Honorable John W. Darrah, United States District Judge for 

the Northern District of Illinois, is sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-2644 & 08-3777

SUGANTHAN PATHMAKANTHAN,

Plaintiff-Appellee,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Defendant-Appellant.

Petition for Review of an Order of

 the Board of Immigration Appeals.

No. A099 031 921

ARGUED MARCH 29, 2010—DECIDED JULY 16, 2010

Before CUDAHY and KANNE, Circuit Judges, and

DARRAH, District Judge.

CUDAHY, Circuit Judge. As fighting raged between Sri

Lankan security forces and the separatist Tamil Tigers,

Suganthan Pathmakanthan (Petitioner) found himself

caught in the middle. Petitioner is an ethnic Tamil who
2 Nos. 08-2644 & 08-3777

lived in an area of Sri Lanka controlled by the Tigers.

Although he was not personally involved with the Tigers,

he was subject to repeated stops and questioning by the

Sri Lankan forces. Between 2002 and 2005, he was subjected to some 15 arrests, after which he was detained,

questioned and promptly released each time. At one

point, Petitioner traveled to India and returned to Sri

Lanka without fleeing or seeking asylum. Sometime

after that return, though, he was arrested and threatened

with death. He was released without harm after 10 hours.

Petitioner subsequently fled Sri Lanka and, using false

Indian identification, boarded a plane that arrived at

Chicago’s O’Hare Airport on August 24, 2007.

Petitioner applied for asylum, withholding of removal

and relief under the United Nations Convention Against

Torture (CAT). After all three were denied by the Immigration Judge (IJ) and the Board of Immigration Appeals

(BIA), he moved to reopen based on changed circumstances in Sri Lanka (namely the reported breakdown of

the cease-fire between Sri Lankan security forces and the

Tamil rebels). The motion to reopen was denied.

Pathmakanthan now petitions for review of these decisions.

Notwithstanding the many difficult experiences that he

endured, Petitioner has not shown that he had been the

subject of persecution. Further, despite the poor humanrights conditions in Sri Lanka, Petitioner has not shown

that he faces a well-founded fear of future persecution. Moreover, the BIA did not abuse its discretion in

denying his motion to reopen. For these reasons, and
Nos. 08-2644 & 08-3777 3

the ones that follow, we deny the consolidated petition

for review.

I. BACKGROUND

Petitioner is an ethnic Tamil from the Northern

Province of Sri Lanka who is in his late 20s. Since he was

a child, his homeland has been the scene of an oftenbrutal armed conflict between the Sri Lankan government and the Liberation Tigers of the Tamil Eelam (LTTE),

a rebel group that regularly committed atrocities, which

resulted in its being designated a terrorist organization

by the U.S. State Department.

As a young, ethnic Tamil male, Petitioner was the

subject of attention, stops and questioning by the Sri

Lankan forces. In 1997, Petitioner and his parents were

detained at a refugee camp for four months and were

released only after his uncle posted a bond. Between 2002

and 2005, he was arrested and detained during round-ups

of Tamils in his area over 15 times. In each of these incidents, the police both questioned him and presented him

to masked informants in order to determine whether he

was a Tiger militant or supporter. Each time they released

him after a short detention. He was never beaten or

physically injured.

In 2005, when Petitioner began working for the German

NGO, Sewalanka, as a monitoring officer overseeing

50 villages, he traveled extensively in the Tamil-controlled

region. He was stopped by security forces daily and

detained for up to two hours while he assured them that
4 Nos. 08-2644 & 08-3777

he was not a supporter or member of the LTTE. In the

course of his duties with the NGO, Petitioner traveled to

India for training. India admitted him based on a group

visa and Sri Lanka readmitted him based on his own

identification. While in India, Petitioner did not seek or

formally inquire about asylum. In August 2006, Petitioner

quit the NGO due to harassment and threats from the

authorities and personal fears for his safety. He began

working for his father’s construction business.

