1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-1-1998

Balasubramanrim v. INS

Precedential or Non-Precedential:

Docket 97-3424

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Recommended Citation

"Balasubramanrim v. INS" (1998). 1998 Decisions. Paper 98.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/98
Filed May 1, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-3424 

ARAVINTHAN BALASUBRAMANRIM, 

 Petitioner 

v. 

IMMIGRATION AND NATURALIZATION SERVICE, 

 Respondent 

On Petition for Review of an Order of the 

Board of Immigration Appeals 

(Board No. A73 489 747) 

Argued March 10, 1998 

Before: GREENBERG, SCIRICA and ALDISERT, 

Circuit Judges 

(Filed: May 1, 1998) 

 VISUVANATHAN RUDRAKUMARAN, 

 ESQUIRE (ARGUED) 

 875 Avenue of the Americas, 

 Suite 500 

 New York, New York 10001 

 Attorney for Petitioner 
 PAULINE TERRELONGE, ESQUIRE 

 (ARGUED) 

 DAVID V. BERNAL, ESQUIRE 

 SUSIE CHO, ESQUIRE 

 CHRISTOPHER C. FULLER, 

 ESQUIRE 

 MICHAEL P. LINDEMANN, ESQUIRE 

 MADELINE HENLEY, ESQUIRE 

 United States Department of Justice 

 Office of Immigration Litigation 

 Civil Division 

 P.O. Box 878, Ben Franklin Station 

 Washington, D.C. 20044 

 Attorneys of Respondent 

OPINION OF THE COURT 

SCIRICA, Circuit Judge. 

Aravinthan Balasubramanrim petitions for review of an 

order of the Board of Immigration Appeals denying his 

application for asylum and withholding of deportation. 

The Board, with one member dissenting, found 

Balasubramanrim's testimony before the immigration judge 

was not credible because it was inconsistent with 

information he gave to Immigration and Naturalization 

Service officials at the airport upon entry into the United 

States. Because this credibility finding was not supported 

by substantial evidence, we will grant the petition. 

I. 

Balasubramanrim, a Sri Lankan citizen of Tamil 

ethnicity, was born on February 19, 1969, in a province in 

the northern part of Sri Lanka. In support of his asylum 

and withholding of deportation application, he submitted 

substantial documentary evidence concerning recent 

political and social developments in Sri Lanka. This 

documentary evidence supports his claim that some Tamils 

in Sri Lanka are subject to mistreatment at the hands of 

both government and anti-government forces. 

 2 
Since 1987, civil unrest has disrupted life in Sri Lanka. 

The conflict stems primarily from tensions between the 

minority Tamils and the majority Sinhalese.1 In an effort to 

establish an independent Tamil state in the north, the 

Liberation Tigers of Tamil Eelam have been in armed

conflict with the government and Indian peacekeeping 

forces since 1987.2 Although the Liberation Tigers have 

succeeded in controlling much of the Northern Province 

and parts of the Eastern Province, not all Tamils support 

them. In fact, the Eelam People's Democratic Party, the 

People's Liberation Organization of Tamil Eelam and the 

Tamil Eelam Liberation Organization all cooperate with the 

government security forces. 

Since the conflict erupted, both government forces and 

Liberation Tiger rebels have committed human rights

violations. According to a 1995 report of the State

Department's Bureau of Human Rights and Humanitarian 

Affairs, both sides mistreat prisoners and arrest suspected 

opponents on an arbitrary basis. Young male Tamils like 

Balasubramanrim are most often the target of this abuse. 

According to the State Department, most Sri Lankan 

asylum claimants in the United States are Tamil males 

between the ages of 20 and 36, and they generally allege 

mistreatment at the hands of the Sri Lankan authorities 

and the Liberation Tigers. 

In his application for asylum, Balasubramanrim claims 

he was a victim of these abuses and that if he returns to 

Sri Lanka he will again be persecuted. Balasubramanrim 

claims 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. Specifically, in his application, 

_________________________________________________________________ 

1. About 18% of Sri Lanka's population is Tamil while 74% is Sinhalese. 

The Tamils are predominantly Hindu while the Sinhalese are 

predominantly Buddhist. 

2. In July 1987, the Government of Sri Lanka entered an agreement with 

the Government of India under which India stationed forces in Sri Lanka 

through March, 1990. Although initially the Indian forces were able to 

maintain a low level of violence, fighting broke out between the Indians 

and the Liberation Tigers in 1988 and 1989. 

