NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No: 21-2689 _______________
SASINTHA MARIYANAYAGAM, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA _______________
On Petition for Review of an Order of the Board of Immigration Appeals (BIA 1:A208-094-425) Immigration Judge: Dinesh C. Verma _______________
Submitted Under Third Circuit L.A.R. 34.1(a) April 13, 2022
Before: AMBRO, JORDAN and SCIRICA, Circuit Judges
(Filed: April 15, 2022) _______________
OPINION _______________
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.
Petitioner, Sasintha Mariyanayagam, is a native of Sri Lanka and citizen of the
United Kingdom. She entered the United States in 2014 under the Visa Waiver Program
and applied for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). An Immigration Judge denied Mariyanayagam’s applications,
holding that she had not established a nexus between her alleged persecution and any
statutorily protected ground. Likewise, he determined that Mariyanayagam was not
eligible for protection under the CAT because the record evidence did not show she
would be tortured by or with the acquiescence of a public official in the United Kingdom.
Her appeal was dismissed by the Board of Immigration Appeals for largely the same
reasons. We will deny her petition for review.
I. BACKGROUND1
In 2003, Mariyanayagam married a man living in the United Kingdom in a match
her parents had arranged. She joined her husband in London the next year. Her husband
was physically abusive, but she never reported his abuse to British authorities because of
the social opprobrium she feared from her Sri Lankan community. Mariyanayagam
ultimately separated from her husband because, as she put it, she “was not given any
womanly rights[.]” (A.R. at 108-09.) She last saw him in 2005, and their divorce was
finalized in 2008.
1 These background facts are drawn from the administrative record and are accepted as true for purposes of this decision.
2 In 2010, Mariyanayagam’s parents again arranged for her to be married, this time
to a man living in Switzerland. Although she moved from London to Switzerland to be
with him after their engagement, she often traveled back and forth between the two
locations for extended periods due to her work. During one of her stays in Switzerland,
she became pregnant. Her partner, angered by that news, physically abused her and
demanded that she return to London to have the baby without his financial support. She
did that and gave birth to her daughter. Mariyanayagam and her baby stayed in London
with friends for another four to five months. Eventually, she brought her daughter back
to Switzerland, where she and her partner got married and lived together for another two
years.
During that period, Mariyanayagam’s second husband was often abusive toward
her and, at one point, threatened to kill her. He would beat her for many reasons,
including jealousy over her prior marriage, anger over the small size of her dowry, and
irritation with their crying child. When she refused to have intimate relations with him,
he would force himself upon her. Mariyanayagam never reported him to the authorities.
Eventually, he sent her to the United States, where she joined her family. She says
she did not go back to London because her first husband still lived there and she would
be “ostracized by [her] society.” (A.R. at 236.) After she had spent two weeks in the
United States, Mariyanayagam’s second husband stopped contacting her or her daughter.
Although she has yet to receive official divorce papers, she learned that he remarried a
year later.
3 Around the time of his remarriage, Mariyanayagam applied for asylum,
humanitarian asylum, withholding of removal, and protection under the CAT. She
alleged persecution by her second husband on account of her political opinion that she
should be treated as an equal. She also claimed membership in two particular social
groups (“PSGs”): her family and “married women who are unable to leave a relationship
due to cultural and societal factors.” (A.R. at 65.)
The IJ denied the applications in their entirety. He determined that
Mariyanayagam suffered past persecution but failed to establish a nexus to a statutorily
protected ground. He also expressed doubt that her second proposed group was
cognizable but held that, even if it was, she was not a member of that group because she
had left both of her husbands. Moreover, he rejected her humanitarian asylum claim
because she failed to show a likelihood of harm if she returned to the United Kingdom.
Similarly, he denied CAT protection because Mariyanayagam could not show that, if she
returned to the United Kingdom, it was more likely than not that the British government
would torture her or acquiesce to her torture by others. The BIA dismissed her appeal,
agreeing in whole with the findings and reasoning of the IJ. It added only that it doubted
she expressed any political opinion at all, because “her actions opposing her former
partners” showed no more than “an interest in removing herself from an unacceptable
situation[.]” (A.R. at 4.)
