16-1464
Doe v. Sessions
BIA
Poczter, IJ
A205 298 083
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
26th day of July, two thousand seventeen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
JOHN DOE, AKA SUVENDRAN
KANAPATHIPILLAI,
Petitioner,
v. 16-1464
NAC
JEFFERSON B. SESSIONS III,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Theodore N. Cox, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Russell J.E.
Verby, Senior Litigation Counsel;
John D. Williams, 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 Suvendran Kanapathipillai, a native and citizen
of Sri Lanka, seeks review of an April 27, 2016, decision of
the BIA affirming a July 24, 2014, decision of an Immigration
Judge (“IJ”) denying Kanapathipillai’s application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). In re Suvendran Kanapathipillai, No. A205 298
083 (B.I.A. Apr. 27, 2016), aff’g No. A205 298 083 (Immig. Ct.
N.Y. City July 24, 2014). 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
decision of the IJ as supplemented by the BIA. Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well established. See 8 U.S.C.
§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66
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(2d Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
Cir. 2009).
I. Adverse Credibility Determination
For asylum applications like Kanapathipillai’s governed by
the REAL ID Act, the agency may “[c]onsidering the totality of
the circumstances,” base a credibility finding on
inconsistencies in an asylum applicant’s statements and other
record evidence with or “without regard to whether” those
inconsistencies go “to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d
at 163-64. For the reasons that follow, we conclude that
substantial evidence supports the agency’s determination that
Kanapathipillai was not credible.
In reaching its decision, the agency properly relied on two
types of material inconsistencies: (1) inconsistencies about
why the army targeted Kanapathipillai, and (2) inconsistencies
about the dates of the alleged persecution. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Regarding the first type of
inconsistency, Kanapathipillai offered different responses for
why the government targeted him, ranging from a lack of any
knowledge to the army’s belief that he was a member of the
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Liberation Tigers of Tamil Eelam (“LTTE”). Kanapathipillai
contends that the IJ mischaracterized the evidence and should
have credited his explanations. But the record reflects
evolving statements and the IJ was not required to accept
Kanapathipillai’s various explanations. Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005). Moreover, because the
agency’s interpretation is grounded in the record, we cannot
find to the contrary. See Siewe v. Gonzales, 480 F.3d 160, 168
(2d Cir. 2007) (“[R]ecord support for a contrary inference—even
one more plausible or natural—does not suggest error.”).
Regarding the second type of inconsistency, the agency
reasonably relied on Kanapathipillai’s inconsistent dates for
when the army detained him and his father. The IJ noted that
Kanapathipillai testified that his first incident with the army
occurred in January 2012 and later testified that it occurred
in the last month of that year. The IJ also noted that
Kanapathipillai testified that his father was arrested in the
first month of 2011, but his written statement says that the
father’s arrest occurred in the twelfth month of 2011.
Kanapathipillai contends that the IJ exaggerated the
inconsistencies and should have credited his explanations, such
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as confusion and nervousness. But the inconsistencies were
apparent and Kanapathipillai’s explanations do not compel a
different conclusion. Majidi, 430 F.3d at 80-81.
As the agency observed, Kanapathipillai also failed to
rehabilitate his testimony with corroborating evidence. See
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(explaining that “failure to corroborate . . . 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”). He alleged that
the army interrogated his brother in January 2014, but his
mother’s letter omitted that information and he did not provide
a letter from his brother. See Xiu Xia Lin, 543 F.3d at 166-67
& n.3 (concluding that omissions from corroborating documents
such as letters from family members are the same as
inconsistencies and may be relied on as part of an adverse
credibility determination).
Kanapathipillai’s final challenge to the agency’s adverse
credibility determination—that the IJ overlooked medical
evidence of his parents’ injuries that supported his story—also
fails. “[W]e presume that an IJ has taken into account all of
5
the evidence before [her], unless the record compellingly
suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d 336 n.17 (2d Cir. 2006). Here, the IJ stated that she
“considered the entire record including all of the documents
whether or not they are specifically mentioned,” and nothing
in the record suggests otherwise. Moreover, as the BIA
reasoned, evidence of his parents’ injuries cannot cure the
inconsistencies addressed above, which are sufficient to
support the IJ’s adverse credibility determination.
II. Future Persecution as a Returning Asylum Seeker
Kanapathipillai asserted an independent claim that he
would be persecuted for having left Sri Lanka to seek asylum
abroad. To be eligible for asylum on this basis,
Kanapathipillai had to establish that the Sri Lankan government
had a pattern or practice of persecuting returning asylum
seekers and would know that he falls into that category. See
Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008);
Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 564 (2d Cir. 2006).
We need not reach the agency’s finding that Kanapathipillai
failed to show that the government would discover his status
because the agency reasonably concluded that Kanapathipillai
6
failed to show targeting of asylum seekers that was “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)
(internal quotation marks omitted).
The bulk of the country conditions evidence was outdated,
and Kanapathipillai did not submit any evidence showing that
prior conditions persisted. Particularly, the most recent
evidence identifies only two individuals who were returned to
Sri Lanka and their circumstances are distinguishable: both men
fled Sri Lanka with a large group, and only the organizer of
the trip was alleged to have suffered physical harm on return.
Moreover, other evidence reflected that detentions generally
lasted only a few days to two weeks and related to charges of
illegally departing Sri Lanka, an offense punishable by a fine.
Qun Yang v. McElroy, 277 F.3d 158, 163 n.5 (2d Cir. 2002)
(“Possible persecution for violation of a statute applicable
to all citizens would not standing alone constitute a valid
basis for asylum.”); Saleh v. U.S. Dep’t of Justice, 962 F.2d
234, 239 (2d Cir. 1992) (same). Given this evidence,
Kanapathipillai has not shown “systemic and pervasive” harm
that rises to the level of persecution. Siewe, 480 F.3d at 167
7
(“Decisions as to . . . which of competing inferences to draw
are entirely within the province of the trier of fact.”
(internal quotation marks omitted)). Additionally, some
evidence links detention to suspected LTTE support, a ground
on which Kanapathipillai was found incredible. Because
Kanapathipillai’s claim for asylum, withholding of removal, and
CAT relief are all based on the same factual predicate, the
adverse credibility determination and pattern or practice
findings are dispositive. Paul v. Gonzales, 444 F.3d 148,
155-57 (2d Cir. 2006).
Finally, Kanapathipillai argues that the BIA failed to
consider his claim that Sri Lanka persecutes all Tamils, but
remand is not necessary because he was not credible regarding
his past harm or fear of future harm as a Tamil or suspected
LTTE member. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
Cir. 2004) (holding that “well-founded fear of future
persecution . . . requires that the alien present credible
testimony that he subjectively fears persecution and establish
that his fear is objectively reasonable”). Moreover, he did
not argue before the IJ that there is a pattern or practice of
persecution of Tamils generally. See Prabhudial v. Holder, 780
8
F.3d 553, 555 (2d Cir. 2015) (“The BIA may refuse to consider
an issue that could have been, but was not, raised before an
IJ.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is 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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