Balasubramanrim v. INS

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

5-1-1998

Balasubramanrim v. INS

Precedential or Non-Precedential:

Docket 97-3424

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Filed May 1, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3424

ARAVINTHAN BALASUBRAMANRIM,

Petitioner

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Board No. A73 489 747)

Argued March 10, 1998

Before: GREENBERG, SCIRICA and ALDISERT,

Circuit Judges

(Filed: May 1, 1998)

VISUVANATHAN RUDRAKUMARAN,

ESQUIRE (ARGUED)

875 Avenue of the Americas,

Suite 500

New York, New York 10001

Attorney for Petitioner

PAULINE TERRELONGE, ESQUIRE

(ARGUED)

DAVID V. BERNAL, ESQUIRE

SUSIE CHO, ESQUIRE

CHRISTOPHER C. FULLER,

ESQUIRE

MICHAEL P. LINDEMANN, ESQUIRE

MADELINE HENLEY, ESQUIRE

United States Department of Justice

Office of Immigration Litigation

Civil Division

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys of Respondent

OPINION OF THE COURT

SCIRICA, Circuit Judge.

Aravinthan Balasubramanrim petitions for review of an

order of the Board of Immigration Appeals denying his

application for asylum and withholding of deportation.

The Board, with one member dissenting, found

Balasubramanrim's testimony before the immigration judge

was not credible because it was inconsistent with

information he gave to Immigration and Naturalization

Service officials at the airport upon entry into the United

States. Because this credibility finding was not supported

by substantial evidence, we will grant the petition.

I.

Balasubramanrim, a Sri Lankan citizen of Tamil

ethnicity, was born on February 19, 1969, in a province in

the northern part of Sri Lanka. In support of his asylum

and withholding of deportation application, he submitted

substantial documentary evidence concerning recent

political and social developments in Sri Lanka. This

documentary evidence supports his claim that some Tamils

in Sri Lanka are subject to mistreatment at the hands of

both government and anti-government forces.

2

Since 1987, civil unrest has disrupted life in Sri Lanka.

The conflict stems primarily from tensions between the

minority Tamils and the majority Sinhalese.1 In an effort to

establish an independent Tamil state in the north, the

Liberation Tigers of Tamil Eelam have been in armed

conflict with the government and Indian peacekeeping

forces since 1987.2 Although the Liberation Tigers have

succeeded in controlling much of the Northern Province

and parts of the Eastern Province, not all Tamils support

them. In fact, the Eelam People's Democratic Party, the

People's Liberation Organization of Tamil Eelam and the

Tamil Eelam Liberation Organization all cooperate with the

government security forces.

Since the conflict erupted, both government forces and

Liberation Tiger rebels have committed human rights

violations. According to a 1995 report of the State

Department's Bureau of Human Rights and Humanitarian

Affairs, both sides mistreat prisoners and arrest suspected

opponents on an arbitrary basis. Young male Tamils like

Balasubramanrim are most often the target of this abuse.

According to the State Department, most Sri Lankan

asylum claimants in the United States are Tamil males

between the ages of 20 and 36, and they generally allege

mistreatment at the hands of the Sri Lankan authorities

and the Liberation Tigers.

In his application for asylum, Balasubramanrim claims

he was a victim of these abuses and that if he returns to

Sri Lanka he will again be persecuted. Balasubramanrim

claims 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. Specifically, in his application,

_________________________________________________________________

1. About 18% of Sri Lanka's population is Tamil while 74% is Sinhalese.

The Tamils are predominantly Hindu while the Sinhalese are

predominantly Buddhist.

2. In July 1987, the Government of Sri Lanka entered an agreement with

the Government of India under which India stationed forces in Sri Lanka

through March, 1990. Although initially the Indian forces were able to

maintain a low level of violence, fighting broke out between the Indians

and the Liberation Tigers in 1988 and 1989.

