USCA11 Case: 20-10003 Date Filed: 11/17/2021 Page: 1 of 19 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 20-10003 ____________________ PATHMANATHAN JATHURSAN, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A201-411-961 ____________________ USCA11 Case: 20-10003 Date Filed: 11/17/2021 Page: 2 of 19 2 Opinion of the Court 20-10003 Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges. JILL PRYOR, Circuit Judge: Pathmanathan Jathursan, a native and citizen of Sri Lanka, seeks review of the Board of Immigration Appeals’ (“BIA”) final or- der affirming the immigration judge’s denial of his application for asylum, withholding of removal, and relief under the United Na- tions Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). The BIA found no clear error in the immigration judge’s findings that Jathursan failed to establish (1) past persecution on account of a protected ground, (2) a well-founded fear of future persecution on account of a pro- tected ground, or (3) that he would more likely than not be tor- tured in the event he returned to Sri Lanka. Following oral argument, we grant Jathursan’s petition for review in part, vacate the BIA’s order in part, and remand to the BIA for further consideration of his asylum and withholding-of-re- moval claims based on his fear of future persecution as a Tamil failed asylum seeker. We also vacate and remand on the BIA’s de- nial of relief under CAT. We deny the petition on his claims for asylum and withholding of removal based on past persecution, however, because substantial evidence supported the BIA’s denial of relief on that ground. USCA11 Case: 20-10003 Date Filed: 11/17/2021 Page: 3 of 19 20-10003 Opinion of the Court 3 I. Jathursan, a native citizen of Sri Lanka, entered the United States without inspection in 2018. He was apprehended by Depart- ment of Homeland Security (“DHS”) patrol officers and expressed a fear of returning to Sri Lanka. After conducting a credible fear interview, DHS determined that Jathursan had a credible fear of persecution in Sri Lanka. DHS issued Jathursan a notice to appear, charging him with being removable under the Immigration and Naturalization Act. Jathursan conceded he was removable as charged. During his removal proceedings, Jathursan applied for asy- lum, withholding of removal, and CAT protection. He argued he had suffered past persecution and had a well-founded fear of future persecution in connection with a statutorily protected ground. The protected grounds Jathursan claimed were his Tamil race and/or ethnicity, 1 his imputed political opinion as a supporter of the Lib- eration Tigers of Tamil Eelam (“LTTE”), his imputed membership in the LTTE through his brother, and his status as a Tamil failed asylum seeker. 1 It is unclear from the record whether Jathursan wishes us to view “Tamil” as a race or as an ethnicity. In the record he referred to it as both. The immi- gration judge referred to Tamil as both …
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