                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 17a0261n.06

                                           No. 16-4232

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

KANAPATHIPPILLAI THAYAPARAN,                             )
                                                                                     FILED
                                                         )                     May 08, 2017
       Petitioner,                                       )                 DEBORAH S. HUNT, Clerk
                                                         )
v.                                                       )       ON PETITION FOR REVIEW
                                                         )       FROM THE UNITED STATES
JEFF B. SESSIONS, U.S. Attorney General,                 )       BOARD OF IMMIGRATION
                                                         )       APPEALS
       Respondent.                                       )
                                                         )
                                                         )



BEFORE:       SUHRHEINRICH, WHITE, and STRANCH, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. Petitioner Kanapathippillai Thayaparan (Petitioner)

petitions for review of the Board of Immigration (Board) decision dismissing his appeal of an

immigration judge’s denial of asylum and related remedies.

                                    I.      BACKGROUND

       Petitioner is a native and citizen of Sri Lanka. He is a carpenter, is married, and has three

children. He applied for admission to the United States on September 3, 2015, without valid

entry documents. Upon expressing his fear of returning to Sri Lanka, Petitioner was given a

credible fear interview by an asylum officer. After being served with a Notice to Appear (NOA),

Petitioner appeared with counsel, admitted the factual allegations in the NOA, and conceded he

was subject to removal. He applied for asylum, withholding of removal, and protection under

the Convention Against Torture (CAT), claiming that he faced persecution and torture in Sri
No. 16-4232, Thayaparan v. Sessions


Lanka on account of (1) his Tamil ethnicity; (2) the Sri Lankan government’s mistaken belief

that he was part of a Tamil rebel group known as the Liberation Tigers of Tamil Eelam (LTTE),

a Tamil rebel group opposing the Sinhalese government; and (3) his status as a failed asylum

seeker if he was to be denied entry and returned to Sri Lanka. Petitioner’s asylum application (I-

589 Form) included a Statement (Original Statement). AR 865-66.1 Petitioner subsequently

filed an Amended Statement (Amended Statement). AR 834.


       Petitioner’s Version of Events. Petitioner’s claim was based on five separate incidents in

Sri Lanka during which he claims he was arrested, beaten, and threatened. In 1993, a bomb

exploded near the Mayura Amman Temple, killing a defense minister. Petitioner, who was

working as a carpenter at the Temple, was suspected of being involved in the bombing because

he was Tamil and thought to be a member of the LTTE. He and his coworkers were arrested and

detained by the Criminal Investigation Department (CID).          After detaining and torturing

Petitioner for five months, the CID transferred him to a police station where he was detained and

tortured for an additional fifteen days. A Temple administrator bribed the police, and Petitioner

was released.


       In 1996, Petitioner and his family were forced to flee from their hometown after the army

captured it. While traveling to another town, Petitioner was arrested by the army after a masked

man mistakenly identified him as a rebel also named Thayaparan, and held him at an army camp

for twelve days. He was released after his wife and father-in-law paid a bribe.




1
  The Board Decision is found at AR 3-6. The immigration judge’s decision is found at 83-126.
The transcript of the immigration proceedings is found at 128-469. The credible worksheet is
located at 470-84. Petitioner’s Form I-589 is found at 852-66. His Amended Statement is found
at 834-36.
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No. 16-4232, Thayaparan v. Sessions


       In May 2009 Petitioner was arrested by the army again and held at a camp until January

14, 2011.


       In 2014, a relative of Petitioner’s maternal uncle came to his house for a visit. The visit

triggered an investigation by the CID. Petitioner was briefly detained, and then released on the

condition that he report to the local police station on the first Monday of every month and not

leave the area.   After three months, he stopped reporting because he feared he would be

kidnapped and held for ransom.


       On May 2, 2015, the CID came to Petitioner’s house. They beat and kicked his wife and

son, demanding to know where he was. Petitioner hid at his aunt’s house until he was able to

leave the country on May 15, 2015.


       The Immigration Judge’s Decision. Petitioner was the only witness to testify at his

individual merits hearing. On April 13, 2016, the immigration judge found that Petitioner was

not credible based on internally inconsistent testimony and inconsistencies between his

testimony and other documentary evidence of record, including his credible fear interview.

AR 110. The immigration judge also ruled on the underlying merits of Petitioner’s claims,

finding that the country condition information submitted by the government and Petitioner

rebutted any showing of a well-founded fear of future persecution. AR 122-25. The judge noted

that Petitioner was able to relocate several times, and resided safely at his aunt’s house. AR 124.

The judge denied protection under the CAT because Petitioner had not demonstrated a

particularized threat of torture. AR 125-26.




