Parnanthu v. Holder ( 2012 )

11-3261
Parnanthu v. Holder
BIA
Straus, IJ
A077 022 500
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 19th day of July, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _____________________________________
12
13 ARULTHAS PARNANTHU,
14 Petitioner,
15
16 v. 11-3261
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joseph A. Devamithran, Law Office of
24 Joseph A. Devamithran, Annandale,
25 Virginia.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Jamie M. Dowd,
1 Senior Litigation Counsel; Yanal
2 Yousef, Trial Attorney, Office of
3 Immigration Litigation; U.S.
4 Department of Justice, Washington,
5 D.C.
67 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Arulthas Parnanthu, a native and citizen of Sri Lanka,
12 seeks review of a July 12, 2011, decision of the BIA
13 affirming the February 17, 2011, decision of Immigration
14 Judge (“IJ”) Michael W. Straus, which denied his application
15 for asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Arulthas
17 Parnanthu, No. A077 022 500 (B.I.A. July 12, 2011), aff’g
18 No. A077 022 500 (Immig. Ct. Hartford Feb. 17, 2011). We
19 assume the parties’ familiarity with the underlying facts,
20 procedural history, and issues presented for review.
21 Under the circumstances of this case, we review the
22 IJ’s decision as supplemented by the BIA’s decision.
23 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
24 The applicable standards of review are well-established.
25 See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey,
26 519 F.3d 90, 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99,
2
1 110 (2d Cir. 2008).
2 The agency concluded that Parnanthu failed to
3 demonstrate a pattern or practice of persecution of Tamils
4 and declined to disturb its prior denial of CAT relief.
5 Parnanthu challenges only the agency’s denial of CAT relief.
6 We conclude that the agency reasonably determined that
7 Parnanthu did not sustain his burden of demonstrating his
8 eligibility for this form of relief because he failed to
9 establish that he will more likely than not be tortured if
10 returned to Sri Lanka. See 8 C.F.R. §§ 1208.16(c), 1208.17.
11 In his brief, Parnanthu argues that he is likely to be
12 tortured in Sri Lanka because he had been tortured in the
13 past. However, the agency previously found Parnanthu’s
14 claims of past harm not credible. In a previous petition
15 for review, we found that determination to be supported by
16 substantial evidence, Parnanthu v. Holder, 376 F. App’x 68,
17 69-70 (2d Cir. 2010), and the BIA left the adverse
18 credibility finding undisturbed in its July 2011 order, In
19 re Arulthas Parnanthu, No. A077 022 500 (B.I.A. July 12,
20 2011). Thus, Parnanthu’s allegations of past harm are
21 insufficient to give rise to an inference of future harm.
22 Moreover, in the section of his brief addressing
23 whether the agency’s CAT decision is supported by
3
1 substantial evidence, Parnanthu only advances an argument
2 that he will be tortured if returned to Sri Lanka predicated
3 on his discredited allegations of past harm. See
4 Ramsameachire v. Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004).
5 Accordingly, Parnanthu has failed to substantially contest
6 the agency’s finding that he did not establish a likelihood
7 of torture if returned to Sri Lanka and therefore has waived
8 any challenge to the agency’s denial of CAT relief. See
9 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
10 (2d Cir. 2005).
11 We decline Parnanthu’s invitation to address whether
12 there is a “duress defense” implicit in the definition of
13 the term “material support” in
14 Immigration and Nationality Act (“INA”) § 212(a)(3)(B)(iv)
15 (VI). As the agency noted, its brief discussion of the
16 issue was not essential to the resolution of this case. See
17 INS v. Bagamasbad, 429 U.S. 24, 25 (1976). Finally,
18 Parnanthu has not contested the dispositive grounds for the
19 denial of asylum and withholding of removal, namely, the
20 agency’s conclusions that he was not credible as to his past
21 persecution and had failed to demonstrate a pattern or
22 practice of persecution of returning Tamil asylum seekers.
23 As such, he has waived any challenge on the point. See
4
1 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).
2 For the foregoing reasons, the petition for review is
3 DENIED. Any pending request for oral argument in this
4 petition is DENIED in accordance with Federal Rule of
5 Appellate Procedure 34(a)(2) and Second Circuit Local Rule
6 34.1(b).
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
5