20-817 Selvaraj v. Garland BIA Cheng, IJ A206 061 698 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 United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 22nd day of September, two thousand twenty-two. 5 6 PRESENT: 7 PIERRE N. LEVAL, 8 RAYMOND J. LOHIER, JR., 9 MYRNA PÉREZ, 10 Circuit Judges. 11 _____________________________________ 12 13 SASHIKUMAR SELVARAJ, 14 Petitioner, 15 16 v. 20-817 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Genet Getachew, Brooklyn, NY. 24 25 FOR RESPONDENT: Jeffrey Bossert Clark, Acting 26 Assistant Attorney General; 27 Jessica A. Dawgert, Senior 28 Litigation Counsel; Jacob A. 1 Bashyrov, Trial Attorney, Office 2 of 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 GRANTED in part and DENIED in part.

9 Petitioner Sashikumar Selvaraj, a native and citizen of

10 Sri Lanka, seeks review of a February 10, 2020 decision of

11 the BIA affirming a May 10, 2018 decision of an Immigration

12 Judge (“IJ”) denying asylum, withholding of removal, and

13 relief under the Convention Against Torture (“CAT”). See In

14 re Sashikumar Selvaraj, No. A 206 061 698 (B.I.A. Feb. 10,

15 2020), aff’g No. A 206 061 698 (Immig. Ct. N.Y.C. May 10,

16 2018). We assume the parties’ familiarity with the

17 underlying facts and procedural history, to which we refer

18 only as necessary to explain our decision to grant in part

19 and deny in part the petition.

20 We review the IJ’s decision as supplemented by the BIA.

21 See Yan Chen v. Gonzales,

(2d Cir. 2005).

22 The standards of review are well established. See 8 U.S.C.

23 § 1252(b)(4)(B) (“[T]he administrative findings of fact are

2 1 conclusive unless any reasonable adjudicator would be

2 compelled to conclude to the contrary”); Hong Fei Gao v.

3 Sessions,

(2d Cir. 2018) (explaining that we

4 review adverse credibility determinations under the

5 substantial evidence standard); Paloka v. Holder,

(2d Cir. 2014) (reviewing factual findings for

7 substantial evidence and questions of law and application of

8 law to fact de novo). An asylum applicant must demonstrate

9 that he has suffered past persecution or that he has a well-

10 founded fear of persecution on account of a protected ground,

11 the latter of which requires showing that he would be “singled

12 out individually for persecution” or that there is a “pattern

13 or practice” of persecution of “a group of persons similarly

14 situated to the applicant.”

(b)(2). To

15 determine whether an asylum applicant has sustained his

16 burden of proof, the agency “weigh[s] the credible testimony

17 along with other evidence of record.” 8 U.S.C.

18 § 1158(b)(1)(B)(ii).

19 Substantial evidence supports both (1) the agency’s

20 determination that Selvaraj was not credible as to his claim

21 that he was tortured by Sri Lankan authorities on account of

3 1 his imputed political opinion, i.e., his supposed support for

2 the Liberation Tigers of Tamil Elam (“LTTE”), and (2) the

3 agency’s conclusion that Selvaraj did not establish a

4 likelihood of torture on account of his status as a “failed

5 asylum seeker,” See ECF No. 2 at 4. However, we remand for

6 the agency to consider in the first instance whether he may

7 be eligible for asylum based on a pattern or practice of

8 persecution of Tamils.

9 I. Credibility Determination

10 “Considering the totality of the circumstances, and all

11 relevant factors, a trier of fact may base a credibility

12 determination on the demeanor, candor, or responsiveness of

13 the applicant . . . , the consistency between the applicant’s

14 or witness’s written and oral statements . . . , the internal

15 consistency of each such statement, [and] the consistency of

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

17 regard to whether an inconsistency, inaccuracy, or falsehood

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

19 relevant factor.”

(b)(1)(B)(iii). “We defer

20 . . . to an IJ’s credibility determination unless, from the

21 totality of the circumstances, it is plain that no reasonable

4 1 fact-finder could make such an adverse credibility ruling.”

2 Xiu Xia Lin v. Mukasey,

(2d Cir. 2008);

3 accord Hong Fei Gao,

. The agency’s

4 determination that Selvaraj was not credible as to his past

5 persecution claims is supported by substantial evidence.

