Kagendran Ratnam v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 20, 2020
• Docket: 19-11984
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________

No. 19–11984 ________________________

Agency No. A216-171-928

KAGENDRAN RATNAM, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________________ Petition for Review of a Decision of the Board of Immigration Appeals ____________________________

(October 20, 2020)

Before JORDAN, LAGOA, and BRASHER, Circuit Judges. PER CURIAM: The Board of Immigration Appeals (BIA) denied Petitioner Kagendran

Ratnam’s application for asylum, 8 U.S.C. § 1158(b)(1)(A), and for withholding of

removal under the Immigration and Nationality Act (INA), 8 C.F.R. § 208.16(c)(2),

and under the Convention Against Torture (CAT), 8 C.F.R. § 208.18(a). The BIA USCA11 Case: 19-11984 Date Filed: 10/20/2020 Page: 2 of 10

specifically affirmed the immigration judge’s adverse credibility determination,

which found that Ratnam’s testimony was not credible and that the documents he

submitted to prove his identity were unreliable. Ratnam petitioned this Court for

review. After briefing and with the benefit of oral argument, we deny the petition.

I. On March 17, 2018, Ratnam attempted to enter the United States without valid

entry documents in violation of INA § 212(a)(7)(A)(i)(I). 8 U.S.C. §

1182(a)(7)(A)(i)(I). In response to removal proceedings, Ratnam filed an application

for asylum and for withholding of removal under the INA and the CAT, and a

hearing was set. Before the hearing, both Ratnam and the government submitted

various documents about Ratnam’s identity, including demographic information,

and about the current conditions for Tamils in Sri Lanka.

According to Ratnam’s testimony at the hearing, he was born in Sri Lanka and

is ethnically Tamil; the Sri Lankan army killed his sister, brother, and father; the Sri

Lankan army beat him while interrogating him on two occasions; and during the

second interrogation, the Sri Lankan army also beat his mother, breaking her hand,

and then detained him, removed one of his toenails, and held a gun to his head. Other

record evidence cast doubt on that testimony. For example, it suggested that

Ratnam’s sister committed suicide; that his brother died in a car accident; and that

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his father died in an accidental drowning. In Ratnam’s asylum application, he did

not mention the toenail removal.

Ratnam also testified about his journey from Sri Lanka to the United States,

in which he asserted he used the passport in the record. At first, he said that he flew

from Sri Lanka to Turkey, from Turkey to Haiti, and then from Haiti to the Bahamas.

In the Bahamas, he got on a boat that took him to the United States. He explained

that he had been locked in a house in Haiti for six months and averred that he had

been in no other countries. However, on cross examination, Ratnam stated that he

was deported from Haiti the same day that he arrived and that he spent time in

Colombia and Panama. He then returned to Haiti, where he stayed for around a week

before flying to the Bahamas. Although Ratnam admitted that he had interacted with

immigration officials in both Panama and Columbia, there were no entry or exit

stamps from either country in his passport.

Further discrepancies emerged. The name typed in Ratnam’s passport differs

from the name written on the back of the passport where his address is listed. Also,

the name in Ratnam’s passport did not match the name that Ratnam’s mother or the

Justice of the Peace used in their separate letters. And it appeared to be spelled

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differently from the name on his driver’s license, though that name was almost

illegible. There was also inconsistency and confusion around his father’s name.

After the hearing, the immigration judge denied Ratnam’s application for

asylum and withholding of removal in a written decision. The immigration judge

found that Ratnam had not proven with credible evidence that he was a Sri Lankan

Tamil and also made a general adverse credibility determination that Ratnam’s

testimony was not credible. The immigration judge explained that because Ratnam’s

testimony was not credible and his “personal documents” were not reliable, the

remaining evidence failed to show his eligibility for asylum or withholding of

removal.

Ratnam timely appealed to the BIA. Ratnam argued that the immigration

judge’s credibility determination was erroneous but did not challenge any specific

inconsistency on which the immigration judge relied in reaching that credibility

determination. The BIA affirmed the immigration judge’s decision, upholding his

credibility determination under a clear-error standard and explaining that without

credible testimony, Ratnam could not meet his burden to show eligibility for asylum

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or withholding of removal. Ratnam timely petitioned this Court for review, and we

granted his motion for a stay of removal.

