Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H. * Holder, Jr. has been substituted for former Attorney General Michael B. Mukasey as the respondent. 

# UnitedStates C ou rt o f App eals

For th e First C ircuit

Nos. 08-1398, 08-1740 PRABAKARAN RASIAH, Petitioner,

v . ERIC H. HOLDER, JR., ATTORNEY GENERAL, * Respondent.

ON PETITIONS FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Lynch, Chief Judge, Boudin and Lipez, Circuit Judges.

Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, on brief for petitioner. Anthony W. Norwood, S enior Litigation Counsel, Office of Immigration Litigation, Gregory G. Katsas, Assistant Attorney General, Civil Division, and Terri J. S c adron, Assistant Director, Office of Immigration Litigation, on brief for respondent.

December 9, 2009

______-2- BOUDIN, Circuit Judge. Prabakaran Rasiah is an ethnically Tamil Sri Lankan citizen. He seeks review of a decision by the Board of Immigration Appeals ("BIA") affirming an order by an Immigration Judge ("IJ") that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Rasiah sought this relief alleging that he had suffered persecution at the hands of the Sri Lankan army because of his Tamil ethnicity. The background events and proceedings can be briefly summarized.

Rasiah sought to enter the United States on May 4, 2007, in San Juan, Puerto Rico, using a fraudulent non-immigrant visa. Federal a u t h orities began removal proceedings, and Rasiah conceded removability, but applied for asylum, withholding of removal, and CAT relief. Rasiah had an interview with an asylum officer on May 23, 2007, and was granted a hearing before an IJ. The hearing before the IJ occurred on August 22, 2007, and Rasiah was represented by counsel. Rasiah was the only witness. He testified that he is an ethnicall y T amil Sri Lankan and to a number of incidents of past persecution he and family members allegedly suffered at the hands of the Sri Lankan army or others associated with the government: that soldiers beat him and shot his brother and sister; that he had left his job after soldiers inquired into his support for the Tamil Tigers, a rebel group engaged in a long-running armed conflict with the Sri Lankan government; that he was kidnapped, beaten and burned-3-

by three men dressed as civilians; and that soldiers shot an alleged relative of his named Kandasamy Gowrivalan.

Rasiah submitted a variety of documents on the current

con d i tions in Sri Lanka, including a United Nations report and articles from newspapers and online sources. Consistent with State Department country reports on Sri Lanka, the materials confirmed that Tamils were sometimes threatened, abused and worse on account of their ethnic status or suspected ties to the Tamil Tigers. After the hearing, Rasiah submitted a m e m o r a ndum of law reiterating his past persecution claims and claiming, for the first time, asylum eligibility based on a pattern or practice of p e rsecution against Tamils. The IJ issued an oral decision on October 3, 2007, that denied Rasiah's application for asylum, withholding of removal, and CAT relief. The IJ found Rasiah's testimony of past persecution of himself and his family "not credible," saying she did not believe him; the reasons she gave can be summarized as follows:

that he had failed to provide corroboration for his stories, such as his claims th a t his brother and sister were shot; that several other Sri Lankan asylum seekers claimed Gowrivalan was a relative and had presented death certificates like the one Rasiah presented in support; that his claim h e would be persecuted in Sri L a n k a w a s u n d e r c u t b yh i s a b i l i t yt o get a passport from the Sri Lankan government and his experiencing no difficulties when-4- traveling to or from Sri Lanka in the past; and that there were inconsistencies in his testimony, including about the facts of the alleged kidnapping and his job. The IJ also found that Rasiah had not met his burden on future persecution.

Rasiah appealed to the BIA where h e c h allenged the IJ's adverse credibility finding as to his past persecution; argued that he had proved a pattern or practice of persecution of Tamils that the IJ had ignored; and (for the first time) argued t h a t he would be persecuted in Sri Lanka as a failed asylum seeker. The BIA upheld the finding that Rasiah's accounts of past persecution were incredible, addressed Rasiah's pattern or practice claim by quoting the IJ's conclusion that simply by being a Tamil Rasi a h w a s n ot entitled to "a blank check in order to receive asylum," and held that his claim that he would be persecuted as a failed asylum seeker was never presented to the IJ and so was forfeited.

