Pocesta v. Holder , 554 F. App'x 43 ( 2014 )

12-3057
Pocesta v. Holder
BIA
Segal, IJ
A096 038 826
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
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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 5th day of February, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
RALPH K. WINTER,
REENA RAGGI,
Circuit Judges.
_____________________________________
BURIM POCESTA, AKA KRISHANTHA PEDURU SINGHEGE, AKA
KRISHANTHA GAYAN KUMARA PEDURU SINGHEGE,
Petitioner,
v. 12-3057
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua Bardavid, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Daniel E. Goldman,
Senior Litigation Counsel; Jem C.
Sponzo, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Petitioner Burim Pocesta, a native and citizen of Sri
Lanka, seeks review of a July 9, 2012, order of the BIA,
affirming Immigration Judge (“IJ”) Alice Segal’s April 21,
2011, denial of asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Burim
Pocesta, No. A096 038 826 (B.I.A. Jul. 9, 2012), aff’g No.
A096 038 826 (Immig. Ct. N.Y. City Apr. 21, 2011). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We have reviewed the IJ’s decision as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2005). The applicable standards of review are
well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
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I. Persecution by the LTTE--Changed Circumstances
An alien who, like Pocesta, demonstrates past persecution
benefits from the presumption of a well-founded fear of future
persecution. See 8 C.F.R. §§ 1208.13(b)(1). Once past
persecution is established, the burden rests firmly with the
government to rebut this presumption by showing, inter alia,
a “‘fundamental change in circumstances such that the
applicant’s life or freedom would not be threatened on account
of any of the five [protected] grounds ... upon the
applicant’s removal.’” Kone v. Holder, 596 F.3d 141, 147 (2d
Cir. 2010)(quoting 8 C.F.R. § 1208.16(b)(1)(i)-(ii)); accord
8 C.F.R. § 1208.13(b)(1)(i)-(ii). We review the agency’s
finding of a fundamental change in circumstances for
substantial evidence. Alibasic v. Mukasey, 547 F.3d 78, 86
(2d Cir. 2008).
Here, the agency’s finding that circumstances in Sri
Lanka had fundamentally changed is supported by the record.
See Niang v. Mukasey, 511 F.3d 138, 149 (2d Cir. 2007). While
the agency found that Pocesta had suffered past persecution at
the hands of the Liberation Tigers of Tamil Elam (“LTTE”), it
also found that State Department country reports demonstrated
that conditions in Sri Lanka have significantly changed since
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the end of the war in May 2009. See Hui Lin Huang v. Holder,
677 F.3d 130, 138 (2d Cir. 2012) (approving BIA’s reliance on
State Department country reports as best source for
information on country conditions); Hoxhallari v. Gonzales,
468 F.3d 179, 187 (2d Cir. 2006) (per curiam).
Though Pocesta argues that the agency failed to account
for post-war conditions, the IJ explicitly noted those
conditions, citing reports alleging that the LTTE has an
underground network and that certain parts of the country
remain military zones. Nevertheless, the IJ found that the
background evidence showed that the Sri Lankan government was
making efforts to curb LTTE activity. See Hui Lin Huang, 677
F.3d at 138; Hoxhallari, 468 F.3d at 187.
To the extent that Pocesta argues that while the
situation in Sri Lanka may be improving overall, the situation
in his hometown of Mannar is still very dangerous, he failed
to raise this issue below and it is thus unexhausted. See Lin
Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1(b) (2d
Cir. 2007). In sum, we conclude that the agency’s finding
that circumstances in Sri Lanka had fundamentally changed is
supported by substantial evidence. See Alibasic, 547 F.3d at
86.
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II. Persecution by the Sri Lankan Government
Pocesta also argues that the agency erred in finding that
he had not suffered past persecution at the hands of the Sri
Lankan government, and erred in finding he did not have a
well-founded fear of the government. Though he concedes that
his detention by the army did not constitute persecution, he
argues that they led the LTTE to target him, and the
persecution by the LTTE along with the army’s detention should
be considered cumulatively to show past persecution and/or a
well-founded fear of the Sri Lankan government.
However, contrary to Pocesta’s argument, the agency did
consider Pocesta’s harm cumulatively. See Poradisova v.
Gonzales, 420 F.3d 70, 79 (2d Cir. 2005) (requiring the agency
to consider the cumulative significance of events). While it
found Pocesta had suffered past persecution at the hands of
the LTTE, it also found that Pocesta had never been mistreated
when detained by the army, that the army never suspected him
of being an LTTE member, and thus there was neither harm nor
a nexus to find past persecution caused by the Sri Lankan
government. See 8 U.S.C. § 1101(a)(42). The agency also
reasonably found that Pocesta’s purported fear of the Sri
Lankan government was mere conjecture unsupported by the
record evidence, particularly given that he had provided the
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army with information against the LTTE. See Jian Xing Huang
v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (requiring “solid
support” in the record to find a well-founded fear of
persecution). Therefore, the agency did properly consider
Pocesta’s past harm in the aggregate in concluding that he
established neither past persecution nor a well-founded fear
of harm at the hands of the Sri Lankan government. Cf. Manzur
v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 290 (2d Cir.
2007). As Pocesta failed to establish his eligibility for
asylum, he necessarily fails to meet the higher burdens for
withholding of removal and CAT. See Paul v. Gonzales, 444
F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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