Balasegarathum v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: September 18, 2020
• Docket: 17-3802
• Status: Unpublished

Opinion

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