Jayaratne v. Holder

11-2753-ag
Jayaratne v. Holder

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 2nd day of October, two thousand twelve.

PRESENT: REENA RAGGI,
GERARD E. LYNCH,
DENNY CHIN,
Circuit Judges.

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SEPALA JAYARATNE, DARSHANI SEHARA
JAYARATNE, SAVINDU KANISHKA JAYARATNE,
MANETH CHANDRIKA JAYARATNE,
Petitioners,

-v.- 11-2753-ag

ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
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FOR PETITIONERS: NITIN KAUSHIK, Kaushik &
Associates, PLLC, New York, New
York (Sepala Jayaratne, pro se,
Staten Island, New York, on the
brief).

FOR RESPONDENT: EDWARD E. WIGGERS, Trial Attorney
(Tony West, Assistant Attorney
General, John S. Hogan, Senior
Litigation Counsel, on the brief),
Office of Immigration Litigation,
Civil Division, United States
Department of Justice, Washington,
D.C.
 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the petition for review is GRANTED, the decision

of the Board of Immigration Appeals ("BIA") is VACATED, and the

case is REMANDED for further proceedings consistent with this

order.

Petitioners Sepala Jayaratne, Darshani Sehara

Jayaratne, and their sons Savindu Kanishka Jayaratne and Maneth

Chandrika Jayaratne -- natives and citizens of Sri Lanka -- seek

review of a June 8, 2011, decision of the BIA reversing the March

11, 2009, decision of Immigration Judge ("IJ") Philip L. Morace,

granting their applications for asylum. In re Sepala Jayaratne,

Nos. A089 255 595/594/596/597 (B.I.A. June 8, 2011), rev'g Nos.

A089 255 595/594/596/597 (Immig. Ct. N.Y.C. Mar. 11, 2009). We

assume the parties' familiarity with the underlying facts, the

procedural history of the case, and the issues presented for

review.

To establish eligibility for asylum, petitioners must

show that they suffered past persecution on account of their
race, religion, nationality, membership in a particular social

group, or political opinion, or that they have a well-founded

fear of future persecution on account of one of these grounds.

See 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 208.13(b); Yanqin Weng v.
Holder, 562 F.3d 510, 513-14 (2d Cir. 2009); Yan Chen v.

Gonzales, 417 F.3d 268, 270 (2d Cir. 2005); Osorio v. INS, 18

F.3d 1017, 1031 (2d Cir. 1994) (discussing well-founded fear of

future persecution).

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 When the BIA issues an opinion, it becomes the basis

for our judicial review. See Yan Chen, 417 F.3d at 271. We

review the BIA's factual findings for "substantial evidence" and

its application of law de novo. See Yanqin Weng, 562 F.3d at

513. Substantial evidence is "more than a mere scintilla" and

"means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion." Yan Chen, 417 F.3d at 271

(quoting Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir. 2001))

(internal quotation marks omitted).

The BIA concluded that the Jayaratnes failed to

establish past political persecution because: (1) the severity of

events presented did "not rise to the level necessary to

establish persecution" (R. 3 (citing Ivanshvili v. U.S. Dep't of
Justice, 433 F.3d 332 (2d Cir. 2006))); and (2) the evidence did

not show that the Liberation Tamil Tigers of Eelam (the "LTTE")

had targeted them on account of a protected ground, namely their

political opinion, see 8 U.S.C. § 1101(a)(42). The BIA further

concluded that the Jayaratnes failed to establish a well-founded

fear of future persecution because they presented only a "single

physical encounter" with the LTTE, and they survived, after that

encounter, for two months in Sri Lanka without incident. (R. 3).

Although "kidnapping is a very serious offense" that

could qualify as persecution when coupled with a motivation to

persecute on account of a protected ground, Delgado v. Mukasey,

508 F.3d 702, 707 (2d Cir. 2007) (internal quotation marks and

alterations omitted), we cannot conclude that the BIA erred in

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holding that the attempted kidnapping and its accompanying

circumstances did not demonstrate past persecution so as to give

rise to a presumptive fear of future persecution. See 8 C.F.R.

§ 208.13(b)(1). Nevertheless, such an attempted kidnapping would

be entitled to greater weight than would mere verbal threats in

evaluating petitioners' claim of feared future persecution. With

that in mind, we identify certain concerns with the agency's

assessment of the Jayaratnes' professed fear of future

persecution that prompt us to grant the petition, vacate the

BIA's decision, and remand the case for further proceedings

consistent with this order.

First, with respect to the Jayaratnes' claim that they

feared future persecution on account of their political opinion,

the BIA's analysis was insufficient for us to determine whether

the correct legal standard was applied. See Manzur v. U.S. Dep't
of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). The BIA

concluded that the IJ did not make "a specific finding that the

persecutors were in fact motivated 'for one central reason' based

on an enumerated ground" because the IJ stated that the attempted

kidnapping "'may very well have been as punishment for [a]

political opinion.'" (R. 3 (emphasis added) (quoting R. 94)).

