Lead Opinion
Sasetharan Arulampalam, a native and citizen of Sri Lanka, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. As the BIA adopted the IJ’s reasoning, we review the latter, Paramasamy v. Ashcroft,
BACKGROUND
Arulampalam was born on November 20, 1978 in northern Sri Lanka, where he lived for two decades with his family. He is a Hindu of Tamil ethnicity. Arulampalam attended school intermittently from ages 5 to 15. He cannot read or write well and worked as a farmer alongside his father.
The Liberation Tigers of Tamil Eelam (“LTTE” or “Tigers”) is, according to the State Department’s 2001 Country Report, “an insurgent organization fighting for a separate ethnic Tamil state in the north
Arulampalam’s testimony and asylum documents establish the following: In May 1999, when in the city of Mannar to buy supplies for his family’s farm, Arulampa-lam was arrested by the Sri Lankan army and taken to a camp. He was detained for a week, until the supply merchant came and spoke to the army commander, securing Arulampalam’s release.
On September 20, 2000, Arulampalam was playing ball with eight other young men. Three members of the LTTE drove up and used physical compulsion combined with a death threat to force Arulampalam and two others to dig bunkers and fill sandbags for two days. This abduction was repeated on September 28, 2000, when LTTE members came to Arulampalam’s family farm. While digging bunkers this second time, Arulampalam had to take cover on several occasions to avoid army bombardment.
While Arulampalam was working for them, the Tigers repeatedly asked him to join the organization. Arulampalam refused because he felt a responsibility to his family; feared that membership would be dangerous; and was averse to fighting and killing, which his religion forbids. After the second abduction, during which the LTTE indicated that he would be expected to work again, Arulampalam decided that he had to leave the area immediately. His family arranged to have him taken in a van to Colombo, the country’s capital in the south, which is not LTTE-controlled territory. Although a pass was required to make the trip, the person transporting Arulampalam apparently avoided checkpoints.
Once Arulampalam arrived in Colombo, he stayed with relatives. An older man living in the relatives’ house took Aru-lampalam’s identification card to the police station and registered him. On October 8, about a week after Arulampalam’s arrival, police came to the house and arrested him, marking the start of a 22-day detention with five days of torture.
Arulampalam’s identification was taken and he was blind-folded. While in custody, he was beaten with a pipe; his head was slammed against a wall; his throat was tied; and the police put gasoline in a shopping bag before placing the bag over Aru-lampalam’s head to make him breathe the fumes. Arulampalam was also' forced three times to assume a position whereby his arms were wrapped around his knees and his wrists tied together, following which a stick was inserted behind his knees so that he could be hung from two hooks in the ceiling and beaten on the soles of his feet with a plastic pipe. Aru-lampalam demonstrated this physical position to the IJ, explained how the restraints worked, and stated that he was “almost kind of unconscious” after being untied.
The police repeatedly questioned why Arulampalam came to Colombo and accused him of planning to plant a bomb. In Arulampalam’s opinion, he was suspected because he is Tamil and had recently arrived in Colombo. The police interrogators asked if Arulampalam belonged to the LTTE. He always replied in the negative. They responded: “So how do we believe you guys, we always, everybody’s saying this same thing, and after that, you throw bombs to us.” Arulampalam did not tell the police about the occasions when the
When Arulampalam was released on October 30, 2000, he was told that he had to sign a paper -written in Sinhala,
Arulampalam complied with this requirement without incident each week until May 21, 2001. On that day he was alerted that those who had gone to the police station for their sign-in were arrested. The IJ termed this information “some gossip from friends.” Asked why he thought the police were arresting people, Aru-lampalam replied: “Because they’re suspect, and suddenly, they may arrest people, and sometimes, they kill people.” Counsel pointed to record evidence of LTTE bombings in April 2001 and suggested that the government was rounding up Tamils in response.
On May 24, the day before he was due to report again, Arulampalam left Sri Lan-ka. His family paid an agent to get him to the United States. Arulampalam arrived at Honolulu airport on July 25 without proper travel documents. In an airport interview, he expressed fear of persecution if returned to Sri Lanka, stating that “I had a lot of trouble with the army and the government. They were beating us[;] that is why I wanted to escape.” Nine days later an asylum officer determined that Arulampalam had established a credible fear of persecution.
At petitioner’s removal hearing in Seattle on November 27, 2001, IJ Kendall Warren expressed frequent frustration at Arulampalam’s testimony, including tangential matters such as his use of Tamil words to describe various people and family relationships, as well as the complexity of place names in Sri Lanka: “more long words that are going to have to be spelled out.”
