United States Court of Appeals
For the First Circuit
Nos. 08-1242; 08-1531
RAMMEASH RATNASINGAM,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
ON PETITIONS FOR REVIEW OF ORDERS
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Visuvanathan Rudrakumaran and Law Office of V. Rudrakumaran
for petitioner.
Manuel A. Palau, Trial Attorney, Office of Immigration
Litigation, Gregory G. Katsas, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, for respondent.
February 12, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Rammeash Ratnasingam, a native and
citizen of Sri Lanka, petitions this court for review both of an
order of the Board of Immigration Appeals ("BIA") denying him
relief from removal and of an order denying his motion to reopen.
On January 31, 2008, the BIA affirmed the Immigration
Judge's ("IJ") denial of Ratnasingam's applications for asylum,
withholding of removal, and relief under the Convention Against
Torture ("CAT"), all based on his alleged persecution as an ethnic
Tamil by the majority Sinhalese ethnic group. Ratnasingam's later
motion to reopen, which argued that conditions in Sri Lanka had
worsened for Tamils, was denied on April 18, 2008. We deny the
petitions for review.
I.
When Ratnasingam attempted to enter the United States on
May 4, 2007 at the airport in San Juan, Puerto Rico, immigration
authorities discovered that his passport contained a fraudulent
visa and detained him. Ratnasingam admitted to purchasing the visa
from an agent in Sri Lanka but claimed he had not known it was
fraudulent. The government issued a Notice to Appear on May 23,
charging Ratnasingam with removability for seeking admission to the
United States with a fraudulent visa and for lacking a valid entry
document. He conceded removability and applied for asylum,
withholding of removal, and relief under the CAT.
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At a hearing before an IJ on August 22, 2007, Ratnasingam
testified that he was born in Northeastern Sri Lanka in 1977. He
moved to Colombo, where he operated a video store and earned money
by photographing and videotaping weddings and other functions.
Ratnasingam testified about four incidents that he said
formed the basis for his fear of returning to Sri Lanka. The first
occurred in May or June 2001, when three men in army uniforms
accosted Ratnasingam as he returned to his shop after videotaping
a wedding. The men took him to a camp, where they questioned him
for three hours. They showed Ratnasingam several photographs and
asked him if he had taken them or could identify the individuals in
them. Ratnasingam stated that he had not taken the pictures and
could not identify the subjects. The men then asked him if he or
his family supported the Liberation Tamil Tigers of Eelam ("LTTE"),
a Tamil separatist group. Ratnasingam denied any involvement. The
men did not harm Ratnasingam and they released him the following
day.
The next incident occurred four years later. In 2005,
four men who identified themselves as LTTE members entered
Ratnasingam's store. They told him that they wanted him to stock
and rent out LTTE propaganda CDs. Ratnasingam refused. The men
told him, "you are a Tamil. You must help the Tamils." After he
continued to refuse, the men told Ratnasingam not to videotape any
political functions. They threatened Ratnasingam that if he told
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anyone what had happened, they would tell the Sri Lankan army that
he was involved with the LTTE.
On April 18, 2006, Ratnasingam's brother-in-law,
Mahadevan Kishorkumar was killed near an army camp, but Ratnasingam
did not know why Kishorkumar was killed or who did it.
Kishorkumar, who had worked in Ratnasingam's shop, had left Colombo
to celebrate the Tamil New Year with family.
Finally, in February 2007, Ratnasingam began to receive
anonymous telephone calls demanding money and threatening that he
would be killed if he contacted the police. Ratnasingam had seen
news reports of individuals, all Tamils, who had disappeared and
who later turned up dead. No person ever approached him, however,
and he never discovered who made the calls or their reason.
Ratnasingam did not contact the police because he believed that
they would not help him.
Ratnasingam left Sri Lanka on April 14, 2007. Though he
traveled through five or six countries before arriving in Puerto
Rico several weeks later, Ratnasingam did not seek asylum in any of
these countries.
The IJ's oral decision, dated September 27, 2007,
concluded that the incidents to which Ratnasingam testified did not
amount to persecution. Ratnasingam was never physically harmed in
any of the incidents he described. The motive for the murder of
Kishorkumar was unknown. The IJ found Ratnasingam had not
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established a pattern or practice of persecution of Tamils in Sri
Lanka, stating that even though there was "evidence in the record
that Tamils are persecuted," Ratnasingam had "failed to identify a
persecutor [or] persecution as contemplated by case law," and
rejected the CAT claim because he provided no evidence of torture.
The IJ did not reach the issue of whether Ratnasingam was credible.
The BIA affirmed on January 31, 2008, holding that
Ratnasingam's past experiences did not amount to persecution on
account of one of the protected grounds, and that Ratnasingam had
failed to establish a pattern or practice of persecution. It
affirmed the IJ's denial of Ratnasingam's CAT claim, concluding
that there was nothing in the record to establish a probability of
torture.
The BIA denied Ratnasingam's later motion to reopen,
concluding that the purported "new" evidence Ratnasingam provided
was not unavailable at the prior hearing, but merely "reiterated
his previous claim," and the claims lacked merit. His claim that
he would face persecution as a failed asylum seeker constituted a
change in personal circumstances not a change in country
conditions, and he could not establish persecution on the basis of
membership in either of two purported social groups –- failed
asylum seekers or young male Tamils –- neither of which constituted
a social group under the Immigration and Nationality Act.
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Ratnasingam filed separate petitions for review of the
BIA's orders, which this court consolidated.1
II.
Where the BIA has issued its own opinion without adopting
the IJ's findings, we review the BIA's decision. Lin v. Mukasey,
521 F.3d 22, 26 (1st Cir. 2008).
Ratnasingam incorrectly argues that our review is de
novo. Whether an applicant has met his or her burden for proving
eligibility is a question of fact, reviewed under the substantial
evidence standard. Khan v. Mukasey, 541 F.3d 55, 58 (1st Cir.
2008); see also Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir.
2008). We uphold the BIA's findings "if they are 'supported by
reasonable, substantial, and probative evidence on the record
considered as a whole,'" Budiono, 548 F.3d at 48 (quoting Sharari
v. Gonzales, 407 F.3d 467, 473 (1st Cir. 2005)), and will "reverse
only if 'any reasonable adjudicator would be compelled to conclude
to the contrary,'" id. (quoting 8 U.S.C. § 1252(b)(4)(B)).
An applicant for asylum bears the burden of demonstrating
that he or she "suffered past persecution or has a well-founded
fear of future persecution based on one of five enumerated
grounds." Chikkeur v. Mukasey, 514 F.3d 1381, 1382 (1st Cir.
1
Ratnasingam also filed a motion for a stay of removal.
This court denied the motion on March 25, 2008, concluding that he
was not likely to succeed on the merits. See Arevalo v. Ashcroft,
344 F.3d 1, 7-9 (1st Cir. 2003).
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2008); see 8 U.S.C. § 1101(a)(42)(A) (defining "refugee" as one who
suffers persecution on the basis of "race, religion, nationality,
membership in a particular social group, or political opinion").
The REAL ID Act, which applies to asylum applications filed after
May 11, 2005 such as Ratnasingam's, additionally requires that the
applicant show that one of the statutory factors "was or will be at
least one central reason for persecuting the applicant." See id.
§ 1158(b)(1)(B)(i), as amended by Pub. L. No. 109-13, § 101(a), 119
Stat. 231, 302-03 (2005).
The record simply does not compel the conclusion that
Ratnasingam "was subjected to systematic maltreatment rising to the
level of persecution, as opposed to a series of isolated
incidents." Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005)
(affirming denial of asylum to applicant who had been arrested and
beaten seven times in his home country). His encounters with the
Sri Lankan army in 2001 and the LTTE in 2005 are insufficient.
Experiences that do not "rise above unpleasantness, harassment, and
even basic suffering" are not persecution. Khalil v. Ashcroft, 337
F.3d 50, 55 (1st Cir. 2003) (quoting Nelson v. INS, 232 F.3d 258,
263 (1st Cir. 2000)). Ratnasingam was detained once by the army
and released without being harmed. He was accosted in his store
once by LTTE members and was again physically unharmed. Although
he was threatened after each incident, he never saw any of the men
again. See Ravindran v. INS, 976 F.2d 754, 759 (1st Cir. 1992)
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(holding that substantial evidence supported the denial of asylum
to a Tamil Sri Lankan in part because he remained in the country
without incident for one year after the alleged persecution).
Further, he never reported any encounters with LTTE or army
personnel in the years he remained in Sri Lanka.
The requirement that one of the statutory factors be a
"central reason for persecuting the applicant" means Ratnasingam
cannot establish past persecution on the basis of Kishorkumar's
murder (for unknown reasons) or the anonymous telephone calls.
