14-637
    Viknesrajah v. Lynch
                                                                                       BIA
                                                                                    Reid, IJ
                                                                               A095 665 546
                           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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    1st day of July, two thousand fifteen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    NADARAJAH VIKNESRAJAH, AKA MARIO
    D'AMICO, AKA VIKNESRAJAH
    NADARAJAH,
             Petitioner,

                      v.                                             14-637
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________


    FOR PETITIONER:                      Visuvanathan Rudrakumaran, Law
                                         Offices of Visuvanathan
                                         Rudrakumaran, New York, New York.
FOR RESPONDENT:                 Joyce Branda, Acting Assistant
                                Attorney General; Christopher C.
                                Fuler, Deputy Chief, National
                                Security Unit; Alison Marie Igoe,
                                Senior Counsel for National
                                Security, National Security Unit,
                                Office of Immigration Litigation,
                                Washington, D.C.

       UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

       Petitioner Nadarajah Viknesrajah, a native and citizen of

Sri Lanka, seeks review of a January 29, 2014, decision of the

BIA affirming a December 31, 2012, decision of an Immigration

Judge (“IJ”) denying Viknesrajah’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).     In re Nadarajah Viknesrajah, No. A095 665 546

(B.I.A. Jan. 29, 2014), aff’g No. A095 665 546 (Immig. Ct.

Batavia,    N.Y.   Dec.   31,   2012).   We   assume   the   parties’

familiarity with the underlying facts and procedural history

in this case.

       We have reviewed the IJ’s decision as supplemented by the

BIA.    See Yan Chen v. Gonzales, 

, 271 (2d Cir. 2005).

The applicable standards of review are well established.            8

                                   2
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 

,

513 (2d Cir. 2009).

    I.      Material Support

    An alien who has “engaged in a terrorist activity” is barred

from receiving asylum or withholding of removal.          8 U.S.C.

§§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I) (asylum); 8 U.S.C.

§ 1231(b)(3)(B)(iv) (withholding); 8 C.F.R. § 1208.16(d)(2)

(same).     “Terrorist activity” includes committing an act that

“the actor knows, or reasonably should know, affords material

support” to a designated terrorist organization.          8 U.S.C.

§ 1182(a)(3)(B)(iv)(VI).           “Material   support”    includes

providing    “a   safe   house,   transportation,   communications,

funds, transfer of funds or material financial benefit, false

documentation or identification, weapons . . . , explosives,

or training.”     

jurisdiction to review an agency’s determination

that an alien is subject to the terrorist activity bar, 8 U.S.C.

§ 1158(b)(2)(D), but retain jurisdiction to review questions

of law and constitutional claims, 8 U.S.C. § 1252(a)(2)(D), and

review those claims de novo.       Rosario v. Holder, 

,

61 (2d Cir. 2010).       The application of a legal standard to an


                                   3
undisputed set of facts is a question of law subject to de novo

review.    See Khouzam v. Ashcroft, 

, 165 (2d Cir.

2004)   (holding    that    “[t]he   BIA’s   application    of   law   to

undisputed facts is reviewed de novo”).         Here, the question of

law that Viknesrajah attempts to raise is whether false

testimony can establish that he gave “material support” to a

terrorist organization.

    Stated that baldly, the answer would have to be “no.”

However,   the     record   indicates    that   the   BIA   reasonably

understood the IJ’s assessment of the petitioner’s testimony

to present a different issue.        Viknesrajah testified that for

17 to 18 months the LTTE forced him to dig bunkers and carry

wood for 2 to 3 hours a day, cut potatoes and onions, and fill

sandbags for transport in the jungle.        Although portions of the

IJ’s opinion appear to make a broad finding that the petitioner

was not credible, the BIA concluded that “the Immigration

Judge’s crediting of that limited testimony is not inconsistent

with his adverse credibility finding as to other aspects of

[Viknesrajah’s] testimony.” BIA op. of Jan. 29, 2014, at 2, ROA

at 4.     As we have recognized, an IJ may limit an adverse

credibility finding to particular portions of an applicant’s


                                     4
testimony. Paul v. Gonzales, 

, 154 (2d Cir. 2006).

Although the BIA took a generous view of the IJ’s language, we

cannot say that the BIA was unreasonable in its interpretation.

Indeed, it is most unlikely that the IJ meant to say that he

did not believe the precise portion of testimony on which he

based a finding of material support.