Although as a matter of course we do not excerpt removal hearings at length, it is appropriate in this case to do so, given the nature of the determinative credibility issue. Our reproduction of the following passages demonstrates the tenor of the exchanges between Arulampalam and the IJ, which compounded the fact that “most witnesses,” particularly uneducated, non-English speakers seeking asylum, “are uncomfortable and nervous when being cross-examined and, perhaps, when being questioned by a judge.” Singh-Kaur v. INS,
First, the IJ repeatedly expressed irritation about Arulampalam’s use of the Tamil word “annai” to describe older men. The judge instructed Arulampalam: “Let’s not talk about annais anymore because that doesn’t tell us anything.”
Similarly, after Arulampalam explained that the equivalent word for a female was “akkaa,” the IJ responded:
You said that about 15 times. What I want to know is, you referred to her [a woman who visited Arulampalam in the Colombo detention facility] as your ak-kaa, and I’m wondering what relation she is to you.
*683 A: My father’s brother’s daughter.
IJ: That would be your cousin, wouldn’t it?
A: We call her cousin.
IJ: Well, akkaa applies to every woman in Sri Lanka that’s older than you, right?
A: Yes.
IJ: That doesn’t tell us very much. It narrows it down to a few million women. So it’s more accurate to say — -if it’s your father’s brother’s daughter, it would be your cousin, wouldn’t it?
A: We call petiappa (phonetic sp.) daughter.
IJ to translator: What?
Translator: We call petiappa daughter.
IJ: Petiappa?
Translator: Petiappa. In Tamil, we call petiappa.
IJ: What does that mean? Doesn’t pe-tiappa have an interpretation?
Translator: It means my father, father — my father’s brother, I call petiap-pa.
IJ: Your father’s brother, would that mean — does petiappa mean uncle then?
Translator: No, in our language, we say petiappa.
IJ: Doesn’t it have a mean equivalent to something in English? Normally, your father’s brother is your uncle.
Translator: In English, we call uncle, but in our language, we call petiappa.
In addition, the degree of detail in Aru-lampalam’s testimony was a recurring point of contention. The IJ sometimes thought Arulampalam’s narrative was too specific, while at other junctures petitioner’s answers were deemed insufficiently precise.
As an example of the former, when describing his second abduction by the LTTE, Arulampalam began:
A: It was second time, on 28th, I was at the farm, then I have my shovel I take to the home, then I went from home.
IJ: So the second time, you were at your farm, and they came by to pick you up at the farm.
A: Yes.
IJ: Well, what about the shovel?
A: Yes, that’s what I use — I used my, my farm — the shovel.
IJ: What does the shovel have to do with your story? Why are you telling us about your shovel?
A: That’s the one I take at my house.
[ ... ]
IJ: Did you take your shovel with you to work on the bunker?
A: No.
IJ: I don’t understand why you even mentioned the shovel, sir. Why — what has the shovel got to do with your story?
A: Because I take that shovel from my farm to my house. I left the shovel at my house.
IJ: So when they picked you up at the farm, you said you had to stop by your house and drop off the shovel, is that it?
A: Yes, that’s the one I’m talking about.
IJ: Okay. [ ... ]
Later, the IJ focused on Arulampalam’s journey to Colombo:
Counsel: Now, do you need a pass to go from Vanai to Colombo?
A: Yes. We had to get the pass, but the annai get — he took me without taking a pass.
Counsel: So did you travel without a pass?
A: So I went to Vavuniya first.
Counsel: With your—
*684 IJ: [interrupts to ascertain spelling of Vavuniya and goes off the record]
IJ: We are back on the record. During the break between direct and cross, I’m going to go look in the World Atlas and see if there’s another spelling for Vavu-niya.
IJ to counsel: Go ahead. You asked him if he traveled without a pass.
Counsel: Right, and he said—
IJ: And typically, he wasn’t responsive.
Counsel: — he went to Vavuniya first.
IJ: He said he went to Vavuniya.
Counsel: And what happened in Vavuni-ya?
A: Nothing happen, but he make the pass or get the pass somewhere, but I don’t know how he get the pass.
Counsel: So did you travel from Vanai to Vavuniya without a pass?
A: Yes. I had to get the pass from Tigers to go to Vavuniya, but I didn’t obtain pass from the LTTE from there.
Counsel: So you went from Vanai to Vavuniya without a pass?
A: Yes.
Counsel: Okay.
IJ: You had a pass from the Tigers, but not from the army?
Counsel: No, he said he had to get a pass, but he didn’t get it. He was supposed to get a pass. Apparently, that’s a controlled area.
INS Counsel: Your Honor, he said he had to get a pass from the Tigers, not from the government.
Counsel: But he didn’t get it, he said.
IJ: Well I don’t know if he did or not. I’m going to play it back. As I said, this is really confusing testimony.
