Pathmanathan Jathursan v. U.S. Attorney General

USCA11 Case: 20-10003 Date Filed: 11/17/2021 Page: 1 of 19

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-10003

____________________

PATHMANATHAN JATHURSAN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A201-411-961

____________________

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2 Opinion of the Court 20-10003

Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges.

JILL PRYOR, Circuit Judge:

Pathmanathan Jathursan, a native and citizen of Sri Lanka,

seeks review of the Board of Immigration Appeals’ (“BIA”) final or-

der affirming the immigration judge’s denial of his application for

asylum, withholding of removal, and relief under the United Na-

tions Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT”). The BIA found no

clear error in the immigration judge’s findings that Jathursan failed

to establish (1) past persecution on account of a protected ground,

(2) a well-founded fear of future persecution on account of a pro-

tected ground, or (3) that he would more likely than not be tor-

tured in the event he returned to Sri Lanka.

Following oral argument, we grant Jathursan’s petition for

review in part, vacate the BIA’s order in part, and remand to the

BIA for further consideration of his asylum and withholding-of-re-

moval claims based on his fear of future persecution as a Tamil

failed asylum seeker. We also vacate and remand on the BIA’s de-

nial of relief under CAT. We deny the petition on his claims for

asylum and withholding of removal based on past persecution,

however, because substantial evidence supported the BIA’s denial

of relief on that ground.

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20-10003 Opinion of the Court 3

I.

Jathursan, a native citizen of Sri Lanka, entered the United

States without inspection in 2018. He was apprehended by Depart-

ment of Homeland Security (“DHS”) patrol officers and expressed

a fear of returning to Sri Lanka. After conducting a credible fear

interview, DHS determined that Jathursan had a credible fear of

persecution in Sri Lanka. DHS issued Jathursan a notice to appear,

charging him with being removable under the Immigration and

Naturalization Act. Jathursan conceded he was removable as

charged.

During his removal proceedings, Jathursan applied for asy-

lum, withholding of removal, and CAT protection. He argued he

had suffered past persecution and had a well-founded fear of future

persecution in connection with a statutorily protected ground. The

protected grounds Jathursan claimed were his Tamil race and/or

ethnicity, 1 his imputed political opinion as a supporter of the Lib-

eration Tigers of Tamil Eelam (“LTTE”), his imputed membership

in the LTTE through his brother, and his status as a Tamil failed

asylum seeker.

1 It is unclear from the record whether Jathursan wishes us to view “Tamil”

as a race or as an ethnicity. In the record he referred to it as both. The immi-

gration judge referred to Tamil as both a race and an ethnicity. The BIA re-

ferred to it as an ethnicity. Whether Tamil is a race or an ethnicity makes no

difference to our decision, however.

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4 Opinion of the Court 20-10003

For context, we briefly discuss the groups Jathursan refer-

ences. The LTTE was a Tamil 2 separatist group in Sri Lanka that

fought against the Sinhalese-dominated government in a decades-

long civil war. The LTTE sought to create an independent state for

the Tamil minority in Sri Lanka. Although the LTTE officially lost

the war in 2009, civil unrest continues in Sri Lanka. The record re-

flects that even after the war, persons suspected of having ties to

the LTTE have been beaten, tortured, and raped. The record fur-

ther suggests that much of the violence is carried out by the Elam

People’s Democratic Party (“EPDP”), a paramilitary group that op-

erates with the tacit consent of the Sri Lankan government.

In a hearing before the immigration judge, Jathursan testi-

fied about encounters he had with the EPDP. He described one oc-

casion in which the EPDP stopped him, demanded his money and

motorcycle, and severely beat him. He testified about another in-

stance in which he was abducted by the EPDP and detained at its

camp for three days. During the three days, Jathursan testified, he

was beaten, his hands and legs were tied together, and an iron rod

was forced through his rectum. He was hospitalized for three days

following his abduction. He testified that he reported the EPDP en-

counters to the police, who did nothing to protect him or punish

the wrongdoers.

2 The record informs us that “Tamils speak a different language and are largely

Hindu, unlike the largely Buddhist Sinhalese majority” in Sri Lanka. AR at 325.

