Soyza v. Garland

20-4124
Soyza v. Garland
BIA
Hom, IJ
A205 901 198
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
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 5th day of May, two thousand twenty-three.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 SUSAN L. CARNEY,
9 MICHAEL H. PARK,
10 Circuit Judges.
11 _____________________________________
12
13 GIHAN SUNIMAL WIJEMUNI SOYZA,
14 Petitioner,
15
16 v. 20-4124
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Visuvanathan Rudrakumaran, New
24 York, NY.
25
26 FOR RESPONDENT: Brian M. Boynton, Assistant
27 Attorney General; Jonathan A.
28 Robbins, Sherease Pratt, Senior
1 Litigation Counsel, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, DC.
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 in part and GRANTED in part.
9 Petitioner Gihan Sunimal Wijemuni Soyza, a native and
10 citizen of Sri Lanka, seeks review of a November 9, 2020,
11 decision of the BIA affirming a June 25, 2018, decision of an
12 Immigration Judge (“IJ”) denying his application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Gihan Sunimal Wijemuni Soyza,
15 No. A 205 901 198 (B.I.A. Nov. 9, 2020), aff’g No. A 205 901
16 198 (Immig. Ct. N.Y. City June 25, 2018). We assume the
17 parties’ familiarity with the underlying facts and procedural
18 history.
19 We have considered both the IJ’s and BIA’s opinions “for
20 the sake of completeness.” Wangchuck v. Dep’t of Homeland
21 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable
22 standards of review are well established. See 8 U.S.C.
23 § 1252(b)(4)(B) (“[T]he administrative findings of fact are
2
1 conclusive unless any reasonable adjudicator would be
2 compelled to conclude to the contrary.”); Yanqin Weng v.
3 Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing
4 factfinding for substantial evidence and questions of law de
5 novo).
6 Soyza alleged that officers in the Sri Lankan navy
7 arrested, beat, and interrogated him because they suspected
8 he was helping his employer, a wealthy and influential
9 fisherman named Kingsley Silver, transport alleged terrorists
10 (the Liberation Tigers of Tamil Elam (“LTTE”)) from a refugee
11 camp in Sri Lanka. As set forth below, we find no abuse of
12 discretion in the IJ’s exclusion of late-filed evidence, and
13 we deny the petition as to asylum and withholding for lack of
14 nexus to a protected ground. We remand for further
15 consideration of the CAT claim.
16 I. Late-filed Evidence
17 The IJ did not abuse his discretion by excluding Soyza’s
18 late-filed evidence. Soyza filed this evidence beyond the
19 February 2018 deadline set by the IJ. IJs have broad
20 discretion to set filing deadlines and may deem the
21 opportunity to file documents waived when deadlines are not
3
1 met. See 8 C.F.R. § 1003.31(h); Matter of Jesus Interiano-
2 Rosa, 25 I. & N. 264, 265–66 (B.I.A. 2010) (discussing IJ’s
3 authority to deem opportunity to file supporting documents
4 waived); see also Morgan v. Gonzales, 445 F.3d 549, 551 (2d
5 Cir. 2006) (“IJs are accorded wide latitude in calendar
6 management, and we will not micromanage their scheduling
7 decisions.”). Because Soyza had notice of the deadline and
8 more than a year to compile his evidence, the IJ did not abuse
9 his discretion in declining to consider the late-filed
10 evidence. See Dedji v. Mukasey, 525 F.3d 187, 191–92 (2d
11 Cir. 2008) (reviewing rejection of late-filed evidence for
12 abuse of discretion).
13 II. Asylum and Withholding of Removal
14 Soyza had to demonstrate that “one central” motivation
15 for his arrest was his persecutors’ belief that he supported
16 the LTTE. 8 U.S.C. § 1158(b)(1)(B)(i); see also Quituizaca
17 v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022) (holding that
18 the “one central reason” standard applies to both asylum and
19 withholding of removal). Substantial evidence supports the
20 agency’s conclusion that he failed to establish a nexus. See
21 Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir. 2006)
4
1 (reviewing nexus determination for substantial evidence).
2 Soyza testified he piloted a fishing trawler and after
3 the war with the LTTE ended in 2009, his employer required
4 him to illegally transport displaced people from refugee
5 camps. Soyza testified that he believed he was transporting
6 displaced people, not terrorists, and that he knew the
7 activity was illegal. When he was arrested by the navy,
8 Soyza explained that he did not know the people he was
9 transporting were linked to the LTTE, but he was arrested
10 because transporting displaced people is a criminal act. He
11 testified that he was released when he gave up Silver’s name.