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No. 16-4232, Thayaparan v. Sessions


         The Board’s Decision.2 On September 29, 2016, the Board upheld the immigration

judge’s credibility assessment as not clearly erroneous. AR 3. The Board held that, although

each credibility concern, on its own, may not have been enough to render Petitioner not credible,

when viewed as a whole, the totality of the circumstances supported the immigration judge’s

finding. AR 5. The Board also rejected Petitioner’s argument that there was a pattern or practice

of persecution against Tamils in Sri Lanka. While the evidence showed that Tamils faced

hardships in Sri Lanka, Petitioner had not met the very high burden of establishing a pattern or

practice.    AR 5-6.    The Board next considered Petitioner’s argument that a remand was

warranted for the immigration judge to consider his claim that he will be persecuted or tortured

on account of his membership in a particular social group comprised of “failed asylum seekers”

returned to Sri Lanka. AR 6. The Board acknowledged the newspaper articles Petitioner

submitted discussing how returned asylum seekers are considers traitors by the Sri Lankan

government, but held that Petitioner had not shown that he is similarly situated to these

individuals.    AR 6.    Lastly, the Board upheld the immigration judge’s determination that

Petitioner did not establish eligibility for asylum or withholding of removal, independent of the

adverse credibility finding, and upheld the denial of Petitioner’s CAT claim.        AR 6.    On

December 13, 2016, the Board granted stay of removal. Petitioner seeks review.


                                       II.     ANALYSIS


         Petitioner presents several arguments.3 First, he claims that the immigration judge’s and

Board’s (together “Agency”) adverse credibility findings are not supported by substantial

evidence. Second, he claims that the Agency erroneously “transferred” adverse credibility


2
    The Board Decision was 2-1. The dissenting member did not file a separate opinion.
3
    We have reordered the arguments.
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No. 16-4232, Thayaparan v. Sessions


findings to unconnected events. Third, he argues that the Agency erroneously held that he failed

to establish a pattern or practice of persecution against Tamils in Sri Lanka warranting eligibility

for relief. Fourth, he asserts that the Board erred in denying his claim for asylum or CAT

protection as a failed asylum seeker. Fifth, he claims that the Agency erred in denying asylum

and CAT protection based on an arrest warrant issued for him on July 22, 2015.


       This court has jurisdiction to review the final decision of the Board affirming the

immigration judge’s denials of asylum, withholding of removal, and CAT protection. Singh v.

Ashcroft, 398 F.3d 396, 400 (6th Cir. 2005). When the Board adopts the immigration judge’s

findings and adds additional comments, we review both the immigration judge’s decision and the

Board’s “additional remarks.” Karimijanaki v. Holder, 579 F.3d 710, 714 (6th Cir. 2009);

accord Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). We review legal conclusions de novo

and factual findings and credibility determinations for substantial evidence. Zhao, 569 F.3d at

246. Although the substantial evidence standard is deferential, we are still obliged to give the

Agency’s decision a “hard look.” Marouf v. Lynch, 811 F.3d 174, 181 (6th Cir. 2016) (citation

omitted).


       To qualify for discretionary asylum, Petitioner must show that he is unwilling or unable

to return to his country of residence because of past persecution or a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular social group, or

political opinion. 8 U.S.C. §§ 1158, 1101(a)(42)(A); 8 C.F.R. § 1208.13(b); Marouf, 811 F.3d at

179. To qualify for mandatory withholding of removal under the Immigration and Nationality

Act, Petitioner must show past persecution or that “it is more likely than not” that he would be

persecuted in the future on account of one of the enumerated grounds. 8 C.F.R. § 1208.16(b)(2);

see also 8 U.S.C. § 1231(b)(3); Marouf, 811 F.3d at 179. To qualify for mandatory CAT

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No. 16-4232, Thayaparan v. Sessions


protection, Petitioner must show that “it is more likely than not” that he “would be tortured if

removed” to Sri Lanka. 8 C.F.R. § 1208.16(c)(2); see also Marouf, 811 F.3d at 179.


                                   A. Credibility Determination


       In this case the Board specifically upheld the immigration judge’s negative credibility

determination based on three separate issues: (1) inconsistent testimony and evidence regarding

the 1996 arrest; (2) inconsistent statements regarding the 2015 incident; and (3) omissions

regarding the 1993 detention. AR 3-5.


       Under the REAL ID Act, credibility determinations are based on the “totality of the

circumstances” and take into account “all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). This

means that the immigration judge may base her credibility findings on any inconsistency

“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant's claim, or any other relevant factor.” Id.; El-Moussa v. Holder, 569 F.3d 250, 256 (6th

Cir. 2009). The immigration judge is also allowed to evaluate credibility based on “demeanor,

candor, or responsiveness,” as well as “the inherent plausibility of the applicant’s . . . account.”

