Filed: Apr. 12, 2011
Latest Update: Feb. 22, 2020
Summary: 10-1749-ag Kalansuriya v. Holder BIA Vomacka, IJ A097 538 432 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 (WI
Summary: 10-1749-ag Kalansuriya v. Holder BIA Vomacka, IJ A097 538 432 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 (WIT..
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10-1749-ag
Kalansuriya v. Holder
BIA
Vomacka, IJ
A097 538 432
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 12th day of April, two thousand eleven.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12 _______________________________________
13
14 GAMINI KALANSURIYA,
15 Petitioner,
16
17 v. 10-1749-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Blair T. O’Connor,
29 Assistant Director; Joseph D. Hardy,
30 Trial Attorney, Office of
31 Immigration Litigation, United
32 States Department of Justice,
33 Washington D.C.
34
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Gamini Kalansuriya, a native and citizen of
6 Sri Lanka, seeks review of the April 8, 2010, order of the
7 BIA affirming the July 29, 2008, decision of Immigration
8 Judge (“IJ”) Alan A. Vomacka pretermitting his application
9 for asylum as untimely filed and denying his applications
10 for withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Gamini Kalansuriya, No. A097
12 538 432 (B.I.A. Apr. 8, 2010), aff’g No. A097 538 432
13 (Immig. Ct. N.Y. City July 29, 2008). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review both
17 the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales, 432
18 F.3d 391, 394 (2d Cir. 2005). The applicable standards of
19 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
20 see also Salimatou Bah v. Mukasey,
529 F.3d 99, 110 (2d Cir.
21 2008); Shu Wen Sun v. BIA,
510 F.3d 377, 379 (2d Cir. 2007).
22 Substantial evidence supports the agency’s adverse
23 credibility determination. In finding Kalansuriya not
2
1 credible, the IJ reasonably relied in part on Kalansuriya’s
2 demeanor while testifying and the implausibility of part of
3 his claim. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also
4 Wensheng Yan v. Mukasey, 509 F.3d 63, 66 (2d Cir. 2007);
5 Majidi v. Gonzales,
430 F.3d 77, 81 n.1 (2d Cir. 2005).
6 Additionally, the IJ reasonably noted the absence of certain
7 documentary evidence that may have corroborated
8 Kalansuriya’s claim. See Biao Yang v. Gonzales,
496 F.3d
9 268, 273 (2d Cir. 2007). Kalansuriya argues that the agency
10 erred in concluding that there was an inconsistency between
11 his testimony and his asylum application regarding whether
12 he was pressured by the Liberation Tigers of Tamil Eelam
13 (“LTTE”) to stop providing information to the police or
14 military, or whether he was told instead by the LTTE to stop
15 conducting business with the police and military. Even
16 assuming that this inconsistency finding was not supported
17 by the record, however, remand is unnecessary here because
18 the agency’s other findings constitute substantial evidence
19 to support the adverse credibility determination, and we can
20 confidently predict that the agency would reach the same
21 decision were the case remanded. See Xiao Ji Chen v. U.S.
22 Dep’t of Justice,
471 F.3d 315, 338-40 (2d Cir. 2006).
23 We decline to consider Kalansuriya’s argument that the
3
1 IJ erred by failing to consider the most recent U.S.
2 Department of State country reports because Kalansuriya did
3 not exhaust this argument before the BIA. See Lin Zhong v.
4 U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
5 Finally, insofar as Kalansuriya based his applications
6 for withholding of removal and CAT relief on the same
7 factual predicate that the agency found not credible, both
8 of his claims necessarily fail. See Paul v. Gonzales, 444
9 F.3d 148, 156 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
4