Rasiah sought review in this court on March 27, 2008, and then on April 3, 2 0 0 8, filed a motion to reopen the administrative proceedings, claiming that the persecution of Tamils had increased in Sri Lanka and submitting a d d itional documentary evidence of conditions in Sri Lanka. He also argued that his pattern or practice claim turned not on his credibility, but rather on his Tamil ethnicity and objective evidence of the treatment of Tamils. The BIA denied the motion to reopen, observing that the new information did-5-

not "ameliorate[] the factual bases of the a d v erse credibility finding." Rasiah petitioned to review this denial of the motion to reopen, which w e c onsolidated with his earlier petition contesting the BIA's decision on the merits. In this court, Rasiah does not challenge the IJ's factual finding that his testimony about past persecution was incredible. His main argument is that the BIA erred in failing to analyze separately his pattern or practice claim and in failing to remand that issue to the IJ for development. He also argues that the BIA should have decoded his claim that he would be subject to persecution as a failed asylum seeker.

Review of the IJ or BIA's fact-bound determinations is under the "substantial evidence standard," Ratnasingam v. Holder, 556 F.3d 10, 13 (1st Cir. 2009), which asks whether "any reasonable adjudicator would be compelled to conclude to the contrary," Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) (internal quotation marks omitted). But, as already noted, Rasiah does not dispute the finding that his testimony was incredible and his main objection is to BIA's alleged failure to decide on the merits his pattern or practice claim. However, the BIA--although more cryptic than the IJ--did permissibly resolve Rasiah's claim.

Claims based on past persecution, reasonable fe a r of future persecution or both ordinarily focus on past incidents or future danger involving the asylum seeker or his family, which mustSee, e.g., U.S. De p ' t of State, 2008 Country Reports on Human 1 Rights Practices: Sri Lanka (released Feb. 25, 2009); Krishnapillai v. Holder, 563 F.3d 606, 609, 611-13, 620-21 (7th Cir. 2009); Balasubramanrim v. I N S , 1 43 F.3d 157, 158-59 (3d Cir. 1998); Ravindran v. INS, 976 F.2d 754, 756 (1st Cir. 1992). -6- be severe enough to constitute "persecution"--a fairly high standard, Nelson v. INS, 232 F.3d 258, 263-64 (1st Cir. 200 0 ) ; the applicant must also show that the persecution that occurred, or is threatened, was "on account of race, religion, n a t i o n ality, membership in a particular social group, or political opinion," 8 U.S.C. § 1101(a)(42)(A) (2006); 8 C.F.R. § 208.13(b) (2009). A showing of past persecution creates a r e b uttable presumption of future persecution. 8 C.F.R. § 208.13(b)(1).

An appli c ant can often reinforce his claim of individualized harm or dang e r by showing that persecution of similarly situated persons has occurred. See Kotasz v. INS, 31 F.3d 847, 852-54 (9th Cir. 1994). Thus, a history of violen c e toward Tamils could help show that violence directed against Rasiah or his family was based on their ethnicity rather than random crime or disorder or that the source was the government or its indifference. Such a showing could also make more credible and rational the fear of the asylum seeker that past incidents would be repeated.

In fact, there is evidence, reflected in both case law and
Sta t e Department country reports, that ethnic Tamils in Sri Lanka have been subject to incidents of violence in the past attributed to the government or it s i ndifference. As described by the State 1In May 2009, the Sri Lankan government declared victory over the 2 Tigers in the conflict, Vakeesan v. Holder, No. 08-3622, 2009 WL 2591034, at *11, n.6 (6th Cir. Aug. 21, 2009) (citing Sri Lanka Says Leader of Rebels Has Died, N.Y. Times, May 18, 2009, at A4), so the situation of Tamils may have changed in recent months. -7- Department's 2008 report, "[t]he government has bee n engaged in a
twent y - five year armed conflict with the" Tamil Tigers, which the

re p o rt describes as a "terrorist organization" controlling "a shr i n king area in the north of the country." As this conflict escalated, "the government's respect for human rights declined," and Tamils made up "the overwhelming majority of victims of human rights violations." 2

The 2008 r e p ort described "frequent harassment of young and middle-aged Tamil men by security forces and paramilitary groups" especially "in the conflict-affected north and east"; among the more

ser i o u s v i o l a t i o n s f r o m2 0 0 8 n o t e di n t h e r e p o r t w e r e a p p r o x i m ately 800 civilian casualtie s , m o r e than 500 disappearances and the detention of several thousand individuals (although the majority were released within 24 hours). So clea r l y m any Tamils--particularly in conflict-afflicted areas--have suffered substantial hardships.

