### 1998 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

10-9-1998 

# S e n a thir a j ah v . IN S

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 97-3607

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_1998

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 1998 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" S e n a thir a j ah v . I N S " (1998). 1998 D e cisio n s

. P a pe r 241.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_1998/241Filed October 9, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 97-3607

CHENTHILKUMARAN SENATHIRAJAH,
Petitioner

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent

On Petition for Review of an Order of the Board of Immigration Appeals From Immigration & Naturalization Service (No. 0313-2: A73 488 828)

Argued: May 19, 1988

Before: ROTH and McKEE, Circuit Judges and O'NEILL, Senior District Judge*

(Filed October 9, 1998)

Chin W. Fong, Esq. (Argued)
Suite 505

7 Penn Plaza New York, New York 10001

Attorney for Petitioner

___________________________________________________ ______________

*The Honorable Thomas N. O'Neill, Jr., Senior Distr ict Judge of the
United States District Court for the Eastern Distri ct of Pennsylvania, sitting by designation.Joan E. Smiley, Esq.

Karen F. Torstenson, Esq. (Argued) Civil Division, Department of Justice Michael P. Lindemann, Esq. Vernon B. Miles, Esq. United States Department of Justice Office of Immigration Litigation
Ben Franklin Station

P.O. Box 878 Washington, D.C. 20044

Attorneys for Respondent

OPINION OF THE COURT

McKEE, Circuit Judge.

Chenthilkumaran Senathirajah appeals the decision o f the Board of Immigration Appeals ("BIA" or the "Boa rd") denying his petition for review of an immigration j udge's ruling denying his application for asylum and withh olding of deportation under 8 U.S.C. SS 1101(a)(42)(A), 11 58(a) and 1253(h). For the reasons that follow we will grant the petition and remand for further proceedings consist ent with this opinion.1

I.

Senathirajah is a fifty-one year old ethnic Tamil f rom Sri
Lanka who claims to have been tortured while detain ed by the Indian Peace Keeping Forces ("IPKF "), the Sri Lankan

___________________________________________________ ______________

1. We have jurisdiction to review the BIA's final o rder pursuant to 8 U.S.C. S 1105(a)(1), as amended by the Illegal Immi gration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pu b. L. No. 104-208, 110 Stat. 3009. The IIRIRA repeals relevant portion s of S 1105 and replaces them with a new judicial review section co dified at 8 U.S.C. S 1252, et seq. However, this amendment does not ap ply here, as the order that Senathirajah appeals was entered before September 30, 1996. See Chang v. INS, 119 F.3d 1055, 1059 n.1 (3d Cir. 1997). For simplicity, we will refer to the Immigration and Na tionality Act as it existed prior to amendment.

2military and the Sri Lankan police.2 His claims inc lude: (1)

a two year period of detention and torture beginnin g with an arrest by the IPKF in March 1988 for suspected membership in the Liberation Tigers of Tamil Eelam ("LTTE" or "Tigers"); (2) detention and torture by the Sri Lankan army beginning with an arrest in July 1992 for susp ected membership in the LTTE; and (3) detention and physi cal abuse by the Sri Lankan police beginning with an ar rest in January 1994 for suspicion of membership in the LTT E.

Soon after the last detention alleged by Senathiraj ah, he hired "an agent" to procure a Canadian passport for him to travel outside of Sri Lanka. App. at 322. On Februa ry 2, 1995, Senathirajah arrived at Kennedy Airport in Ne w York where he signed a sworn statement before an Immigra tion and Naturalization Service ("INS") inspector regard ing his attempted entry into the United States (the "affida vit"). The affidavit, which is transcribed in hand-printed, qu estion and answer format contains the following:

Q: What is your level of education? Do you w ork?

A: I graduated college, I am a teacher-I tea ch English.

Q: Sir, have you answered all my questions t ruthfu lly?

A: Yes.

Q: Would it be a burden if you had to leave/ return to
Sri Lanka at this time?

A: My house was burned by the Sri Lankan arm y and I am coming for political asylum in Canada.

. . . .

Q: Sir, do you wish to add to this statement at th is
time?

A: No, only that I want political asylum in Canada.

Q: Sir, at this time you appear excludable . . . Y ou can withdraw you[r] application to enter the U.S

.

___________________________________________________ ______________

2. In Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), we discussed at some length recent Sri Lankan history; therefore , we decline to do so again here.

3voluntarily or you can ask for an exclusion hearing at

a later date. Which do you choose?

A: I want to go to Canada, I cannot go back.

App. at 227. The INS subsequently charged Senathira jah with excludability from the United States, under 8 U.S.C. SS 1182(a)(7)(A)(I)(I) and 1182(a)(6)(C)(I) for att empting to enter the United States by fraud and without a vali d visa.3 App. at 357.

On May 1, 1995, Senathirajah submitted a formal application for asylum using INS Form I-589. That f orm contains the following:

1. Why are you seeking asylum?

If I returned to Sri Lanka, I will be arrest ed, detained,
tortured and be killed.

2. What do you think would happen to you if you returned to the country from which you are c laiming persecution?

Due to my Tamil nationality and the suspicio n that I
am a member of the LTTE and from Velvettithu rai, if I were returned to Sri Lanka, I will be persec uted.

