Arangesan Suntharalinkam v. Alberto R. Gonzales, Attorney General

458 F.3d 1034 Arangesan SUNTHARALINKAM, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent. No. 04-70258. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 10, 2006. Filed August 18, 2006. Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY, for the petitioner. Genevieve Holm (argued) and Cynthia Stone (briefed), U.S. Dept. of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent. Also on brief for the respondent, Lester M. Joseph and Michael E. Davitt, U.S. Dept. of Justice, Criminal Division, Washington, DC. On Petition for Review of an Order of the Board of Immigration Appeals. Before: WARDLAW and RAWLINSON, Circuit Judges, and CEBULL, * District Judge. WARDLAW, Circuit Judge: 1 Arangesan Suntharalinkam's petition for review lies at the intersection of the immigration and counterterrorism laws. Suntharalinkam, a 27-year-old male from northern Sri Lanka, petitions for review of the Board of Immigration Appeals' (BIA) summary affirmance of the immigration judge's (IJ) denial of Suntharalinkam's application for asylum, withholding of removal, and relief under the Convention…

Arangesan Suntharalinkam’s petition for review lies at the intersection of the immigration and counterterrorism laws. Sun *1038 tharalinkam, a 27-year-old male from northern Sri Lanka, petitions for review of the Board of Immigration Appeals’ (BIA) summary affirmance of the immigration judge’s (IJ) denial of Suntharalinkam’s application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), 8 C.F.R. §§ 1208.16-1208.18 . Suntharalinkam claims that he was persecuted by the Sri Lankan government because of its incorrect suspicion that he was a member of the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers), a terrorist organization at war with the Sri Lankan government; the government, in turn, claims that Suntharalinkam was never persecuted by the government, and is in fact a suspected Tamil Tiger who seeks to enter the United States to further that organization’s terrorist activities.

The IJ, apparently convinced by the government’s hypothesis, denied relief, but not on any legal ground related to terrorism. Instead, the IJ veiled his concerns about Suntharalinkam’s terrorist ties, denying his application for relief based on a contrived…

dissenting:

I respectfully dissent. I simply cannot agree that we are compelled to find Suntharalinkam credible. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003) (explaining the special deference accorded to the BIA’s credibility determination). As the majority opinion recognizes, so long as one of the Immigration Judge’s identified reasons for disbelieving Suntharalinkam is supported by substantial evidence and goes to the heart of the persecution claim, we must accept the Immigration Judge’s adverse credibility determination. Majority Opinion at 1040. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir.2004). Additionally, we have endorsed the concept of cumulative incredulity. See Pal v. INS, 204 F.3d 935, 938 (9th Cir.2000).

The majority opinion takes issue with the IJ’s finding that Suntharalinkam’s testimony regarding employment that was not included in his asylum application supported an adverse credibility finding. Majority Opinion at 1041. However, we have specifically recognized testimony that is inconsistent with the details of the asylum application as supporting an adverse credibility determination. See id.

The majority also faults the IJ for relying on the omission…