Salipan Gaksakuman v. U.S. Attorney General , 767 F.3d 1164 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12893
________________________
Agency No. A200-615-726
SALIPAN GAKSAKUMAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(September 18, 2014)
Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
WILLIAM PRYOR, Circuit Judge:
In this petition for review, we consider whether silence in a report of the
Department of State about torture of asylum seekers on return to an alien’s home
country may rebut affirmative evidence of that torture presented by the alien.
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Salipan Gaksakuman, an alien seeking asylum, withholding of removal, and relief
under the Convention Against Torture, asks us to review not only his most recent
order of removal, but also an earlier order. Because we conclude that the earlier
order entered by the Board was final, that Gaksakuman declined to pursue a timely
petition for its review, and that Gaksakuman, in his second appeal to the Board,
failed to exhaust his earlier arguments, we hold that we lack jurisdiction to review
the earlier order. We instead review only the most recent order, in which the Board
denied Gaksakuman relief because it found he failed to establish that he would
suffer persecution as a “failed asylum seeker” if returned to Sri Lanka.
Gaksakuman presented evidence that Sri Lanka detains and tortures failed asylum
seekers. But the Board ruled that this evidence was insufficient because the
Country Reports on Human Rights issued by the Department of State were silent
about the torture of failed asylum seekers in Sri Lanka. Because we conclude that
the silence of a State Department report cannot, without more, rebut the affirmative
evidence Gaksakuman presented, we vacate the Board’s order and remand for
further proceedings.
I. BACKGROUND
Salipan Gaksakuman is a native of Sri Lanka. Gaksakuman asserts that he is
a Hindu priest of Tamil ethnicity. He alleges that beginning in 2009 he suffered
various threats, beatings, extortion, and persecution at the hands of the Eelam
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People’s Democratic Party and the Sri Lankan army. Gaksakuman’s father
eventually sent his son out of the country to escape the violence by allegedly
bribing officials to secure his son’s exit.
In December 2010, Gaksakuman arrived in Miami, Florida, where the
Department of Homeland Security ordered him removed because he was present in
the United States without having been admitted or paroled. 8 U.S.C.
§1182(a)(6)(A)(i). Gaksakuman conceded his removability, but filed an application
for asylum, 8 U.S.C. § 1158, for withholding of removal, 8 C.F.R. § 208.16(b), and
for relief under the United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, 8 C.F.R. § 208.16(c).
At the hearing before an immigration judge, Gaksakuman argued that as a
Tamil, the Eelam People’s Democratic Party and the Sri Lankan army, which
targeted Tamil families, threatened him with persecution. The immigration judge
refused to credit Gaksakuman’s testimony about his fear of future persecution and
ruled that he had failed to establish that he would suffer persecution based on his
Tamil ethnicity.
Gaksakuman appealed to the Board of Immigration Appeals. The Board
deferred to the findings of the immigration judge and dismissed the appeal in May
2012. Gaksakuman then filed a timely petition in our Court to review the order of
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the Board. But Gaksakuman later filed a motion to dismiss that petition before our
Court, which we granted.
Before he moved to dismiss his petition in our Court, Gaksakuman also filed
an untimely petition to reopen his case with the Board. In his motion to reopen,
Gaksakuman did not renew his earlier arguments, but instead argued that the
immigration judge and the Board failed to address his argument that he would be
persecuted upon his return to Sri Lanka based on his status as a “failed asylum
seeker.” Gaksakuman submitted new evidence to support this claim. The Board
described Gaksakuman’s motion as “in the nature of a motion seeking
reconsideration” and sua sponte granted the motion. The Board remanded the
record to the immigration judge to consider Gaksakuman’s new argument and the
evidence that he submitted to support it.
On remand, the immigration judge considered Gaksakuman’s evidence
tending to prove that torture was a possibility for returning, failed asylum seekers.
A report by the United Kingdom Border Agency collected sources indicating that
torture and arbitrary detainment are rampant in Sri Lanka. The report indicated that
there was a “persistent pattern of torture,” including against those individuals
perceived to associate with a group called the Liberation Tigers of Tamil Ealam.
“Those at particular risk of torture include Tamils who have an actual or perceived
association with the Liberation Tigers.” Fourteen cases of torture were reported by
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those who had traveled abroad prior to their detainment, including five who had
traveled for education, three who had traveled for family reasons, and four who
had sought refuge outside of Sri Lanka. A news article reported that a court in
Britain had ordered a deportation of Tamils halted due to concerns they would be
tortured on their return.
