Kathaluwa Weligamage v. Holder ( 2012 )

10-3882-ag
Kathaluwa Weligamage v. Holder
BIA
Abrams, IJ
A088 526 180
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 9th day of May, two thousand twelve.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 ROBERT D. SACK,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 CHANDIMA ROSHAN DE SILV KATHALUWA
14 WELIGAMAGE,
15 Petitioner,
16
17 v. 10-3882-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Benjamin B. Xue, Esq., New York, New
25 York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Ada E. Bosque, Senior
29 Litigation Counsel; Jem C. Sponzo,
1 Trial Attorney; Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
9 review is DENIED.
10 Chandima Roshan De Silv Kathaluwa Weligamage, native
11 and citizen of Sri Lanka, seeks review of an August 31, 2010
12 decision of the BIA affirming the April 6, 2009 decision of
13 Immigration Judge (“IJ”) Steven R. Abrams denying his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re
16 Chandima Roshan De Silv Kathaluwa Weligamage, No. A088 526
17 180 (B.I.A. Aug. 31, 2010), aff’g No. A088 526 180 (Immig.
18 Ct. N.Y.C. Apr. 6, 2009). We assume the parties’
19 familiarity with the underlying facts and procedural history
20 of this case.
21 Under the circumstances of this case, we review only
22 the BIA’s decision because, unlike the IJ, the BIA assumed
23 Weligamage to be credible. See Yahong Zheng v. Gonzales,
24 409 F.3d 804, 809 (2d Cir. 2005). The applicable standards
25 of review are well-established. See 8 U.S.C. §
2
1 1252(b)(4)(B) (“[T]he administrative findings of fact are
2 conclusive unless any reasonable adjudicator would be
3 compelled to conclude to the contrary.”); Aliyev v. Mukasey,
4 549 F.3d 111, 115 (2d Cir. 2008) (reviewing agency’s factual
5 findings under substantial evidence standard).
6 The BIA has defined persecution as “a threat to the
7 life or freedom of, or the infliction of suffering or harm
8 upon, those who differ in a way regarded as offensive.”
9 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
10 overruled on other grounds by Matter of Mogharrabi, 19 I. &
11 N. Dec. 439 (BIA 1987); accord Baba v. Holder, 569 F.3d 79,
12 85 (2d Cir. 2009). The harm or suffering must be inflicted
13 in order to punish the individual for possessing a belief or
14 characteristic the persecutor seeks to overcome, and
15 inflicted either by the government or by persons or an
16 organization that the government is unable or unwilling to
17 control. See id. at 222; Rizal v. Gonzales, 442 F.3d 84, 92
18 (2d Cir. 2006). “[A]n IJ, weighing the evidence to
19 determine if the alien has met his burden, may rely on the
20 absence of corroborating evidence adduced by an otherwise
21 credible applicant unless such evidence cannot be reasonably
22 obtained.” Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.
23 2009); see 8 U.S.C. § 1158(b)(1)(B)(ii).
3
1 The agency reasonably found that Weligamage’s testimony
2 alone, even if credible, was insufficiently persuasive or
3 detailed to support his assertion that the harm he suffered
4 and feared in Sri Lanka was inflicted by members of the
5 United People’s Freedom Alliance National Party (“UPF”)
6 because of his membership in and canvassing for the United
7 National Party (“UNP”). See Chuilu Liu, 575 F.3d at 196–97.
8 Moreover, as the agency found, the country conditions
9 evidence in the record did not corroborate Weligamage’s
10 assertion that he was targeted on account of his membership
11 in the UNP or that similarly situated individuals are
12 targeted by members of the UPF. See Diallo v. INS, 232 F.3d
13 279, 288 (2d Cir. 2000) (stating that corroboration
14 “typically includes both evidence of general country
15 conditions and evidence that substantiates the applicant’s
16 particular claims”).
17 Moreover, although the agency overlooked an affidavit
18 submitted by a friend of Weligamage at whose house
19 Weligamage hid on two occasions, remand is unnecessary in
20 this situation because a review of that affidavit reveals
21 that it contains only the friend’s account of Weligamage’s
22 subjective understanding of the situation, and no extrinsic
23 evidence connecting the UPF to the attacks Weligamage
4
1 suffered. See Manzur v. U.S. Dep’t of Homeland Sec., 494
2 F.3d 281, 289 (2d Cir. 2007) (“This Court will decline a
3 remand as futile if we can confidently predict that the
4 agency would reach the same decision absent the errors that
5 were made.” (internal quotation marks and citations
6 omitted)).
7 In light of the above, the agency reasonably determined
8 that Weligamage failed to demonstrate either past
9 persecution or a well-founded fear of future persecution in
10 Sri Lanka. See 8 C.F.R. § 1208.13(b) (setting forth bases
11 for establishing eligibility for asylum). Additionally, the
12 agency did not err in questioning the objective
13 reasonableness of Weligamage’s claimed fear of persecution
14 in light of the fact that his father, who was also involved
15 with the UNP, and sisters remain unharmed in Sri Lanka. See
16 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
17 Accordingly, we find no error in the agency’s determination
18 that Weligamage failed to meet his burden of proof as to his
19 claims for asylum and withholding of removal. See 8 U.S.C.
20 § 1158(b)(1)(B)(ii); 8 U.S.C. § 1231(b)(3)(C); see also
21 Chuilu Liu, 575 F.3d at 198–99.
22 Finally, as Weligamage failed to demonstrate a
23 likelihood of being persecuted, the agency did not err in
5
1 finding that he failed to establish his eligibility for CAT
2 relief, where his claims were based on the same factual
3 predicate and supported by the same evidence. See Paul v.
4 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
16
6