3

Balasubramanrim described the following events: (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 (the administrative record is unclear on who

arrested him) 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 days 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.3

Shortly thereafter, Balasubramanrim left Sri Lanka by

using a false Canadian passport. He went to Singapore,

then Malaysia, then London, and finally to the United

States. Balasubramanrim arrived at John F. Kennedy

Airport on April 6, 1995. Upon arrival, INS officers

interviewed him in English without a translator. The only

record we have of this interview is a document consisting of

25 hand-printed questions and answers. We do not know

how the interview was conducted or how the document was

prepared. The transcript reads in part:

(3) Q. When and where were you born?

A. 2/19/69 Jaffna, Sri Lanka.

(7) Q. Why are you coming to the U.S. today?

A. today I am going to Toronto

_________________________________________________________________

3. Balasubramanrim's wife and child successfully fled to Canada where

they were given refugee status.

4

(13) Q. What was your occupation in Sri Lanka?

A. I owned a grocery market.

(14) Q. So if you owned a grocery market why are you

going to Toronto?

A. I go for two months to visit my family and I go

back to Sri Lanka. No I stay in Toronto.

(15) Q. Why will you stay in Toronto and not go back

to Sri Lanka?

A. I go to jail if I go back to Sri Lanka - I have

problems with LTT - Liberation Tigers of Tamil

and Sri Lanka government an police and military

because I have business problems and my

brother plots against the government.

(17) Q. What would happen if you returned to Sr i

Lanka?

A. The will kill me.

(18) Q. How did you get to the U.S. from Sri La nka?

A. I left Sri Lanka one month ago - first I went to

Singapore for 15 days then to Malaysia for 14

days - then to London for 1 day - then to here.

(22) Q. Have you or anyone in your family ever been

arrested?

A. my brother, military and police arrested him -

for being with a group of people - I have never

been arrested.

(25) Q. Is anything else you want to add to thi s

statement?

A. I was arrested also, by LTT [Liberation Tige rs

of Tamil Ealan], they kept me for 10 (Ten) days.

After I gave them money they let me go -$12,000

Sri Lanka Rubies.

(errors reproduced). Balasubramanrim signed the transcript

on each page and also signed under a declaration which

the INS officials had written: "I have had the foregoing

statement read to me in English and have understood and

answered all the questions voluntarily, and I swear my

statement is the truth." Id. at 193.

Subsequently, Balasubramanrim appeared before the

5

immigration judge. Consistent with his application for

asylum and withholding of deportation, Balasubramanrim

testified about numerous instances of mistreatment at the

hands of the Sri Lankan government and the Liberation

Tigers. But on August 29, 1995, the immigration judge

found Balasubramanrim excludable,4 denied his application

for asylum and withholding of deportation, and ordered him

deported to Sri Lanka. The immigration judge concluded

that Balasubramanrim had not told the truth about his

prior arrests and his fears about returning to Sri Lanka.5

The immigration judge also expressed doubts about

Balasubramanrim's credibility because he did not look at

_________________________________________________________________

4. The Immigration Judge found Balasubramanrim excludable because

he had no valid immigration visa, 8 U.S.C. SS 1182(a)(7)(A)(i)(I) (1994);

was a nonimmigrant without a valid passport, 8 U.S.C.

S 1182(a)(7)(B)(i)(I); and had no valid nonimmigrant visa or border

crossing card, 8 U.S.C. S 1182(a)(7)(B)(i)(II). Balasubramanrim does not

appeal these findings.

5. In questioning Balasubramanrim, the immigration judge said:

Q: Sir, reading your affidavit, your affidavit question was have

you

or any of your family been arrested. You state my brother was

arrested for being with a, can't read the word, but the -- what I'm

getting at, the next sentence. I have never been arrested. You told

the Immigration officers at the airport that you were never

arrested?

A: I told them that I have a brother who is in (indiscernible)

arrested. He was arrested by the Army, police and PLAT.

Q: Did you tell -- hello, did you tell the Immigration officers at

the

airport that you were never arrested, yes or no? Yes or no, sir?

Yes

or no?

A: No.

Q: So they just made this up?

A: I told them I was not arrested in (indiscernible).