       Furthermore, as the IJ in this case recognized, the

Immigration and Nationality Act imposes a heavy evidentiary

burden on aliens to establish their eligibility for relief when

a mandatory bar to relief, such as the material support bar,

may apply.   So long as “the evidence indicates that one or more

of the grounds for mandatory denial of the application for

relief may apply, the alien shall have the burden of proving

by a preponderance of the evidence that such grounds do not

apply.” C.F.R. § 1240.8 (emphases added).        Regardless of the

IJ’s    ultimate   credibility       doubts   about   Viknesrajah’s

credibility, Visnesrajah’s testimony at the removal hearings

describing his alleged months spent with the LTTE was certainly

sufficient to “indicate that the material support bar “may

apply” in this case, all that the IJ and BIA needed to deny

relief.


                                 5
II. Deferral of Removal Under the CAT

    Next, Viknesrajah argues that the agency failed to give

meaningful consideration to his CAT claim.     In order to obtain

CAT deferral, an alien must show that he would more likely than

not be tortured in the country of removal.          See 8 C.F.R.

§§ 1208.16(c), 1208.17; 

.

    Viknesrajah claimed that the Sri Lankan government harms

three groups of which he is a member: (1) Tamils from areas

formerly controlled by the LTTE; (2) failed asylum seekers; and

(3) Tamils returning from Western countries.            Viknesrajah

submitted evidence showing that Tamils are mistreated in Sri

Lanka; however, nearly all of that evidence concerns the war

between the Sri Lankan government and the LTTE, which ended in

May 2009.    The 2011 State Department Report states that

security forces engage in unlawful killings, attack and harass

persons seen as LTTE sympathizers, and torture Tamils with

actual or perceived associations with the LTTE.     But the State

Department   also   reports   that   the   government   has   begun

incorporating Tamils into the same security forces accused of

harming them.   Viknesrajah submitted an Australian article

from 2010 stating that nine returned asylum seekers had been


                                6
killed in the past year.    However, these events occurred five

years ago, and Viknesrajah has never submitted evidence showing

the persistence of such conditions.    Otherwise, the record is

devoid of any evidence that the Sri Lankan government tortures

returning Tamils.    Given the conflicting evidence in the

record, a reasonable fact-finder would not be compelled to find

that Viknesrajah is likely to be tortured.   Siewe v. Gonzales,

, 167 (2d Cir. 2007).      Thus, the IJ reasonably

denied CAT relief.

    Viknesrajah argues that the IJ abused his discretion in

refusing to admit a 2011 UNHCR Report on Sri Lanka on remand.

The IJ excluded the report because Viknesrajah failed to show

how it would affect the outcome of his case; the BIA affirmed

this decision.

    Where “no final order exists . . . the [IJ] has authority

to consider additional evidence if it is material, was not

previously available, and could not have been discovered or

presented at the former hearing.”   Matter of M- D-, 24 I. & N.

Dec. 138, 141 (BIA 2007).    We generally review the refusal to

admit documents for abuse of discretion.   Cf. Dedji v. Mukasey,

, 191-92 (2d Cir. 2008).         An IJ abuses his


                                7
discretion when “(1) his decision rests on an error of law .

. . or a clearly erroneous factual finding or (2) his decision

. . . cannot be located within the range of permissible

decisions.”    

omitted).

    The report should have been admitted: it was material and

previously unavailable.    But remand for consideration of it

would be futile because the IJ made clear that the report would

not change the outcome of Viknesrajah’s case.       Cao He Lin v.

U.S. Dep’t of Justice, 

, 402 (2d Cir. 2005).     The

UNHCR report contains little evidence showing that the Sri

Lankan government is currently torturing Tamils.

    Finally, Viknesrajah argues that his membership in all

three of the groups he identified heightens his risk of harm

beyond what he would face as a member of any group standing

alone.    He pressed this argument below, but the agency never

considered it.   Remand to consider it would be futile because,

as explained above, the record contains very limited evidence

that Sri Lanka tortures any one of Viknesrajah’s proposed

groups.    Cao He 

.




                               8
III. Recusal

    Finally, Viknesrajah argues that BIA member Roger Pauley

should have recused himself from deciding his case.   However,

because Viknesrajah did not request Pauley’s recusal before the

BIA, we decline to review this argument.    Lin Zhong v. U.S.

Dep’t of Justice, 

, 123 (2d Cir. 2008).

    For the foregoing reasons, the petition for review is

DENIED.

    As we have completed our review, the pending request for

oral argument is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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