8 U.S.C. § 1158(b)(1)(B)(iii). It does not matter that we would decide the credibility question

differently; such “determinations are conclusive unless any reasonable adjudicator would be

compelled to make a contrary conclusion.” Slyusar v. Holder, 740 F.3d 1068, 1073 (6th Cir.

2014) (emphasis added); accord El-Moussa, 569 F.3d at 256 (quoting 8 U.S.C. § 1252(b)(4)(A),

(B)). In other words, “compulsion is required.” Slyusar, 740 F.3d at 1073.


       This credibility standard applies to claims for asylum, withholding of removal, and for

relief under the torture convention. Id. at 1074.




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No. 16-4232, Thayaparan v. Sessions


       1996 Arrest and Detention. As the Board acknowledged, Petitioner first testified that he

met up with his mother and wife after his family fled their town, Vanni, and they traveled

together to Vavuniya. AR 3-4; 228-29. Petitioner stated that he was trying to go to Colombo.

AR 222. Petitioner’s claim was inconsistent with his wife’s statement. His wife said that

Petitioner was travelling to Kilinochchi, not Colombo. AR 370-71. When confronted with his

wife’s inconsistent statement, Petitioner replied that his wife, who has lived in Sri Lanka all of

her life, may not have known the names of the cities. AR 371, 380. Petitioner then testified that

his wife and mother were in Kilinochchi (not Vanni) and that he “went for employment to

Colombo through Vavuvuniya.” AR 373. When the government attempted to clarify his story,

Petitioner stated that his wife and mother did not leave Vanni with him but separately traveled to

Vavuniya after learning that he had been arrested. AR 374-75. Petitioner also inconsistently

testified as to whether his wife was detained in Vavuniya. AR 229 (his wife was detained);

AR 369 (his wife was arrested when “she came in search of [him]”); AR 378 (his wife watched

the army arrest him and “screamed and cried”); AR 647 (wife’s statement; only Petitioner was

arrested). The government then asked Petitioner to explain why he told the asylum officer that

his wife and children met him in Vanni in 1996, despite the fact that his children were not born at

that time. AR 388. Petitioner responded that he met his wife and mother in Kilinochchi after he

went to Vanni. AR 388. Petitioner blamed the asylum officer for misrecording his statements.

AR 389.


       Petitioner acknowledges in his brief that his testimony is inconsistent, but does not

attempt to explain or reconcile his story. Pet’r Br. 29. Rather, he states that his inability to recall

precise dates of events decades later should not be dispositive on his credibility. This court has

recognized that “victims of abuse often confuse the details of particular incidents,” Slyusar,


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No. 16-4232, Thayaparan v. Sessions


740 F.3d at 1075 (quoting Ren v. Holder, 648 F.3d 1079, 1085 (9th Cir. 2011)), and we have

“urge[d] the exercise of due care in evaluating such inconsistencies when reaching a credibility

determination,” id.   But the REAL ID Act permits immigration judges to deny asylum

applications based on inconsistencies that are unrelated to the claim itself. Id. at 1073 (“under

the REAL ID Act, even ancillary inconsistencies in a petitioner's testimony support adverse

credibility determinations”). Although we may not have viewed these discrepancies in testimony

regarding a distant event the same way, we cannot say that the Agency’s decision lacks support

in the record. Cf. Slyusar, 740 F.3d at 1073 (“[W]hile another [immigration judge] might have

ruled differently, we find that no evidence has been presented that compels a different ruling.

We are thus bound by the decision of the [immigration judge] and the additional observations of

the [Board].”).


       The 2015 Questioning. The record also supports the Board’s conclusion that Petitioner

offered inconsistent testimony concerning the 2015 incident.       In his Amended Statement,

Petitioner wrote that the CID beat both his wife and his son in 2015 when they came looking for

Petitioner. AR 836. However, his wife’s statement and his own testimony asserted that only his

son was beaten. AR 648, 244. On appeal Petitioner claims that the inconsistency should not

count against him because he did not witness the event, relying on a pre-REAL ID Act case.

Again, although we may tend to agree with Petitioner, especially since it is undisputed that the

CID beat his son, under the REAL ID Act the immigration judge is entitled to rely on such an

inconsistency.


