17-3802
Balasegarathum v. Barr
BIA
Poczter, IJ
A205 710 146
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 18th day of September, two thousand twenty.
PRESENT:
PIERRE N. LEVAL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
PIRASATH BALASEGARATHUM,
Petitioner,
v. 17-3802
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, Esq.,
New York, NY.
FOR RESPONDENT: Sabatino F. Leo, Trial Attorney,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
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 Pirasath Balasegarathum, a native and citizen
of Sri Lanka, seeks review of a BIA decision of the BIA
affirming the decision of an Immigration Judge (“IJ”) denying
Balasegarathum’s application for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). In re Balasegarathum, No. A 205 710 146 (B.I.A. Oct.
30, 2017), aff’g No. A 205 710 146 (Immig. Ct. N.Y. City Feb.
22, 2017). We assume the parties’ familiarity with the
underlying facts and procedural history in this case, to which
we refer only as necessary to explain our decision to deny
the petition.
We have reviewed both the IJ’s and the BIA’s decisions.
Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir. 2005).
The standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d 67, 76
(2d Cir. 2018); Santoso v. Holder, 580 F.3d 110, 111 (2d Cir.
2009).
2
Adverse Credibility Determination
The agency may, “[c]onsidering the totality of the
circumstances[,] . . . base a credibility determination on
the demeanor, candor, or responsiveness of the applicant,”
the plausibility of his account, and inconsistencies in his
statements or between his statements and other evidence,
without regard to whether they go “to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 163–64 (2d Cir. 2008). We
“defer . . . to an IJ’s credibility determination unless,
from the totality of the circumstances, it is plain that no
reasonable fact-finder could make such an adverse credibility
ruling.” Xiu Xia Lin, 534 F.3d at 167; accord Hong Fei Gao,
891 F.3d at 76. We conclude that substantial evidence
supports the agency’s determination that Balasegarathum was
not credible as to his claim that the Sri Lankan army and
related paramilitary groups had detained and tortured him
based on his Tamil ethnicity and suspected association with
the Liberation Tigers of Tamil Eelam (“LTTE”).
The agency reasonably relied on inconsistencies in
Balasegarathum’s description of an August 2010 incident in
which he alleged that he was detained and abused.
3
Balasegarathum’s allegations implausibly gained over the
course of his 2011 Canadian asylum application, his 2014 U.S.
application, and his 2015 testimony before the IJ.
Balasegarathum did not provide a compelling explanation for
his omissions of the most extreme instances of violence from
the prior iterations of his account, particularly in contrast
to the specific details he earlier provided of less-severe
alleged acts of violence. See Hong Fei Gao, 891 F.3d at 78
(“[T]he probative value of a witness’s prior silence on
particular facts depends on whether those facts are ones the
witness would reasonably have been expected to disclose.”);
Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A
petitioner must do more than offer a plausible explanation
for his inconsistent statements to secure relief; he must
demonstrate that a reasonable fact-finder would be compelled
to credit his testimony.” (internal quotation marks
omitted)).
Contrary to Balasegarathum’s argument on appeal, his
omissions in the earlier applications were not “trivial,” but
rather went to the heart of his claim, since they concerned
the most serious abuses he allegedly suffered and which
4
purportedly precipitated his decision to leave Sri Lanka. 1
Having justifiably questioned Balasegarathum’s
credibility, the agency reasonably relied on his failure to
rehabilitate his testimony with reliable corroborating
evidence. “An applicant’s failure to corroborate his or her
testimony may bear on credibility, because the absence of
corroboration in general makes an applicant unable to
rehabilitate testimony that has already been called into
question.” Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.
2007). The IJ did not err in declining to assign diminished
corroborative weight to letters from family members who were
unavailable for cross-examination and to unauthenticated
government documents. See Matter of H-L-H- & Z-Y-Z-, 25 I.
1 Certain other omissions that the agency pointed to as
occurring in the Canadian and U.S. applications are not borne
out by the record, however. For example, the agency found
that the Canadian application omitted any description of all
events occurring before 2008, but the application in fact
contained statements regarding abuses suffered while
traveling to school and farming and these were alleged to
have occurred before 2008. Further, the agency relied in
part on an alleged omission from Balasegarathum’s U.S.
application of an October 2009 event when the army came to
his house and searched for contraband, destroyed property,
and sexually harassed his sisters. Although his description
did not specify the date or the property damaged,
Balasegarathum included this allegation in his written U.S.
application.
5
& N. Dec. 209, 215 (BIA 2010) (finding that unsworn letters
from the applicant’s friends and family did not provide
substantial support for the applicant’s claims because they
were from interested witnesses not subject to cross-
examination), overruled on other grounds by Hui Lin Huang v.
Holder, 677 F.3d 130, 133–38 (2d Cir. 2012); see also Y.C. v.
Holder, 741 F.3d 324, 332, 334 (2d Cir. 2013) (holding that
“[w]e generally defer to the agency’s evaluation of the weight
to be afforded an applicant’s documentary evidence,” and
deferring to agency’s decision to give little weight to letter
from applicant’s spouse in China).
Balasegarathum’s argument that the IJ improperly
assigned diminished weight to the father’s letter because it
was not authenticated is misplaced: the IJ assigned it
diminished weight only because its author was an interested
party not subject to cross-examination. Although
Balasegarathum argues that the IJ could have called
witnesses, Balasegarathum, not the IJ, bears the burden of
presenting the case. See 8 U.S.C. § 1158(b)(1)(B)(i); see
also Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d Cir. 2009)
(holding that “alien bears the ultimate burden of introducing
6
[corroborating] evidence without prompting from the IJ”). 2
Moreover, the IJ was not required to explicitly discuss
the medical report prepared in the United States,
notwithstanding Balasegarathum’s argument to the contrary.
