Periyathamby v. Holder

11-1640
Periyathamby v. Holder
BIA
Sagerman, IJ
A089 193 597
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 25th day of June, two thousand thirteen.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 QUINTEN BRYAN SATHEES PERIYATHAMBY,
14 Petitioner,
15
16 v. 11-1640
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
24 NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Shelley R. Goad,
28 Assistant Director; Nancy K. Canter,
29 Trial Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Quinten Bryan Sathees Periyathamby, a native and
10 citizen of Sri Lanka, seeks review of a March 29, 2011,
11 decision of the BIA affirming the October 21, 2010, decision
12 of Immigration Judge (“IJ”) Roger Sagerman, which denied his
13 application for withholding of removal and relief under the
14 Convention Against Torture (“CAT”). In re Quinten Bryan
15 Sathees Periyathamby, No. A089 193 597 (B.I.A. Mar. 29,
16 2011), aff’g No. A089 193 597 (Immig. Ct. Napanoch Oct. 21,
17 2010). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the decision of the IJ as supplemented by the BIA. See Yan
21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well established. See
23 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24
2
1 We generally lack jurisdiction to review the removal
2 order of an alien who was found removable by reason of
3 having committed an aggravated felony. See 8 U.S.C.
4 §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C). We do, however,
5 retain jurisdiction to review colorable constitutional
6 claims or questions of law, such as an IJ’s determination
7 that an alien is statutorily ineligible for relief from
8 removal. See id. § 1252(a)(2)(D); Sepulveda v. Gonzales,
9 407 F.3d 59, 62-63 (2d Cir. 2005).
10 At the outset, we note that because Periyathamby does
11 not challenge on appeal the agency’s conclusion that he
12 committed the aggravated felony of first-degree sexual abuse
13 by forcible compulsion, see N.Y. Penal Law § 130.65(1), any
14 such argument is deemed abandoned, see Nolasco v. Holder,
15 637 F.3d 159, 161 (2d Cir. 2011). Insofar as Periyathamby
16 contends that the IJ committed legal error by failing to
17 consider the factors set forth in In re Frentescu, 18
18 I. & N. Dec. 244, 247 (BIA 1982), in finding that his sexual
19 assault conviction constituted a “particularly serious
20 crime” disqualifying him from withholding of removal, 8
21 U.S.C. § 1231(b)(3)(B)(ii), that argument is without merit
22 because the agency expressly considered the Frentescu
23 factors.
3
1 Periyathamby similarly fails to raise a meritorious
2 constitutional claim or question of law regarding the denial
3 of CAT relief. Although we possess jurisdiction to consider
4 his argument that the agency erred in failing to recognize
5 that, under the doctrine of res judicata, his previous grant
6 of asylum conclusively establishes his eligibility for CAT
7 relief, the argument is frivolous because the requirements
8 for CAT relief are different from, and in some respects more
9 stringent than, those for asylum. See Ramsameachire v.
10 Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004) (“Because the
11 CAT inquiry is independent of the asylum analysis . . . the
12 BIA's decision with respect to an alien's claims for asylum
13 and withholding of removal pursuant to the INA should never,
14 in itself, be determinative of the alien's CAT claim.”).
15 Moreover, while we have not expressly held that
16 § 1252(a)(2)(C)’s jurisdictional bar applies to claims of
17 deferral of removal under the CAT, see De La Rosa v. Holder,
18 598 F.3d 103, 107 (2d Cir. 2010), our court repeatedly has
19 assumed that the jurisdictional bar indeed applies to such
20 claims, see, e.g., Savchuk v. Mukasey, 518 F.3d 119, 123 (2d
21 Cir. 2008); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.
22 2007); Maiwand v. Gonzales, 501 F.3d 101, 105 (2d Cir.
4
1 2007). Accordingly, Periyathamby’s arguments relating to
2 the weighing of evidence demonstrating his eligibility for
3 deferral of removal, which “essentially dispute the
4 correctness of [the] IJ’s fact-finding,” are barred from
5 further review for lack of jurisdiction. Xiao Ji Chen v.
6 U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
7 In any event, to the extent we may consider the issue,
8 see Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 338
9 n.2 (2d Cir. 2006) (reiterating that we may assume
10 statutory, but not constitutional, jurisdiction to evaluate
11 merits where jurisdictional issues are complex and claims
12 are meritless), we conclude that the agency’s determination
13 that Periyathamby failed to show a likelihood that he would
14 be tortured or killed by Sri Lankan forces upon a return to
15 that country is supported by substantial record evidence.
16 The 2009 U.S. State Department Report on the Recent Conflict
17 in Sri Lanka and the 2009 State Department Human Rights
18 Report state that the Sri Lankan government inadvertently
19 killed Tamil civilians during its conflict with the LTTE,
20 but note that the conflict ended in May 2009. While the Sri
21 Lankan government has effectively curtailed access to aid in
22 its efforts to screen Tamil refugees for LTTE rebels, the IJ
23 reasonably found that this discrimination does not rise to
5
1 the level of torture. See 8 C.F.R. § 208.18(a)(2) (“Torture
2 is an extreme form of cruel and inhuman treatment and does
3 not include lesser forms of cruel, inhuman or degrading
4 treatment or punishment that do not amount to torture.”);
5 Pierre v. Gonzales, 502 F.3d at 118 (holding that “torture”
6 requires a specific intent to torture). Furthermore,
7 Periyathamby testified that he was slapped and threatened by
8 members of the navy, but that he was able to safely reside
9 in another part of Sri Lanka for over two months, and that
10 his mother and sister remained in Sri Lanka without
11 incident. Because Periyathamby did not suffer torture at
12 the hands of the navy and could safely relocate within Sri
13 Lanka, the IJ reasonably found that his claims did not
14 demonstrate a likelihood that he would be subject to torture
15 if he were removed to Sri Lanka. See 8 C.F.R.
16 §§ 1208.16(c), 1208.17; Khouzam v. Ashcroft, 361 F.3d 161,
17 168 (2d Cir. 2004) (noting that CAT relief is available only
18 when torture is more than likely); Melgar de Torres v. Reno,
19 191 F.3d 307, 313 (2d Cir. 1999) (finding that where alien’s
20 similarly situated mother and daughters continued to live in
21 alien’s native country, claim of future fear of harm was
22 diminished); see also Matter of J-F-F-, 23 I. & N. Dec. 91223 (AG 2006) (denying deferral of removal due to speculative
24 nature of petitioner’s claim).
6
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
7