App. at 317. In a statement that Senathirajah attac hed to the application he stated:

1. I was born in Velvettithurai in the north ern pr ovince
of Sri Lanka on the 26th of December 1947. I completed my secondary education in 1968. Af ter working full time for a while, I studied ful l time from 1974 to 1977 at a technical college and obta ined a diploma in English.

***

4. Since 1983, the Sri Lankan government has been engaged in armed conflict with Tamil militan ts. In May 1987, the Sri Lankan armed forces launched a major offensive in Velvettithurai . . . . During t his offensive, the Sri Lankan government engaged in indiscr iminate bombing. During one of the Sri Lanka governm ent's

___________________________________________________ ______________

3. Senathirajah's attorney has conceded excludabili ty. App. at 160.

4bombing raids, the boat yard where I worked was

damaged severely. As a result, I left the vi llage with my family and moved to another village.

5. In August 1987, pursuant to the Indo-Sri Lankan Accord, the Indian Peace Keeping Force (IPKF ) came to Sri Lanka to restore peace and normalcy. Whe n the IPKF arrived, the Sri Lankan armed forces we re confined to barracks. I returned to my villa ge with my family.

6. In October 1987, war broke out between th e IPKF
and the LTTE. . . .

8. In March 1988, during a meeting of our co mmunit y center, the members of the IPKF came to our center and arrested the Secretary and myself. We we re taken to the IPKF camp.

9. At the camp, we were asked about the wher eabout s of LTTE members. We denied any knowledge abo ut the LTTE. The next day we were subjected to an identification parade. A man with a black ma sk was brought in. We were brought in front of the man with
a black mask and the IPKF man asked the info rmant whether we were LTTE members. When certain p ersons were brought in front of the informant, he n odded his head. When it was my turn, the informant nod ded his head. I was taken away, put in solitary conf inement and subjected to torture.

10. I was detained by the IPKF until its dep arture. Following talks between the Sri Lankan gover nment and the LTTE, the IPKF left Sri Lanka.

11. . . . . In June 1991, war broke out betw een th e Sri Lankan government and the LTTE.

12. . . . . In July 1992 . . . the Sri Lanka n army captured our town. The LTTE cadres left my v illage
when the Sri Lankan armed forces raided the area.

13. Around 10 p.m., the Sri Lankan military came t o my house. When they entered my house, they h it me with their guns and accused me of being a Ti ger and arrested me. I was taken to their camp.

514. At the camp, I was accused of being a me mber o f

the LTTE. They wanted to know the whereabout s of LTTE members. When I said I didn't know, the y tortured me. I was detained and continually tortured
till October 1993. . . .

17. In January 1994, the Sri Lankan armed fo rces raided my lodge [in Colombo]. When the Sri L ankan armed forces came to my room, they asked for my identification card. Upon seeing my card, th ey realized that I was from the northern province. They immediately accused me of being a Tiger and arrested

me.

18. I was first taken to the police station wher e I was interrogated and tortured. . . .

20. Because I feared I would be arrested aga in, I
decided to leave Sri Lanka.

App. at 321-22.

Senathirajah had an asylum hearing on August 10, 19 95. During that hearing, he testified to enduring atroc ities similar to those set forth in the above statement, with some
additions. He testified that his house had been "demolished" by the Sri Lankan military, that from 1988 to 1990 he was detained by the IPKF, denied proper foo d and forced to wear the same clothing. App. at 191, 197- 98. He also testified that he had been arrested by the Sri Lankan military in 1992 when the military came to his home and accused him of being a member of the LTTE. He state d that he was taken to a military camp where he underwent torture that included having both hands tied behind his back, being slapped, and being hit on the head with a bat. He said members of the military made him undress an d drink his own urine whenever he asked for water. Ap p. at 179-80. Senathirajah also testified about an arrest in January 1994 in Colombo where he had gone for medic al treatment. App. at 180-183.

When asked about his fluency in English, as suggest ed by the averments in his affidavit, Senathirajah rep lied "yeah, some, little English." However, he added "pronunciations" of foreigners "is a little difficu lt." App. at

6192. He then stated that he had requested a Tamil

interpreter at the time of his airport interview, b ut was told that none was available. Therefore, he proceeded to give the statement without an interpreter.

Senathirajah testified at his hearing that he signe d the
affidavit because he was "scared." He stated that " [t]he officer told me to sign. The two people the agent b rought were (indiscernible) to sign the document, so I tho ught if I sign also, I'll get released. With that intention I signed." App. at 193. Senathirajah then insisted that he had been

unaware of the contents of the statement before he signed
it. Id.

The immigration judge denied Senathirajah's applica tion for asylum. We will quote her explanation for doing so at length because her reasoning is at the heart of our inquiry.

