Ratnasingam v. Holder

United States Court of Appeals
For the First Circuit

Nos. 08-1242; 08-1531

RAMMEASH RATNASINGAM,

Petitioner,

v.

ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,

Respondent.

ON PETITIONS FOR REVIEW OF ORDERS
OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.

Visuvanathan Rudrakumaran and Law Office of V. Rudrakumaran
for petitioner.
Manuel A. Palau, Trial Attorney, Office of Immigration
Litigation, Gregory G. Katsas, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, for respondent.

February 12, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
 LYNCH, Chief Judge. Rammeash Ratnasingam, a native and

citizen of Sri Lanka, petitions this court for review both of an

order of the Board of Immigration Appeals ("BIA") denying him

relief from removal and of an order denying his motion to reopen.

On January 31, 2008, the BIA affirmed the Immigration

Judge's ("IJ") denial of Ratnasingam's applications for asylum,

withholding of removal, and relief under the Convention Against

Torture ("CAT"), all based on his alleged persecution as an ethnic

Tamil by the majority Sinhalese ethnic group. Ratnasingam's later

motion to reopen, which argued that conditions in Sri Lanka had

worsened for Tamils, was denied on April 18, 2008. We deny the

petitions for review.

I.

When Ratnasingam attempted to enter the United States on

May 4, 2007 at the airport in San Juan, Puerto Rico, immigration

authorities discovered that his passport contained a fraudulent

visa and detained him. Ratnasingam admitted to purchasing the visa

from an agent in Sri Lanka but claimed he had not known it was

fraudulent. The government issued a Notice to Appear on May 23,

charging Ratnasingam with removability for seeking admission to the

United States with a fraudulent visa and for lacking a valid entry

document. He conceded removability and applied for asylum,

withholding of removal, and relief under the CAT.

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 At a hearing before an IJ on August 22, 2007, Ratnasingam

testified that he was born in Northeastern Sri Lanka in 1977. He

moved to Colombo, where he operated a video store and earned money

by photographing and videotaping weddings and other functions.

Ratnasingam testified about four incidents that he said

formed the basis for his fear of returning to Sri Lanka. The first

occurred in May or June 2001, when three men in army uniforms

accosted Ratnasingam as he returned to his shop after videotaping

a wedding. The men took him to a camp, where they questioned him

for three hours. They showed Ratnasingam several photographs and

asked him if he had taken them or could identify the individuals in

them. Ratnasingam stated that he had not taken the pictures and

could not identify the subjects. The men then asked him if he or

his family supported the Liberation Tamil Tigers of Eelam ("LTTE"),

a Tamil separatist group. Ratnasingam denied any involvement. The

men did not harm Ratnasingam and they released him the following

day.

The next incident occurred four years later. In 2005,

four men who identified themselves as LTTE members entered

Ratnasingam's store. They told him that they wanted him to stock

and rent out LTTE propaganda CDs. Ratnasingam refused. The men

told him, "you are a Tamil. You must help the Tamils." After he

continued to refuse, the men told Ratnasingam not to videotape any

political functions. They threatened Ratnasingam that if he told

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anyone what had happened, they would tell the Sri Lankan army that

he was involved with the LTTE.

On April 18, 2006, Ratnasingam's brother-in-law,

Mahadevan Kishorkumar was killed near an army camp, but Ratnasingam

did not know why Kishorkumar was killed or who did it.

Kishorkumar, who had worked in Ratnasingam's shop, had left Colombo

to celebrate the Tamil New Year with family.

Finally, in February 2007, Ratnasingam began to receive

anonymous telephone calls demanding money and threatening that he

would be killed if he contacted the police. Ratnasingam had seen

news reports of individuals, all Tamils, who had disappeared and

who later turned up dead. No person ever approached him, however,

and he never discovered who made the calls or their reason.

Ratnasingam did not contact the police because he believed that

they would not help him.

Ratnasingam left Sri Lanka on April 14, 2007. Though he

traveled through five or six countries before arriving in Puerto

Rico several weeks later, Ratnasingam did not seek asylum in any of

these countries.

The IJ's oral decision, dated September 27, 2007,

concluded that the incidents to which Ratnasingam testified did not

amount to persecution. Ratnasingam was never physically harmed in

any of the incidents he described. The motive for the murder of

Kishorkumar was unknown. The IJ found Ratnasingam had not

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established a pattern or practice of persecution of Tamils in Sri

Lanka, stating that even though there was "evidence in the record

that Tamils are persecuted," Ratnasingam had "failed to identify a

persecutor [or] persecution as contemplated by case law," and

rejected the CAT claim because he provided no evidence of torture.

