Rasiah v. Holder

Filing 920091209

Opinion

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var WPFootnote1 = 'Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H.\
Holder, Jr. has been substituted for former Attorney General Michael\
B. Mukasey as the respondent.\
'

var WPFootnote2 = 'See, e.g., U.S. Dep\'t of State, 2008 Country Reports on Human\
Rights Practices: Sri Lanka (released Feb. 25, 2009); Krishnapillai\
v. Holder, 563 F.3d 606, 609, 611-13, 620-21 (7th Cir. 2009);\
Balasubramanrim v. INS, 143 F.3d 157, 158-59 (3d Cir. 1998);\
Ravindran v. INS, 976 F.2d 754, 756 (1st Cir. 1992).\
'

var WPFootnote3 = 'In May 2009, the Sri Lankan government declared victory over the\
Tigers in the conflict, Vakeesan v. Holder, No. 08-3622, 2009 WL\
2591034, at *11, n.6 (6th Cir. Aug. 21, 2009) (citing Sri Lanka Says\
Leader of Rebels Has Died, N.Y. Times, May 18, 2009, at A4), so the\
situation of Tamils may have changed in recent months. \
'

var WPFootnote4 = 'The majority appears to fault Rasiah for not raising his pattern\
or practice claim orally at the hearing before the IJ, and instead\
raising this claim for the first time in a written memorandum\
submitted after the hearing. However, the majority fails to note\
that at the conclusion of Rasiah\'s testimony before the IJ, Rasiah\'s\
counsel asked to present oral argument. The IJ instructed counsel\
that "if you want to submit a closing, submit it in written form . .\
. ." In compliance with that instruction, Rasiah then filed a\
written memorandum of law in which he squarely raised his pattern or\
practice claim, citing to the governing regulations and the\
documentary evidence of country conditions he had submitted at the\
hearing. This memorandum was submitted prior to the IJ\'s issuance of\
her decision, and the government could easily have responded in a\
reply memorandum. Rasiah cannot be faulted for complying with the\
IJ\'s express instruction and presenting his argument in written form,\
rather than orally at the hearing.\
'

var WPFootnote5 = 'This claim of error applies with equal force to both the BIA\'s\
denial of Rasiah\'s initial appeal and its subsequent denial of his\
motion to reopen: in both decisions, the BIA deemed it unnecessary\
to address the merits of his pattern or practice claim in light of\
the IJ\'s adverse credibility finding. \
'

var WPFootnote6 = 'The IJ further found that the petitioner had not established\
that he had suffered past persecution, and noted inconsistencies in\
his accounts of alleged past persecution. Id. at 176.\
'

var WPFootnote7 = 'In denying Rasiah\'s motion to reopen, the BIA relied on Lemus\
v. Gonzales, 489 F.3d 399 (1st Cir. 2007), in which we held that the\
petitioner\'s motion to reopen could not succeed because, inter alia,\
she had not presented evidence rebutting the IJ\'s prior adverse\
credibility finding. We affirmed the BIA\'s denial of petitioner\'s\
motion to reopen, noting that "[t]o cinch matters, the newly\
proffered information does nothing to rehabilitate the petitioner\'s\
failed credibility -- and as said, the final administrative decision\
in this case hinged mainly on an adverse credibility determination." \
Id. at 401. In Lemus, however, the discredited testimony as to\
petitioner\'s past political activity was the very testimony\
underlying her asylum claim on the motion to reopen. Id. at 400-01. \
Here, the discredited testimony as to Rasiah\'s experiences of past\
persecution is entirely independent of his claim of future\
persecution based on a pattern or practice of persecution of Tamils.\
'

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