I have observed the demeanor and testimony o f the Applicant, and for the following reasons, I find that his testimony is not credible. 1) the Applicant has testified
that he was arrested on three different occa sions, the first time being for a period of two years, the second time for a period of approximately a year an d three months, and on the third occasion for a peri od of a year. He stated that the date of the employm ent as regards his tutoring profession was indicate d in the Form I-589 as that being from January 1978 u ntil

October 1993 because he had off and on been involved in this profession for those years. However, it should be noted the end date of the employment as a tutor as indicated on the Form I-589 (the asylum appl ication), part E is that of October 1993. In fact, App licant has stated that he was jailed from July 1992 unt il October 1993. 2) The Applicant has indicated both on direct examination and, although there was some con fusion as to his testimony on cross examination, th e Applicant had testified that he was in deten tion from March of 1988 to March of 1990 by the IPKF. However, it was only on redirect and upon specific qu estioning by the Court that the Applicant testified th at in February of 1989, he was, in fact, for a per iod of one

month released from the IPKF. He stated that it was by

7agreement, not physical force,4 that he then returned

back to the IPKF, and that he was then detai ned up until March of 1990. There was absolutely no testimony on direct or cross examination as to this fact. 3) Although on direct examination the Applicant
stated that he was first arrested in March o f 1988, second arrested in July of 1992 and third ar rested in January of 1994, on cross examination, the A pplicant
testified that the next time after his deten tion with the IPKF that he had problems in Sri Lanka was i n January of 1994. It should also be noted tha t on direct examination, the Applicant testified that he knew"little English" and that he had requested that a Ta mil interpreter be provided for the questioning by the inspector. While it may be true that the App licant may have had some difficulty in understanding th e "foreign" pronunciation, the response that he knew "li ttle English" is in direct contradiction to his w ritten application in the Form I-589 . . . where he indicates "I am fluent in English." Further, he testif ied that he has a degree in the English language, and th at in fact he had worked as an English tutor for a peri od that covers over fifteen years. . . .

Immigration Judge Opn. at 10-12.

Then, in an explanation that is nothing short of astounding for reasons we detail below, the immigra tion judge further stated that even if she were to take Senathirajah's claims as true, she would still find him ineligible for relief because his suspected members hip in the Tigers, a purported violent group, is valid rea son for the government of Sri Lanka to investigate him. Id. at 13. The Judge stated "[i]nvestigations as to the criminal c onduct of

___________________________________________________ ______________

4. Senathirajah's actual testimony was that he was told that if he did not return within a specified time after making funeral arrangements, his captors told him they would "come and take me. I am the person who has to do the funeral rights. That's why the villag e people spoke with the officer, and the officer released me" subject to th e threat of forceful recapture if he did not return. App. at 219. Thus, the immigration judge's characterization of Senathirajah's release and return as "by agreement" is a misleading account of what he actua lly said.

8the Tigers is a valid Governmental investigation, a nd not

persecution." Id. at 12.

The immigration judge was also influenced by Senathirajah's failure to corroborate his testimony other than by providing background materials on the confl ict in Sri Lanka, and by what she characterized as a failu re to provide detailed accounts of the abuse that he alle ged. She noted that Senathirajah's affidavit did not include any discussion of the periods of detention that he test ified to at his asylum hearing.

Furthermore, the Applicant has not provided any corroboration in support of his testimony ot her than generalized background materials. It is also very troubling to this Court that the Applicant i n relaying
the three occasions that he was arrested and detained has not relayed in any detailed manner the a lleged
assaults and tortures. While he did mention that various acts took place, there was not a det ailed
account. It should also be noted that in the sworn statement taken at the airport the Applicant made absolutely no mention of the three periods o f detention which allegedly was for a period of over fou r years. In fact, during today's hearing, the Applicant stated that he relayed to the inspector that he had come to the United States because his work place as well as his home was destroyed, but he did not testify t hat he had relayed any other information as to his dete ntion to the inspector.

Id. at 13.

The immigration judge ruled that Senathirajah had f ailed to satisfy his burden as to both his asylum claim a nd as to his withholding of deportation claim. The judge als o found that he had not met his burden of proof under the f raud component of S 212(a)(6)(C)(I), since she determine d that Senathirajah had given a false name (Chenthilkumara n Senathirajah)5 to the INS inspector at Kennedy Airp ort, and he signed the affidavit using the assumed name. Accordingly, the judge ordered Senathirajah exclude d and

___________________________________________________ ______________

5. Petitioner's real name is Sittampalam Sundraling am.

9deported from the United States pursuant to

SS 212(a)(7)(A)(I)(I) and 212(A)(6)(C)(I) of the Im migration Act.

The BIA affirmed the immigration judge's decision. 6 The Board stated "[w]e do not ordinarily disturb an imm igration judge's credibility finding, and give an immigratio n judge's credibility finding significant weight." BIA Opn. a t 2 (citing Matter of V-T-S-, Interim Decision 3308 at 7 (BIA 1 997); see Matter of Burbano, 20 I & N Dec. 872 (BIA 1994). Ho wever, although the BIA affirmed the immigration judge, it expressed concern over the judge's credibility dete rmination as the BIA found that Senathirajah sufficiently exp lained some of the testimony that caused the judge to doub t his credibility. Nonetheless, the BIA concluded that th e immigration judge "had substantial grounds for bein g unwilling to credit the applicant's account of the events
that form the basis of his claim." Id. The Board wa s particularly troubled with Senathirajah's professed difficulty with English. The Board stated:

[w]e agree with the immigration judge's asse ssment of the applicant's claim not to have understood the pronunciation of the English-speaking Servic e officer who examined him upon his attempted entry in to the United States. In this regard we observe tha t the applicant testified that he studied English at the college level (citation omitted). We also ob serve that in his Application for Asylum and for Withholdi ng of Deportation . . . the applicant indicates th at he is fluent in English.

