Murugamoorthy v. Ashcroft

90 F. App'x 260

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 2004
• Docket: No. 02-71726; Agency No. A79-144-415
• Status: Published

Opinion

MEMORANDUM

**

This is a streamlined case in which we review the decision of the immigration judge (“IJ”).¹ Under INS v. Elias-Zacarias2 and Ghebllawi v. INS3 we review the entire administrative record to see if substantial evidence supports the IJ’s adverse credibility finding.⁴ We may only reverse the IJ in favor of the petitioner if “the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution,” or the requisite probability of persecution or torture upon removal.⁵

Sasikumar Murugamoorthy, a 22-year-old male Tamil, alleged at his asylum hearing that he had been arrested and beaten three times by the Sri Lankan army for his suspected connections with the Liberation Tigers of Tamil Eelam, or the Tamil Tigers. The testimony at the hearing did not comport with the statement Murugamoorthy gave at the Honolulu airport, where he attempted to enter the United States, or with the letter his uncle wrote in support of Murgamoorthy’s asylum application. The airport statement and the unde’s statement, because they are inconsistent Murugamoorthy’s testimony, amount to substantial evidence that supports the IJ’s adverse credibility finding and defeats his asylum and withholding of removal claims.⁶ In Singh v. INS7 the variance between the airport statement and the testimony was an insufficient basis for the adverse credibility determination because the translator did not speak the applicant’s language. But that problem does not arise in this case. Moreover, the IJ properly engaged in the separate CAT analysis that Kamalthas v. INS requires,⁸ and substantial evidence supports his determination that it is not more likely than not that Murugamoorthy will be tortured if returned to Sri Lanka.⁹

Petition DENIED.

NOONAN, Circuit Judge, dissenting.

I respectfully dissent.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . 8 C.F.R. § 1003.1(a)(7); see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003).

2 . INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Prasad v. INS, 47 F.3d 336, 338-39 (9th Cir.1995).

3 . Ghebllawi v. INS, 28 F.3d 83, 85 (9th Cir. 1994).

4 . Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000).

5 . Elias-Zacarias, 502 U.S. at 483-84; Gomez-Saballos v. INS, 79 F.3d 912, 914 (9th Cir. 1996).

6 . Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000); see INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A); INA § 241(b)(3); 8 U.S.C. § 1231(b)(3); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995).

7 . Singh v. INS, 292 F.3d 1017, 1021-22 (9th Cir.2002).

8 . Kamalthas v. INS, 251 F.3d 1279, 1283-84 (9th Cir.2001).

9 . 8 C.F.R. §§ 1208.16, 1208.18; Al-Saher v. INS, 268 F.3d 1143, 1146-47 (9th Cir.2001).