Ramanathan v. Sessions

16-856
Ramanathan v. Sessions
BIA
Poczter, IJ
A205 497 194
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 5th day of May, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 ABIRAM RAMANATHAN,
14 Petitioner,
15
16 v. 16-856
17 NAC
18 JEFFREY B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Visuvanathan Rudrakumaran, New
24 York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Russell
28 J. E. Verby, Senior Litigation
29 Counsel; John D. Williams, Trial
30 Attorney, Office of Immigration
31 Litigation, United States
32 Department of Justice, Washington,
33 DC.
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 is

4 DENIED.

5 Petitioner Abiram Ramanathan, a native and citizen of Sri

6 Lanka, seeks review of a February 24, 2016, decision of the BIA

7 that affirmed a July 9, 2014, decision of an Immigration Judge

8 (“IJ”) denying Ramanathan’s application for asylum,

9 withholding of removal, and relief under the Convention Against

10 Torture (“CAT”), and declined to remand to the IJ. In re Abiram

11 Ramanathan, No. A205 497 194 (B.I.A. Feb. 24, 2016), aff’g No.

12 A205 497 194 (Immig. Ct. N.Y. City July 9, 2014). We assume

13 the parties’ familiarity with the underlying facts and

14 procedural history in this case. Under the circumstances of

15 this case, we have reviewed the decision of the IJ as

16 supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d

17 268, 271 (2d Cir. 2005).

18 Asylum, Withholding of Removal, and CAT Relief

19 The Court reviews the agency’s adverse credibility

20 determination for substantial evidence. 8 U.S.C.

21 § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

22 (2d Cir. 2008). “Considering the totality of the

23 circumstances, and all relevant factors, a trier of fact may
2
1 base a credibility determination on the demeanor, candor, or

2 responsiveness of the applicant . . . , the consistency between

3 the applicant’s or witness’s written and oral

4 statements . . . , the internal consistency of each such

5 statement, [and] the consistency of such statements with other

6 evidence of record . . . without regard to whether an

7 inconsistency, inaccuracy, or falsehood goes to the heart of

8 the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see

9 also Xiu Xia Lin, 534 F.3d at 163-64. Substantial evidence

10 supports the agency’s determination that Ramanathan was not

11 credible as to his claim that Sri Lankan army officials detained

12 and beat him, and would harm him in the future, based on their

13 suspicion that he supported the Liberation Tigers of Tamil Eelam

14 (“LTTE”).

15 The IJ reasonably relied on Ramanathan’s demeanor, finding

16 that he was hesitant and unresponsive when questioned about

17 record inconsistencies. See 8 U.S.C. § 1158(b)(1)(B)(iii);

18 Majidi v. Gonzales, 430 F.3d 77, 81 n.1 (2d Cir. 2005) (“the

19 IJ has the unique advantage in making credibility findings of

20 having heard directly from the applicant.” (internal quotation

21 marks omitted)). That finding is supported by the record.

22 The demeanor finding and the overall credibility

23 determination are bolstered by record inconsistencies
3
1 regarding whether Ramanathan’s eldest brother disappeared,

2 whether Sri Lankan officials injured Ramanathan’s wrist or

3 collar bone, whether Ramanathan sought medical treatment in

4 secret or at an army-run hospital, and whether he hid at his

5 aunt’s house. See Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d

6 99, 109 (2d Cir. 2006); Xiu Xia Lin, 534 F.3d at 165-67 & n.3.

7 Ramanathan did not provide compelling explanations for those

8 inconsistencies. See Majidi, 430 F.3d at 80 (“A petitioner

9 must do more than offer a ‘plausible’ explanation for his

10 inconsistent statements to secure relief; ‘he must demonstrate

11 that a reasonable fact-finder would be compelled to credit his

12 testimony.’” (quoting Zhou Yun Zhang v. U.S. INS, 386 F.3d 66,

13 76 (2d Cir. 2004))).