BIA Opn. at 2.

___________________________________________________ ______________

6. On October 19, 1995, Petitioner filed a Motion t o Withdraw Appeal, stating that the INS had agreed to parole him to Ca nada where he would be granted asylum and where he had relatives. App. at 104. On December 15, 1995, the BIA acknowledged by order th at Senathirajah's appeal was withdrawn. App. at 103. On March 21, 199 6, Petitioner filed a Motion to Reopen with the Immigration judge, stat ing that on December 26, 1995, the INS district director had "c hanged his policy of paroling individuals to Canada to seek asylum." App . at 91. On April 29, 1996, the Immigration judge denied the Motion to Re open. App. at 84-
85. The BIA then certified the case to allow consid eration of the appeal. App. at 2-5.

10The BIA also stated that, despite the lack of detai l of the

questions on the sworn statement, "the harm the app licant claimed to have suffered, also as reflected in the sworn statement, is not the kind of harm that the applica nt's testimony indicates is the basis of his application for asylum." Id. The Board then affirmed the decision o f the immigration judge as it found Senathirajah "not a c redible claimant for asylum and withholding of deportation. " BIA Opn. at 3. This appeal followed.

II.

A "refugee" is defined as

any person who is outside any country of suc h person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that countr y because of persecution or a well-founded fear of persec ution on account of race, religion, nationality, memb ership in a particular social group, or political opinio n.

8 U.S.C. S 1101(a)(42)(A) (emphasis added). In the Refugee Act of 1980, Congress amended the Immigration and Nationalization Act to include section 208(a). That section gave the Attorney General discretion to grant asylu m to those who qualify as refugees. It also amended sect ion 243(h) so as to require that deportation be withhel d if an alien "demonstrates a clear probability of harm on account of one of the enumerated factors." Chang v. INS, 11 9 F.3d 1055, 1061 (3d Cir. 1997).

One of Congress's primary purposes in enacti ng the
1980 law was to harmonize United States law with the United Nations Protocol Relating to the Stat us of Refugees ("U.N. Protocol"), to which the Uni ted States became a party in 1968.

Id. (internal quotation marks omitted). The immigra tion Act thus requires the Attorney General to determine if an alien is a refugee. 8 U.S.C. S 1158 (1994). The alien has the burden of "show[ing] that he qualifies as a refugee . . . ." Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). To qualify as a refugee, an applicant must establis h" by

11objective evidence that it is more likely than not that he or

she will be subject to persecution upon deportation ." INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).

The Attorney General must withhold deportation if t he applicant demonstrates that upon deportation his or her
life or freedom would be threatened on account of o ne of the statutorily enumerated factors. 8 U.S.C. S 1253 (h); Chang, 119 F.3d at 1066; see also Balasubramanrim, 143 F.3d at 164 n.10. To meet this test, the alien must demonstrate that there is a greater-than-fifty-perc ent chance of persecution upon his or her return. Vilor io-Lopez v. INS, 852 F.2d 1137, 1140 (9th Cir. 1987). If the alien
fails to establish that his or her life or freedom will be threatened upon return so as to require that deport ation be withheld, the Attorney General may still exercise h er discretion and not deport the alien by a grant of a sylum under S 208 of the Immigration Act. The latter requ ires that the alien establish a subjective fear of persecutio n that is supported by objective evidence that persecution is a reasonable possibility. Chang, at 1066.

It is obvious that one who escapes persecution in h is or her own land will rarely be in a position to bring documentary evidence or other kinds of corroboratio n to support a subsequent claim for asylum. It is equall y obvious that one who flees torture at home will rar ely have the foresight or means to do so in a manner that wi ll enhance the chance of prevailing in a subsequent co urt battle in a foreign land. Common sense establishes that it is escape and flight, not litigation and corroborat ion, that is
foremost in the mind of an alien who comes to these shores fleeing detention, torture and persecution. Accordi ngly, corroboration is not required to establish credibil ity. The law allows one seeking refugee status to "prove his persecution claim with his own testimony if it is c redible." Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996) (c iting Aguilera-Cota v. INS, 914 F.2d 1375, 1379 (9th Cir. 1990)). Here, Senathirajah claims that the BIA's "adverse c redibility finding is not supported by the record [or] by law. " Petitioner's Br. at 10. We agree.

12III.

As noted above, the BIA's ruling results in substan tial part from the deference it gave the immigration jud ge's decision. However, while affirming the immigration judge's conclusion as to Senathirajah's credibility, the BI A noted that it believed some of the immigration judge's sk epticism was not warranted. Nevertheless, the Board affirmed the decision of the immigration judge even though the B oard believed that "some of the aspects of the applicant 's testimony with which the immigration judge had diff iculty [were] adequately explained by the applicant." App. at 3.7 Nevertheless, the BIA appears to have substantially relied upon the adverse credibility ruling of the immigrat ion judge in rejecting Senathirajah's petition. The BIA may d efer to the credibility rulings of an immigration judge who actually heard the testimony, and observed the witnesses. Ho wever, the BIA is not required to do so, and it ought not to defer when such deference is not supported by its own independent review of the record.