The difficulty for Rasiah is that simply because civil strife causes substantial hardships for an ethnic minority, that does not automatically entitle all members of that minority to asylum. Ratnasingam, 556 F.3d at 14; Kho v. Keisler, 505 F.3d 5 0, 54 (1st Cir. 2007); see also Krishnapillai, 563 F.3d a t 6 20. The governing regulati o n s a n d the case law do in some extreme cases allow relief-8-

for asylum seekers s o l ely based on their membership in a protected group under the pattern or practice rubric, 8 C . F . R. §§ 208.13(b) ( 2 ) ( i i ), 208.16(b)(2); Kho, 505 F.3d at 54; however, the standard is demanding and in substance requires a showing of regular and widespread persecution creating a reasonable likelihood of persecution of all persons in the group, see Krishnapillai, 563 F.3d at 620; Kotasz, 31 F.3d at 852.

Attempts by Tamils to meet this standard have been regularly rejected. This circuit has recently sustained BIA findings that treatment of Tamils in Sri Lanka does not rise to the l e v el necessary to estab l i s h a pattern or practice claim that standing alone per m i t s relief. Balachandran v. Holder, 566 F.3d 269, 272-73 (1st Cir. 2009); Ratnasingam, 556 F.3d at 14-15. Other circuits are in accord. Krishnapill a i , 563 F.3d at 620; Vakeesan, 2009 WL 2591034, at *11; Paramanathan v. U.S. Att'y Gen., No. 08-13916, 2009 WL 2477762, at *4-5 (11th Cir. Aug. 14, 2009) (per curiam).

The record in this case neither compels a contrary finding nor supports Rasiah' s a s sertion that his claim was ignored. Rasiah himself raised his pattern or pra c t i c e claim only after his hearing before the IJ, but the IJ dealt with it exactly as one might expect:

Even though the Country Reports and background information provided by the respondent clearly depicted that Sri L anka is a country in turm o i l, that there [are] abuses from the government, there [are] abuses from the army, there [are] abuses from the T igers, the respondent, by the fact that he is a Tamil, by the fact he is from Sri Lanka, that does not-9- give him a blank check in order t o r e ceive asylum in the United States. The BIA cited this portion of the IJ's d e c i s i on in a footnote, effectively adopting the IJ's treatment, which was itself adequate in light of the nature of the claim and the case law.

The IJ's explicit references to "the Country Reports" and other " b a ckground information" and its discussion of conditions in Sri Lanka indicate that the IJ and, in turn, the BI A considered but rejected Rasiah's pattern or practice c l a im, see Malek v. Mukasey, 274 F. App'x 1, 7-8 (1st Cir. 2008), and Rasiah presented no evidence to distinguish his purported pattern or practice claim from those rejected in Balachandran and Ratnasi n g a m . The treatment of Tamils, however deplorable, is not of a reach t h a t e n titles every Tamil in Sri Lanka to asylum based on ethnicity alone.

What Rasiah needed was evidence that he himself had been persecuted or targeted for persecution. With that foundation, he might well have benefitted (in way s d e scribed above) from a showing based on country reports or other generalized evide n c e that Tamils

w e r e sometimes persecuted because of their political activities or
even t h e i r ethnicity alone. But because the IJ disbelieved broadly Rasiah's claims of personal or fa m i ly persecution--and he does not

con t e s t that finding in this court--he has no past persecution or threats of future pers e c u t ion of him or family members that might gain weight or color from the treatment of others.-10- An adv e r se credibility finding by itself would not automatically doom a claim for asylum. For example, an a p p licant might be disbelieved as to past episodes of persecution while his own (or independent) evidence might show that he faced threats of future persecution--for example, direct threats from government forces--that established both his genuine belief and an objective likelihood that he would be persecuted. Paul v. Gonzalez, 444 F.3d 148, 154 (2d Cir. 2006). But Rasiah m a d e no such independent showing: the only evidence of harm or threats to him or his family that he offered was the evidence that the IJ disbelieved and there was n o evidence of a pattern or practice of persecution of Tamils beyond that our case law already has rejected as insufficient.

