Filed: Nov. 30, 2011
Latest Update: Feb. 22, 2020
Summary: 10-3417-ag Gammeddegoda Liyanage v. Holder BIA Hom, IJ A088 775 709 A088 775 710 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 ELEC
Summary: 10-3417-ag Gammeddegoda Liyanage v. Holder BIA Hom, IJ A088 775 709 A088 775 710 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 ELECT..
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10-3417-ag
Gammeddegoda Liyanage v. Holder
BIA
Hom, IJ
A088 775 709
A088 775 710
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 30th day of November, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 SAMPATH GAMMEDDEGODA LIYANAGE, NIMMI
14 IROSHANI DEL SI NANAYAKKARA PALLAGE,
15 Petitioners,
16
17 v. 10-3417-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; Douglas E. Ginsburg,
1 Assistant Director; Katherine A.
2 Smith, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED, that the petition for review
10 is DENIED.
11 Petitioners Sampath Gammeddegoda Liyanage and Nimmi
12 Iroshani Del Si Nanayakkara Pallage, natives and citizens of
13 Sri Lanka, seek review of a July 27, 2010 order of the BIA,
14 affirming the September 22, 2008, decision of Immigration
15 Judge (“IJ”) Sandy K. Hom, which denied their applications
16 for asylum, withholding of removal, and relief under the
17 Convention Against Torture (“CAT”). In re Sampath
18 Gammeddegoda Liyanage, Nimmi Iroshani Del Si Nanayakkara
19 Pallage, Nos. A088 775 709/710 (B.I.A. July 27, 2010), aff’g
20 Nos. A088 775 709/710 (Immig. Ct. N.Y. City Sep. 22, 2008).
21 We assume the parties’ familiarity with the underlying facts
22 and procedural history in this case.
23 Under the circumstances of this case, we have reviewed
24 both the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
26 2008). The applicable standards of review are well-
2
1 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
2 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
3 After finding that Petitioners failed to establish past
4 persecution, the agency reasonably determined that
5 Petitioners’ fear of future persecution from the Liberation
6 Tigers of Tamil Eelam ("LTTE") lacked a sufficient nexus to
7 a statutorily protected ground. See 8 U.S.C.
8 §§ 1158(b)(1)(B)(i), 1231(b)(3)(A). Although Petitioners
9 argue that their prior abduction was revenge for Nanayakkara
10 Pallage's father's arrest of LTTE members, they do not
11 challenge the agency’s finding that the LTTE’s actions did
12 not amount to past persecution. Moreover, based on
13 Gammeddegoda Liyanage's testimony that the LTTE was
14 interested in him to acquire dynamite from his rock
15 quarrying business, the agency reasonably determined that
16 the LTTE’s future contact and threats were not related to a
17 statutorily protected ground. See INS v. Elias-Zacarias,
18 502 U.S. 478, 482-83 (1992) (holding that the desire of a
19 guerrilla movement to "fill their ranks in order to carry on
20 their war against the government and pursue their political
21 goals . . . does not render the forced recruitment
22 ‘persecution on account of . . . political opinion'")
23 (internal citations omitted)).
3
1 The agency’s determination that Petitioners failed to
2 establish a well-founded fear of future persecution from the
3 Sri Lankan army is also supported by substantial evidence.
4 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.
5 2005). Gammeddegoda Liyanage testified that he had not
6 heard the army had been looking for him since February 2007
7 and Nanayakkara Pallage testified that the army never made
8 threats as a result of Gammeddegoda Liyanage's refusal to
9 cooperate against the LTTE. Although Gammeddegoda Liyanage
10 testified that the army falsely suspected that he illegally
11 provided dynamite to the LTTE, or was planning to do so, he
12 also testified that his business partner, who signed for the
13 dynamite, had been questioned and released by the army and
14 was in the process of restarting their rock quarrying
15 business. Under these circumstances, the agency's finding
16 that Petitioners failed to establish a well-founded fear of
17 future persecution at the hands of the Sri Lankan army was
18 supported by substantial evidence, as it cannot be said that
19 "any reasonable adjudicator would be compelled to conclude
20 to the contrary." 8 U.S.C. § 1252(b)(4)(B); see Jian Xing
21
Huang, 421 F.3d at 129.
22
4
1 In addition, Petitioners’ contention that the agency
2 failed to consider corroborative affidavits showing a well-
3 founded fear of persecution is without merit. Although the
4 agency did not specifically refer to these documents,
5 because the agency's denial of relief was not based on a
6 lack of corroboration or credibility, the record does not
7 compellingly suggest that the agency failed to consider the
8 evidence. See Xiao Ji Chen v. U.S. Dep't of Justice, 471
9 F.3d 315, 337 n.17 (2d Cir. 2006). Indeed, nothing in
10 Petitioners' cited evidence contradicts Gammeddegoda
11 Liyanage's own testimony that the army has not sought his
12 whereabouts since February 2007, or the agency's finding
13 that the LTTE's conduct was not motivated by statutorily
14 protected ground. Accordingly, the agency did not err in
15 denying Petitioners' applications for asylum and withholding
16 of removal. See
id.
17 Lastly, in denying CAT relief, the agency reasonably
18 relied on Petitioners’ failure to demonstrate that they
19 would be tortured with the acquiescence of a public
20 official. See 8 C.F.R. § 1208.18(a)(7). The agency noted
21 that the Sri Lankan government took affirmative actions to
22 combat the LTTE as evidenced in Petitioners’ claims, but
23 based its decision on Gammeddegoda Liyanage’s uncontradicted
5
1 testimony that neither he nor any member of his family had
2 ever been arrested or physically mistreated by the
3 government of Sri Lanka. Under these circumstances, the
4 agency did not err in determining that the Petitioners
5 failed to demonstrate that they would more likely than not
6 be tortured upon removal to Sri Lanka. See 8 C.F.R. §
7 1208.16(c)(2); Yan Yan Lin v. Holder, 584 F.3d 75, 82 (2d
8 Cir. 2009).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
6
