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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13489 ________________________
Agency No. A212-911-751
KAROOSHAN LINGESWARAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the Board of Immigration Appeals ________________________
(August 13, 2020)
Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.
BRANCH, Circuit Judge: Case: 18-13489 Date Filed: 08/13/2020 Page: 2 of 29
Karooshan Lingeswaran is a 26-year-old native and citizen of Sri Lanka. On
February 8, 2017, the United States Coast Guard interdicted Lingeswaran
approximately 12.5 nautical miles east of Miami, Florida, as he tried to enter the
United States illegally. Thereafter, the Department of Homeland Security (“DHS”)
commenced removal proceedings, charging him with inadmissibility under 8
U.S.C. § 1182(a)(7)(A)(i)(I),1 which Lingeswaran conceded. Lingeswaran applied
for asylum and withholding of removal pursuant to the Immigration and
Nationality Act (“INA”), and withholding of removal pursuant to Article 3 of the
United Nations Convention Against Torture (“CAT”),2 expressing a fear of
persecution if he returned to Sri Lanka. The INA requires an alien seeking asylum
to establish that he was persecuted “on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1)(A). 3 To be eligible for relief pursuant to CAT, an
1 That provision states that “any immigrant at the time of application for admission . . . who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under section 1181(a) of this title. . . is inadmissible.” 8 U.S.C. § 1182(a)(7)(A)(i)(I). 2 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, § 1, Dec. 10, 1984, S. Treaty Doc. No. 100–20 (1988), 1465 U.N.T.S. 85. 3 Section 1158(b)(1)(A) states: “The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A).” (emphasis 2 Case: 18-13489 Date Filed: 08/13/2020 Page: 3 of 29
applicant must establish “that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). 4
In order to meet the definition of torture, the harm must be “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).
The Board of Immigration Appeals (“BIA”) denied his application for asylum
and withholding of removal under the INA and withholding of removal under CAT
and ordered him removed from the United States. We affirm.
I.
A. Background5
Lingeswaran is an ethnic Tamil from the Jaffna area of Sri Lanka. From the
time he was born in 1993 until shortly before his departure from Sri Lanka in May
2010, the country was engulfed in a civil war between the Liberation Tigers of
added). Section 1101(a)(42)(A), in turn, defines the word “refugee” as “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 4 In full, § 208.16(c)(2) provides that “[t]he burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 5 In presenting the background information in this section, we rely on the statements made by Lingeswaran in his asylum application, credible fear interview, and removal hearing. 3 Case: 18-13489 Date Filed: 08/13/2020 Page: 4 of 29
Tamil Eelam (“LTTE” or “Tamil Tigers”) and the Sri Lankan government.6 To
say that the Sri Lankan civil war greatly impacted Lingeswaran’s life is an
understatement. In 1995 (when Lingeswaran was two years old), the Sri Lankan
army abducted and tortured his father for five days due to suspicion that he assisted
the LTTE by deploying a bomb near his mechanic shop. Terrified, the family
relocated to Mullaitivu, an area controlled by the LTTE. His father repaired cars
and paid the LTTE monthly dues. Lingeswaran and his brother attended the
LTTE-controlled school. Students at the school were expected to join a student
group which participated in various events celebrating the LTTE. For example, on
November 27 every year, the student group would place tents and flags along the
road and put on plays to honor the revolutionary group. As class president,
Lingeswaran organized and participated in the celebratory events and rallies.
Fourteen years after Lingeswaran’s family relocated, on May 17, 2009, the
Sri Lankan army captured the Mullaitivu area. Lingeswaran and his family
surrendered, along with thousands of other Tamils, and the army took them to a
refugee camp. Before entering the camp, the Sri Lankan army identified
Lingeswaran’s father as an LTTE member and dragged him away. Lingeswaran
never saw his father again.
6 In 1997, the United States Secretary of State designated the LTTE as a foreign terrorist organization pursuant to 8 U.S.C. § 1189(a)(1), (d)(4). See 62 Fed. Reg. 52650.
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In October 2009, the Sri Lankan army brought Lingeswaran to the nearby
army camp for an “investigation.” The army accused Lingeswaran of LTTE
involvement and, for about twenty minutes during the hour-long interrogation, beat
Lingeswaran with their hands and a rope.7 Lingeswaran denied any LTTE
involvement and they released him. Sometime after that interrogation, the Sri
Lankan army again took Lingeswaran in for questioning and accused him of
helping his aunt’s family (who were LTTE members) escape from the camp. The
second interrogation lasted roughly 15 minutes, during which the army members
hit and kicked Lingeswaran and put a gun to his head. Afterwards, they put him in
line with approximately 50 other Tamils to be taken to Boossa—a location where
people were known to be tortured. Just then, a human rights organization arrived.
That arrival prompted the army to tell those in line, including Lingeswaran, to
return to the camp and that they would take them to Boossa later.