The BIA also did not err in denying Rasiah's motion to reopen the proceedings. M o tions to reopen are disfavored and are reviewed only for abuse of discretion. Lemus v. G o nzalez, 489 F.3d 399, 401 (1st Cir. 2007). Rasiah provided no new evidence as to why he should be believed, see id., and did not show that c ountry conditions had worsened dr a m atically, see Ratnasingam, 556 F.3d at 15. What he offer e dwas far from the necessary showing of "new evidence [that] establishes a prima facie case for the underlying substantive relief." Chikkeur v. Mukasey, 514 F.3d 1381, 1 3 8 3 (1st Cir. 2008). Finally, as already noted, Rasiah contends he is entitled to asylum because he is part of the "particular s o c i a l group" of-11-

"failed asylum seekers." The BIA held this claim barr e db ecause Rasiah failed to raise it before the IJ. He points to nothing that shows he did raise it earlier, so the BIA was on f irm ground. Kechichian v. Mukasey, 535 F.3d 15, 21-22 (1st Cir. 2008).

The petition for review is denied.

- Dissenting Opinion Follows -The majority appears to fault Rasiah for not raising his pattern 3 or practice claim orally at the hearing before the IJ, an di n stead raising this claim for the first time in a written memorandum submitted after the hearing. However, the majority fails to note that at the conclusion of Rasiah's testimony before the IJ, Rasiah's counsel asked to present oral argument. The IJ instructed counsel that "if you want to submit a closing, submit it in written form
. . . ." In compliance with that instruction, Rasiah then fi l e d a written memorandum of law in which he squarely raised his pattern or practice claim, citing to the governing regulations and the documentary evidence of countr y c o n ditions he had submitted at the hearing. This memorandum was submitted prior to the IJ's issuance of her decision, and the government could easily have responded in a reply memorandum. Rasiah cannot be faulted for complying with the IJ's express instruction and presenting his argument in written form, rather than orally at the hearing. -12- LIPEZ, Circuit Judge, dissenting. In an effort to avoid remanding this case to the BIA, the majority constructs reasoning not present in, and indeed directly contradicted by, the BIA's decision.
As I s h a l l e x plain, the BIA did not consider and reject Rasiah's claim of pattern or practice persecution on the merits. Instead, on initial appeal and again on the motion to reopen, the BIA declined to address Rasiah's pattern o r practice claim in view of the IJ's adverse credibility finding as to Rasiah's personal accounts of past persecution. The BIA committed a legal error by concluding that the adverse credibility finding as to past perse c u tion doomed Rasiah's pattern or practice claim. Therefore, I respectfully dissent. This
case must be remanded to the BIA so that Rasiah's properly presented pattern or practice claim may be heard in the first instance. 3-13- I. In our review of the BIA's decision, we cannot invent grounds for affirmance and ascribe them t o the agency. Instead, we must " j u d g e the action of an administrative agency based only on reasoning provided by the agency, and not base do n grounds constructed by t h e reviewing court." El Moraghy v. Ashcroft, 331 F.3d 195, 203 (1st Cir. 2003) (quotation marks and citation omitted) (remanding where IJ failed to state conclusions on several important issues); see also Halo v. Gonzales, 419 F.3d 15, 18- 1 9 ( 1 s t Cir. 2005) ("[A] reviewing court . . . m ust judge the propriety of [administrative] action solely by the grounds invoked by the agency, and that basis must be set forth w i t h such clarity as to be understandable." (internal q uotation marks and citation omitted)). In this case, the majority affirms no t on grounds provided by the BIA, but on grounds constructed by the majority.

The majority asserts that the B I A " addressed Rasiah's pattern or practice claim by quoting the IJ's conclusion that simply by being a Tamil Rasiah was not en t itled to a 'blank check in order to receive asylum.'" The majori t y t hen proceeds to affirm this purported reasoning by the BIA, concluding that "[t]he treat m e n t of Tamils, however deplorable, is not of a r e a c h that entitles every Tamil in Sri Lanka to asylum based on ethnicity alone." However, the record makes clear that the BIA did not, as the majori t ys u g g e sts,

cons i d er the submitted evidence of country conditions and conclude-14-

t h a t Rasiah failed to establish systematic persecution of Tamils in Sri Lanka. See 8 C.F.R. § 208.13(b)(2)(iii); Balachandran, 566 F.3d at 272. Instead, the BIA expressly deemed it unnecessary to address Rasiah's pattern or practice claim in light of the IJ's prior adverse credibility finding as to Rasiah's accounts of past persecution.

