1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-9-1998

Senathirajah v. INS

Precedential or Non-Precedential:

Docket 97-3607

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Senathirajah v. INS" (1998). 1998 Decisions. Paper 241.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/241
Filed 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 District Judge of the 

United States District Court for the Eastern District 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 of 

the Board of Immigration Appeals ("BIA" or the "Board") 

denying his petition for review of an immigration judge's 

ruling denying his application for asylum and withholding 

of deportation under 8 U.S.C. SS 1101(a)(42)(A), 1158(a) and 

1253(h). For the reasons that follow we will grant the 

petition and remand for further proceedings consistent with 

this opinion.1 

I. 

Senathirajah is a fifty-one year old ethnic Tamil from Sri 

Lanka who claims to have been tortured while detained by 

the Indian Peace Keeping Forces ("IPKF "), the Sri Lankan 

_________________________________________________________________ 

1. We have jurisdiction to review the BIA's final order pursuant to 8 

U.S.C. S 1105(a)(1), as amended by the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 

110 Stat. 3009. The IIRIRA repeals relevant portions of S 1105 and 

replaces them with a new judicial review section codified at 8 U.S.C. 

S 1252, et seq. However, this amendment does not apply 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 Nationality Act as it 

existed prior to amendment. 

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

a two year period of detention and torture beginning 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 suspected 

membership in the LTTE; and (3) detention and physical 

abuse by the Sri Lankan police beginning with an arrest in 

January 1994 for suspicion of membership in the LTTE. 

Soon after the last detention alleged by Senathirajah, he 

hired "an agent" to procure a Canadian passport for him to 

travel outside of Sri Lanka. App. at 322. On February 2, 

1995, Senathirajah arrived at Kennedy Airport in New York 

where he signed a sworn statement before an Immigration 

and Naturalization Service ("INS") inspector regarding his 

attempted entry into the United States (the "affidavit"). The 

affidavit, which is transcribed in hand-printed, question 

and answer format contains the following: 

 Q: What is your level of education? Do you work? 

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

 Q: Sir, have you answered all my questions truthfu 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 army 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. 

 3 
 voluntarily 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 Senathirajah 

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 attempting to 

enter the United States by fraud and without a valid visa.3 

App. at 357. 

On May 1, 1995, Senathirajah submitted a formal 

application for asylum using INS Form I-589. That form 

contains the following: 

 1. Why are you seeking asylum? 

 If I returned to Sri Lanka, I will be arrested, detained, 

 tortured and be killed. 

 2. What do you think would happen to you if you 

 returned to the country from which you are claiming 

 persecution? 

 Due to my Tamil nationality and the suspicion that I 

 am a member of the LTTE and from Velvettithurai, if I 

 were returned to Sri Lanka, I will be persecuted. 

App. at 317. In a statement that Senathirajah attached to 

the application he stated: 

 1. I was born in Velvettithurai in the northern pr ovince 

 of Sri Lanka on the 26th of December 1947. I

 completed my secondary education in 1968. After 

 working full time for a while, I studied full time from 

 1974 to 1977 at a technical college and obtained a 

 diploma in English. 

 *** 

 4. Since 1983, the Sri Lankan government has been 

 engaged in armed conflict with Tamil militants. In May 

 1987, the Sri Lankan armed forces launched a major 

 offensive in Velvettithurai . . . . During this offensive, 

 the Sri Lankan government engaged in indiscriminate 

 bombing. During one of the Sri Lanka government's 

_________________________________________________________________ 

3. Senathirajah's attorney has conceded excludability. App. at 160. 

 4 
 bombing raids, the boat yard where I worked was 

 damaged severely. As a result, I left the village 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. When the 

 IPKF arrived, the Sri Lankan armed forces were 

 confined to barracks. I returned to my village with my 

 family. 

 6. In October 1987, war broke out between the IPKF 

 and the LTTE. . . . 

 8. In March 1988, during a meeting of our communit y 

 center, the members of the IPKF came to our center 

 and arrested the Secretary and myself. We were taken 

 to the IPKF camp. 

