, it is clear

that he had significant trouble in both speaking and

understanding English during the asylum hearing. One

cannot read the transcript from that hearing without

realizing that there was significant difficulty communicating

with Senathirajah even with the presence of a Tamil

interpreter. For instance, though the immigration judge and

BIA placed substantial reliance on Senathirajah's testimony

that he had "tutored" English, throughout his testimony he

continually used "tuition" for "tutor" thus illustrating far

more significant difficulty with the language than either the

immigration judge or the BIA realized. For example

Senathirajah declared:

Sometimes I go to houses and give tuition to

students at their place. Sometime -- it's a private

tutoring. That's why (indiscernible).

***

It was often I was giving tuition when I was detained.

Then afterwards when I come from detention then I

went to tuition.

***

In the application I put total (indiscernible), but I was

given (indiscernible). Because the tuition work I was

doing was not profit. Same time I was detained, and

then I come back from detention, then I give tuition.

App. at 60, 63. Nevertheless, when asked "are you fluent in

English?", Senathirajah responded: "Yeah, some, little

English." Id. at 53. It is clear from the transcript that

whatever Senathirajah thought "fluent" meant, his facility

with English is less than one might expect from the use of

that term. It is clear that his ability to speak and

understand the language is not without difficulty.

19

Senathirajah argues that "advanced levels" in the British

educational system in Sri Lanka translates into the first

year of undergraduate studies in the United States. Letter

from Chin Wei Fong, Attorney for Petitioner, 5/14/98, p.2.

The government offered no evidence at the hearing to

establish that Senathirajah's level of education would have

allowed him more proficiency with English than he

admitted to. It is undisputed that Senathirajah requested

an interpreter when he arrived at the airport but that none

was available. Although he signed the affidavit, we are

unimpressed with the affidavit's reliability, or probative

value. Senathirajah's testimony that he provided the

interview after being kept at the airport for "three or four

hours without water or food . . . I was feeling faintish," App.

at 54, was not rebutted. Yet, the immigration judge and the

BIA held Senathirajah to a level of proficiency in English

that is inconsistent with his request for an interpreter, the

circumstances under which the affidavit was taken, or with

the transcript of the asylum hearing.

Moreover, we believe that it is irrelevant that

Senathirajah does not assert that the affidavit

misrepresents his actual statement at the airport.

Senathirajah claims that the affidavit is incomplete because

of ambiguous and incomplete questioning that did not

effectively elicit information relevant to a subsequent claim

for asylum and withholding of deportation. We agree. The

following exchange is illustrative.

Q: Would it be a burden if you had to leave/depart to

Sri Lanka at this time?

A: My house was burned by the Sri Lankan army and

I am coming for political asylum in Canada.

App. at 227. The inspector's next question was:"Do you

have any friends or relatives here in the U.S?" Id.

Senathirajah argues that had the inspector asked a more

precise question--perhaps a question about persecution

rather then whether he had any relatives or friends--the

inspector would have elicited a more complete account of

the suffering that Senathirajah had suffered in the past and

the likelihood of future suffering. In Balasubramanrim, we

noted that the immigration judge also placed too much

20

reliance upon an airport interview where, after

Balasubramanrim stated he would be killed if he returned

home, "the next question was: `How did you get to the U.S.

from Sri Lanka?' " Balasubramanrim, at 163.

The BIA affirmed the immigration judge's credibility

finding partly on the ground that the harm that

Senathirajah mentioned in the affidavit (his house being

burned) was not the same as that mentioned during his

testimony (arrests, detentions and physical abuse).

However, there is nothing inconsistent in those two

responses. At the airport, Senathirajah was asked if"it

would be a burden" to return to Sri Lanka. He responded

that his house had been burned down. Surely, having one's

house burned down results in a burden. Senathirajah's

statement that his house had been burned does not negate

his subsequent testimony that he had been tortured during

periods of detention. His statement regarding the burning

of his home is responsive to the question he was asked. It

is clearly a burden for one who is homeless to have to

return home. At the hearing, neither the government nor

the immigration judge asked Senathirajah why he did not

tell the INS inspector about his detention or torture in Sri

Lanka. It is unfair to fault him for not volunteering that

information in response to the questions the INS inspector

asked.

Similarly, the immigration judge discredited

Senathirajah's testimony because he did not give a detailed

account of what he had endured either during his airport

interview or during his testimony. The judge stated:

It is also very troubling to this Court that the Applicant

in relaying the three occasions that he was arrested

and detained has not relayed in any detailed manner

the alleged assaults and tortures. While he did mention

that various acts took place, there was not a detailed

account. It should also be noted that in the sworn

statement taken at the airport the Applicant made

absolutely no mention of the three periods of detention

which allegedly was for a period of over four years. In

fact, during today's hearing, the Applicant stated that

he relayed to the inspector that he had come to the

United States because his work place as well as his

21

home was destroyed, but he did not testify that he had

relayed any other information as to his detention to the

inspector.

Opn. at 13. Taking these concerns in turn we again note

that Senathirajah answered those questions he was asked

at the hearing. He told of being forced to drink his own

urine when he asked for water, being kicked, and beaten on

the head with a baseball bat. If the immigration judge

wanted greater detail she should have asked appropriate

follow up questions that may have elicited it. Thus, the

immigration judge and the BIA ignore the most obvious

reason for Senathirajah's purported failure to provide

greater detail. He was not asked. When asked about the

details of his detention, he told of beatings, and being

forced to drink his own urine. We do not understand what

further detail the immigration judge expected, and we

surely can't fault Senathirajah for not knowing. Our review

of the affidavit reveals no question that would have elicited

any information about detention in Sri Lanka, let alone

torture and persecution.