       The 1993 Incident. First, the immigration judge noted that Petitioner testified on direct

examination and in his Amended Statement that he was arrested and detained in 1993 because he

was under suspicion of involvement in the bomb blast that killed a defense minister. However,

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No. 16-4232, Thayaparan v. Sessions


in his credible fear interview, he did not mention the bomb blast that killed the defense minister,

the “precipitating event that gave rise to this very arrest in 1993.” AR 112. Second, as the

immigration judge and Board noted, Petitioner was specifically asked by the asylum officer

whether he had ever been detained, and failed to mention that after being held for five months on

the “fourth floor,” a floor of the Sri Lankan intelligence department known for torture, he was

transferred to the local police station and detained for an additional fifteen days. Third, he

neglected to tell the asylum officer that people from the Temple had to pay money to get him out

of jail, but included this fact in his testimony and amended statement. AR 113. The immigration

judge rejected Petitioner’s explanation that his emotional state allowed him to give only short

answers during his credible fear interview. AR 113-15. Although we “are reluctant to sustain an

adverse credibility finding on the grounds that an applicant’s testimony during a credible fear

assessment was not as complete as at the final hearing,” Toma v. Gonzales, 189 Fed. App’x 492,

498 (6th Cir. 2006), the record reflects that Petitioner understood the process, received the

assistance of an interpreter, and was given an opportunity to explain his story. See, e.g., Singh-

Kaur v. Holder, 575 F. App’x 770, 770 (9th Cir. 2014) (pre-REAL ID Act case upholding

adverse credibility determination based on an inconsistency between the petitioner’s testimony

and his record of sworn statement). Moreover, given the other bases underpinning the adverse

credibility finding, we express no opinion as to whether the omissions in the credible fear

interview, standing alone, would be sufficient to sustain the adverse credibility finding.


       The bottom line: Although we might deem some of the Agency’s credibility findings as

relatively inconsequential to Petitioner’s asylum and related claims, they still serve as bases for

an adverse credibility determination under the REAL ID Act standard. Thus, the Board’s

adverse credibility determination, which is supported by evidence, prevents any reliance on


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No. 16-4232, Thayaparan v. Sessions


Petitioner’s testimony as evidence for his claims of asylum, withholding of removal, and CAT

protection. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“The testimony of the applicant may be sufficient

to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier

of fact that the applicant’s testimony is credible. . . . In determining whether the applicant has

met the applicant’s burden, the trier of fact may weigh the credible testimony along with other

evidence of record.”). Because Petitioner’s claim of past persecution depended almost entirely

on his own testimony, and he does not argue on appeal that his other evidence of past persecution

(in the form of statements by relatives) was independently sufficient, his claims for asylum and

withholding of removal based on past persecution fail.


       Notwithstanding, we wish to add a cautionary note. As we remarked in Slyusar, because

the REAL ID Act allows immigration judges to deny asylum applications based on de minimis

omissions or inaccuracies unrelated to the claim itself, immigration judges should “exercise . . .

due care” when making credibility determinations. See Slyusar, 740 F.3d at 1075; cf. Marouf,

811 F.3d at 182 (REAL ID Act affords administrative fact finder broad discretion, but it does not

“permit a judge to ‘cherry pick’ facts or inconsistencies to support an adverse credibility finding

that is not supported by the record as a whole”) (citation omitted). The immigration judge’s

zealous mining of some relatively inconsequential inconsistencies compels us to reiterate that

concern here.


                        B.      Transferred Credibility Determinations


       Petitioner also contends that the Board improperly “transfer[red] adverse credibility

determinations “to . . . unconnected independent event[s].” Pet’r Br. at 20. More specifically, he

claims that the immigration judge’s adverse credibility determinations as to the 1993, 1996, and


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No. 16-4232, Thayaparan v. Sessions


2015 incidents do not apply to the 2009 and 2014 incidents, which are independent events.

Thus, the 2009 and 2014 incidents were proper grounds for granting asylum. This argument is

unavailing because the adverse credibility determination extended to Petitioner’s testimony about

his experience in Sri Lanka and was not limited to three specific incidents. See AR 3-5; 110-21.

The immigration judge clearly stated that the “not credible” finding was “[b]ased upon the

totality of the circumstances and after considering all of the testimony and documentary evidence

of record . . . .” AR 110. Furthermore, under the REAL ID Act, the Board was not required to

confine an adverse credibility determination in such a manner. See El-Moussa, 569 F.3d at 256

(noting that inconsistencies need not go to the heart of the applicant’s claim).


                                     C.      Future Persecution


       Petitioner also challenges the Agency’s rejection of his claim that he has a fear of future

persecution. AR 5-6. Regardless of the adverse credibility determination, Petitioner can still

demonstrate eligibility for asylum or withholding of removal if he can establish through other

credible evidence that he has a well-founded fear of future persecution.                     8 C.F.R.

§ 1208.13(b)(2).    To be eligible for discretionary asylum, Petitioner bears the burden of

establishing either that “there is a reasonable possibility he . . . would be singled out individually

for persecution” on an enumerated ground if he returns to Sri Lanka, 8 C.F.R.