 9. At the camp, we were asked about the whereabout s 

 of LTTE members. We denied any knowledge about the 

 LTTE. The next day we were subjected to an 

 identification parade. A man with a black mask was 

 brought in. We were brought in front of the man with 

 a black mask and the IPKF man asked the informant 

 whether we were LTTE members. When certain persons 

 were brought in front of the informant, he nodded his 

 head. When it was my turn, the informant nodded his 

 head. I was taken away, put in solitary confinement 

 and subjected to torture. 

 10. I was detained by the IPKF until its departure. 

 Following talks between the Sri Lankan government 

 and the LTTE, the IPKF left Sri Lanka. 

 11. . . . . In June 1991, war broke out between th e Sri 

 Lankan government and the LTTE. 

 12. . . . . In July 1992 . . . the Sri Lankan army 

 captured our town. The LTTE cadres left my village 

 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 hit me 

 with their guns and accused me of being a Tiger and 

 arrested me. I was taken to their camp. 

 5 
 14. At the camp, I was accused of being a member o f 

 the LTTE. They wanted to know the whereabouts of 

 LTTE members. When I said I didn't know, they 

 tortured me. I was detained and continually tortured 

 till October 1993. . . . 

 17. In January 1994, the Sri Lankan armed forces 

 raided my lodge [in Colombo]. When the Sri Lankan 

 armed forces came to my room, they asked for my 

 identification card. Upon seeing my card, they 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 again, I 

 decided to leave Sri Lanka. 

App. at 321-22. 

Senathirajah had an asylum hearing on August 10, 1995. 

During that hearing, he testified to enduring atrocities 

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 food 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 stated 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 and 

drink his own urine whenever he asked for water. App. at 

179-80. Senathirajah also testified about an arrest in 

January 1994 in Colombo where he had gone for medical 

treatment. App. at 180-183. 

When asked about his fluency in English, as suggested 

by the averments in his affidavit, Senathirajah replied 

"yeah, some, little English." However, he added 

"pronunciations" of foreigners "is a little difficult." App. at 

 6 
192. He then stated that he had requested a Tamil 

interpreter at the time of his airport interview, but was told 

that none was available. Therefore, he proceeded to give the 

statement without an interpreter. 

Senathirajah testified at his hearing that he signed the 

affidavit because he was "scared." He stated that "[t]he 

officer told me to sign. The two people the agent brought 

were (indiscernible) to sign the document, so I thought 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 application 

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 of 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 occasions, the 

 first time being for a period of two years, the second 

 time for a period of approximately a year and three 

 months, and on the third occasion for a period of a 

 year. He stated that the date of the employment as 

 regards his tutoring profession was indicated in the 

 Form I-589 as that being from January 1978 until 

 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 application), 

 part E is that of October 1993. In fact, Applicant has 

 stated that he was jailed from July 1992 until October 

 1993. 2) The Applicant has indicated both on direct 

 examination and, although there was some confusion 

 as to his testimony on cross examination, the 

 Applicant had testified that he was in detention from 

 March of 1988 to March of 1990 by the IPKF. However, 

 it was only on redirect and upon specific questioning 

 by the Court that the Applicant testified that in 

 February of 1989, he was, in fact, for a period of one 

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

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

 back to the IPKF, and that he was then detained 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 of 1988, 

 second arrested in July of 1992 and third arrested in 

 January of 1994, on cross examination, the Applicant 

 testified that the next time after his detention with the 

 IPKF that he had problems in Sri Lanka was in 

 January of 1994. It should also be noted that on direct 

 examination, the Applicant testified that he knew"little 

 English" and that he had requested that a Tamil 

 interpreter be provided for the questioning by the 

 inspector. While it may be true that the Applicant may 

 have had some difficulty in understanding the "foreign" 

 pronunciation, the response that he knew "little 

 English" is in direct contradiction to his written 

 application in the Form I-589 . . . where he indicates 

 "I am fluent in English." Further, he testified that he 

 has a degree in the English language, and that in fact 

 he had worked as an English tutor for a period 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 immigration 

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 membership in 

the Tigers, a purported violent group, is valid reason for the 

government of Sri Lanka to investigate him. Id. at 13. The 

Judge stated "[i]nvestigations as to the criminal conduct 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 village people spoke with the 

officer, and the officer released me" subject to the 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 actually said. 