In 2007, the Sri Lankan criminal-investigation department arrested Petitioner, took him into custody and

brought him to a camp. There they interrogated him again

about his ties to the LTTE and threatened to kill him.

Petitioner stated that he believes he was not killed at the

time because his family knew of his arrest and pleaded

for his release.

In August 2007, Petitioner obtained false Indian documentation and fled Sri Lanka via Malaysia and Japan,

arriving at Chicago’s O’Hare Airport.

Under the Immigration and Nationality Act (INA), the

Department of Homeland Security (DHS) charged Petitioner with removal based on his inadmissibility under

Section 212(a)(6)(C)(i) (entering the United States through

fraud or misrepresentation of material fact) and Section

212(a)(7)(A)(i)(I) (an immigrant not in possession of a

valid visa). 8 U.S.C. § 1182. Initially Petitioner conceded

to his removability on both charges, but was later

allowed to withdraw his concession of the fraud charge.

Petitioner immediately requested withholding of removal

pursuant to Section 241(b)(3) of the INA, asylum in the
Nos. 08-2644 & 08-3777 5

United States pursuant to Section 208 of the INA and

relief under the CAT. See 8 U.S.C. § 1227; 8 U.S.C. § 1158;

8 C.F.R. §§ 1208.16 et seq.

On January 17, 2008, the IJ issued a decision denying

Petitioner’s asylum request on the merits. Petitioner

timely appealed to the BIA, which adopted and affirmed

the IJ decision on June 5, 2008. Pathmakanthan petitions this court for review of that order. Docket No. 08-

2644. On September 26, 2008, Petitioner filed a motion

with the BIA, requesting that the Board reopen the

earlier matter due to a change in country conditions.

On October 23, 2008, the BIA denied this request, citing

the Petitioner’s failure either to file within 90 days of the

prior decision or to provide sufficient evidence that

the circumstances had changed in Sri Lanka. See 8 C.F.R.

§ 1003.2(c)(3)(ii). Pathmakanthan also petitions for

review of the BIA’s refusal to reopen the matter. Docket

No. 08-3777. We have consolidated both matters.

II. DISCUSSION

Under 8 U.S.C. § 1158, the Attorney General or Secretary

of Homeland Security may grant asylum to aliens who

qualify as refugees as defined in 8 U.S.C. § 1101(42)(A).

In order to qualify as a refugee, an alien needs to demonstrate two things. First, he must show that he has been

the victim of past persecution or has a well-founded fear

of future persecution. § 1101(42)(A). Second, he must

show that the persecution is on account of race, religion,

nationality, membership in a particular social group or
6 Nos. 08-2644 & 08-3777

political opinion. Id. Under the CAT, an alien may be

withheld from removal if she establishes that it is more

likely than not that she would be tortured if removed to

the proposed country of removal. 8 C.F.R. § 1208.16(c)(2).

The CAT standard is more stringent than the one for

asylum. See Selimi v. Ashcroft, 360 F.3d 736, 741 (7th

Cir. 2004).

We treat the BIA’s adoption of the IJ decision as a

final agency decision, and we reverse only if the

evidence compels a reasonable fact finder to another

conclusion. Ursachi v. INS, 296 F.3d 592, 594 (7th Cir. 2002);

Pop v. INS, 270 F.3d 527, 529 (7th Cir. 2001). Where, as

here, the BIA merely supplements the IJ’s opinion, that

opinion, as supplemented by the Board, forms the basis

for review. See Moab v. Gonzales, 500 F.3d 656, 659 (7th

Cir. 2007). In conducting our review, we will “inquire

only whether the Board’s decision has the support of

‘reasonable, substantial, and probative evidence on the

record considered as a whole.’ ” Toptchev v. INS, 295

F.3d 714, 720 (7th Cir. 2002) (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). We review the BIA’s

denial of the motion to reopen for abuse of discretion. INS

v. Abudu, 485 U.S. 94, 107 (1988). We review matters of

law, including claims of denial of due process, de novo.