Q: Did you tell the Immigration officers that you can't go back to

Sri Lanka because you have business problems, and because of

your brother's plots against the government, yes or no? Yes or no

sir?

A: If I have said anything, that means I did not understand.

6

him while testifying and instead stared straight ahead "as

though in a trance." Balasubramanrim appealed. 6

The Board conducted an independent review of

Balasubramanrim's credibility and upheld the judgment of

the immigration judge. The Board did not put any stock in

the immigration judge's reliance on Balasubramanrim's

failure to make eye contact7 but nevertheless found him not

credible and on July 10, 1997 dismissed his appeal. The

Board was particularly troubled by what it saw as

inconsistencies between Balasubramanrim's testimony at

the hearing and his airport statement. As noted, one board

member dissented.

II.

The Board had jurisdiction under 8 C.F.R. SS 3.1(b),

3.1(c) and 236.7 (1997). We have jurisdiction under 8

U.S.C. S 1105a, as amended by the transitional changes in

judicial review set forth in S 309(c) of the Illegal Immigration

Reform and Immigrant Responsibility Act (IIRIRA) of 1996,

Pub. L. No. 104-208, 110 Stat. 3009. On August 6, 1997,

Balasubramanrim filed a timely petition for review as

required by S 309(c).

Whether an asylum applicant has demonstrated a well-

founded fear of persecution is a factual determination

reviewed under the substantial evidence standard. Chang v.

INS, 119 F.3d 1055, 1060 (3d Cir. 1997). We will uphold

the agency's findings of fact to the extent they are

"supported by reasonable, substantial, and probative

evidence on the record considered as a whole." INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992) (citing 8 U.S.C.

_________________________________________________________________

6. While the appeal to the Board was pending, the INS agreed to parole

Balasubramanrim to Canada, where his family resides, and

Balasubramanrim withdrew his appeal. Later, according to

Balasubramanrim, the INS changed its policy and would not parole him

to Canada. Subsequently, the Board allowed him to reinstate his appeal.

7. Specifically, the Board stated: "the Immigration Judge's perception of

the applicant's `body language' at the hearing is not a matter on which

we place any significant weight, as such behavior is amenable to varying

explanations."

7

S 1105a(a)(4)). Likewise, adverse credibility determinations

are reviewed for substantial evidence. Hartooni v. INS, 21

F.3d 336, 340 (9th Cir. 1994); Cordero-Trejo v. INS, 40 F.3d

482, 487 (1st Cir. 1994).

III.

A.

Under the asylum statute, 8 U.S.C. S 1158 (1994), if the

Attorney General determines that an alien is a refugee

within the meaning of 8 U.S.C. S 1101(a)(42)(A) (1994), the

Attorney General has the discretion of granting the alien

asylum. 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).8 Thus, Balasubramanrim has the

burden to show that he qualifies as a refugee because he

was persecuted in the past or has a "well-founded fear" of

future persecution on the ground of, inter alia, political

opinion, which is the basis of his appeal.

B.

Where the immigration judge makes a credibility

determination, the Board can independently assess that

_________________________________________________________________

8. In addition, Balasubramanrim applied for withholding of deportation.

Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. S 1253(h)

(1994), requires withholding of deportation of an alien "if the Attorney

General determines that such alien's life or freedom would be threatened

in such country on account of race, religion, nationality, membership in

a particular social group, or political opinion." Eligibility for

withholding

of deportation under section 243(h) of the INA involves a stricter

standard ("clear probability") than eligibility for asylum. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987).

8

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, including credibility

determinations."). In this case, the Board conducted such

an assessment and found Balasubramanrim not credible.

As noted, we review the Board's adverse credibility

determination for substantial evidence. Hartooni, 21 F.3d at

340. "The Board's findings ... must ... be set aside when the

record before a Court of Appeals clearly precludes the

Board's decision from being justified by a fair estimate of

the worth of the testimony of witnesses or its informed

judgment on matters within its special competence or

both." Universal Camera Corp. v. NLRB, 340 U.S. 474, 490

(1951). Though we defer to reasonable inferences drawn by

the Board from conflicting evidence, "deference is not due

where findings and conclusions are based on inferences or

presumptions that are not reasonably grounded in the

record, viewed as a whole." Cordero-Trejo, 40 F.3d at 487

(citations omitted).

