Seenithamby Rasaiah v. Holder , 592 F. App'x 13 ( 2014 )

13-2484
Seenithamby Rasaiah v. Holder
BIA
Straus, IJ
A097 849 218
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of November, two thousand fourteen.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 GUIDO CALABRESI,
9 REENA RAGGI,
10 Circuit Judges.
11 _____________________________________
12
13 KOMALA SEENITHAMBY RASAIAH,
14 Petitioner,
15
16 v. 13-2484
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, NY.
24
25 FOR RESPONDENTS: Stuart F. Delery, Assistant Attorney
26 General; Michael P. Lindemann,
27 Chief; Aaron R. Petty, Counsel for
28 National Security, National Security
29 Unit, Office of Immigration
30 Litigation, United States Department
31 of Justice, 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
4 is GRANTED, in part, and DENIED, in part.
5 Komala Seenithamby Rasaiah, a native and citizen of Sri
6 Lanka, seeks review of a June 7, 2013, order of the BIA
7 affirming the February 15, 2012, decision of Immigration
8 Judge (“IJ”) Michael W. Straus denying her application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Komala
11 Seenithamby Rasaiah, No. A097 849 218 (B.I.A. June 7, 2013),
12 aff’g No. A097 849 218 (Immig. Ct. N.Y. City Feb. 15, 2012).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by the BIA. See Yan Chen
17 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because
18 Seenithamby Rasaiah has not challenged the agency’s
19 pretermission of her asylum application as untimely, we
20 address only her eligibility for withholding of removal and
21 CAT relief.
22
23
2
1 I. Withholding of Removal
2 A. Change in Conditions
3 An alien who demonstrates past persecution benefits
4 from a presumption that her life or freedom would be
5 threatened in the future, as required for a grant of
6 withholding of removal. See 8 C.F.R. § 1208.16(b)(1)(i).
7 The government may rebut this presumption if it shows a
8 “fundamental change in circumstances such that the
9 applicant’s life or freedom would not be threatened” upon
10 removal. 8 C.F.R. § 1208.16(b)(1)(i)(A), (ii). The
11 government must prove the fundamental change by a
12 preponderance of the evidence, and we review the agency’s
13 conclusion for substantial evidence. Lecaj v. Holder, 616
14 F.3d 111, 115, 116 (2d Cir. 2010).
15 The agency neither provided a reasoned basis for
16 concluding that the government rebutted the presumption of
17 persecution, nor conducted an individualized analysis of how
18 changed conditions would affect Seenithamby Rasaiah’s
19 specific situation. See Passi v. Mukasey, 535 F.3d 98, 102
20 (2d Cir. 2008); Niang v. Mukasey, 511 F.3d 138, 148-49 (2d
21 Cir. 2007). The IJ found that Seenithamby Rasaiah had been
22 persecuted by the Sri Lankan army on account of both her
3
1 Tamil ethnicity, and the political opinion the army imputed
2 to her – that she supported the LTTE. While the IJ
3 summarized the evidence regarding a change in conditions, he
4 did not make any specific finding as to what fundamental
5 change the evidence showed, or how the change was relevant
6 to Seenithamby Rasaiah’s situation. The IJ also concluded
7 that there was no evidence that officials in Sri Lanka
8 continued to look for Seenithamby Rasaiah. However, the
9 burden was not on Seenithamby Rasaiah to show that she would
10 be targeted, as persecution was presumed, but on the
11 government to rebut the presumption and show that her life
12 or freedom would not be threatened. See 8 C.F.R
13 § 1208.16(b)(1)(i)(A), (ii).
14 Furthermore, the IJ’s conclusion that the government
15 met its burden to show, by a preponderance of the evidence,
16 a fundamental change in conditions is not supported by
17 substantial evidence, as the evidence shows that the Sri
18 Lankan army still subjects those it suspects of supporting
19 the LTTE to abuse and torture. See Lecaj, 616 F.3d at 116.