In November 2009, Lingeswaran escaped from the camp and made his way
to Colombo, Sri Lanka. He left Sri Lanka in May 2010 and travelled to France.
While in France, he applied for asylum, received 300 euros a month in benefits
from the French government, and worked in a store. According to Lingeswaran,
7 In his application, Lingeswaran said that the interrogators hit him with a rope. But he initially testified in the merits hearing that they only hit him with their hands. He added that the army also hit him with a rope only after his attorney reminded him that his asylum application reflected that he was hit with a rope. The IJ noted this conflicting account as one of a few discrepancies between Lingeswaran’s application and testimony.
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he failed to appear for an immigration interview because he planned to come to the
United States, and his application for asylum in France was denied. He then left
France and made his way to the United States by way of the Bahamas, using a
passport given to him by an “agent” arranging his travel.
Meanwhile, in June 2010, Lingeswaran’s mother and brother fled to India.
They returned to Sri Lanka in April 2015. Upon their arrival, the Sri Lankan
government forces arrested Lingeswaran’s brother and tortured him for one week.
The army released him, but told him that until Lingeswaran returned, he would
have to check in with the army every month. They also told his brother that
Lingeswaran’s name was on a list at the airport and Lingeswaran would be arrested
and killed if he came back.
B. Immigration Court and BIA Proceedings
The Immigration Judge (“IJ”) denied Lingeswaran’s claims and ordered his
removal to Sri Lanka. With regard to his asylum claim, the IJ found that the
evidence showed that the Sri Lankan army interrogated Lingeswaran on account of
his possible involvement with a terrorist organization and not on account of a
protected ground. Moreover, the IJ concluded that the Sri Lankan army’s
treatment of Lingeswaran did not rise to the level of persecution. The IJ further
found that Lingeswaran did not show that he had a well-founded fear of
persecution if he returned because the Sri Lankan civil war ended in 2009 and his
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family appeared to be living there safely now. And because Lingeswaran had not
shown a well-founded fear of persecution that qualified for asylum, he also
necessarily fell short of carrying his burden for the higher standard required for
withholding of removal. The IJ concluded that Lingeswaran’s CAT claim failed
because “there [wa]s no objective evidence in the file” that the Sri Lankan
government would specifically target him. Rather, the evidence showed that the
Sri Lankan government was “trying to take every measure that they can to get the
country back on track” and no longer supported the mistreatment of Tamils.
Lingeswaran appealed to the BIA. The BIA agreed with the IJ’s decision
regarding Lingeswaran’s CAT claim and with the IJ’s determinations on the issues
of past persecution and well-founded fear of being singled out for persecution
underlying Lingeswaran’s asylum claim. But the BIA held that remand was
necessary because the IJ had failed to consider the remaining issue underlying
Lingeswaran’s asylum claim: whether Lingeswaran had established a well-founded
fear of future persecution based on a pattern or practice of persecuting Tamils.
On remand, the IJ determined that there was not a pattern or practice of
persecution of Tamils in Sri Lanka.8 The IJ observed that the country background
materials submitted by the parties showed that Tamils face discrimination and
8 The IJ incorporated his 2017 decision and noted that he had considered the admitted evidence in its entirety. 7 Case: 18-13489 Date Filed: 08/13/2020 Page: 8 of 29
harassment in Sri Lanka. But although the Sri Lankan government “has been slow
to implement change,” the IJ found that “the government has continued to improve
the situation for Tamils since the war ended in 2009.” The IJ emphasized that the
Sri Lankan government has established the “Office of National Unity and
Reconciliation” to protect the rights of all citizens and heal communities affected
by the war. Further, the IJ noted that “the Sri Lankan Prime Minister [publicly]
stated that Sri Lanka will not prosecute Sri Lankan asylum seekers who left the
country illegally.” The IJ observed, “[i]f the Sri Lankan government is not
prosecuting returning asylum seekers and is not imputing those returning to Sri
Lanka to be LTTE members, this evidence makes it less likely that the government
is persecuting Tamils.” Accordingly, the IJ found that Lingeswaran did not qualify
for asylum.
On appeal, the BIA sympathized with Lingeswaran: “We have no wish to
minimize the suffering of ethnic Tamils in Sri Lanka, and we understand why the
respondent does not wish to return to that country.” 9 But it upheld the IJ’s decision
because the IJ’s factual findings did not reveal that “the mistreatment of ethnic
Tamils in Sri Lanka is [] so extreme and pervasive as to establish a ‘pattern or
practice’ of persecution, such that we can say all Tamils qualify for asylum and
9 As an initial matter, the BIA noted that its prior decision affirming the IJ’s denial of CAT protection and asylum insofar as Lingeswaran claimed an individualized fear of persecution was the law of the case; thus, the BIA would not “revisit” those determinations. 8 Case: 18-13489 Date Filed: 08/13/2020 Page: 9 of 29
withholding of removal in the United States, whether or not they have a
particularized fear of persecution.” This petition for review followed.