The Board should give specific reasons for its

determination that a witness is not credible. Mosa v.

Rogers, 89 F.3d 601, 604 (9th Cir. 1996). We must

"evaluate those reasons to determine whether they are valid

grounds upon which to base a finding that the applicant is

not credible." Id. (citations omitted). The reasons must bear

a legitimate nexus to the finding. Id. (citations omitted).

In concluding that Balasubramanrim was not credible,

the Board focused on perceived inconsistencies between

information Balasubramanrim gave to INS officers at the

airport and his testimony before the immigration judge.

Although there are some inconsistencies, we do not believe

that the airport statement in this case provides a valid

ground upon which the Board could base its finding that

Balasubramanrim was not credible.

The INS officers interrogated Balasubramanrim at the

airport. As noted, the only record we have of this interview

is a document consisting of 25 hand-printed questions and

answers.

The document includes the following:

9

(22) Q: Have you or anyone in your family been

arrested?

A: My brother, military and police arrested him--

for being with a group of people--I have never

been arrested.

* * *

(25) Q: Is there anything else you want to add to this

statement?

A: I was arrested also, by LTT, they kept me for

10 (ten) days. After I gave them money they let

me go--$12,000 Sri Lanka Rubies.

After comparing this statement to the testimony

Balasubramanrim gave before the immigration judge, the

Board stated: "The applicant's airport statement is not

consistent with his story of serious mistreatment by the Sri

Lankan military over a prolonged period." The Board

questioned why, if Balasubramanrim had actually been

mistreated on multiple occasions, he did not relate all these

incidents to the INS officers at the airport.

Yet an examination of the record reveals that

Balasubramanrim's airport interview may not represent an

accurate account of the persecution he suffered in Sri

Lanka. If this is so, then, under the fact of this case, the

Board placed undue reliance on the airport interview.

The following factors are relevant. First, the hand written

record of the airport interview in this case may not be

reliable. We do not know how the interview was conducted

or how the document was prepared. We do not know

whether the questions and answers were recorded

verbatim, summarized, or paraphrased. We cannot tell from

the document the extent to which Balasubramanrim had

difficulty comprehending the questions, whether questions

had to be repeated, or when and how sign language was

used. Nor does the document reveal whether

Balasubramanrim's responses actually correspond to those

recorded or whether the examiner recorded some distilled

or summary version based on his best estimation of the

response.

Second, the airport statement is not an application for

asylum. The questions posed were not designed to elicit the

10

details of an asylum claim, and it appears the airport

examiner in this case had no interest in developing the

details of a potential asylum claim. For example, at one

point, the following exchange took place:

(17) Q. What would happen if you returned to Sri

Lanka?

A. The (sic) will kill me.

But remarkably there was no follow up question. The

examiner did not inquire who would kill Balasubramanrim

or why. The next question was: "How did you get to the

U.S. from Sri Lanka?" In addition, the airport statement

itself contains inconsistent responses that the INS examiner

did not clarify. For example, the examiner asked

Balasubramanrim if he had ever been arrested, and,

according to the handwritten document, he said that he

hadn't. Later, in response to another question,

Balasubramanrim told the INS officers: "I was also arrested

by the LTT, they kept me for 10 days, after I gave them

money, they let me go." But this apparent inconsistency

was never explored. Nor was Balasubramanrim's use of the

word "also", which might imply there was more than one

arrest.9

Third, an arriving alien who has suffered abuse during

interrogation sessions by government officials in his home

country may be reluctant to reveal such information during

the first meeting with government officials in this country.

Similarly, when the arriving alien is not proficient in

English and no translator is provided, the airport interview

may not elicit all the events which are central to an asylum

claim.

Our recent case, Marincas v. Lewis, 92 F.3d 195 (3d Cir.