A Human Rights Watch news release reported that some failed Tamil
asylum seekers were subjected to arbitrary arrest and torture upon their return,
particularly if they were associated with the Liberation Tigers. An Amnesty
International report stated that the Sri Lankan government had a “history of
arresting and detaining rejected Sri Lankan asylum seekers upon their return and
[the organization was] aware of cases of people being tortured.” A report by
Freedom from Torture stated that “Sri Lankan Tamils who in the past had an actual
or perceived association at any level with the [Liberation Tigers] but were able to
leave Sri Lanka safely now face risk of torture on return.”
Gaksakuman also presented a news report tending to prove that, regardless
of any actual affiliation with the Liberation Tigers, Sri Lankan officials detained
and tortured failed asylum seekers as presumed traitors. An official of the Catholic
Church’s Edmund Rice Centre was quoted as saying, “The difficulty here is that
there is a view in Sri Lanka that anybody who left the country through an
unauthorised manner, of unauthorised means . . . must therefore be [a] traitor[].”
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The official stated that, in the eyes of the Sri Lankan government, all who fled are
“branded” as sympathizers of the Liberation Tigers, and “consequently sending
them back is sending them back into danger.” The Centre found that of the 11
people removed to Sri Lanka from Australia, all of them had been arrested at the
airport. Some were “bashed [and] assaulted,” and some had permanent damage to
hearing or eyesight. If they are “Sinhalese people who left,” the “assumption” was
that they were Liberation Tiger sympathizers and traitors.
Gaksakuman’s evidence failed to persuade the immigration judge. The
immigration judge stated that, although Gaksakuman had “submitted documents . .
. that suggest[ed] that failed Asylum seekers are being tortured in Sri Lanka, . . .
the [Department of State] Human Rights Reports [did] not mention[] failed
Asylum seekers being tortured.” The immigration judge ruled that the silence of
the State Department reports rebutted Gaksakuman’s evidence, and the
immigration judge denied Gaksakuman’s application. Gaksakuman appealed to the
Board for review, but the Board adopted the order of the immigration judge and
dismissed the appeal.
Gaksakuman then timely filed another petition for review in our Court.
Gaksakuman also filed an emergency motion for a stay of removal, which we
granted. Gaksakuman’s petition asks us to review not only the 2013 order denying
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relief, but also the arguments the Board rejected in its 2012 order affirming the
immigration judge’s first order of removal.
II. STANDARD OF REVIEW
We review questions concerning our jurisdiction de novo. Ortega v. U.S.
Att’y Gen., 416 F.3d 1348, 1350 (11th Cir. 2005). We are limited to reviewing
“final order[s] of removal,” that have been timely filed. Balogun v. U.S. Att’y Gen.,
304 F.3d 1303, 1307 (11th Cir. 2002); 8 U.S.C. § 1252(b)(1). We must affirm the
order of the agency if it has “given reasoned consideration” to the application, “and
made adequate findings.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir.
2006) (internal quotation marks omitted). When the Board fails to give “reasoned
consideration” or to make “adequate findings,” we remand for further proceedings
because we are “unable to review” the evidence in the first instance. Mezvrishvili v.
U.S. Att’y Gen., 467 F.3d 1292, 1295 (11th Cir. 2006) (quoting Tan, 446 F.3d at
1377). We review the order of the Board only, but if it expressly adopts the
reasoning of the immigration judge, we will review that order as well. Id.III. DISCUSSION
Our discussion proceeds in two parts. First, we explain that we lack
jurisdiction to review the 2012 order of the Board. Second, we explain that in its
2013 order the Board failed to give reasoned consideration to Gaksakuman’s
application.
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A. We Lack Jurisdiction to Review the 2012 Order of the Board.
Neither party raised the issue of jurisdiction in its briefing, but it is “well
settled that a federal court is obligated to inquire into [its] subject matter
jurisdiction sua sponte.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410
(11th Cir. 1999). In this petition, Gaksakuman asks us to review both the 2012 and
2013 orders of removal. There is no question as to our jurisdiction over the 2013
order, but to seek judicial review of the 2012 order, Gaksakuman must have filed a
petition with our Court within 30 days of the issuance of that order. 8 U.S.C. §
1252(b)(1). Gaksakuman did so here, but then moved to dismiss his petition to our
Court, which we granted. The 30-day window has now long since passed.