§ 1208.13(b)(2)(iii), or that “there is a pattern or practice . . . of persecution of a group of persons

similarly situated” and that he is included within that group, 8 C.F.R. § 1208.13(b)(2)(iii)(A)(B).

If Petitioner establishes the same but to the higher “more likely than not” standard, he is entitled

to mandatory withholding of removal. See 8 C.F.R. § 1208.16(b)(2). Evidence of general unrest

does not establish a fear of future persecution; the harm must be aimed at the applicant or his

group. See Almuhtaseb v. Gonzales, 453 F.3d 743, 750 (6th Cir. 2006); see also Vakeesan v.

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No. 16-4232, Thayaparan v. Sessions


Holder, 343 F. App’x 117, 127 (6th Cir. 2009) (“[B]y finding that Vakeesan’s evidence

demonstrates only ‘generalized civil strife’ in Sri Lanka resulting from the civil war, the [Board]

necessarily found that Vakeesan's evidence does not demonstrate a pattern or practice of

persecution of innocent Tamils in Sri Lanka.”).


       The Board reviewed the immigration judge’s factual findings and held that Petitioner had

“not met the very high burden of establishing a pattern or practice against Tamils in Sri Lanka.”

AR 6. The Board acknowledged that the immigration judge “considered the serious problems

and abuses perpetrated by the Sri Lankan government” and noted that “the evidence shows that

Tamils face hardships in Sri Lanka,” but found that they did not rise to the heightened level of

demonstrating a pattern or practice of persecution against Tamils. Id. The Board did not

reference any specific evidence, however.


       The immigration judge found that the government rebutted any showing of a well-

founded fear of future persecution based on country condition evidence submitted by both the

government and Petitioner, namely the United States Department of State Country Reports on

Human Rights Practice for 2014 (“2014 Country Report”).           See AR 670-97.      Noting that

Petitioner’s “entire claim” is based on harm inflicted by government forces, the immigration

judge pointed out that the 2014 Country Report indicates that the authorities “maintained

effective control over the security forces” during the 2010 elections. AR 122. The immigration

judge acknowledged that the report discussed other serious problems, including unlawful killings

by security forces and government-allied paramilitary groups in Tamil-dominated areas and that

the Sri Lankan government is engaged in ongoing conflict with the LTTE. AR 122. Despite

this, the immigration judge held that the “unfortunate political landscape” would not result in

Petitioner having a fear of returning to Sri Lanka, because many of the articles dealt with

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No. 16-4232, Thayaparan v. Sessions


upheaval from 2009-2012 and Petitioner’s own articles stated that the United Nations “is actively

engaged in having Sri Lanka take steps to ensure accountability for alleged war crimes.”

AR 123. Further, although some articles raised concerns regarding the 2015 presidential election

and torture accounts, this did not establish that Petitioner would be persecuted for his perceived

involvement in the LTTE if he returned. AR 123.


       Yet, as the immigration judge observed, the 2014 Country Report also stated that “[t]he

major human rights problems reported over the year were attacks on, and harassment of, civil

society activists, journalists, and persons viewed as sympathizers of the . . . [LTTE] by

individuals allegedly tied to the government; involuntary disappearances, arbitrary arrest and

detention, torture abuse of detainees . . . and widespread impunity for a broad range of human

rights abuses.” AR 670. The 2014 Country Report’s finding regarding the government’s control

over the security forces is limited to the 2010 elections. AR 670. The 2014 Country Report also

stated that “[d]iscrimination against . . . the ethnic Tamil minority continued, and a

disproportionate number of the victims of human rights abuses were Tamils.” AR 670. The

report also indicates that “Tamils throughout the country, but especially in the north and east,

reported that security forces and paramilitary groups frequently harassed young and middle-aged

Tamil men.” AR 694.


       Other documents, which the immigration judge seemingly glossed over, suggest a

continued pattern or practice of persecution against Tamils and sympathizers of LTTE. For

example, a resolution passed by the Northern Province Council (“Resolution”) “provides an

overview of the evidence demonstrating successive Sri Lankan governments’ genocide against

Tamils,” and urges the United Nations Office of the High Commission for Human Rights

Investigation on Sri Lanka (OISL) “to investigate the claim of genocide and recommend

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No. 16-4232, Thayaparan v. Sessions


appropriate investigations and prosecutions by the International Criminal Court.” AR 733. The

Resolution references a report issued in March 2014 by an expert who contributed to the

Secretary-General’s United Nations Report, concluding that abduction, arbitrary detention,

torture, rape, and sexual violence have increased since 2009 and that “[t]hese widespread and

systematic violations by the Sri Lankan security forces occur in a manner that indicates a

coordinated, systematic plan approved by the highest levels of government.” AR 738. The

report “found ‘a pattern of targeting Tamils for abduction and arbitrary detention unconnected to

a lawful purpose, involving widespread acts of torture and rape.’” AR 738. The Resolution

found that the report “paints a chilling picture of the continuation of the conflict against the

ethnic Tamil Community with the purpose of sowing terror and destabilizing community

members who remain in the country.” AR 738. The Resolution concludes that “[t]o this day,

Tamils in the NorthEast suffer from Sri Lanka’s ongoing genocide.” AR 743.


