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Date: 10-11-2021
Case Style:
SENTHOORAN MURUGAN v. U.S. ATTORNEY GENERAL
Case Number: 19-13715
Judge: Elizabeth L. Branch
Court: IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
Atlanta, Georgia - Immigration lawyer represented defendant with the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture
(CAT) claims.
Murugan is a native and citizen of Sri Lanka and a member of the country’s
Tamil minority. In September 2017, he fled Sri Lanka and subsequently entered
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3
the United States without authorization. Murugan claims that he left Sri Lanka
because of three incidents involving the Sri Lankan Army.
The first incident occurred in February 2017. Murugan was arrested while
returning home from work and questioned by Sri Lankan soldiers about what he
was doing alone late at night, where he had come from, and where he was going.
He was not harmed, but he was detained at an army camp and told that he would
be released only if his parents came to pick him up. Murugan’s parents came to
pick him up the next morning, and he was released.
Then, in June 2017, Murugan was arrested, along with two others, while
distributing humanitarian aid to refugees who had come to his village from Vanni,
Sri Lanka.1
He was brought to an army camp, tied to a chair, and interrogated for
four days. The soldiers wanted to know whether Murugan had a prior connection
to the refugees because the refugees came from a part of Sri Lanka that was under
the control of the Liberation Tigers of Tamil Eelam (LTTE). Murugan denied
having a prior connection to the refugees.
During the interrogation, Murugan was repeatedly slapped in the face and
kicked in the thigh, and he later testified that he thought he was going to be killed.
After four days of interrogation, Murugan’s parents and neighbors secured his
1 The refugees had been displaced by the Sri Lankan civil war, which was fought between
the Sri Lankan government and the Liberation Tigers of Tamil Eelam. See Lingeswaran v. U.S.
Att’y Gen., 969 F.3d 1278, 1283 (11th Cir. 2020).
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release. Before the army released Murugan, they warned him not to tell the media
or any human rights organization about his mistreatment and that they would be
monitoring him going forward.
After his release, Murugan was hospitalized for two days and received
x-rays of his legs and arms, a blood test, and pain medication. He also attended
mental health counseling because he had stopped speaking or eating following his
detention. Murugan did not report his arrest to the police or any other government
authority.
Finally, in August 2017, soldiers came to Murugan’s home, arrested him,
and brought him to an army camp. There, they asked him why he had continued to
help the Vanni refugees after he was warned not to do so during his previous
arrest. Murugan denied the accusation that he had continued to help the refugees,
but the soldiers did not believe him and threatened to bring him to the “fourth
floor”—an army torture camp for prisoners affiliated with the LTTE.
After six hours of detention, Murugan was released. He testified that he was
released because his parents had come to the camp and begged the army to release
him. After his release, Murugan’s parents told him that his life was in danger and
that the two people who had been arrested along with him back in June 2017 had
been re-arrested and sent to the “fourth floor.” Murugan’s parents sold land and
family jewelry to get Murugan out of the country. He left Sri Lanka on his own
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passport, under his own name, in September 2017 and entered the United States in
November 2017.
II. Procedural History
In December 2017, the government issued to Murugan a notice to appear,
alleging that he was removable as “an alien present in the United States who ha[d]
not been admitted or paroled.”2
Murugan then applied for asylum, withholding of
removal, and CAT relief. He alleged past persecution and a well-founded fear of
future persecution based on an imputed political opinion and membership in the
particular social groups of Tamils and returned asylum seekers.3
He also later
testified that if he returned to Sri Lanka, he feared he would be arrested at the
airport and then tortured and killed.
2
We decline Judge Martin’s invitation to use a term other than “alien” in this opinion.
Rather, we use the term “alien” as it is the statutory term chosen by Congress. See Nat’l Broiler
Mktg. Ass’n v. United States, 436 U.S. 816, 827 (1978) (“[A] statute is not an empty vessel into
which this Court is free to pour a vintage that we think better suits present-day tastes.” (quotation
omitted)); Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en banc) (“[T]he role of the
judicial branch is to apply statutory language, not to rewrite it.”); In re Davis, 565 F.3d 810, 823
(11th Cir. 2009) (“Our function is to apply statutes . . . not to improve statutes by altering them.”