 8 
the Tigers is a valid Governmental investigation, and 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 conflict in 

Sri Lanka, and by what she characterized as a failure to 

provide detailed accounts of the abuse that he alleged. She 

noted that Senathirajah's affidavit did not include any 

discussion of the periods of detention that he testified to at 

his asylum hearing. 

 Furthermore, the Applicant has not provided any 

 corroboration in support of his testimony other than 

 generalized background materials. 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 of detention 

 which allegedly was for a period of over four 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 that he had 

 relayed any other information as to his detention to the 

 inspector. 

Id. at 13. 

The immigration judge ruled that Senathirajah had failed 

to satisfy his burden as to both his asylum claim and as to 

his withholding of deportation claim. The judge also found 

that he had not met his burden of proof under the fraud 

component of S 212(a)(6)(C)(I), since she determined that 

Senathirajah had given a false name (Chenthilkumaran 

Senathirajah)5 to the INS inspector at Kennedy Airport, and 

he signed the affidavit using the assumed name. 

Accordingly, the judge ordered Senathirajah excluded and 

_________________________________________________________________ 

5. Petitioner's real name is Sittampalam Sundralingam. 

 9 
deported from the United States pursuant to 

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

The BIA affirmed the immigration judge's decision. 6 The 

Board stated "[w]e do not ordinarily disturb an immigration 

judge's credibility finding, and give an immigration judge's 

credibility finding significant weight." BIA Opn. at 2 (citing 

Matter of V-T-S-, Interim Decision 3308 at 7 (BIA 1997); see 

Matter of Burbano, 20 I & N Dec. 872 (BIA 1994). However, 

although the BIA affirmed the immigration judge, it

expressed concern over the judge's credibility determination 

as the BIA found that Senathirajah sufficiently explained 

some of the testimony that caused the judge to doubt his 

credibility. Nonetheless, the BIA concluded that the 

immigration judge "had substantial grounds for being 

unwilling to credit the applicant's account of the events 

that form the basis of his claim." Id. The Board was 

particularly troubled with Senathirajah's professed difficulty 

with English. The Board stated: 

 [w]e agree with the immigration judge's assessment of 

 the applicant's claim not to have understood the 

 pronunciation of the English-speaking Service officer 

 who examined him upon his attempted entry into the 

 United States. In this regard we observe that the 

 applicant testified that he studied English at the 

 college level (citation omitted). We also observe that in 

 his Application for Asylum and for Withholding of 

 Deportation . . . the applicant indicates that he is 

 fluent in English. 

BIA Opn. at 2. 

_________________________________________________________________ 

6. On October 19, 1995, Petitioner filed a Motion to Withdraw Appeal, 

stating that the INS had agreed to parole him to Canada where he would 

be granted asylum and where he had relatives. App. at 104. On 

December 15, 1995, the BIA acknowledged by order that Senathirajah's 

appeal was withdrawn. App. at 103. On March 21, 1996, Petitioner filed 

a Motion to Reopen with the Immigration judge, stating that on 

December 26, 1995, the INS district director had "changed his policy of 

paroling individuals to Canada to seek asylum." App. at 91. On April 29, 

1996, the Immigration judge denied the Motion to Reopen. App. at 84- 

85. The BIA then certified the case to allow consideration of the appeal. 

App. at 2-5. 

 10 
The BIA also stated that, despite the lack of detail of the 

questions on the sworn statement, "the harm the applicant 

claimed to have suffered, also as reflected in the sworn 

statement, is not the kind of harm that the applicant's 

testimony indicates is the basis of his application for 

asylum." Id. The Board then affirmed the decision of the 

immigration judge as it found Senathirajah "not a credible 

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 such 

 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 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. 

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 asylum to 

those who qualify as refugees. It also amended section 

243(h) so as to require that deportation be withheld if an 

alien "demonstrates a clear probability of harm on account 

of one of the enumerated factors." Chang v. INS, 119 F.3d 

1055, 1061 (3d Cir. 1997). 

 One of Congress's primary purposes in enacting the 

 1980 law was to harmonize United States law with the 

 United Nations Protocol Relating to the Status of 

 Refugees ("U.N. Protocol"), to which the United States 

 became a party in 1968. 

