Bremini Santhalingam v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2309
BREMINI SANTHALINGAM,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A75-846-108)
Immigration Judge: Honorable Annie S. Garcy
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 2, 2009
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion Filed: September 3, 2009)
OPINION
PER CURIAM
Bremini Santhalingam petitions for review of the order of the Board of
Immigration Appeals (“BIA”) denying her motion to reopen her removal proceedings.
We will grant her petition.

-- 1 of 7 --

2
I.
Santhalingam is a native and citizen of Sri Lanka and an ethnic Tamil. She lived
in an area controlled by the rebel Liberation Tigers of Tamil Eelam (“LTTE”), which she
claims forced her to provide videotaped religious dance instruction for approximately six
years. She fled to the United States in 1997 and applied for asylum and withholding of
deportation on the grounds that she feared mistreatment both by the LTTE because she
left it without permission and by the Sri Lankan government for her affiliation with
LTTE. The Immigration Judge denied her application and ordered her removal to Sri
Lanka, the BIA dismissed her appeal, and we denied her petition for review. See
Santhalingam v. Ashcroft, C.A. No. 02-3244, 71 Fed. Appx. 911 (3d Cir. 2003).
In 2007, Santhalingam filed a motion to reopen with the BIA on the basis of
changed country conditions, asserting that persecution of LTTE members by the Sri
Lankan government recently had intensified as a result of a breakdown in a cease-fire
agreement. She asserted claims for asylum and withholding of removal under the
Convention Against Torture (“CAT”) on the grounds that the Sri Lankan government
would persecute or torture her on return because (1) she was affiliated with LTTE and (2)
she previously sought asylum in the United States, both of which she alleged the Sri
Lankan government would learn from the availability on the Internet of our previous
opinion. In support of her motion, she attached, inter alia, some fifty pages of reports and
articles issued between December 2006 and December 2007 documenting the recent

-- 2 of 7 --

We have jurisdiction under 8 U.S.C. § 1252. See Shardar v. Att’y Gen., 503 F.3d 308,1
311 (3d Cir. 2007). We review the BIA’s denial of reopening for abuse of discretion, and
may reverse only if it is “‘arbitrary, irrational, or contrary to law.’” Id. (citation omitted).
In doing so, we review any factual findings for substantial evidence, see id. at 311, and
review issues of law de novo, see Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir.
2007). In addition, “the [BIA] abuses its discretion when it fails to ‘consider and appraise
the material evidence before it.’” Shardar, 503 F.3d at 315 (citation omitted).
3
intensification in violence. The Government did not oppose her motion, but the BIA
denied it on April 14, 2008. Santhalingam petitions for review.1
II.
“There are both procedural and substantive hurdles that must be overcome in a
motion to reopen removal proceedings.” Shardar v. Att’y Gen., 503 F.3d at 313.
Procedurally, motions to reopen generally must be filed within 90 days of the final
administrative decision unless, inter alia, the motion is based on “‘changed circumstances
arising in the country of nationality . . . , if such evidence is material and was not
available and could not have been discovered or presented at the previous hearing[.]’” Id.
(quoting 8 C.F.R. § 1003.2(c)(3)(ii)). If that hurdle is cleared, the question becomes one
of substance—i.e., whether the petitioner has shown prima facie eligibility for or
entitlement to relief. See id. That standard requires a petitioner to show only a
“reasonable likelihood” of ultimately prevailing on her claims. Id. In this case, the BIA
denied reopening solely because it believed that Santhalingam had failed to show prima
facie eligibility for asylum or entitlement to withholding under CAT. The BIA abused its
discretion in both respects.

-- 3 of 7 --

4
A. Asylum
The BIA did not adequately consider the evidence that Santhalingam presented in
support of her asylum claim. The BIA denied reopening on this claim on the sole basis
that “the evidence reflects conditions that have prevailed in Sri Lanka before and since
[Santhalingam’s] last hearing in 1998.” As an initial matter, the BIA’s conclusion is a
non sequitur. If it were true that Santhalingam’s evidence showed only previously-
prevailing conditions in Sri Lanka, then that would mean that her motion is not based on
changed country conditions (and is thus untimely because it was filed more than 90 days
after the BIA’s previous ruling), not that it failed to show prima facie eligibility for relief.
See Shardar, 503 F.3d at 312 (explaining that the two issues are “related but analytically
distinct”). Thus, the BIA’s premise does not support its conclusion.
Even if it did, its premise is based on inadequate consideration of the record.
Santhalingam submitted numerous articles and other documents reporting a surge in
widespread persecution and torture of ethnic Tamils beginning in late 2006. These
documents include a 2007 Amnesty International report describing how the situation for
Tamils is “deteriorating dramatically.” (A.92.) She also included a 2006 United Nations
High Commission for Refugees report stating that “[a]ll asylum claims of Tamils from the
North or East should be favourably considered,” (A.108), that “[n]o Tamil from the North
or East should be returned forcibly until there is significant improvement in the security
situation in Sri Lanka,” (A.109), and that “[f]or those asylum-seekers from Sri Lanka

