Filed: Jan. 29, 2016
Latest Update: Mar. 02, 2020
Summary: 13-1046 Hanarasingha v. Lynch BIA Videla, IJ A089 915 599 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 T
Summary: 13-1046 Hanarasingha v. Lynch BIA Videla, IJ A089 915 599 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 TH..
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13-1046
Hanarasingha v. Lynch
BIA
Videla, IJ
A089 915 599
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 29th day of January, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 ROBERT D. SACK,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _____________________________________
13
14 NAMAL NUWAN HANARASINGHA,
15 Petitioner,
16
17 v. 13-1046
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Nhan C. Vo, Richmond Hill, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; John S. Hogan, Senior
28 Litigation Counsel; Channah F.
29 Norman, Trial Attorney, Civil
30 Division, Office of Immigration
31 Litigation, United States Department
32 of Justice, Washington D.C.
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 Namal Nuwan Hanarasingha, a native and
6 citizen of Sri Lanka, seeks review of a February 22, 2013
7 decision of the BIA affirming a January 26, 2011 decision of
8 an Immigration Judge (“IJ”) denying Hanarasingha’s
9 application for asylum, withholding of removal and relief
10 under the Convention Against Torture (“CAT”). In re Namal
11 Nuwan Hanarasingha, No. A089 915 599 (B.I.A. Feb. 22, 2013),
12 aff’g No. A089 915 599 (Immig. Ct. N.Y. City Jan. 26, 2011).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history in this case.
15 Under the circumstances of this case, we review both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (internal quotation marks omitted). “The ‘substantial
19 evidence’ standard of review applies, and we uphold the IJ’s
20 factual findings if they are supported by reasonable,
21 substantial and probative evidence in the record.” Yanqin
22 Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009) (internal
2
1 quotation marks and citations omitted). See also 8 U.S.C.
2 § 1252(b)(4)(B). We “defer to an IJ’s credibility
3 determination unless, from the totality of the
4 circumstances, it is plain that no reasonable fact-finder
5 could make such an adverse credibility ruling.” Xiu Xia Lin
6 v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
7 Here, the IJ’s adverse credibility finding rested
8 primarily on the fact that Hanarasingha testified
9 extensively about a September 2007 physical attack by
10 opposition party “thugs,” but had failed to refer to that
11 attack in his written asylum application. While an asylum
12 applicant is “not required to list every incident of
13 persecution” in his application, Pavlova v. INS,
441 F.3d
14 82, 90 (2d Cir. 2006), “[a] lacuna in an applicant’s
15 testimony or omission in a document submitted to corroborate
16 the applicant’s testimony, like a direct inconsistency
17 between one or more of those forms of evidence, can serve as
18 a proper basis for an adverse credibility determination,”
19 Xiu Xia
Lin, 534 F.3d at 166 n.3.
20 Hanarasingha testified that the September 2007 attack
21 was the “most serious” incident of persecution he suffered.
22 Nevertheless, in a written statement submitted with his
3
1 asylum application, he described threats made by opposition
2 leaders, but made no mention of the attack. The IJ
3 reasonably deemed that omission significant. Further,
4 Hanarasingha failed to submit documents to corroborate his
5 political affiliation with Sri Lanka’s United National Party
6 – the cornerstone of his asylum claim, and the reason he was
7 purportedly attacked. See Biao Yang v. Gonzales, 496 F.3d
8 268, 273 (2d Cir. 2007). Based on those factors, the IJ
9 found Hanarasingha incredible. We cannot conclude that no
10 reasonable factfinder would have made such an adverse
11 credibility finding. Majidi v. Gonzales,
430 F.3d 77, 80
12 (2d Cir. 2005).
13 Having found that Hanarasingha failed to establish
14 eligibility for asylum on credibility grounds, the agency
15 did not err in denying withholding of removal and relief
16 under the CAT, as those claims shared the same factual
17 predicate. See Paul v. Gonzales,
444 F.3d 148, 156-57 (2d
18 Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice,
426 F.3d
19 520, 523 (2d Cir. 2005).
20 Hanarasingha also challenges the agency’s rejection of
21 three documents that he produced, for the first time, at his
22 merits hearing. An IJ may set a deadline for documents to
23 be filed and thereafter deem the opportunity to file them
4
1 waived. 8 C.F.R. § 1003.31(c). Such a waiver is not
2 automatic because the IJ “retains the authority to determine
3 how to treat an untimely filing.” Imm. Ct. Pract. Man.
4 ch. 3.1(d)(ii). We review an IJ’s rejection of untimely
5 documents for abuse of discretion. Dedji v. Mukasey, 525
6 F.3d 187, 191 (2d Cir. 2008).
7 Hanarasingha’s removal proceedings began in March 2009.
8 The IJ imposed a document submission deadline of August 24,
9 2009, but noted that the Immigration Court Practice Manual
10 permitted filing within 15 days of the January 2011 merits
11 hearing. Imm. Ct. Pract. Man. ch. 3.1(b)(ii)(A).
12 Hanarasingha’s documents were untimely by either measure.
13 He attempted to excuse the lateness by arguing that his
14 mother was afraid to request the documents and that the
15 documents’ custodians either were frightened or for some
16 other reason refused her requests. The IJ was within his
17 discretion to rule that Hanarasingha had not established
18 good cause for his fifteen-month delay in submitting the
19 documents. Nor can Hanarasingha demonstrate “substantial
20 prejudice from enforcement of the deadline.” Dedji,
525
21 F.3d at 192. The record suggests just the opposite – that
22 is, the three rejected documents actually impugned
23 Hanarasingha’s credibility.
5
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
6