Id. (internal quotation marks omitted). The immigration 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 establish" by 

 11 
objective 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 the 

applicant demonstrates that upon deportation his or her 

life or freedom would be threatened on account of one 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-percent 

chance of persecution upon his or her return. Vilorio-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 deportation be 

withheld, the Attorney General may still exercise her 

discretion and not deport the alien by a grant of asylum 

under S 208 of the Immigration Act. The latter requires that 

the alien establish a subjective fear of persecution that is 

supported by objective evidence that persecution is a 

reasonable possibility. Chang, at 1066. 

It is obvious that one who escapes persecution in his or 

her own land will rarely be in a position to bring 

documentary evidence or other kinds of corroboration to 

support a subsequent claim for asylum. It is equally 

obvious that one who flees torture at home will rarely have 

the foresight or means to do so in a manner that will 

enhance the chance of prevailing in a subsequent court 

battle in a foreign land. Common sense establishes that it 

is escape and flight, not litigation and corroboration, that is 

foremost in the mind of an alien who comes to these shores 

fleeing detention, torture and persecution. Accordingly, 

corroboration is not required to establish credibility. The 

law allows one seeking refugee status to "prove his

persecution claim with his own testimony if it is credible." 

Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir. 1996) (citing 

Aguilera-Cota v. INS, 914 F.2d 1375, 1379 (9th Cir. 1990)). 

Here, Senathirajah claims that the BIA's "adverse credibility 

finding is not supported by the record [or] by law." 

Petitioner's Br. at 10. We agree. 

 12 
III. 

As noted above, the BIA's ruling results in substantial 

part from the deference it gave the immigration judge's 

decision. However, while affirming the immigration judge's 

conclusion as to Senathirajah's credibility, the BIA noted 

that it believed some of the immigration judge's skepticism 

was not warranted. Nevertheless, the Board affirmed the 

decision of the immigration judge even though the Board 

believed that "some of the aspects of the applicant's 

testimony with which the immigration judge had difficulty 

[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 immigration judge 

in rejecting Senathirajah's petition. The BIA may defer to 

the credibility rulings of an immigration judge who actually 

heard the testimony, and observed the witnesses. However, 

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 credibility 

 determination, the Board can independently assess 

 that determination and make de novo findings on 

 credibility. See Damaize-Job v. INS, 787 F.2d 1332, 

 1338 (9th Cir. 1986) ("The Board has the power to 

 review the record de novo and make its own findings of 

 fact.") 

Balasubramanrim, at 161. 

Here, although the Board did grant some deference to 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 determination if 

there is substantial evidence in the record to support it. 

Chang, at 1060; see also Hartooni v. INS, 21 F.3d 336, 340 

(9th Cir. 1994); Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st 

Cir. 1994). "Substantial evidence is more than a mere 

scintilla and is such relevant evidence as a reasonable 

_________________________________________________________________ 

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

when 

it made this statement. 

 13 
mind might accept as adequate to support a conclusion." 

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 (citation and 

internal quotations omitted). We "evaluate those reasons 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 upon the 

following factors: (1) it disbelieved Senathirajah's testimony 

that he could not understand English as spoken by the 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) Senathirajah 

did not "specifically claim that the Record of Sworn 

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 which he 

testified was the basis of his asylum application. BIA Opn. 

at 2. 

The circumstances of Senathirajah's petition are quite 

similar to those that were before us in Balasubramanrim. 

There, the petitioner was also a Tamil from Sri Lanka 

seeking asylum and withholding of deportation. In ruling 

upon Balasubramanrim's petition for review, we noted 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 claimed 

_________________________________________________________________ 

8. In fact, the BIA considered Petitioner's testimony as a confirmation of 

the accuracy of the sworn statement. BIA Opn. at 2.

