Ragutharan Panchalingam v. U.S. Attorney General , 521 F. App'x 820 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13506
Non-Argument Calendar
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Agency No. A200-615-723
RAGUTHARAN PANCHALINGAM,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(June 6, 2013)
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Ragutharan Panchalingam, a native and citizen of Sri Lanka, seeks review of
the Board of Immigration Appeals’ (BIA) final order affirming the Immigration
Judge’s (IJ) denial of his application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture (CAT). Panchalingam
argues he should be granted relief because (1) the IJ’s partial adverse credibility
finding is not supported by substantial evidence, (2) the IJ and BIA erred in
concluding he was not entitled to CAT relief, and (3) the IJ and BIA failed to
address his fear of future persecution due to an alleged pattern or practice of
persecution of Tamils. 1 After review, we deny the petition in part and remand in
part. 2
Issue One
We review factual determinations, which include credibility determinations,
under the substantial evidence test. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1254-
55 (11th Cir. 2006). The substantial evidence test requires us to “view the record
1
Panchalingam also contends the BIA erred by not considering his submission of
evidence regarding “failed asylum seekers” as a motion to reopen, and in determining that
“failed asylum seekers” do not constitute a particular social group. However, “[a] party
asserting that the [BIA] cannot properly resolve an appeal without further factfinding must file a
motion for remand,” which the BIA may grant “[i]f further factfinding is needed.” 8 C.F.R.
§ 1003.1(d)(3)(iv). Moreover, Panchalingam did not argue before the BIA that he would be
persecuted on account of his membership in a particular social group, and he cannot do so for the
first time on appeal. 8 U.S.C. §1252(d)(1) (“A court may review a final order of removal only if
. . . the alien has exhausted all administrative remedies available to the alien as of right.”).
2
“When the BIA issues a decision, we review the BIA’s decision, except to the extent
that the BIA has expressly adopted the IJ’s decision. In that instance, we review the IJ’s decision
as well.” Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (citation omitted).
2
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evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). We must affirm the BIA’s decision “if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Ruiz, 440 F.3d at 1254-55. Accordingly, for us to
conclude that a finding of fact should be reversed, we must determine that the
record “compels” reversal. Id. at 1255.
To establish eligibility for asylum relief, the alien must, with specific and
credible evidence, establish (1) past persecution on account of a statutorily listed
factor, or (2) a well-founded fear that the statutorily listed factor will cause future
persecution. 8 C.F.R. § 208.13(b).3 If the applicant relies solely on his testimony,
an adverse-credibility determination may be sufficient to support the denial of an
application. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). “If,
however, the applicant produces other evidence of persecution, whatever form it
may take, the IJ must consider that evidence, and it is not sufficient for the IJ to
rely solely on an adverse credibility determination in those instances.” Id. “[T]he
IJ must offer specific, cogent reasons for an adverse credibility finding.” Forgue,
3
On appeal, Panchalingam offers no argument that he fears he will be singled out for
future persecution on account of a protected ground. Accordingly, he has abandoned any claim
as to individualized future persecution. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228
n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on an issue, that issue is
abandoned.”).
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401 F.3d at 1287.4 Once the finding is made, “[t]he burden is on the applicant
alien to show that the IJ’s credibility decision was not supported by specific,
cogent reasons or was not based on substantial evidence.” Id. (quotations omitted).
The record evidence does not compel reversal of the IJ’s and BIA’s
determination that Panchalingam’s claim regarding past persecution lacked
credibility. Ruiz, 440 F.3d at 1255. While Panchalingam testified in conclusory
fashion that the Sri Lankan army soldiers targeted him because he was Tamil, he
offered no further evidence that he was persecuted on account of a statutorily
protected ground. Panchalingam himself testified that he was not active in any
social group, religion, or political party. Moreover, the IJ provided specific and
cogent reasons for finding Panchalingam’s claim that he was harmed in Sri Lanka
not credible, including, inter alia, Panchalingam’s confusing and vague testimony
and his scripted demeanor. Panchalingam has not met his burden to rebut those
reasons. Forgue, 401 F.3d at 1287. Based on the foregoing, the BIA did not err in
affirming the denial of Panchalingam’s application for asylum on the basis of past
persecution.
4
Pursuant to the REAL ID Act of 2005, for applications filed after May 11, 2005, a
credibility determination may be based on the totality of the circumstances, including: (1) the
demeanor, candor, and responsiveness of the applicant; (2) the plausibility of the applicant’s
account; (3) the consistency between the applicant’s written and oral statements; (4) the internal
consistency of each statement; and (5) the consistency of the applicant’s statements with other
record evidence, including country reports. 8 U.S.C. § 1158(b)(1)(B)(iii).
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Issue Two
The BIA’s conclusion that Panchalingam was not entitled to CAT relief was
also supported by substantial evidence in the record. Panchalingam testified in
conclusory fashion that, if he returned to Sri Lanka, he was in danger of being
attacked again by the army and by an individual named Mohan. However,
Panchalingam offered no further evidence of such danger, and thus did not show it
was more likely than not that he would be tortured if removed. See 8 C.F.R.
§ 1208.16(c)(2).
Issue Three
An applicant is deemed to have a well-founded fear of persecution and does
not need to show individualized persecution if: (1) there is a pattern or practice in
the applicant’s country of nationality “of persecution of a group of persons
similarly situated to the applicant on account of” a protected ground; and (2) “[t]he
applicant establishes his or her own inclusion in, and identification with, such
group of persons such that his or her fear of persecution upon return is reasonable.”
8 C.F.R. § 208.13(b)(2)(iii).
Panchalingam contends he proved his eligibility for asylum and withholding
of removal based on the “pattern or practice” of persecution of Tamils in Sri
Lanka. Although Panchalingam raised his “pattern or practice” claim before the IJ
and the BIA, neither the IJ nor the BIA addressed this theory. We remand to the
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BIA for the limited purpose of addressing the merits of Panchalingam’s pattern or
practice claim.
PETITION DENIED IN PART as to the claims based on past persecution
and as to the CAT claim, and REMANDED IN PART as to the claims based on
Petitioner’s fear of future persecution due to an alleged pattern or practice of
persecution of Tamils.
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