(quotation omitted)); see also Abakporo v. U.S. Att’y Gen., No. 20-12750, 2021 WL 3598346, at
*7 (11th Cir. Aug. 13, 2021) (Branch, J., concurring); Davis v. Gregory, No. 20-12716, 2021
WL 2944462, at *4 (11th Cir. July 14, 2021) (Branch, J., concurring); Jean-Louis v. U.S. Att’y
Gen., No. 20-12082, 2021 WL 2885838, at *2 (11th Cir. July 9, 2021) (Branch, J., concurring);
Rivera v. U.S. Att’y Gen., No. 20-13201, 2021 WL 2836460, at *7 (11th Cir. July 8, 2021)
(Branch, J., concurring).
3 Although Murugan also alleged persecution based on race, he did not provide evidence
for that claim before the IJ.
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After a removal hearing before an IJ on May 16, 2018, where Murugan
conceded removability, the IJ issued a written decision denying Murugan’s
application for asylum, withholding of removal, and CAT relief. The IJ found that
the harms Murugan suffered did not rise to the level of past persecution. He also
found that Murugan failed to demonstrate a well-founded fear of future
prosecution, noting that “[t]he record is devoid of evidence demonstrating that his
fear of persecution would be objectively reasonable,” or a pattern or practice of
persecution of Tamils or returned asylum seekers in Sri Lanka. In particular, the IJ
found that Murugan failed to “offer[] any evidence, other than his own testimony,
that any individuals have indicated they would single him out and harm him upon
returning to Sri Lanka,” that “the record indicates that [Murugan’s] family remains
unharmed in Sri Lanka,” and that the government had established that Murugan
could “safely relocate within Sri Lanka and that it is reasonable to expect him to do
so.”
Moreover, the IJ further found that Murugan failed to establish that he was
or would be persecuted on account of a statutorily protected ground. Specifically,
Murugan failed to demonstrate a nexus between the alleged persecution and an
imputed political opinion because he “provided no evidence, direct or
circumstantial, that anyone imputed or would impute any political opinion to him.”
As to his membership in the particular social groups of Tamils and returned asylum
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seekers, the IJ similarly found “insufficient evidence that [Murugan] faced
persecution based on his Tamil ethnicity,” and that the proposed group of returned
asylum seekers was “overbroad and not socially distinct.” Finally, the IJ rejected
Murugan’s application for withholding of removal and CAT relief because he
failed to establish eligibility for asylum.
Murugan appealed the IJ’s decision to the BIA. He argued that he provided
sufficient evidence to show past persecution and that there was a pattern or practice
of persecution of Tamils and returned asylum seekers in Sri Lanka. He also argued
that he provided sufficient evidence to demonstrate a nexus between the alleged
persecution and an imputed political opinion or membership in the particular social
groups of Tamils and returned asylum seekers. Lastly, Murugan argued that he
had provided sufficient evidence of a pattern or practice of persecuting Tamils and
returned asylum seekers in Sri Lanka and argued that it would be unreasonable for
him to relocate within Sri Lanka.
The BIA adopted and affirmed the IJ’s decision. It concluded that “a single,
brief detention and a longer 4-day detention during which [Murugan] was
interrogated, slapped, and kicked—does not constitute persecution.” It also
concluded that the IJ did not clearly err in finding that Murugan failed to establish
a well-founded fear of future persecution on account of a protected ground and that
“[n]othing the Sri Lankan army said or did indicated any political or other
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protected motive.” Finally, the BIA agreed that Murugan failed to establish that
there was a pattern or practice of persecution of Tamils in Sri Lanka and that the
government had met its burden of demonstrating Murugan’s ability to relocate
safely. Because Murugan failed to establish his eligibility for asylum, the BIA
concluded that he failed to establish eligibility for withholding of removal or CAT
relief.
III. Standard of Review
“When the BIA issues its own decision, we review only that decision, except
to the extent the BIA expressly adopts the IJ’s opinion or reasoning.” Lopez v.
U.S. Att’y Gen., 914 F.3d 1292, 1297 (11th Cir. 2019). We review the BIA’s legal
conclusions de novo and its factual findings for substantial evidence. Lingeswaran
v. U.S. Att’y Gen., 969 F.3d 1278, 1286 (11th Cir. 2020). “[W]e must affirm the
BIA’s factual findings so long as they are supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (quotation omitted).
And we may reverse the BIA’s factual findings only if the evidence compels that
conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); see 8 U.S.C.
§ 1252(b)(4)(B) (noting that the BIA’s factual findings “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”).
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IV. Analysis
To be eligible for asylum, Murugan was required to prove that he is a
“refugee.” 8 U.S.C. § 1158(b)(1)(B)(i). A refugee is a person who is “unable or
unwilling” to return to his home country “because of [past] persecution or a wellfounded fear of [future] persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); see Al Najjar v. Ashcroft, 257 F.3d 1262, 1287 (11th Cir. 2001),
overruled on other grounds by Patel v. U.S. Att’y Gen., 971 F.3d 1258 (11th Cir.