 14 
that he would be subject to additional detention and torture 

if he returned to Sri Lanka because he was Tamil. On his 

application he stated that the following events occurred 

before he left Sri Lanka: 

 1. In March 1988, he was arrested by the Indian 

 Peacekeeping Forces and taken to a camp where 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 for 10 d ays 

 and accused him of being an informant for the Indian 

 Peacekeeping Forces, a charge which he claims was 

 untrue; 

 4. In 1991, his brother disappeared after being 

 arrested by the Sri Lankan army; 

 5. In 1993, his father was killed by Sri Lankan air 

 bombs; 

 6. In October 1993, he fled northern Sri Lanka 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 Lankan 

 army arrested, detained and tortured him for one year 

 and ten days; eventually, his wife bribed the army for 

 his release; 

 8. In late 1994, Sri Lankan armed forces arrested him 

 at the airport as he was trying to leave the country 

 with his family, and he was detained and tortured 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 him in 

English without the aid of a translator. The result of this 

encounter was a handwritten document with 25 questions 

and answers about Balasubramanrim's past and his 

reasons for seeking asylum. 

 15 
Thereafter, Balasubramanrim appeared before an 

immigration judge where he told of the atrocities that he 

had endured. The immigration judge found him 

"excludable, denied his application for asylum and 

withholding of deportation, and ordered him deported to Sri 

Lanka." Id. at 160. The judge concluded that 

Balasubramanrim had not been truthful about his "prior 

arrests and his fears about returning to Sri Lanka. The [ ] 

judge also expressed doubts about his credibility because 

Balasubramanrim did not look at him while testifying and 

instead stared straight ahead `as though in a trance.' " 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 airport 

interview did not necessarily accurately reflect the 

persecution that he suffered in Sri Lanka, nor the danger 

he would face if he were forced to return. We expressed 

concern that: (1) the handwritten record of the airport 

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 application 

for asylum; (3) an arriving alien may, because of past 

interrogation, be unwilling to disclose much information to 

government officials; and (4) the BIA may not have 

accurately assessed Balasubramanrim's English skills. Id. 

at 162-63. 

We thus concluded that any discrepancy between 

Balasubramanrim's airport statement and his testimony 

was insufficient, by itself, to support the BIA's finding 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 credibility finding. 

However, " `[i]n the absence of substantial evidence 

supporting a finding of adverse credibility, the BIA is 

required explicitly to consider a petitioner's claims for 

asylum and withholding of deportation.' " Id. at 165 

(quoting Mosa, 89 F.3d at 605). 

 16 
We therefore granted Balasubramanrim's petition and

remanded the case to the BIA with further instruction to 

remand to the immigration judge for a determination of 

Balasubramanrim's asylum and withholding of deportation 

claims "without reliance on the adverse credibility finding." 

Id. Specifically, we held that "because of ambiguities in the 

airport statement and the circumstances under which it 

was made, that statement does not provide sufficient 

evidence to support the adverse credibility determinations 

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 taken 

during Senathirajah's airport interview. The government 

offered no testimony as to the circumstances under which 

that affidavit was obtained, or whether it was necessary to 

use sign language and/or gestures to communicate with 

Senathirajah. It is uncontested that he asked for an 

interpreter before he gave the affidavit and none was 

provided. As in Balasubramanrim, the affidavit here was not 

an application for asylum, and it should neither have been 

treated as such, nor read with the exacting eye that the BIA 

might use to examine statements that accompany Form I589. By placing too much reliance on an airport interview 

under the circumstances here, and ignoring more detailed 

accounts in Form I-589 as well as testimony at an asylum 

hearing, the INS seriously undermined the reliability of the 

administrative process. Given Senathirajah's allegations of 

torture and detention, he may well have been reluctant to 

disclose the breadth of his suffering in Sri Lanka to a 

government official upon arriving in the United States even 

if he could understand the questions he was being asked at 

the airport. 

The BIA affirmed the ruling of the immigration judge 

primarily because it agreed with the judge's conclusion that 

Senathirajah was fluent in English and could therefore be 

held to the statements in the affidavit and the apparent 

inconsistencies between those statements, the averments in 

Form I-589, and his later testimony at his asylum hearing. 

However, neither the BIA nor the immigration judge 

considered the limitations of the airport interview. 