II.
We review the BIA’s legal conclusions de novo. D-Muhumed v. U.S. Att’y
Gen., 388 F.3d 814, 817 (11th Cir. 2004). Its factual findings, however, “are
conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C. § 1252(b)(4)(B). We therefore review the BIA’s findings
of fact under the “highly deferential substantial evidence test.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). That test requires us to
“view the record evidence in the light most favorable to the agency’s decision and
draw all reasonable inferences in favor of that decision.” Id. In other words, we
must affirm the BIA’s factual findings so long as they are “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quoting
Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)). When “the record
could support or contradict the conclusion of the BIA, we must affirm its
decision.” Recinos v. U.S. Att’y Gen., 566 F.3d 965, 967 (11th Cir. 2009).
III.
A. Asylum
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On appeal, Lingeswaran argues the BIA erred in rejecting his claims for
asylum pursuant to 8 U.S.C. § 1101(a)(42)(A). The INA gives the Attorney
General discretion to grant asylum to eligible applicants. 8 U.S.C. 1101(a)(42)(A);
INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987) (“[T]he Attorney General
is not required to grant asylum to everyone who meets the definition of refugee.”)
(emphasis in original); Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230–31 (11th
Cir. 2005) (“If he or she meets [their] burden, the actual grant of asylum is a matter
of discretion.”). To establish asylum eligibility, the applicant must, with credible
evidence, establish (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. 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1); 8 C.F.R. § 208.13(a), (b). According to Lingeswaran, he is eligible for
asylum through either avenue. Taking each argument in turn, we conclude that
Lingeswaran is not eligible for asylum. 10
10 Although Lingeswaran submits various arguments to as to why the BIA erred in denying his asylum claim, he does not appear to challenge specifically the BIA’s rejection of his related withholding of removal claim. But to the extent he also contests that decision, it also fails. Similar to an asylum claim, an applicant for withholding of removal must show that his life or freedom would be threatened because of a protected ground. 8 U.S.C. §§ 1231(b)(3)(A),(C), 1158(b)(1)(B). But the burden on the applicant for withholding of removal is higher: he must establish a “clear probability” of persecution on account of a protected ground. INS v. Stevic, 467 U.S. 407, 430 (1984). Because we hold that Lingeswaran cannot meet the lower burden for asylum relief pursuant to 8 U.S.C. § 1101(a)(42)(A), he necessarily cannot meet the burden for withholding of removal relief pursuant to § 1231(b)(3). 10 Case: 18-13489 Date Filed: 08/13/2020 Page: 11 of 29
1. Past Persecution
We first address Lingeswaran’s argument that the BIA committed legal error
by failing to consider whether the Sri Lankan army had multiple motivations in
persecuting him, including his Tamil ethnicity 11 or his imputed political opinion,
i.e., support of the LTTE. Along those same lines, he asserts that the BIA wrongly
concluded that Lingeswaran was not persecuted on account of a protected
ground.12
The BIA engaged in the proper analysis in determining whether
Lingeswaran was persecuted on account of a protected ground. Because an
applicant’s protected trait “need not be the only motivation for the persecution,”
Sanches-Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007), where
See Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th Cir. 2009) (“An alien who fails to establish that he has a well-founded fear of persecution necessarily fails to establish eligibility for withholding of removal.”). 11 The asylum statute provides a list of five protected grounds: “race, religion, nationality, membership in a particular social group, [and] political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). In seeking asylum, Lingeswaran claims that his “Tamil nationality/ethnicity/race” is a protected ground. We need not decide whether his Tamil ethnicity is, in fact, a statutorily protected ground, however, because the government has not raised this issue and because we affirm the BIA for other reasons. 12 Lingeswaran relatedly claims that the IJ erred in finding that the Sri Lankan army’s treatment of him did not amount to persecution. We cannot address this argument because the BIA did not adopt this finding in its decision and therefore it “does not form any part of the order currently under review.” Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). Rather, the BIA affirmed the IJ’s denial of asylum based only on its conclusion that Lingeswaran’s ethnicity or imputed political opinion was not one central reason for his alleged harm.
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multiple motivations are at a play, the BIA must determine whether a protected
ground “was or will be at least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i).
Here is how the BIA addressed Lingeswaran’s claim that he was persecuted
on account of a protected trait:
With respect to the issue of past persecution, the respondent testified that he was detained and beaten by the Sri Lankan military because they believed that he was a member of the LTTE. However, we find no clear error in the Immigration Judge’s finding that the respondent’s ethnicity or imputed political opinion was not one central reason for his alleged harm. Instead, the Immigration Judge properly found that the respondent’s alleged harm was part of an investigation that occurred in the midst of a civil war.
