14-637
Viknesrajah v. Lynch
BIA
Reid, IJ
A095 665 546
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.
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
1st day of July, two thousand fifteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
NADARAJAH VIKNESRAJAH, AKA MARIO
D'AMICO, AKA VIKNESRAJAH
NADARAJAH,
Petitioner,
v. 14-637
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, Law
Offices of Visuvanathan
Rudrakumaran, New York, New York.
FOR RESPONDENT: Joyce Branda, Acting Assistant
Attorney General; Christopher C.
Fuler, Deputy Chief, National
Security Unit; Alison Marie Igoe,
Senior Counsel for National
Security, National Security Unit,
Office of Immigration Litigation,
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.
Petitioner Nadarajah Viknesrajah, a native and citizen of
Sri Lanka, seeks review of a January 29, 2014, decision of the
BIA affirming a December 31, 2012, decision of an Immigration
Judge (“IJ”) denying Viknesrajah’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Nadarajah Viknesrajah, No. A095 665 546
(B.I.A. Jan. 29, 2014), aff’g No. A095 665 546 (Immig. Ct.
Batavia, N.Y. Dec. 31, 2012). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
We have reviewed the IJ’s decision as supplemented by the
BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
The applicable standards of review are well established. 8
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U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
I. Material Support
An alien who has “engaged in a terrorist activity” is barred
from receiving asylum or withholding of removal. 8 U.S.C.
§§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I) (asylum); 8 U.S.C.
§ 1231(b)(3)(B)(iv) (withholding); 8 C.F.R. § 1208.16(d)(2)
(same). “Terrorist activity” includes committing an act that
“the actor knows, or reasonably should know, affords material
support” to a designated terrorist organization. 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI). “Material support” includes
providing “a safe house, transportation, communications,
funds, transfer of funds or material financial benefit, false
documentation or identification, weapons . . . , explosives,
or training.” Id.
We lack jurisdiction to review an agency’s determination
that an alien is subject to the terrorist activity bar, 8 U.S.C.
§ 1158(b)(2)(D), but retain jurisdiction to review questions
of law and constitutional claims, 8 U.S.C. § 1252(a)(2)(D), and
review those claims de novo. Rosario v. Holder, 627 F.3d 58,
61 (2d Cir. 2010). The application of a legal standard to an
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undisputed set of facts is a question of law subject to de novo
review. See Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.
2004) (holding that “[t]he BIA’s application of law to
undisputed facts is reviewed de novo”). Here, the question of
law that Viknesrajah attempts to raise is whether false
testimony can establish that he gave “material support” to a
terrorist organization.
Stated that baldly, the answer would have to be “no.”
However, the record indicates that the BIA reasonably
understood the IJ’s assessment of the petitioner’s testimony
to present a different issue. Viknesrajah testified that for
17 to 18 months the LTTE forced him to dig bunkers and carry
wood for 2 to 3 hours a day, cut potatoes and onions, and fill
sandbags for transport in the jungle. Although portions of the
IJ’s opinion appear to make a broad finding that the petitioner
was not credible, the BIA concluded that “the Immigration
Judge’s crediting of that limited testimony is not inconsistent
with his adverse credibility finding as to other aspects of
[Viknesrajah’s] testimony.” BIA op. of Jan. 29, 2014, at 2, ROA
at 4. As we have recognized, an IJ may limit an adverse
credibility finding to particular portions of an applicant’s
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testimony. Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006).
Although the BIA took a generous view of the IJ’s language, we
cannot say that the BIA was unreasonable in its interpretation.
Indeed, it is most unlikely that the IJ meant to say that he
did not believe the precise portion of testimony on which he
based a finding of material support.
Furthermore, as the IJ in this case recognized, the
Immigration and Nationality Act imposes a heavy evidentiary
burden on aliens to establish their eligibility for relief when
a mandatory bar to relief, such as the material support bar,
may apply. So long as “the evidence indicates that one or more
of the grounds for mandatory denial of the application for
relief may apply, the alien shall have the burden of proving
by a preponderance of the evidence that such grounds do not
apply.” C.F.R. § 1240.8 (emphases added). Regardless of the
IJ’s ultimate credibility doubts about Viknesrajah’s
credibility, Visnesrajah’s testimony at the removal hearings
describing his alleged months spent with the LTTE was certainly
sufficient to “indicate that the material support bar “may
apply” in this case, all that the IJ and BIA needed to deny
relief.