II. We review the BIA’s legal conclusions de novo, Perez-Zenteno v. U.S. Att’y

Gen., 913 F.3d 1301, 1306 (11th Cir. 2019), and its factual findings under the

“highly deferential substantial evidence test,” Adefemi v. Ashcroft, 386 F.3d 1022,

1026–27 (11th Cir. 2004) (en banc). Under that test, the BIA’s factual findings “are

conclusive unless the record demonstrates that ‘any reasonable adjudicator would be

compelled to conclude the contrary.’” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218

(11th Cir. 2002) (quoting 8 U.S.C. § 1252(b)(4)(B)). When the BIA affirms the

immigration judge’s credibility determination on clear-error review, we assess the

immigration judge’s reasoning. Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1278

(11th Cir. 2020), see also Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230 (11th Cir.

2006) (“Insofar as the BIA adopts the [immigration judge]’s reasoning, we review

the [immigration judge]’s decision as well.”). We may only reverse the immigration

judge’s credibility determination if—“view[ing] the record evidence in the light

most favorable to the agency’s decision and draw[ing] all reasonable inferences in

favor of that decision,” Adefemi, 386 F.3d at 1027—the record “not only supports

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[an alternate credibility determination], but compels it,” INS v. Elias-Zacarias, 502

U.S. 478, 480 n.1 (1992).

III. The INA gives the Attorney General discretion to grant asylum to applicants

who qualify as “refugee[s]” under 8 U.S.C. § 1101(a)(42). The applicant bears the

burden of showing his refugee status. 8 U.S.C. § 1158(b)(1)(B)(i). To establish that

status, the applicant must present credible evidence establishing that “(1) he was

persecuted in the past ‘on account of race, religion, nationality, membership in a

particular social group, or political opinion’ (together, ‘protected grounds’), or (2)

he has a ‘well-founded fear’ of persecution in the future ‘on account of’ any of his

protected grounds.” Lingeswaran, 969 F.3d at 1286 (first citing 8 U.S.C. §§

1101(a)(42)(A), 1158(b)(1); and then citing 8 C.F.R. § 208.13(a), (b)).

Ratnam argues that he is eligible for asylum because the Sri Lankan

government persecuted him in the past and would persecute him in the future

because he is an ethnic Sri Lankan Tamil.1 To prove that he is Tamil, he presented

documents and his own testimony. The immigration judge found the documents

unreliable and the testimony not credible. We conclude that the record does not

1 Although the BIA did not reach Ratnam’s arguments about the persecution of ethnic Tamils, it has considered and rejected similar claims before. See Lingeswaran v. U.S. Att’y Gen., 969 F.3d 1278, 1290-91 (11th Cir. 2020) (“The BIA concluded that [the applicant’s] fear was not objectively reasonable because he did not show … that the Sri Lankan government routinely persecutes Tamils.”). 6 USCA11 Case: 19-11984 Date Filed: 10/20/2020 Page: 7 of 10

compel a finding that Ratnam’s testimony was credible nor that the submitted

documents were reliable. Accepting the immigration judge’s findings, we deny the

petition.

We cannot say the immigration judge lacked substantial evidence in finding

the documents unreliable. To prove his identity as a Tamil, Ratnam submitted a

purported Sri Lankan driver’s license and passport, as well as letters purportedly

from his mother, a Justice of the Peace who knew his family, and his divisional

secretary in Sri Lanka. As an important backdrop, the immigration judge found that

“document fraud is prevalent in Sri Lanka, especially in Colombo, which is where

[Ratnam] testified that he spent time” immediately before he left Sri Lanka. And

here, the driver’s license was not authenticated, and the name on it was either spelled

differently than the name on Ratnam’s passport or was illegible. The name typed on

the first two pages of Ratnam’s passport was spelled “Kagendran,” but the name

written on the back of the passport was spelled “Kagandran.” And the name in his

passport also differed from the name used in the letters of Ratnam’s mother and the

Justice of the Peace. Further casting suspicion on the passport, it lacked any travel

stamps from Colombia or Panama, even though Ratnam testified that he flew

through both of those countries on his way to the United States and interacted with

immigration officials in those countries. Finally, the father’s name in the Justice of

the Peace’s letter was different from the name given in Ratnam’s asylum

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applications and during his testimony. Because of inconsistencies internal to the

documents and contradictions between the documents and Ratnam’s testimony, the

immigration judge found that the documents were unreliable. We cannot conclude

that the immigration judge’s finding in this respect is unsupported by substantial

evidence.