20 Accordingly, the agency erred in its conclusion that the
21 government demonstrated that there had been a fundamental
22 change in Sri Lanka such that Seenithamby Rasaiah’s life or
23 freedom would not be threatened.
4
1 B. Material Support Bar
2 Aliens who have “engaged in a terrorist activity” are
3 statutorily ineligible for withholding of removal under both
4 8 U.S.C. § 1231(b)(3) and the CAT. See 8 U.S.C.
5 §§ 1231(b)(3)(B)(iv), 1227(a)(4)(B) (withholding under
6 § 1231(b)(3)); 8 C.F.R. § 1208.16(d)(2) (withholding under
7 the CAT). Engaging in a terrorist activity includes, among
8 other things, committing an act that “the actor knows, or
9 reasonably should know, affords material support” to a
10 designated terrorist organization. 8 U.S.C.
11 § 1182(a)(3)(B)(iv)(VI). We lack jurisdiction to review an
12 agency determination that an alien is subject to the
13 terrorist activity bar, 8 U.S.C. § 1158(b)(2)(D),1 but
14 retain jurisdiction to review questions of law and
15 constitutional claims, 8 U.S.C. § 1252(a)(2)(D), and review
16 those claims de novo. See Rosario v. Holder, 627 F.3d 58,
17 61 (2d Cir. 2010). Seenithamby Rasaiah argues that the
18 terrorist activity bar does not apply to her because the aid
19 she provided the LTTE was involuntary, and there is an
1
Although this statute relates to asylum
applications, see 8 U.S.C. § 1158(b)(2)(D), we assume for
the purposes of this order that that the jurisdictional
bar extends to review of the denial of withholding of
removal. In any event, Seenithamby Rasaiah avoids the
jurisdictional bar by raising a question of law.
5
1 implied duress exception to the bar. Her argument raises a
2 question of law regarding the construction of the statute
3 and thus is subject to judicial review. See id.4 We recently remanded to the BIA the same issue in Ay v.
5 Holder, 743 F.3d 317 (2d Cir. 2014). For the reasons we
6 stated in that decision, principally the ambiguity of the
7 statute and lack of precedential decision by the BIA, we
8 find it prudent to remand for the BIA to “address the matter
9 in the first instance in light of its own expertise.”
10 Negusie v. Holder, 555 U.S. 511, 517 (2009)(internal
11 quotation marks omitted).
12 II. CAT Relief
13 Lastly, the agency did not err in denying CAT relief.
14 Unlike the standards for asylum and withholding of removal,
15 where a finding of past persecution gives rise to a
16 presumption of future persecution, past torture does not
17 give rise to a presumption of future torture for the purpose
18 of CAT eligibility. Instead, evidence of past torture
19 serves only as evidence relevant to the possibility of
20 future torture. See 8 C.F.R. § 1208.16(c)(3). While
21 Seenithamby Rasaiah’s past treatment was horrific, she has
22 not resided in Sri Lanka for over a decade, and she has not
23 presented any particularized evidence to show that anyone in
6
1 Sri Lanka seeks to torture her specifically. See 8 C.F.R.
2 § 1208.16(c)(3); Mu Xiang Lin v. U.S. Dep’t of Justice, 432
3 F.3d 156, 160 (2d Cir. 2005). As a result, substantial
4 evidence supports the agency’s conclusion that Seenithamby
5 Rasaiah has not established that she will be tortured by or
6 with the acquiescence of the Sri Lankan government. See 8
7 C.F.R. § 1208.17; Mu Xiang Lin, 432 F.3d at 159.
8 For the foregoing reasons, the petition for review is
9 GRANTED, in part, with regard to Seenithamby Rasaiah’s
10 withholding application, and DENIED, in part, with regard to
11 her CAT application. As we have completed our review, any
12 stay of removal that the Court previously granted in this
13 petition is VACATED, and any pending motion for a stay of
14 removal in this petition is DISMISSED as moot. Any pending
15 request for oral argument in this petition is DENIED in
16 accordance with Federal Rule of Appellate Procedure
17 34(a)(2), and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
7