The IJ, however, concluded in the context of its well-founded

fear analysis that "what happened to [the Jayaratnes] in 2007

[was] based on their political opinion or political opinion that

may be imputed to them by members of the LTTE." (R. 94).

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 The Jayaratnes' political opinion need not be the

central reason for their alleged persecution; indeed, there may

be other causes of persecution, and the Jayaratnes must show that

their political opinion "was or will be at least one central

reason" for the feared persecution. 8 U.S.C. § 1158(b)(1)(B)(i);

see Osorio, 18 F.3d at 1028 ("The plain meaning of the phrase

persecution on account of the victim's political opinion, does

not mean persecution solely on account of the victim's political

opinion." (internal quotation marks omitted)).

Here, it is unclear whether: (1) the IJ in fact

concluded that the Jayaratnes were targeted for persecution on

account of their political opinion; (2) the BIA accurately

characterized the IJ's decision; and (3) the BIA applied the

correct standard -- that the Jayaratnes' political opinion need

only be one central reason, not the central reason, for their

persecution. See § 1158(b)(1)(B)(i). Although we review

opinions of the BIA with deference, we require the BIA's opinions

denying asylum to provide "a certain minimum level of analysis"

and clarity for our judicial review to be meaningful. Poradisova
v. Gonzales, 420 F.3d 70, 77 (2d Cir. 2005); see Manzur, 494 F.3d

at 289. Thus, we remand the case to the BIA for further analysis

and clarification; in addition, it may be useful for the BIA in

turn to remand the case to the IJ so that he can clarify some of

his equivocal remarks.

Second, in holding that the Jayaratnes did not

establish a well-founded fear of persecution, the BIA concluded

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that the absence of any actual or threatened harm from the time

of the attempted kidnapping on June 16, 2007, to the day the

Jayaratnes left Sri Lanka on August 10, 2007, was "significant."

(R. 3). The BIA's holding in this respect, however, was not

supported by substantial evidence. See Yan Chen, 417 F.3d at

271. Darshani Sehara Jayaratne explained that during this time,

her family acted discreetly and with caution, and that they

delayed reporting the LTTE's threat letter to the police in Sri

Lanka because they feared the very retaliation threatened in the

letter.

Before the IJ, the government conceded that the

Jayaratnes did not encounter the LTTE or threats from the LTTE

after the attempted kidnapping and before their flight from Sri

Lanka because they complied with the threat letter and did not

report the incident to the police. On this record, we cannot

identify a basis in the evidence to support the BIA's

determination that the Jayaratnes' failure to suffer acts of

persecution for a brief period before their flight from Sri Lanka

defeats their claim of a well-founded fear of future persecution.

See id.1

1
The government's brief to this Court confirms Darshani
Sehara Jayaratne's statements, noting that the Jayaratnes were
afraid to report the kidnapping or threat letter because they
feared that the LTTE had informants within the police force, and
that, after the kidnapping and before their flight to the United
States, Sepala and Darshani would escort their children to and
from school and watch over them while they were at school.

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 Third, the record is not clear as to whether the BIA

considered the country condition reports submitted by the

Jayaratnes in rejecting their claimed fear of future persecution.

See id. at 272. While we do not require the BIA to expressly

discuss or refute every piece of evidence offered by petitioners,

see Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008),

"[w]e cannot assume that the BIA considered factors it failed to

mention in its decision," Poradisova, 420 F.3d at 77 (quoting

Anderson v. McElroy, 953 F.2d 803, 806 (2d Cir. 1992) (internal

quotation marks omitted)); see also Ruqiang Yu v. Holder, No. 11-
2546-ag, slip op. at 9 (2d Cir. Sept. 7, 2012) ("While the BIA is

not obliged to recite every fact, its failure to meaningfully

engage with the record showcases its failure to assess Yu's claim

under the correct legal standard."). Here, the country condition

reports could have been relevant in providing context for the

Jayaratnes' claimed fear of future persecution and, indeed, the

IJ relied on the country reports in the record to grant asylum to

the Jayaratnes.

On remand, the BIA may also wish to expand the record

to include country reports cited to this court but not yet

available at the time of the IJ's decision or the parties'

submissions to the BIA, which suggest that conditions in Sri

Lanka may have changed since the Jayaratnes filed their

application for asylum. Specifically, the Sri Lankan army

defeated the LTTE in May of 2009. See U.S. Dep't of State, Sri
Lanka, Country Reports on Human Rights Practices 2010 (2011).

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While this might seem to undermine the Jayaratnes' claim that

their fear of LTTE persecution upon return to Sri Lanka remains

well founded, the State Department further reports that

"[r]epercussions of the nearly 30-year war against the [LTTE]

continued to have an effect on human rights, despite the defeat

of the LTTE." Id. Whether or not this effect can fairly be

attributed to the government, see Rizal v. Gonzales, 442 F.3d 84,

92 (2d Cir. 2006), is something that may need to be addressed.

For the foregoing reasons, the petition is GRANTED.

Accordingly, we VACATE the BIA's decision and REMAND to the BIA

for further proceedings consistent with this order.

FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK

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