Zimmer's Books

by William K. Zimmer, in Immigration Matters

The procedural history, facts of record, holding and rationale in Jeevithan Arulnanthy v. Garland (5^th Cir. November 8, 2021) No. 19-60760 are as follows:

 

Case History

The Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) alleging that the Petitioner was subject to removal for entering the country at an impermissible location and without the required documentation. See section 212(a)(6)(A)(i), (7)(A)(i)(I) of the Immigration and Nationality Act, as amended (“the Act”).

The Petitioner conceded the charges against him, and the Immigration Judge found him removable.

The Petitioner then applied for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) under sections 208, 241(b)(3)(A) of the Act  and 8 C.F.R. § 1208.16(c).

The Immigration Judge denied the Petitioner’s relief applications and issued a removal order.

The Petitioner appealed to the Board of Immigration Appeals (“BIA”).

The BIA dismissed the Petitioner’s appeal.

The Petitioner then filed a petition for review and then filed an emergency motion for a stay of removal.

The Fifth Circuit Court of Appeal denied the stay which resulted in the removal of the Petitioner from the United States during the pendency of the petition for review.

 

Facts

The Petitioner is a native and citizen of Sri Lanka and a member of the Tamil minority in Sri Lanka.

The Petitioner departed from Sri Lanka in June 2018 and entered the United States without inspection along the United States border with Mexico.

The Petitioner was detained upon being apprehended, and within three weeks an asylum officer conducted a credible fear interview pursuant to section 235(b)(1)(B) of the Act.

At his credible fear interview, the Petitioner stated that he had two encounters with the Criminal Investigation Department (“CID”) of the Sri Lanka Police:

1. On January 3, 2018, CID officials “came to [his] home,” “took [him] to their office,” and “kept [him] for two days and beat [him]” while telling him he “should not contest the election and [should] not be involved in public issues.”
2. On May 19, 2018, after the Petitioner attended a “memorial function” the previous day, CID officials once again came to his house but found only his mother there.

At the end of the credible fear interview, the asylum officer asked the Petitioner if he would like to alter or add to his statement and if there was anything else of import that they had not yet discussed.

The Petitioner responded “No” to both questions.

The asylum officer determined that the Petitioner had established a credible fear of persecution based on his political opinion as a supporter of the Tamil National Alliance Party.

The Petitioner was subsequently placed in removal proceedings.

After conducting a hearing on the Petitioner’s relief application, the Immigration Judge found that the Petitioner was not a credible witness based on three omissions and discrepancies:

1. The Petitioner had testified to the Immigration Judge that CID officers visited his home on January 3 and that he went to their office on his own. But he said in his credible fear interview that they took him to the office against his will.
2. The Petitioner had testified that the next time he encountered the CID was on May 10 when officers visited his home and spoke with his mother, but never mentioned this event in his credible fear interview.
3. The Petitioner had told the IJ that CID officers personally spoke with and threatened him on May 19 after he attended the memorial service, but he told the asylum officer conducting the credible fear interview that he was not home for that incident and had only heard about it from his mother.

 

Held

Petition for Review DENIED

Remanded for consideration of objective evidence relating to the Petitioner’s CAT application.

 

Rationale

The Petitioner asserted multiple challenges to the decisions of the BIA and Immigration Judge.  Some were dismissed as unexhausted (i.e. not asserted) during administrative appellate proceedings before the BIA.

For the purpose of this summary, only the rationales relating to the most salient rulings are addressed.

 

Jurisdiction

The Government asserted that because Congress provided for judicial review of “a final order of removal” under section 242(a)(1) of the Act, that “[i]n cases challenging [such an order], the petitioner’s removal from the United States generally renders the petition moot.” Mendoza-Flores v. Rosen, 983 F.3d 845, at 847 (5th Cir. 2020); see also FDIC v. Belcher, 978 F.3d 959, at 961 n.1 (5th Cir. 2020) (“[M]ootness is a jurisdictional question.”).

The Fifth Circuit Court of Appeal pointed out that that a petitioner’s removal does not moot his petition for review when “the petitioner would suffer collateral legal consequences from the challenged decision.” Mendoza-Flores, 983 F.3d at 847.

The Fifth Circuit Court of Appeal then reasoned that a petition for review does not become moot upon the removal of a petitioner from the United States under section 240 of the Act (i.e. removal proceedings) due to a “concrete disadvantage” imposed by the minimum 5 year waiting period needed to avoid the ground of inadmissibility under section 212(a)(9)(A)(i) of the Act that would occur if the removal order became final.  Alwan v. Aschroft, 388 F.3d 507, at 511 (5th Cir. 2004).   See Jeevithan Arulnanthy v. Garland, at 6, 7 (November 8, 2021) No. 19-60760.

 

Reliance on Credible Fear Interview Transcripts

The Petitioner asserted that it is inappropriate for an immigration court to rely on credible fear interview transcripts to determine credibility. See Zhang v. Holder, 585 F.3d 715, at 724–25 (2d Cir. 2009) (explaining that credible-fear interviews “warrant . . . close examination” and that “adverse credibility determinations based on ‘discrepancies’ with a credible fear interview should be examined with care to ensure that they are not arbitrary”).

The Fifth Circuit Court of Appeal rejected this argument based on fifth circuit precedent, as follows:

• “To the extent the Arulnanthy contends credibility can never be challenged by reference to a credible-fear worksheet, we have already rejected that argument." See Singh v. Sessions, 880 F.3d 220, at 226 (5th Cir. 2018) (relying on inconsistencies between the petitioner’s credible-fear interview and his hearing testimony to uphold an adverse credibility determination).
• Furthermore, based on the factual record under review, the asylum officer had asked follow up questions to enable the Petitioner to develop his account, and there is no indication that he was reluctant to reveal relevant information or that he was unable to understand the questions asked.
• The Petitioner’s alternative explanations for inconsistencies, based in part on the nature of the credible fear interview, such as its nature and brevity, were rejected based on Singh v. Sessions, and one was dismissed for failure to exhaust the argument by presenting it to the BIA.

See Jeevithan Arulnanthy v. Garland, at 9, 10 (November 8, 2021) No. 19-60760.

 

Blanket Rejection of All Testimony

The Fifth Circuit Court of Appeal held that an adverse credibility finding operates as a blanket rejection of every piece of testimony the applicant had offered and, therefore, precludes an asylum applicant from establishing a subjective fear (i.e. a required element of “well founded fear” in addition to an objective or reasonable fear) of persecution.

The Fifth Circuit Court of Appeal explained as follows:

• An asylum claim based on fear of future persecution requires subjective fear in addition to objective or reasonable fear.  See Cabrera v. Sessions, 890 F.3d 153, at 159–60 (5th Cir. 2018); 8 C.F.R. § 1208.13(b)(2)(i).
• Although some asylum claims are entitled to a presumption of well founded fear (including the subjective and objective or reasonable fear components) based on proof of past persecution, as provided in 8 C.F.R. § 1208.13(b)(1), the Petitioner is not entitled to that presumption.  Instead, he must prove his subjective fear to qualify for asylum.
• The Petitioner’s lack of credibility precluded him from doing so because, unless otherwise specified by the Immigration Judge or the BIA, an adverse credibility finding operates as a blanket rejection of every piece of testimony the applicant has offered.  See v. Holder, 569 F.3d 531, at 539-40 (5th Cir. 2009); Herrera Morales v. Sessions, 860 F.3d 812, at 816–17 (5th Cir. 2017); Zhang v. Gonzales, 432 F.3d 339, at 343–45 (5th Cir. 2005).   If none of the Petitioner’s testimony is credible, the Petitioner cannot possibly establish a subjective fear of persecution.
• This blanket approach is the only way to make sense of the text and structure of section 208 (b)(1)(B)(iii) of the Act.  In other words, unless an adverse credibility determination “acts as a rejection of all the applicant’s testimony, it’s hard to see what work § 1158(b)(1)(B)(iii) is doing.”
• Therefore, as a general matter, an adverse credibility determination is a rejection of every part of an applicant’s testimony unless the Immigration Judge or BIA says otherwise.