Gaksakuman’s counsel contended at oral argument that “when the case was
reopened [by the Board] there was no final order,” and we may review all of his
arguments, but we disagree.
As an initial matter, there is some question as to what the Board actually
granted after Gaksakuman moved to reopen the proceedings. The Board repeatedly
called its order a grant of a motion for reconsideration. But the Board remanded the
record to the immigration judge to consider Gaksakuman’s new argument and
evidence that he would suffer persecution as a failed asylum seeker. This remand
tracks the ordinary procedure for a reopening. 8 C.F.R. § 1003.2(i). Nevertheless,
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whether the Board ordered a reopening or a reconsideration, we lack jurisdiction
over the 2012 order.
If the 2013 order was the result of a reconsideration, our precedent holds that
the 2012 order remains a final order and we lack jurisdiction to review it. In
Jaggernauth v. United States Attorney General, we decided that an order resulting
from a motion to reconsider does not, lacking more, vacate or render the original
order non-final. 432 F.3d 1346 (11th Cir. 2005). In Jaggernauth, the petitioner
filed a timely petition in our Court for review of a final order of removal by the
Board. Id. at 1348–49. The petitioner continued to prosecute that petition, but also
moved the Board to reconsider its order of removal. Id. The Board granted the
motion and again ordered the petitioner’s removal. Id. at 1349–50. Then in our
Court, the Attorney General moved to dismiss the petition to review the first order
on the ground it was no longer final because the Board had implicitly vacated it
when the Board granted reconsideration. Id. at 1348. We disagreed. “We do not
believe the [Board] intended its second order to . . . change the substance of the
original order. The [order on reconsideration] explicitly upholds the [original
order], . . . suggesting the [Board’s] intent was to leave the [original] order, as well
as the reasoning underlying the order, intact and unmodified.” Id. at 1351.
Accordingly we held that we retained jurisdiction over the first order because it
remained final. Id. at 1352. Likewise, the 2013 order of removal in Gaksakuman’s
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petition did not modify or alter the 2012 order in any way. The Board initiated the
additional proceeding solely to determine the merits of Gaksakuman’s new
argument, based on his status as a failed asylum seeker. The Board left the 2012
order “intact and unmodified.” Id. at 1351. So if the Board granted a motion to
reconsider, Jaggernauth forecloses our review of the earlier order.
If the Board instead reopened the proceeding, we still lack jurisdiction
because Gaksakuman did not renew his original arguments in his motion to reopen.
The Board granted Gaksakuman’s motion only to allow consideration of his new
argument that he would be subject to persecution as a “failed asylum seeker” on
return to Sri Lanka. And the immigration judge considered only that new
argument. On appeal from the order denying Gaksakuman’s application, the Board
ruled on only his new argument. To be sure, during that appeal to the Board, after
the immigration judge had rejected Gaksakuman’s new argument, Gaksakuman
attempted to challenge parts of the 2012 order in his briefing. But that attempt
came too late. Gaksakuman failed to exhaust the arguments he now seeks to raise
and we lack jurisdiction to consider them. See 8 U.S.C. 1252(d)(1) (“A court may
review a final order of removal only if . . . the alien has exhausted all
administrative remedies available.”); see also Amaya-Artunduaga v. U.S. Atty.
Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (explaining that appeals court lacks
jurisdiction to consider an argument not raised before the Board).
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B. The Board Failed to Give Reasoned Consideration to Gaksakuman’s Argument
That He Would Suffer Persecution as a Failed Asylum Seeker.
Gaksakuman argues that the Board erred when it denied his application for
asylum, withholding of removal, and relief under the Convention based on his
membership in the social group of “failed asylum seekers.” The Immigration
Clinic of the University of Miami School of Law, as amicus curiae, argues too that
the Board failed to give Gaksakuman’s application reasoned consideration. The
Board adopted the reasoning of the immigration judge’s order on reconsideration,
so we review both orders. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001).
We agree with Gaksakuman and the persuasive brief of the amicus curiae
that the Board failed to give “reasoned consideration” to Gaksakuman’s
application. Mezvrishvili, 467 F.3d at 1295 (quoting Tan, 446 F.3d at 1375). The
Board adopted the reasoning that the absence of evidence in reports of the State
Department somehow rebutted Gaksakuman’s evidence of torture. That logic is
flawed.
Gaksakuman submitted evidence in support of his allegation that, as a
“failed asylum seeker,” he would be subject to torture upon his return to Sri Lanka.