       A Freedom from Torture report (“FFT Report”) by the Medical Foundation for the Care

of Victims of Torture, dated January 5, 2016, one year after the January 5, 2015 presidential

election in Sri Lanka, noted that the Foundation has continued to receive numerous referrals for

people tortured in Sri Lanka, and warned that “the Government must place a higher priority on

tackling torture by the country’s military, police and security services.” AR 554. The FFT

report quotes Sonya Sceats, Director of Policy and Advocacy, who stated that: “We have

medical evidence of torture by the Sri Lankan military and intelligence services since [the new

president] came to power, which suggest that an abusive ‘deep state’ is still terrorizing

communities and impeding Sri Lanka’s post-war revival.” AR 555.4



4
 Interestingly, the report states that two of the survivors identified a notorious camp run by the
military in Vavuniya as a torture facility, and “[o]thers reported torture facilities included in the
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No. 16-4232, Thayaparan v. Sessions


       The International Truth and Justice Project on Sri Lanka Report (“ITJP Report”), dated

January 2016, states that despite the Sri Lankan government’s promise at the Human Rights

Council in Geneva in September 2015 to deliver post-war accountability, “[h]uman rights

violations by the security forces continue with impunity and a predatory climate against Tamils

prevails.” AR 565. The report documents abductions and unauthorized detentions of twenty Sri

Lankan Tamils all occurring after the January 2015 presidential elections. AR 568. It explains

that the victims “were abducted in targeted pre-planned operations. There was nothing random

or opportunistic about the security forces’ actions.” AR 569. It states that some of the 2015

victims were targeted “[t]o deter them and other Tamils from exercising their legitimate,

democratic political rights,” and some “[a]s a form of post-war ethnic cleansing in order to make

their life so fearful and unbearable, . . . that they flee the country.” AR 569. An additional listed

reason is “[p]ersecution.” AR 569. In its conclusion, the ITJP Report states that the twenty

documented cases


       reveal not only that torture and oppression continue in Sri Lanka but that they
       remain widespread and systematic. They are the work of a well-organised
       machine which continues to thrive within the Sri Lankan police and military
       fueled by extortion. It is responsible for terrorizing and oppressing Tamils. This
       is therefore not a question of a few rotten apples in the system, as the new
       government suggests, but rather the result of structures that have long been
       corrupted.
AR 593.


       In short, these articles tend to undermine the immigration judge’s finding that the United

Nations’ attempts to reform the Sri Lankan government’s approach to terror and torture have

been effective and they require a closer inspection upon remand.            See generally Marouf,



fourth floor headquarters of the Criminal Investigation Department in Colombo and a makeshift
jungle camp . . . .” AR 555. This information resembles Petitioner’s account.
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No. 16-4232, Thayaparan v. Sessions


811 F.3d at 187 (holding that the immigration judge “impermissibly ‘cherry-pick[ed]’ a general

statement that was belied by more specific and relevant evidence in the same report”). Granted,

the Report of the Office of the United Nations High Commissioner for Human Rights on

Promoting Reconciliation, Accountability and Human Rights in Sri Lanka dated September 16,

2015 stated that the new president of Sri Lanka has pledged in public statements a need for

justice for all citizens. AR 702, 709, 712. But it is otherwise a scathing account of continuing

human rights abuses in Sri Lanka. See AR 702-03 (stating that the new government has yet to

“embark on any comprehensive process of demilitarization,” and that torture and sexual violence

remain a critical concern), 704-09.


