17-3630 Ponnampalam v. Barr BIA Christensen, IJ A099 759 295

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 1st day of May, two thousand nineteen.

PRESENT: JOSÉ A. CABRANES, RICHARD C. WESLEY, SUSAN L. CARNEY, Circuit Judges. _____________________________________

BALASUBRAMANIYA PONNAMPALAM, Petitioner,

v. 17-3630 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Visuvanathan Rudrakumaran, New York, NY.

FOR RESPONDENT: Briena L. Strippoli, Senior Litigation Counsel (Chad A. Readler, Acting Assistant Attorney General; Kiley Kane, Senior Litigation Counsel, on the brief), 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 Balasubramaniya Ponnampalam, a native and

citizen of Sri Lanka, seeks review of an October 6, 2017

decision of the BIA affirming a September 9, 2016 decision of

an Immigration Judge (“IJ”) denying his application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Balasubramaniya

Ponnampalam, No. A099 759 295 (B.I.A. Oct. 6, 2017), aff’g

No. A099 759 295 (Immig. Ct. N.Y. City Sept. 9, 2016). We

assume the parties’ familiarity with the underlying facts and

procedural history in this case.

Although we have the “inherent authority . . . to dismiss

an appeal or petition for review as frivolous when the appeal

or petition presents no arguably meritorious issue for our

consideration,” Pillay v. INS,

(2d Cir. 1995)

(per curiam), summary denial is “a rare exception to the

completion of the appeal process . . . [and] is available

only if an appeal is truly frivolous,” United States v. Davis,

2

(2d Cir. 2010) (quotation marks omitted).

Given conditions in Sri Lanka, Ponnampalam’s petition is not

frivolous and we deny the Government’s motion for summary

denial. However, because Ponnampalam has filed a brief and

responded to the Government’s motion for summary denial and

does not have a meritorious challenge to the agency’s

decisions, we construe the Government’s motion as its brief

and deny Ponnampalam’s petition on the merits.

In this case, we have considered both the IJ’s and the

BIA’s opinions “for the sake of completeness.” Wangchuck v.

Dep’t of Homeland Sec.,

(2d Cir. 2006).

The applicable standards of review are well established. See

(b)(4)(B); Hong Fei Gao v. Sessions,

(2d Cir. 2018).

Adverse Credibility Determination

“Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on the demeanor, candor, or responsiveness of

the applicant . . . , the consistency between the

applicant’s . . . written and oral statements . . . , the

internal consistency of each such statement, the consistency

of such statements with other evidence of record . . . without

3 regard to whether an inconsistency, inaccuracy, or falsehood

goes to the heart of the applicant’s claim, or any other

relevant factor.”

(b)(1)(B)(iii); see Xiu Xia

Lin v. Mukasey,

(2d Cir. 2008) (per

curiam). Substantial evidence supports the agency’s

determination that Ponnampalam was not credible as to his

claim that the Sri Lankan army had detained and tortured him

as a Tamil and suspected collaborator with the Liberation

Tigers of Tamil Eelam (“LTTE”) and that the LTTE had attempted

to extort him.

The agency reasonably relied in part on Ponnampalam’s

demeanor, noting that his testimony was vague and confusing

and became inconsistent when asked to provide more details.

See

(b)(1)(B)(iii); Majidi v. Gonzales,

, 81 n.1 (2d Cir. 2005) (recognizing that particular

deference is given to the trier of fact’s assessment of

demeanor) ; Qiu v. Ashcroft,

(2d Cir. 2003)

(“Where an applicant gives very spare testimony, . . . the IJ

. . . may fairly wonder whether the testimony is fabricated

. . . [and] may wish to probe for incidental details . . .

.”), overruled in part on other grounds by Shi Liang Lin v.

U.S. Dep’t of Justice,

(2d Cir. 2007). The

4 demeanor finding is supported by the record, which reflects

that Ponnampalam testified vaguely and evasively about who

had secured his release from detention in 1996, and, when

pressed for details, repeatedly provided inconsistent

answers. See Lin v. U.S. Dep’t of Justice,

(2d Cir. 2006) (“We can be still more confident in our review

of observations about an applicant’s demeanor where . . .

they are supported by specific examples of inconsistent

testimony.”) Ponnampalam’s testimony was also vague,

confusing, and inconsistent regarding how many times and for

how long he was detained when he traveled from LTTE-controlled

territory to Colombo in 2000. See

The agency reasonably relied on multiple other

inconsistencies regarding when and how many times LTTE stole

Ponnampalam’s tractor, whether he wrote to his village chief

to obtain evidence corroborating his identity, and when LTTE

last demanded money from him. See

(b)(1)(B)(iii). He did not compellingly explain his

inconsistent statements. See Majidi,

(“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

5 to credit his testimony.” (quotation marks omitted)).

Finally, the agency did not err in considering, as part

of “the totality of the circumstances,” that the Canadian

Immigration and Refugee Board had previously concluded that

Ponnampalam’s asylum claim was not credible. See

(b)(1)(B)(iii).

Given Ponnampalam’s demeanor and inconsistent evidence,

the agency’s adverse credibility determination is supported

by substantial evidence. See

(b)(1)(B)(iii).

That determination was dispositive of asylum, withholding of

removal, and CAT relief insofar as those forms of relief were

based on Ponnampalam’s individualized claims. See Paul v.

Gonzales,

(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

An applicant may

still qualify for asylum by proving “that there is a pattern

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

6 particular social group, or political opinion.”

(b)(2)(iii)(A). To do this, an alien 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,

(2d Cir.

2007) (quoting In re A-M-,

(BIA

2005)).

As an initial matter, on remand for consideration of

Ponnampalam’s pattern or practice claims, the agency was not

required to reevaluate Ponnampalam’s credibility because he

had not provided any new subjective evidence or asked for

reconsideration. As to Ponnampalam’s pattern or practice

claims, the IJ provided a thorough and accurate review of the

evidence related to Ponnampalam’s alleged fear as a Tamil and

failed asylum seeker, as well as an evaluation of the

interplay between those two claims. Based on the evidence

of the significant number of Tamils living in Sri Lanka, the

considerably improved conditions for Tamils, and the lack of

evidence of recent torture of failed asylum seekers, the

agency did not err in concluding that Ponnampalam did not

establish systemic or pervasive persecution of similarly

situated individuals sufficient to demonstrate a pattern or

7 practice of persecution of similarly situated individuals in

Sri Lanka. See

(b)(2)(iii); see also

Santoso v. Holder,

, 112 & n.1 (2d Cir. 2009)

(denying petition where agency considered background

materials and rejected pattern or practice claim); In re A-

M-,

.

Because Ponnampalam was found not credible as to his

individualized claimed fear of persecution, contrary to his

contention, the Ninth Circuit’s “disfavored group” analysis

in Sael v. Ashcroft,

(9th Cir. 2004), would not

apply even if we were to adopt it, which we decline to do.

Accordingly, the agency reasonably found that

Ponnampalam failed to demonstrate a well-founded fear of

persecution on account of his Tamil ethnicity, perceived LTTE

support, and status as a failed asylum seeker, and did not

err in denying asylum, withholding of removal, and CAT relief.

See Paul,

.

For the foregoing reasons, Ponnampalam’s motion to file

a late opposition is GRANTED, the Government’s motion for

summary denial is DENIED, but is CONSTRUED as the Government’s

brief, the petition for review is DENIED, and the pending

motion for a stay of removal is DISMISSED as moot. Any

8 pending request for oral argument in this petition is DENIED

in accordance with Federal Rule of Appellate Procedure

34(a)(2) and Second Circuit Local Rule 34.1(b).

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

9