[Off the Record.]
IJ for the record: All right. I played it back, and apparently — well, what he did say was that he was supposed to get a pass from the Tigers to go to Vavuniya, but he did not get a pass from the LTTE, which would mean the same thing, so he did travel without a pass from Vanai to Vavuniya.
At other times, the IJ excoriated Aru-lampalam for failing to answer questions when in fact petitioner was endeavoring to do just that (and conveying clear information that the IJ missed while distracted by his exasperation). For example:
Counsel: What does it mean in your mind to join the Tigers?
A: I have two older sister and one younger sister. I have one younger brother. My father is old, so I am the responsible person for my family.
Counsel: What is—
IJ: Sir, you’re not answering the question.
IJ to translator: Did you interpret the question ... what does it mean to join the Tigers?
Translator: Yes, I did, Your Honor.
IJ: All right. Sir, I will repeat the question. What does that mean when you join the Tigers?
A: It’s too dangerous for my life.
IJ: What does it mean to join the Tigers?
A: I have brothers and sisters. I had to look after them.
[Off the record.]
IJ for the record: All right. We will try the question again. Maybe the respondent didn’t understand. We were asking for a definition of the word join.
This colloquy is a representative vignette of the proceedings: It was not until the end of the exchange that it became clear that what the IJ expected was an answer addressing the significance of the word “join,” as opposed to a description of the consequences Arulampalam perceived
After making an adverse credibility finding, discussed below, the IJ noted that even if Arulampalam’s story were credible, there was no reason to think that Arulampalam would be in danger if returned to Sri Lanka. No one else in his family has allegedly been persecuted.
DISCUSSION
I. Demeanor
Despite finding “no major inconsistencies in [Arulampalam’s] testimony,” the IJ made an adverse credibility finding based, inter alia, on “aspects of [his ] demeanor and method of answering questions.” While “we accord substantial deference to an IJ’s credibility finding!, ] ... [w]hen the IJ provides specific reasons for the questioning of a witness’s credibility, this court may evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible.” Mendoza Manimbao v. Ashcroft,
We conduct this evaluation mindful that the court is to “give special deference to a credibility determination that is based on demeanor.” Singhr-Kaur,
Without referring to specific portions of the transcript, the IJ cited Arulampalam’s “fragments of thoughts” as being “more consistent with someone who has memorized a story and then was repeating it but was leaving out certain portions.” It is improper for the IJ to have made “[generalized statements that do not identify specific examples of evasiveness or contradiction in the petitioner’s testimony.” Garrovillas v. INS,
Nonetheless, after perusing petitioner’s testimony, we conclude that, even were we to accord “special deference” to the IJ, “the record creates such a doubt as to[the so-called demeanor finding’s] validity that accepting it would be unreasonable.” Paredes-Urrestarazu,
Second, the IJ’s impugning of the manner in which Arulampalam’s testimony was delivered cannot displace the substantial evidence of its detailed and consistent content describing serious abuse. See In re B-, 21 I. & N. Dec. at 70 (“[W]hen we view the demeanor problem within the context of the whole record before us, we are impressed with the indications of the applicant’s truthfulness. The applicant’s testimony was consistent throughout.”). Compare In re A-S-, 21 I. & N. Dec. 1106, 1112 (BIA 1998) (“The instant case is not one in which the alien delivered halting and hesitant testimony which was nonethe
We observe that the IJ’s appraisal of petitioner’s “manner of speech, which was not spontaneous with linear thinking and goal-directed, logical responses to questions,” combined with the judge’s repeated interruption and browbeating of Aru-lampalam during his testimony, illustrated by the passages quoted above, bespeaks an insensitivity to petitioner’s cultural and educational background. Cf. Garrovillas,
II. Other Credibility Factors
In addition to his general and vague reliance on the form of Arulampalam’s testimony, the IJ commented on Arulampa-lam’s ignorance of what the initials LTTE stand for (despite his calling them “Tigers” and knowing the name of the sought Tamil homeland, “Eelam”); the improbability of his bypassing checkpoints on the way to Colombo; and his lack of knowledge of the registration procedure once in the city. These criticisms of Arulampalam’s testimony are grounded only in speculation by the IJ and cannot rebut petitioner’s credibility, for they are unsupported by the record.