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20-10003 Opinion of the Court 5

Jathursan testified that he feared persecution from the Sri

Lankan army as well. He described an incident in which the Sri

Lankan army soldiers—without any apparent EPDP affiliation—

approached him at his motor-vehicle repair shop, demanded his

services, and refused to pay. In his credible fear interview,

Jathursan described other instances when the Sri Lankan army

came to his place of business and demanded free merchandise. Ac-

cording to Jathursan, the EPDP and Sri Lankan army work along-

side one another to persecute Tamils.

Apart from the abuse he suffered in the past, Jathursan testi-

fied, he feared that the EPDP and Sri Lankan army would persecute

him in the future based on his status as a Tamil failed asylum

seeker. He explained that, because he lacks a passport, 3 govern-

ment forces in Sri Lanka would know that he sought asylum else-

where. He testified that the EPDP and Sri Lankan army “would

know that [he] would have said bad things” about the situation in

Sri Lanka and would seek retribution against him. AR at 122–23. 4

Returned asylum seekers, Jathursan contended, “are perceived as

LTT[E] supporters.” Id. at 98.

Jathursan also submitted documentary evidence in support

of his claim that the government persecuted Tamil failed asylum

3 Jathursan testified that he lost his passport during his journey to the United

States.

4 “AR” refers to the administrative record.

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6 Opinion of the Court 20-10003

seekers. These exhibits included news articles detailing the torture

Tamils face when they return to Sri Lanka after their unsuccessful

asylum applications in other countries. One article, for example,

quoted a member of the Tamil Refugee Council, who proclaimed

that it was “definitely not safe” for Tamil failed asylum seekers to

return to Sri Lanka because they would likely be tortured upon

their return. Id. at 435 (internal quotation marks omitted). Another

article reported that Tamil failed asylum seekers who were de-

ported from Australia faced “unthinkable sexual abuse and torture”

condoned by the “highest levels of Sri Lankan governance.” Id. at

438 (internal quotation marks omitted). That article described the

ordeal of a Tamil man who was sent back to Sri Lanka:

After months of monitoring by Sri Lankan security

forces he was abducted and taken to a secret location.

He says that for more than two months, he was tor-

tured, including having his fingernails torn out and

being hung upside down and beaten. He was accused

of being associated with the defeated Tamil Tigers.

Id. (internal quotation marks omitted).

After the hearing, the immigration judge found Jathursan

credible but denied him relief. As to his asylum and withholding-

of-removal claims based on past persecution, the immigration

judge found that Jathursan had not shown a sufficient nexus be-

tween his past incidents of persecution and a protected ground,

concluding instead that the Sri Lankan army and the EPDP had

been motivated by pecuniary gain.

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20-10003 Opinion of the Court 7

As to Jathursan’s asylum and withholding-of-removal claims

based on a well-founded fear of future persecution, the immigra-

tion judge again found that Jathursan failed to show a nexus be-

tween his well-founded fear and a protected ground. Despite ac-

knowledging that one of Jathursan’s claimed protected grounds

was his status as a “Tamil failed asylum seeker[],” id. at 39, the im-

migration judge, without explanation, considered only Jathursan’s

status as a general “returned asylum seeker.” Id. at 42. The immi-

gration judge ruled that Jathursan’s proposed group of “returned

asylum seekers” was not a cognizable social group because it

“lack[ed] particularity and social distinction.” Id.

After denying Jathursan’s asylum claim, the immigration

judge turned to his claim for withholding of removal. The immi-

gration judge denied Jathursan withholding of removal because it

“naturally follow[ed]” from the denial of asylum that Jathursan

“c[ould not] meet the higher burden of proof for withholding of

removal.” Id. at 44.

The immigration judge next disposed of Jathursan’s CAT

claim. Although there was “ample evidence that the Sri Lankan

government has committed human rights violations against Tam-

ils in the past,” the immigration judge found that “there [was] in-

sufficient evidence to show that [Jathursan] would more likely than

not be tortured” in the future. Id. Because Jathursan had not shown

“specific grounds that he will personally be at risk of torture,” the

immigration judge concluded that he was ineligible for CAT pro-

tection. Id.

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8 Opinion of the Court 20-10003

Jathursan appealed to the BIA, which affirmed the immigra-

tion judge’s decision and dismissed Jathursan’s appeal. The BIA de-

termined that the “totality of the record” supported the immigra-

tion judge’s finding that Jathursan’s assailants were motivated by

financial gain—not by any protected ground—when they assaulted

Jathursan. Id. at 4. As to Jathursan’s status as a Tamil failed asylum

seeker, the BIA did something curious—it imputed a finding to the

immigration judge that the immigration judge did not make. The

BIA stated that it “agree[d] with the [i]mmigration [j]udge that the

record evidence does not establish an objectively reasonable fear of

persecution . . . based on Tamil ethnicity, having sought asylum,

or both.” Id. (emphases added).