Proving a well-founded fear of future persecution "generally requires individualized evidence that the applicant will be ' s i n g l e do u t ' f o r p e r s e c u t i o n u p o n r e t u r n t o h i s h o m e c o u n t r y." Kho, 505 F.3d a t 5 4
. T he analysis of a pattern or practice claim, however, is different. Under t h e governing regulations, an asylum applicant need not demonstrate that he will be "singled out individually" for future persecution if the applicant establishes (1) "that there is a pattern or practice in his or her co u n try of nationality . . . of p e r s e c ution of a group of persons similarly situated to the applicant on account of race, religion, nationality,

m e mb e r s h i p i n a p a r t i c u l a r s o c i a l g r o u p , o r p o l i t i c a l o p i n i o n," and (2) "his or her own inclusion in, and identification with, such group of persons such that his o r her fear of persecution upon return is reasonable." 8 C.F.R. § 208.13(b)(2)(iii).

As the majority recognizes, evidence of prevailing country conditio n s may be relevant to either an individualized persecution claim or a pattern or practice claim. For example, evidence of country conditions may pro v i de context and corroboration for the asylum applicant's personal accounts of past persecution, thereby-15-

bolstering an individualized showing of persecution. See El Moraghy, 331 F.3d at 203-04. Alternatively , evidence of prevailing country conditions may establish a pattern o r p ractice of persecution of
p e rsons similarly situated to the applicant, making it unnecessary for the applicant to d e m o n strate that he will be singled out individually for persecution.

In this case, the BIA decision's only reference to Rasiah's pattern or practice claim appears in a footnote in which the BIA expressly d e e m e d i t unnecessary to address the claim. The BIA concluded: Inasmuch as the respondent c a n not meet his

burden of proof without providing credible testimony as a result o f the amendments created by the REAL ID Act, we do not deem it neces s a ry to address his arguments on appeal pertaining to either his "pattern or practice" theory of relief or his c l a im based on a "particular social group" consisting of failed Sri Lankan asylum seekers. (Emphasis added.) The majority ignores this express statement of the BIA that it was not necessary to address Rasiah's pattern or practice claim, and instead a s s e r ts that the BIA addressed and rejected this claim on the merits. The majority relies on a portio n o f the BIA decision in which the BIA adopted the IJ's reasoning that a l t h ough Rasiah submitted country r e p o r t s and other evidence of widespread abuses of Tamils in Sri Lanka, his Tamil ethn i c ity "does not give [the respondent] a blank check in order to receive asylum." However, read in context, it is clear that this portion of the BI Adecision-16-

w a s a d dressed to Rasiah's individualized persecution claim, not his
pa t t e r n o r p r a c t i c e c l a i m . I n t h e p o r t i o n o f t h e B I Ad ecision highlighted by the majorit y , t he BIA concluded that the IJ properly based her adverse credibility finding in part on Rasiah's failure to corroborate basic elements of his past persecution c l a i m , including his testimony that his brother and s i s t e r w ere shot and that his alleged relative, Gowrivalan, was shot and killed. The BI At h en stated, in a footnote:

On appeal the respon d e nt contends that the Immigration Judge erroneously fail ed to consider the "overwhelming background materials" on country conditi ons as corroborative of the respondent's asylum claim. . . . However, as th e Immigration Judge explained in her decision, just arriving in the United States from Sri Lanka "does not give [ t he respondent] a blank check in order to re ceive asylum" (I.J. at 21). Rather, f i r st and foremost, the respondent must be c r e d i b l e , a n dt h e n t h e r e s p o n d e n t m u s t meet his burden of proof of establishing that he is a refugee within the meaning of the Act. See sections 208(b)(1)(B)(i), (iii) of the Act (added b y REAL ID Act § 101(a)(3)); 8 C.F.R. § 1208.13(a); Matter of J-Y-C-, [24 I & N Dec. 260,] 266 [(BIA 2007)]. In this cas e , t he respondent failed to testify credibly and, as a result, failed to meet his burden of proof. As this passage makes clear, the BI A was responding to Rasiah's argument tha t t h e evidence of country conditions corroborated his testimon y t h a t he and his family had personally experienced past persecution. Adopting the I J ' s r easoning, the BIA concluded that Rasiah had failed to credibly testify that h e or his family were targeted for past persecution, and therefore he had made-17-

