Filed: Aug. 19, 2015
Latest Update: Mar. 02, 2020
Summary: 13-3872 Samarakoon Mudiyanselage v. Lynch BIA Sichel, IJ A099 938 760 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 DATA
Summary: 13-3872 Samarakoon Mudiyanselage v. Lynch BIA Sichel, IJ A099 938 760 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 DATAB..
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13-3872
Samarakoon Mudiyanselage v. Lynch
BIA
Sichel, IJ
A099 938 760
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 19th day of August, two thousand fifteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 UPUL CHAMINDA ABEYR SAMARAKOON
14 MUDIYANSELAGE,
15 Petitioner,
16
17 v. 13-3872
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Nitin Kaushik, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Stephen J. Flynn, Assistant
28 Director; Robert Michael Stalzer,
29 Trial Attorney, Office of
30 Immigration Litigation, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Upul Chaminda Abeyr Samarakoon
9 Mudiyanselage, a native and citizen of Sri Lanka, seeks
10 review of a September 16, 2013 order of the BIA, affirming
11 the August 22, 2012 decision of an Immigration Judge (“IJ”),
12 which denied asylum, withholding of removal, and Convention
13 Against Torture (“CAT”) relief, and denying Samarakoon
14 Mudiyanselage’s motion to remand. In re Samarakoon
15 Mudiyanselage, No. A099 938 760 (B.I.A. Sept. 16, 2013),
16 aff’g No. A099 938 760 (Immig. Ct. N.Y.C. Aug. 22, 2012).
17 We assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well established. See 8
23 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
2
1 513 (2d Cir. 2009); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.
2 2005).
3 I. Denial of Asylum and Related Relief
4 To establish eligibility for asylum, an applicant like
5 Samarakoon Mudiyanselage, who does not allege past
6 persecution, must demonstrate a well-founded fear of future
7 persecution. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A);
8 Kyaw Zwar Tun v. INS,
445 F.3d 554, 564 (2d Cir. 2006). To
9 demonstrate a well-founded fear of future persecution, an
10 applicant must show that he subjectively fears persecution
11 and that this fear is objectively reasonable. See
12 Ramsameachire v. Ashcroft,
357 F.3d 169, 178 (2d Cir. 2004);
13 see also Jian Hui Shao v. Mukasey,
546 F.3d 138, 162 (2d
14 Cir. 2008).
15 The agency reasonably found that Samarakoon
16 Mudiyanselage failed to establish that his fear of
17 persecution by the Sri Lankan government was objectively
18 reasonable, despite his credible testimony. See Jian Hui
19
Shao, 546 F.3d at 162. First, the agency reasonably relied
20 on Samarakoon Mudiyanselage’s lack of evidence. See Jian
21 Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005).
22 Although he testified that his mother received visits from
3
1 Sri Lankan officials who told her that he would be killed if
2 he returned, Samarakoon Mudiyanselage provided no additional
3 support and points to nothing in the record to establish his
4 claim. Samarakoon Mudiyanselage also testified that he has
5 heard from media reports that army deserters who returned to
6 Sri Lanka were abducted and killed by the defense ministry,
7 but did not submit any of those media reports.
8 The agency also reasonably found that Samarakoon
9 Mudiyanselage’s country conditions evidence, particularly
10 the 2010 and 2011 State Department reports, did not support
11 his claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
12 F.3d 315, 341-42 (2d Cir. 2006). While the country reports
13 do show that the Sri Lankan government has engaged in a high
14 number of kidnappings and extrajudicial killings, they also
15 state that most of the Sri Lankan government’s victims were
16 former Liberation Tigers of Tamil Eelam (“LTTE”) members,
17 presumed LTTE sympathizers, and Tamils – not army deserters.
18 Because Samarakoon Mudiyanselage failed to demonstrate
19 a well-founded fear of persecution, he necessarily failed to
20 meet the higher burden required for withholding of removal
21 or CAT relief. See Lecaj v. Holder,
616 F.3d 111, 119-20
22 (2d Cir. 2010).
4
1 II. Motion to Remand
2 We hold the BIA’s denial of a motion to remand that
3 relies on new evidence to the substantive standard for
4 motions to reopen. See Li Yong Cao v. U.S. Dep’t of
5 Justice, 421 F.3d 149, 156-57 (2d Cir. 2005). We review the
6 BIA’s denial of a motion to remand or reopen for an abuse of
7 discretion. See Kaur v. BIA,
413 F.3d 232, 233-34 (2d Cir.
8 2005) (per curiam). The BIA has “broad discretion” in
9 reviewing a motion to remand based on new evidence. See INS
10 v. Doherty,
502 U.S. 314, 323 (1992).
11 Here, the BIA did err in relying on the date of the
12 IJ’s written decision and not the date of Samarakoon
13 Mudiyanselage’s last hearing before the IJ in finding that
14 the media report was not previously available. See 8 C.F.R.
15 § 1003.2(c)(1). The last merits hearing in Samarakoon
16 Mudiyanselage’s case was held in November 2011, and the
17 media report, from May 2012, was not available at that time.
18 Nevertheless, the BIA considered Samarakoon Mudiyanselage’s
19 motion on the merits, and reasonably found that the media
20 report would not alter the outcome of his proceedings if
21 they were reopened. See Sanusi v. Gonzales,
445 F.3d 193,
22 201 (2d Cir. 2006). The media report states that the Sri
23 Lankan government arrested over 36,400 deserters and dealt
5
1 with them pursuant to “military law.” It does not prove
2 that returning army deserters are abducted and killed, as
3 Samarakoon Mudiyanselage testified. Moreover, the article
4 also does not prove that the punishment for deserting army
5 members constituted persecution and not prosecution under a
6 generally applicable law. See Jin Jin Long v. Holder, 620
7 F.3d 162, 166 (2d Cir. 2010). Accordingly, the BIA did not
8 err in denying Samarakoon Mudiyanselage’s motion to remand
9 because the new evidence he submitted would not alter the
10 outcome of his proceedings if they were reopened.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
22
6