Shmyhelskyy v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007).

A. Substantial Evidence Supports the IJ’s Determination

That Petitioner Did Not Suffer Past Persecution

Petitioner’s life story is compelling. Police and military

forces have detained him, interrogated him and even
Nos. 08-2644 & 08-3777 7

We note that the IJ deemed Petitioner’s testimony credible. 1

once threatened him with death while he was merely

trying to go about his business. He tells of his family’s

going into hiding and giving up their business after a

threat, and of his entire family’s being detained for

months in a refugee camp, only to be released when his

uncle posted a bond.

1

A determinative definition of “persecution” has proven

elusive. There is no statutory definition; nor has the

BIA provided one. See, e.g., Chen v. Gonzales, 457 F.3d 670,

674 (7th Cir. 2006). However, we have characterized

persecution as “punishment or the infliction of harm for

political, religious, or other reasons that this country

does not recognize as legitimate.” Boci v. Gonzales, 473

F.3d 762, 766 (7th Cir. 2007) (quoting Dandan v. Ashcroft,

339 F.3d 567, 573 (7th Cir. 2003)). Persecution includes

threats to life or freedom as well as other violence or

abuse, yet it need not necessarily be life-threatening. See

Firmansjah v. Gonzales, 424 F.3d 598, 605 (7th Cir. 2005);

Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1990). But

“[p]ersecution involves harms that go beyond mere

harassment; it results from more than simply ‘unpleasant

or even dangerous conditions in [the applicant’s] home

country.’ ” Ahmed v. Gonzales, 467 F.3d 669, 673 (7th Cir.

2006) (quoting Nakibuka v. Gonzales, 421 F.3d 473, 476

(7th Cir. 2005)).

Petitioner certainly suffered harassment when the

police rounded him up with others some 15 times in

3 years and subjected him to interrogation and detention.

Each time, and quite understandably, he worried that
8 Nos. 08-2644 & 08-3777

the masked informant whose job it was to identify

Tiger rebels would mistakenly mark him for punishment or worse. When he was employed by the NGO,

Petitioner was stopped almost daily at checkpoints and

questioned. These stops sometimes lasted up to two

hours and were undoubtedly intimidating and harassing.

Since we cannot know the full details of Pathmakanthan’s

experiences in Sri Lanka, his own behavior can be informative. It is important that Petitioner left the country

for India during this time. His return to Sri Lanka from

India is telling. Had Petitioner truly been in fear for his

life, or otherwise experienced persecution at the hands

of the Sri Lankan government, the prospect of returning

home would surely have been far from attractive. That

he chose not to seek asylum in India suggests that he

not been subject to persecution at that time. His being

subject to repeated stops and detentions was surely

anxiety-inducing and harassing. But it does not in

itself amount to past persecution.

We must consider the matter of the death threat made

against Petitioner during the Criminal Investigation

Department (CID) detention, which occurred after Petitioner’s return from India. In May 2007, Pathmakanthan

was riding his motorbike when the CID stopped him,

arrested him and took him to a detention facility. The

CID held him at the camp for ten hours during which

it threatened his life. Petitioner’s detention was witnessed by his family’s neighbors, and later that evening

he was released when his parents came to the camp and

demanded his release. Petitioner asserts that the public

nature of his arrest was the only reason he was threatened
Nos. 08-2644 & 08-3777 9

rather than actually killed at the camp. He contends that,

had his parents not arrived and insisted on his release, the

CID may have taken his life. Twelve years earlier, Petitioner’s brother died, and while the government maintained that he was killed by a land mine, Petitioner believed that it was at the hands of the government. Once

threatened, he feared a similar fate for himself. After his

release from the camp, Petitioner hid for three months.

In response to an apparently unrelated threat to Petitioner’s father, his father had to close his construction

business and his family had to pay a bribe to a pro-government group.