2020) (en banc). We agree with the BIA that Murugan failed to establish past
persecution or a well-founded fear of future persecution. But even if Murugan
could establish past persecution or a well-founded fear of future persecution, he
also failed to establish that the persecution was or would be on account of race,
religion, nationality, membership in a particular social group, or political opinion.
A. Past Persecution
Murugan argues that the BIA erred in concluding that he failed to
demonstrate past persecution. “[P]ersecution is an extreme concept that does not
include every sort of treatment our society regards as offensive.” Gonzalez v.
Reno, 212 F.3d 1338, 1355 (11th Cir. 2000) (quoting Ghaly v. INS, 58 F.3d 1425,
1431 (9th Cir. 1995)). In particular, “[m]inor physical abuse and brief detentions
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do not amount to persecution.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341,
1353 (11th Cir. 2009).
Substantial evidence supports the IJ’s conclusion that the harms Murugan
suffered do not rise to the extreme level of persecution. Murugan was detained
three times and, during the longer 4-day detention, was tied to a chair, slapped, and
kicked. These harms, while serious, do not rise to the level of persecution. See id.
(holding that an alien who was detained for four days and beaten and interrogated
for five hours did not demonstrate past persecution); Djonda v. U.S. Att’y Gen.,
514 F.3d 1168, 1171, 1174 (11th Cir. 2008) (holding that an alien who was
arrested, beaten, detained for 36 hours, hospitalized for two days, and threatened
with re-arrest did not demonstrate past persecution).
Murugan separately argues that the BIA erred in its analysis of past
persecution by failing to consider the mental harms he suffered from his detention
and interrogation. But the IJ discussed Murugan’s mental harms in his opinion,
and substantial evidence supports the IJ’s conclusion that the harms that Murugan
suffered —both physical and mental—do not rise to the extreme level of
persecution. Murugan offered little testimony as to his mental harms other than
that he received counseling two or three times. He confirmed that he was not
provided with any diagnosis related to the counseling and that he did not have any
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problems presently other than “fear.” Accordingly, Murugan failed to establish
that he suffered past persecution.
B. Future Persecution
Murugan next argues that the BIA erred in concluding that he failed to
demonstrate a well-founded fear of future persecution. An alien who establishes
past persecution is presumed to have a well-founded fear of future persecution. 8
C.F.R. § 1208.13(b)(1). But absent a showing of past persecution, an alien must
show that he has a “subjectively genuine and objectively reasonable” fear of future
persecution if returned to his home country.4
Al Najjar, 257 F.3d at 1289.
The objective prong can be satisfied with “specific, detailed facts showing
[that the alien has] a good reason to fear that he . . . will be singled out for
persecution” on account of a statutorily protected ground. Id. at 1290 (quotation
omitted). An alien can also establish a well-founded fear of future persecution
(and does not need to show an individualized risk of persecution) if he proves a
pattern or practice of persecuting “a group of persons similarly situated to
[himself].” 8 C.F.R. § 1208.13(b)(2)(iii). To prove the existence of a pattern or
4 An alien does not have a well-founded fear of persecution if they “could avoid future
persecution by relocating to another part of the . . . country . . . if under all the circumstances, it
would be reasonable to expect [them] to do so.” Kazemzadeh, 577 F.3d at 1352. Because we
conclude that Murugan failed to demonstrate an objectively reasonable fear of future
persecution, we do not address the BIA’s determination that Murugan could relocate within Sri
Lanka.
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practice of persecution, the alien must prove that the mistreatment of persons
similarly situated is “extreme and pervasive.” Lingeswaran, 969 F.3d at 1291.
Substantial evidence supports the BIA’s and the IJ’s conclusions that
Murugan failed to demonstrate a well-founded fear of future persecution.
Murugan failed to establish an individualized risk of persecution because he failed
to point to any evidence showing that he would be singled out for persecution if
returned to Sri Lanka.
Murugan also failed to demonstrate a pattern or practice of persecution of
persons similarly situated to himself. In Lingeswaran, we rejected a similar claim
and held that “the mistreatment of Tamils in Sri Lanka is not so extreme and
pervasive as to establish a pattern or practice of persecution.” 969 F.3d at 1291.
Here too, the record does not compel the conclusion that there is a pattern or
practice of persecution of Tamils or returned asylum seekers in Sri Lanka.