The IJ did not reach the issue of whether Ratnasingam was credible.

The BIA affirmed on January 31, 2008, holding that

Ratnasingam's past experiences did not amount to persecution on

account of one of the protected grounds, and that Ratnasingam had

failed to establish a pattern or practice of persecution. It

affirmed the IJ's denial of Ratnasingam's CAT claim, concluding

that there was nothing in the record to establish a probability of

torture.

The BIA denied Ratnasingam's later motion to reopen,

concluding that the purported "new" evidence Ratnasingam provided

was not unavailable at the prior hearing, but merely "reiterated

his previous claim," and the claims lacked merit. His claim that

he would face persecution as a failed asylum seeker constituted a

change in personal circumstances not a change in country

conditions, and he could not establish persecution on the basis of

membership in either of two purported social groups –- failed

asylum seekers or young male Tamils –- neither of which constituted

a social group under the Immigration and Nationality Act.

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 Ratnasingam filed separate petitions for review of the

BIA's orders, which this court consolidated.1

II.

Where the BIA has issued its own opinion without adopting

the IJ's findings, we review the BIA's decision. Lin v. Mukasey,

521 F.3d 22, 26 (1st Cir. 2008).

Ratnasingam incorrectly argues that our review is de

novo. Whether an applicant has met his or her burden for proving

eligibility is a question of fact, reviewed under the substantial

evidence standard. Khan v. Mukasey, 541 F.3d 55, 58 (1st Cir.

2008); see also Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.

2008). We uphold the BIA's findings "if they are 'supported by

reasonable, substantial, and probative evidence on the record

considered as a whole,'" Budiono, 548 F.3d at 48 (quoting Sharari

v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005)), and will "reverse

only if 'any reasonable adjudicator would be compelled to conclude

to the contrary,'" id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

An applicant for asylum bears the burden of demonstrating

that he or she "suffered past persecution or has a well-founded

fear of future persecution based on one of five enumerated

grounds." Chikkeur v. Mukasey, 514 F.3d 1381, 1382 (1st Cir.

1
Ratnasingam also filed a motion for a stay of removal.
This court denied the motion on March 25, 2008, concluding that he
was not likely to succeed on the merits. See Arevalo v. Ashcroft,
344 F.3d 1, 7-9 (1st Cir. 2003).

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2008); see 8 U.S.C. § 1101(a)(42)(A) (defining "refugee" as one who

suffers persecution on the basis of "race, religion, nationality,

membership in a particular social group, or political opinion").

The REAL ID Act, which applies to asylum applications filed after

May 11, 2005 such as Ratnasingam's, additionally requires that the

applicant show that one of the statutory factors "was or will be at

least one central reason for persecuting the applicant." See id.

§ 1158(b)(1)(B)(i), as amended by Pub. L. No. 109-13, § 101(a), 119

Stat. 231, 302-03 (2005).

The record simply does not compel the conclusion that

Ratnasingam "was subjected to systematic maltreatment rising to the

level of persecution, as opposed to a series of isolated

incidents." Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005)

(affirming denial of asylum to applicant who had been arrested and

beaten seven times in his home country). His encounters with the

Sri Lankan army in 2001 and the LTTE in 2005 are insufficient.

Experiences that do not "rise above unpleasantness, harassment, and

even basic suffering" are not persecution. Khalil v. Ashcroft, 337

F.3d 50, 55 (1st Cir. 2003) (quoting Nelson v. INS, 232 F.3d 258,

263 (1st Cir. 2000)). Ratnasingam was detained once by the army

and released without being harmed. He was accosted in his store

once by LTTE members and was again physically unharmed. Although

he was threatened after each incident, he never saw any of the men

again. See Ravindran v. INS, 976 F.2d 754, 759 (1st Cir. 1992)

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(holding that substantial evidence supported the denial of asylum

to a Tamil Sri Lankan in part because he remained in the country

without incident for one year after the alleged persecution).

Further, he never reported any encounters with LTTE or army

personnel in the years he remained in Sri Lanka.

The requirement that one of the statutory factors be a

"central reason for persecuting the applicant" means Ratnasingam

cannot establish past persecution on the basis of Kishorkumar's

murder (for unknown reasons) or the anonymous telephone calls.

