Filed: Dec. 15, 2016
Latest Update: Mar. 03, 2020
Summary: 15-1035 Perera v. Lynch BIA Hom, IJ A089 224 988 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 NOTATI
Summary: 15-1035 Perera v. Lynch BIA Hom, IJ A089 224 988 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 NOTATIO..
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15-1035
Perera v. Lynch
BIA
Hom, IJ
A089 224 988
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 15th day of December, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 KODIKARA ARACHCHIGE JUDE FRANK
14 PERERA,
15 Petitioner,
16
17 v. 15-1035
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Visuvanathan Rudrakumaran, Law
25 Office of Visuvanathan
26 Rudrakumaran, New York, New York.
27
28 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
29 Assistant Attorney General; Anthony
30 P. Nicastro, Acting Assistant
31 Director; Yanal H. Yousef, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Kodikara Arachchige Jude Frank Perera, a native
11 and citizen of Sri Lanka, seeks review of a March 10, 2015,
12 decision of the BIA affirming a June 4, 2013, decision of an
13 Immigration Judge (“IJ”) denying Perera’s application for
14 asylum, withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Kodikara Arachchige Jude Frank
16 Perera, No. A089 224 988 (B.I.A. Mar. 10, 2015), aff’g No. A089
17 224 988 (Immig. Ct. N.Y. City June 4, 2013). We assume the
18 parties’ familiarity with the underlying facts and procedural
19 history in this case.
20 We have reviewed both the IJ’s and the BIA’s opinions “for
21 the sake of completeness.” Wangchuck v. DHS, 448 F.3d 524, 528
22 (2d Cir. 2006). We review the IJ’s factual findings under the
23 substantial evidence standard, upholding those findings
2
1 “unless any reasonable adjudicator would be compelled to
2 conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Xiu Xia
3 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008). We review
4 de novo questions of law and the agency’s application of law
5 to undisputed fact. Yanqin Weng v. Holder,
562 F.3d 510, 513
6 (2d Cir. 2009).
7 1. Perera argues that the doctrines of collateral estoppel
8 and law of the case barred the IJ from reconsidering his
9 credibility on remand. His reliance on collateral estoppel is
10 misplaced, as that doctrine applies only to relitigation of
11 issues decided by entry of a final judgment on the merits. Gelb
12 v. Royal Globe Ins. Co.,
798 F.2d 38, 44 (2d Cir. 1986).
13 The law of the case doctrine provides “that when a court
14 has ruled on an issue, that decision should generally be adhered
15 to by that court in subsequent stages in the same case . . .
16 unless cogent and compelling reasons militate otherwise.”
17 United States v. Quintieri,
306 F.3d 1217, 1225 (2d Cir. 2002)
18 (internal quotation marks and citations omitted). Here, the
19 “cogent and compelling” reasons for reconsidering Perera’s
20 credibility were the indictment of his former counsel for filing
21 fraudulent applications and Perera’s decision to offer
3
1 additional testimony on remand. See Johnson v. Holder, 564
2 F.3d 95, 99 (2d Cir. 2009) (explaining that “law of the case
3 doctrine does not rigidly bind a court to its former decisions”
4 and that the “availability of new evidence” is a cogent and
5 compelling reason for altering a prior ruling (internal
6 quotation marks omitted)).
7 2. Perera also argues that the BIA remand was limited to
8 determining whether the harm he suffered was on account of a
9 protected ground, and that reconsideration of his credibility
10 was therefore beyond the scope of the remand. Perera is
11 incorrect. “[U]nless the Board qualifies or limits the remand
12 for a specific purpose, the remand is effective for the stated
13 purpose and for consideration of any and all matters which the
14 Service officer deems appropriate in the exercise of his
15 administrative discretion.” Matter of Patel, 16 I. & N. Dec.
16 600, 601 (BIA 1978). Because the BIA did not limit its remand,
17 the IJ had the authority to consider Perera’s credibility.