Where the immigration judge makes a credibil ity determination, the Board can independently a ssess that determination and make de novo findings on credibility. See Damaize-Job v. INS, 787 F.2 d 1332, 1338 (9th Cir. 1986) ("The Board has the pow er to
review the record de novo and make its own f indings of
fact.")

Balasubramanrim, at 161.

Here, although the Board did grant some deference t o the immigration judge, it appears that the Board also conducted an independent examination of the record, and also concluded that Senathirajah was not credible. We must sustain the BIA's adverse credibility determin ation if there is substantial evidence in the record to supp ort it. Chang, at 1060; see also Hartooni v. INS, 21 F.3d 3 36, 340 (9th Cir. 1994); Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994). "Substantial evidence is more than a me re scintilla and is such relevant evidence as a reason able

___________________________________________________ ______________

7. In its brief opinion, the BIA did not state to w hat it was referring

when
it made this statement.

13mind might accept as adequate to support a conclusi on."

Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987) . An immigration judge who "rejects a witness's positive testimony because in his or her judgment it lacks credibility should offer a specific, cogent reason for [his or her] disbelief." Turcios, 821 F.2d at 1399 (citatio n and internal quotations omitted). We "evaluate those re asons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible." VilorioLopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) ( citing Damaize-Job v. INS, 787 F.2d 1332, 1337-78 (9th Cir

. 1986)).

The Board's credibility determination was based upo n the following factors: (1) it disbelieved Senathirajah' s testimony that he could not understand English as spoken by t he INS inspector since Senathirajah testified that he had studied English at the college level and had stated on his asylum application that he was fluent in English; (2) Sena thirajah did not "specifically claim that the Record of Swor n Statement . . . misrepresents his actual statement to the examining Service officer.";8 and (3) the harm that Senathirajah claimed that he suffered in his sworn
statement or affidavit was not the same as that whi ch he testified was the basis of his asylum application. BIA Opn.
at 2.

The circumstances of Senathirajah's petition are qu ite
similar to those that were before us in Balasubrama nrim. There, the petitioner was also a Tamil from Sri Lan ka seeking asylum and withholding of deportation. In r uling upon Balasubramanrim's petition for review, we note d the persecution facing residents of Sri Lanka who were identified as being Tamil, and the historical roots of that oppression. See Balasubramanrim, at 159. Balasubramanrim "claim[ed] to have been arrested, detained, and tortured on several occasions by the armed forces of the Sri Lankan government, the Indian peacekeeping forces and the Liberation Tigers." Balasubramanrim, at 159. Balasubramanrim also claim ed

___________________________________________________ ______________

8. In fact, the BIA considered Petitioner's testimo ny as a confirmation of the accuracy of the sworn statement. BIA Opn. at 2.

14that he would be subject to additional detention an d torture

if he returned to Sri Lanka because he was Tamil. O n his application he stated that the following events occ urred
before he left Sri Lanka:

1. In March 1988, he was arrested by the Ind ian Peacekeeping Forces and taken to a camp wher e he was accused of being a Tiger and beaten;

2. In November 1989, he was again arrested .

. . because he refused to join the ranks of one of the political fighting forces, was tortured for an entire day, and remained in custody for five days;

3. In March 1990, the Tigers arrested him fo r 10 d ays and accused him of being an informant for th e Indian Peacekeeping Forces, a charge which he claim s was untrue;

4. In 1991, his brother disappeared after be ing arrested by the Sri Lankan army;

5. In 1993, his father was killed by Sri Lan kan air bombs;

6. In October 1993, he fled northern Sri Lan ka but was arrested for failing to register in the new area;

7. Also in October 1993, after accusing Balasubramanrim of being a Tiger, the Sri La nkan army arrested, detained and tortured him for one year and ten days; eventually, his wife bribed th e army for his release;

8. In late 1994, Sri Lankan armed forces arr ested him at the airport as he was trying to leave the country with his family, and he was detained and tor tured for four months and ten days.

Id. After the `94 arrest, Balasubramanrim left Sri Lanka using a fake Canadian passport, ultimately arriving at Kennedy Airport. There, INS officials interviewed h im in English without the aid of a translator. The result of this encounter was a handwritten document with 25 questi ons and answers about Balasubramanrim's past and his reasons for seeking asylum.

15Thereafter, Balasubramanrim appeared before an

immigration judge where he told of the atrocities t hat he had endured. The immigration judge found him "excludable, denied his application for asylum and withholding of deportation, and ordered him deporte d to Sri Lanka." Id. at 160. The judge concluded that Balasubramanrim had not been truthful about his "pr ior arrests and his fears about returning to Sri Lanka. The [ ] judge also expressed doubts about his credibility b ecause Balasubramanrim did not look at him while testifyin g and instead stared straight ahead `as though in a tranc e.' " Id.

The BIA affirmed the immigration judge's decision because of perceived inconsistencies between Balasubramanrim's testimony at the hearing and his airport statement.

