DLD-328                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1517
                                       ___________

                           SUTHAKARAN PAKKIYARASA,
                             a/k/a Suthakaran Parkiyarasa,
                                                 Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                      Respondent
                   ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A208-890-577)
                    Immigration Judge: Honorable John P. Ellington
                      ____________________________________

         Submitted on the Government’s Motion for Summary Action Pursuant
                     to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   August 3, 2017
          Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                           (Opinion filed: September 1, 2017 )
                                       _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Suthakaran Pakkiyarasa, proceeding pro se, petitions for review from a decision

by the Board of Immigration Appeals (BIA) dismissing his appeal. The Government has

moved for summary action, arguing that no substantial question is presented on appeal.1

We will grant the Government’s motion and will summarily deny the petition for review.

       Pakkiyarasa, a citizen of Sri Lanka, arrived at the Hidalgo, Texas, border station

seeking asylum on February 24, 2016. He did not have a valid visa, reentry permit,

border crossing identification card, or other valid entry document, and was detained.

Pakkiyarasa was interviewed by an asylum officer and indicated that he feared that he

would be killed if he returned to Sri Lanka because of his status as an ethnic Tamil. The

asylum officer referred Pakkiyarasa’s case to an immigration judge. On March 23, 2016,

Pakkiyarasa received a notice to appear charging him as removable under

§ 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act. Pakkiyarasa filed an

application for asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). On August 31, 2016, the Immigration Judge (IJ) denied

Pakkiyarasa’s application for relief.2

       Pakkiyarasa’s claims for relief rested on two episodes of violence: one in 1999 and

one in 2015. At the merits hearing, he testified that he was beaten for a week in 1999


1
 The Government seeks summary affirmance. We note that Pakkiyarasa’s case is before
us on a petition for review, see 8 U.S.C. § 1252, which we either grant or deny. We will
construe the Government’s motion as a request that we summarily deny the petition.
2
 Pakkiyarasa conceded that he was removable during an earlier hearing before the IJ. R.
at 85.
                                         2
after being detained while riding on a public bus. He further testified that he was

abducted and tortured in 2015 by the Karuna Group, a paramilitary organization

associated with the Sri Lankan government. In the latter instance, which was more

serious, he claimed that he was held for fifteen days, subjected to genital and anal torture

and forced to inhale gasoline fumes. He said that he was ultimately released after his

father paid the captors. He asserted that the mistreatment in both incidents was based on

his status as an ethnic Tamil. He presented various reports about Sri Lanka in support of

his assertion.

       In rejecting Pakkiyarasa’s application for relief, the IJ made a series of alternative

findings. First, the IJ determined that he “cannot make a positive credibility finding

because of the lack of corroboration in this particular case.” IJ Decision at 10. The IJ

further stated that he had doubts about Pakkiyarasa’s credibility because of testimony and

evidence about his travel plans and identification documents. 

then focused

more specifically on corroboration, noting Pakkiyarasa’s failure to provide any testimony

from his brother, who is purportedly a refugee in Toronto, or any medical records to

substantiate Pakkiyarasa’s testimony about being brutally assaulted. 

The IJ

also rejected the claim that Pakkiyarasa would be persecuted based on his Tamil

ethnicity. 

The IJ found that the conditions for Tamils in Sri Lanka had

improved since 1999, making Pakkiyarasa ineligible for asylum, withholding, or CAT

relief based on his ethnicity. 

the IJ determined that Pakkiyarasa’s 2015

assault was not based on a protected ground and, instead, “could be deemed a criminal
                                              3
act by thugs as much as any sort of action by any alleged paramilitary group.” 

continued, “Simply put the record does not provide enough information to the Court to

make any finding that this Karuna Group is still active or is a paramilitary group in

2015.” 

Finally, the IJ denied Pakkiyarasa’s CAT claim, holding, in part,

that Pakkiyarasa had not proven that the Sri Lankan government would commit or

acquiesce to torture. 

         Pakkiyarasa appealed. Before the BIA, he argued that the IJ did not adequately

review the reports about the treatment of ethnic Tamils in Sri Lanka, R. at 19-31, and that

he appropriately explained his lack of corroboration, R. at 35-36. The BIA adopted the

IJ’s decision, largely reiterating the IJ’s alternative grounds.

         Pakkiyarasa petitions for review.3 In his informal brief, he asserts, among other

things, that the documentary evidence demonstrates that he would face future persecution

as a Tamil. He also maintains that the Agency erred in considering his CAT claim. The

Government has moved for summary action, asserting that Pakkiyarasa has not

challenged the Agency’s dispositive findings related to Pakkiyarasa’s lack of credibility,

absence of corroboration, and failure to establish his identity and nationality.

         This Court has jurisdiction to review final orders of the BIA pursuant to 8 U.S.C.