See Jeevithan Arulnanthy v. Garland, at 13-15 (November 8, 2021) No. 19-60760.

 

Consideration of Objective Evidence Relating to the CAT

According to the Fifth Circuit Court of Appeal, the immigration court and the BIA must consider objective evidence, such as “[e]vidence of gross, flagrant or mass violations of human rights within the country of removal” and any “[o]ther relevant information regarding conditions in the country of removal” in its likelihood-of-torture assessment, as required by 8 C.F.R. § 1208.16(c)(3) relating to a CAT application, regardless of a negative credibility finding with regard to asylum and withholding applications:

• CAT claims are “distinct from asylum and withholding-of-removal claims and should receive separate analytical attention.” Santos-Alvarado v. Barr, 967 F.3d 428, at 436 (5th Cir. 2020) (quotation omitted); see also Efe v. Ashcroft, 293 F.3d 899, at 907 (5th Cir. 2002) (cautioning against “overreliance on an adverse credibility ruling” in the CAT context).
• The BIA violated the CAT regulations, in particular 8 C.F.R. § 1208.16(c)(3), by ignoring the Petitioner’s hundreds of pages of evidence about country conditions in Sri Lanka.
• Regulations codified at 8 C.F.R. § 1208.16(c)(3) contain no exception for cases of adverse credibility determinations.
• Therefore, the BIA’s failure to consider Sri Lanka country condition evidence was error.

See Jeevithan Arulnanthy v. Garland, at 15, 16 (November 8, 2021) No. 19-60760.

 

Commentary

The Fifth Circuit Court of Appeal reviews adverse credibility findings using the “substantial evidence” standard.  Under the substantial evidence standard, an appellate court will uphold an adverse credibility finding “unless it is clear[] from the totality of the circumstances” that a “reasonable adjudicator would be compelled to conclude to the contrary.” See section 242(b)(4)(B) of the Act; Morales v. Sessions, 860 F.3d 812, at 817 (5th Cir. 2017).  Obviously, this is a heavy burden which seemingly must be carried up-hill from the perspective of any Petitioner.

Credible fear interviews of potential asylum applicants, most of whom are not represented by an attorney, can be treacherous.  I have never met an immigration attorney who felt comfortable about a client talking to the government without legal representation.  Nevertheless, an immigration attorney cannot do anything about a client's  credible fear interview that has occurred before the attorney is retained. 

An alien may consult with any person prior to a credible fear interview.  In addition, any person with whom the alien consults may be present at the interview and, in the discretion of the asylum officer who is conducting the interview, may present a statement at the end of the interview.  However, governing regulations make no provision for active participation of a legal representative in the interview itself.  See 8 C.F.R. § 208.30(d)(4).

It seems that one obvious lesson immigration practitioners should learn from Jeevithan Arulnanthy v. Garland is to make sure their clients’ asylum applications and testimony are materially consistent with credible fear hearing transcripts, and be prepared to support any minor discrepancies with objective evidence and cogent explanations.  Of course, it is imperative that all supporting evidence and explanations be captured in the record of proceedings.

The conditions in which a credible fear interview takes place and the manner in which it is conducted can be challenged, but don’t wait to challenge it in a petition for review.  Clearly, the integrity of a credible fear interview that adversely affects a client’s applications for relief should be challenged before the Immigration Judge and the BIA and made part of the record of proceedings.

Another observation that comes to mind is that, although the Immigration Judge and the BIA can rely on section 208(b)(1)(B)(ii) and (iii) of the Act to discard all of an asylum seeker’s testimony based on any “inconsistency” or “inaccuracy” all is not lost if trustworthy evidence other than the asylum seeker's testimony can be substituted. 

Proving subjective fear will be difficult, but not impossible to prove without credible testimony from the asylum applicant.  For example, outcry, and declarations to other credible persons as well as behavior witnessed by credible persons might be used to rescue an otherwise lost application.  Don't overlook post traumatic stress evaluations by a psychiatric professional.  

Anything is possible, but not everything is probable.

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