However, we concluded that Balasubramanrim's airpor t interview did not necessarily accurately reflect th e persecution that he suffered in Sri Lanka, nor the danger he would face if he were forced to return. We expre ssed concern that: (1) the handwritten record of the air port interview may not be reliable since "[w]e [did] not know how
the interview was conducted or how the document was prepared"; (2) the airport statement was not an app lication for asylum; (3) an arriving alien may, because of p ast interrogation, be unwilling to disclose much inform ation to government officials; and (4) the BIA may not have accurately assessed Balasubramanrim's English skill s. Id.
at 162-63.

We thus concluded that any discrepancy between Balasubramanrim's airport statement and his testimo ny was insufficient, by itself, to support the BIA's f inding that the petitioner was not credible. Id. at 164 (citing AguileraCota, 914 F.2d at 1382). We recognized that the BIA did not pursue Balasubramanrim's asylum and withholding of deportation claims because of its adverse credibili ty finding. However, " `[i]n the absence of substantial evidenc e supporting a finding of adverse credibility, the BI A is required explicitly to consider a petitioner's clai ms for asylum and withholding of deportation.' " Id. at 16 5 (quoting Mosa, 89 F.3d at 605).

16We therefore granted Balasubramanrim's petition and

remanded the case to the BIA with further instructi on to remand to the immigration judge for a determination of Balasubramanrim's asylum and withholding of deporta tion claims "without reliance on the adverse credibility finding." Id. Specifically, we held that "because of ambiguit ies in the airport statement and the circumstances under which it was made, that statement does not provide sufficien t evidence to support the adverse credibility determi nations upon which the immigration judge and BIA denied the petition." Id.

Here, as in Balasubramanrim, the immigration judge and the BIA gave far too much weight to the affidavit t aken during Senathirajah's airport interview. The govern ment offered no testimony as to the circumstances under which that affidavit was obtained, or whether it was nece ssary to use sign language and/or gestures to communicate wi th Senathirajah. It is uncontested that he asked for a n interpreter before he gave the affidavit and none w as provided. As in Balasubramanrim, the affidavit here was not an application for asylum, and it should neither ha ve been treated as such, nor read with the exacting eye tha t the BIA might use to examine statements that accompany FormI589. By placing too much reliance on an airport int erview under the circumstances here, and ignoring more det ailed accounts in Form I-589 as well as testimony at an a sylum hearing, the INS seriously undermined the reliabili ty of the administrative process. Given Senathirajah's allega tions of torture and detention, he may well have been reluct ant to disclose the breadth of his suffering in Sri Lanka to a government official upon arriving in the United Sta tes even if he could understand the questions he was being a sked at the airport.

The BIA affirmed the ruling of the immigration judg e primarily because it agreed with the judge's conclu sion that Senathirajah was fluent in English and could theref ore be held to the statements in the affidavit and the app arent inconsistencies between those statements, the averm ents in Form I-589, and his later testimony at his asylum h earing. However, neither the BIA nor the immigration judge considered the limitations of the airport interview

.

17Moreover, Form I-589 allows for only two choices wh en

inquiring about an applicant's facility with Englis h. It asked only if Senathirajah was fluent, with no attempt to inquire into various degrees of proficiency one may have wi th a foreign language.9 Furthermore, neither the BIA nor the immigration judge appears to have given any conside ration to the difficulty someone from Sri Lanka may have i n understanding "American English," particularly unde r the stressful circumstances of entry into a new country . 10 During the asylum hearing, Senathirajah testified a s follows:

Q: Did you complete high school?

A: Yes.

Q: Did you complete college?

A: I went to advanced level.

Q: I'm sorry, to what?

A: To advanced level, advanced level.

Q: Of college?

A: There they say college is still advanced level. College is university. They say that university.

Q: So you went to university?

A: I went for community college.

. . . .

___________________________________________________ ______________

9. The asylum application asks that the applicant s elect one of two choices identifying his language facility. The appl ication states:

17. Native Language: a. __ I am fluent in E nglish. b. __ I am not fluent i n English, but I am
fluent in Tamil.

10. Sri Lanka, which until 1972 was known as Ceylon , became an independent nation in 1948, after almost 150 years of British colonial rule. Consequently, the English taught to Sri Lanka ns is more than likely not of a vernacular commonly used in the Uni ted States. It seems no stretch, then, to assume that Petitioner might h ave needed an interpreter even if he technically "spoke the same language" as the INS inspector.

18Q: . . . . What was your major, what was you r course

of study?

A: Diplomat and English.

App. at 195-96. Although it is not clear if Senathi rajah meant to say that he had a "diploma" in English, or if he meant to say he studied "diplomacy" and English, it is clear that he had significant trouble in both speaking an d understanding English during the asylum hearing. On e cannot read the transcript from that hearing withou t realizing that there was significant difficulty com municating with Senathirajah even with the presence of a Tamil interpreter. For instance, though the immigration j udge and BIA placed substantial reliance on Senathirajah's t estimony that he had "tutored" English, throughout his testi mony he continually used "tuition" for "tutor" thus illustr ating far more significant difficulty with the language than either the immigration judge or the BIA realized. For example Senathirajah declared:

Sometimes I go to houses and give tuition t o students at their place. Sometime -- it's a private tutoring. That's why (indiscernible).