4 II. DISCUSSION2
Mariyanayagam argues that the IJ and BIA erred on multiple fronts. First, she
contends that she was subject to persecution because she expressed the political opinion
that her second husband should have treated her as an equal. Next, she argues her family
was another cause of her second husband’s persecution. She also contends that she is
indeed a member of her second proposed PSG because, although she traveled freely, she
did so as a married woman, and now, as a divorcee, she would be “socially ostracized” by
her community if she returned to the United Kingdom. (Opening Br. at 13.) And lastly,
she argues she is entitled to CAT protection because of “the mental torture and the
cultural and social aspects attendant to her claim[,]” which the “British police [are] not in
[a] position to prevent[.]” (Opening Br. at 21, 24.)
None of those contentions is persuasive. While it is undisputed that
Mariyanayagam was the victim of domestic abuse, she has not shown entitlement to relief
under our immigration laws. She has failed to establish a nexus between her alleged
2 “[A] denial of a [Visa Waiver Program] applicant’s petition for asylum, withholding of removal, and relief under the CAT constitutes ‘a final order of removal’ within the meaning of the statute, as the alien is entitled to no further process before deportation.” Shehu v. Att’y Gen., 482 F.3d 652, 656 (3d Cir. 2007) (citing 8 U.S.C. § 1252(a)(1) and 8 C.F.R. § 217.4(a)(1)). We have jurisdiction over appeals from final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). We review questions of law de novo. B.C. v. Att’y Gen., 12 F.4th 306, 313 (3d Cir. 2021).
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No: 21-2689 _______________
SASINTHA MARIYANAYAGAM, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA _______________
On Petition for Review of an Order of the Board of Immigration Appeals (BIA 1:A208-094-425) Immigration Judge: Dinesh C. Verma _______________
Submitted Under Third Circuit L.A.R. 34.1(a) April 13, 2022
Before: AMBRO, JORDAN and SCIRICA, Circuit Judges
(Filed: April 15, 2022) _______________
OPINION _______________
This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. JORDAN, Circuit Judge.
Petitioner, Sasintha Mariyanayagam, is a native of Sri Lanka and citizen of the
United Kingdom. She entered the United States in 2014 under the Visa Waiver Program
and applied for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). An Immigration Judge denied Mariyanayagam’s applications,
holding that she had not established a nexus between her alleged persecution and any
statutorily protected ground. Likewise, he determined that Mariyanayagam was not
eligible for protection under the CAT because the record evidence did not show she
would be tortured by or with the acquiescence of a public official in the United Kingdom.
Her appeal was dismissed by the Board of Immigration Appeals for largely the same
reasons. We will deny her petition for review.
I. BACKGROUND1
In 2003, Mariyanayagam married a man living in the United Kingdom in a match
her parents had arranged. She joined her husband in London the next year. Her husband
was physically abusive, but she never reported his abuse to British authorities because of
the social opprobrium she feared from her Sri Lankan community. Mariyanayagam
ultimately separated from her husband because, as she put it, she “was not given any
womanly rights[.]” (A.R. at 108-09.) She last saw him in 2005, and their divorce was
finalized in 2008.
1 These background facts are drawn from the administrative record and are accepted as true for purposes of this decision.
2 In 2010, Mariyanayagam’s parents again arranged for her to be married, this time
to a man living in Switzerland. Although she moved from London to Switzerland to be
with him after their engagement, she often traveled back and forth between the two
locations for extended periods due to her work. During one of her stays in Switzerland,
she became pregnant. Her partner, angered by that news, physically abused her and
demanded that she return to London to have the baby without his financial support. She
did that and gave birth to her daughter. Mariyanayagam and her baby stayed in London
with friends for another four to five months. Eventually, she brought her daughter back
to Switzerland, where she and her partner got married and lived together for another two
years.
During that period, Mariyanayagam’s second husband was often abusive toward
her and, at one point, threatened to kill her. He would beat her for many reasons,
including jealousy over her prior marriage, anger over the small size of her dowry, and
irritation with their crying child. When she refused to have intimate relations with him,
he would force himself upon her. Mariyanayagam never reported him to the authorities.
Eventually, he sent her to the United States, where she joined her family. She says
she did not go back to London because her first husband still lived there and she would
be “ostracized by [her] society.” (A.R. at 236.) After she had spent two weeks in the
United States, Mariyanayagam’s second husband stopped contacting her or her daughter.
