ARAVINTHAN BALASUBRAMANRIM, Pеtitioner v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
No. 97-3424
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
May 1, 1998
1998 Decisions. Paper 98.
Before: GREENBERG, SCIRICA and ALDISERT, Circuit Judges
On Petition for Review of an Order of the Board of Immigration Appeals (Board No. A73 489 747)
Argued March 10, 1998
(Filed: May 1, 1998)
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
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 сommitted 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,
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 disаppeared 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 аnd 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
(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
(13) Q. What was your occupation in Sri Lanka?
A. I owned a grocery market.
(14) Q. So if you owned а 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 anyonе 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 reаd 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
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
him while testifying and instead stared straight ahead “as though in a trance.” Balasubramanrim appealed.6
II.
The Board had jurisdiction under
Whether an asylum applicant has demonstrated a well-founded fear of persеcution 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. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citing
III.
A.
Under the asylum statute,
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.
B.
Where the immigration judge makes a credibility determination, the Board can independently assess that
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
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:
(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 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 relеvant. 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
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.
(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, Bаlasubramanrim 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
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, thе 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 werе 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 thаt 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
like sign language. So they were asking me in sign, so I was signing back.”
[A]s the applicant was able to communicate [information about dates and places he had been] accurately, and was able to communicate his brothеr‘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 whеre he
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 Balаsubramanrim‘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 bаse a finding that an asylum applicant is not credible.” Id. (citations omitted).
C.
Balasubramanrim applied for asylum and withholding of deportation. As noted, under
addition,
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
suffiсient 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
Notes
Q: Sir, reading your affidavit, your affidаvit 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.