Bhageeratharan v. Attorney General of the United States

384 F. App'x 124
CourtCourt of Appeals for the Third Circuit
DecidedJune 17, 2010
Docket07-3440, 07-4640
StatusUnpublished
Cited by2 cases

This text of 384 F. App'x 124 (Bhageeratharan v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bhageeratharan v. Attorney General of the United States, 384 F. App'x 124 (3d Cir. 2010).

Opinion

*126 OPINION

BARRY, Circuit Judge.

The Board of Immigration Appeals (“BIA”) affirmed the decision of the Immigration Judge (“IJ”) which had denied asylum, withholding of removal and relief under the Convention Against Torture (“CAT”) to lead Petitioner, Kamaleswari Bhageeratharan (the “Petitioner”). The BIA also rejected Petitioner’s subsequent motion to reopen. She petitions for review of both orders. We will deny the petitions.

I. Background

Petitioner is a Tamil 1 woman from Sri Lanka. She claimed in her asylum application that she fled Sri Lanka and was afraid to return because of past persecution by members of the Sri Lankan army and members of the Liberation Tigers of Tamil Eelam (“LTTE” or “Tamil Tigers”), a U.S.-designated Foreign Terrorist Organization which has long sought an independent state by force in Sri Lanka. According to Petitioner, who worked at a hospital during at least part of the time of the persecution, members of the LTTE threatened to kill her if she would not give them medicine. The army, however, forbade supporting the LTTE, and soldiers regularly visited the hospital to enforce that mandate. Petitioner feared that the army would think she was providing medicine to the members of the LTTE. She describes one particularly harsh encounter when army soldiers tortured her in an attempt to get her to admit that she was providing medicine to the LTTE. The soldiers locked her up for eight days, and used physical intimidation to get her to talk, including grabbing her hair, shaking and slapping her, agitating her breathing with chili powder, and touching her breast. She claims that her father paid to have her released, and thereafter she feared for her safety.

Petitioner fled to Germany in 1997, where she met her husband, Gurunatha-pilllai Bahetharan, with whom she subsequently had a son. After they were denied asylum by Germany in 2001, Petitioner and her family fled to Canada. On the way to Canada, Petitioner was stopped at Fort Lauderdale International Airport in Florida where United States immigration officials questioned her and asked her to give a sworn statement. She was not honest with those officials. She told them that she and her family had come directly from Sri Lanka and that their purpose in entering the United States was “[t]o escape the shelling and bombing in Sri Lan-ka and protect my child.” (A. at 523.) She said that she and her husband could “no longer live in peace with our child because of the bombs and trouble.” (Id.) Of course, she had never lived in Sri Lanka with her husband and child, and she would later explain, in her asylum application, that what she feared was personal violence.

After Petitioner and her family were paroled, they continued on to Canada, where they lived until 2006. While in Canada, Petitioner worked at the Chencholai Tamil Kid’s Club, teaching math, religion and the Tamil language. Canada denied her asylum application in 2006, and she and her family returned to the United States to continue pursuing the application underlying the case now before us (which they apparently initiated during a 2003 trip to the United States).

In a May 25, 2006 oral decision and order, the IJ denied asylum, withholding of removal, and relief under the Convention Against Torture. The IJ acknowledged our precedent about airport interviews, in which we have counseled against giving airport interviews too much weight in assessing the credibility of an asylum *127 applicant. The IJ nonetheless made an adverse credibility determination because the airport interview appeared to be reliable (e.g., Petitioner was given access to a Tamil language interpreter) and because Petitioner’s inconsistent statements were significant. In denying her application, the IJ explained that “the Court would need to rely on the respondent as she is so important in evaluating her claims.” (A. at 223.) The BIA affirmed the IJ’s decision in July 2007, after considering and finding no error in the IJ’s reliance on Petitioner’s airport interview, and she petitions for review of that order.

Petitioner then brought a motion to reopen based on changed circumstances and offered as evidence several newspaper articles and reports from Amnesty International, Human Rights Watch and the UN High Commission on Human Rights, all tending to show that conditions in Sri Lan-ka were difficult. The articles also show that the Sri Lankan government continues to view the LTTE as a potential threat and that recent incidents of violence against Tamils have been documented. Petitioner contends that the articles show that if she returns to Sri Lanka, she will face persecution because of her failed asylum bids, and because the Sri Lankan government will mistakenly believe that she has been supporting the LTTE abroad by associating with the Tamil school in Canada.

The BIA denied her motion in November 2007 because “[t]he material that the respondents submit is cumulative concerning conditions in Sri Lanka” and “much of the information could have been presented at the former hearing.” (A. at 2.) The BIA also found that any information that might be considered new was not material because there is no evidence that Petitioner’s association at the school would be cause for repercussion, and “there is no demonstration that the Sri Lankan government is aware of such employment.” (Id.) Petitioner petitions for review of that order as well.

II. Discussion

A. Initial Application

An alien may qualify for asylum if he or she can demonstrate 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. Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir.2002). Withholding of removal requires the applicant to establish a clear probability of persecution in the proposed country of deportation. Gabuniya v. Attorney General, 463 F.3d 316, 320-21 (3d Cir.2006). To obtain relief under the Convention Against Torture, an applicant must demonstrate that it is more likely than not that he or she will be tortured in the proposed country of deportation. Obale v. Attorney General, 453 F.3d 151, 161 (3d Cir.2006). Each basis for relief requires, at minimum, credible testimony. See Gao, 299 F.3d at 272.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). We review adverse credibility determinations for substantial evidence, Chen v. Ashcroft, 376 F.3d 215

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384 F. App'x 124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bhageeratharan-v-attorney-general-of-the-united-states-ca3-2010.