Although she has yet to receive official divorce papers, she learned that he remarried a
year later.
3 Around the time of his remarriage, Mariyanayagam applied for asylum,
humanitarian asylum, withholding of removal, and protection under the CAT. She
alleged persecution by her second husband on account of her political opinion that she
should be treated as an equal. She also claimed membership in two particular social
groups (“PSGs”): her family and “married women who are unable to leave a relationship
due to cultural and societal factors.” (A.R. at 65.)
The IJ denied the applications in their entirety. He determined that
Mariyanayagam suffered past persecution but failed to establish a nexus to a statutorily
protected ground. He also expressed doubt that her second proposed group was
cognizable but held that, even if it was, she was not a member of that group because she
had left both of her husbands. Moreover, he rejected her humanitarian asylum claim
because she failed to show a likelihood of harm if she returned to the United Kingdom.
Similarly, he denied CAT protection because Mariyanayagam could not show that, if she
returned to the United Kingdom, it was more likely than not that the British government
would torture her or acquiesce to her torture by others. The BIA dismissed her appeal,
agreeing in whole with the findings and reasoning of the IJ. It added only that it doubted
she expressed any political opinion at all, because “her actions opposing her former
partners” showed no more than “an interest in removing herself from an unacceptable
situation[.]” (A.R. at 4.)
4 II. DISCUSSION2
Mariyanayagam argues that the IJ and BIA erred on multiple fronts. First, she
contends that she was subject to persecution because she expressed the political opinion
that her second husband should have treated her as an equal. Next, she argues her family
was another cause of her second husband’s persecution. She also contends that she is
indeed a member of her second proposed PSG because, although she traveled freely, she
did so as a married woman, and now, as a divorcee, she would be “socially ostracized” by
her community if she returned to the United Kingdom. (Opening Br. at 13.) And lastly,
she argues she is entitled to CAT protection because of “the mental torture and the
cultural and social aspects attendant to her claim[,]” which the “British police [are] not in
[a] position to prevent[.]” (Opening Br. at 21, 24.)
None of those contentions is persuasive. While it is undisputed that
Mariyanayagam was the victim of domestic abuse, she has not shown entitlement to relief
under our immigration laws. She has failed to establish a nexus between her alleged
2 “[A] denial of a [Visa Waiver Program] applicant’s petition for asylum, withholding of removal, and relief under the CAT constitutes ‘a final order of removal’ within the meaning of the statute, as the alien is entitled to no further process before deportation.” Shehu v. Att’y Gen., 482 F.3d 652, 656 (3d Cir. 2007) (citing 8 U.S.C. § 1252(a)(1) and 8 C.F.R. § 217.4(a)(1)). We have jurisdiction over appeals from final orders of removal pursuant to 8 U.S.C. § 1252(a)(1). We review questions of law de novo. B.C. v. Att’y Gen., 12 F.4th 306, 313 (3d Cir. 2021). We review factual findings “to ensure that they are supported by substantial evidence from the record considered as a whole, and we will reverse based on a factual error only if any reasonable fact-finder would be ‘compelled to conclude otherwise.’” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010) (citation omitted) (quoting 8 U.S.C. § 1252(b)(4)(B)). “Inasmuch as the BIA adopted and affirmed the IJ’s decisions and orders as well as making an independent analysis, we review both the IJ’s and the BIA’s decisions and orders.” Ordonez-Tevalan v. Att’y Gen., 837 F.3d 331, 340-41 (3d Cir. 2016).
5 persecution, past or future, and a statutorily protected ground, which defeats her claims to
asylum and withholding of removal. Moreover, she mistakenly asks that we equate
social shame within a certain ethnic community to torture acquiesced in by British
authorities, so her CAT claim is meritless.
First, to establish asylum eligibility, petitioners must show they are “‘unable or
unwilling to return to’ their home country ‘because of [past] persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.’” Nsimba v. Att’y Gen., 21 F.4th 244, 247
(3d Cir. 2021) (quoting 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)). Past persecution
requires a petitioner to show (i) that she was “targeted for mistreatment on account of one
of the statutorily-protected grounds, (ii) that the incident, or incidents, of mistreatment
rise to the level of persecution, and (iii) that the persecution was committed by the
government or forces the government is either unable or unwilling to control.” Doe v.