We thus turn to the IJ’s reasoning. See Najjar, 257 F.3d at 1284. The IJ also
considered whether Lingeswaran was persecuted on account of his ethnicity or
imputed political opinion:
Respondent was I believe, if I am not mistaken, detained by the military on two separate occasions. This was during the time of the war between the Tamil Tigers and the Sinhalese majority, the Sri Lankan army. And he was questioned not because they wanted to punish him because of his race or his religion or nationality, membership in a particular social group or political opinion, but rather because of their belief that he may have been associated with a terrorist organization, the LTTE Tigers, so I don’t see a connection to a protected ground.
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Thus, both the IJ and the BIA explicitly considered whether Lingeswaran’s
ethnicity or political opinion could have played a role in his alleged persecution.
We therefore find no legal error.13
Nor does anything in the record compel us to overturn the BIA’s factual
finding that Lingeswaran was not persecuted on account of a protected ground. An
asylum applicant has the burden to establish that “race, religion, nationality,
membership in a particular social group, or political opinion was or will be at least
one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
Here, the record supports the BIA’s conclusion that the Sri Lankan army’s alleged
treatment of Lingeswaran was not on account of a protected ground, but rather his
possible involvement with a terrorist organization.
We have explained that “[t]he fact that the government and [a revolutionary
group] are fighting to achieve political objectives does not imbue every act
committed by them with political significance.” Perlera-Escobar v. Exec. Office
13 Relatedly, Lingeswaran objects that the BIA failed to consider his asylum claim “cumulatively on account of being a Tamil, failed asylum seeker, and a family member of a LTTE member.” More specifically, he claims that the BIA failed to consider his failed asylum seeker status at all. Contrary to Lingeswaran’s assertion, the IJ’s findings, which the BIA accepted, included the finding that the Sri Lankan government is not prosecuting failed asylum seekers. As to Lingeswaran’s argument that the BIA should have considered all of his asserted protected grounds cumulatively, he does not rely on any precedent requiring the BIA to engage in a “cumulative analysis,” and we are not aware of any. Rather, the BIA properly considered whether one of the asserted protected grounds was “at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). Therefore, the BIA did not legally err by not engaging in a “cumulative analysis.” 13 Case: 18-13489 Date Filed: 08/13/2020 Page: 14 of 29
for Immigration, 894 F.2d 1292, 1299 (11th Cir. 1990). And the BIA has
interpreted the meaning and scope of the phrase “persecution . . . on account of . . .
political opinion” to exclude “harm and threats that may incidentally result from
behavior meant to achieve a political objective, be it the overthrow of the existing
government or, alternatively, the defense of the government against armed
insurrection.” Id. at 1297 (citing Matter of Rodriguez-Majano, 19 I. & N. Dec. 811
(BIA 1988)). Thus, a “duly established government” such as the government of
Sri Lanka, “has the internationally recognized right to defend itself against attack
and rebellion.” Id. This right encompasses investigations of suspected terrorists.
Id. Therefore, “in the context of civil war where fear permeates the life of every
citizen, the motivation of the persecutor becomes the linchpin of the analysis.” Id.
“Statements of perpetrators are a crucial factor to be considered in determining
motive.” In re S-P-, 21 I. & N. Dec. 486, 494 (BIA 1996). But “[w]hat constitutes
a political opinion under the [INA] is a political question which the courts are not
especially qualified to decide.” Perlera-Escobar, 894 F.2d at 1299. We therefore
“accord a presumption of correctness to the BIA’s conclusion” that the Sri Lankan
government’s interrogation of Lingeswaran was not on account of political
opinion. Id. With that presumption in mind, we turn to the record.
The record does not compel us to find that Lingeswaran was persecuted on
account of an imputed political opinion. Again, the motivation of the alleged
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persecutors is key to this inquiry. Id. The record shows that suspicion that
Lingeswaran was involved with terrorist activity motivated the Sri Lankan army.
The LTTE, a recognized terrorist organization, had attacked and rebelled against
the Sri Lankan government for decades. Lingeswaran testified that he lived in an
area of Sri Lanka controlled by the LTTE and organized events celebrating the
LTTE. His father paid LTTE dues and had been arrested previously for suspected
terrorist activities. Others in Lingeswaran’s family were LTTE members. In this
context, where the Sri Lanka government and the LTTE had been engaged in a
decades-long war and Lingeswaran had multiple links to that group, any alleged
harm Lingeswaran suffered was “not because of political opinion,” but rather
because he may have been “an opponent of the government.” Id. Thus, the record
supports the BIA’s finding that the Sri Lankan army interrogated him on account
of possible terrorist involvement.
