                                                                [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                  JULY 17, 2009
                                No. 08-10151                    THOMAS K. KAHN
                          ________________________                   CLERK


                           Agency No. A200-138-599

SUBRAMANIAM RASANANTHAN,


                                                                        Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________

                                 (July 17, 2009)

Before TJOFLAT, BLACK and COX, Circuit Judges.

PER CURIAM:

      Subramaniam Rasananthan, a native and citizen of Sri Lanka, petitions for

review of the Board of Immigration Appeals’ (BIA’s) decision adopting and
affirming the Immigration Judge’s (IJ’s) denial of his application for asylum and

withholding of removal under the Immigration and Nationality Act (INA),

8 U.S.C. §§ 1158 and 1231(b)(3), and relief under the United Nations Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

(CAT), 8 C.F.R. § 208.16(c). On appeal, Rasananthan argues he should be granted

asylum because (1) the IJ’s adverse credibility finding is not supported by

substantial evidence, (2) the IJ failed to properly address his fear of future

persecution due to an alleged pattern or practice of persecution of Tamils, and (3)

the IJ failed to provide a reasoned decision pertaining to Rasananthan’s CAT relief

claim. After the benefit of oral argument, and reviewing the record and the parties’

briefs, we deny the petition in part, and remand in part.

                                                I.

       The IJ found Rasananthan’s testimony “was simply too inconsistent

internally and with the documents submitted to provide any basis for relief or any

basis for a finding that he was in any way credible.” Rasananthan asserts

substantial evidence did not support the IJ’s adverse credibility determination.1




       1
          We review the BIA’s decision, except to the extent it expressly adopts the opinion of the
IJ. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Here, because the BIA adopted and
affirmed the IJ’s decision, and summarily found the adverse credibility finding was not clearly
erroneous, we will review the IJ’s decision. See id.
                                                 2
      The REAL ID Act permits credibility to be determined based on the totality

of the circumstances and all relevant factors. 8 U.S.C. § 1158(b)(1)(B)(iii). Such

factors include the demeanor and candor of the applicant or witness and the

consistency of his testimony and written and oral statements, regardless of whether

they go to the heart of the claim. Id.

      The IJ made an explicit credibility determination; therefore we view the

credibility finding as conclusive unless a reasonable factfinder would be compelled

to conclude to the contrary. See Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201

(11th Cir. 2005). After reviewing the record, we conclude substantial evidence

supports the IJ’s adverse credibility finding. See D-Muhumed v. U.S. Att’y Gen.,

388 F.3d 814, 818-19 (11th Cir. 2004)(reviewing IJ’s credibility determination

under the substantial evidence test). The IJ identified several key inconsistencies

within Rasananthan’s testimony and between his testimony and other record

material. Taken together, these inconsistencies demonstrate by the totality of the

circumstances that substantial evidence supported the IJ’s adverse credibility

finding. Because Rasananthan’s testimony as a whole was deemed incredible, and

such a finding was supported by substantial evidence, we affirm the IJ’s adverse

credibility finding.



                                         II.
                                          3
       Rasananthan argues he proved his eligibility for asylum and withholding of

removal based on the Sri Lankan army’s pattern or practice of persecuting Tamils,

and the IJ failed to address the claim.

       The Government’s brief does not address Rasananthan’s pattern or practice

argument; rather, in one sentence in the last paragraph of its brief, the Government

contends the IJ’s adverse credibility finding subsumes the pattern or practice claim.

The Government further explained this position both at oral argument and in its

response to Petitioner's supplemental authority, and argued the IJ found

Rasananthan's testimony to be "wholly incredible" and this determination thus

applied to Rasananthan’s claim he was an ethnically Tamil Sri Lankan.

       The Government’s position is as follows: The IJ’s adverse credibility finding

was comprehensive and included an adverse credibility finding as to ethnicity2;

accordingly, because Rasananthan failed to credibly establish he was a Tamil, his

pattern and practice claim necessarily fails. We agree with the Government to the

extent it argues a specific adverse credibility finding as to ethnicity would preclude

a pattern or practice claim. See 8 C.F.R. § 208.13(b)(2)(iii)(B) (stating an asylum

applicant must establish “his or her own inclusion in, and identification with, such

group of persons such that his or her fear of persecution upon return is



       2
           The Government’s brief does not respond to the Petitioner’s allegation that the birth
certificate introduced into evidence established his Tamil ethnicity.
                                                 4
reasonable”). However, we do not read the IJ’s decision as making an adverse

credibility finding with respect to Rasananthan’s Tamil ethnicity.3

       The Government conceded the IJ failed to address the pattern or practice

claim, and asked this Court to remand for the limited purpose of adjudicating this

claim if we determined the IJ’s credibility determination did not apply to

Rasananthan’s ethnicity. Because we cannot determine whether Rasananthan

credibly established he was a Tamil, we remand to the BIA for the limited purpose

of addressing the denial of Rasananthan’s pattern or practice claim based on his

Tamil ethnicity.

                                            III.

       Rasananthan also contends the IJ did not properly address, and erred in

denying, his CAT relief claim. He asserts that even if the IJ’s adverse credibility

finding is upheld, he is entitled to CAT relief because such claim does not include

a subjective component and is distinct from asylum relief.

       To establish eligibility for withholding of removal under CAT, an applicant

must show it is more likely than not he would be tortured if returned to the

proposed country of removal. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239,

1242 (11th Cir. 2004).



       3
         If the IJ did in fact intend to make an adverse credibility finding with respect to
Rasananthan’s ethnicity, this opinion does not preclude this finding on remand.
                                                5
      The CAT defines torture as:

      any act by which severe pain or suffering, whether physical or mental,
      is intentionally inflicted on a person for such purposes as obtaining
      from him or her or a third person information or a confession,
      punishing him or her for an act he or she or a third person has
      committed or is suspected of having committed, or intimidating or
      coercing him or her or a third person, or 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 acquiescence of a public
      official or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1).

      The IJ properly addressed and denied Rasananthan’s CAT relief claim. To

the extent a CAT relief claim automatically fails when an applicant fails to

establish eligibility for asylum, the IJ’s brief summary denial of Rasananthan’s

CAT relief claim was proper. See Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292

(11th Cir. 2006). Nonetheless, a CAT relief claim differs from an asylum claim in

that it does not include a subjective component. See Cadet v. Bulger, 377 F.3d

1173, 1180 (11th Cir. 2004). Therefore, in a case in which the denial of asylum

depended on an alien’s failure to demonstrate the subjective component, such as

this one, the denial of CAT relief on the basis of the denial of asylum may not be

proper.

      In this case, however, the IJ discussed relevant CAT law, stated he

“carefully considered all of the documentary evidence submitted,” and never

explicitly stated the denial of CAT relief was based solely on the denial of the
                                          6
asylum claims. These factors indicate the IJ’s consideration of the CAT claim was

reasoned, albeit brief, included adequate findings, and was not wholly dependent

on the asylum analysis. Therefore, the IJ sufficiently addressed Rasananthan’s

CAT relief claim independent of the asylum claims. Substantial evidence supports

the IJ’s denial of CAT relief because the evidence does not compel the conclusion

it is more likely than not that torture would occur. See Reyes-Sanchez, 369 F.3d at

1242.

        PETITION DENIED IN PART as to the claims based on past persecution

and as to the CAT claim, and REMANDED IN PART as to the claims based on

Petitioner’s fear of future persecution due to an alleged pattern or practice of

persecution of Tamils.




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