Id.
18 3. Perera argues that the IJ evidenced bias when he asked
19 Perera if he wished to withdraw his asylum application as a
20 result of his former counsel’s indictment. This was not
21 evidence of bias. The IJ made clear that he provided this
4
1 opportunity as part of his duty to advise Perera of the
2 consequences of filing a frivolous application. 8 U.S.C.
3 § 1158(d)(4)(A) (providing that agency must advise applicant
4 of consequences of knowingly filing a frivolous application).
5 4. Perera challenges the merits of the IJ’s adverse
6 credibility finding. We conclude that the finding is supported
7 by substantial evidence. The agency may, “[c]onsidering the
8 totality of the circumstances . . . base a credibility
9 determination on” inconsistencies in an applicant’s statements
10 and other record evidence “without regard to whether” those
11 inconsistencies go “to the heart of the applicant’s claim.” 8
12 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
13 “We defer . . . to an IJ's credibility determination unless,
14 from the totality of the circumstances, it is plain that no
15 reasonable fact-finder could make such an adverse credibility
16 ruling.” Xiu Xia
Lin, 534 F.3d at 167.
17 Here, however, the inconsistencies went to the heart of the
18 claim, including an inconsistency concerning “the very
19 persecution from which [the petitioner] sought asylum.” Xian
20 Tuan Ye v. DHS,
446 F.3d 289, 294-95 (2d Cir. 2006). Perera
21 testified on remand that the Sri Lankan military broke his legs
5
1 when they beat him. The medical report he submitted, however,
2 described only bruises and a problem with nerves in his arm.
3 This inconsistency, standing alone, is sufficient to support
4 the adverse credibility determination because it concerned the
5 sole incident of harm that formed the basis of Perera’s claim.
6 Id. The IJ was not required to credit Perera’s explanation,
7 that the report detailed the treatment, not the injuries. It
8 makes little sense that he would receive treatment for bruises,
9 but not for fractures. Majidi v. Gonzales,
430 F.3d 77, 80 (2d
10 Cir. 2005).
11 The adverse credibility determination is reinforced by
12 Perera’s inconsistent testimony as to why he remained in Sri
13 Lanka for several months after receiving a visa to travel to
14 the United States. He testified that he needed to secure
15 housing for his family; but he had previously testified that
16 he stayed to receive additional medical care. The IJ was not
17 required to accept Perera’s explanation that he may have
18 forgotten to mention the need to secure housing. Majidi,
430
19 F.3d at 80.
20 In addition to these inconsistencies, the adverse
21 credibility determination is supported by Perera’s lack of
6
1 corroboration. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
2 Cir. 2007) (“An applicant’s failure to corroborate his . . .
3 testimony may bear on credibility, because the absence of
4 corroboration in general makes an applicant unable to
5 rehabilitate testimony that has already been called into
6 question.”). As the IJ observed, Perera failed to produce
7 medical records documenting his injuries or affidavits from his
8 brother-in-law and a family friend explaining how they were able
9 to bribe the Sri Lankan military to get Perera out of detention.
10 Considering the inconsistencies and the failure to
11 corroborate, the “totality of the circumstances” supports the
12 adverse credibility determination. See Xiu Xia Lin,
534 F.3d
13 at 165-66. The adverse credibility determination is
14 dispositive of asylum, withholding of removal, and CAT relief,
15 as all three claims were based on the same factual predicate.
16 Paul v. Gonzales,
444 F.3d 148, 156-57 (2d Cir. 2006).
17 Accordingly, we decline to reach Perera’s arguments regarding
18 whether his claim bore a nexus to a protected ground. INS v.
19 Bagamasbad,
429 U.S. 24, 25 (1976) (“As a general rule courts
20 and agencies are not required to make findings on issues the
21 decision of which is unnecessary to the results they reach.”).
7
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O=Hagan Wolfe, Clerk
8