 3 
Balasubramanrim described the following events: (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 (the administrative record is unclear on who 

arrested him) 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 days 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.3 

Shortly thereafter, Balasubramanrim left Sri Lanka by 

using a false Canadian passport. He went to Singapore, 

then Malaysia, then London, and finally to the United 

States. Balasubramanrim arrived at John F. Kennedy 

Airport on April 6, 1995. Upon arrival, INS officers 

interviewed him in English without a translator. The only 

record we have of this interview is a document consisting of 

25 hand-printed questions and answers. We do not know 

how the interview was conducted or how the document was 

prepared. The transcript reads in part: 

 (3) Q. When and where were you born? 

 A. 2/19/69 Jaffna, Sri Lanka. 

 (7) Q. Why are you coming to the U.S. today? 

 A. today I am going to Toronto 

_________________________________________________________________ 

3. Balasubramanrim's wife and child successfully fled to Canada where 

they were given refugee status. 

 4 
 (13) Q. What was your occupation in Sri Lanka? 

 A. I owned a grocery market. 

 (14) Q. So if you owned a grocery market why are you 

 going to Toronto? 

 A. I go for two months to visit my family and I go 

 back to Sri Lanka. No I stay in Toronto. 

 (15) Q. Why will you stay in Toronto and not go back 

 to Sri Lanka? 

 A. I go to jail if I go back to Sri Lanka - I have 

 problems with LTT - Liberation Tigers of Tamil 

 and Sri Lanka government an police and military 

 because I have business problems and my

 brother plots against the government. 

 (17) Q. What would happen if you returned to Sr i 

 Lanka? 

 A. The will kill me. 

 (18) Q. How did you get to the U.S. from Sri La nka? 

 A. I left Sri Lanka one month ago - first I went to 

 Singapore for 15 days then to Malaysia for 14 

 days - then to London for 1 day - then to here. 

 (22) Q. Have you or anyone in your family ever been 

 arrested? 

 A. my brother, military and police arrested him - 

 for being with a group of people - I have never 

 been arrested. 

 (25) Q. Is anything else you want to add to thi s 

 statement? 

 A. I was arrested also, by LTT [Liberation Tige rs 

 of Tamil Ealan], they kept me for 10 (Ten) days. 

 After I gave them money they let me go -$12,000 

 Sri Lanka Rubies. 

(errors reproduced). Balasubramanrim signed the transcript 

on each page and also signed under a declaration which 

the INS officials had written: "I have had the foregoing 

statement read to me in English and have understood and 

answered all the questions voluntarily, and I swear my 

statement is the truth." Id. at 193. 

Subsequently, Balasubramanrim appeared before the 

 5 
immigration judge. Consistent with his application for 

asylum and withholding of deportation, Balasubramanrim 

testified about numerous instances of mistreatment at the 

hands of the Sri Lankan government and the Liberation 

Tigers. But on August 29, 1995, the immigration judge 

found Balasubramanrim excludable,4 denied his application 

for asylum and withholding of deportation, and ordered him 

deported to Sri Lanka. The immigration judge concluded 

that Balasubramanrim had not told the truth about his 

prior arrests and his fears about returning to Sri Lanka.5 

The immigration judge also expressed doubts about 

Balasubramanrim's credibility because he did not look at 

_________________________________________________________________ 

4. The Immigration Judge found Balasubramanrim excludable because 

he had no valid immigration visa, 8 U.S.C. SS 1182(a)(7)(A)(i)(I) (1994); 

was a nonimmigrant without a valid passport, 8 U.S.C. 

S 1182(a)(7)(B)(i)(I); and had no valid nonimmigrant visa or border 

crossing card, 8 U.S.C. S 1182(a)(7)(B)(i)(II). Balasubramanrim does not 

appeal these findings. 

5. In questioning Balasubramanrim, the immigration judge said: 

 Q: Sir, reading your affidavit, your affidavit question was have 

you 

 or any of your family been arrested. You state my brother was 

 arrested for being with a, can't read the word, but the -- what I'm 

 getting at, the next sentence. I have never been arrested. You told 

 the Immigration officers at the airport that you were never 

arrested? 

 A: I told them that I have a brother who is in (indiscernible) 

 arrested. He was arrested by the Army, police and PLAT. 

