SENTHOORAN MURUGAN versus U.S. ATTORNEY GENERAL

Atlanta, Georgia - Immigration Appeals lawyer represented Petitioner with petitioning for review of a decision of the Board of Immigration Appeals (BIA), affirming the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture charge.

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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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)). 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.

For these reasons, we dismiss in part and deny in part Murugan’s petition for

review.



PETITION DISMISSED IN PART AND DENIED IN PART.