Sixth Circuit Overturns Denial of Asylum to Sri Lankan Man
We’ve blogged before about the frequent need for legal translators and interpreters in asylum cases, as well as for immigration translation services in all languages. In Thayaparan v. Sessions, the petitioner, a Sri Lankan man, filed a petition for review after the Board of Immigration (BOI) upheld the immigration judge’s denial of his asylum claim.
In September of 2015, the petitioner, a native and citizen of Sri Lanka, applied for admission to the United States. The petitioner was a married carpenter with three children and did not have any valid documents upon entering the U.S. The petitioner stated he was fearful of returning to Sri Lanka and was interviewed by an asylum officer after expressing this fear.
The petitioner was subsequently served with a Notice to Appear and, after consulting with counsel, admitted all of the factual allegations in the Notice. The petitioner also conceded that he was, in fact, a candidate for removal from the United States.
The petitioner then applied for asylum, withholding of removal, and protection pursuant to the Convention Against Torture Act (CAT).
Petitioner Claims Persecution in Sri Lanka
In support of his persecution claim, the petitioner alleged that he was in danger due to his Tamil ethnicity and because the Sri Lankan government erroneously believed that the petitioner belonged to a Tamil rebel group known as the “Liberation Tigers of Tamil Eelam” or LTTE. This rebel group, which the petitioner was alleged to be a member of, opposed the Sinhalese government.
The petitioner supported his persecution claim with examples of several compelling incidents he experienced while living in Sri Lanka. For example, the petitioner reported that in 1993, he was accused of being involved in creating a bomb that killed a defense minister. The petitioner believed he was falsely accused as being involved in the bombing because of his ethnicity and the fact that he was believed to be a member of the LTTE rebel group. As a result of his suspected involvement in the bombing, the petitioner and his coworkers were arrested and detained by the government. The petitioner was imprisoned for five months and even tortured.
In 1996, the petitioner and his family were forced to flee their hometown and the petitioner was arrested after a masked man mistakenly identified him as a rebel. The petitioner was eventually let go after his wife and father in law paid a bribe to secure his release. Petitioner was arrested again in 2009 and held for almost two years at an army camp until 2011. In 2014, the petitioner was investigated by the government yet again and required to report to the local police station on the first Monday of every month. He was also forbidden to leave the area. The petitioner stopped reporting to the police station for fear that he would be kidnapped and held for ransom. When the petitioner stopped reporting, the government came to his home and beat his wife and his son and demanded to know where the petitioner was. The petitioner then hid at a relative’s house until he left the country in May of 2015.
Immigration Judge Denies Asylum
The petitioner testified and had the assistance of a Tamil interpreter at his hearing before the immigration judge. Following the hearing, the immigration judge found the plaintiff not credible due to certain inconsistencies in his testimony. The judge also found that the petitioner had not established a well-founded fear of persecution and reasoned that he had been able to safely relocate to a relative’s home. Accordingly, the judge denied the petitioner protection under CAT.
The Board Upholds Denial of Asylum
The Board held that the immigration judge’s decision was not erroneous and that the “totality of the circumstances” supported the denial of asylum. Specifically, the Board held that there was insufficient evidence of a “pattern or practice” of persecution against Tamils in Sri Lanka. The Board further held that the petitioner had failed to establish that he was otherwise eligible for asylum or withholding of removal independent of the judge’s credibility finding. The petitioner then sought review with the Sixth Circuit.
Sixth Circuit Court of Appeals Vacates Board’s Decision
On review, the petitioner argued that the Board’s decision was erroneous because the credibility findings were not supported. The petitioner also argued that he had, in fact, established a “pattern and practice” of persecution against Tamils in Sri Lanka and that the Board wrongfully denied his asylum claim under CAT.
The Sixth Circuit found that the Board’s credibility determination regarding the petitioner’s testimony on past persecution was not erroneous.
However, the sixth circuit disagreed with the immigration judge and Board’s determination that the petitioner had not established a well-founded fear of future persecution. The sixth circuit found that the petitioner’s claims warranted a closer inspection. The court pointed to several reports establishing the well-documented discrimination against Tamils in Sri Lanka. For example, the court pointed to the International Truth and Justice Project on Sri Lanka Report from 2016 which stated that “human rights violations by the security forces continue with impunity and a predatory climate against Tamils prevails” and noted the occurrence of abductions of Sri Lankan Tamils as a mechanism for encouraging Tamils to flee the country.
The sixth circuit also took issue with the immigration judge’s reasoning that the petitioner was able to live safely with a relative, noting that the petitioner did not leave the relative’s home during his stay with the relative out of fear for his safety and further noted that the petitioner was specifically targeted over his wife and children due to his status as a middle-aged Tamil male.
Finally, the court noted that the petitioner had submitted evidence of the existence of an arrest warrant for him in Sri Lanka but that the immigration judge had failed to consider this factor in light of the petitioner’s claim. The arrest warrant submitted to the court was not fully translated from Sinhalese to English, but a relevant portion was translated to English to state that the warrant was being issued against the petitioner in Sri Lanka for “charges under the prevention of Terrorism Act.” Based on the foregoing, the sixth circuit court of appeals granted the petitioner’s petition for review, vacated the Board’s decision, and remanded the matter for further proceedings.
The case is Kanapathippillai Thayaparan v. Sessions, Case No. 16-4232, decided on May 8, 2017 in the United States Court of Appeals for the Sixth Cir.
Get in touch with All Language Alliance, Inc. to request a legal translator or interpreter for asylum cases dealing with English interpretation of testimony provided in Tamil, Sinhalese, Cantonese, Russian, Mandarin, Spanish, and other foreign languages.
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