Threats alone, and particularly threats of death, can

amount to persecution under certain circumstances. In

Mitev, we considered the possibility that living under

threat of death by secret government forces might rise

to this level. Mitev, 67 F.3d at 1331. To live, day after

day, knowing that government forces might secretly

arrest and execute you is itself a form of mental anguish

that can constitute persecution. Yet, logic dictates that

for an unfulfilled threat to rise to the level of persecution,

it must be something extraordinarily ominous. It cannot

simply be a threat of death that, in context, is just a

matter of words. In Mitev, while we noted the potential

for threat-based persecution by the secret police, we

denied the petitioner’s appeal because his threats came

from co-workers unhappy with his political activism, not

the government itself. Id. at 1328-29. Even threats from

police did not amount to past persecution when they

were not acted on and, in context, were viewed as less

than likely to be fulfilled. Boykov v. INS, 109 F.3d 413, 416
10 Nos. 08-2644 & 08-3777

(7th Cir. 1997). “In the vast majority of cases . . . mere

threats will not, in and of themselves, compel a finding

of past persecution.” Id.

Petitioner has not presented evidence that he suffered

past persecution due to the threat alone. We note that

he took the threat seriously, both because he says that

he did (and the IJ found him credible) and because he

went into hiding for three months after it. Yet, if the

government wanted to kill Petitioner, it seems unlikely

that it would have released him later that evening at the

insistence of his parents. Petitioner contends that the CID

did not execute him in the camp because there were

witnesses to his arrest. We cannot know the inner

workings of the Sri Lankan CID or whether it would

truly be motivated to spare a life under these circumstances, yet it seems logical that, even if the presence of a

witness thwarted the killing, the CID would not release

someone they wanted dead. One would expect that the

police would hold such a person pending some sort of

charge or investigation. In saying this, we do not

say that the threat against Petitioner was not serious,

frightening or real. Nevertheless, given the record, the

IJ’s determination that Pathmakanthan did not experience past persecution is supported by substantial evidence. The context of the single death threat to which he

was subject is not so severe that no reasonable person

could fail to find that he was subject to persecution.

Toptchev, 295 F.3d at 720.
Nos. 08-2644 & 08-3777 11

B. Substantial Evidence Supports the IJ’s Determination

That Petitioner Does Not Have a Well-Founded Fear of

Future Persecution

Past persecution leads to a rebuttable presumption of

future persecution. Begzatowski v. INS, 278 F.3d 665, 669

(7th Cir. 2002). In the present case, though, where Petitioner has not established past persecution, he may still

demonstrate a well-founded fear of future persecution.

Because the IJ found him to be credible, we take Petitioner

at his word that he has a subjective fear of being persecuted upon his return to Sri Lanka. But a subjective fear

is not enough in itself; rather, an asylum seeker must

also demonstrate that the fear of future persecution

is objectively reasonable. See Ayele v. Holder, 564 F.3d

862, 868 (7th Cir. 2009).

We address two possible iterations of future persecution. First, even though living under the death threat did

not amount to past persecution, we will consider whether

the threat is sufficiently grave to give rise to a wellfounded fear of future persecution. Second, we will

consider petitioner’s claims of persecution in general

against young Tamil males from the Northern Province

of Sri Lanka.

Taking the former question first, we agree with the IJ

that the single death threat made to to Pathmakanthan

does not render his fear of future persecution objectively

reasonable. While any threat of death is serious, we do

not believe that this particular threat creates a wellfounded fear of future persecution because (1) the threat

was an isolated incident, not part of a series of ongoing
12 Nos. 08-2644 & 08-3777

threats, (2) the Petitioner was released within hours and

without having suffered any physical harm, and (to a

lesser degree) (3) to the extent the threat may have been

based on Petitioner’s perceived membership in the Tamil

Tigers, that group’s military defeat at the hands of

the government in 2009 could conceivably obviate the

motivation that underlay the single threat to which

Pathmakanthan was subject. See U.S. STATE DEP’T, 2009

COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: SRI

LANKA (noting that the government declared victory over

the Tigers on May 18, 2009); Balogun v. Ashcroft, 374

F.3d 492, 506-07 (7th Cir. 2004) (holding that we may

take judicial notice of country conditions documented

in State Department reports).

