United States Court of Appeals

for the Fifth Circuit

No. 20-60934

Thelipananthan Sivalingam, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A201 573 050

Before Jones, Southwick, and Ho, Circuit Judges.

Per Curiam:*

In this immigration case, the petitioner argues he is entitled to relief 

from removal because the Board of Immigration Appeals erred when it 

evaluated his credibility, denied him a continuance to allow gathering more 

evidence, faulted him for the absence of corroboration of some of his claims, 

and failed to provide a better translator so he could understand the 

proceedings. We conclude there was no error and DENY his petition. 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2022

Lyle W. Cayce

Clerk

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FACTUAL AND PROCEDURAL BACKGROUND

Thelipananthan Sivalingam, a native and citizen of Sri Lanka, applied 

for asylum and withholding of removal, asserting, as relevant now, that he 

was persecuted on account of his race and political opinion; he also sought 

protection under the Convention Against Torture (“CAT”). 

Sivalingam testified in the hearing about two incidents in which he was 

detained by the “Army CID” 1 and beaten. He asserted his targeting was on 

account of his suspected membership in the Tamil Liberation Tigers, but he 

denied being a member. Sivalingam received medical treatment for the 

injuries suffered during his detentions. Sivalingam’s assertionsincluded that 

he had a well-founded fear of a “pattern or practice of persecution” because 

he is a Tamil. He also claimed that he would face persecution on account of 

imputed political opinion as a failed asylum seeker. 

The immigration judge (IJ) determined that, under the totality of the 

circumstances, Sivalingam was not a credible witness. The IJ based her 

credibility finding on Sivalingam’s evasive, incomplete answers to questions 

and his demeanor; the IJ also identified a specific inconsistency in 

Sivalingam’s account. Further, the IJ faulted Sivalingam for failing to 

provide corroborating evidence of his claim, such as records of his medical 

treatments. 

Based on the adverse credibility determination, as well as on a 

determination that the alleged harms did not rise to the level of persecution,

the IJ determined that Sivalingam did not establish past persecution. The IJ 

1 In another case in which an alien claimed persecution in Sri Lanka and was 

represented by the same attorney who represents Sivalingam, this court’s opinion stated 

that “CID” stands for the Criminal Investigation Department of the Sri Lanka Police. 

Arulnanthy v. Garland, 17 F.4th 586, 590 (5th Cir. 2021). 

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also determined that Sivalingam did not establish a well-founded fear of 

future persecution based on a protected ground. The IJ denied asylum and 

withholding of removal. 

The IJ denied CAT protection based in part on the adverse credibility 

finding, but the IJ also determined that Sivalingam would not be entitled to 

CAT protection even if his testimony were credible. 

On appeal, the Board of Immigration Appeals (BIA) determined the 

IJ did not clearly err in making an adverse credibility determination, citing 

the inconsistency in Sivalingam’s account and the IJ’s observations that he 

was evasive in answering questions. The BIA rejected arguments that any 

evasiveness was due to problems with the telephonic interpretation and that 

these problems violated his due process rights. The BIA also mentioned 

Sivalingam’s failure to provide corroborating evidence. The BIA affirmed 

the IJ’s denial of asylum, withholding of removal, and relief under CAT. The 

BIA also held that the IJ did not abuse her discretion in denying a 

continuance. 

DISCUSSION

Where, as here, “the BIA affirms the immigration judge and relies on 

the reasons set forth in the immigration judge’s decision, this court reviews 

the decision of the immigration judge as well as the decision of the BIA.” 

Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). “Factual findings are 

reviewed for substantial evidence, and constitutional claims and questions of 

law are reviewed de novo.” Tibakweitira v. Wilkinson, 986 F.3d 905, 910 (5th 

Cir. 2021). The substantial evidence standard is deferential, meaning that 

“administrative findings of fact are conclusive unless any reasonable 

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B); see I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992). 

We now review each of Sivalingam’s arguments.

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I. Asylum claim

Sivalingam first argues that the IJ and BIA erred by denying his asylum 

claim based on the adverse credibility determination. He asserts that his 

status as a failed asylum seeker is unaffected by the credibility finding, and 

also mentions his Tamil ethnicity — and his ethnicity in conjunction with his 

status as a failed asylum seeker — as other possible bases to support his 

asylum claim. To qualify for asylum, an individual must establish either past 

“persecution or a well-founded fear of persecution” in the future. 8 U.S.C. 