Nor is there evidence in the record that compels us to find that the Sri
Lankan military targeted Lingeswaran on account of his Tamil ethnicity, as
opposed to its concern that he was a member of a terrorist group that opposed the
government. Lingeswaran testified that during the civil war between the Sri
Lankan government and the LTTE, the Sri Lankan army only arrested and attacked
Tamils. For sure, as its name implies, the Liberation Tigers of Tamil Eelam, also
known as the “Tamil Tigers,” was composed of ethnic Tamils. Yet, that evidence,
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by itself, does not prove that the military was arresting people on account of their
ethnicity rather than their involvement with a terrorist organization. Indeed, as to
his interrogation while living in the Tamil refugee camp, Lingeswaran
acknowledged that this interrogation was part of a broader investigation into his
connections to the Tamil Tigers. That is, he noted that his interrogators “asked
[him] whether [he] went for training with the Liberation Tigers,” said they “had
information that [he] was involved” with the group, and “wanted to know [about
his] aunt’s involvement with the Liberation Tigers” and “where [she] went” when
she escaped from the camp. This evidence further supports the BIA’s conclusion
that Lingeswaran was targeted as “part of an investigation that occurred in the
midst of a civil war,” not based on his ethnicity. In fact, Lingeswaran has not
alleged that any member of the Sri Lankan army made any statement indicating
that they were harming him because he was Tamil. To the contrary, according to
Lingeswaran’s own testimony, they repeatedly voiced their concern that he was a
member of the LTTE. Accordingly, the record supports the BIA’s conclusion that
Lingeswaran was not persecuted on account of a protected ground. 14
14 On appeal, Lingeswaran faults the IJ for failing to engage in a “complex and contextual” analysis into Sri Lanka’s country conditions in concluding that he was not persecuted on account of his political opinion. He also argues that he was persecuted on account of an imputed political opinion because he was interrogated extrajudicially. But Lingeswaran did not present these arguments on appeal to the BIA. We cannot review a final order of removal where the petitioner has failed to “exhaust [ ] all administrative remedies available to [him] as of right.” 8 U.S.C. § 1252(d)(1). “When a petitioner has neglected to assert an error before the BIA that he later attempts to raise before us, the petitioner has failed to exhaust his 16 Case: 18-13489 Date Filed: 08/13/2020 Page: 17 of 29
2. Well-Founded Fear of Future Persecution
Turning to Lingeswaran’s second purported basis for asylum, he contends
that he has a well-founded fear that the Sri Lankan government will persecute him
in the future if he returns. Even where an applicant has not suffered past
persecution, he may still qualify for asylum based on his fear of persecution upon
his return. An applicant can establish that he has a well-founded fear of future
persecution by either (1) presenting “‘specific, detailed facts showing a good
reason to fear that he . . . will be singled out for persecution’ on account of such a[]
[protected basis],” Najjar, 257 F.3d at 1287 (quoting Faddoul v. INS, 37 F.3d 185,
188 (5th Cir. 1994)), or (2) showing “that he is a member of, or identified with, a
group that is subjected to a pattern or practice of discrimination.” Djonda, 514 F.3d
at 1174; see also 8 C.F.R. § 208.16(b)(2). Either way, the applicant’s fear of
persecution must be “subjectively genuine and objectively reasonable.” Sepulveda,
401 F.3d 1226, 1231 (11th Cir. 2005) (quoting Najjar, 257 F.3d at 1289). The BIA
concluded that Lingeswaran’s fear was not objectively reasonable because he did
not show that the Sri Lankan government would target him or that the Sri Lankan
government routinely persecutes Tamils. Substantial evidence supports that
finding.
administrative remedies.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016). Thus, we cannot review these specific objections. 17 Case: 18-13489 Date Filed: 08/13/2020 Page: 18 of 29
a. Individualized Risk of Persecution
Lingeswaran argues that he will be targeted for persecution because the Sri
Lankan army detained and tortured his brother and instructed him to check in
weekly at the army camp until Lingeswaran returned. He also claims that in 2015,
the army warned his brother that Lingeswaran’s name was on a list at the airport
and the army would arrest and kill him as soon as he returned.
The BIA considered Lingeswaran’s brother’s experience: it observed that
“[a]lthough [Lingeswaran’s] brother was arrested upon returning to Sri Lanka [in
2015], the respondent did not establish that his brother is still being targeted by the
Sri Lankan military.” Nothing in the record disturbs that finding, which
undermines any argument that Lingeswaran’s fear remains objectively reasonable,
even assuming it once was objectively reasonable. See Djonda, 514 F.3d at 1176
(“[W]e would still deny . . . relief because the record does not compel the
conclusion that [the petitioner] has a well-founded fear that he will be treated like
his brother[].”). And, other than his own merits hearing testimony, Lingeswaran
did not provide any evidence that the Sri Lankan army told his brother that they
would imprison Lingeswaran for a significant period or otherwise harm him. See
id. at 1176.
