Mohamed Sifran Mubarack v. Eric H. Holder , 595 F. App'x 54 ( 2014 )

12-1331-ag
Mohamed Sifran Mubarack v. Eric H. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of December, two thousand fourteen.
PRESENT: JOSÉ A. CABRANES,
RAYMOND J. LOHIER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
MOHAMED SIFRAN MUBARACK,
Petitioner,
v.
No. 12-1331-ag
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
GENERAL,
Respondent.
FOR PETITIONER: Hsien Chih Kung, Benjamin B. Xue, Xue &
Associates, P.C., New York, NY.
FOR APPELLEE: Yedidya Cohen, Anthony C. Payne, Office of
Immigration Litigation; Stuart F. Delery,
Acting Assistant Attorney General; United
States Department of Justice, Washington,
D.C.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review of a Board of Immigration Appeals
decision is DENIED.
Mohamed Sifran Mubarack, a native and citizen of Sri Lanka, seeks review of a March 8,
2012 decision of the Board of Immigration Appeals (“BIA”) affirming the January 25, 2010 decision
of an Immigration Judge (“IJ”), which denied his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In re Mohamed Sifran Mubarack, No. A089
008 802 (BIA Mar. 8, 2012), aff’g No. A089 008 802 (Immig. Ct. N.Y. City Jan. 25, 2010) (“BIA
Decision”). We assume the parties’ familiarity with the underlying facts and procedural history in
this case.
Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s
decisions. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). The well-established standard of
review requires that we evaluate whether the BIA’s decision is supported by “reasonable, substantial
and probative evidence in the record.” Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); see 8
U.S.C. § 1252(b)(4)(B). The burden of proving eligibility for asylum and withholding of removal
rests with the applicant. See 8 U.S.C. § 1158(b)(1)(B); 8 U.S.C. § 1231(b)(3)(C).
Mubarack first claims that the Sri Lankan government persecuted him on account of the
political opinion it imputed to him. Because neither the IJ nor the BIA made an adverse credibility
determination, we assume that Mubarack’s testimony was credible. See 8 U.S.C. § 1158(b)(1)(B)(iii)
(“[I]f no adverse credibility determination is explicitly made, the applicant . . . shall have a rebuttable
presumption of credibility on appeal.”); Zaman, 514 F.3d at 237 n.3.
Pursuant to the REAL ID Act, in order to establish that he was persecuted “on account of”
a political opinion, Mubarack must show that the Sri Lankan government’s perception of his
political opinion, support for the Liberation Tigers of Tamil Eelam (“LTTE”), was “at least one
central reason” for his persecution. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); Acharya v. Holder,
761 F.3d 289, 296 (2d Cir. 2014). The persecution may be on account of an opinion imputed to
Mubarack by the Sri Lankan government, regardless of whether or not the imputation is accurate.
See Delgado v. Mukasey, 508 F.3d 702, 706 (2d Cir. 2007).
Mubarack testified that after being abducted by the LTTE, he was arrested by the Sri Lankan
military who tortured him at a military base. According to Mubarack, he told the military that he
had not supplied diesel to the LTTE, but gave the LTTE money instead, and that he could not
identify or locate the camp to which the LTTE had taken him. The military did not believe him, he
asserts, and began beating and torturing him for about an hour. Mubarack’s testimony continued:
At the end of the hour, the military asked Mubarack to identify the LTTE members who abducted
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him, and Mubarack responded that he would recognize them if he saw them, but did not know their
names or current whereabouts. He was then held and tortured by the military for five days. At the
end of the five days, he gave the military the names of three people in his village who, he believed,
had a connection to the LTTE, and was then released, with instructions to report to the military
camp every week. After his release, Mubarack traveled to Colombo and reported to the military
base there, but, upon being summoned by the military back to his home village, he feared he would
be killed and so arranged to travel to the United States instead. After Mubarack left Sri Lanka, the
army came to his parents’ house and threatened them on multiple occasions until his parents went
into hiding within Sri Lanka.
The IJ concluded that the Sri Lankan military did not subject Mubarack to past persecution
on account of a protected ground, but rather, interrogated him because he had information about
the LTTE. The BIA affirmed the IJ’s decision, concluding that the government persecuted him as a
result of its desire to obtain intelligence information, in light of the fact that the abuse was inflicted
upon Mubarack in conjunction with questioning and did not continue after intelligence had been
gathered.
In Matter of S-P-, a case involving the torture of a Sri Lankan individual by the government
after he was detained as a suspected LTTE member, the BIA discussed the difficulty of ascertaining
motive and whether “harm was inflicted because of imputed political views rather than a desire to
obtain intelligence information.” 21 I. & N. Dec. 486, 493 (BIA 1996). In Matter of S-P-, the BIA
“approved a ‘totality of the circumstances’ analysis for discerning persecutory motives.” Vumi v.
Gonzales, 502 F.3d 150, 157 (2d Cir. 2007) (quoting S-P-, 21 I. & N. Dec. at 494). Persecution based
on political opinion is established when there is “direct or circumstantial evidence” that one central
reason for the abuse was “an assumption that [the applicant’s] political views were antithetical to
those of the government.” S-P-, 21 I. & N. Dec. at 494; see 8 U.S.C. § 1158(b)(1)(B)(i).
In the case at bar, the BIA rested its conclusion that there was no nexus to a protected
ground on the fact that “[t]he abuse that was inflicted upon [Mubarack] was done in conjunction
with questioning as to the whereabouts of LTTE members,” Mubarack “was released after giving
the names of LTTE members in his village,” and “unlike the alien in Matter of S-P-, the harm
inflicted did not continue after the intelligence had been gathered.” BIA Decision at 2. We
conclude that these findings are not clearly erroneous. Moreover, these facts distinguish this case
from S-P-, and suggest instead that the questioning here was aimed at intelligence gathering rather
than political persecution. Because substantial evidence supported the BIA’s conclusion that
Mubarack “does not establish that an imputed political opinion was one central reason that he
suffered abuse at the hands of the Sri Lankan military,” id., and because, in any event, the evidence
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does not compel a contrary conclusion, this claim fails.1 8 U.S.C. § 1252(b)(4)(B); Suzhen Meng v.
Holder, 770 F.3d 1071, 1073 (2d Cir. 2014).
Mubarack’s remaining claims regarding a fear of future persecution on account of a
protected ground are similarly unavailing. The IJ and BIA found that the conflict between the Sri
Lankan government and the LTTE effectively ended in 2009. According to the BIA’s well-reasoned
decision, Mubarack failed to produce sufficient evidence that the Sri Lankan government currently
engages in a pattern and practice of persecution against suspected LTTE supporters and also failed
to adequately show that it is more likely than not that he would be tortured upon return to Sri
Lanka.
For the foregoing reasons, the petition for review is DENIED. As we have completed our
review, any stay of removal that the Court previously granted in this petition is VACATED, and any
pending motion for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1 In light of this determination, Mubarack is not entitled to shift the burden to the government
regarding his future persecution claims. See 8 C.F.R. § 1208.16(b)(1)(i).
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