Nothing in the record compels the conclusion that the anonymous
caller targeted Ratnasingam "for anything other than economic
motives." Chikkeur, 514 F.3d at 1383. Similarly, the record does
not compel a finding that Kishorkumar's killers acted on account of
one of the statutory grounds; it is completely silent on their
motive. "Because the motive for the persecution is critical, a
petitioner 'must provide some evidence of it, direct or
circumstantial.'" Khalil, 337 F.3d at 55 (emphasis added) (quoting
INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992)).
Ratnasingam also failed to establish a pattern or
practice of persecution. A petitioner that does not provide
evidence that he or she will be singled out for persecution may
still qualify for asylum by establishing that there is a "pattern
or practice in his or her country . . . of persecution of a group
of persons similarly situated to the applicant on account of" the
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statutory grounds. 8 C.F.R. § 1208.13(b)(2)(iii)(A). Ratnasingam
argues that because the IJ made findings that "he is a Tamil" and
that "there is evidence in the record that Tamils are persecuted,"
the IJ and the BIA erred in denying him asylum. The IJ did not,
however, find there was a pattern or practice of persecution, but
rather that his evidence failed to establish any such pattern.
The BIA committed no error in affirming this
determination. "That a group suffers due to violent civil conflict
. . . in the home country does not suffice to establish a pattern
or practice" of persecution. Kho v. Keisler, 505 F.3d 50, 54 (1st
Cir. 2007) (quoting Meguenine v. INS, 139 F.3d 25, 28 (1st Cir.
1998)); see also Velasquez-Valencia v. INS, 244 F.3d 48, 51 (1st
Cir. 2001) ("Congress has chosen to define asylum as limited to
certain categories; . . . it has not generally opened the doors to
those merely fleeing from civil war."). Moreover, in Ravindran, a
case that involved an asylum claim by a Sri Lankan Tamil, this
court noted that "evidence of widespread violence and human rights
violations affecting all citizens is insufficient to establish
persecution." Ravindran, 976 F.2d at 759.
Because Ratnasingam "cannot meet the lower burden of
proof for establishing his eligibility for asylum, he therefore
cannot satisfy the more stringent standard for withholding of
removal." Sinurat v. Mukasey, 537 F.3d 59, 62 (1st Cir. 2008).
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As to the CAT claim, Ratnasingam argues that, regardless
of his failure to prove or provide any evidence of past torture, it
is more likely than not that he will be tortured if returned, based
on country conditions, the facts that "his photograph was taken by
the Sri Lankan authorities in 2001, . . . [that] he is returning
from a foreign country, . . . [and that] he is a failed asylum
seeker," and a report that an LTTE member who was returned in
October 2003 was tortured. The record does not compel a conclusion
that it is more likely than not that Ratnasingam, who was never an
LTTE member, would be tortured if returned. His claim is wholly
speculative. See Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir. 2008).
III.
The BIA also did not abuse its discretion in denying
Ratnasingam's motion to reopen. See Zeru v. Gonzales, 503 F.3d 59,
71 (1st Cir. 2007). Motions to reopen deportation proceedings are
disfavored due to the strong public interest in concluding
litigation. Id.
A motion to reopen deportation proceedings must state
"the new facts that will be proven . . . if the motion is granted"
and must demonstrate that "evidence sought to be offered is
material and was not available and could not have been discovered
or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1).
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Ratnasingam failed to state any new, material facts.2 The
documentary evidence that he submitted, including the 2008 State
Department country report, did not demonstrate intensified
persecution but mirrored evidence submitted in support of his
original application.
The BIA did not abuse its discretion in concluding that
his status as a failed asylum seeker constituted changed personal
circumstances rather than changed country conditions, or in finding
the claim was not new, having been made to the IJ.
Ratnasingam incorrectly argues that the BIA applied the
wrong legal standard to his motion to reopen and that his burden
was merely to demonstrate prima facie eligibility for relief.
Prima facie eligibility for relief is only one of the two threshold
requirements for a motion to reopen. Fesseha v. Ashcroft, 333 F.3d
13, 20 (1st Cir. 2003). Ratnasingam's failure to establish that he
met the second threshold -- that of introducing previously
unavailable, material evidence -- dooms his claim.
IV.
The petitions for review are denied.
2
Because the BIA supportably denied Ratnasingam's motion
on these grounds, we need not address its separate conclusion that
Ratnasingam failed to establish that "failed asylum seekers" or
"young male Tamils" constituted social groups within the meaning of
the Immigration and Nationality Act.
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