Peiris v. Lynch ( 2015 )

14-2316
Peiris v. Lynch
BIA
Nelson, IJ
A087 980 827/828
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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 21st day of December, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 HETTIARACHCHIGE VIDYA PEIRIS, AND
14 CHAMI DILANKA PEIRIS POLWATTAGE,
15 Petitioners,
16
17 v. 14-2316
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Visuvanathan Rudrakumaran, New
25 York, New York.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Cindy S.
29 Ferrier, Assistant Director; Surell
30 Brady, Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioners Hettiarachchige Vidya Peiris and Chami Dilanka
6 Peiris Polwattage, natives and citizens of Sri Lanka, seek
7 review of a May 28, 2014, decision of the BIA affirming an
8 October 6, 2011, decision of an Immigration Judge (“IJ”) denying
9 petitioners’ applications for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Hettiarachchige Vidya Viramanie Peiris and Chami Dilanka
12 Peiris Polwattage, Nos. A087 980 827/828 (B.I.A. May 28, 2014),
13 aff’g Nos. A087 980 827/828 (Immig. Ct. N.Y. City Oct. 6, 2011).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history in this case.
16 Under the circumstances of this case, we have reviewed the
17 IJ’s decision as modified by the BIA. Accordingly, we address
18 only the adverse credibility determination. Xue Hong Yang v.
19 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). In
20 reviewing that determination, we have considered all of the IJ’s
21 grounds for the ruling. Yun-Zui Guan v. Gonzales, 432 F.3d 391,
22 394 (2d Cir. 2005). The applicable standards of review are well
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 For asylum applications governed by the REAL ID Act, the
4 agency may, “[c]onsidering the totality of the circumstances,”
5 base a credibility finding on an asylum applicant’s “demeanor,
6 candor or responsiveness,” the plausibility of his or her
7 account, and inconsistencies in his or her statements, “without
8 regard to whether” they go “to the heart of the applicant’s
9 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey,
10 534 F.3d 162, 167 (2d Cir. 2008). “We defer therefore to an
11 IJ’s credibility finding unless, from the totality of the
12 circumstances, it is plain that no reasonable fact-finder could
13 make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d
14 at 167.
15 Substantial evidence supports the agency’s adverse
16 credibility determination, which was largely based on
17 implausible testimony. The agency reasonably found implausible
18 Peiris’s assertion that her husband was suspected of supporting
19 a terrorist group, given evidence that she later worked for the
20 Sri Lankan foreign ministry. We uphold an IJ’s implausibility
21 finding “unless we are left with the definite and firm
22 conviction that a mistake has been committed,” Ming Xia Chen
3
1 v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (internal quotation
2 marks omitted), as long as the finding is “tethered to record
3 evidence,” Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.
4 2007).
5 The agency’s implausibility finding is supported by
6 Peiris’s varying explanations for why she did not apply for
7 asylum in either Austria or the United Kingdom. At different
8 points in her testimony, she supplied at least two answers when
9 asked why she did not seek asylum in Austria, and three different
10 answers when asked why she did not seek asylum in the United
11 Kingdom. Petitioners contend on appeal that their failure to
12 apply for asylum in other countries is, under the circumstances
13 of her case, immaterial to petitioners’ eligibility for asylum
14 in the United States; however, the inconsistent answers on the
15 subject support the agency’s implausibility finding.
16 Peiris tried to explain her implausible testimony by
17 asserting that the army and the foreign ministry have no
18 communications with each other. The agency reasonably
19 declined to credit this explanation. Cf. Majidi v. Gonzales,
20 430 F.3d 77, 80-81 (2d Cir. 2005).
21 The agency also reasonably relied on Peiris’s and
22 Polwattage’s inconsistent account of the 2008 incident with
4
1 army officers. Peiris unambiguously testified that, when army
2 officers entered her house in 2008, they held her son at
3 gunpoint; Polwattage, however, testified that he was asleep and
4 only found out that soldiers had come after he woke up and found
5 his mother gone. This serious inconsistency supports the
6 agency’s adverse credibility determination. See Xian Tuan Ye
7 v. Dep’t of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006).
8 The agency did not, as petitioners argue, arbitrarily accept
9 Polwattage’s testimony over Peiris’s; rather it relied on the
10 inconsistency between the petitioners’ accounts to discredit
11 them both.
12 Considering the foregoing, the IJ’s adverse credibility
13 determination is supported by substantial evidence. 8 U.S.C.
14 § 1252(b)(4)(B); Xiu Xia Lin, 534 F.3d at 165-66. This finding
15 was sufficient to deny asylum, withholding of removal, and CAT
16 relief, as all three claims were based upon the same factual
17 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
18 2006). Further, to the extent that petitioners assert a claim
19 that Sri Lanka has a pattern or practice of persecuting persons
20 suspected of cooperating with terrorist groups, the adverse
21 credibility determination is dispositive. Unlike in Paul,
22 which involved an adverse credibility determination as to past
5
1 persecution but a determination that the petitioner testified
2 credibly regarding his religious identity, the agency’s adverse
3 credibility determination in this case was not bifurcated:
4 petitioners’ claims that they are suspected of cooperating with
5 a terrorist group are doomed by the credibility determination.
6 Cf. id.7 For the foregoing reasons, the petition for review is
8 DENIED.
9 FOR THE COURT:
10 Catherine O=Hagan Wolfe, Clerk
6