-- 4 of 7 --

5
whose claims were previously examined and were found not to be in need of international
protection, UNHCR recommends a review of their claims in light of the new
circumstances as described in this position,” (A.112) (emphasis added).
The BIA did not even mention any of this evidence, let alone adequately address it.
Instead, the sole evidence it referred to in this regard was a statement in a Human Rights
Watch article that, “‘[s]ince the outbreak of open conflict between the Sri Lankan
government and LTTE in the 1980s, ordinary civilians have borne the brunt of such
attacks on both sides.’” (BIA Dec. at 1) (quoting A.88). From that statement, the BIA
concluded that Santhalingam had shown only conditions that had prevailed at least since
1998 when she was last before the Immigration Judge. (Id.)
That stray statement, however, fails to account for all of Santhalingam’s other
evidence of dramatically escalating violence beginning in late 2006. Indeed, the very
same article goes on to state: “However, this is the first time since the 2002 ceasefire
agreement that the government has carried out a large-scale eviction process of Tamils
from the capital.” (A.88) (emphasis added). Thus, far from undermining Santhalingam’s
claim that conditions in Sri Lanka have changed, this article supports it. Accordingly, on
remand, the BIA should specifically address Santhalingam’s evidence to determine
whether her motion is based on changed country conditions. If so, the BIA should then
determine whether she has shown prima facie eligibility for relief under the substantive
asylum standards. See Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008); Shardar,

-- 5 of 7 --

6
503 F.3d at 315-16.
B. Withholding of Removal Under CAT
The BIA abused its discretion in denying reopening on Santhalingam’s CAT claim
as well. Santhalingam claims that she will be tortured both because the Sri Lankan
government will associate her with the LTTE and because she previously sought asylum
in the United States. She presented evidence supporting both aspects of her claim, but the
BIA did not adequately address either one. The BIA began by discussing two articles
regarding the British Government’s determination that LTTE sympathizers are at risk of
being tortured if returned to Sri Lanka. Those articles are relevant to the first aspect of
Santhalingam’s CAT claim. The BIA, however, never addressed whether Santhalingam
had made a prima facie showing on that aspect of her claim. Instead, it went on to
conclude from its discussion of articles relevant to the first aspect of her claim that she
had not made a prima facie showing on the second aspect of her claim—i.e., that she
would be tortured “because respondent sought asylum in the United States.” (BIA Dec. at
2.) The BIA did not explain the basis for that conclusion, and once again failed to
address the evidence that Santhalingam presented on that issue.
In addition, the BIA applied the wrong legal standard in determining whether
Santhalingam had made a prima facie showing on her CAT claims. The BIA concluded
that she had not because “[w]e do not find that the evidence presented is sufficient to
support a finding that . . . it is more likely than not that she would be tortured if she is

-- 6 of 7 --

When the ultimate relief sought is discretionary in nature (such as asylum), the BIA2
can bypass consideration of whether a petitioner has made a prima facie showing of
eligibility for relief and deny a motion to reopen on the grounds that, even if she has, she
would not be entitled to relief in the exercise of discretion. See Zheng, 549 F.3d at 266.
That principle does not apply to mandatory forms of relief such as withholding of
removal under CAT. See id.
7
removed to Sri Lanka.” (BIA Dec. at 2) (emphasis added). That is the burden
Santhalingam ultimately must carry to prevail on her CAT claim. See Fadiga, 488 F.3d at
160 n.27. At the reopening stage, however, a prima facie showing requires her to show
only a “reasonable likelihood” that she can meet that burden. Id. at 160. Thus,
“[a]lthough the Board stated that it was applying a ‘prima facie eligibility’ standard,” it
“in fact[] held [her] to a higher standard” that required her to prove her ultimate claim.
Id. We must remand for the BIA to apply the proper standard in the first instance. See
INS v. Ventura, 537 U.S. 12, 16-17 (2002).2
C. Conclusion
Accordingly, we will vacate the BIA’s order denying Santhalingam’s motion to
reopen. We remand for the BIA to decide whether to reopen her removal proceedings
after adequately considering her evidence and applying the proper legal standards to her
claims.

-- 7 of 7 --