Sri Lankan and Tamil naming conventions differ from our 1

own. We refer to the petitioner by the name set forth in the

narrative statement he submitted in support of his asylum

application. A.R. 394.

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2512

SUNDAR R. KRISHNAPILLAI,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A99-027-190

ARGUED JUNE 2, 2008—DECIDED APRIL 23, 2009

Before EASTERBROOK, Chief Judge, and ROVNER and

WOOD, Circuit Judges.

ROVNER, Circuit Judge. Sundar R. Krishnapillai

(“Sundararajan”) , a native and citizen of Sri Lanka, 1

petitions for review of an order of the Board of Immigra-
2 No. 07-2512

tion Appeals (the “BIA” or “Board”) sustaining the

denial of his requests for asylum, restriction on removal,

and relief under the United Nations Convention

Against Torture. Based on his own experiences in Sri

Lanka and on the adverse treatment of other ethnic

Tamils like himself, Sundararajan contends that he faces

likely persecution at the hands of both the Sri Lankan

authorities and terrorist insurgents if he is forcibly returned. However, the Immigration Judge found

Sundararajan’s testimony regarding his own experiences

to be incredible and denied his claims based largely on

the adverse credibility finding, and the Board affirmed

that decision. Because the IJ’s decision, as supplemented

by the Board, is supported by substantial evidence and

is not tainted by any legal error, we deny Sundararajan’s

petition for review.

I.

Sundararajan’s requests for relief are founded on a

belief that he is at risk of harm from both the armed forces

of the Sri Lankan government and the Liberation Tigers

of Tamil Eelam (“LTTE”), a terrorist organization based

in northern Sri Lanka that for more than thirty years has

been waging a violent campaign to create an independent

state for Sri Lanka’s Tamil minority. Sundararajan,

himself an ethnic Tamil, gave the following account of the

events that brought him to the United States in his testimony and in the narrative statement attached to his

asylum application.
No. 07-2512 3

Sundararajan was born in 1969 in Navatkuda, a town

in the Batticaloa district in eastern Sri Lanka. He has

worked both as a self-employed farmer and heavy truck

driver. He married in 1994 and now has three children,

aged five through thirteen. His wife and children remain

in Sri Lanka.

In 1990 or 1991, Sundararajan and his family lost their

home and most of their belongings in the midst of heavy

fighting between the LTTE and the Sri Lankan army. For

a time, they lived in a refugee camp in nearby

Vantharumoolai, but their fear of random arrests and

detention by the Sri Lankan army eventually led them

to depart for the coastline village of Navalady. The devastating tsunami of December 2004 took the life of

Sundararajan’s brother and destroyed the hut his family

was living in, along with what few possessions they

had left.

In the wake of the tsunami, Sundararajan and his

family (including his parents) left the coastal region and

eventually relocated inland to an area then controlled by

the LTTE. For a year, they lived there in peace. But then

fighting broke out between the LTTE and the Sri Lankan

military, people living in the area became subject to

arrest and torture by the army, and the government

imposed an economic embargo on this and other areas

controlled by the LTTE. To help maintain its control of the

area, the LTTE organized a compulsory “self-defense”

training program, in which at least one member of each

family was expected to participate. Sundararajan testified

that he was contacted on multiple occasions about
4 No. 07-2512

taking the training and at first demurred. Eventually, he

felt that he had no alternative but to agree. After telling

the LTTE that he would participate in the training, he

advised his parents and his wife to move to an armycontrolled area and told them that he would join them

when he escaped from the LTTE. On the following day,

a date in April 2006, the LTTE picked him up and took

him to a training camp at Kokati Cholai, a rural area. The

camp was surrounded by a fence and patrolled by

armed guards. Sundararajan testified that after spending

two days in the camp, he managed to get away at four

o’clock in the morning by telling the guards (one of whom

he knew) that he was going out to buy cigarettes at a

nearby shop that opened at that early hour. He left the

LTTE-controlled area and joined his family in Arasady, a

government-controlled zone, where a priest gave them

shelter in a church. He spent one or two months there.

But the LTTE came looking for him, and Sundararajan’s

wife was warned that he would be killed if he did not

report back to an LTTE political office.

With his wife and parents urging him to flee Sri Lanka

for his own safety, Sundararajan re-located by himself to

Colombo, on the west coast of the country. There he

stayed in a private lodge for nearly a month, until he

was arrested in a round-up by Sri Lankan police. Despite

his protestations to the contrary, he was accused by

the authorities of being an LTTE member and was

beaten into unconsciousness. After seven or eight days in

police custody, he was finally released when his wife

arrived with documents showing that he was married
No. 07-2512 5

with three children and convinced the police that he

was not an LTTE member.

Seeing the arrests and abuse that other young Tamils like

himself were experiencing in Colombo, Sundararajan

decided that he could not remain there. A friend arranged

temporary employment for him in Singapore, and he

left Sri Lanka on September 28, 2006. But on arrival in

Singapore, he discovered that he could remain for no

longer than two weeks. Sundararajan met with an “agent,”

who in exchange for $3,000 provided him with a

forged passport and made arrangements for him to

travel to Canada via the United States. He was told that

if he was stopped by Immigration officials in the U.S.,

he could always ask for asylum.

Sundararajan flew to the United States via Seoul, South

Korea on a forged Singaporean passport. He arrived in

this country on October 11, 2006. In response to questioning by customs officials, Sundararajan said that he was a

tourist on his way to Canada. But when officials determined that his passport was fraudulent, Sundararajan

admitted that he was fleeing Sri Lanka and had purchased

the false passport for $3,000. He was refused admission

into the United States and was taken into custody. He

subsequently obtained counsel and filed a Form I-589

application for relief in the form of asylum, see 8 U.S.C.

§ 1158, restriction on removal, 8 U.S.C. § 1231(b)(3)(A), and

withholding of removal pursuant to the United Nations

Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984)

(“CAT”). His application was referred to an Immigration
6 No. 07-2512

Judge (“IJ”), who conducted an evidentiary hearing in

January 2007. Sundararajan was the sole witness at that

hearing.

In addition to his testimony before the IJ, Sundararajan

offered several documents to show that he and his family

had been the targets of abuse in Sri Lanka. These materials

were sent to the United States by Sundararajan’s wife,

who was contacted by Sundararajan’s cousin at the behest

of his counsel. Not included among the documents

was any statement from Sundararajan’s wife, although

she had been a witness to some of the events described

in his asylum application and testimony, including his

forced enrollment in LTTE training and his detention in

Colombo. When questioned on this point by the IJ,

Sundararajan would testify that he was not in regular

contact with his wife, and although he knew her whereabouts in Sri Lanka, it would take at least fifteen days

for a letter to reach her.

The documents forwarded by Sundararajan’s wife

included the following. A translated extract from the

“information book” of a police station in Sri Lanka describes a complaint that his wife filed with the police

following his departure from Sri Lanka. Sundararajan’s

wife alleged that people had come to her residence

looking for her husband in previous weeks. In one instance, some men came to the residence at ten o’clock in

the evening, woke everyone up, demanded to know her

husband’s whereabouts, threatened her, and then left.

She had also received telephone calls threatening the

lives of herself and her family members. Her husband, she
No. 07-2512 7

said, had left the country due to the same type of harassment she and her children were experiencing. “[W]e live

with fear and insecurity,” she stated. A.R. 235. Also

submitted was a receipt indicating that a “Complaint of

Threat” had been filed with the Human Rights Commission of Sri Lanka at its regional office in Batticaloa. A.R.

244. We are told that the complaint was filed on

Sundararajan’s behalf; however, the receipt does not

reveal the content of the complaint. Finally, there is a

translated letter dated November 30, 2006, from the

Reverend Father Jeremiah S. Arasarathinam, the director

of a home for senior citizens in Batticaloa. He indicates

that Sundararajan’s wife and three children had “undergone tremendous difficulties during the past few years

under the hands of an unknown armed group.” A.R. 245.

Their house had been damaged, they had moved their

residence due to threats, and they had spent the last

three months at the senior citizens’ residence “as refugees.”

A.R. 245. “Due to death threats given by some unknown

group to Mr. Sunthararajah [sic], he fled the country due

to fear about 4 months ago and I [have] come to understand that he is presently in America.” A.R. 245.

Also in the record is the December 2006 report of the

United Nations Office of the High Commissioner for

Refugees (“UNHCR”) regarding asylum-seekers from

Sri Lanka. A.R. 249. The report notes a general deterioration in the security situation in Sri Lanka during the

preceding year due to an uprising within the LTTE and an

escalation in violence between the LTTE and the Sri

Lankan armed forces, with predictable consequences

for the civilians who are increasingly being drawn into
8 No. 07-2512

the conflict. The report also describes in some detail the

Catch-22 in which ethnic Tamils find themselves.

In addition to the situation of widespread insecurity

and the impact of the armed conflict in the North and

East, Tamils in and from these regions are at risk of

targeted violations of their human rights from all

parties to the armed conflict. Harassment, intimidation,

arrest, detention, torture, abduction and killing at

the hands of government forces, the LTTE and paramilitary or armed groups are frequently reported to

be inflicted on Tamils from the North and East.

A.R. 253. Those suspected of LTTE affiliation are at risk of

abuse by either the authorities or government-sponsored

paramilitary groups. A.R. 253-54. On the other hand, they

may be targeted for abuse by the LTTE if they do not lend

their support to the insurgents: The LTTE has been implicated in some 200 targeted killings, mostly of Tamils

suspected of opposing the LTTE. A.R. 254. The report

also notes the difficulties faced by Tamils in and from

Colombo. In addition to being at heightened risk for

security checks and the like by the authorities, “Tamils in

Colombo are especially vulnerable to abductions, disappearances, and killings.” A.R. 257. The report characterizes

the overall situation in Sri Lanka “as one of generalized

violence and events seriously disturbing public order.”

A.R. 260. For those citizens who have been singled out for

abuse by the LTTE, the report paints a grim picture.

“[T]here is no realistic flight alternative given the reach

of the LTTE and the inability of the authorities to provide assured protection.” A.R. 261. The point is made
No. 07-2512 9

more emphatically with respect to Tamils who, like

Sundararajan, hail from the North and East of Sri Lanka:

In relation to Tamils from the North or East fleeing

generalized violence, there is no internal flight alternative within the North or East given the situation of

armed conflict. Nor would it be possible and/or safe

to travel to other areas in light of the closure of the

A9 highway to civilians, lack of other travel routes,

and the risks entailed in traveling out of the North

and East. Tamils who are able to reach Colombo could

be vulnerable to arbitrary arrests, detention and

other forms of human rights abuses Tamils have

faced there. It may be noted that Tamils originating

from the North and East, in particular from LTTEcontrolled areas, are perceived by the authorities as

potential LTTE members or supporters, and are

more likely to be subject to arrests, detention, abduction and even killings. . . .

A.R. 261 (footnote omitted). The report thus recommends

that “[n]o Tamil from the North or East should be returned forcibly until there is significant improvement in

the security situation in Sri Lanka.” A.R. 261. It makes

the same recommendation for Tamils from Colombo.

A.R. 262.

The U.S. State Department’s 2005 Country Report on

Human Rights Practices in Sri Lanka, A.R. 292, makes

some of the same observations as the UNHCR report,

without reaching the conclusion that Tamils should not

be returned involuntarily to the country. It acknowledges

that the LTTE has engaged in “targeted killings, kidnap-
10 No. 07-2512

ping, hijackings of truck shipments, and forcible recruitment, including of children.” A.R. 297. The report also

acknowledges the abuses that occur on the part of the

authorities, including arbitrary arrests and detentions

(most often of Tamils) and the “endemic ” use of torture

to extract confessions. A.R. 294. “Impunity, particularly

for cases of police torture, was a severe problem,” in 2005.

A.R. 295. Although in far less detail and degree, the

Country Report does acknowledge the particular hardships faced by ethnic Tamils. It indicates of the 339,000

internally displaced persons in Sri Lanka, some 50,000 of

them (primarily Tamils) are unable to resettle due to

ongoing conflict between the LTTE and the government

and the high-security zones associated with that conflict.

A.R. 300.

Various and sundry newspaper articles, communiqués

from human rights organizations, and internet postings

submitted by Sundararajan make similar points.

The adverse conditions these documents describe for

the citizens of Sri Lanka, and for Tamils in particular, are

consistent with the experiences that Sundararajan recounted in his asylum application and in his testimony

before the IJ.

But, after hearing Sundararajan’s testimony and considering the other evidence he submitted, Immigration

Judge Gabriel Videla denied his application for asylum

and other relief in a cogent decision. A.R. 56. “[T]he most

troubling point in this case is the respondent’s credibility

and I have tried very hard to overlook the credibility

problems present in this case and unfortunately I
No. 07-2512 11

cannot do so.” A.R. 74. The IJ noted inconsistencies in

Sundararajan’s testimony as to the timing of two key

events, both of which had occurred within one year of

the January 2007 hearing. First, Sundararajan had

wavered as to whether he was picked up and taken to the

LTTE camp for training in March or April 2006. A.R. 76.

And second, Sundararajan testified that he was arrested

by the police in Colombo on August 28, 2006, but that

date was off by several months from the date of May 20,

2006, that the IJ derived from the chronology of events

(from Sundararajan’s internment and escape from the

LTTE camp, to his brief reunification with his family,

and then his relocation to Colombo) that Sundararajan

had set forth at the hearing. A.R. 76-77. The inconsistency

as to the date of his arrest struck the IJ as particularly

significant. “Now I can understand a discrepancy of a

day or two, or even a month, but this is a serious discrepancy because it is over three months and, when the

respondent was confronted with this, he really never

came up with a responsive answer and, to me, this individual testifying before the Court does not appear to be

testifying from actual experience.” A.R. 77. Judge Videla

also found Sundararajan’s testimony that he had escaped

from the LTTE camp by telling the guards that he

was going out to buy cigarettes implausible.

If these individuals were so intent in coming after the

respondent that they made not one contact or two

contacts, but three contacts, and they forcefully took

him away with armed individuals and they put him

in a camp surrounded by a fence and patrolled by

their people who had weapons, I very respectfully
12 No. 07-2512

find it difficult to believe that the respondent would

just be allowed to go buy cigarettes through the front

gate at 4:00 a.m. in the morning and simply never

go back. It does not make sense.

A.R. 78. Finally, the IJ noted the inconsistency between Sundararajan’s testimony that he left Sri Lanka on

September 28, 2006, and the asylum application which his

attorney had prepared and that he had reviewed and

signed, which repeatedly indicated that he departed Sri

Lanka on July 19, 2006. A.R. 79. He rejected the possibility

that the date on the application was a mistake, as

Sundararajan’s attorney suggested. A.R. 79-80. Based on

these inconsistencies, the IJ concluded that Sundararajan

was not a credible witness. A.R. 74.

Given Sundararajan’s lack of credibility as a witness, the

IJ found it reasonable to expect that he would present

additional evidence to corroborate his account, including

for example a letter from his wife, who according to his

testimony was a witness to some of the events he had

described. A.R. 80-81. But he had not done so, although

such evidence was reasonably available to him.

Sundararajan had, for example, mentioned a letter he

had received from someone in New York describing the

difficulties his wife was experiencing in Sri Lanka. Yet

Sundararajan had inexplicably thrown the letter away

despite the fact that his asylum application was

pending and he understood the need for documents

supporting his claims. A.R. 80-81.

Notwithstanding the lack of credible evidence that

Sundararajan had experienced past persecution in Sri
No. 07-2512 13

Lanka, the IJ went on to consider the possibility that he

might be persecuted upon his return to that country

given his Tamil ethnicity. The IJ acknowledged that the

situation for Tamils in Sri Lanka is “quite dire,”

but without additional evidence suggesting that

Sundararajan in particular would be singled out, the

judge was unwilling to assume based on Sundararajan’s

ethnicity alone that he was likely to be persecuted. A.R. 82.

Although the background evidence of human rights

violations and torture in Sri Lanka was “quite significant,”

the Judge did not find it sufficient to establish a pattern

and practice of persecuting Tamils in Sri Lanka that

would relieve Sundararajan of presenting proof that he

in particular would face such abuses upon return to his

homeland. A.R. 82-83.

Judge Videla concluded for these reasons that

Sundararajan had not proven that he had a well-founded

fear of persecution in Sri Lanka such that he was eligible

for asylum. A.R. 83. Because his claim for restriction on

removal was subject to a higher burden of proof, it followed that he had not established his eligibility for that

relief either. A.R. 83. And because the judge had found

Sundararajan’s testimony lacking in credibility, his request

for relief under the CAT also failed. A.R. 83-84. Specifically,

Sundararajan had not shown that he was likely to be

arrested upon his return to Sri Lanka and that, if he were

arrested, he would be physically mistreated. A.R. 84.

The BIA sustained the IJ’s adverse credibility determination. A.R. 2. The Board agreed with Sundararajan that

his inconsistent testimony as to whether the LTTE took
14 No. 07-2512

him to the training camp in March or April of 2006 was a

minor inconsistency, most likely a slip of the tongue

which, prior to enactment of the REAL ID Act of 2005, P.L.

109-13, 119 Stat. 231, 302, would not have justified an

adverse credibility finding. A.R. 4. “Even under the new

legislation, we cannot find that the applicant’s ‘slip’ is

sufficient to doubt his entire claim, although it could, in

viewing the totality of the circumstances, provide additional evidence for an adverse credibility finding.” A.R. 4.

But the Board believed that the IJ was fully justified in

citing the discrepancy in Sundararajan’s testimony as to

the date of his arrest in Colombo as a reason to doubt his

credibility. The Board rejected Sundararajan’s contention

that the IJ, in reasoning that he should be able to accurately

recall the date of so traumatic episode as his arrest and

subsequent detention, was simply speculating as to the

traumatic nature of that event. “The very fact that the

applicant relies on this incident to support his claim of

fear from governmental forces in Sri Lanka is sufficient

to conclude that it was a traumatic event for him, leading

in part to his departure.” A.R. 4. The Board similarly

rejected Sundararajan’s contention that the IJ was speculating when he found the account of his escape from the

LTTE camp implausible. “It is not merely speculative to

say that the applicant’s claim of being forcefully

removed from his home and forced to remain in a camp

run by the LTTE is at odds with his statement that he

‘escaped’ when allowed to go to the store to buy cigarettes.” A.R. 4-5. Finally, the Board concluded that

Sundararajan had not adequately explained the discrepancy between his testimony and his asylum application
No. 07-2512 15

as to when it was that he left Sri Lanka. A.R. 5. “All of

these inconsistencies taken together are sufficient to

support the Immigration Judge’s adverse credibility

finding.” A.R. 5.

The Board went on to sustain the IJ’s demand for evidence to corroborate Sundararajan’s account as well as his

conclusion that Sundararajan had failed to present adequate corroboration. In the Board’s view, the IJ had considered what evidence Sundararajan had tendered, but

found it inadequate to substantiate his story. In particular,

the Board noted that the background evidence of

the civil strife and human rights abuses to which

Sundararajan pointed, although it was “important generalized evidence” of the types of abuses occurring in Sri

Lanka, was not “sufficient to rehabilitate his suspect

credibility about [his own] past personal experiences.” A.R.

5. The Board thus sustained the IJ’s conclusion that

Sundararajan failed to prove he was the victim of past

persecution.

The Board also rejected Sundararajan’s contention

that, regardless of his own experience in Sri Lanka, he

was entitled to relief in view of a pattern or practice of

persecution of Tamils in Sri Lanka. The Board acknowledged the ongoing civil strife between the LTTE and Sri

Lankan armed forces and recognized that “human rights

violations do occur on a large scale in Sri Lanka,” but it

found the evidence of those abuses insufficient to establish a “pattern or practice” of persecution on the basis of

race, ethnicity, or another protected ground. A.R. 6. It

also found the evidence insufficient to establish a likeli-
16 No. 07-2512

hood that Sundararajan would be tortured if returned to

Sri Lanka. A.R. 6.

Finally, the BIA rejected Sundararajan’s contention

that a remand was necessary because the IJ had neglected

to adjudicate the additional claim that he would face

harm in Sri Lanka as a failed asylum-seeker. A.R. 5 n.1.

The Board found no error in the IJ’s omission to address

this claim specifically, even assuming that failed asylum

seekers are a social group who could be said to share

an immutable characteristic, such that they could claim

a right to asylum. The Board saw this claim as dependent

on Sundararajan’s credibility, and “[w]e affirm the Immigration Judge’s adverse credibility determination.”

A.R. 5 n.1.

II.

We review the IJ’s decision as supplemented by the

Board’s own analysis. E.g., Bakarian v. Mukasey, 541 F.3d

775, 781 (7th Cir. 2008). We examine the IJ’s factual determinations deferentially and will uphold them so long as

they have the support of substantial evidence. E.g.,

Ingmantoro v. Mukasey, 550 F.3d 646, 649 (7th Cir. 2008). At

the core of both the IJ’s decision and the Board’s order

upholding it was the determination that Sundararajan

had failed to show that he has a well-founded fear that

he will be persecuted if returned to Sri Lanka. We will

disturb that determination only if the evidence of likely

persecution was “ ‘so compelling that no reasonable

factfinder could fail to find the requisite degree of persecution.’ ” Chatta v. Mukasey, 523 F.3d 748, 752 (7th Cir.
No. 07-2512 17

Sundararajan also faults the Board for characterizing his 2

arrest in Colombo as a traumatic event whose date he should

be able to recall correctly, when it was his forced enrollment in

the LTTE training camp that the IJ cited as a traumatic event.

It is true that the IJ questioned Sundararajan about the

traumatic nature of being taken involuntarily for training, A.R.

192, and cited that event as a traumatic one in his decision, A.R.

76. But the IJ elsewhere referred to both events as traumatic,

A.R. 75, and as the Board itself pointed out, the fact that

Sundararajan cited his arrest as a basis for his fear of persecution speaks to the traumatic nature of that event. A.R. 4.

2008) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 484, 112

S. Ct. 812, 817 (1992)).

A. Adverse credibility determination

As was true before the BIA, Sundararajan’s first challenge is to the IJ’s determination that his testimony was

not credible. He contends, contrary to the Board’s decision, that the adverse credibility determination was

unfounded, and in support of that contention he cites

three aspects of the reasoning employed by the IJ and/or

the Board that he believes were flawed. First, the Board

represented that he contradicted himself as to the date

of his arrest in Colombo: “he originally alleged that he

was arrested in May of 2006, but later testified the arrest

occurred on August 25, 2006.” A.R. 4. In fact, Sundararajan

points out, he never cited May as the month of his

arrest, only August. He adds that the UNHCR report

supports his testimony that his arrest would have taken

place in August. S econd, he contends that the IJ, in

2

discounting as implausible his account of escaping from
18 No. 07-2512

Sundararajan adds that in the statement attached to his 3

asylum application, he stated that he was in Singapore for

fourteen days, which tallies with his testimony that he left Sri

Lanka on September 28, 2006 and arrived in the United States

on October 11. That is true as far as it goes. But it does not

resolve the patent inconsistency between his asylum application and his testimony as to the date of his departure from

Sri Lanka.

the LTTE camp, mischaracterized his testimony and

assumed facts that were not borne out by the record. In

particular, the IJ assumed that he had been taken

forcibly to the camp and that the camp was secure, such

that he would not have been permitted to simply walk out

of the camp in order to buy cigarettes. In reality,

Sundararajan represents, he never testified that he was

taken to the camp by force, and although the camp was

both fenced and patrolled, he testified that people were

free to come and go from the camp. Third, although

he acknowledges the discrepancy between his testimony

and his asylum application as to the date of his departure

from Sri Lanka, he insists that the discrepancy was adequately explained. He testified that he was in custody

when his attorney prepared the application and consequently was only able to consult with his counsel over

the telephone, thus suggesting that the mistake was

simply the result of miscommunication or oversight

rather than prevarication.3

The INA, as amended by the REAL ID Act of 2005, sets

forth the parameters for the Immigration Judge’s credibility determinations:
No. 07-2512 19

Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written

and oral statements (whenever made and whether or

not under oath, and considering the circumstances

under which the statements were made), the internal

consistency of each such statement, the consistency of

such statements with other evidence of record (including the reports of the Department of State on country

conditions), and any inaccuracies or falsehoods in

such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim, or any other relevant factor. . . .