 Q: Did you tell -- hello, did you tell the Immigration officers at 

the 

 airport that you were never arrested, yes or no? Yes or no, sir? 

Yes 

 or no? 

 A: No. 

 Q: So they just made this up? 

 A: I told them I was not arrested in (indiscernible). 

 Q: Did you tell the Immigration officers that you can't go back to 

 Sri Lanka because you have business problems, and because of 

 your brother's plots against the government, yes or no? Yes or no 

 sir? 

 A: If I have said anything, that means I did not understand. 
 6 
him while testifying and instead stared straight ahead "as 

though in a trance." Balasubramanrim appealed. 6 

The Board conducted an independent review of 

Balasubramanrim's credibility and upheld the judgment of 

the immigration judge. The Board did not put any stock in 

the immigration judge's reliance on Balasubramanrim's 

failure to make eye contact7 but nevertheless found him not 

credible and on July 10, 1997 dismissed his appeal. The 

Board was particularly troubled by what it saw as 

inconsistencies between Balasubramanrim's testimony at 

the hearing and his airport statement. As noted, one board 

member dissented. 

II. 

The Board had jurisdiction under 8 C.F.R. SS 3.1(b), 

3.1(c) and 236.7 (1997). We have jurisdiction under 8 

U.S.C. S 1105a, as amended by the transitional changes in 

judicial review set forth in S 309(c) of the Illegal Immigration 

Reform and Immigrant Responsibility Act (IIRIRA) of 1996, 

Pub. L. No. 104-208, 110 Stat. 3009. On August 6, 1997, 

Balasubramanrim filed a timely petition for review as 

required by S 309(c). 

Whether an asylum applicant has demonstrated a wellfounded fear of persecution is a factual determination 

reviewed under the substantial evidence standard. Chang v. 

INS, 119 F.3d 1055, 1060 (3d Cir. 1997). We will uphold 

the agency's findings of fact to the extent they are 

"supported by reasonable, substantial, and probative 

evidence on the record considered as a whole." INS v. EliasZacarias, 502 U.S. 478, 481 (1992) (citing 8 U.S.C.

_________________________________________________________________ 

6. While the appeal to the Board was pending, the INS agreed to parole 

Balasubramanrim to Canada, where his family resides, and 

Balasubramanrim withdrew his appeal. Later, according to 

Balasubramanrim, the INS changed its policy and would not parole him 

to Canada. Subsequently, the Board allowed him to reinstate his appeal. 

7. Specifically, the Board stated: "the Immigration Judge's perception of 

the applicant's `body language' at the hearing is not a matter on which 

we place any significant weight, as such behavior is amenable to varying 

explanations." 

 7 
S 1105a(a)(4)). Likewise, adverse credibility determinations 

are reviewed for substantial evidence. Hartooni v. INS, 21 

F.3d 336, 340 (9th Cir. 1994); Cordero-Trejo v. INS, 40 F.3d 

482, 487 (1st Cir. 1994). 

III. 

A. 

Under the asylum statute, 8 U.S.C. S 1158 (1994), if the 

Attorney General determines that an alien is a refugee 

within the meaning of 8 U.S.C. S 1101(a)(42)(A) (1994), the 

Attorney General has the discretion of granting the alien 

asylum. 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).8 Thus, Balasubramanrim has the 

burden to show that he qualifies as a refugee because he 

was persecuted in the past or has a "well-founded fear" of 

future persecution on the ground of, inter alia, political 

opinion, which is the basis of his appeal. 

B. 

Where the immigration judge makes a credibility 

determination, the Board can independently assess that 

_________________________________________________________________ 

8. In addition, Balasubramanrim applied for withholding of deportation. 

Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. S 1253(h) 

(1994), requires withholding of deportation of an alien "if the Attorney 

General determines that such alien's life or freedom would be threatened 

in such country on account of race, religion, nationality, membership in 

a particular social group, or political opinion." Eligibility for 

withholding 

of deportation under section 243(h) of the INA involves a stricter 

standard ("clear probability") than eligibility for asylum. See INS v. 

Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). 

 8 
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, including credibility 

determinations."). In this case, the Board conducted such 

an assessment and found Balasubramanrim not credible. 

