Perera v. Attorney General of the United States

447 F. App'x 365
CourtCourt of Appeals for the Third Circuit
DecidedOctober 5, 2011
DocketNo. 10-3182
StatusPublished
Cited by1 cases

This text of 447 F. App'x 365 (Perera v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Perera v. Attorney General of the United States, 447 F. App'x 365 (3d Cir. 2011).

Opinion

OPINION

PER CURIAM.

Lead petitioner Kumar Perera, his wife Lakshika Jayasuriya, and his minor daughter petition for review of a decision by the Board of Immigration Appeals (BIA) dismissing their appeal from an order denying applications for asylum, withholding of removal, and protection under the United Nations’ Convention Against Torture (CAT), and ordering their removal to Sri Lanka. We will deny the petition for review.

I.

Perera entered the United States with his family on visitors’ visas in 2006. Per-era began the asylum process in 2007; his wife and daughter filed their own applications in 2009, so as to pursue independent claims for withholding of removal and under CAT. All conceded removability.

Perera is a Sinhalese Buddhist from the Southern region of Sri Lanka. For many years, he worked with Ratnam Kannan 1 his Tamil “best friend” from Batticaloa, a city in the Eastern region of Sri Lanka. Perera and Ratnam collaborated on a garment shop, purchasing clothing abroad to sell at retail.

[367]*367In October of 2006, Ratnam contacted Perera with an urgent request. Ratnam’s brother, Mahesh, was being targeted by the Liberation Tigers of Tamil Eelam (LTTE), who suspected that Mahesh and his friends were working for the rival Ka-runa group2; indeed, Mahesh’s friends who were Karuna members had been killed by the LTTE. Ratnam implored Perera to shelter his brother, and Perera acquiesced, housing Mahesh in his residence along with Perera’s pregnant wife and young daughter. Perera insisted that he had no knowledge of Mahesh’s activities and did not seek any additional information from his houseguest. In early December, while Perera was away in Bangkok with his family, Ratnam was arrested; Perera asked Mahesh why this happened, but Mahesh claimed ignorance.

Two days later, while Perera was at work, the Sri Lankan army arrived at his home and arrested both his wife and Ma-hesh. Learning of the situation from his mother, Perera rushed to his aunt’s house, and over the course of several days attempted to free his wife from confinement. Perera’s father was informed by army officers that Mahesh was an LTTE member who had been hiding from the army, and that Perera was now wanted for harboring an LTTE member — a serious offense. Perera used some of his father’s finances in order to bribe officials to free his wife— who had been mistreated and abused during her ordeal — and then used a pre-exist-ing visa to flee with his family to the United States. He claimed that the Sri Lankan army was still searching for him, and had spread news of his alleged misdeeds far and wide; accordingly, he worried for his and his family’s health and safety should they be removed to Sri Lan-ka.

The Immigration Judge (IJ) denied Perera’s petition. She identified numerous problems and inconsistencies in his testimony that she found troubling and indicative of a lack of candor, such as his attempts to circumvent questions, his evasiveness with regard to his knowledge of Mahesh’s activities, his inconsistent explanations for why he declined to leave his family alone with Mahesh, and his failure to provide a satisfactory explanation for a lack of affidavits from several principal players in his story. For those reasons, the IJ found that Perera “was not a credible witness.” While basing her denial of relief on that ground, the IJ also offered two alternative paths to the same result: Perera had failed to meet his affirmative burden of proof; and, if Perera were telling the truth, he had provided material support to an alleged member of a terrorist organization and was thus barred from asylum relief. With regard to relief under the CAT, the IJ acknowledged that “the background evidence makes it very clear the Sri Lankan Government does engage in torture,” but found that Perera had “not established that it is more likely than not that he would be singled out for torture should he return.” Lastly, the IJ denied his family’s claims for relief, on both derivative and independent bases.3

Perera filed a counseled appeal, which was dismissed by the BIA. It determined that because “there are discrepancies and implausibilities in [Perera’s] testimony, the Immigration Judge’s credibility finding is not clearly erroneous.” Because Perera was deemed to be not credible, the BIA [368]*368declined to “reach the alternate holding of material support to a terrorist organization.”

This counseled petition for review followed.

II.

We have jurisdiction to review final orders of the BIA under 8 U.S.C. § 1252. “Where, as here, the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we will review both the BIA’s and IJ’s opinions.” Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005); see also Fiadjoe v. Att’y Gen., 411 F.3d 135, 152-53 (3d Cir.2005). We “affirm any findings of fact supported by substantial evidence and are ‘bound by the administrative findings of fact unless a reasonable adjudicator would be compelled to arrive at a contrary conclusion.’ ” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir.2009) (quoting Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir.2005)). “If we take issue with the application of law to [the] case, we will defer to the authority granted an agency by Congress and remand to the BIA for the appropriate consideration.” Quao Lin Dong v. Att’y Gen., 638 F.3d 223, 228 (3d Cir.2011).

III.

Because Perera applied for asylum after May 11, 2005, the provisions of the REAL ID Act of 2005 apply. Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.2007). Under the Act’s revised standard for credibility determinations, a factfinder may base her conclusion that an applicant lacks credibility on numerous factors, including demeanor, candor, internal consistency, external consistency (ie. harmony with the record), and inaccuracies, “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Adverse credibility determinations are reviewed under the substantial evidence standard, and will not be overturned unless the record compels a contrary conclusion. Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir.2006).

As discussed above, the IJ’s adverse credibility determination — upheld by the BIA — was, in effect, fatal to Perera’s petition.

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Related

Kumar Perera v. Attorney General United States
536 F. App'x 240 (Third Circuit, 2013)

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447 F. App'x 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perera-v-attorney-general-of-the-united-states-ca3-2011.