§ 1101(a)(42); 8 C.F.R. § 208.13(b). 

As to past persecution, the IJ determined that Sivalingam’s testimony 

should be given “little weight due to the adverse credibility finding.” Even 

considering that testimony, though, the IJ concluded Sivalingam’s accounts 

of injuries and detention at the hands of the CID did not “rise to the level of 

persecution.” Sivalingam does not challenge the IJ’s adverse credibility 

determination. The IJ’s findings as to past persecution, and the BIA’s 

affirmance, are well-supported by the evidence and were not in error. 

As to fear of persecution, the IJ determined Sivalingam’s testimony 

and general country conditions evidence did not establish that he would be 

persecuted either as a suspected member of the Tamil Liberation Tigers or 

for his Tamil ethnicity. The IJ also found that Sivalingam could relocate 

within Sri Lanka to avoid persecution. 

The IJ also analyzed Sivalingam’s request for asylum based on being a 

failed asylum seeker. The IJ acknowledged that there was “evidence people 

who left the country illegally or to seek asylum may face persecution or 

harm” but then determined that there was not sufficient evidence to show 

this applied to Sivalingam. That was because the evidence did not show he 

had departed Sri Lanka without authorization. The IJ concluded that 

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Sivalingam failed to establish he would be persecuted in the future “for his 

race, [particular social group], or imputed political opinion.” 

These findings do not compel the conclusion that Sivalingam would 

be subject to future persecution. See Elias-Zacarias, 502 U.S. at 483–84. 

Moreover, to establish future persecution, Sivalingam needed to 

“demonstrat[e] a subjective fear of persecution that is also objectively 

reasonable.” Dayo v. Holder, 687 F.3d 653, 658 (5th Cir. 2012). The IJ’s 

broad adverse credibility determination, however, makes it impossible for 

Sivalingam to establish that he has a subjective fear of future persecution, 

because “[i]f none of [a petitioner’s] testimony is taken as credible, then he 

[can]not establish a subjective fear of persecution.” Arulnanthy v. Garland, 17 

F.4th 586, 597 (5th Cir. 2021) (emphasis in original). Sivalingam therefore 

cannot show error in the denial of his asylum claim. 

“Because the asylum standard is more lenient than the standard for 

withholding of removal,” his failure to establish the requisite “well-founded 

fear for asylum eligibility” forecloses his claim for withholding of removal. 

Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012).

II. Convention Against Torture claim 

Sivalingam argues that the BIA erred by denying his CAT claim solely 

based on the adverse credibility finding. As he did with his asylum claim, he 

asserts that his status as a failed asylum seeker is an objective fact that is 

unaffected by the adverse credibility finding, and he also mentions his Tamil 

ethnicity in conjunction with his status as a failed asylum seeker as other 

possible bases to support his CAT claim. 

Neither the IJ nor the BIA treated Sivalingam’s credibility as 

dispositive. In evaluating the CAT claim, the IJ found that Sivalingam’s 

country conditions evidence about the persecution of Tamils was not enough 

to establish he would “more likely than not” be tortured upon return. In 

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addition, the IJ found that even if Sivalingam were found credible, his 

testimony did not show “the requisite level of harm for a grant of protection 

under the CAT.” The IJ also addressed Sivalingam’s status as a failed 

asylum seeker and concluded he had failed to establish he would be tortured

as a returning asylum seeker. 

The BIA, too, did not rely solely on an adverse credibility 

determination to affirm the IJ’s order. The BIA explained that Sivalingam 

had “not articulated how the documents in the record independently 

establish a claim for relief in the face of his lack of credible testimony.” It 

then cited Ghotra v. Whitaker, 912 F.3d 284, 290 (5th Cir. 2019), which had 

concluded that documentary evidence, including “background reports on 

country conditions,” did not corroborate his testimony or independently 

support his claims. We interpret the BIA’s citing of Ghotra as informing that 

the same failure existed here. The BIA concluded that Sivalingam had not, 

leaving aside his not-credible testimony, provided “sufficient corroborating 

evidence to independently meet [his] burden of proof.” 

In sum, both the BIA and the IJ reviewed Sivalingam’s evidence, 

including country conditions evidence, and determined that Sivalingam is 

not entitled to CAT relief. Consideration of the record does not compel 

another conclusion. See Garcia v. Garland, 28 F.4th 644, 648 (5th Cir. 2022). 

Thus, Sivalingam fails to show error in the denial of his CAT claim. 

III. Motion for continuance 

At a hearing in February 2020, the IJ refused to admit documents that 

Sivalingam had filed after the deadline for submission of evidence. Relatedly, 

the IJ denied Sivalingam’s motion for a continuance so that the late-filed 

documentary evidence could be considered. 

Sivalingam challenges the refusal to grant a continuance. Among the 

documents he wanted to admit were his mother’s affidavit, which the IJ 

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refused to accept because it was filed after the deadline. An IJ “may grant a 

motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. We

review the IJ’s denial of a continuance for abuse of discretion. Ali v. Gonzales, 

440 F.3d 678, 680 (5th Cir. 2006). 

Sivalingam contends the IJ’s analysis of the request for a continuance 

was fatally flawed; he also asserts the BIA should have analyzed his request 

for a continuance by using a four-part test from the Ninth Circuit. We do not 

consider another circuit’s test because we have our own. “Neither the BIA 

nor the IJ abuses its discretion so long as [the decision] is not capricious, 

racially invidious, utterly without foundation in the evidence, or otherwise so 

aberrational that it is arbitrary rather than the result of any perceptible 

rational approach.” Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 

2007) (quotation marks and citation omitted). 

Here, the BIA correctly determined that Sivalingam did not explain in 

his brief why he failed to submit the documentary evidence to the 

immigration court in a timely manner. Sivalingam’s contention that he did 

not provide an explanation to the BIA because the BIA is not a factfinding 

body is no justification, as he likewise offered no explanation to the IJ for the 

tardy filing. Thus, Sivalingam has not demonstrated an abuse of discretion.

His challenge to the denial of a continuance fails. 

IV. Corroboration 

Sivalingam next asserts that the BIA erred in its analysis pertaining to 

his failure to provide corroborating evidence. The BIA explained that the IJ 

identified “several documents not included in the record that she believed 

the respondent could have obtained, such as medical records or proof from 

his family that the Sri Lankan military continues to look for the respondent.” 

Sivalingam argues that the IJ and BIA should not have expected him to 

provide corroborating evidence because the record demonstrates such 

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evidence is either nonexistent or unavailable. He also emphasizes that his 

mother’s affidavit, which was among the late-filed evidence the IJ refused to 

accept, establishes that the Sri Lankan armed forces continued to look for 

him after he left the country. 

“[T]he IJ may require the submission of reasonably available evidence 

corroborating a claim for relief from removal,” regardless of the credibility of 

the alien’s testimony. Avelar-Oliva v. Barr, 954 F.3d 757, 764 (5th Cir. 2020). 

Here, although Sivalingam testified that the medical clinic he visited for 

treatment in Sri Lanka did not provide him written documentation of his 

visits, the agency’s adverse credibility determination indicates that his 

testimony as to the lack of documentation was not credible. “[U]nless the IJ 

or the BIA specify otherwise, an adverse credibility finding operates as a 

blanket rejection of every piece of testimony the applicant has offered.” 

Arulnanthy, 17 F.4th at 596 (emphasis in original). Further, the record shows 

that corroboration was available from Sivalingam’s mother, but for 

unexplained reasons he did not provide evidence from his mother in a timely 

manner. Of some relevance, Sivalingam was served with the notice to appear 

on September 5, 2019, then had until February 11, 2020, to submit evidence. 

He “has not shown that the record compels the conclusion that corroborating 

evidence . . . was unavailable.” Avelar-Oliva, 954 F.3d at 769. 

V. Due process 

Finally, Sivalingam asserts that his constitutional right to due process 

was violated by the existence of auditory and translation problems during his 

merits hearing. To prevail on a due process claim, an alien must show 

“substantial prejudice.” Toscano-Gil v. Trominski, 210 F.3d 470, 473 (5th 

Cir. 2000).

Sivalingam appeared before the IJ by video conference, while the 

interpreter participated in the hearing telephonically from a different 

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location. At many points in the hearing, Sivalingam expressed difficulty in 

understanding the interpreter, or the interpreter indicated that Sivalingam 

could not understand what was being said by participants in the hearing. 

Additionally, at one point, the interpreter began coughing.

Sivalingam contends that the difficulties with the interpretation 

service amounted to a violation of his due process rights. The record reflects 

that, when there was a difficulty in understanding, the question or answer 

was repeated; further, the interpreter was given a chance to recover from his 

coughing spell before the hearing proceeded. There was no due process 

violation. 

The petition for review is DENIED. 

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