no individualized showing o f p a s t persecution that might be corroborated or otherwise su p ported by evidence of country conditions. The BIA did not address the distinct question of whether the evidence of country conditions established a pattern or practice of persecution under 8 C.F.R. § 208.13(b)(2)(iii), a claim that could have s u c c e e d e dr e g a r d l e s s o f w h e t h e r R a s i a hc r e d i b l yt e s t i f i e dt hat he and his family were singled out for persecution in the past.

T h e BIA similarly declined to address the merits of Rasiah's pattern or practice claim on his motion to reopen. The BIA concluded that "even the fairly v o luminous evidence of current country conditions in Sri Lanka that the respondent has submitted with his motion would [not] have resulted in a different disposition of the respo n d ent's case because none of this evidence ameliorates the factual bases of the adverse credibility finding."

The majority relies on p r i or cases in which we have sustained the BIA's rejection of pattern or practice claims by ethnically Tamil Sri L a n k ans. See, e.g., Balachandran, 566 F.3d at 272-73; Ratnasingam, 556 F.3d at 14. In these c a s es, however, we reviewed a finding by the BIA th a t the petitioner had failed to establ i s h a pattern or practice of persecution in his country, and concluded that the evidence did not compel a contrary conclusion. By contrast, in cases in which the BIA has fail e dto address a Sri Lankan Tamil's pattern or practice claim a ltogether, courts have remanded to the BIA to address this issue in the first instance. See-18-

Rasananthan v. U.S. Att'y Gen., No. 08-10151, 2009 WL 2105539, at *2 (11th Cir. Jul. 17, 2009) (per curiam) (remanding where BIA failed to address pattern or practice claim by ethnically Ta m i l Sri Lankan);
T h a v endran v. Gonzales, 211 F. App'x 74, 75 (2d Cir. 2007)(summary order)(same); see also Balachandran, 566 F.3d at 273 n.1 (concluding that the BIA "considered and rejected" Sri Lankan Tamil's pattern or practice claim, and distinguishing a case cited by the petitioner in which "t h e g o v e r n m e n t f i l e da m o t i o n t o r e m a n di n t h e 1 1 t hC i r c uit where the BIA had failed to address a p a t tern-or-practice theory in any way," Vijayaratnam v. Hold e r , No. 09-10275 (11th Cir. Apr. 21, 2009)). In this case, the BIA did not consider the evidence Rasiah submitted of frequent a n d e scalating violence against Tamils in Sri Lanka, but instead expr e s s l y deemed it unnecessary to address Rasiah's pattern or practice claim. Because the B I Afailed to address the pattern or practice claim on the merits, the case must be remanded to the BIA to address this issue in the first instance. See INS v. Ventura, 537 U . S. 12, 16 (2002)(per curiam); see also id. at 17 (citing considerations that support the " o r d inary remand requirement" in the immigration context, including that "[t]he agency can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the lawThis claim of error applies with equal force to both the BIA's 4 denial of Rasiah's initial appeal and its subsequent denial of his motion to reopen: in both decisions, the BIA deemed it unnecessary to address the merits of his pattern or practice claim in light of the IJ's adverse credibility finding. -19- provides"); Cordej o - T r ejo v. INS, 40 F.3d 482, 492 (1st Cir. 1994) (remanding where BIA failed to address petitioner's claim of pattern or practice persecution).

The majority goes to great length s t o construct grounds for affirmance and avoid remanding this case to the BIA. In the end, the majority's opinion appears to be d r i ven by a conviction that remand would be futile because Rasiah's pattern or practice claim would likely be rejected by the BIA. However, the reviewing court is not authorized to make that determinat i o n i n the first instance. Reg a r d l e s s o f w h e t h e r t h i s c o u r t b e l i e v e s R a s i a h ' s c l a i m w i ll be

s u c c e s s f u l , h e i s e n t i t l e d t o h a v e h i s c l a i m h e a r d a n d a d d r e s s ed on the merits by the BIA.
II.