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II. Deferral of Removal Under the CAT
Next, Viknesrajah argues that the agency failed to give
meaningful consideration to his CAT claim. In order to obtain
CAT deferral, an alien must show that he would more likely than
not be tortured in the country of removal. See 8 C.F.R.
§§ 1208.16(c), 1208.17; Khouzam, 361 F.3d at 168.
Viknesrajah claimed that the Sri Lankan government harms
three groups of which he is a member: (1) Tamils from areas
formerly controlled by the LTTE; (2) failed asylum seekers; and
(3) Tamils returning from Western countries. Viknesrajah
submitted evidence showing that Tamils are mistreated in Sri
Lanka; however, nearly all of that evidence concerns the war
between the Sri Lankan government and the LTTE, which ended in
May 2009. The 2011 State Department Report states that
security forces engage in unlawful killings, attack and harass
persons seen as LTTE sympathizers, and torture Tamils with
actual or perceived associations with the LTTE. But the State
Department also reports that the government has begun
incorporating Tamils into the same security forces accused of
harming them. Viknesrajah submitted an Australian article
from 2010 stating that nine returned asylum seekers had been
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killed in the past year. However, these events occurred five
years ago, and Viknesrajah has never submitted evidence showing
the persistence of such conditions. Otherwise, the record is
devoid of any evidence that the Sri Lankan government tortures
returning Tamils. Given the conflicting evidence in the
record, a reasonable fact-finder would not be compelled to find
that Viknesrajah is likely to be tortured. Siewe v. Gonzales,
480 F.3d 160, 167 (2d Cir. 2007). Thus, the IJ reasonably
denied CAT relief.
Viknesrajah argues that the IJ abused his discretion in
refusing to admit a 2011 UNHCR Report on Sri Lanka on remand.
The IJ excluded the report because Viknesrajah failed to show
how it would affect the outcome of his case; the BIA affirmed
this decision.
Where “no final order exists . . . the [IJ] has authority
to consider additional evidence if it is material, was not
previously available, and could not have been discovered or
presented at the former hearing.” Matter of M- D-, 24 I. & N.
Dec. 138, 141 (BIA 2007). We generally review the refusal to
admit documents for abuse of discretion. Cf. Dedji v. Mukasey,
525 F.3d 187, 191-92 (2d Cir. 2008). An IJ abuses his
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discretion when “(1) his decision rests on an error of law .
. . or a clearly erroneous factual finding or (2) his decision
. . . cannot be located within the range of permissible
decisions.” Id. (internal quotations omitted).
The report should have been admitted: it was material and
previously unavailable. But remand for consideration of it
would be futile because the IJ made clear that the report would
not change the outcome of Viknesrajah’s case. Cao He Lin v.
U.S. Dep’t of Justice, 428 F.3d 391, 402 (2d Cir. 2005). The
UNHCR report contains little evidence showing that the Sri
Lankan government is currently torturing Tamils.
Finally, Viknesrajah argues that his membership in all
three of the groups he identified heightens his risk of harm
beyond what he would face as a member of any group standing
alone. He pressed this argument below, but the agency never
considered it. Remand to consider it would be futile because,
as explained above, the record contains very limited evidence
that Sri Lanka tortures any one of Viknesrajah’s proposed
groups. Cao He Lin, 428 F.3d at 402.
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III. Recusal
Finally, Viknesrajah argues that BIA member Roger Pauley
should have recused himself from deciding his case. However,
because Viknesrajah did not request Pauley’s recusal before the
BIA, we decline to review this argument. Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 123 (2d Cir. 2008).
For the foregoing reasons, the petition for review is
DENIED.
As we have completed our review, the pending request for
oral argument is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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