As to Jathursan’s CAT claim, the BIA “d[id] not discern error

in the [i]mmigration [j]udge’s finding that [Jathursan] is not simi-

larly situated to” the Tamil Sri Lankans whose torture was detailed

in the exhibits attached to his application. Id. at 5. The BIA rea-

soned that “[m]uch of the documentary evidence addressing tor-

ture of Tamils relates to detainees.” Id. The BIA observed that

Jathursan “ha[d] not previously been detained by the government,

and ha[d] not shown a clear probability of being detained and tor-

tured in the future.” Id. Nowhere in its discussion of this issue did

the BIA mention Jathursan’s three-day abduction and detention at

the hands of the EPDP.

Jathursan now petitions this Court for review.

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20-10003 Opinion of the Court 9

II.

We review the BIA’s decision only, except where, as in this

case, the BIA expressly adopted or agreed with the immigration

judge’s decision. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th

Cir. 2009). We review factual findings under the substantial evi-

dence test and legal conclusions de novo. Lopez v. U.S. Att’y Gen.,

914 F.3d 1292, 1297 (11th Cir. 2019). Under the substantial evidence

test, we will not disturb an immigration judge’s factual findings so

long as they are “supported by reasonable, substantial, and proba-

tive evidence on the record considered as a whole.” Id. (internal

quotation marks omitted). We will reverse “factual findings only if

the record compels reversal, and the mere fact that the record may

support a contrary conclusion is insufficient to justify reversal.” Id.

But to enable our review, the BIA must first extend “rea-

soned consideration” to the petitioner’s claims. Ali v. U.S. Att’y

Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). “To determine whether

the Board gave reasoned consideration to a petition, we inquire

only whether the Board considered the issues raised and an-

nounced its decision in terms sufficient to enable a reviewing court

to perceive that it has heard and thought and not merely reacted.”

Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir.

2013) (alterations adopted) (internal quotation marks omitted).

Some indications that the BIA failed to give reasoned consideration

include when the BIA “misstates the contents of the record, fails to

adequately explain its rejection of logical conclusions, or provides

justifications for its decision which are unreasonable and which do

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10 Opinion of the Court 20-10003

not respond to any arguments in the record.” Jeune v. U.S. Att’y

Gen., 810 F.3d 792, 803 (11th Cir. 2016). When the BIA fails to give

reasoned consideration to a petitioner’s claims, we remand those

claims. Id.

III.

Jathursan argues that the BIA erred in its analysis of his asy-

lum and withholding-of-removal claims in light of his past persecu-

tion. He also argues that the BIA failed to consider his asylum and

withholding-of-removal claims based on his well-founded fear of

future persecution as a Tamil failed asylum seeker. Finally,

Jathursan argues that the BIA erred in its analysis of his CAT claim.

We address each of these arguments in turn.

A. Substantial Evidence Supported the BIA’s Determination

that Jathursan Failed to Show Past Persecution in Connec-

tion with a Protected Ground.

Jathursan is not entitled to relief based on his claims of past

persecution. “To establish asylum based on past persecution, the

applicant must prove (1) that [he] was persecuted, and (2) that the

persecution was on account of a protected ground.” Sanchez

Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007)

(emphasis omitted) (internal quotation marks omitted). Whether a

petitioner has established a sufficient nexus between persecution

and a statutorily protected ground is a question of fact and there-

fore reviewed under the substantial evidence test. See Perez-Sen-

teno v. U.S. Att’y Gen., 913 F.3d 1301, 1306 (11th Cir. 2019). On

this issue, the BIA adopted the immigration judge’s reasoning, so

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20-10003 Opinion of the Court 11

we look to the immigration judge’s decision. Tang, 578 F.3d at

1275.

The immigration judge acknowledged that Jathursan suf-

fered “prior instances of harm” but found that he had not shown a

sufficient nexus between these instances and a protected ground.