1996), is instructive. In Marincas, we found the asylum

_________________________________________________________________

9. Unfortunately, Balasubramanrim's attempt to explain the lack of

arrest information in the airport statement is marked "indiscernible" in

the asylum hearing transcript. When the immigration judge questioned

Balasubramanrim concerning his statement that he had never been

arrested or detained and that he was in trouble because of his brother's

activities, he responded: "I told them that I was not arrested in

(indiscernible)." We are left guessing as to this critical aspect of the

credibility determination in this case.

11

procedure afforded stowaways inadequate because there

was no translator and no mechanism to ensure accurate

recording of their statements to assure a fair review

process. Id. at 204. Balasubramanrim, unlike the

stowaways in Marincas, received a full adversarial hearing

before an immigration judge and had the assistance of an

attorney at that hearing. But in carefully scrutinizing

Balasubramanrim's initial statements at the airport, the

Board treated that interview like an initial application for

asylum. Furthermore, the airport statement procedure here

suffers from some of the same defects as did the stowaway

proceedings invalidated in Marincas. Balasubramanrim did

not have a translator at the airport interview. Nor do we

have any confidence that the interview was accurately

recorded. At least in Marincas the stowaways were informed

that they were being afforded the opportunity to present

their claim for asylum and were questioned specifically as

to their past persecution or well-founded fear of future

persecution. No such notice was provided in this case.

Finally, we are not confident the Board made an accurate

assessment of Balasubramanrim's English skills. In

reaching its credibility determination, the Board relied

heavily on its conclusion that Balasubramanrim knew a

"fair amount of English" at the time of the airport interview.

Yet looking at the record, it is difficult to see the basis for

this conclusion.

Balasubramanrim maintains that he knew very little

English at the time of the airport interview and that this

accounts in large part for his failure to tell the INS officers

about his mistreatment in Sri Lanka. When the

immigration judge asked Balasubramanrim what he said

when questioned at the airport, Balasubramanrim

responded, "I don't understand what they ask me." When

asked whether he understood the airport statement that he

signed and whether an oath was administered before he

signed it, Balasubramanrim replied: "I don't understand

English, so I don't know." Finally, when the immigration

judge asked him about the airport statement,

Balasubramanrim replied: "I don't understand that much of

English. So what I do understand, I said yes. Whatever I

didn't understand, I said no. But most of the time it was

12

like sign language. So they were asking me in sign, so I was

signing back."

The Board dismissed this argument, noting that

Balasubramanrim was able to convey a great deal of

accurate information. The Board concluded:

[A]s the applicant was able to communicate

[information about dates and places he had been]

accurately, and was able to communicate his brother's

detention by the LIBERATION TIGERS of 10 days, we

do not find that the immigration judge erred in

concluding that the applicant should also have been

able to communicate his other, more significant,

detentions he claimed at the hearing; i.e. his detention

for 1 year and 10 days, and another 4 months by the

Sri Lankan Armed Forces.

The Board also found that at his hearing,

Balasubramanrim on several occasions answered questions

posed to him in English without waiting for the translation.

Balasubramanrim maintains that during his four months of

detention he was able to improve his English language

skills through conversation with English-speaking

cellmates.

The Board made this finding without any support in the

record that Balasubramanrim knew English prior to his

arrival in the United States. We agree with the dissenting

board member who criticized "the majority's linguistic

analysis" and concluded: "the majority's estimation of the

applicant's proficiency in English is based on their

observation that the applicant responded in English to

some questions at the immigration hearing. An examination

of the transcript reveals that such occasions were so few, so

incidental, and involved such elemental English that they

provide an insufficient basis for evaluating the applicant's

level of English proficiency."

Moreover, we note that the information Balasubramanrim

indicates was accurately recorded at the airport interview

consists of fairly straightforward questions, involving one

word or short answers that would have been relatively easy

to understand or communicate. For example, he gave his

name, other names he may have used, when and where he

13

was born, what country he was a citizen of, etc. As the

dissenting board member noted, "These questions involved

common words and called for fairly direct answers. It is

reasonable that the applicant would know numbers, and

dates, and days and not be able to express more

complicated situations such as the reasons he feared

persecution or his various experiences of torture and

detention."