See Zhi Yun Gao v. Mukasey, 508 F.3d 86, 87 (2d Cir. 2007)
(where the agency gives “reasoned consideration to the
petition, and ma[kes] adequate findings,” it is not required
to “expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner”
(internal quotation marks omitted)). Although this report
documents that burn scars appear on Balasegarathum’s legs, it
does not resolve the conflict created by the contemporaneous
records of Balasegarathum’s medical treatment, which suggest
that Balasegarathum did not sustain the burns at the time and
in the manner that he now claims. Balasegarathum did not
2 Balasegarathum also argues that, in light of the minimal
weight afforded to these letters, the IJ erred in faulting
him for not obtaining letters from relatives in Canada and
the United Kingdom who were familiar with his case, since
they would have been subject to the same criticism. But the
IJ did not err in relying, in part, on the absence of this
evidence, because Balasegarathum does not challenge the IJ’s
conclusion that it was reasonably available, and his brother
was a firsthand witness to some of the events underlying the
petition, who purportedly obtained asylum in the United
Kingdom based on related events. Biao Yang, 496 F.3d at 273.
7
compellingly explain the inconsistency created by his
contemporaneous medical records. See Majidi, 430 F.3d at 80.
The IJ was also not required to explicitly discuss the
country conditions evidence that Balasegarathum adduced; in
any event, this evidence did not corroborate the particular
past abuses that Balasegarathum claimed to have suffered.
See Zhi Yun Gao, 508 F.3d at 87.
Given these significant omissions and inconsistencies
and the lack of reliable corroboration in the record, we
decide that substantial evidence supported the agency’s
adverse credibility determination. See Xiu Xia Lin, 534 F.3d
at 165–66. That determination is dispositive of asylum,
withholding of removal, and CAT relief insofar as those claims
were based on Balasegarathum’s individualized claims of past
harm and fear of future harm. See Paul v. Gonzales, 444 F.3d
148, 156–57 (2d Cir. 2006).
Pattern or Practice Claims
An adverse credibility determination does not doom an
application for relief if the claim has a factual predicate
that is not tainted by the adverse credibility determination
and turns on objective evidence. See id. An applicant may
still qualify for asylum by proving “that there is a pattern
8
or practice in his or her country . . . of persecution of a
group of persons similarly situated to the applicant on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 C.F.R.
§ 1208.13(b)(2)(iii)(A). To do so, an applicant must
demonstrate that the harm to the group is “so systemic or
pervasive as to amount to a pattern or practice of
persecution.” Mufied v. Mukasey, 508 F.3d 88, 92 (2d Cir.
2007) (quoting In re A-M-, 23 I. & N. Dec. 737, 741 (BIA
2005)). On review of the record, however, we agree with the
agency that Balasegarathum failed to show a pattern or
practice of persecution of ethnic Tamils or returning asylum
seekers.
The IJ provided a thorough and accurate review of the
record evidence related to Balasegarathum’s alleged fear as
a Tamil and a failed asylum seeker. Based on the significant
number of Tamils living in Sri Lanka, the considerably
improved conditions for Tamils since Balasegarathum’s
departure, and the absence of evidence showing that similarly
situated returning asylum seekers have been subject to recent
abuses, the agency did not err in concluding that
Balasegarathum did not establish a pattern or practice of
9
persecution of Tamils and returning asylum seekers in Sri
Lanka. See 8 C.F.R. § 1208.13(b)(2)(iii); see also Santoso,
580 F.3d at 112 & n.1 (upholding IJ’s pattern or practice
determination regarding treatment of Catholics where factual
findings were supported by country conditions evidence in
record that violence was localized and people were free to
practice their faith); In re A-M-, 23 I. & N. Dec. at 741.
Each of Balasegarathum’s challenges to these
determinations is unpersuasive. First, the agency did not
rely excessively on the U.S. State Department reports: the
IJ explicitly discussed a significant portion of
Balasegarathum’s country conditions evidence, and we
“presume that [the agency] has taken into account all of
the evidence before [it], unless the record compellingly
suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of
Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006); see also
id. at 341–42 (recognizing that State Department reports
are “usually the best available source of information on
country conditions”). Second, the agency considered
whether Balasegarathum was at risk of being perceived as an
LTTE supporter and therefore persecuted because he was both
an ethnic Tamil and a returning asylum seeker, and
10
reasonably concluded that the evidence regarding abuses
against Tamils returning to Sri Lanka from abroad did not
establish a pattern or practice of persecution against this
group. Third, the agency was not required to reach the
same conclusion regarding the existence of a pattern or
practice of persecution that it reached in a prior
unpublished decision. Even accepting Balasegarathum’s
claim that the agency was evaluating the same background
evidence, “unpublished opinions of the BIA have no
precedential value.” Ajdin v. Bureau of Citizenship and
Immig. Servs., 437 F.3d 261, 264–65 (2d Cir. 2006).
Finally, because Balasegarathum was found not credible as
to his individualized claimed fear of persecution, the
Ninth Circuit’s “disfavored group” analysis in Sael v.
Ashcroft, 386 F.3d 922 (9th Cir. 2004), would not apply to
his claim even if we were to adopt it.
Accordingly, the agency reasonably found that
Balasegarathum failed to demonstrate a well-founded fear of
persecution on account of his Tamil ethnicity and status as
a failed asylum seeker, and it did not err in denying asylum,
withholding of removal, and CAT relief. See Paul, 444 F.3d
at 156–57; see also Lecaj v. Holder, 616 F.3d 111, 119 (2d
11
Cir. 2010).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
12