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

inquiring about an applicant's facility with English. It asked 

only if Senathirajah was fluent, with no attempt to inquire 

into various degrees of proficiency one may have with a 

foreign language.9 Furthermore, neither the BIA nor the 

immigration judge appears to have given any consideration 

to the difficulty someone from Sri Lanka may have in 

understanding "American English," particularly under the 

stressful circumstances of entry into a new country. 10 

During the asylum hearing, Senathirajah testified as 

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 select one of two 

choices identifying his language facility. The application states: 

 17. Native Language: a. __ I am fluent in English. 

 b. __ I am not fluent in 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 Lankans is more than 

likely not of a vernacular commonly used in the United States. It seems 

no stretch, then, to assume that Petitioner might have needed an 

interpreter even if he technically "spoke the same language" as the INS 

inspector. 

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

 of study? 

 A: Diplomat and English. 

App. at 195-96. Although it is not clear if Senathirajah 

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 and 

understanding English during the asylum hearing. One 

cannot read the transcript from that hearing without 

realizing that there was significant difficulty communicating 

with Senathirajah even with the presence of a Tamil

interpreter. For instance, though the immigration judge and 

BIA placed substantial reliance on Senathirajah's testimony 

that he had "tutored" English, throughout his testimony he 

continually used "tuition" for "tutor" thus illustrating 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 to 

 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 then I 

 went to tuition. 

 *** 

 In the application I put total (indiscernible), but I was 

 given (indiscernible). Because the tuition work I was 

 doing was not profit. Same time I was detained, and 

 then I come back from detention, then I give tuition. 

App. at 60, 63. Nevertheless, when asked "are you fluent in 

English?", Senathirajah responded: "Yeah, some, little 

English." Id. at 53. It is clear from the transcript that 

whatever Senathirajah thought "fluent" meant, his facility 

with English is less than one might expect from the use of 

that term. It is clear that his ability to speak and 

understand the language is not without difficulty. 

 19 
Senathirajah argues that "advanced levels" in the British 

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, 5/14/98, p.2. 

The government offered no evidence at the hearing to 

establish that Senathirajah's level of education would have 

allowed him more proficiency with English than he 

admitted to. It is undisputed that Senathirajah requested 

an interpreter when he arrived at the airport but that none 

was available. Although he signed the affidavit, we are 

unimpressed with the affidavit's reliability, or probative 

value. Senathirajah's testimony that he provided the 

interview after being kept at the airport for "three or four 

hours without water or food . . . I was feeling faintish," 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 interpreter, 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 incomplete because 

of ambiguous and incomplete questioning that did not 

effectively elicit information relevant to a subsequent 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 army 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 persecution 

rather then whether he had any relatives or friends--the 

inspector would have elicited a more complete account of 

the suffering that Senathirajah had suffered in the past and 

the likelihood of future suffering. In Balasubramanrim, we 

noted that the immigration judge also placed too much 

 20 
reliance upon an airport interview where, after 

Balasubramanrim stated he would be killed if he returned 

home, "the next question was: `How did you get to the U.S. 

from Sri Lanka?' " Balasubramanrim, at 163. 

The BIA affirmed the immigration judge's credibility 

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 his 

testimony (arrests, detentions and physical abuse).

However, there is nothing inconsistent in those two

responses. At the airport, Senathirajah was asked if"it 

would be a burden" to return to Sri Lanka. He responded 

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 negate 

his subsequent testimony that he had been tortured during 

periods of detention. His statement regarding the burning 

of his home is responsive to the question he was asked. 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 torture in Sri 

Lanka. It is unfair to fault him for not volunteering that 

information in response to the questions the INS inspector 

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 airport 

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 of detention 

 which allegedly was for a period of over four 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 

 21 
 home was destroyed, but he did not testify that he had 

 relayed any other information as to his detention to the 

 inspector. 

Opn. at 13. Taking these concerns in turn we again note 

that Senathirajah answered those questions he was asked 

at the hearing. He told of being forced to drink his own 

urine when he asked for water, being kicked, and beaten on 

the head with a baseball bat. If the immigration judge 

wanted greater detail she should have asked appropriate 

follow up questions that may have elicited it. Thus, the 

immigration judge and the BIA ignore the most obvious 

reason for Senathirajah's purported failure to provide 

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. Our review 

of the affidavit reveals no question that would have elicited 

any information about detention in Sri Lanka, let alone 

torture and persecution. 