Petitioner contends that the Sri Lankan government has

an ongoing pattern and practice of persecuting young

Tamil males from the Northern Province and that he

would be subject to this persecution as a member of this

ethnic group. We acknowledge that persecution can be

directed at an entire subset of a population, and

asylum can be granted on such a basis. See 8 C.F.R.

§ 208.13(b)(2)(iii). Yet, this provision is very limited and

we hold such claims to a high standard. “There must be

a ‘systematic, pervasive, or organized’ effort to kill,

imprison, or severely injure members of the protected

group, and this effort must be perpetrated or tolerated

by state actors.” Mitreva v. Gonzales, 417 F.3d 761, 765

(7th Cir. 2005); see also Mitev, 67 F.3d at 1330 (“A more

generous interpretation of ‘persecution’ would ‘qualify

the entire population of many war-torn nations for asylum’ and thus make congressionally-imposed limitations
Nos. 08-2644 & 08-3777 13

In 2009 we made a determination that the practices of the Sri 2

Lankan government did not rise to a pattern or practice of

persecution of ethnic Tamils. Krishnapillai v. Holder, 563 F.3d 606

(7th Cir. 2009). Petitioner in this case has relied on much of the

same background information. Although circumstances for

male Tamils in Sri Lanka may have changed since the Tigers’

military defeat, any argument as to changed country conditions

(continued...)

on immigration virtually meaningless.” Id. (quoting

Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir. 1992)).

“Consequently, conditions of political upheaval which

affect the populace as a whole or in large part are generally insufficient to establish eligibility for asylum.”

Sivaainkaran, 972 F.2d at 165; see also Kaharudin v. Gonzales,

500 F.3d 619, 623-25 (7th Cir. 2007).

Petitioner has presented anecdotal evidence of harassment by Sri Lankan government authorities and other

evidence such as U.S. State Department reports. This

evidence demonstrates a harsh, battle-torn environment,

in which the Tamils as a group are often ill-treated. Nevertheless, we agree with the IJ that many of the detentions and interrogations described by Pathmakanthan

may have been necessary evils for a government entrenched in a ferocious civil war with a terrorist group.

And despite the fact that the State Department’s 2009

report on Sri Lanka paints a grim picture for Tamils

generally, it does not necessarily demonstrate that the

Sri Lankan government persecutes young Tamil males.

What Petitioner has demonstrated does not rise to the

high standard we set for considering entire ethnicities (or

even large subsets of them) eligible for blanket asylum.2
14 Nos. 08-2644 & 08-3777

(...continued)

should be presented to the BIA at the first instance. 8 C.F.R.

§ 1003.2(c)(3)(ii).

Thus, substantial evidence supports the BIA and IJ’s

finding that Petitioner has not established past persecution or a well-founded fear of future persecution. 

C. Petitioner Is Not Entitled to Relief Under the Convention

Against Torture

The CAT standard presents a higher threshold than the

asylum standard. Selimi v. Ashcroft, 360 F.3d 736, 741 (7th

Cir. 2004). Because Petitioner has not met the burden to

establish asylum, he has not met the burden for

protection under the CAT. See, e.g., Ishitiaq v. Holder, 578

F.3d 712, 718 (7th Cir. 2009). Petitioner contends that

he will be subject to torture as a failed asylum seeker

returning to Sri Lanka, even if he has not shown a

pattern of torture that would otherwise afford protection under the CAT. Nevertheless, he has not met the

burden of showing that he is more likely than not to be

tortured upon his return because of his status as a

failed asylum seeker, or for any other reason.