AR at 40. Substantial evidence supported the immigration judge’s

conclusion. Jathursan’s testimony reflected that each time he was

harassed by the EPDP or Sri Lankan army soldiers, his persecutors

had a financial motive. For example, he testified that following his

three-day abduction by the EPDP, his assailants demanded money

from him. When EPDP members approached Jathursan for the sec-

ond time while he was on his motorcycle, the EPDP members de-

manded money again. And when Sri Lankan army soldiers ap-

proached Jathursan at his motor-vehicle repair shop, they de-

manded service without payment. Although the record contains

evidence that the EPDP mentioned they suspected Jathursan of

LTTE sympathies this is not enough to compel a reversal of the

immigration judge’s finding that Jathursan did not establish a suffi-

cient nexus between these incidents and a protected ground. Thus,

we deny Jathursan’s petition for review of the determination that

he is not entitled to asylum based on past persecution.

Because Jathursan has not met his burden to show he is en-

titled to asylum relief based on past persecution, he cannot satisfy

the higher burden necessary to show that he is entitled to withhold-

ing-of-removal based on past persecution. See Rivera v. U.S. Att’y

Gen., 487 F.3d 815, 820–21 (11th Cir. 2007). Consequently, we also

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12 Opinion of the Court 20-10003

deny Jathursan’s petition for withholding of removal insofar as he

based that claim on instances of past persecution.

B. The BIA Failed to Give Reasoned Consideration to

Jathursan’s Evidence Showing a Well-founded Fear of Fu-

ture Persecution in Support of His Asylum Claim.

The BIA failed to give reasoned consideration to Jathursan’s

claim that as a Tamil failed asylum seeker, he had a well-founded

fear of future persecution. “To establish eligibility for asylum based

on a well-founded fear of future persecution, the applicant must

prove (1) a subjectively genuine and objectively reasonable fear of

persecution that is (2) on account of a protected ground.” Sanchez

Jimenez, 492 F.3d at 1232 (emphasis omitted) (internal quotation

marks omitted). “The subjective component is generally satisfied

by the applicant’s credible testimony that he or she genuinely fears

persecution. In most cases, the objective prong can be fulfilled ei-

ther by establishing past persecution or that he or she has a good

reason to fear future persecution.” Id. (quotations and internal ci-

tation omitted).

An applicant also may demonstrate a well-founded fear of

future persecution by showing that (1) he would be singled out for

persecution if returned to his country or (2) there is a pattern or

practice of persecution against persons similarly situated to the ap-

plicant on account of a protected ground in the applicant’s home

country. See Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1289–

90 (11th Cir. 2020). Jathursan maintains that there was ample evi-

dence in the record to show a pattern or practice of persecution of

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20-10003 Opinion of the Court 13

Tamil failed asylum seekers who are returned to Sri Lanka. He ar-

gues that the BIA failed to give reasoned consideration to that evi-

dence. 5 We agree.

Although reasoned consideration is not a demanding stand-

ard, it is not a meaningless one. The BIA fails to give reasoned con-

sideration when it, among other things, “misstates the contents of

the record.” See Jeune, 810 F.3d at 803. The BIA misstated the

5 The government contends that Jathursan failed to exhaust his argument that

the immigration judge never considered his asylum claim based on his status

as a Tamil failed asylum seeker. We disagree with the government. To satisfy

the exhaustion requirement, a petitioner must raise the “core issue” of an ar-

gument to the BIA. Jeune, 810 F.3d at 800. A petitioner is not required to “use

precise legal terminology or provide well-developed arguments” to satisfy this

requirement. Id. (internal quotation marks omitted). Rather, the petitioner

must “provide information sufficient to enable the BIA to review and correct

any errors below.” Id. (internal quotation marks omitted). “This is not a strin-

gent requirement.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir.

2015).

In his brief before the BIA, Jathursan discussed his fear of returning to

Sri Lanka as a failed asylum seeker in conjunction with his arguments about

how Tamils are treated in Sri Lanka. He also raised “his status as a failed asy-

lum seeker and as a Tamil” in his notice of appeal to the BIA. AR at 52. He

argued to the BIA that the “[i]mmigration [j]udge[] fail[ed] to analyze his claim

for asylum cumulatively/in conjunction with each factual predicate,” mean-

ing he wanted the immigration judge to consider his claimed statutorily pro-

tected grounds in combination with each other. Id.at 17. Further, the BIA ad-

dressed Jathursan’s status as a Tamil failed asylum seeker, which belies the

government’s position that he failed to raise this issue. In sum, Jathursan raised

the core issue of his status as a Tamil failed asylum seeker with the BIA and

thus satisfied the exhaustion requirement.