Finally, the IJ found that “there is no evidence whatsoever that his name is
on the list at the airport, that as soon as he gets there he is going to be picked up
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and incarcerated and perhaps even killed.” We agree. Nothing in the record, other
than Lingeswaran’s vague, uncorroborated testimony about a warning given to his
brother in 2015 by an unidentified member of the Sri Lankan army, indicates that
Lingeswaran’s name is on any airport list. Thus, the record does not compel us to
find that that Lingeswaran has an objectively reasonable fear that the Sri Lankan
army will single him out for persecution. Sepulveda, 401 F.3d at1231.15
b. Pattern or Practice of Persecution
But “[a]n alien does not have to prove he would be singled out if he can
establish a pattern or practice of persecution of a group of which he is a member.”
Mehmeti v. U.S. Att’y. Gen., 572 F.3d 1196, 1200 (11th Cir. 2009) (citing 8 C.F.R.
§ 208.13(b)(2)(iii)). To that end, Lingeswaran claims that he has a credible fear of
persecution based on the Sri Lankan government’s “pattern or practice” of
persecuting Tamils. Against the IJ’s finding that the treatment of Tamils in Sri
Lanka is not so extreme and pervasive to constitute a pattern or practice of
persecution, Lingeswaran claims the evidence in the record does in fact show such
a pattern or practice.
15 As noted previously, the IJ observed that there were some inconsistencies between Lingeswaran’s testimony and his application. For example, the first and only time that Lingeswaran stated that his brother reported that the Sri Lankan army would kill him was at his May 8, 2017 merits hearing. Similarly, the first time Lingeswaran stated definitively that his name was on a list was during his merits hearing. Although the IJ did not go so far as to say that his testimony was generally not credible, the IJ found these inconsistencies factored into Lingeswaran’s burden of proof. 19 Case: 18-13489 Date Filed: 08/13/2020 Page: 20 of 29
Substantial evidence in the record shows that although the Sri Lankan
government regularly treated Tamils horrifically during the civil war, the
government does not have a pattern or practice of doing so now. Instead, the Sri
Lankan government has made recognized efforts to improve the situation for
Tamils and reconcile the country since the conclusion of the war, albeit slowly.
One 2015 news article from the Tamil Guardian reports that in that year, in an
effort of reconciliation, the Sri Lankan government launched an internal
investigation into the treatment of Tamils during the civil war. Another
background document from 2016, an immigration assessment undertaken by the
Australian government, reflects that, since coming to power in 2015, the Sri
Lankan government has:
established a new reconciliation taskforce mandated with ‘healing the wounds of mistrust and social and cultural stress generated from extended conflicts between different communities in Sri Lanka,’ replaced military governors with civilian governors in the Northern and Eastern Provinces, reduced high security zones, released land formerly held by the military, released some individuals held under the Prevention of Terrorism Act 1979 (PTA) and engaged constructively with the Tamil National Alliance (TNA) and the international community.
It also highlights that “the situation has markedly improved for Tamils since the
end of the war.” Specifically, “incidences of extra-Judicial killing, disappearances
and kidnappings for ransom has fallen considerably” since the end of the civil war
and “do not appear to be ethnically[ ]based.” And a 2017 article from the
20 Case: 18-13489 Date Filed: 08/13/2020 Page: 21 of 29
Australian Associated Press reports that the Sri Lankan Prime Minister urged
asylum seekers to return to the country, insisting that “[i]t is quite safe for them to
come back.” The record also shows that Tamils have made political advancements
in Sri Lanka. According to the 2016 Australian government study, a free and fair
election in 2015 resulted in Tamil representation in the Sri Lankan Parliament.
That same year, the Prime Minister “vowed to implement the India-backed 13th
Amendment within a unitary framework for the devolution of power to [Tamil]
provinces, to achieve reconciliation with the minority Tamil community.”
To be sure, the record also shows that Tamils still encounter discrimination
and mistreatment. But because substantial evidence in the record supports the
agency’s finding that the mistreatment of Tamils in Sri Lanka is not so extreme
and pervasive as to establish a pattern or practice of persecution, that conclusion
must stand.
Lingeswaran relatedly claims that the BIA and IJ committed legal errors.
First, he argues that the IJ erred by failing to consider the background country
materials he submitted into evidence and, if it had, the IJ would have found a
pattern or practice of discrimination against Tamils. True, “the [Immigration
Judge] must ... consider all evidence introduced by the applicant.” Tan v. U.S. Att’y
Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (alterations in original) (quoting
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir.2005). But while the IJ
21 Case: 18-13489 Date Filed: 08/13/2020 Page: 22 of 29
must consider all the evidence, it does not need to discuss each piece of evidence
in its order. Id. (noting that we do not require IJs to address each piece of evidence
specifically so long as there is enough on the record for appellate review). In its
analysis of Lingeswaran’s claim, the IJ relied on and cited specific exhibits. It also
stated that in rendering its decision it “ha[d] considered all admitted evidence in its
entirety” and provided a summary of the exhibits. Thus, the IJ committed no legal
error in that respect.
Lingeswaran also attacks the weight the IJ gave to the evidence.