The immigration judge conceded that Senathirajah "may

have had problems in understanding the oral language,"

Opn. at 12, when she discussed the answers he gave the

INS inspector at the airport. Yet, she dismissed that

possibility by concluding "he has signed a document. That

is the Applicant had ample opportunity to review the

question and answers that were written on [the affidavit]."

Id. However, if Senathirajah did not understand the

questions that were asked of him, it is irrelevant that he

had time to review the response that the inspector

attributed to him. In addition, as noted above,

Senathirajah's testimony of the circumstances under which

he gave the written statement remain uncontroverted.

Finally, the immigration judge and BIA placed too much

weight upon the fact that Senathirajah's written statement

contained time frames that are not identical to those he

testified to. "Minor inconsistencies in the record such as

discrepancies in dates which reveal nothing about an

asylum applicant's fear for his safety are not an adequate

basis for an adverse credibility finding." Vilorio-Lopez, 852

F.2d at 1141. For example, the immigration judge was

22

troubled by Senathirajah's testimony that he was employed

as a "tutor" during the time he was purportedly detained.

Yet, his testimony was that he was self-employed and

provided "tutoring" part time, and that he resumed tutoring

upon his release. Thus, he may have well viewed himself as

a tutor even though he was detained. He testified:"I was

often I was giving tuition when I was detained. Then

afterwards when I come from detention I went to tuition."

App. at 199.

The asylum process ought to be a determination of

whether someone is entitled to either a withholding of

deportation, or a discretionary grant of asylum. It is a

process that Congress has enacted, at least in part, to align

the immigration laws of the United States with the law of

nations. See Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir.

1996) ("[T]he Refugee Act brought the domestic laws of the

United States into conformity with its treaty obligations

under the United Nations Protocol Relating to the Status of

Refugees"). The procedures for requesting asylum and

withholding of deportation are not a search for a

justification to deport. Justice requires that an applicant

for asylum or withholding of deportation be afforded a

meaningful opportunity to establish his or her claim.

Deportation is always a harsh measure; it is all the

more replete with danger when the alien makes a claim

that he or she will be subject to death or persecution

if forced to return to his or her home country. In

enacting the Refugee Act of 1980 Congress sought to

give the United States sufficient flexibility to respond to

situations involving political or religious dissidents and

detainees throughout the world.

INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (internal

quotation marks omitted). We do not operate under any

rule that prevents an asylum applicant from elaborating

upon the circumstances underlying an asylum claim when

given the opportunity to take the witness stand.

Before concluding our discussion of the merits of

Senathirajah's petition for review, it is necessary for us to

clarify a misconception expressed by the immigration judge.

As noted above, the immigration judge concluded that she

23

would deny Senathirajah's application even if he were

credible because "[i]nvestigations as to the criminal conduct

of the Tigers is a valid Governmental investigation, and not

persecution." Op. at 12. Although claims of torture, without

more, do not afford Senathirajah the relief he seeks here,

we emphasize that torture does not constitute valid

governmental investigation, and conduct such as beatings

with bats, and forcing one to drink one's own urine when

thirsty ought not to be mistaken for legitimate

governmental investigations by any judge.

In light of the universal condemnation of torture in

numerous international agreements, and the

renunciation of torture as an instrument of official

policy by virtually all of the nations of the world (in

principle if not in practice), we find that an act of

torture committed by a state official against one held in

detention violates established norms of the

international law of human rights, and hence the law

of nations.

Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2nd Cir,. 1980).

See also Universal Declaration of Human Rights, General

Assembly Resolution, 217 (III)(A)(Dec. 10, 1948) ("no one

shall be subjected to torture"), American Convention on

Human Rights, Art. 5, OAS Treaty Series No. 36 at 1, OAS

Off. Rec. OEA/Ser 4 v/II 23, doc 21, rev.2. (English ed.

1975) ("No one shall be subjected to torture or to cruel,

inhuman or degrading punishment or treatment"). The

immigration judge's proclamation was apparently based

upon her belief that the Tigers were a subversive

organization and that "legitimate" forces in Sri Lanka

therefore had a right to investigate. However, there is

absolutely no evidence in this record that Senathirajah was

a member of the Tigers, and even if he was, we disagree

with the immigration judge's belief that the Sri Lankan

government could use torture as part of its investigation

into his activity.11 "Although torture was once a routine

_________________________________________________________________

11. Our holding in Balasubramanrim establishes that the treatment of

the Tamil in Sri Lanka, and the persecution that has resulted from the

activities of the Tigers could be sufficient to support a claim for asylum

or withholding of deportation. However, that decision was after

Senathirajah's asylum hearing and the immigration judge here did not

have the benefit of that discussion.

24

concomitant of criminal interrogations in many nations,

during the modern and hopefully more enlightened era it

has been universally renounced. According to one survey,

torture is prohibited, expressly or implicitly, by the

constitutions of over fifty-five nations. . . ." Pena-Irala, 630

F.2d at 884.

IV.

For the reasons set forth above, we conclude that the BIA

did not have substantial evidence for its finding of adverse

credibility. We therefore hold that the BIA erred in affirming

the decision of the immigration judge. Thus, we will remand

this case to the BIA with instructions that the matter be

remanded to the immigration judge, for a ruling on

Senathirajah's asylum and withholding of deportation

claims without consideration of the prior adverse credibility

findings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

25