The immigration judge conceded that Senathirajah "may 

have had problems in understanding the oral language," 

Opn. at 12, when she discussed the answers he gave the 

INS inspector at the airport. Yet, she dismissed that 

possibility by concluding "he has signed a document. That 

is the Applicant had ample opportunity to review the 

question and answers that were written on [the affidavit]." 

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 much 

weight upon the fact that Senathirajah's written statement 

contained time frames that are not identical to those he 

testified to. "Minor inconsistencies in the record such as 

discrepancies in dates which reveal nothing about an 

asylum applicant's fear for his safety are not an adequate 

basis for an adverse credibility finding." Vilorio-Lopez, 852 

F.2d at 1141. For example, the immigration judge was 

 22 
troubled by Senathirajah's testimony that he was employed 

as a "tutor" during the time he was purportedly detained. 

Yet, his testimony was that he was self-employed and 

provided "tutoring" part time, and that he resumed tutoring 

upon his release. Thus, he may have well viewed himself as 

a tutor even though he was detained. He testified:"I was 

often I was giving tuition when I was detained. Then 

afterwards when I come from detention I went to tuition." 

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 (3d Cir. 

1996) ("[T]he Refugee Act brought the domestic laws of the 

United States into conformity with its treaty obligations 

under the United Nations Protocol Relating to the Status of 

Refugees"). The procedures for requesting asylum and 

withholding of deportation are not a search for a 

justification to deport. Justice requires that an applicant 

for asylum or withholding of deportation be afforded a 

meaningful opportunity to establish his or her claim. 

 Deportation is always a harsh measure; it is all the 

 more replete with danger when the alien makes a claim 

 that he or she will be subject to death or persecution 

 if forced to return to his or her home country. In 

 enacting the Refugee Act of 1980 Congress sought to 

 give the United States sufficient flexibility to respond to 

 situations involving political or religious dissidents and 

 detainees throughout the world. 

INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (internal 

quotation marks omitted). We do not operate under any 

rule that prevents an asylum applicant from elaborating 

upon the circumstances underlying an asylum claim when 

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 immigration judge. 

As noted above, the immigration judge concluded that she 

 23 
would deny Senathirajah's application even if he were 

credible because "[i]nvestigations as to the criminal 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 seeks here, 

we emphasize that torture does not constitute valid

governmental investigation, and conduct such as beatings 

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 torture in 

 numerous international agreements, and the 

 renunciation of torture as an instrument of official 

 policy by virtually all of the nations of the world (in 

 principle if not in practice), we find that an act of 

 torture committed by a state official against 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, General 

Assembly Resolution, 217 (III)(A)(Dec. 10, 1948) ("no one 

shall be subjected to torture"), American Convention 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. (English 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 based 

upon her belief that the Tigers were a subversive 

organization and that "legitimate" forces in Sri Lanka 

therefore had a right to investigate. However, there is 

absolutely no evidence in this record that Senathirajah was 

a member of the Tigers, and even if he was, we disagree 

with the immigration judge's belief that the Sri Lankan 

government could use torture as part of its investigation 

into his activity.11 "Although torture was once a routine 

_________________________________________________________________ 

11. Our holding in Balasubramanrim establishes that the treatment of 

the Tamil in Sri Lanka, and the persecution that has resulted from the 

activities of the Tigers could be sufficient to support a claim for asylum 

or withholding of deportation. However, that decision was after 

Senathirajah's asylum hearing and the immigration judge here did not 

have the benefit of that discussion. 

 24 
concomitant of criminal interrogations in many nations, 

during the modern and hopefully more enlightened era it 

has been universally renounced. According to one survey, 

torture is prohibited, expressly or implicitly, by the 

constitutions of over fifty-five nations. . . ." Pena-Irala, 630 

F.2d at 884. 

IV. 

For the reasons set forth above, we conclude that the BIA 

did not have substantial evidence for its finding of adverse 

credibility. We therefore hold that the BIA erred in affirming 

the decision of the immigration judge. Thus, we will remand 

this case to the BIA with instructions that the matter be 

remanded to the immigration judge, for a ruling on 

Senathirajah's asylum and withholding of deportation 

claims without consideration of the prior adverse credibility 

findings. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 25