Specifically, he argues that the IJ did not sufficiently consider the “Resolution on
Genocide” report he submitted. Although IJs are “obligated to consider [an
applicant’s] documentary evidence,” they are “under no obligation to credit it or
assign it decisive weight.” Mohammed v. U.S. Att’y Gen., 547 F.3d 1340, 1347
(11th Cir. 2008). The IJ did not err just because it did not afford a certain piece of
evidence as much weight as Lingeswaran wished.
Finally, Lingeswaran charges that the BIA erred in failing to engage in a
“disfavored group” analysis under 8 C.F.R. § 1208.13(b)(2)(iii), the regulation
governing pattern-or-practice claims. This claim likewise fails.
Section 1208.13(b)(2)(iii) provides that the agency “shall not require the
applicant to provide evidence that there is a reasonable possibility he or she would
be singled out individually for persecution” if:
22 Case: 18-13489 Date Filed: 08/13/2020 Page: 23 of 29
(A) The applicant establishes that there is a pattern or practice in his or her country of nationality or, if stateless, in his or her country of last habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.
(emphasis added). In other words, an applicant who cannot establish that he will
be singled out for persecution must prove both (1) that there is a pattern or practice
of persecuting a group and (2) that he is a member of that group. As discussed
above, substantial evidence supports the BIA’s finding that Lingeswaran had not
established a pattern or practice of persecuting a group to which he belonged.
Thus, to the extent he contends that the BIA failed to conduct a pattern-or-practice
analysis, the record belies his argument.
Lingeswaran’s reliance on Ninth Circuit authority, however, indicates that
he is making a different argument. The Ninth Circuit has embraced a judicially-
created “disfavored group” test, under which an applicant who cannot show a
pattern or practice of persecution is nevertheless eligible for asylum if he can
establish that (1) he is a member of the group that is “disfavored,” and (2) he has
“an individualized risk of being singled out for persecution.” See Sael v. Ashcroft,
368 F.3d 922, 925 (9th Cir. 2004). Under Ninth Circuit precedent, these elements
“operate in tandem,” meaning that “the ‘more serious and widespread the threat’ to
23 Case: 18-13489 Date Filed: 08/13/2020 Page: 24 of 29
the group in general, ‘the less individualized the threat of persecution needs to
be.’” Id. Under that test, asylum applicants are eligible for relief if they establish
membership in a group that is “disfavored,” and they have “an individualized risk
of being singled out for persecution.” Id.
Because the “disfavored group” test departs from the plain language of the
statute, we join our sister circuits in rejecting this “judicially created alternative to
the statutory and regulatory scheme.” Kho v. Keisler, 505 F.3d 50, 55 (1st Cir.
2007); Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6 (7th Cir. 2005); Lie v.
Ashcroft, 396 F.3d 530, 538 n.4 (3d Cir. 2005). The Ninth Circuit’s “disfavored
group” test conflicts with the plain language of § 1208.13(b)(2)(iii), which
provides for two alternative methods of establishing a well-founded fear of future
persecution: an applicant can show either that he will be “singled out individually
for persecution” or that there is “a pattern or practice” of persecuting a group to
which he belongs. 8 C.F.R. § 1208.13(b)(2)(iii). Section 1208.13(b)(2)(iii) does
not contemplate different burdens of proof depending on whether an applicant is a
member of a group that is “disfavored.” While evidence that an applicant is a
member of a disfavored group can surely be relevant in assessing whether an
applicant has carried his burden to show either (1) that he will be individually
singled out for persecution or (2) that he will be persecuted pursuant to a pattern or
practice, that is quite different than saying membership in a disfavored group
24 Case: 18-13489 Date Filed: 08/13/2020 Page: 25 of 29
lessens an applicant’s burden to show a reasonable possibility of future
persecution, as the “disfavored group” test allows. In short, we disagree with the
Ninth Circuit that the degree to which a group is disfavored alters an applicant’s
burden to establish either an individualized risk or a pattern or practice of
persecution. Accordingly, the agency did not err by failing to analyze
Lingeswaran’s well-founded fear of future persecution claim under the “disfavored
group” test.
B. CAT Claim
Lingeswaran argues the BIA erred in finding that he did not qualify for
withholding of removal pursuant to CAT because the Sri Lankan government
continues to execute atrocities against Tamils and his family members in Sri Lanka
live in fear. To be eligible for relief pursuant to CAT, an applicant must meet a
higher burden than for asylum eligibility, and show “that it is more likely than not
that he or she would be tortured if removed to the proposed country of removal.” 8
C.F.R. § 208.18(c)(2). CAT only provides protection from torture where it 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. § 208.16(a)(1); see
also Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1323; Reyes-Sanchez v. U.S.
Att’y Gen., 369 F.3d 1239 (11th Cir. 2004). Acquiescence “requires that the public
official, prior to the activity constituting torture, have awareness of such activity
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and thereafter breach his or her legal responsibility to intervene to prevent such
activity.” 8 C.F.R. § 208.18(a)(7). “The burden of proof for an applicant seeking
withholding of removal under the Convention, like that for an applicant seeking
withholding of removal under the statute, is higher than the burden imposed on an
asylum applicant.” Najjar, 257 F.3d at 1303; see also 8 C.F.R. § 208.16(c)(2).