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14 Opinion of the Court 20-10003

record in this case when it wrote that the immigration judge made

a finding concerning Jathursan’s status as a Tamil failed asylum

seeker. No such finding was made. 6

To be sure, the immigration judge noted at the beginning of

his decision that “Tamil failed asylum seekers” was one of the pro-

tected grounds Jathursan raised in his asylum application. AR at 39

(internal quotation marks omitted). Yet in his analysis the immigra-

tion judge focused exclusively on Jathursan’s general classification

as a “returned asylum seeker[].” Id. at 42 (internal quotation marks

omitted). Nothing in the immigration judge’s analysis indicated

that he considered what he had earlier identified as Jathursan’s

claimed particular social group: Tamil failed asylum seekers.

Moreover, Jathursan’s evidence—which the immigration

judge did not discuss or acknowledge—supported his claim that

Tamil failed asylum seekers face persecution in Sri Lanka. For ex-

ample, one article indicated that “Tamil asylum seekers have been

regularly tortured” and face “sexual violence” when they return to

6 The BIA cannot perform de novo review of factual issues the immigration

judge did not decide. 8 C.F.R. § 1003.1(d)(3); see also Zhou Hua Zhu v. U.S.

Att’y Gen., 703 F.3d 1303, 1308 (11th Cir. 2013) (“The regulation forbids the

BIA from independently engaging in fact-finding and requires it to apply a

clear error standard to IJs’ factual findings.”). Instead, the BIA reviews the im-

migration judge’s findings of fact under a “clearly erroneous” standard. 8

C.F.R. § 1003.1(d)(3). Given the contours of the BIA’s appellate jurisdiction,

there is no way the BIA could have engaged in independent factfinding to ad-

dress Jathursan’s status as a Tamil failed asylum seeker.

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20-10003 Opinion of the Court 15

Sri Lanka. Id. at 315. A second article echoed those sentiments, de-

tailing how “mostly Tamil[]” failed asylum seekers were “picked

up, . . . detained by security forces [and] tortured, in some cases

sexually.” Id. at 436. A third article described the ordeal of a Tamil

failed asylum seeker who was monitored for two months by Sri

Lankan security forces, abducted, taken to a secret location, and

tortured, including “having his fingernails torn out and being hung

upside down and beaten.” Id. at 438.

Because the BIA wrote that the immigration judge made a

finding based on Jathursan’s status as a Tamil failed asylum seeker,

and the immigration judge made no such finding, we must grant

the petition in part and remand the issue to the BIA for want of

reasoned consideration.

C. The BIA Failed to Give Reasoned Consideration to

Jathursan’s Withholding-of-Removal Claim.

Our conclusion on Jathursan’s asylum claim carries implica-

tions for Jathursan’s withholding-of-removal claim. “There are sep-

arate but related standards for evaluating requests” for asylum and

withholding of removal. Rivera, 487 F.3d at 820. “To be entitled to

withholding of removal, the petitioner[] must meet a higher evi-

dentiary threshold than the well-founded fear standard for asy-

lum.” Id. (internal quotation marks omitted). Specifically, the peti-

tioner must establish that he or she would “more likely than not”

be persecuted on account of a protected ground. Id. at 820–21 (in-

ternal quotation marks omitted). “More likely than not” is a higher

standard than the “well-founded fear” standard. Id.

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16 Opinion of the Court 20-10003

Here, the immigration judge did not discuss Jathursan’s

withholding-of-removal claim. Instead, the immigration judge

noted that because Jathursan failed “to satisfy the lower burden of

proof for asylum,” he could not meet the higher burden of proof

for withholding of removal. AR at 44. This is ordinarily an efficient

way of disposing of a withholding-of-removal claim, see Rivera,

487 F.3d at 821, but it no longer works here. In light of our deter-

mination that the BIA did not give reasoned consideration to

Jathursan’s status as a Tamil failed asylum seeker, we also must

conclude that the BIA failed to give reasoned consideration to

Jathursan’s withholding-of-removal claim. Seck v. U.S. Att’y Gen.,

663 F.3d 1356, 1368–69 (11th Cir. 2011) (remanding withholding-

of-removal claim for lack of reasoned consideration). This claim,

too, requires us to remand.