6 First, the agency reasonably relied on the fact that

7 Selvaraj’s testimony was vague and unresponsive. 8 U.S.C.

8 § 1158(b)(1)(B)(iii). We defer to such a finding, especially

9 where, as here, there is also a specific finding of

10 inconsistent testimony. See Majidi v. Gonzales,

,

11 81 n.1 (2d Cir. 2005) (noting that “a fact-finder who assesses

12 testimony together with witness demeanor is in the best

13 position to discern . . . whether a witness who hesitated in

14 a response was nevertheless attempting truthfully to recount

15 what he recalled of key events” (quotation marks and brackets

16 omitted)); see also Li Hua Lin v. U.S. Dep’t of Just., 453

, 109 (2d Cir. 2006) (“We can be . . . more confident

18 in our review of observations about an applicant’s demeanor

19 where . . . they are supported by specific examples of

20 inconsistent testimony.”). The record supports the IJ’s

21 findings that Selvaraj’s testimony was at times vague and

5 1 unresponsive. For example, when asked on cross-examination

2 if he went to the hospital, Selvaraj did not initially answer

3 the question directly even after it was asked twice, and he

4 only vaguely described treatment for “internal injuries.”

5 See ECF. No. 16 at 86.

6 Second, the agency reasonably relied on inconsistencies

7 between Selvaraj’s testimony and the written statement he

8 submitted with his asylum application. See 8 U.S.C.

9 § 1158(b)(1)(B)(iii). Selvaraj wrote that he was a seaman

10 who travelled internationally and was away from Sri Lanka for

11 specific periods (February 2006 to July 2007, December 2007

12 to September 2008, and March to December 2009). He wrote

13 that he was detained three times, after each of his trips

14 abroad: for six days beginning August 10, 2007; for four days

15 in September 2008; and for two days beginning December 4,

16 2009. But he testified inconsistently that he was arrested

17 and detained in February 2007 (when his application stated he

18 was outside of Sri Lanka), and he gave different and specific

19 dates for his time outside of Sri Lanka. He also gave

20 inconsistent statements regarding whether he arrived in

21 Canada in 2009 or 2010. Considered together, these

6 1 inconsistencies are significant and call into question the

2 alleged arrests. See Tu Lin v. Gonzales,

, 402

3 (2d Cir. 2006) (“[E]ven where an IJ relies on discrepancies

4 or lacunae that, if taken separately, concern matters

5 collateral or ancillary to the claim, the cumulative effect

6 may nevertheless be deemed consequential by the fact-finder.”

7 (quotation marks and citation omitted)). 1

8 Third, the agency’s adverse credibility determination is

9 supported by a significant omission in Selvaraj’s wife’s

10 letters. Selvaraj alleged that, sometime between 2006 and

11 2009, police arrested and beat his wife, and he testified

12 that, in 2012, they detained her for a day and attempted to

13 sexually assault her. But his wife does not mention these

14 events in any of her several letters or her statement to

15 police. The agency did not err in relying on these omissions

16 because her 2013 letter is addressed to “USA Immigration” and

1Selvaraj’s argument that he should not have been expected to recall precise dates of events from a decade ago is not compelling because he gave precise dates when asked, rather than saying he could not remember the dates. 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 to credit his testimony.” (quotation marks omitted)). 7 1 clearly was written to support her husband’s asylum

2 application, but the only harm she describes is that “unknown

3 people” came to their home looking for Selvaraj and threatened

4 them. See Xiu Xia Lin,

(permitting

5 consideration of discrepancies between the petitioner’s

6 testimony and letters from third parties); see also Hong Fei

7 Gao, 891 F.3d at 78–79, 81 (cautioning against reliance on

8 omissions in third-party statements but holding that the

9 probative value of an omission depends on whether the omitted

10 facts are ones that an applicant or witness “would reasonably

11 have been expected to disclose under the relevant

12 circumstances”).

13 In addition to these findings, the IJ reasonably found

14 Selvaraj’s credibility further undermined by his testimony

15 that he voluntarily returned to Sri Lanka several times after

16 the alleged torture, despite his alleged fear that he would

17 “definitely” be killed if he returned there. See Kone v.

18 Holder,

, 150–51 (2d Cir. 2010) (stating that,

19 while voluntary return trips to one’s home country are

20 insufficient on their own to establish a lack of credibility,

21 they may be relevant to credibility depending on the

8 1 circumstances).

2 Given the omissions and inconsistencies, and the IJ’s

3 supported demeanor finding, substantial evidence supports the

4 adverse credibility determination. See Hong Fei Gao, 891

5 F.3d at 76; Xiu Xia Lin, 534 F.3d at 165–66. That

6 determination is dispositive of Selvaraj’s asylum,

7 withholding of removal, and CAT claims insofar as they were

8 predicated on his alleged past persecution or his imputed

9 political opinion. See Paul v. Gonzales,

, 156–

10 57 (2d Cir. 2006).

