Filed: Jan. 19, 2016
Latest Update: Mar. 02, 2020
Summary: 14-1236 Kulothungam v. Lynch BIA Connelly, IJ A200 944 353 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
Summary: 14-1236 Kulothungam v. Lynch BIA Connelly, IJ A200 944 353 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..
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14-1236
Kulothungam v. Lynch
BIA
Connelly, IJ
A200 944 353
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.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
19th day of January, two thousand sixteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
REENA RAGGI,
DENNY CHIN,
Circuit Judges.
_____________________________________
PASKARATHUNGAN KULOTHUNGAM,
Petitioner,
v. 14-1236
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, Esq.,
New York, New York.
FOR RESPONDENT: Mona Maria Yousif, United States
Attorney, Office of Immigration
1
Litigation, United States
Department of Justice,
Washington, D.C.; Brianne Whelan
Cohen, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review is
DENIED.
Paskarathungan Kulothungam, a native and citizen of Sri
Lanka, seeks review of an April 3, 2014 decision of the BIA
affirming a December 20, 2013 decision of an Immigration Judge
(“IJ”) denying his application for withholding of removal and
relief under the Convention Against Torture (“CAT”). See In
re Kulathungam, No. A200 944 353 (B.I.A. Apr. 3, 2014), aff’g
No. A200 944 353 (Immig. Ct. Batavia, N.Y. Dec. 20, 2013). We
assume the parties’ familiarity with the underlying facts and
procedural history in this case, which we reference only as
necessary to explain our decision to deny the petition.
Because the BIA affirmed the IJ’s decision, we review the
two decisions in tandem. Applying the “substantial evidence”
standard, “we uphold the IJ's factual findings if they are
supported by reasonable, substantial and probative evidence in
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the record.” Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009)
(internal quotation marks omitted). “By contrast, we review
de novo questions of law and the BIA's application of law to
undisputed fact.”
Id. (internal alterations and quotation
marks omitted); see also 8 U.S.C. § 1252(b)(4).
Withholding of removal under 8 U.S.C. § 1231 requires the
applicant to show that it is more likely than not that he will
be persecuted “because of [his] race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3); see also Ramsameachire v. Ashcroft, 357
F.3d 169, 178 (2d Cir. 2004). If an applicant establishes that
he suffered past persecution on account of a protected ground,
it is presumed that he is likely to be persecuted in the future
“on the basis of the original claim.” 8 C.F.R.
§ 1208.16(b)(1)(i).
Here, the agency reasonably ruled that Kulothungam was not
entitled to a presumption of a likelihood of future persecution
based on past threats and assaults by members of the Sri Lankan
military and Tamil Liberation Party of Tamira (“PLOTE”),
because he did not establish that the past harm was on account
of a protected ground. Kulothungam’s testimony revealed that
he was harmed for following his employer’s orders to disconnect
3
unauthorized electricity lines, and did not provide any direct
or circumstantial evidence that he was targeted on account of
his ethnicity or an imputed political opinion that was “so
compelling” that it would warrant reversal of the BIA’s
decision. INS v. Elias-Zacarias, 502 U.S. 478, 481–84 & n.1
(1992).
Absent the presumption derived from past persecution, an
applicant for withholding of removal must establish that it is
more likely than not that he will face future persecution on
account of a protected ground. To carry this burden an
applicant need not “provide evidence that he . . . would be
singled out individually for . . . persecution” if he
establishes that “there is a pattern or practice of persecution
of a group of persons similarly situated” to him on account of
a protected ground, and that his “inclusion in and
identification with such group” means “it is more likely than
not” he would be persecuted upon return. 8 C.F.R.
§§ 1208.16(b)(2). Here, the agency reasonably determined that
Kulothungam failed to make this showing.
The country condition evidence indicates that the Sri
Lankan armed forces sometimes arbitrarily arrest and harm
persons suspected of being LTTE sympathizers, and that ethnic
4
Tamils face generalized discrimination and harassment.
However, Kulothungam did not show that he is or would likely
be perceived to be an LTTE sympathizer, or that he would likely
face harm rising to the level of persecution on account of his
Tamil ethnicity alone. Indeed, Kulothungam admitted that he
lived unharmed in Sri Lanka for many years except for the two
instances when he disconnected illegally obtained electricity.
Moreover, as the agency reasonably found, Kulothungam’s
assertion that he would likely face harm based on the proposed
social group of individuals who have sought asylum in the United
States is not supported by the evidence presented. That some
unsuccessful Tamil asylum seekers are detained and that one
individual was tortured upon return to Sri Lanka do not compel
the conclusion that returned asylum seekers, in general, face
likely persecution or torture. See Lin v. United States Dep’t
of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005).
The agency further reasonably determined that Kulothungam
did not establish a likelihood of torture on any other ground
by or with the acquiescence of the Sri Lankan government. See
8 C.F.R. § 1208.16(c)(2). He provided no direct or
circumstantial evidence, and his country condition evidence did
not establish, that members of the PLOTE or the military would
5
look for him based on his disconnection of their unauthorized
electricity lines years ago or that they would inflict harm
rising to the level of torture if they found him. See Savchuck
v. Mukasey, 518 F.3d 119, 123-24 (2d Cir. 2008) (stating that
alien cannot show that he faces likely torture if occurrence
of one link in chain cannot be shown to be more likely than not:
“It is the likelihood of all necessary events coming together
that must more likely than not lead to torture, and a chain of
events cannot be more likely than its least likely link.”
(quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006))).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Fed. R. App. P.
34(a)(2) and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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