The dissent contends that the IJ (and subsequently the BIA) “ignored”
evidence that Murugan submitted related to the country conditions in Sri Lanka in
late 2018 (the “2018 evidence”), after concluding that the materials Murugan
submitted were “outdated.” But this blanket assertion that the IJ ignored all of
Murugan’s supporting materials because they were outdated misrepresents the
record. The IJ stated that “some of the country conditions evidence submitted by
[Murugan] [were] outdated and therefore [did] not support [Murugan’s] argument
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that he will currently be subject to persecution in Sri Lanka.” Plainly, by using the
word “some,” the IJ acknowledged that Murugan submitted other, more recent,
evidence. And the IJ listed the 2018 evidence in the list of “documentary
evidence” he considered. Further, the IJ stated that he had considered “the entire
record carefully,” and that “[a]ll evidence has been considered, even if not
specifically discussed further in [the] decision.” See Jeune v. U.S. Att’y Gen., 810
F.3d 792, 803 (11th Cir. 2016) (“[W]hile the agency is required to consider all
evidence that a petitioner has submitted, it need not address specifically each claim
the petitioner made or each piece of evidence the petitioner presented.” (quotation
omitted)); see also Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1376 (11th Cir. 2006)
(explaining that an “[IJ] is not required to discuss every piece of evidence
presented before him”). And the IJ cited on several occasions to Exhibit 8 in his
analysis—as did the BIA—which was some of the 2018 evidence Murugan
submitted. Thus, the record clearly establishes that the agency considered
Murugan’s 2018 evidence.
The 2018 evidence details how Sri Lanka’s President Maithripala Sirisena
suddenly fired the prime minister and appointed as the new prime minister former
President Mahinda Rajapaksa—whose former presidency was marred by a series
of human rights abuses and issues, many of which involved Tamils. The dissent
relies on this 2018 evidence to conclude that the “record clearly contains sufficient
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evidence of serious human rights abuses by the Sri Lankan government against
Tamils” in support of Murugan’s claim of a well-founded fear of future
persecution. However, whether there was “sufficient evidence” to support
Murugan’s claim is not the applicable standard of review. Rather, we are limited
to determining whether the agency’s decision is supported by substantial evidence.
Lingeswaran, 969 F.3d at 1286. Under the highly deferential substantial evidence
standard, we review the evidence in the light most favorable to the agency’s
decision and draw all reasonable inferences in favor of that decision. Silva v. U.S.
Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). Contrary to what one may
discern upon reading the dissent, we cannot “reweigh the evidence from scratch.”
Id. (quotation omitted); Al Najjar, 257 F.3d at 1278 (“Courts of appeal sit as
reviewing bodies to engage in highly deferential review of BIA and IJ
determinations. Commensurate with this role, we cannot engage in fact-finding on
appeal[.]” (internal citations omitted)). Thus, we will reverse findings of fact “only
when the record compels a reversal.” Silva, 448 F.3d at 1236 (quotation omitted);
see also Elias-Zacarias, 502 U.S. at 481 n.1.
Importantly, even assuming arguendo that the record may support a contrary
conclusion (as the dissent alleges), as we have said repeatedly, that fact alone “is
not enough to justify a reversal of the administrative findings.” Silva, 448 F.3d at
1236 (quoting Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)). But to
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be clear, the record does not support the position advanced by the dissent. The
2018 evidence—that the record establishes the IJ considered—at best establishes
concern that, because Rajapaksa was appointed the new prime minister, abuses
similar to those that occurred in the past against Tamils under Rajapaksa’s
presidency will occur again. Speculation that such abuses may occur again based
on evidence of past “serious problems and abuses” does not satisfy Murugan’s
“very high burden of establishing a current pattern or practice of persecution.”5
(emphasis added). In other words, although Murugan provided evidence of
“serious problems and abuses perpetrated by the Sri Lankan government” in the
past, the record does not compel the conclusion that the agency erred in its
findings.
C. Nexus Requirement
Murugan also argues that the BIA erred in determining that he failed to
demonstrate past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion (the “nexus requirement”).