8 U.S.C. § 1158(b)(1)(B)(iii). As the terms of the statute

make clear, the IJ is no longer required to link inconsistencies, inaccuracies, and falsehoods in a witness’s testimony to the heart of the immigrant’s claim before

relying on those defects as a reason to discredit a witness’s testimony. Mitondo v. Mukasey, 523 F.3d 784, 787-88

(7th Cir. 2008). The IJ does remain obliged to distinguish

between inconsistencies and the like that are material

and those that are not. Kadia v. Gonzales, 501 F.3d 817, 822

(7th Cir. 2007). Obviously, the IJ, having heard the testimony first hand, is far better situated to assess the credibility of a witness than we are. Garcia v. INS, 31 F.3d 441,

444 (7th Cir. 1994) (quoting Estrada v. INS, 775 F.2d

1018, 1021 (9th Cir. 1985)). Only in extraordinary circumstances will we upset his credibility assessment. E.g.,

Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir. 2008).
20 No. 07-2512

Having reviewed the decisions of the IJ and the Board

along with the evidentiary record, we discern no basis on

which to disturb the IJ’s decision not to credit

Sundararajan’s testimony. To begin, there was an inconsistency in his testimony as to whether his arrest in Colombo occurred in May or August 2006. It is true that

Sundararajan never mentioned May 2006 as the date of

his arrest, as the Board suggested. A.R. 4. It was, instead,

the IJ who derived that date from the sequence of events

to which Sundararajan had testified. But the IJ’s inference in that regard was nonetheless grounded in

Sundararajan’s testimony, and the IJ explicitly set forth

the bases for inferring that Sundararajan had been

arrested in May. A.R. 76-77. Sundararajan has not shown

that the IJ’s calculation of the May date was off-base,

and we find that it is consistent with the chronology to

which Sundararajan testified. So when Sundararajan

testified that he was arrested in August, rather than

May, he implicitly contradicted the chronology he had

already set forth in his testimony. The UNHCR report is

of no help to Sundararajan in explaining the discrepancy:

The report simply confirms that Tamils were at heightened

risk of security checks, arbitrary searches, harassment, and

the like as the result of new governmental regulations

imposed in April and December 2006. A.R. 257. The

report supports the notion that Sundararajan could have

been arrested within the April to December time period,

but it does not point to either May or August as the likely

date. We also note that Sundararajan confessed to confusion and an inability to recall the date of his arrest and

the chronology of events leading up to it with specificity
No. 07-2512 21

when pressed on this point by the IJ. A.R. 199 (“Because

of the tension I couldn’t remember it properly. . . . Actually, I can’t calculate the months because I was—I wasn’t

thinking clearly. I can’t remember the months.”). However, his confusion, although understandable, does not

ameliorate the doubts raised by the inconsistencies in his

testimony, let alone compel the IJ and the Board to

credit his testimony.

We also conclude that the IJ was on solid ground in

doubting Sundararajan’s account of escaping from the

LTTE camp. It is true that Sundararajan, both on crossexamination by the government and during supplemental questioning by the IJ, soft-pedaled the confining

nature of the camp. A.R. 181, 193. But when specifically

asked by the IJ as to whether he was taken to the camp

against his will, he testified expressly that “they forcibly

took me.” A.R. 191. He also testified that the people who

took him had weapons. A.R. 192. Moreover, the camp

was, by Sundararajan’s own account, both fenced and

patrolled by guards. A.R. 180-81, 396. Under those circumstances, the IJ not unreasonably concluded that

Sundararajan and other “guests” of the LTTE would not

have been free to come and go as they wished, and that

Sundararajan would not have been permitted to leave

the camp at 4:00 a.m., never to return. Sundararajan

himself described his departure using various forms of

the word “escape,” which suggests that the LTTE had

him in its custody. A.R. 165, 182, 195, 396.

As for the discrepancy between Sundararajan’s asylum

application and his testimony regarding the date of his
22 No. 07-2512

departure from Sri Lanka, the IJ was by no means compelled to accept the explanation that the date on the

application was a mistake owing to Sundararajan’s inability to consult with his attorney in person during the

preparation of the application. Sundararajan’s counsel

speaks the Tamil language and on the application form

itself verified that it had been read to his client in his

native language, A.R. 391, and Sundararajan acknowledged that he had reviewed the application before signing

it, A.R. 149-51. As the IJ pointed out, the date of his departure is discussed more than once in the application, and it

consistently states or implies that Sundararajan left Sri

Lanka in July rather than September as he later testified,

making it less likely that Sundararajan would have overlooked any error. A.R. 383, 389; see also A.R. 386 (listing

his last dates of residence and employment in Sri Lanka

as July 2006).

Both the IJ and the Board accurately recited the governing criteria for credibility determinations, A.R. 4, 58-61,

and the IJ’s decision not to credit Sundararajan, as

affirmed by the Board, is reasonable and consistent with

the record evidence. Perhaps a different factfinder might

have credited Sundararajan, but we cannot say that it

was unreasonable for Judge Videla not to do so. See

Balogun v. Ashcroft, 374 F.3d 492, 507-08 (7th Cir. 2004).

B. Corroboration

After concluding that Sundararajan’s account of his

experiences in Sri Lanka was not credible, the IJ determined that it was reasonable to expect him to provide
No. 07-2512 23

corroboration of the events to which he testified,

including some sort of statement from his wife. A.R. 80-81.

Sundararajan had failed to supply such corroboration,

in the IJ’s view, and that failure contributed to the IJ’s

conclusion that Sundararajan had presented insufficient

evidence to support the notion that he would be persecuted if returned to Sri Lanka. Sundararajan faults this

portion of the IJ’s analysis for overlooking what corroborative evidence he did present to the court. He notes

that the UNHCR report and other background evidence

he presented do substantiate the types of abusive practices by both the LTTE and Sri Lankan authorities that he

described in his testimony. And as for substantiation of

his own allegations, he reminds us that he submitted

proof that a complaint was made on his behalf to the

Human Rights Commission of Sri Lanka, a letter from

Reverend Jeremiah Arasarathinam, and an extract from

a police station book. The IJ’s decision was silent as to

these three documents. Finally, he contends that he

adequately explained why he could not produce a letter

or other evidence from his wife: He testified that she

had been staying with Reverend Arasaratnam in the past,

but that, at the time of the hearing, she was moving from

place to place in order to avoid the Sri Lankan armed

forces and he did not know how to reach her.

Given the modifications to the Immigration and Nationality Act effected by the REAL ID Act, an immigration

judge now enjoys substantial leeway to demand corroboration of an asylum applicant’s allegations whether or

not the judge finds the applicant credible. Rapheal v.

Mukasey, 533 F.3d 521, 527 (7th Cir. 2008). Only if such
24 No. 07-2512

evidence is beyond the reasonable ability of the immigrant to obtain is the judge precluded from demanding

corroboration. 8 U.S.C. § 1252(b)(4); Eke v. Mukasey,

512 F.3d 372, 381 (7th Cir. 2008).

We find no error in the Immigration Judge’s expectation that Sundararajan produce additional evidence to

corroborate his account of past persecution. We note

that the Judge’s adverse credibility determination was

made independent of the lack of corroboration; only

after he had deemed Sundararajan incredible—and, as we

have discussed, that finding was not erroneous—did the

judge look for corroboration of his account. A.R. 80. It

was not unreasonable for the judge to look for corroboration from Sundararajan’s wife in particular, given

that she was a witness to some of the harassment and

coercion he allegedly experienced from the LTTE and it

was she who allegedly got him out of jail in Colombo.

Although it is true that Sundararajan seemed to suggest

at one point in his testimony that he did not know how to

reach her in Sri Lanka, his testimony on this score was

inconsistent, for at other times the clear implication of

his testimony was that he knew “where about she [was],”

and could reach her, although only by mail. A.R. 176.

Plus, she had supplied other evidence to support

Sundararajan’s case, so it was not unreasonable to

surmise that she could have submitted her own statement at that time, even if she later fell out of contact with

her husband. As for the Immigration Judge’s failure to

specifically address all of the background and other

evidence that Sundararajan did submit, any omission

in that respect was harmless, as the evidence did not
No. 07-2512 25

materially corroborate the events to which he testified.

The UNHCR report, for example, speaks to the types of

human rights abuses that occur in Sri Lanka but

says nothing about what did or did not happen to

Sundararajan. See Rashiah v. Ashcroft, 388 F.3d 1126, 1133

(7th Cir. 2004). The evidence as to the complaint filed with

the Sri Lankan Human Rights Commission says nothing

beyond that a complaint was filed. A.R. 244. The police

report that Sundararajan’s wife filed makes only a

passing allegation that he left Sri Lanka due to harassment

similar to what she and her children were experiencing

and does not meaningfully corroborate the events to

which he testified before the IJ. A.R. 235. And the Reverend’s letter suggests that he has no personal knowledge

of what Sundararajan had experienced; moreover, like

Sundararajan’s asylum application, it suggests that

Sundararajan left Sri Lanka in July rather than

September 2006. A.R. 245.

C. Remand for hearing on persecution as failed asylumseeker

Sundararajan next argues that the Board erred in declining to remand the case to the IJ with directions to consider the possibility that Sundararajan may face persecution as a failed asylum seeker. In the statement that

Sundararajan attached to his I-589 application for

asylum and other relief, he stated that the Sri Lankan

authorities typically arrest at the airport anyone

returned to the country involuntarily, and that Tamil

refugees have often disappeared while in detention at the
26 No. 07-2512

airport. A.R. 398. He made a similar assertion in his

testimony. A.R. 177. At the conclusion of the evidentiary

hearing before the Immigration Judge, Sundararajan’s

attorney argued in closing that he had an independent

claim for relief as a failed asylum-seeker. A.R. 221-23. But

the IJ never explicitly addressed this possibility in his

decision. For its part, the Board in a footnote indicated

that it was unnecessary for the IJ to do so given the

judge’s adverse evaluation of Sundararajan’s credibility.

A.R. 5 n.1. Sundararajan faults that reasoning as untenable,

given that the IJ’s credibility determination related to

his past experiences in Sri Lanka, which have nothing to

do with the possibility that he might be persecuted for

having unsuccessfully sought asylum in the United States.

Given the lack of record evidence supporting this

claim, however, Sundararajan was not entitled to a

hearing. The only evidence in the record supporting

the notion that Sundararajan might face persecution as

a failed asylum seeker is his own statement in support

of his asylum application and his testimony at the hearing. This evidence is itself minimal, and Sundararajan

never articulated the basis for his knowledge that failed

asylum seekers face arrest and abuse upon their return

to Sri Lanka. Given that the IJ did not credit him as a

witness, there was effectively no evidence to support this

claim. And although Sundararajan points out that the

Second Circuit ordered a hearing on a similar claim in

Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.

