Fernando v. Garland

• Court: Court of Appeals for the Second Circuit
• Decided: November 1, 2023
• Docket: 21-6034
• Status: Unpublished

Opinion

21-6034 Fernando v. Garland BIA Christensen, IJ A087 378 523/093 445 389

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of November, two thousand twenty-three.

PRESENT: RICHARD J. SULLIVAN, ALISON J. NATHAN, SARAH A. L. MERRIAM, Circuit Judges. _____________________________________

SUGATH PRASANNA FERNANDO, ANNE LELANI DEEPIKA FERNANDO, Petitioners,

v. 21-6034 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONERS: Sugath Prasanna Fernando, Anne Lelani Deepika Fernando, pro se, Staten Island, NY.

FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney General; Bernard A. Joseph, Senior Litigation Counsel; Erik R. Quick, 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 DISMISSED in part and DENIED in

remaining part.

Petitioners Sugath Prasanna Fernando (“Fernando”) and Anne Lelani

Deepika Fernando, natives and citizens of Sri Lanka, seek review of a decision of

the BIA affirming a decision of an Immigration Judge (“IJ”) that denied Petitioners’

request for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). 1 In re Sugath Prasanna Fernando, Anne Lelani Deepika

Fernando, Nos. A 087 378 523/093 445 389 (B.I.A. Jan. 5, 2021), aff’g Nos. A 087 378

523/093 445 389 (Immigr. Ct. N.Y.C. June 20, 2018). Petitioners also challenge the

IJ’s denial of their request for a continuance and the agency’s determination that

1 We refer primarily to Fernando throughout this Order. Because Anne Fernando was included as a derivative applicant on Fernando’s asylum application, her eligibility for relief is based on her husband’s claims. 2 Fernando’s application was frivolous, which rendered him permanently ineligible

for immigration benefits. We assume the parties’ familiarity with the underlying

facts and procedural history.

We review both the IJ’s and the BIA’s decisions “for the sake of

completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006). We review the agency’s factual findings to determine whether they are

supported by substantial evidence and review the agency’s conclusions of law de

novo. See Niang v. Holder, 762 F.3d 251, 253 (2d Cir. 2014). As set forth below, we

dismiss the petition as to the asylum claim on the basis that this claim is untimely

and deny the petition in all other respects.

I. The Court Lacks Jurisdiction To Consider Fernando’s Untimely Asylum Application.

An asylum application must be “filed within 1 year after the date of the

alien’s arrival in the United States” unless “the alien demonstrates to the

satisfaction of the Attorney General either the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing.” 8 U.S.C. §§ 1158(a)(2)(B), (D). Our

jurisdiction to review the agency’s timeliness determination is limited to

“constitutional claims [and] questions of law.” Id. § 1252(a)(2)(D); see also id. 3 § 1158(a)(3); Xiao Ji Chen v. U.S. Dep’t of Just., 434 F.3d 144, 154 (2d Cir. 2006)

(explaining that an “IJ’s finding as to whether a petitioner has established

‘changed’ or ‘extraordinary’ circumstances . . . constitutes a discretionary

determination” outside of our “jurisdiction to review constitutional claims or

matters of statutory construction” (citation omitted)).

Although Fernando entered the United States in 1996, he did not file his

application until 2013, well beyond the one-year deadline. Because the agency

found that Fernando was not credible and did not credit his representations

regarding his political activity while in the United States, we do not have

jurisdiction to review the agency’s finding that he did not demonstrate changed

circumstances material to his asylum claim. See 8 U.S.C. §§ 1158(a)(3),

1252(a)(2)(D); Xiao Ji Chen, 434 F.3d at 154.

II. Petitioners’ Withholding of Removal and CAT Claims Are Denied Because Substantial Evidence Supported the IJ’s Adverse Credibility Determination.

Having determined that we lack jurisdiction to review Petitioners’ asylum

claim, we turn now to Petitioners’ withholding of removal and CAT claims. For

the following reasons, we conclude that the IJ’s adverse credibility determination

was supported by substantial evidence. The adverse credibility determination is

4 dispositive of withholding of removal and CAT relief in this case because both

claims are based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148,

156–57 (2d Cir. 2006).