***

It was often I was giving tuition when I was detained.
Then afterwards when I come from detention t hen I
went to tuition.

***

In the application I put total (indiscernibl e), but I was given (indiscernible). Because the tuition w ork I was doing was not profit. Same time I was detain ed, and then I come back from detention, then I give tuition.

App. at 60, 63. Nevertheless, when asked "are you f luent in English?", Senathirajah responded: "Yeah, some, lit tle English." Id. at 53. It is clear from the transcrip t that whatever Senathirajah thought "fluent" meant, his f acility with English is less than one might expect from the use of that term. It is clear that his ability to speak an d understand the language is not without difficulty.

19Senathirajah argues that "advanced levels" in the B ritish

educational system in Sri Lanka translates into the first year of undergraduate studies in the United States. Letter from Chin Wei Fong, Attorney for Petitioner, 5/14/9 8, p.2. The government offered no evidence at the hearing t o establish that Senathirajah's level of education wo uld have allowed him more proficiency with English than he admitted to. It is undisputed that Senathirajah req uested an interpreter when he arrived at the airport but t hat none was available. Although he signed the affidavit, we are unimpressed with the affidavit's reliability, or pr obative value. Senathirajah's testimony that he provided th e interview after being kept at the airport for "thre e or four hours without water or food . . . I was feeling fai ntish," App. at 54, was not rebutted. Yet, the immigration judge and the BIA held Senathirajah to a level of proficiency in English that is inconsistent with his request for an interp reter, the circumstances under which the affidavit was taken, or with the transcript of the asylum hearing.

Moreover, we believe that it is irrelevant that Senathirajah does not assert that the affidavit misrepresents his actual statement at the airport. Senathirajah claims that the affidavit is incomplet e because of ambiguous and incomplete questioning that did no t effectively elicit information relevant to a subseq uent claim for asylum and withholding of deportation. We agree . The following exchange is illustrative.

Q: Would it be a burden if you had to leave/ depart to
Sri Lanka at this time?

A: My house was burned by the Sri Lankan arm y and I am coming for political asylum in Canada.

App. at 227. The inspector's next question was:"Do you have any friends or relatives here in the U.S?" Id. Senathirajah argues that had the inspector asked a more precise question--perhaps a question about persecut ion rather then whether he had any relatives or friends --the inspector would have elicited a more complete accou nt of the suffering that Senathirajah had suffered in the past and the likelihood of future suffering. In Balasubraman rim, we noted that the immigration judge also placed too mu ch

20reliance upon an airport interview where, after

Balasubramanrim stated he would be killed if he ret urned home, "the next question was: `How did you get to t he U.S. from Sri Lanka?' " Balasubramanrim, at 163.

The BIA affirmed the immigration judge's credibilit y finding partly on the ground that the harm that Senathirajah mentioned in the affidavit (his house being burned) was not the same as that mentioned during h is testimony (arrests, detentions and physical abuse). However, there is nothing inconsistent in those two responses. At the airport, Senathirajah was asked i f"it would be a burden" to return to Sri Lanka. He respo nded that his house had been burned down. Surely, having one's house burned down results in a burden. Senathirajah 's
statement that his house had been burned does not n egate his subsequent testimony that he had been tortured during periods of detention. His statement regarding the b urning of his home is responsive to the question he was as ked. It is clearly a burden for one who is homeless to have to return home. At the hearing, neither the government nor the immigration judge asked Senathirajah why he did not tell the INS inspector about his detention or tortu re in Sri
Lanka. It is unfair to fault him for not volunteeri ng that information in response to the questions the INS in spector
asked.

Similarly, the immigration judge discredited Senathirajah's testimony because he did not give a detailed account of what he had endured either during his ai rport interview or during his testimony. The judge stated :

It is also very troubling to this Court that the Applicant in relaying the three occasions that he was arrested and detained has not relayed in any detailed manner the alleged assaults and tortures. While he did mention that various acts took place, there was not a detailed
account. It should also be noted that in the sworn statement taken at the airport the Applicant made absolutely no mention of the three periods o f detention which allegedly was for a period of over fou r years. In fact, during today's hearing, the Applicant stated that he relayed to the inspector that he had come to the United States because his work place as well as his

21home was destroyed, but he did not testify t hat he had

relayed any other information as to his dete ntion to the inspector.

Opn. at 13. Taking these concerns in turn we again note that Senathirajah answered those questions he was a sked at the hearing. He told of being forced to drink hi s own urine when he asked for water, being kicked, and be aten on the head with a baseball bat. If the immigration ju dge wanted greater detail she should have asked appropr iate follow up questions that may have elicited it. Thus , the immigration judge and the BIA ignore the most obvio us reason for Senathirajah's purported failure to prov ide greater detail. He was not asked. When asked about the details of his detention, he told of beatings, and being
forced to drink his own urine. We do not understand what further detail the immigration judge expected, and we surely can't fault Senathirajah for not knowing. Ou r review of the affidavit reveals no question that would hav e elicited any information about detention in Sri Lanka, let a lone torture and persecution.