11 II. Claims Relying on Objective Evidence

12 Selvaraj also argues that he established a well-founded

13 fear of persecution through objective evidence of (1) a

14 pattern or practice of persecution of Tamils, and (2) a

15 likelihood that he would be persecuted or tortured based on

16 his status as a failed asylum seeker. The Government argues

17 that he did not raise these claims before the IJ, except that

18 his counsel asserted a CAT claim based on his status as an

19 asylum seeker.

20 A. Pattern or Practice of Persecution of Tamils

21 The BIA erred in finding that Selvaraj had not raised a

9 1 pattern-or-practice claim before the IJ. Because it was

2 undisputed that Selvaraj is Tamil and since the country

3 conditions evidence provides some support for the pattern-

4 or-practice claim, we remand for the agency to consider the

5 evidence in the first instance. See Paul,

,

6 154–55 (remanding where agency failed to consider future

7 persecution based on widespread persecution of applicant’s

8 religious group where it was established that applicant

9 practiced that religion).

10 Although Selvaraj’s principal claim was that Sri Lankan

11 authorities suspected him of working with the LTTE, a Tamil

12 separatist group that was at war with the government until

13 2009, his asylum application and testimony also identified a

14 fear of violence directed at Tamils in general. 2 “[A]n

2The asylum application indicated that Selvaraj was seeking asylum based on both “political opinion” and “nationality”: his written statement expressed a fear of the Sri Lankan government because government forces “still . . . arrest Tamils all over Sri Lanka and detain them” and subject these “civilians” to “assault, torture, rape, [and] killing.” ECF No. 16 at 338, 345. He also asserted a fear of the LTTE and “Tamil groups who still work with the Sri Lankan forces” and “kidnap Tamils all over Sri Lanka and kill many of them.” ECF No. 16 at 345. In closing, counsel asserted that Selvaraj was “subjected to past persecution on account of Tamil and also on account of imputed political opinion,” ECF No. 16 at 96, and some of his country conditions evidence was submitted 10 1 applicant may prevail on a theory of future persecution

2 despite an IJ’s adverse credibility ruling as to past

3 persecution, so long as the factual predicate of the

4 applicant’s claim of future persecution is independent of the

5 testimony that the IJ found not to be credible.”

.

6 Accordingly, the agency should have considered whether

7 Selvaraj had a well-founded fear of future persecution as a

8 Tamil because that claim did not depend on the credibility of

9 his testimony. We remand for the agency to consider the

10 claim in the first instance because the record includes some

11 country conditions evidence, including the 2017 State

12 Department Human Rights Report on Sri Lanka, that the Sri

13 Lankan government targets Tamils and that members of the Tamil

14 community have been subjected to torture by the government.

15 See Diallo v. U.S. Dep't of Just.,

(2d Cir.

16 2008) (explaining that remand is necessary where “we find an

17 error in the BIA’s decision on an issue that was exhausted

18 before it, because we cannot substitute our judgement for

19 that of the agency”).

to demonstrate persecution based on “Tamil Nationality,” see ECF No. 16 at 176. 11 1 B. Failed Asylum Seeker

2 Selvaraj did not testify to a fear of harm based on his

3 status as a failed asylum seeker. His counsel raised this

4 claim for the first and only time in closing arguments,

5 asserting that “as a return asylum seeker [Selvaraj] will be

6 pursued as a supporter of the LTTE and he will be subject to

7 torture,” but conceding that Selvaraj did not testify about

8 this claim. ECF No. 16 at 96–97. The agency did not err in

9 concluding that Selvaraj failed to establish a likelihood of

10 torture on this basis. 3

11 The record contains news articles describing arrests and

12 torture of Tamils who failed to obtain asylum abroad and were

13 returned to Sri Lanka. However, those individuals were not

14 removed from the United States. Moreover, the individuals

15 who were tortured were either involved with the LTTE or

16 accused of associating with the LTTE. Selvaraj claims that

17 he was never involved with the LTTE and, given the adverse

3 Selvaraj argues that the agency should have also considered whether he was eligible for withholding of removal on this basis, but he did not exhaust that claim before the BIA, arguing only that the IJ erred by failing to consider this CAT claim. See Lin Zhong v. U.S. Dep’t of Just.,

(2d Cir. 2007) (“[U]sually . . . issues not raised to the BIA will not be examined by the reviewing court”). 12 1 credibility determination, he did not establish that the Sri

2 Lankan government believes he is associated with the LTTE, so

3 these articles do not establish that he is “more likely than

4 not” to be tortured as a returning asylum seeker. See 8

(b)(1)–(2), 1208.16(c), 1208.17(a).

6 For the foregoing reasons, the petition for review is

7 GRANTED in part and REMANDED for further consideration of the

8 pattern-or-practice claim, and DENIED in remaining part. All

9 pending motions and applications are DENIED and stays

10 VACATED.

11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk

13