§ 1252. Where, as here, the BIA adopts the findings of the IJ and discusses some of the

bases for the IJ’s opinion, this Court will review both opinions. See Guzman v. Att’y



3
    Pakkiyarasa also seeks a stay of removal and the appointment of counsel.
                                              4
Gen. U.S., 

, 1082 (3d Cir. 2014). The Court reviews the Agency's decision

for substantial evidence, considering whether it is “supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Balasubramanrim v.

I.N.S., 

, 161 (3d Cir. 1998) (citation and internal quotation marks omitted).

Legal questions are reviewed de novo, subject to established principles of deference. See

Cospito v. Att’y Gen., 

, 171 (3d Cir. 2008).

       As noted above, the Government seeks summary action based on Pakkiyarasa’s

alleged failure to contest the Agency’s findings about Pakkiyarasa’s lack of credibility,

absence of corroboration, and failure to establish his identity and nationality. Although

Pakkiyarasa does not address the Agency’s findings with precision, his expansive pro se

brief raises at least basic challenges to the Agency’s entire decision, as well as more

specific challenges to its determinations about credibility and corroboration. Therefore,

we have reservations about granting summary action based on the grounds presented by

the Government.

       Nevertheless, we ultimately agree with the Government that summary action is

appropriate because no substantial issue is presented by Pakkiyarasa’s petition for review.

See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. To qualify for asylum or withholding of

removal, “the alien must establish that persecution he/she fears is ‘on account of’ one of

the enumerated classifications or activities incorporated into the definition of ‘refugee.’”

Zubeda v. Ashcroft, 

, 470 (3d Cir. 2003). Pakkiyarasa’s claim rested on his

past persecution and fear of persecution based on his membership in a social group,
                                              5
specifically as an ethnic Tamil.4 Thus, he was required to establish that his membership

in this group “was or will be at least one central reason for persecuting [him].” 8 U.S.C.

§ 1158(b)(1)(B)(i); see also Gonzalez-Posadas v. Att’y Gen., 

, 685 n.6 (3d

Cir. 2015). The BIA concluded that he had failed to show the requisite nexus; the Court

will review that decision “under the substantial evidence standard, affirming [it] unless

the record evidence would compel any reasonable factfinder to conclude to the contrary.”

Ndayshimiye v. Att’y Gen., 

, 128 (3d Cir. 2009).

       In considering Pakkiyarasa’s case on the merits, we determine that substantial

evidence supports the Agency’s ruling. Pakkiyarasa has not demonstrated that ethnicity

was “one central reason” for the mistreatment he suffered. While the 2015 event that

Pakkiyarasa described involving the Karuna Group is deeply troublesome, there is

insufficient evidence that Pakkiyarasa faces persecution based on his Tamil ethnicity or

another protected ground. Pakkiyarasa apparently lived in the country for sixteen years

without incident between the two episodes that he detailed. As the Agency determined,

his abduction may have been the result of criminal activity unrelated to his ethnicity. In




4
  In his asylum application, he checked multiple grounds, but all these grounds appear
related to his Tamil identity. In addition, his attorney made reference before the IJ and
the BIA to Pakkiyarasa’s fear of persecution based on his status as a failed asylum seeker,
but the argument was not fully developed. See, e.g., R. at 31-32. Thus, it does not
provide a basis for relief to the extent that Pakkiyarasa now relies on it. See Bonhometre
v. Gonzales, 

, 447-48 (3d Cir. 2005); see also Harris v. City of Philadelphia,

, 845 (3d Cir. 1994).

                                             6
any event, the record does not adequately establish that Pakkiyarasa was singled out

because of his ethnicity.

         Before the Agency, Pakkiyarasa also raised a CAT claim. To receive protection

under the CAT, Pakkiyarasa bore the burden to prove that “it is more likely than not that

he [] would be tortured if removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2). Torture is “an extreme form of cruel and inhuman treatment.” 8 C.F.R.

§ 1208.18(a)(2); see also Auguste v. Ridge, 

, 151 (3d Cir. 2005). The BIA’s

conclusion about what would likely happen to Pakkiyarasa is factual, see Myrie v. Att’y

Gen., 

, 516 (3d Cir. 2017), and reviewed for substantial evidence, see

generally Valdiviezo-Galdamez v. Att’y Gen., 

, 290 (3d Cir. 2007).

Although Pakkiyarasa may have been subjected to torture, the role played by the Sri

Lankan government rests almost solely on Pakkiyarasa’s testimony since the operation of

the Karuna Group is not well developed in this record. Thus, in light of the available

evidence, the BIA did not err in concluding that Pakkiyarasa had not made out a viable

CAT claim.

         For the above reasons, and because no substantial question is presented in this

appeal, we grant the Government’s motion for summary action and will deny the petition

for review. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6. Pakkiyarrasa’s motion for a stay

of removal and motion for appointment of counsel are denied.5



5
    The temporary stay of removal issued by the Clerk on March 8, 2017, is vacated.
                                              7