6
5 Murugan and the dissent also contend that the IJ applied the wrong legal standard to
determine whether a pattern or practice of persecution of Tamils or returned asylum seekers
exists in Sri Lanka. We lack jurisdiction to consider this argument because Murugan failed to
exhaust it before the BIA. See 8 U.S.C. § 1252(d)(1); see also Jeune, 810 F.3d at 800; AmayaArtunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
6 Relatedly, Murugan contends that the BIA misinterpreted Gaksakuman v. U.S. Att’y
Gen., 767 F.3d 1164 (11th Cir. 2014), which Murugan maintains supports his argument that he
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To be eligible for asylum, an alien must show a nexus between the alleged
persecution and a protected status—“that race, religion, nationality, membership in
a particular social group, or political opinion was or will be at least one central
reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i) (emphasis
added). To show a nexus, the alien must “present specific, detailed facts showing a
good reason to fear that he . . . will be singled out for persecution on account of”
the statutorily protected ground. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286
(11th Cir. 2005) (quotation and emphasis omitted).
Murugan maintains that a “context sensitive” analysis “compels a conclusion
that imputed political opinion was one of the central reasons for the harm to which
would be imputed with a political opinion if returned to Sri Lanka. In Gaksakuman, we noted
that the petitioner’s “evidence tended to prove that any Sinhalese who sought asylum would be
perceived as affiliated with the [LTTE] regardless of actual association.” 767 F.3d at 1171
(emphasis added). Nevertheless, despite our statement as to what Gaksakuman’s evidence
“tended to prove,” we remanded that case for further proceedings because the BIA failed to give
“reasoned consideration” to Gaksakuman’s application, and we could not review the evidence in
the first instance to determine whether he was likely to suffer torture if returned to Sri Lanka. Id.
Unlike in Gaksakuman, Murugan does not make any reasoned consideration argument here (nor
could he do so legitimately because it is clear that the agency gave reasoned consideration to his
application). Thus, any alleged misinterpretation of Gaksakuman is not relevant here because
the issues on appeal in this case are different from those in Gaksakuman.
The dissent asserts that Murugan’s brief assertion that the IJ “disregarded” his 2018
evidence “as too old” and erred “by failing to take into account probative evidence” is “enough
under our precedent” to constitute a reasoned consideration argument. We disagree. As an
initial matter, Murugan is represented by counsel, and therefore is not entitled to liberal
construction of his brief. As such, the passing references in Murugan’s counseled brief
highlighted by the dissent, which are unaccompanied by any supporting legal analysis, are
insufficient to raise a reasoned consideration argument. But even if he raised such an argument,
as we explained previously, the agency gave reasoned consideration to his application.
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[he] was subjected.”7
But the record does not compel the conclusion that an
imputed political opinion was or would be a central reason for Murugan’s
persecution. Murugan asserted in his application for asylum and in his credible
fear interview that, during his detention in Sri Lanka, the army officials had asked
him about his connection with the LTTE and why he helped the refugees from
Vanni. But when Murugan’s counsel asked Murugan at the merits hearing on his
application whether the army questioned Murugan about whether he was involved
in the LTTE, Murugan responded: “No, no, no, they were just suspecting and that
they were saying that I had contact with these people during war time.” This
testimony undercut his prior assertions. And in light of Murugan’s conflicting
statements, we cannot say that the BIA lacked a substantial basis for its conclusion
that Murugan’s fear of persecution on account of the allegedly imputed political
opinion was not well-founded. See Al Najjar, 257 F.3d at 1290 (“The denial of
asylum may be reversed only if the evidence presented by the applicant is so
powerful that a reasonable factfinder would have to conclude that the requisite fear
of persecution exists.” (quotation omitted)).8
7 By “context-sensitive” analysis, Murugan simply means that “[w]hether or not
something is political must be determined in the historical context of the country at issue.”
8 Murugan also argues that: (1) the IJ applied the wrong legal standard to its analysis of
whether he demonstrated the required nexus between the alleged persecution and a statutorily
protected ground; (2) the IJ erred in considering his family’s continued safety in Sri Lanka
because it was irrelevant to his well-founded fear of future persecution; and (3) the BIA failed to
consider the intersection between his status as a putative failed asylum seeker and his past help to
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* * *
Because the BIA did not err in its conclusions that Murugan failed to
demonstrate past persecution, a well-founded fear of future persecution, or a nexus
between the alleged persecution and a protected ground, it properly denied his
claim for asylum. And because Murugan failed to demonstrate an entitlement to
asylum, “he necessarily fail[ed] to establish eligibility for withholding of removal
or protection under CAT.” Forgue, 401 F.3d at 1288 n.4; see Al Najjar, 257 F.3d
at 1292–93, 1303.
Outcome: For these reasons, we dismiss in part and deny in part Murugan’s petition for
review.
Plaintiff's Experts:
Defendant's Experts:
Comments: