Monday, August 21, 2006
Judge Manufactured Reason for Denying Asylum, Court Says
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals Friday accused an immigration judge of manufacturing a ground for denying relief to an asylum applicant because of government suspicions the alien was a terrorist.
The court rejected the determination of the IJ, who was not identified in the court’s opinion, that Arangesan Suntharalinkam, a 27-year-old male from northern Sri Lanka, was not credible when he testified he was tortured by the Sri Lankan government. The court reversed the Board of Immigration Appeals, which had affirmed without comment the IJ’s order denying Suntharalinkam’s application for asylum, withholding of removal and relief under the Convention Against Torture, and remanded the case back for further proceedings.
Judge Kim McLane Wardlaw, writing for the court, said:
“The IJ, apparently convinced by the government’s hypothesis, denied relief, but not on any legal ground related to terrorism. Instead, the IJ veiled his concerns about Suntharalinkam’s terrorist ties, denying his application for relief based on a contrived adverse credibility finding.”
Suntharalinkam was issued a notice to appear in 2001 after attempting to enter the United States from Mexico using a counterfeit nonimmigrant visa. Admitting that he was inadmissible and removable, he applied for asylum, withholding of removal, and relief under CAT.
He claimed he was persecuted by the Sri Lankan government because of its incorrect suspicion that he was a member of the Liberation Tigers of Tamil Eelam, a terrorist organization at war with the Sri Lankan government.
The Department of Homeland Security claimed that Suntharalinkam was never persecuted by the Sri Lankan government, and was in fact a suspected Tamil Tiger who sought to enter the United States to further that organization’s terrorist activities.
Suntharalinkam testified that in January 2000, several members of the army entered his home, locked his mother in another room and assaulted him. They tied him up, threw him into their military vehicle, and drove to a military camp, where they locked him in a small room. His detention lasted about 60 days, during which he was stripped and beaten, burned with cigarettes, hung upside down with his head submerged in water, and beaten with an electrical wire.
He said he was released after his mother paid a bribe of ten thousand rupees and that he was hospitalized for the next 10 days to receive treatment for the injuries he sustained while in detention. He showed the IJ scars on his legs that he said were caused by the cigarette burns and electrical wire.
Suntharalinkam testified that he was arrested and tortured by soldiers on two other occasions.
The government presented the testimony of Senior Special Agent Steven W. Schultz of the Department of Homeland Security Joint Terrorism Task Force. Schultz’s report was based on conclusions he made about the group of 23 Sri Lankan individuals with whom Suntharalinkam had traveled and attempted to enter the United States. Schultz speculated that the members of the group were not being persecuted by the Sri Lankan army, as each of them claimed, but instead were members of the Tamil Tigers who were being smuggled in by that group, which relies on alien smuggling as a primary source of income.
The IJ denied relief, finding that Suntharalinkam’s claims were not credible. The IJ identified eight discrepancies that he said “taken alone, appear minor,” but that “when taken in their entirety...weave a tapestry of inconsistency that simply strains credulity to the breaking point.”
The IJ made special note of his consideration of the testimony and opinions of Schultz in making his decision.
The discrepancies included Suntharalinkam’s testimony that soldiers who detained him “asked” him to come to the camp, which the IJ characterized as inconsistent with Suntharalinkam’s description of the incident as an arrest.
But Wardlaw noted that IJ did not give Suntharalinkam’s an opportunity to explain, as he did on appeal, that in Sri Lanka, when a group of officers “asks” an individual to accompany them, it is not a request, but rather is an order that the individual is not free to refuse.
“Because the discrepancies relied upon by the IJ either were not in fact discrepancies did not go to the heart of Suntharalinkam’s petition placed undue emphasis on the absence of information from Suntharalinkam’s asylum application or relied on unsubstantiated, generalized findings, and because the IJ did not provide Suntharalinkam an opportunity to explain those apparent discrepancies that may have had some connection to his claim for asylum, the IJ’s adverse credibility finding is not supported by substantial evidence.”
“Although we have some sympathy for the IJ’s and the government’s suspicion that Petitioner might be a member of a terrorist organization (his tale of persecution by the Sri Lankan government is equally consistent with membership in the Tamil Tigers as it is with merely being suspected of membership), as judges, we are charged with following the law—not our suspicions.”
The judge concluded:
“It appears that the IJ manufactured a ground for denying relief in light of the charges contained in Schultz’s report.”
Wardlaw noted that the Department of Homeland Security has ample authority to deny admission to a suspected terrorist under both immigration and criminal laws.
“If in fact there is reasonable suspicion that Suntharalinkam is a terrorist, then it is in all our interests that the DHS investigate and pursue him if not through criminal avenues, then by asserting the terrorist bar to asylum, the application of which automatically bars withholding and CAT relief . . . or by relying on the Attorney General’s exercise of discretion to deny asylum to individuals who are suspected members of terrorist organizations,” he said.
Judge Richard F. Cebull of the District of Montana, sitting by designation, joined in the opinion.
Judge Johnnie B. Rawlinson dissented, saying:
“I simply cannot agree that we are compelled to find Suntharalinkam credible.”
The judge wrote:
“Suntharalinkam testified that he was treated for injuries sustained when he was beaten. However, the hospital records he produced reflect that he was treated for hepatitis, not for injuries suffered as a result of a beating.”
The case is Suntharalinkam v. Gonzales, 04-70258.
Copyright 2006, Metropolitan News Company