14 In making its adverse credibility finding, the agency

15 reasonably relied on Ramanathan’s failure to rehabilitate his

16 claim with corroborating evidence. “An applicant’s failure to

17 corroborate his or her testimony may bear on credibility,

18 because the absence of corroboration in general makes an

19 applicant unable to rehabilitate testimony that has already

20 been called into question.” Biao Yang v. Gonzales, 496 F.3d

21 268, 273 (2d Cir. 2007). As the agency noted, Ramanathan did

22 not submit any evidence that he has an older brother, much less

23 one who disappeared. And Ramanathan did not submit letters
4
1 from his father, aunt, or younger brother, all of whom live in

2 Sri Lanka, nor did he proffer testimony or a letter from his

3 uncle with whom he lives in the United States.

4 Given Ramanathan’s demeanor, his inconsistent testimony,

5 and the lack of corroborating evidence, the agency’s adverse

6 credibility determination is supported by substantial

7 evidence. 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to

8 Ramanathan’s contentions, that determination is dispositive of

9 his claims for asylum, withholding of removal, and CAT relief

10 because all three claims are based on the same factual

11 predicate. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.

12 2006).

13 Ramanathan argues that the agency erred in relying on the

14 adverse credibility determination to deny him relief because

15 that finding did not affect his eligibility for relief based

16 on a pattern or practice of persecution of Tamils. See 8 C.F.R.

17 § 1208.13(b)(2) (providing that an applicant need not show a

18 reasonable possibility that he would be singled out for

19 persecution where the country of removal has a pattern or

20 practice of persecuting individuals similarly situated to him).

21 But that argument is not supported by the record, which reflects

22 that his claims for relief were premised not simply on the fact

23 that he is “a young Tamil male,” but rather on the Sri Lankan
5
1 army’s suspicion that he was a member of the LTTE. Admin. Record

2 144. Furthermore, the BIA did not err in finding waived

3 Ramanathan’s claim that he will likely be tortured as an asylum

4 seeker, and thus we do not consider that claim in the first

5 instance. See Prabhudial v. Holder, 780 F.3d 553, 555 (2d Cir.

6 2015).

7 Motion to Remand

8 Ramanathan does not challenge the BIA’s denial of his

9 motion to remand for the IJ to consider a new translation of

10 his mother’s affidavit. Issues not sufficiently argued in the

11 briefs are considered waived and normally will not be addressed

12 on appeal in the absence of manifest injustice. Yueqing Zhang

13 v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005); LNC

14 Invs., Inc. v. Nat’l Westminster Bank, N.J., 308 F.3d 169, 176

15 n.8 (2d Cir. 2002) (“While we no doubt have the power to address

16 an argument despite its abandonment on appeal, we ordinarily

17 will not do so ‘unless manifest injustice otherwise would

18 result.’” (quoting Anderson v. Branen, 27 F.3d 29, 30 (2d Cir.

19 1994))). Because Ramanathan fails to challenge the BIA’s

20 denial of his motion, we deem any such arguments waived. See

21 Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.

22 No manifest injustice results from denying Ramanathan’s

23 petition to this extent on waiver grounds. As the BIA
6
1 concluded, the latest translation of his mother’s affidavit,

2 which he submitted in his underlying proceedings, was

3 previously available. See Li Yong Cao v. U.S. Dep’t of Justice,

4 421 F.3d 149, 156 (2d Cir. 2005) (providing that a movant seeking

5 remand for consideration of new evidence must present

6 “material, previously unavailable evidence”). Moreover, the

7 new translation did not resolve the inconsistencies relied on

8 to find Ramanathan not credible. Cf. Kaur v. BIA, 413 F.3d 232,

9 234 (2d Cir. 2005) (finding no abuse of discretion in BIA’s

10 denial of a motion when “the evidence submitted . . . was not

11 ‘material’ because it did not rebut the adverse credibility

12 finding that provided the basis for the IJ’s denial of

13 petitioner’s underlying asylum application”).

14 For the foregoing reasons, the petition for review is

15 DENIED. As we have completed our review, petitioner’s pending

16 request for oral argument is DENIED in accordance with Federal

17 Rule of Appellate Procedure 34(a)(2) and Second Circuit Local

18 Rule 34.1(b).

19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk

7