11-2085-ag
Perera v. Holder
BIA
Hom, IJ
A099 758 977
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 9th day of August, two thousand twelve.
PRESENT:
JOSÉ A. CABRANES,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_______________________________________
KASTURI ARACHCHIGE JOSEPH GAMI PERERA,
Petitioner,
v. 11-2085-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
New York
FOR RESPONDENT: Tony West, Assistant Attorney
General; Terri J. Scadron, Assistant
Director; Richard Zanfardino, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, 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.
Kasturi Arachchige Joseph Gami Perera, a native and
citizen of Sri Lanka, seeks review of an April 21, 2011,
decision of the BIA affirming the October 30, 2008, decision
of Immigration Judge (“IJ”) Sandy K. Hom, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Kasturi
Arachchige Joseph Gami Perera, No. A099 758 977 (B.I.A. Apr.
21, 2011), aff’g No. A099 758 977 (Immig. Ct. N.Y. City Oct.
30, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of 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
“substantial evidence” standard of review applies, Islam v.
Gonzales, 469 F.3d 53, 55 (2d Cir. 2006), and “we uphold the
IJ’s factual findings if they are supported by reasonable,
substantial and probative evidence in the record.” Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (internal
quotation omitted); see also 8 U.S.C. § 1252(b)(4)(B).
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For asylum applications such as Perera’s, governed by
the amendments made to the Immigration and Nationality Act
by the REAL ID Act of 2005, the agency may, considering the
totality of the circumstances, base a credibility finding on
inconsistencies in the applicant’s statements, without
regard to whether the inconsistencies go “to the heart of
the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii);
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).
When an inconsistency is dramatic, the agency may render an
adverse credibility finding on its basis without first
soliciting an explanation. See Majidi v. Gonzales, 430 F.3d
77, 81 (2d Cir. 2005). In this case, substantial evidence
supports the agency’s adverse credibility determination,
based on inconsistencies between Perera’s testimony and the
record of his Canadian asylum proceedings.
There were several dramatic inconsistencies between
Perera’s statement to the Canadian Immigration and Refugee
Board (“CIRB”) and his testimony before the IJ, including
for example his omission before the IJ of any mention of an
incident occurring in July 2001, when in his statement to
the CIRB he indicated that in July 2001 the police raided
his house, beat his wife, and threatened him. Because “[a]n
inconsistency and an omission are . . . functionally
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equivalent,” the agency properly relied upon Perera’s
omissions in finding Perera not credible. Xiu Xia Lin, 534
F.3d at 166; see also 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi,
430 F.3d at 81. We therefore defer to that finding.
Because the only evidence of a threat to Perera’s life or
freedom depended upon his credibility, the adverse
credibility determination in this case necessarily precludes
success on his claims for asylum, withholding of removal,
and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d
Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 523 (2d Cir. 2005)
For the foregoing reasons, the petition for review is
DENIED. Petitioner’s pending request for oral argument is
also 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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