The immigration judge conceded that Senathirajah "m ay have had problems in understanding the oral languag e," Opn. at 12, when she discussed the answers he gave the INS inspector at the airport. Yet, she dismissed th at possibility by concluding "he has signed a document . That is the Applicant had ample opportunity to review th e question and answers that were written on [the affi davit]." Id. However, if Senathirajah did not understand the questions that were asked of him, it is irrelevant that he had time to review the response that the inspector attributed to him. In addition, as noted above, Senathirajah's testimony of the circumstances under which he gave the written statement remain uncontroverted

. Finally, the immigration judge and BIA placed too m uch weight upon the fact that Senathirajah's written st atement
contained time frames that are not identical to tho se he
testified to. "Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about a n asylum applicant's fear for his safety are not an a dequate basis for an adverse credibility finding." Vilorio- Lopez, 852 F.2d at 1141. For example, the immigration judge wa s

22troubled by Senathirajah's testimony that he was em ployed

as a "tutor" during the time he was purportedly det ained. Yet, his testimony was that he was self-employed an d provided "tutoring" part time, and that he resumed tutoring upon his release. Thus, he may have well viewed him self as a tutor even though he was detained. He testified:" I was often I was giving tuition when I was detained. The n afterwards when I come from detention I went to tui tion." App. at 199.

The asylum process ought to be a determination of whether someone is entitled to either a withholding of deportation, or a discretionary grant of asylum. It is a process that Congress has enacted, at least in part , to align the immigration laws of the United States with the law of nations. See Marincas v. Lewis, 92 F.3d 195, 198 (3 d Cir. 1996) ("[T]he Refugee Act brought the domestic laws of the United States into conformity with its treaty oblig ations under the United Nations Protocol Relating to the S tatus of Refugees"). The procedures for requesting asylum an d withholding of deportation are not a search for a justification to deport. Justice requires that an a pplicant for asylum or withholding of deportation be afforde d a meaningful opportunity to establish his or her clai m.

Deportation is always a harsh measure; it i s all the more replete with danger when the alien make s a claim that he or she will be subject to death or p ersecution
if forced to return to his or her home count ry. In enacting the Refugee Act of 1980 Congress so ught to give the United States sufficient flexibilit y to respond to situations involving political or religious dissidents and detainees throughout the world.

INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (i nternal quotation marks omitted). We do not operate under a ny rule that prevents an asylum applicant from elabora ting upon the circumstances underlying an asylum claim w hen given the opportunity to take the witness stand.

Before concluding our discussion of the merits of Senathirajah's petition for review, it is necessary for us to clarify a misconception expressed by the immigratio n judge. As noted above, the immigration judge concluded tha t she

23would deny Senathirajah's application even if he we re

credible because "[i]nvestigations as to the crimin al conduct of the Tigers is a valid Governmental investigation , and not persecution." Op. at 12. Although claims of torture , without more, do not afford Senathirajah the relief he seek s here, we emphasize that torture does not constitute valid governmental investigation, and conduct such as bea tings with bats, and forcing one to drink one's own urine when thirsty ought not to be mistaken for legitimate governmental investigations by any judge.

In light of the universal condemnation of to rture in numerous international agreements, and the
renunciation of torture as an instrument of official policy by virtually all of the nations of th e world (in principle if not in practice), we find that an act of torture committed by a state official agains t one held in
detention violates established norms of the international law of human rights, and hence the law
of nations.

Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2nd Cir ,. 1980). See also Universal Declaration of Human Rights, Gen eral Assembly Resolution, 217 (III)(A)(Dec. 10, 1948) (" no one shall be subjected to torture"), American Conventio n on Human Rights, Art. 5, OAS Treaty Series No. 36 at 1 , OAS Off. Rec. OEA/Ser 4 v/II 23, doc 21, rev.2. (Englis h ed. 1975) ("No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment"). The immigration judge's proclamation was apparently bas ed upon her belief that the Tigers were a subversive organization and that "legitimate" forces in Sri La nka therefore had a right to investigate. However, ther e is absolutely no evidence in this record that Senathir ajah was a member of the Tigers, and even if he was, we disa gree with the immigration judge's belief that the Sri La nkan government could use torture as part of its investi gation into his activity.11 "Although torture was once a r outine

___________________________________________________ ______________

11. Our holding in Balasubramanrim establishes that the treatment of the Tamil in Sri Lanka, and the persecution that ha s resulted from the activities of the Tigers could be sufficient to sup port a claim for asylum or withholding of deportation. However, that decisi on was after Senathirajah's asylum hearing and the immigration j udge here did not
have the benefit of that discussion.

24concomitant of criminal interrogations in many nati ons,

during the modern and hopefully more enlightened er a it has been universally renounced. According to one su rvey, torture is prohibited, expressly or implicitly, by the constitutions of over fifty-five nations. . . ." Pe na-Irala, 630

F.2d at 884.

IV.

For the reasons set forth above, we conclude that t he BIA did not have substantial evidence for its finding o f adverse credibility. We therefore hold that the BIA erred i n affirming the decision of the immigration judge. Thus, we wil l remand
this case to the BIA with instructions that the mat ter be remanded to the immigration judge, for a ruling on Senathirajah's asylum and withholding of deportatio n claims without consideration of the prior adverse c redibility findings.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

25