       We recognize that Petitioner provided “a plethora of information regarding problems that

are occurring in Sri Lanka.” AR 123. However, Petitioner’s alternate ground for asylum or

withholding of removal deserved the same vigorous attention the immigration judge accorded to

the credibility determination. The Board’s summary endorsement of the immigration judge’s

reasoning added nothing to this analysis.     The foregoing examples appear to support an

objectively reasonable fear of future persecution based on Petitioner’s Tamil ethnicity, and his

ethnicity is not disputed.   Because the agency failed to give “reasoned consideration” to

Petitioner’s application for asylum or withholding of removal based on a well-founded fear of

future prosecution, and we are “unable to review the evidence in the first instance,” we vacate

the order denying the petition for review and remand for further proceedings. See Gaksakuman

v. U.S. Att’y Gen., 767 F.3d 1164, 1170, 1171 (11th Cir. 2014) (internal quotation marks and

citations omitted) (holding that the Board failed to give “reasoned consideration” to the

petitioner’s application for asylum based on documents supporting his status as an failed asylum

seeker in Sri Lanka); see also Ruiz-Del-Cid v. Holder, 765 F.3d 635, 639 (6th Cir. 2014)


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No. 16-4232, Thayaparan v. Sessions


(holding that if the Board fails to adequately explain its reasoning, the court of appeals should

not try to correct the deficiencies but should remand for further analysis). After examining these

materials, the immigration judge may ultimately reach the same conclusion. But a more detailed

analysis is required to facilitate appellate review.


       Alternatively, Petitioner may also show an individualized fear of future persecution by

offering “specific information showing a real threat.” Dieng v. Holder, 698 F.3d 866, 872 (6th

Cir. 2012); see also 8 C.F.R. 1208.13(b)(2)(iii). We think that the arrest warrant may suffice.

On July 22, 2015, an arrest warrant was issued for Petitioner under the Prevention of Terrorism

Act (“PTA”). AR 656-57.5 The 2014 Country Report indicates that the PTA gives security

forces “sweeping powers to search, arrest, and detain” often “for prolonged periods without

charge.” AR 677. The PTA “has attracted universal condemnation ever since it was enacted,”

because it “encourages the pervasive violation of human rights” and “has been deployed to . . .

inflict physical harm and mental distress” on Sri Lankans. AR 611. In a September 2015 report,

the Office of the United Nations High Commissioner for Human Rights in Sri Lanka suggested

its repeal. AR 715. Yet the record indicates that it remains in force. AR 713.6


       The immigration judge did not make any finding regarding the arrest warrant and the

Board does not mention it. This also leads us to conclude that the Agency failed to give

“reasoned consideration” to Petitioner’s asylum or withholding of removal claims based on a


5
  The arrest warrant is not fully translated. But the relevant portion is translated to state:
“Charges against under the prevention of Terrorism Act. 427.” AR 656.
6
 An article from the Global Legal Monitor, by Constance Johnson, “Sri Lanka: New Terrorism
Law Being Drafted,” dated November 22, 2016, states that the Sri Lankan government is
drafting new anti-terrorism legislation to replace the existing Prevention of Terrorism Act.
Constance Johnson, Sri Lanka: New Terrorism Law Being Drafted, LAW LIBRARY OF CONGRESS,
(Nov. 22, 2016), http://www.loc.gov/law/foreign-news/article/sri-lanka-new-terrorism-law-
being-drafted/
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No. 16-4232, Thayaparan v. Sessions


fear of future persecution requiring a remand for review of the evidence in the first instance. See

Gaksakuman, 767 F.3d at 1171. The government responds that the document is not relevant

because it does not specify that Petitioner “will be indefinitely detained, charged, tortured.”

Resp’t Br. 34. But we think it very unlikely that the government would telegraph its intent to

commit human rights abuses on the face of a warrant.


       The immigration judge’s other reasons for denying Petitioner’s asylum and withholding

of removal claims based on a fear of future persecution do not save the Agency’s order. The

immigration judge found that the government rebutted any showing of a well-founded fear of

future persecution because Petitioner “was able to remain at his aunt’s house before his departure

from Sri Lanka for a period of time” without harm, and his wife and children remain in Sri

Lanka safely. AR 124. Further, Petitioner himself was able to live in various places and work

despite the alleged acts of harm in 1993, 1996, 2009, and 2014. AR 124. The immigration

judge’s logic is problematic. First, Petitioner stated that he had no problems at his aunt’s house

because he did not go out. AR 99. And “the period of time” he remained there was only thirteen

days. This is slim evidence of a safe environment. Second, Petitioner, as a middle-aged Tamil

male, is not similarly situated to his wife and children; indeed the evidence suggests that Tamil

males are the primary target of the armed forces. (Besides, Petitioner and his wife agreed that

their son was beaten, undermining the immigration judge’s assertion that Petitioner’s children

are safe.) Third, the immigration judge merely conjectured that Petitioner could safely relocate

to another part of the country and also did not find that it would be reasonable to expect the

applicant to do so under all the circumstances. 8 C.F.R. § 1208.13(b)(1)(i)(A), (B). In short, at

this juncture these proffers do not refute Petitioner’s fear of future persecution.