12 Based on this evidence, the agency reasonably concluded that
13 he did not establish that the navy was motivated by a belief
14 that he supported the LTTE, but rather arrested him because
15 of the illegal activity and to discover who employed him.
16 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.
17 2005) (requiring “direct or circumstantial evidence” of
18 persecutors’ motivation); Chun Gao v. Gonzales, 424 F.3d 122,
19 130 (2d Cir. 2005) (holding that applicant has “burden . . .
20 to show that his persecutors actually imputed a political
21 opinion to him” (quotation marks omitted)). Soyza’s argument
5
1 that the agency failed to perform a mixed motive analysis
2 fails because the agency considered why he was arrested and
3 the evidence reflected that he was intercepted for engaging
4 in criminal activity and beaten to obtain his employer’s name,
5 not because he was suspected of supporting terrorists. See
6 In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007)
7 (A protected ground “cannot be incidental, tangential,
8 superficial, or subordinate to another reason for harm.”);
9 see also Chun Gao, 424 F.3d at 130 (burden on applicant to
10 prove opinion was imputed).
11 III. CAT claim
12 We do not reach a conclusion regarding the ultimate merit
13 of Soyza’s CAT claim, but remand for further consideration by
14 the agency given the lack of clarity and errors in the IJ’s
15 decision. A successful CAT claim requires a showing that the
16 applicant will “more likely than not” be tortured by or with
17 the acquiescence of government officials. See 8 C.F.R.
18 §§ 1208.16(c), 1208.17(a). “Torture is defined as any act
19 by which severe pain or suffering, whether physical or mental,
20 is intentionally inflicted on a person for such purposes as
21 obtaining from him or her or a third person information or a
6
1 confession, punishing him or her for an act he or she or a
2 third person has committed or is suspected of having
3 committed, intimidating or coercing him or her or a third
4 person, or for any reason based on discrimination of any kind,
5 when such pain or suffering is inflicted by, or at the
6 instigation of, or with the consent or acquiescence of, a
7 public official acting in an official capacity or other person
8 acting in an official capacity.” Id. § 1208.18(a)(1). 1 “In
9 assessing whether it is more likely than not that an applicant
10 would be tortured” the agency “shall” consider “all evidence
11 relevant to the possibility of future torture . . . including,
12 . . . “[e]vidence of past torture inflicted upon the
13 applicant,” ability to relocate within the country,
14 “[e]vidence of gross, flagrant or mass violations of human
15 rights within the country of removal,” and “[o]ther relevant
16 information regarding conditions in the country of removal.”
17 Id. § 1208.16(c)(3).
18 In denying CAT relief, the IJ stated that Soyza “claimed
19 he was mistreated during interrogation” but there was “no
20 evidence to show that [he] was a victim of torture before his
1Citations are to the version of the regulations in force at the
time of the agency’s decisions.
7
1 departure.” This statement does not explain how Soyza’s
2 testimony about his beating by naval officers to obtain
3 information about alleged crimes did not rise to the level of
4 torture. See 8 C.F.R. § 1208.18(a)(1) (defining torture).
5 The IJ compounded the error by stating there was no evidence
6 that Soyza “suffered torture by [the government’s]
7 acquiescence” even though Soyza testified he was beaten by
8 members of the military. The IJ may have intended to make
9 an adverse credibility determination, but the credibility
10 section of the IJ’s decision does not identify grounds for
11 finding Soyza not credible and the conclusion of the
12 credibility analysis is incoherent. See Certified Admin.
13 Record at 38 (“The court did not find the respondent’s claim
14 that he was persecuted based upn an impute claim of
15 persecution as he was suspected to the a LTTE supporter.”).
16 While the BIA and the Government take the position that Soyza
17 waived his CAT claim on appeal, he flagged the IJ’s improper
18 reliance on credibility grounds. Given the BIA’s failure to
19 address that point and the obvious problems with the IJ’s
20 decision, we remand for further consideration of the CAT
21 claim. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.
8
1 2005) (“requir[ing] a certain minimum level of analysis from
2 the IJ and BIA opinions denying asylum . . . if judicial
3 review is to be meaningful”).
4 For the foregoing reasons, the petition for review is
5 DENIED in part as to asylum and withholding of removal and
6 GRANTED in part and remanded for further consideration of the
7 CAT claim. All pending motions and applications are DENIED
8 and stays VACATED.
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
9