That there were some inconsistencies between the airport

statement and Balasubramanrim's testimony before the

immigration judge is not sufficient, standing alone, to

support the Board's finding that Balasubramanrim was not

credible. See Aguilera-Cota v. INS, 914 F.2d 1375, 1382

(9th Cir. 1990) (finding that inconsistencies between an

applicant's written asylum application and his testimony at

the asylum hearing are not enough, standing alone, to

serve as a basis for finding a lack of credibility). We find

that the Board's credibility determination was not

reasonable because the airport interview alone in this case

does not serve as a "valid ground[ ] upon which to base a

finding that an asylum applicant is not credible." Id.

(citations omitted).

C.

Balasubramanrim applied for asylum and withholding of

deportation. As noted, under 8 U.S.C. S 1158, if the

Attorney General determines that an alien is a refugee

within the meaning of 8 U.S.C. S 1101(a)(42)(A), then the

Attorney General has the discretion to grant the alien

asylum. A refugee is eligible for asylum if he was

persecuted in the past or has a "well-founded fear" of future

persecution on the ground of, inter alia, political opinion,

which is the basis of the Balasubramanrim's appeal. 10 Id. In

_________________________________________________________________

10. The persecution may be on account of a political opinion the

applicant actually holds or on account of one the foreign government has

imputed to him. Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997). See

also Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir. 1996) (rejecting

applicant's asylum claim because "the evidence does not compel the

conclusion that Cruz-Diaz will be subjected to persecution or other harm

based on actual or imputed political opinion"); Singh v. Ilchert, 63 F.3d

14

addition, 8 U.S.C. S 1253(h) requires withholding of

deportation of an alien "if the Attorney General determines

that such alien's life would be threatened on account of ...

political opinion." Eligibility for withholding of deportation

involves a stricter standard ("clear probability") than

eligibility for asylum. See INS v. Cardoza-Fonseca, 480 U.S.

421, 430-31 (1987). The well-founded fear standard has a

subjective and an objective component. Id. at 430-31. The

alien must show that "he has a subjective fear of

persecution that is supported by objective evidence that

persecution is a reasonable possibility." Chang, 119 F.3d at

1066. When documentary evidence is lacking, as in the

instant case, the applicant's credible, persuasive, and

specific testimony may suffice. Aguilera-Cota v. INS, 914

F.2d 1375, 1378 (9th Cir. 1990).

Because the Board found Balasubramanrim not credible,

it rejected his application for asylum and withholding of

deportation without conducting further analysis of his

claim. "In 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." Mosa, 89 F.3d at 605 (citations omitted).

We will grant the petition and remand to the Board, with

leave to further remand to the immigration judge, for a

determination of Balasubramanrim's claims for asylum and

withholding of deportation without reliance on the adverse

credibility finding. In reaching this conclusion, we do not

purport to comment on the credibility of the assertions in

Balasubramanrim's petition. We hold only that, because of

ambiguities in the airport statement and the circumstances

under which it was made, that statement does not provide

_________________________________________________________________

1501, 1509 (9th Cir. 1995) (relying on evidence that the applicant was

tortured because he was suspected of being a Sikh separatist);

Ravindran v. INS, 976 F.2d 754, 760 (1st Cir. 1992) (citation omitted)

("An imputed political opinion, whether correctly or incorrectly

attributed, may constitute a reason for political persecution within the

meaning of the Act."); Rajaratnam v. Moyer, 832 F. Supp. 1219, 1223

(N.D. Ill. 1993) (finding eligibility for asylum based on evidence that

applicant was persecuted because the authorities suspected him of being

a member of the Liberation Tigers).

15

sufficient evidence to support the adverse credibility

determinations upon which the immigration judge and BIA

denied the petition.

IV.

For the foregoing reasons, we conclude that substantial

evidence did not support the Board's findings. Accordingly,

we will grant the petition and remand for proceedings

consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

16