2004), notwithstanding the IJ’s adverse credibility determination, in that case the alien had proffered evidence
No. 07-2512 27

sufficient to support the claim, see id. at 184. Sundararajan

failed to offer sufficient evidence here.

D. Pattern or practice claim

As Sundararajan points out and as both the IJ and the

Board recognized, he may prevail on his asylum claim

even without credible evidence that he is likely to be

singled out for persecution if he can establish a pattern

or practice of persecution in Sri Lanka based on a protected trait (e.g., ethnicity) that he shares. See 8 C.F.R.

§ 208.13(b)(2)(iii). But the level of persecution must be

extreme in order to demonstrate such a pattern or practice. Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir. 2005).

“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.” Id. (internal quotation marks and

citations omitted). The standard for showing a pattern or

practice is high because it relieves the individual alien of

presenting evidence that he in particular would likely

experience persecution if returned to his country and in

theory would entitle everyone else from his country who

belongs to the protected group to asylum in the United

States. Id.

The background evidence that Sundararajan has submitted, including in particular the December 2006

UNHCR report documenting the mistreatment of Tamils

in Sri Lanka (and which recommends that no Tamil from

the northern or eastern regions of the country be forced
28 No. 07-2512

to return) gives us pause, as it did the IJ. A.R. 82. The

lengthy armed conflict between the LTTE and the Sri

Lankan armed forces has resulted in human rights

abuses by both sides, and there is little reason to doubt

that innocent Tamils have been arrested, imprisoned, and

even tortured by the authorities. But our cases make

clear that civil strife in a country that causes substantial

hardships for an ethnic minority, some of whose members are engaged in an insurgency against the government, does not automatically render each non-combatant

member of that minority a subject of persecution. See

Selimi v. Ashcroft, 360 F.3d 736, 740-41 (7th Cir. 2004); see

also Ratnasingam v. Holder, 556 F.3d 10, 14 (1st Cir. 2009);

Garcia v. Gonzales, 500 F.3d 615, 618-19 (7th Cir. 2007);

Rashiah v. Ashcroft, supra, 388 F.3d at 1133. Sundararajan

has shown that many Tamils in Sri Lanka have suffered

grave deprivations of their human rights, but the Board’s

conclusion that this does not rise to the level of systemic

persecution of Tamils based on their ethnicity was not

unreasonable. The background evidence indicates that

Tamils face an extremely difficult life in Sri Lanka, but it

does not reflect the extreme degree of mistreatment

necessary to establish a pattern or practice of persecution.

Although we are deeply concerned about the abuses that

have taken place in Sri Lanka, we cannot say that the

evidence Sundararajan has presented is so compelling

as to permit us to disturb the Board’s finding that it

does not show systemic persecution of ethnic Tamils like

himself.
No. 07-2512 29

E. CAT claim

Finally, Sundararajan challenges the summary rejection

of his CAT claim, which neither the Board nor the IJ

addressed at any length. The IJ noted that because he had

not found Sundararajan to be a credible witness, “I cannot

find that the respondent has established that it is more

likely than not that, if he is returned to Sri Lanka, first,

that he would be arrested by anyone and, secondly,

that the respondent, in fact, after being arrested, will be

physically mistreated which would constitute torture

under the Convention.” A.R. 84. The Board affirmed the

IJ’s reasoning on that point. A.R. 6. Sundararajan

contends that because his CAT claim is premised on

different factors than his asylum claim, it was error to

dismiss this claim out of hand without more extensive

analysis. Even if his testimony about his experiences in

Sri Lanka is discounted, Sundararajan maintains, he still

has a viable claim under the CAT based on his Tamil

ethnicity and his status as a failed asylum seeker.

In order to establish his eligibility for relief under the

CAT, Sundararajan must show that it is more likely than

not that he will be tortured in Sri Lanka, e.g., Khan v. Filip,

554 F.3d 681, 690 (7th Cir. 2009), and substantial evidence

supports the Board’s determination that he did not

make such a showing. The statement Sundararajan attached to his asylum application and his testimony

before the IJ supplied the sole evidentiary support for

his CAT claim, and given the IJ’s adverse credibility

determination, Sundararajan did not present credible

evidence either that he had experienced past persecution
30 No. 07-2512

in Sri Lanka or that, as a failed asylum seeker, he was

likely to face torture upon his return to that country. And

as we have already discussed with regard to the pattern

or practice claim, although Tamils have undoubtedly

faced severe hardships in Sri Lanka, the evidence does

not support the conclusion based on Sundararajan’s

ethnicity alone that he is more likely than not to

experience torture in Sri Lanka.

III.

The decision whether to follow the UNHRC’s recommendation not to return Tamils to Sri Lanka until conditions there improve belongs to the Executive Branch. Our

authority is limited to reviewing the decisions of the

Immigration Judge and the BIA based on the evidence

presented in this particular case. Substantial evidence

supports the Board’s conclusion that Sundararajan does

not have a well-founded fear of persecution in Sri Lanka

and that he has not shown it to be more likely than not

he will be persecuted and/or tortured upon his return to

that country. We therefore DENY Sundararajan’s petition

for review of the BIA’s order refusing him his requests

for asylum, restriction on removal, and relief under

the CAT.

4-23-09