Nothing in the record compels the conclusion that the anonymous

caller targeted Ratnasingam "for anything other than economic

motives." Chikkeur, 514 F.3d at 1383. Similarly, the record does

not compel a finding that Kishorkumar's killers acted on account of

one of the statutory grounds; it is completely silent on their

motive. "Because the motive for the persecution is critical, a

petitioner 'must provide some evidence of it, direct or

circumstantial.'" Khalil, 337 F.3d at 55 (emphasis added) (quoting

INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)).

Ratnasingam also failed to establish a pattern or

practice of persecution. A petitioner that does not provide

evidence that he or she will be singled out for persecution may

still qualify for asylum by establishing that there is a "pattern

or practice in his or her country . . . of persecution of a group

of persons similarly situated to the applicant on account of" the

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statutory grounds. 8 C.F.R. § 1208.13(b)(2)(iii)(A). Ratnasingam

argues that because the IJ made findings that "he is a Tamil" and

that "there is evidence in the record that Tamils are persecuted,"

the IJ and the BIA erred in denying him asylum. The IJ did not,

however, find there was a pattern or practice of persecution, but

rather that his evidence failed to establish any such pattern.

The BIA committed no error in affirming this

determination. "That a group suffers due to violent civil conflict

. . . in the home country does not suffice to establish a pattern

or practice" of persecution. Kho v. Keisler, 505 F.3d 50, 54 (1st

Cir. 2007) (quoting Meguenine v. INS, 139 F.3d 25, 28 (1st Cir.

1998)); see also Velasquez-Valencia v. INS, 244 F.3d 48, 51 (1st

Cir. 2001) ("Congress has chosen to define asylum as limited to

certain categories; . . . it has not generally opened the doors to

those merely fleeing from civil war."). Moreover, in Ravindran, a

case that involved an asylum claim by a Sri Lankan Tamil, this

court noted that "evidence of widespread violence and human rights

violations affecting all citizens is insufficient to establish

persecution." Ravindran, 976 F.2d at 759.

Because Ratnasingam "cannot meet the lower burden of

proof for establishing his eligibility for asylum, he therefore

cannot satisfy the more stringent standard for withholding of

removal." Sinurat v. Mukasey, 537 F.3d 59, 62 (1st Cir. 2008).

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 As to the CAT claim, Ratnasingam argues that, regardless

of his failure to prove or provide any evidence of past torture, it

is more likely than not that he will be tortured if returned, based

on country conditions, the facts that "his photograph was taken by

the Sri Lankan authorities in 2001, . . . [that] he is returning

from a foreign country, . . . [and that] he is a failed asylum

seeker," and a report that an LTTE member who was returned in

October 2003 was tortured. The record does not compel a conclusion

that it is more likely than not that Ratnasingam, who was never an

LTTE member, would be tortured if returned. His claim is wholly

speculative. See Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir. 2008).

III.

The BIA also did not abuse its discretion in denying

Ratnasingam's motion to reopen. See Zeru v. Gonzales, 503 F.3d 59,

71 (1st Cir. 2007). Motions to reopen deportation proceedings are

disfavored due to the strong public interest in concluding

litigation. Id.

A motion to reopen deportation proceedings must state

"the new facts that will be proven . . . if the motion is granted"

and must demonstrate that "evidence sought to be offered is

material and was not available and could not have been discovered

or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1).

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Ratnasingam failed to state any new, material facts.2 The

documentary evidence that he submitted, including the 2008 State

Department country report, did not demonstrate intensified

persecution but mirrored evidence submitted in support of his

original application.

The BIA did not abuse its discretion in concluding that

his status as a failed asylum seeker constituted changed personal

circumstances rather than changed country conditions, or in finding

the claim was not new, having been made to the IJ.

Ratnasingam incorrectly argues that the BIA applied the

wrong legal standard to his motion to reopen and that his burden

was merely to demonstrate prima facie eligibility for relief.

Prima facie eligibility for relief is only one of the two threshold

requirements for a motion to reopen. Fesseha v. Ashcroft, 333 F.3d

13, 20 (1st Cir. 2003). Ratnasingam's failure to establish that he

met the second threshold -- that of introducing previously

unavailable, material evidence -- dooms his claim.

IV.

The petitions for review are denied.

2
Because the BIA supportably denied Ratnasingam's motion
on these grounds, we need not address its separate conclusion that
Ratnasingam failed to establish that "failed asylum seekers" or
"young male Tamils" constituted social groups within the meaning of
the Immigration and Nationality Act.

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