We review adverse credibility determinations “under the substantial

evidence standard.” Hong Fei Gao v. Sessions, 891 F.3d 67, 76 (2d Cir. 2018).

“[T]he administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). “Considering the totality of the circumstances, and all relevant

factors, a trier of fact may base a credibility determination on . . . the consistency

between the applicant’s or witness’s written and oral statements (whenever made

and whether or not under oath, and considering the circumstances under which

the statements were made), the internal consistency of each such statement, the

consistency of such statements with other evidence of record . . . , and any

inaccuracies or falsehoods in such statements.” Id. § 1158(b)(1)(B)(iii). “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 v. Mukasey, 534 F.3d 162, 167 (2d Cir.

2008); see also Hong Fei Gao, 891 F.3d at 76.

5 The inconsistencies between Fernando’s application and testimony provide

substantial evidence for the adverse credibility determination. In his application,

Fernando claimed that Sri Lankan officials arrested, detained, and interrogated

him as a suspected supporter of Tamil terrorists involved in a bombing, and

“beat[],” “assaulted,” and “tortured” him. Certified Admin. Record at 170–71.

He further claimed that he was suspected of being a supporter because his friend

Vaheesan was Tamil and worked at the bank that was bombed. The application

also reported that Sri Lankan authorities went to Fernando’s home shortly after he

left Sri Lanka in 1996 and again in January 2013 to inquire about his whereabouts

and relay threats to his family members when they determined that he had been

protesting in the United States.

In contrast, Fernando testified that he left Sri Lanka because he was “really

depressed” by the situation there, including acts of terrorism and his sense that

the unemployment rate “was going [to] skyrocket,” and because he “ha[d] a lot of

challenges” following his father’s death. Id. at 132–34. He added that he was

scared to return because he attended a few protests at the United Nations in New

York in support of the Democratic National Alliance, and Sri Lankan authorities

had gone to his mother’s house after identifying him from videos of the protests.

6 He further testified that he had never been arrested anywhere in the world and

that he never had any problems with the Sri Lankan government while he lived

there. Only after the IJ read from his application did he testify that he was “taken

to the [Sri Lankan] police” but “was not in jail.” Id. at 144. He explained that the

police interrogated him because he was “hanging out with” a Tamil person at a

cricket match, id., but claimed that he could not remember this person’s name or

occupation because thirty years had passed since the purported incident.

The agency was not required to accept Fernando’s explanation for the

inconsistencies between his application and testimony – that he could not

remember details because so much time had passed – because he included details

in the application he filed in 2013. See 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)). These glaring inconsistencies provide substantial evidence for the

adverse credibility determination. See Likai Gao v. Barr, 968 F.3d 137, 145 n.8 (2d

Cir. 2020) (“[E]ven a single inconsistency might preclude an alien from showing

that an IJ was compelled to find him credible.”); Siewe v. Gonzales, 480 F.3d 160, 170

7 (2d Cir. 2007) (“[A] single false document or a single instance of false testimony

may (if attributable to the petitioner) infect the balance of the alien’s

uncorroborated or unauthenticated evidence.”). Fernando’s credibility was

further undermined by his failure to provide corroborating evidence from his

mother or from the Democratic National Alliance, the political party he allegedly

joined in the United States. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.

2007) (“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.”).

III. The IJ’s Denial of Fernando’s Request for a Continuance Was Not an Abuse of Discretion.

To the extent that Fernando’s pro se brief challenges the IJ’s denial of his

request for a continuance to file additional documents, the argument lacks merit.

The agency did not abuse its discretion or violate due process in denying a

continuance because Fernando filed the motion only six days before the hearing –

after having had three years to prepare his case – and failed to explain why he had

not obtained and submitted documents from Sri Lanka earlier. See 8 C.F.R.

§ 1003.29 (authorizing IJ to grant a continuance for “good cause”); Roman v.

Garland, 49 F.4th 157, 166–67 (2d Cir. 2022) (explaining that an IJ’s decision to deny 8 a continuance is “reviewed under a highly deferential standard of abuse of

discretion” (internal quotation marks omitted)); see also Burger v. Gonzales, 498 F.3d

131, 134 (2d Cir. 2007) (“To establish a violation of due process, an alien must show

that []he was denied a full and fair opportunity to present h[is] claims or that the

IJ or BIA otherwise deprived h[im] of fundamental fairness.” (internal quotation

marks omitted)).