Having concluded that the BIA did not address Rasiah's pattern or practice claim on the merits and that the reviewing court
cannot a d d r ess that claim in the first instance, I next address the question of whether the BIA erroneou s l y d eemed it unnecessary to address his pattern or practice claim in l i g h t o f the IJ's adverse credibility finding. I conclude that the BIA e r r e d i n determining 4
that the adverse credibility finding as to Rasiah's accounts of past-20-

persecution precluded him from estab l i s h i n g a pattern or practice claim. As the majority acknowledges, a prior adverse credibility finding as to past persecution does not necessarily foreclose a claim for asylum based on independent evidence of future perse c u t i on. As the Second Circuit has explained, with respect to petitions for both asylum and withholding of removal, " a n applicant may prevail on a theory of future persecution d e s pite an IJ's adverse credibility ruling as to past persecutio n , s o l o ng as the factual predicate of the applicant's claim of future persecution is independent of the testimony t h at the IJ found not to be credible." Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006). T h e other circuits to have addressed th i s i s s u e are in accord. See Vakeesan v. Holder, No. 08-3622, 200 9 W L 2591034, at *9 (6th Cir. Aug. 21, 2009); Rasananthan, 2009 WL 2105539, at *2; Gebreeyesus v. Gonzales, 482 F.3d 952, 955 (7th Cir. 2007).

In Paul, the IJ denied t h e p e titioner's asylum claim on adverse credibility grounds, finding his stories of past persecution unsupported, but c r e d ited his testimony that he was a practicing Christian. 444 F.3d at 152. The petitioner filed a motion to reopen based on updated country reports indicating increased persecution of Christians in Pakistan, and the BIA denied the motion, reasoning that the petitioner had failed to present any evidence challenging the adverse credibility finding. Id
. O n appeal, the court concluded-21-

that the petitione r ' s claim that he feared future persecution as a Christian "could have succeeded regardless of the IJ's view of petitioner's stories of pa s t persecution." Id. at 154-55. It thus h e l d t h a t t h e B I A a b u s e d i t s d i s c r e t i o n i n d e n y i n g h i s motion to reopen without c o n s i dering the objective evidence of deteriorating

co n d i t i o n s f o r C h r i s t i a n s i n P a k i s t a n . I d
. a t 1 5 5 ; s e e a l s o L i n v. U.S. Dep't o f Justice, 247 F. App'x 228, 232 (2d Cir. 2007)(summary order)(applying Paul to h o l dthat remand was required where BIA did not address the merits of petitioner's pattern or practice claim and this claim was independent of the testimony found not credible).

Here, too, Rasiah's claim for asylum based on a pattern or practice of persecution against Tamils relies on facts independent of the testimony found no t c r e dible, and the prior adverse credibility finding does not forecl o s e his pattern or practice claim. The IJ found, and the BIA agreed, that Rasiah's accounts of past persecution

we r e i n c o n s i s t e n t a n d u n c o r r o b o r a t e d
. H o w e v e r , R a s i a h ' s p a t tern or practic e claim is a claim that he has a well-founded fear of future persecution. It relies not on his personal a c c o unts of past persecution, but on proof of (1) o b j ective evidence of a pattern or practic e of persecution of Tamils in Sri Lanka, and (2) his Tamil ethnicity. See 8 C.F.R. § 208.13(b)(2)(iii). Thus, Rasiah ' s c laim for asylum based on a pa t t e r n o r practice of persecution of Tamils "could have succeeded regardless of the IJ's view of [R a s iah's] stories of past persecution," see Paul, 444 F.3d at 154-155, and theThe IJ further found that the petitioner had not esta b l ished 5 that he had suffered past persecution, and noted inconsistencies in his accounts of alleged past persecution. Id. at 176. -22- BIA erred i n failing to consider Rasiah's proffered evidence of deteriorating conditions for Tamils in Sri Lanka.

