20-4124 Soyza v. Garland BIA
Hom, IJ
A205 901 198
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.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 5th day of May, two thousand twenty-three. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 SUSAN L. CARNEY, 9 MICHAEL H. PARK, 10 Circuit Judges. 11 _____________________________________ 12 13 GIHAN SUNIMAL WIJEMUNI SOYZA, 14 Petitioner, 15 16 v. 20-4124 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Visuvanathan Rudrakumaran, New 24 York, NY. 25 26 FOR RESPONDENT: Brian M. Boynton, Assistant 27 Attorney General; Jonathan A. 28 Robbins, Sherease Pratt, Senior
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1 Litigation Counsel, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC.
5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is DENIED in part and GRANTED in part. 9 Petitioner Gihan Sunimal Wijemuni Soyza, a native and 10 citizen of Sri Lanka, seeks review of a November 9, 2020, 11 decision of the BIA affirming a June 25, 2018, decision of an 12 Immigration Judge (“IJ”) denying his application for asylum, 13 withholding of removal, and relief under the Convention 14 Against Torture (“CAT”). In re Gihan Sunimal Wijemuni Soyza, 15 No. A 205 901 198 (B.I.A. Nov. 9, 2020), aff’g No. A 205 901 16 198 (Immig. Ct. N.Y. City June 25, 2018). We assume the 17 parties’ familiarity with the underlying facts and procedural 18 history. 19 We have considered both the IJ’s and BIA’s opinions “for 20 the sake of completeness.” Wangchuck v. Dep’t of Homeland 21 Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable 22 standards of review are well established. See 8 U.S.C. 23 § 1252(b)(4)(B) (“[T]he administrative findings of fact are
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1 conclusive unless any reasonable adjudicator would be 2 compelled to conclude to the contrary.”); Yanqin Weng v. 3 Holder, 562 F.3d 510, 513 (2d Cir. 2009) (reviewing 4 factfinding for substantial evidence and questions of law de 5 novo). 6 Soyza alleged that officers in the Sri Lankan navy 7 arrested, beat, and interrogated him because they suspected 8 he was helping his employer, a wealthy and influential 9 fisherman named Kingsley Silver, transport alleged terrorists 10 (the Liberation Tigers of Tamil Elam (“LTTE”)) from a refugee 11 camp in Sri Lanka. As set forth below, we find no abuse of 12 discretion in the IJ’s exclusion of late-filed evidence, and 13 we deny the petition as to asylum and withholding for lack of 14 nexus to a protected ground. We remand for further 15 consideration of the CAT claim. 16 I. Late-filed Evidence 17 The IJ did not abuse his discretion by excluding Soyza’s 18 late-filed evidence. Soyza filed this evidence beyond the 19 February 2018 deadline set by the IJ. IJs have broad 20 discretion to set filing deadlines and may deem the 21 opportunity to file documents waived when deadlines are not
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1 met. See 8 C.F.R. § 1003.31(h); Matter of Jesus Interiano- 2 Rosa, 25 I. & N. 264, 265–66 (B.I.A. 2010) (discussing IJ’s 3 authority to deem opportunity to file supporting documents 4 waived); see also Morgan v. Gonzales, 445 F.3d 549, 551 (2d 5 Cir. 2006) (“IJs are accorded wide latitude in calendar 6 management, and we will not micromanage their scheduling 7 decisions.”). Because Soyza had notice of the deadline and 8 more than a year to compile his evidence, the IJ did not abuse 9 his discretion in declining to consider the late-filed 10 evidence. See Dedji v. Mukasey, 525 F.3d 187, 191–92 (2d 11 Cir. 2008) (reviewing rejection of late-filed evidence for 12 abuse of discretion). 13 II. Asylum and Withholding of Removal 14 Soyza had to demonstrate that “one central” motivation 15 for his arrest was his persecutors’ belief that he supported 16 the LTTE. 8 U.S.C. § 1158(b)(1)(B)(i); see also Quituizaca 17 v. Garland, 52 F.4th 103, 109–14 (2d Cir. 2022) (holding that 18 the “one central reason” standard applies to both asylum and 19 withholding of removal). Substantial evidence supports the 20 agency’s conclusion that he failed to establish a nexus. See 21 Edimo-Doualla v. Gonzales, 464 F.3d 276, 282 (2d Cir. 2006)
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1 (reviewing nexus determination for substantial evidence). 2 Soyza testified he piloted a fishing trawler and after 3 the war with the LTTE ended in 2009, his employer required 4 him to illegally transport displaced people from refugee 5 camps. Soyza testified that he believed he was transporting 6 displaced people, not terrorists, and that he knew the 7 activity was illegal. When he was arrested by the navy, 8 Soyza explained that he did not know the people he was 9 transporting were linked to the LTTE, but he was arrested 10 because transporting displaced people is a criminal act. He 11 testified that he was released when he gave up Silver’s name. 12 Based on this evidence, the agency reasonably concluded that 13 he did not establish that the navy was motivated by a belief 14 that he supported the LTTE, but rather arrested him because 15 of the illegal activity and to discover who employed him. 16 See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir. 17 2005) (requiring “direct or circumstantial evidence” of 18 persecutors’ motivation); Chun Gao v. Gonzales, 424 F.3d 122, 19 130 (2d Cir. 2005) (holding that applicant has “burden . . . 20 to show that his persecutors actually imputed a political 21 opinion to him” (quotation marks omitted)). Soyza’s argument