The immigration judge found most of the evidence credible, including reports from
non-profit organizations and newspapers. The evidence tended to prove that
officials in Sri Lanka tortured at least some failed asylum seekers, particularly if
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they had an actual or perceived association with the Liberation Tigers. A report by
the United Kingdom Border Agency established that failed asylum seekers
returning to Sri Lanka are subject to torture where officials believe the returnee has
ties to the Liberation Tigers. A Human Rights Watch news release reported that
some failed Tamil asylum seekers were subjected to arbitrary arrest and torture
upon their return, particularly if they were associated with the Liberation Tigers.
An Amnesty International report stated that the Sri Lankan government had a
“history of arresting and detaining rejected Sri Lankan asylum seekers upon their
return and [the organization was] aware of cases of people being tortured.”
Gaksakuman also presented evidence tending to prove that there was a risk
of detainment and torture regardless of whether the failed asylum seeker was
actually a Tamil with ties to the Liberation Tigers. An official of the Catholic
Church’s Edmund Rice Centre was quoted in one document as saying, “The
difficulty here is that there is a view in Sri Lanka that anybody who left the country
through an unauthorised manner, of unauthorised means . . . must therefore be [a]
traitor[].” The official stated that, in the eyes of the Sri Lankan government, all
who fled are branded as sympathizers of the Liberation Tigers, and “consequently
sending them back is sending them back into danger.” If the returnee was
Sinhalese, the assumption was that they were a “traitor.”
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The immigration judge denied Gaksakuman’s application based on the
silence of State Department reports without discrediting the evidence that
Gaksakuman presented or giving more weight to contrary evidence. The
immigration judge explained that he was entitled to “rely heavily” on State
Department reports and concluded that, “[a]lthough [Gaksakuman] has submitted
documents and supporting materials that suggest that failed Asylum seekers are
being tortured in Sri Lanka,” the silence of the State Department reports “negates
his claim.” We have recognized that an immigration judge is “entitled to rely
heavily on” State Department reports, Reyes–Sanchez v. U.S. Att'y Gen., 369 F.3d
1239, 1243 (11th Cir. 2004), but those reports are reliable only to the extent they
“comment upon or are relevant to the highly specific question[s]” raised by an
alien, Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009) (internal
quotation marks omitted).
State Department reports cannot rebut an applicant’s evidence when those
reports do not “comment upon” the individual’s application. State Department
reports do not purport to be exhaustive, and the 2011 report states in its
introduction that it “do[es] not attempt to catalog every incidence, however
egregious, of a particular type of human rights abuse in a country.” And if
anything, the reports in this record corroborate Gaksakuman’s arguments. The
reports state that the Sri Lankan government and its agents commit “arbitrary and
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unlawful killings, . . . torture[] and abuse[ of] detainees, . . . and arbitrar[y]
arrest[s].” The government of Sri Lanka “continue[s] to search for and detain
persons it suspected of being [Liberation Tigers] sympathizers.” The government
“infringed on . . . rights[] particularly when conducting . . . operations in Tamil
neighborhoods,” and a “disproportionate number of victims of human rights
violations were Tamils.”
The Board added little to the reasoning of the immigration judge, except that
it found Gaksakuman had not established he was a member of the group “failed
asylum seekers” because he failed to establish he was a “Tamil[] who had an actual
or perceived association with the Liberation Tigers.” But Gaksakuman’s status as a
Tamil was never questioned by the immigration judge. And even if Gaksakuman
failed to prove actual association with the Liberation Tigers, his evidence tended to
prove that any Sinhalese who sought asylum would be perceived as affiliated with
the Liberation Tigers regardless of actual association. For instance, the official of
the Edmund Rice Center stated, “[W]hile [Australia’s Federal Government] is wise
to urge caution in returning asylum seekers connected to the [Liberation Tigers], in
the eyes of the Sri Lankan government all those who fled are branded the same
way. . . . [I]f they are Sinhalese people who left, then they must therefore be
traitors.”
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We vacate the 2013 order. The Board failed to give “reasoned
consideration” to Gaksakuman’s application. We remand for further proceedings
because we are “unable to review” the evidence in the first instance to determine
whether Gaksakuman is likely to suffer torture if he returns to Sri Lanka as a failed
asylum seeker. Mezvrishvili, 467 F.3d at 1295 (quoting Tan, 446 F.3d at 1375).
IV. CONCLUSION
We GRANT the petition for review, VACATE the order of the Board, and
REMAND for further proceedings.
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