As noted, we review the Board's adverse credibility

determination for substantial evidence. Hartooni, 21 F.3d at 

340. "The Board's findings ... must ... be set aside when the 

record before a Court of Appeals clearly precludes the 

Board's decision from being justified by a fair estimate of 

the worth of the testimony of witnesses or its informed 

judgment on matters within its special competence or 

both." Universal Camera Corp. v. NLRB, 340 U.S. 474, 490 

(1951). Though we defer to reasonable inferences drawn by 

the Board from conflicting evidence, "deference is not due 

where findings and conclusions are based on inferences or 

presumptions that are not reasonably grounded in the 

record, viewed as a whole." Cordero-Trejo, 40 F.3d at 487 

(citations omitted). 

The Board should give specific reasons for its 

determination that a witness is not credible. Mosa v. 

Rogers, 89 F.3d 601, 604 (9th Cir. 1996). We must 

"evaluate those reasons to determine whether they are valid 

grounds upon which to base a finding that the applicant is 

not credible." Id. (citations omitted). The reasons must bear 

a legitimate nexus to the finding. Id. (citations omitted). 

In concluding that Balasubramanrim was not credible, 

the Board focused on perceived inconsistencies between 

information Balasubramanrim gave to INS officers at the 

airport and his testimony before the immigration judge. 

Although there are some inconsistencies, we do not believe 

that the airport statement in this case provides a valid 

ground upon which the Board could base its finding that 

Balasubramanrim was not credible. 

The INS officers interrogated Balasubramanrim at the 

airport. As noted, the only record we have of this interview 

is a document consisting of 25 hand-printed questions and 

answers. 

The document includes the following: 

 9 
 (22) Q: Have you or anyone in your family been 

 arrested? 

 A: My brother, military and police arrested him-- 

 for being with a group of people--I have never 

 been arrested. 

 * * * 

 (25) Q: Is there anything else you want to add to this 

 statement? 

 A: I was arrested also, by LTT, they kept me for 

 10 (ten) days. After I gave them money they let 

 me go--$12,000 Sri Lanka Rubies. 

After comparing this statement to the testimony 

Balasubramanrim gave before the immigration judge, the 

Board stated: "The applicant's airport statement is not 

consistent with his story of serious mistreatment by the Sri 

Lankan military over a prolonged period." The Board

questioned why, if Balasubramanrim had actually been 

mistreated on multiple occasions, he did not relate all these 

incidents to the INS officers at the airport. 

Yet an examination of the record reveals that 

Balasubramanrim's airport interview may not represent an 

accurate account of the persecution he suffered in Sri 

Lanka. If this is so, then, under the fact of this case, the 

Board placed undue reliance on the airport interview. 

The following factors are relevant. First, the hand written 

record of the airport interview in this case may not be 

reliable. We do not know how the interview was conducted 

or how the document was prepared. We do not know 

whether the questions and answers were recorded 

verbatim, summarized, or paraphrased. We cannot tell from 

the document the extent to which Balasubramanrim had 

difficulty comprehending the questions, whether questions 

had to be repeated, or when and how sign language was 

used. Nor does the document reveal whether 

Balasubramanrim's responses actually correspond to those 

recorded or whether the examiner recorded some distilled 

or summary version based on his best estimation of the 

response. 

Second, the airport statement is not an application for 

asylum. The questions posed were not designed to elicit the 

 10 
details of an asylum claim, and it appears the airport 

examiner in this case had no interest in developing the 

details of a potential asylum claim. For example, at one 

point, the following exchange took place: 

 (17) Q. What would happen if you returned to Sri 

 Lanka? 

 A. The (sic) will kill me. 

But remarkably there was no follow up question. The

examiner did not inquire who would kill Balasubramanrim 

or why. The next question was: "How did you get to the 

U.S. from Sri Lanka?" In addition, the airport statement 

itself contains inconsistent responses that the INS examiner 

did not clarify. For example, the examiner asked 

Balasubramanrim if he had ever been arrested, and, 

according to the handwritten document, he said that he 

hadn't. Later, in response to another question, 

Balasubramanrim told the INS officers: "I was also arrested 

by the LTT, they kept me for 10 days, after I gave them 

money, they let me go." But this apparent inconsistency 

was never explored. Nor was Balasubramanrim's use of the 

word "also", which might imply there was more than one 

arrest.9 

Third, an arriving alien who has suffered abuse during 

interrogation sessions by government officials in his home 

country may be reluctant to reveal such information during 

the first meeting with government officials in this country. 

Similarly, when the arriving alien is not proficient in 

English and no translator is provided, the airport interview 

may not elicit all the events which are central to an asylum 

claim. 