Att’y Gen., 956 F.3d 135, 141-42 (3d Cir. 2020) (citations and internal quotation marks
omitted). “A showing of past persecution gives rise to a rebuttable presumption of a
well-founded fear of future persecution.” Toure v. Att’y Gen., 443 F.3d 310, 317 (3d Cir.
2006) (citing 8 C.F.R. § 208.13(b)(1)). If the petitioner did not suffer past persecution,
she may still be eligible for relief upon a showing of “a ‘reasonable possibility’ of future
persecution on account of a protected ground.” Thayalan v. Att’y Gen., 997 F.3d 132,
138 (3d Cir. 2021) (citation omitted). Regardless of whether that persecution occurred in
the past or may occur in the future, the protected ground on account of which the
petitioner is persecuted must be “a motivating factor or ‘at least one central reason’” why
6 she was or may be targeted. Doe, 956 F.3d at 142 (citation omitted). In other words,
there must be a nexus between the protected ground and the persecution.
Substantial evidence supports the IJ’s finding that Mariyanayagam was not
targeted on account of a statutorily protected ground. We therefore cannot disagree with
the BIA’s conclusion that she failed to establish that “her former partners imputed any
political opinion to her, or that [their] motive[s] for harming her w[ere] based on any
imputed or actual political opinion that she held.” (A.R. at 4.) The evidence is sufficient
to support a finding that the cause of the abuse was, sadly and simply, her husband’s
anger over her pregnancy, her dowry, and other marital concerns.
Her proposed PSGs of family membership and “married women who are unable to
leave a relationship due to cultural and societal factors”3 do not aid her cause. (A.R. at
65.) There is no basis for saying her family was a central reason she was persecuted.
And as a married woman who traveled freely and who successfully left both husbands –
though it may be argued that her second husband abandoned her – she was never a
member of her second proposed PSG.4
3 Although we doubt that this is a cognizable PSG, we assume without deciding, as did the IJ and BIA, that it is. 4 We decline to entertain Mariyanayagam’s belated attempt to redefine that PSG on appeal as that of divorcees who face shame from their cultural community. She did not delineate that PSG to the IJ and, thus, cannot change the formulation now. See Matter of W-Y-C- & H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018) (“Where, as here, an applicant delineates a social group for the first time on appeal, the Immigration Judge will not have had an opportunity to make relevant factual findings, which we cannot do in the first instance on appeal.”).
7 Even if Mariyanayagam had shown a nexus to a statutorily protected ground, she
admits that she never went to the British authorities for help, and thus she has not
presented any evidence that the United Kingdom’s government “either committed the
persecution or was unable or unwilling to control the persecutor[.]” Nsimba, 21 F.4th at
247-48. So, her asylum claim was properly dismissed. And, “[s]ince the threshold for
asylum is lower than for protection under the withholding of removal … provision[],
rejection of [Mariyanayagam’s] asylum claims necessarily require[d] that [her] …
withholding claim[] be rejected as well.” Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir.
2008).
Her CAT claim, too, is untenable. “For an act to constitute torture under the
[CAT] … it must be: (1) an act causing severe physical or mental pain or suffering; (2)
intentionally inflicted; (3) for an illicit or proscribed purpose; (4) by or at the instigation
of or with the consent or acquiescence of a public official who has custody or physical
control of the victim; and (5) not arising from lawful sanctions.” Myrie v. Att’y Gen., 855
F.3d 509, 515 (3d Cir. 2017) (quoting Auguste v. Ridge, 395 F.3d 123, 151 (3d Cir.
2005)) (alteration in original). Setting aside the other requirements, there is no evidence
that British authorities would acquiesce in, much less participate in or instigate, anything
resembling torture. Nor is the United Kingdom responsible for policing
Mariyanayagam’s ostracization from her community. Her CAT claim thus stands on
even weaker grounds than do the others.
8 III. CONCLUSION
Mariyanayagam has not met her burden of proof for asylum, withholding of
removal, or CAT protection, and we will therefore deny her petition for review.