The government relies on Ramsameachire v . Ashcroft, 357 F.3d 169 (2d Cir. 2004), a Second Circuit case decided prior to Paul, to argue that th e IJ's adverse credibility determination precluded Rasiah from demonstrating a subj e c tive fear of future persecution.
In R a m s a m e a c h i r e , t h e I J f o u n d t h a t t h e p e t i t i o n e r h a d not demonstrated a credible f e a r of future persecution, noting that his stated reasons for fearing return to his native country had changed. 5 Id. at 176-77. The BIA upheld the IJ's adverse cr e d i bility finding and reasoned that, in light of that finding, it need not address the petitioner's pattern or practice claim. I d
. a t 177. The Second Circuit affi r m ed the BIA's decision, holding that the IJ's adverse credibility finding as to his subje c t i v e fear of future persecution foreclosed his claim for asylum based on a p attern or practice of persecution, b e c ause "[a]lthough [the petitioner's] pattern or practice evidence was relevant to the objective reasonableness of his fear of persecution, the BIA's adverse credi b i l i t y determinationprecluded him from establishing the subjective prong of the wellfounded fear standard." Id. at 183.

Even if I were to adopt Ram s a m eachire's reasoning, it would not lead me to the conclusion that the IJ's credibility finding-23-

in this case precluded Rasiah from establishing a subjective fear of future persecution. Unlike in Ramsameachire, where the IJ noted the petitioner's shifting explanations for his claimed fear of returning to his native country a n dexpressly concluded that he failed to establish a credible subjective fear of future perse c u t i o n, see id. at 176-77, here the IJ disbelieved Rasiah's stories of past persecution. As the S e c ond Circuit explained in Paul, an adverse credibility finding as to past persecution does not preclude a petitioner from showing a subjective f e a r of future persecution. Instead, the adverse finding affects how the petitioner can prove the subjective element of his fear. 444 F.3d at 154 n.5. In Paul, for example, t h e court noted that the petitioner could not "assert that he s u b j e ctively fears persecution on the basis of what his family purportedly endured in the past" because the IJ had disbelieved those accounts of past persecution. Id. Howeve r , t he petitioner could "s t i l l v a l i d l yc l a i mt h a t h e s u b j e c t i v e l yf e a r s p e r s e c u t i o n because he is a Christian." I d
. Similarly, here, Rasiah cannot claim a subjecti v e fear of future persecution based on the discredited accounts of past persecution, but he could still attempt to establish that he subjectively fea r s f u ture persecution based on his Tamil ethnicity and a pattern or practice of persecution of Tamils.

Of course, if the IJ had found that Rasiah failed to credibly establish his Tamil ethnicity, his pattern or practice claim would necessarily fail. See 8 C.F.R. § 208.13(b ) ( 2 ) ( iii)(B) (anIn denying Rasiah's motion to reopen, the BIA relie d o n Lemus 6 v. Gonzales, 489 F.3d 399 (1st Cir. 2007), in which we held that the petitioner's motion to reopen could not succeed because, inter alia, she had not presented evidence rebutting the I J ' s p rior adverse credibility finding. We affirmed the BIA's deni a l o f petitioner's motion to reopen, n o t i ng that "[t]o cinch matters, the newly proffered information does nothing to rehabilitate the petitioner's failed credibility -- and as said, the final administrative decision in this case hinged mainly on an adverse credibility determination." Id. a t 4 0 1
. I n L e m u s , h o w e v e r , t h e d i s c r e d i t e d t e s t i m o n yas to petitioner's past political activity was the veryt e stimony underlying her asylum claim on the motion to reopen. Id. at 400-01. Here, the discredited testimony as to Rasiah's e x p e riences of past per s e c ution is entirely independent of his claim of future persecution based on a pattern or practice of persecution of Tamils.

-24- asylum applicant must establish "his o r her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable"). However, the IJ did not indicate, and the government does not contend, tha t t h e IJ disbelieved petitioner's testimony as to his Tami l e thnicity. Inde e d , t h e I Ja p p e a r e dt o c r e d i t t h i s t e s t i m o n y , s t a t i n gt h a t " the respondent, by the fact that he is a Tamil, by t h e f act he is from Sri Lanka, that does not give him . . . a blank check in order to receive asylum in the United States." 6

In its denial of Rasiah's initial appeal, and again in its denial of his motion to reopen, the BIA committed an error of law in concluding that the advers e credibility finding as to Rasiah's accounts of past persecution precluded him from establishing a claim of pattern or practice persecution. I would remand this case to the-25-

BIA to address the m e r i t s of Rasiah's pattern or practice claim in the first instance. See Ventura, 537 U.S. at 16.