Our recent case, Marincas v. Lewis, 92 F.3d 195 (3d Cir. 

1996), is instructive. In Marincas, we found the asylum 

_________________________________________________________________ 

9. Unfortunately, Balasubramanrim's attempt to explain the lack of 

arrest information in the airport statement is marked "indiscernible" in 

the asylum hearing transcript. When the immigration judge questioned 

Balasubramanrim concerning his statement that he had never been 

arrested or detained and that he was in trouble because of his brother's 

activities, he responded: "I told them that I was not arrested in 

(indiscernible)." We are left guessing as to this critical aspect of the 

credibility determination in this case. 

 11 
procedure afforded stowaways inadequate because there 

was no translator and no mechanism to ensure accurate 

recording of their statements to assure a fair review 

process. Id. at 204. Balasubramanrim, unlike the 

stowaways in Marincas, received a full adversarial hearing 

before an immigration judge and had the assistance of an 

attorney at that hearing. But in carefully scrutinizing 

Balasubramanrim's initial statements at the airport, the 

Board treated that interview like an initial application for 

asylum. Furthermore, the airport statement procedure here 

suffers from some of the same defects as did the stowaway 

proceedings invalidated in Marincas. Balasubramanrim did 

not have a translator at the airport interview. Nor do we 

have any confidence that the interview was accurately 

recorded. At least in Marincas the stowaways were informed 

that they were being afforded the opportunity to present 

their claim for asylum and were questioned specifically as 

to their past persecution or well-founded fear of future 

persecution. No such notice was provided in this case. 

Finally, we are not confident the Board made an accurate 

assessment of Balasubramanrim's English skills. In 

reaching its credibility determination, the Board relied 

heavily on its conclusion that Balasubramanrim knew a 

"fair amount of English" at the time of the airport interview. 

Yet looking at the record, it is difficult to see the basis for 

this conclusion. 

Balasubramanrim maintains that he knew very little 

English at the time of the airport interview and that this 

accounts in large part for his failure to tell the INS officers 

about his mistreatment in Sri Lanka. When the 

immigration judge asked Balasubramanrim what he said 

when questioned at the airport, Balasubramanrim 

responded, "I don't understand what they ask me." When 

asked whether he understood the airport statement that he 

signed and whether an oath was administered before he 

signed it, Balasubramanrim replied: "I don't understand 

English, so I don't know." Finally, when the immigration 

judge asked him about the airport statement, 

Balasubramanrim replied: "I don't understand that much of 

English. So what I do understand, I said yes. Whatever I 

didn't understand, I said no. But most of the time it was 

 12 
like sign language. So they were asking me in sign, so I was 

signing back." 

The Board dismissed this argument, noting that 

Balasubramanrim was able to convey a great deal of 

accurate information. The Board concluded: 

 [A]s the applicant was able to communicate 

 [information about dates and places he had been] 

 accurately, and was able to communicate his brother's 

 detention by the LIBERATION TIGERS of 10 days, we 

 do not find that the immigration judge erred in 

 concluding that the applicant should also have been 

 able to communicate his other, more significant, 

 detentions he claimed at the hearing; i.e. his detention 

 for 1 year and 10 days, and another 4 months by the 

 Sri Lankan Armed Forces. 

The Board also found that at his hearing, 

Balasubramanrim on several occasions answered questions 

posed to him in English without waiting for the translation. 

Balasubramanrim maintains that during his four months of 

detention he was able to improve his English language 

skills through conversation with English-speaking 

cellmates. 

The Board made this finding without any support in the 

record that Balasubramanrim knew English prior to his 

arrival in the United States. We agree with the dissenting 

board member who criticized "the majority's linguistic 

analysis" and concluded: "the majority's estimation of the 

applicant's proficiency in English is based on their 

observation that the applicant responded in English to 

some questions at the immigration hearing. An examination 

of the transcript reveals that such occasions were so few, so 

incidental, and involved such elemental English that they 

provide an insufficient basis for evaluating the applicant's 

level of English proficiency." 

Moreover, we note that the information Balasubramanrim 

indicates was accurately recorded at the airport interview 

consists of fairly straightforward questions, involving one 

word or short answers that would have been relatively easy 

to understand or communicate. For example, he gave his 

name, other names he may have used, when and where he 

 13 
was born, what country he was a citizen of, etc. As the 

dissenting board member noted, "These questions involved 

common words and called for fairly direct answers. It is 

reasonable that the applicant would know numbers, and 

dates, and days and not be able to express more 

complicated situations such as the reasons he feared 

persecution or his various experiences of torture and 

detention." 