IV. The Agency Did Not Err in Concluding that Fernando’s Application Was Frivolous.

On appeal, Fernando argues that the agency erred in concluding that his

application was frivolous, because the IJ: (1) did not give him an opportunity to

submit documents in support of his application; (2) improperly conflated the

question of whether Fernando was credible with the question of whether his

application was frivolous; (3) failed to warn Fernando regarding the consequences

of filing a frivolous application; and (4) failed to make a specific finding as to

frivolousness that was separate from the adverse credibility determination. Each

of these contentions is without merit.

If the agency “determines that an alien has knowingly made a frivolous

application for asylum and the alien has received . . . notice [of the consequences

of knowingly filing a frivolous claim], the alien shall be permanently ineligible for 9 any [immigration] benefits.” 8 U.S.C. § 1158(d)(6). “[A]n asylum application is

frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R.

§ 1208.20. 2 The following requirements must be met before an alien may be

permanently barred from receiving benefits: “(1) notice to the alien of the

consequences of filing a frivolous application; (2) a specific finding by the

Immigration Judge or the [BIA] that the alien knowingly filed a frivolous

application; (3) sufficient evidence in the record to support the finding that a

material element of the asylum application was deliberately fabricated; and (4) an

indication that the alien has been afforded sufficient opportunity to account for

any discrepancies or implausible aspects of the claim.” Mei Juan Zheng v.

Mukasey, 514 F.3d 176, 180 (2d Cir. 2008) (quoting Matter of Y-L-, 24 I. & N. Dec.

151, 155 (B.I.A. 2007)). A “finding of frivolousness does not flow automatically

from an adverse credibility determination,” Y-L-, 24 I. & N. Dec. at 156 (internal

quotation marks omitted), and the IJ “must provide cogent and convincing reasons

for finding by a preponderance of the evidence that an asylum applicant

knowingly and deliberately fabricated material elements of the claim,” id. at 158.

2We refer to the version of the regulations in place at the time of the IJ and BIA decisions. See Garcia v. Garland, 64 F.4th 62, 67 n.3 (2d Cir. 2023). 10 Here, the agency followed the required steps and had adequate support for its

frivolousness finding.

Fernando had notice of the consequences of filing a frivolous application.

Notice is presumed where, as here, the applicant has signed his application on

which the frivolousness warning is printed, and the applicant does not plausibly

claim and present credible evidence that he did not understand the warning. See

Ud Din v. Garland, 72 F.4th 411, 427–28 (2d Cir. 2023). Moreover, the IJ provided

an oral warning before Fernando signed the application.

The IJ also made a specific finding that Fernando’s claim that Sri Lankan

police arrested, detained, and beat him was false because he testified that he had

never been arrested, he did not mention having been detained or beaten despite

repeated inquiries, and he could not confirm any details regarding this claim even

after his application was read to him. And, as discussed above with respect to

the adverse credibility determination, the record supports the IJ’s conclusion.

Fernando’s testimony failed to address the purported arrest and beating described

in his written application, he could not recall the name or occupation of the Tamil

friend identified in his application, and he explicitly testified that he had never

11 been arrested or had any problems with Sri Lankan authorities when he lived

there.

Furthermore, when the IJ gave Fernando an opportunity to explain the

inconsistencies between his testimony and application, he gave only a vague

response that “everything started” because of his Tamil friend. Certified Admin.

Record at 146. Although Fernando asserts that he truthfully testified that he was

taken to police, he testified to that fact only after explicitly denying arrests or

problems with Sri Lankan authorities and after the IJ had recounted the claims in

his asylum application. Because the IJ followed the appropriate procedures and

the record supports a finding that Fernando fabricated a claim of past persecution,

the agency did not err in rendering a frivolousness finding. See Mei Juan Zheng,

514 F.3d at 180.

For the foregoing reasons, the petition for review is DISMISSED with respect

to the asylum claim and DENIED in remaining part. All pending motions and

applications are DENIED and stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court