D. The BIA Failed to Give Reasoned Consideration to

Jathursan’s CAT Claim.

We now address Jathursan’s CAT claim. To qualify for pro-

tection under the Convention Against Torture, the applicant must

establish that he will more likely than not be tortured in the coun-

try of removal. Cadet v. Bulger, 377 F.3d 1173, 1180 (11th Cir.

2004). “Torture” is a term of art that refers to:

[A]ny act by which severe pain or suffering, whether

physical or mental, [that] is intentionally inflicted on

a person . . . for any reason based on discrimination

of any kind, when such pain or suffering is inflicted

by, or at the instigation of or with the consent or

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20-10003 Opinion of the Court 17

acquiescence of a public official acting in an official

capacity or other person acting in an official capacity.

8 C.F.R. § 1208.18(a)(1). “‘In assessing whether it is more likely than

not that an applicant would be tortured in the proposed country of

removal, all evidence relevant to the possibility of future torture

shall be considered.’” Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315,

1326 (11th Cir. 2007) (emphasis in original) (quoting 8 C.F.R.

§ 208.16(c)(3)). We must remand when the BIA “flatly ignores the

grounds presented by the petitioner” or otherwise fails to give rea-

soned consideration to a petitioner’s claim for CAT relief. Id.

We conclude that the BIA failed to give reasoned considera-

tion to Jathursan’s CAT claim. The BIA acknowledged that the

abuse Jathursan endured was “severe enough to constitute tor-

ture.” AR at 5. But even assuming that Jathursan had been tortured,

the BIA reasoned, there was no clear error in the immigration

judge’s finding that Jathursan failed to establish it was “more likely

than not” that he would be “tortured in the future.” Id. The BIA

predicated its decision on the fact that the documentary evidence

submitted by Jathursan involved Tamil detainees. Because

Jathursan “has not previously been detained by the government,”

the BIA concluded there was no “clear probability” that Jathursan

would be “detained and tortured in the future.” Id.

The BIA misstated the record on this point. When it came

to its CAT analysis, the BIA ignored the incident in which Jathursan

was detained by the EPDP for three days. During the three days,

Jathursan was beaten, his hands and legs were tied together, and an

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18 Opinion of the Court 20-10003

iron rod was forced through his rectum. To be sure, the EPDP’s

treatment of Jathursan could not be considered torture under CAT

unless the EPDP acted with “the consent or acquiescence of a pub-

lic official acting in an official capacity or other person acting in an

official capacity.” 8 C.F.R. § 1208.18(a)(1). But Jathursan argued and

presented evidence that the EPDP works with the consent of the

Sri Lankan government. The BIA did not address that argument or

evidence. Moreover, the BIA observed that “the [i]mmigration

[j]udge did not make adequate findings on whether that mistreat-

ment was inflicted with the consent or acquiescence of a public of-

ficial.” AR at 5. Thus, by its own admission, the BIA was unable to

consider whether Jathursan would be tortured in the future.

Further, the BIA misstated other evidence in the record. The

BIA characterized Jathursan’s evidence as indicating that “politi-

cally active” Tamils are subjected to torture—the implication being

that Jathursan would not be tortured because he was not politically

active. Id. Read in context, we think the BIA’s reference to political

activity was to the LTTE.

The BIA’s characterization was inaccurate because the evi-

dence showed that non-politically active Tamils, too, are tortured

in Sri Lanka. One article told the tale of torture victims who never

worked for the LTTE who “were abducted at home or off the

streets by men in white or green vans” and were “tortured for days

or weeks or months.” Id. at 324. Another article observed that the

“Tamil community” bore the brunt of the “State’s well-oiled tor-

ture apparatus.” Id. at 331. Without reference to the LTTE, or

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20-10003 Opinion of the Court 19

political affiliation of any kind, the article reported that Tamils

were beaten with sticks, asphyxiated with plastic bags, drenched in

kerosene, and subjected to other forms of physical abuse. We see

no indication in the BIA’s decision that it considered this evidence.

The BIA failed to give reasoned consideration to Jathursan’s

CAT claim. It must be remanded to the BIA as well.

IV.

For the foregoing reasons, we GRANT Jathursan’s petition

in part, DENY it in part, VACATE the BIA’s order in part, and

REMAND for further proceedings.