That there were some inconsistencies between the airport 

statement and Balasubramanrim's testimony before the 

immigration judge is not sufficient, standing alone, to 

support the Board's finding that Balasubramanrim was not 

credible. See Aguilera-Cota v. INS, 914 F.2d 1375, 1382 

(9th Cir. 1990) (finding that inconsistencies between an 

applicant's written asylum application and his testimony at 

the asylum hearing are not enough, standing alone, to 

serve as a basis for finding a lack of credibility). We find 

that the Board's credibility determination was not 

reasonable because the airport interview alone in this case 

does not serve as a "valid ground[ ] upon which to base a 

finding that an asylum applicant is not credible." Id. 

(citations omitted). 

C. 

Balasubramanrim applied for asylum and withholding of 

deportation. As noted, under 8 U.S.C. S 1158, if the 

Attorney General determines that an alien is a refugee 

within the meaning of 8 U.S.C. S 1101(a)(42)(A), then the 

Attorney General has the discretion to grant the alien 

asylum. A refugee is eligible for asylum if he was 

persecuted in the past or has a "well-founded fear" of future 

persecution on the ground of, inter alia, political opinion, 

which is the basis of the Balasubramanrim's appeal. 10 Id. In 

_________________________________________________________________ 

10. The persecution may be on account of a political opinion the 

applicant actually holds or on account of one the foreign government has 

imputed to him. Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997). See 

also Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir. 1996) (rejecting 

applicant's asylum claim because "the evidence does not compel the 

conclusion that Cruz-Diaz will be subjected to persecution or other harm 

based on actual or imputed political opinion"); Singh v. Ilchert, 63 F.3d 

 14 
addition, 8 U.S.C. S 1253(h) requires withholding of 

deportation of an alien "if the Attorney General determines 

that such alien's life would be threatened on account of ... 

political opinion." Eligibility for withholding of deportation 

involves a stricter standard ("clear probability") than 

eligibility for asylum. See INS v. Cardoza-Fonseca, 480 U.S. 

421, 430-31 (1987). The well-founded fear standard has a 

subjective and an objective component. Id. at 430-31. The 

alien must show that "he has a subjective fear of 

persecution that is supported by objective evidence that 

persecution is a reasonable possibility." Chang, 119 F.3d at 

1066. When documentary evidence is lacking, as in the 

instant case, the applicant's credible, persuasive, and 

specific testimony may suffice. Aguilera-Cota v. INS, 914 

F.2d 1375, 1378 (9th Cir. 1990). 

Because the Board found Balasubramanrim not credible, 

it rejected his application for asylum and withholding of 

deportation without conducting further analysis of his 

claim. "In 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." Mosa, 89 F.3d at 605 (citations omitted). 

We will grant the petition and remand to the Board, with 

leave to further remand to the immigration judge, for a 

determination of Balasubramanrim's claims for asylum and 

withholding of deportation without reliance on the adverse 

credibility finding. In reaching this conclusion, we do not 

purport to comment on the credibility of the assertions in 

Balasubramanrim's petition. We hold only that, because of 

ambiguities in the airport statement and the circumstances 

under which it was made, that statement does not provide 

_________________________________________________________________ 

1501, 1509 (9th Cir. 1995) (relying on evidence that the applicant was 

tortured because he was suspected of being a Sikh separatist); 

Ravindran v. INS, 976 F.2d 754, 760 (1st Cir. 1992) (citation omitted) 

("An imputed political opinion, whether correctly or incorrectly 

attributed, may constitute a reason for political persecution within the 

meaning of the Act."); Rajaratnam v. Moyer, 832 F. Supp. 1219, 1223 

(N.D. Ill. 1993) (finding eligibility for asylum based on evidence that 

applicant was persecuted because the authorities suspected him of being 

a member of the Liberation Tigers). 

 15 
sufficient evidence to support the adverse credibility 

determinations upon which the immigration judge and BIA 

denied the petition. 

IV. 

For the foregoing reasons, we conclude that substantial 

evidence did not support the Board's findings. Accordingly, 

we will grant the petition and remand for proceedings 

consistent with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 16