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No. 16-4232, Thayaparan v. Sessions


                                      D.     Failed Asylum Seeker


       The Board also rejected Petitioner’s claims for asylum, withholding of removal, and CAT

protection based on his status as a “failed asylum seeker.” The immigration judge did not

address this argument.7 The Board did, noting that Petitioner “submitted newspaper articles

discussing claims that some asylum seekers who traveled by boat to Australia were detained and

suffered mistreatment upon return to Sri Lanka,” but ruled that Petitioner had not shown he was

similarly situated to those individuals. AR 6.


       We disagree. Petitioner submitted several documents pertaining to the arrest, detention,

and torture of returned asylum seekers, and not just those returning from Australia. AR 781-801.

More to the point, Petitioner is similarly situated because they are all “failed asylum seekers” and

most are Tamil. The method of transport for departure is not the defining characteristic of the

group. For example, an Amnesty International report from 2011 states that the Sri Lankan

government “ha[d] a history of arresting and detaining Sri Lankan asylum seekers upon their

return and we are aware of cases of people being tortured.” AR 791. Another document quotes

an official of the Catholic Church’s Edmund Rice Centre as saying, “The difficulty here is that

there is a view in Sri Lanka that anybody who left the country through an unauthorised manner,

of unauthorised means, is an LTTE sympathizer[.]” AR 793. For that reason, “sending them

back is sending them back into danger.” AR 794. More recently, an article in the Colombo

Telegraph dated March 21, 2014, states that since the civil war ended in 2009, the Sri Lankan

government has developed an extensive surveillance and intelligence system that targets Tamils

returning to Sri Lanka, who upon returning have “become victims of abductions, arbitrary

7
 The government contends that Petitioner did not make this claim until closing argument. It is,
however, presented in Petitioner’s memorandum of law to the immigration judge, AR 912-13,
and the Board addressed it.
                                                 -19-
No. 16-4232, Thayaparan v. Sessions


detentions, torture and sexual violence.” AR 755. The article states that five years after the end

of the civil war, the Sri Lankan government “regards every Tamil in the North and East as a

potential LTTE suspect” and that “[i]ts practices are neither consistent with the government

claims of reconciliation or its assertions as to the respect of human rights.” AR 755.


       Two of these reports are mentioned in the Eleventh Circuit’s opinion in Gaksakuman.8

There, the Eleventh Circuit held that the evidence tended to prove that failed asylum seekers

were at the risk of being detained and tortured regardless of whether they were actually Tamil

with ties to the LTTE. Gaksakuman, 767 F.3d at 1170. The Gaksakuman court examined a

number of documents, which “tended to prove that officials in Sri Lanka tortured at least some

failed asylum seekers, particularly if they had an actual or perceived association with the

Liberation Tigers.” Id. Because the Board failed to give “reasoned consideration” to the

petitioner’s application, the case was remanded for further proceedings to determine whether he

was likely to suffer torture if returned to Sri Lanka as a failed asylum seeker. Id. at 1171.


       We think the same course of action is in order here. On remand we ask that the Board

provide a more careful and accurate explanation of its conclusions based on all of the evidence

submitted by Petitioner. See Gaksakuman, 767 F.3d at 1171 (remanding for further proceedings

because appellate court was “‘unable to review’ the evidence in the first instance”); Tan v. U.S.

Att’y Gen., 446 F.3d 1369, 1377 (11th Cir. 2006) (holding that the immigration judge did not

give “reasoned consideration” to petition for withholding of removal and his findings were

inadequate). Although this court has held that the Board “has no duty to write an exegesis on

every contention,” Scorteanu v. INS, 339 F.3d 407, 412 (6th Cir. 2003) (citation omitted), it is
8
  Curiously, the government does not mention, let alone address, Gaksakuman, despite the fact
that Petitioner cites it in his brief. See Pet’r Br. 12 (quoting his brief to the Board). The Board in
its decision also did not address Gaksakuman.

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No. 16-4232, Thayaparan v. Sessions


required to consider all the evidence submitted by the petitioner, see Tan, 446 F.3d at 1376, and

to “announce its decision in terms sufficient to enable a reviewing court to perceive that it has

heard and thought and not merely reacted,” Scorteanu, 339 F.3d at 412 (citation omitted).


                                         E. Arrest Warrant


       Petitioner has offered evidence in the form of the arrest warrant pursuant to the PTA

issued against him shortly after he left Sri Lanka. As noted, the immigration judge made no fact

findings regarding the arrest warrant.        For this reason remand for further consideration of

Petitioner’s claims based on this evidence is appropriate.


                                       III.      CONCLUSION


       For the foregoing reasons, we GRANT the petition for review as to Petitioner’s claims

for asylum, withholding of removal, and CAT protection based on a fear of future persecution,

VACATE the order of the Board, and REMAND for further proceedings consistent with this

opinion.




                                                  -21-