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1 that the agency failed to perform a mixed motive analysis 2 fails because the agency considered why he was arrested and 3 the evidence reflected that he was intercepted for engaging 4 in criminal activity and beaten to obtain his employer’s name, 5 not because he was suspected of supporting terrorists. See 6 In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007) 7 (A protected ground “cannot be incidental, tangential, 8 superficial, or subordinate to another reason for harm.”); 9 see also Chun Gao, 424 F.3d at 130 (burden on applicant to 10 prove opinion was imputed). 11 III. CAT claim 12 We do not reach a conclusion regarding the ultimate merit 13 of Soyza’s CAT claim, but remand for further consideration by 14 the agency given the lack of clarity and errors in the IJ’s 15 decision. A successful CAT claim requires a showing that the 16 applicant will “more likely than not” be tortured by or with 17 the acquiescence of government officials. See 8 C.F.R. 18 §§ 1208.16(c), 1208.17(a). “Torture is defined as any act 19 by which severe pain or suffering, whether physical or mental, 20 is intentionally inflicted on a person for such purposes as 21 obtaining from him or her or a third person information or a
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1 confession, punishing him or her for an act he or she or a 2 third person has committed or is suspected of having 3 committed, intimidating or coercing him or her or a third 4 person, or for any reason based on discrimination of any kind, 5 when such pain or suffering is inflicted by, or at the 6 instigation of, or with the consent or acquiescence of, a 7 public official acting in an official capacity or other person 8 acting in an official capacity.” Id. § 1208.18(a)(1). 1 “In 9 assessing whether it is more likely than not that an applicant 10 would be tortured” the agency “shall” consider “all evidence 11 relevant to the possibility of future torture . . . including, 12 . . . “[e]vidence of past torture inflicted upon the 13 applicant,” ability to relocate within the country, 14 “[e]vidence of gross, flagrant or mass violations of human 15 rights within the country of removal,” and “[o]ther relevant 16 information regarding conditions in the country of removal.” 17 Id. § 1208.16(c)(3). 18 In denying CAT relief, the IJ stated that Soyza “claimed 19 he was mistreated during interrogation” but there was “no 20 evidence to show that [he] was a victim of torture before his
1Citations are to the version of the regulations in force at the time of the agency’s decisions.
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1 departure.” This statement does not explain how Soyza’s 2 testimony about his beating by naval officers to obtain 3 information about alleged crimes did not rise to the level of 4 torture. See 8 C.F.R. § 1208.18(a)(1) (defining torture). 5 The IJ compounded the error by stating there was no evidence 6 that Soyza “suffered torture by [the government’s] 7 acquiescence” even though Soyza testified he was beaten by 8 members of the military. The IJ may have intended to make 9 an adverse credibility determination, but the credibility 10 section of the IJ’s decision does not identify grounds for 11 finding Soyza not credible and the conclusion of the 12 credibility analysis is incoherent. See Certified Admin. 13 Record at 38 (“The court did not find the respondent’s claim 14 that he was persecuted based upn an impute claim of 15 persecution as he was suspected to the a LTTE supporter.”). 16 While the BIA and the Government take the position that Soyza 17 waived his CAT claim on appeal, he flagged the IJ’s improper 18 reliance on credibility grounds. Given the BIA’s failure to 19 address that point and the obvious problems with the IJ’s 20 decision, we remand for further consideration of the CAT 21 claim. See Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.
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1 2005) (“requir[ing] a certain minimum level of analysis from 2 the IJ and BIA opinions denying asylum . . . if judicial 3 review is to be meaningful”). 4 For the foregoing reasons, the petition for review is 5 DENIED in part as to asylum and withholding of removal and 6 GRANTED in part and remanded for further consideration of the 7 CAT claim. All pending motions and applications are DENIED 8 and stays VACATED.
9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court