We also cannot conclude that the immigration judge lacked substantial

evidence in finding Ratnam’s testimony not credible. Apart from identification

documents, the only other evidence Ratnam presented supporting his claim to be a

Sri Lankan Tamil was his own testimony. An applicant’s testimony “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, is

persuasive, and refers to specific facts sufficient to demonstrate that the applicant is

a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). Here, Ratnam’s testimony was riddled with

contradictions and inconsistencies: Ratnam said that the Sri Lankan Army murdered

his father, sister, and brother, but evidence in the record, including death records and

a family-friend’s account, suggests that the sister committed suicide, the brother died

in a vehicle accident, and the father accidentally drowned. At first Ratnam testified

that he traveled only to Haiti, the Bahamas, and Turkey on his way to the United

States, and that he spent six months “locked … in a house” in Haiti, yet during cross

examination he admitted that he had in fact been deported from Haiti the day he

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arrived and had spent time in Colombia and Panama. When Ratnam first testified

about his interaction with the Sri Lankan army, he did not mention that they put a

gun to his head, but later added that detail at his attorney’s prompting. Ratnam first

testified that the Sri Lankan army broke his hand and his mother’s hand but later

admitted that they had not broken his hand.

Ratnam does not deny that those inconsistencies exist. Instead, he argues that

“there can be various reasons … for the absence of entry stamps” on his passport;

that perhaps transliteration errors caused the names to be spelled differently; that the

“common sense answer” about the father’s death is that the “government issued

death certificate” would not say that the Sri Lankan Army had killed him; and that

the translator at Ratnam’s hearing must have made a mistake in interpreting his story

about the army breaking his and his mother’s hands. But, even assuming those

explanations are reasonable, our precedent does not require an immigration judge to

accept reasonable explanations of discrepancies and find that an applicant is

credible. See Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1051 (11th Cir. 2009)

(“Although Shkambi offered his fear as an explanation for these omissions and

inconsistencies, that explanation does not compel a conclusion that Shkambi was

credible.”); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (holding

that even if an asylum applicant offers tenable explanations for record-

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inconsistencies, those explanations do not compel reversal of the immigration

judge’s adverse credibility determination).

Because the record as a whole does not compel an alternative credibility

finding, we must accept the immigration judge’s credibility determination, which

leaves us with no credible evidence that Ratnam is a Sri Lankan Tamil. All of

Ratnam’s arguments that he was, or will be, persecuted because of a statutorily

protected ground require him to be Tamil. 2 Without credible evidence that he is

Tamil, Ratnam cannot meet his burden to establish eligibility for asylum or

withholding of removal. See 8 C.F.R. §§ 1208.13(a), 1208.16(b); see also Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1288 (11th Cir. 2005) (“Because Forgue has failed

to establish a claim of asylum on the merits, he necessarily fails to establish

eligibility for withholding of removal or protection under CAT.” (citation omitted)).

IV. Substantial evidence supports the BIA and immigration judge’s adverse

credibility determination, which forecloses Ratnam’s claims for asylum and

withholding of removal. Ratnam’s petition for review is DENIED.

2 Ratnam also argues that he has a fear of persecution upon removal because he is a failed asylum seeker. But he concedes that this additional claim must be considered “in conjunction with” his Tamil ethnicity and argues that the BIA erred in considering his failed-asylum-seeker argument independently of his Tamil ethnicity. Because of the immigration judge’s credibility finding about Ratnam’s Tamil ethnicity, Ratnam’s argument that he is likely to be persecuted as a failed asylum seeker also fails. 10