To wit, the IJ’s “belie[f] that experienced soldiers would be able to guard against such easy evasion of [roadblocks]” is pure hypothesis, as are his estimation of what type of registration would be “acceptable to the police” and his observation that: “The Court feels that if [Arulampa-lam] had actually gone to Colombo and been registered, he would have understood what it meant, and he probably would have registered himself rather than some third party registering him, which would seem to defeat the purpose of registration and probably not be acceptable to the police.” See Salaam v. INS,
Nor does Arulampalam’s omission at the airport of specific details about his torture that were later revealed in his testimony support the adverse credibility finding. The airport interview was fully consistent with Arulampalam’s later testimony; the only difference was the level of detail. See Singh v. INS,
The government argues that Arulampa-lam “could have easily” corroborated “his dubious testimony regarding the alleged severe torture he suffered,” adding that “Arulampalam presented no documentation from any of the people who resided in [his cousin’s Colombo] house that he was in fact tortured.” We disagree with the related contention that this case is like Sidhu v. INS,
Moreover, the government distorts our holding in Sidhu by omitting two crucial elements. First, Arulampalam was not “given an opportunity at his IJ hearing to explain his failure to produce material corroborating evidence.” Id. at 1091. Second, “it is inappropriate to base an adverse credibility determination on an applicant’s inability to obtain corroborating affidavits from relatives or acquaintances living outside of the United States — such corroboration is almost never easily available.” Id. at 1091-92; see also Ladha v. INS,
In sum, a reasonable adjudicator would be compelled to conclude that the IJ’s adverse credibility determination is not supported by substantial evidence. See He v. Ashcroft,
CONCLUSION
Not long into Arulampalam’s testimony, the IJ admitted: “I’m totally lost. This is getting to be the most confusing testimony I’ve ever heard in one of these
PETITION GRANTED AND REMANDED.
Notes
. But see Amy Waldman, In New Proposal, Rebels Seek Territorial Autonomy in Sri Lanka, N.Y. Times, Nov. 2, 2003 (referring to a continuing February 2002 cease-fire).
. A State Department background note on Sri Lanka in the record indicates that the majority ethnic group (74% of the population) is Sinhalese and their language is Sinhala.
. But see Rios v. Ashcroft,
. For proceedings after remand, we note that ”[t]orture in the absence of any legitimate criminal prosecution, conducted at least in part on account of political opinion, provides a proper basis for asylum and withholding of deportation even if the torture served intelligence gathering purposes.” Ratnam v. INS,
As stated in In re S-P-, 21 I. & N. Dec. 486, 493 (BIA 1996): "In applying asylum law in the context of the Sri Lankan conflict, it is not an easy task to evaluate an asylum applicant's claim that harm was inflicted because of imputed political views rather than a desire to obtain intelligence information. There may have been, in fact, a combination of these motives.... The difficulty of determining motive in situations of general civil unrest should not, however, dimmish the protections of asylum for persons who have been punished because of their actual or imputed political views, as opposed to their criminal or violent conduct.”
. Compare In re B-, 21 I. & N. Dec. 66, 70 (BIA 1995) (the asylum applicant's "tendency during his testimony to look down at the table or at the wall behind the interpreter instead of at the Immigration Judge” did not necessarily indicate deception). We have also stressed that “labeling a finding one based on demeanor should not lead factfinders to believe that to make their findings almost totally unassailable they need only use the right incantation.” Paredes-Urrestarazu v. INS,
. We note that the transcription of these translated proceedings is often oddly truncated, with missing articles and verbs, making it appear that Arulampalam was speaking broken English, when in fact he was speaking his native tongue. Also, when the translator spoke directly to the IJ, his speech was transcribed similarly. On remand, some inquiry into the conformity of the transcript with Aru-lampalam’s actual testimony may be in order. Notably, the transcription service rendered the interpreter's translation far less fluently here than did a different transcription service in another Sri Lankan Tamil asylum case we heard involving the same interpreter and IJ.
Concurrence Opinion
Concurring and Dissenting:
I concur in the majority’s decision to grant the petition under the Torture Convention,
The BIA’s determination that an alien is not eligible for asylum must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias,
Here Arulampalam’s claim failed because the BIA, in reliance on the IJ’s decision, determined that Arulampalam was not credible. I am unable to say that the determination was not supported by substantial evidence in the record. Moreover, that lack of credibility went to the heart of Arulampalam’s asylum claim. See de Leortr-Barrios,
However, I agree that the BIA erred when it determined that Arulampalam was not entitled to relief under the Torture Convention. The standard under that Convention is not identical with the standard for asylum, and a person’s lack of credibility might result in denial of relief under the latter without absolutely foreclosing relief under the former. See Kamalthas v. INS,
Thus, I concur in part and dissent in part.
. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/RES/3 9/46-(l 984).
. Arulampalam asks that we consider IJ harassment as a reason for his impoverished testimony. However, he did not raise that claim before the BIA, so, in my opinion, we cannot consider it. See Rashtabadi v. INS,
. Because Arulampalam did not meet the requirements for eligibility for asylum, he was not entitled to withholding of removal either. See Ghaly,