The record does not compel a finding of torture by, or at the acquiescence
of, the Sri Lankan government. To the contrary, according to a U.S. State
Department report, since the end of the civil war in 2009, the government of Sri
Lanka has established procedures to investigate claims of torture and arrested
military police and other officials suspected of involvement in torture. And
according to a report by a non-profit organization, “Freedom from Torture,” the Sri
Lankan government has also adopted policies and passed legislation aimed at
protecting victims, witnesses, and detainees. Moreover, in 2016, the Sri Lankan
government established a committee, charged with “visit[ing], examin[ing], and
tak[ing] preventative measures on allegations of torture,” as well as the Office of
National United and Reconciliation, charged with “coordinating the government’s
efforts toward reconciliation.” A government does not “acquiesce” to torture
where it “actively, albeit not entirely successfully, combats” the alleged torture.
Reyes–Sanchez, 369 F.3d at 1243. Accordingly, we deny Lingeswaran’s petition
for review of the denial of relief under CAT.
26 Case: 18-13489 Date Filed: 08/13/2020 Page: 27 of 29
IV.
In sum, substantial evidence supports the BIA’s rejection of Lingeswaran’s
claims for asylum, withholding of removal, and CAT relief. And neither the IJ nor
the BIA committed any legal errors. Accordingly, Lingeswaran’s petition for
review is DENIED. 16
16 Judge Wilson concurs with our decision in this case, but writes specially to note that he agrees with Judge Jordan’s interpretation of the INA’s “at least one central reason” standard, as set out in 8 U.S.C. § 1158(b)(1)(B)(i). See Diaz-Rivas v. U.S. Att’y Gen., 769 F. App’x 748, 758−65 (11th Cir. 2019) (Jordan, J., concurring in part and dissenting in part). Notably, on that point, Judge Jordan was writing in dissent in the unpublished, non-precedential decision in Diaz- Rivas. In contrast, Judge Grant, who authored the majority opinion in Diaz-Rivas, interpreted the term “central reason” to mean “a reason of primary importance to the persecutors, one that is essential to their decision to act. . . . In other words, a motive qualifies as central if the persecutor would not have harmed the applicant if the protected trait did not exist.” 769 F. App’x at 754 (quotations omitted). We find Judge Grant’s interpretation to be well-reasoned. Nonetheless, we agree with Judge Wilson that given the particular facts of the case now before us, we do not have to resolve the question at issue in Diaz-Rivas. 27 Case: 18-13489 Date Filed: 08/13/2020 Page: 28 of 29
WILSON, Circuit Judge, concurring:
I concur with the majority but write separately to clarify my analysis of
Lingeswaran’s past-persecution theory of asylum. Eligibility for asylum relief
turns on the reason(s) for persecution. See 8 U.S.C. § 1158(b)(1)(B)(i). “[T]he
applicant must establish that race, religion, nationality, membership in a particular
social group, or political opinion was or will be at least one central reason for
persecuting the applicant.” Id.
I agree with Judge Jordan’s interpretation of the “at least one central reason”
standard. See Diaz-Rivas v. U.S. Att’y Gen., 769 F. App’x 748, 758–65 (11th Cir.
2019) (Jordan, J., concurring in part and dissenting in part). The statute plainly
contemplates the possibility that a persecutor may have “multiple central reasons”
for persecuting an applicant. Id. at 763. If the facts of a case bear out that
possibility, the statute requires only that a protected reason be “one” of the
multiple central reasons shown. § 1158(b)(1)(B)(i). “[T]he applicant is not
required to show that the protected reason was the primary or dominant reason
they were persecuted.” Diaz-Rivas, 769 F. App’x at 760. “Requiring primacy or
dominance would recast the inquiry as one into ‘the central’ as opposed to ‘at least
one central’ reason for persecution and would vitiate the possibility of a mixed
motive claim.” Id. (alterations adopted) (internal quotation marks omitted).
28 Case: 18-13489 Date Filed: 08/13/2020 Page: 29 of 29
Lingeswaran’s problem is that he failed to show that a protected reason was
a reason at all for his alleged persecution. The agency found that the Sri Lankan
army had only one motivation here: its legitimate investigation of LTTE terrorist
activity during the civil war. The IJ found that the army “questioned
[Lingeswaran] not because [of a protected ground], but rather because of their
belief that he may have been associated with a terrorist organization, the LTTE
Tigers.” In other words, this case does not involve mixed motives, and the one
reason for persecution is not protected. See § 1158(b)(1)(B)(i). Therefore,
Lingeswaran did not establish that a protected ground “was . . . at least one central
reason for” his alleged persecution. See id.