D. The BIA Did Not Deny Petitioner Due Process of Law

Petitioner claims that the BIA confused his case with

another and therefore denied him due process of law.

There are a few instances where the BIA fumbled the

language, most notably calling Petitioner’s request an

“adjustment of status” rather than “withholding of re-
Nos. 08-2644 & 08-3777 15

moval.” While this raises the possibility of confusion, a

reading of the entire decision makes it apparent that

this was a semantic error and that the BIA did fully

consider Petitioner’s unique circumstances. This error

was therefore harmless. Likewise, the BIA’s failure to

expound on the fact that Petitioner would be a failed

asylum seeker returning to Sri Lanka does not mean it

did not consider it; denying asylum obviously results in

his being a failed asylum seeker. The BIA did not deny

Petitioner’s due-process rights.

E. The BIA Did Not Abuse its Discretion in Denying Petitioner’s Motion to Reopen

On September 26, 2008, Petitioner filed a motion to

reopen with the BIA, arguing that conditions in Sri Lanka

had changed in light of the breakdown of a cease-fire

between the Tigers and Sri Lankan government. In

support of his motion, he submitted the 2007 Country

Report on Human Rights Practices, amongst many other

documents. On October 23, 2008, the BIA denied the

motion on the grounds that it was untimely filed and

the evidence submitted in support was not sufficiently

strong to show changed country conditions for the

purpose of 8 C.F.R. § 1003.2(c)(3)(ii). Pathmakanthan has

also petitioned for review of this order of the BIA.

We note the government’s November 3, 2008, motion

to dismiss for lack of jurisdiction at the outset. This

motion will be denied in light of the Supreme Court’s

decision in Kucana v. Holder, which held that federal

courts have jurisdiction to review administrative deci-
16 Nos. 08-2644 & 08-3777

sions to reopen removal proceedings. 130 S. Ct. 827, 840

(2010).

We review Pathmakanthan’s petition for review of the

Board’s denial of his motion to reopen for abuse of discretion. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir. 2007).

We deny the petition because the decision of the BIA

was supported by rational explanation. Pelinkovic v.

Ashcroft, 366 F.3d 532, 536 (7th Cir. 2004). Nor did it

inexplicably depart from established policies or rest on

an impermissible basis. Id. Specifically, the BIA correctly

observed that the information contained in the 2007

Country Report predated the IJ’s January 2008 decision.

The Board also noted that the materials submitted by

Pathmakanthan revealed that fighting had been ongoing

since 2006, notwithstanding the cease-fire, so the

official end of the truce in 2008 was not sufficient to

show changed country conditions. Nor did the materials

reveal that conditions for Tamils in the country had

worsened due to the end of the cease-fire. Therefore, the

BIA did not abuse its discretion in denying Petitioner’s

motion to reopen.

Nevertheless, we note with some concern the State

Department’s 2009 report on Sri Lanka, which paints a

grim picture for Tamils generally and young male Tamils

in particular. 2009 COUNTRY REPORTS: SRI LANKA

(observing that “the overwhelming majority of victims of

human rights violations . . . were young male Tamils” and

noting that “[i]n July the UN High Commissioner for

Refugees (UNHCR) reaffirmed his recommendation

that Tamils from and in the north be eligible for asylum
Nos. 08-2644 & 08-3777 17

status given the human rights situation in the country”).

Given that the situation in Sri Lanka may have changed

markedly since Pathmakanthan filed his last motion to

reopen, he may wish to file another motion to reopen

with the BIA in light of changed country conditions

since the time of the hearing. See 8 C.F.R. § 1003.2(c)(3)(ii);

Asani v. INS, 154 F.3d 719, 725 n.2 (7th Cir. 1998).

 III. CONCLUSION

For the foregoing reasons, the government’s motion to

dismiss for lack of jurisdiction and the consolidated

petitions for review are

DENIED.

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