Jeyabalasingam v. Barr ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 17, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JEYAVATHANAN
JEYABALASINGGAM,
Petitioner,
v. No. 19-9511
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
_________________________________
Jeyavathanan Jeyabalasingam is a native and citizen of Sri Lanka. 1 An
immigration judge (IJ) denied his requests for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The Board of Immigration
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
1
We spell petitioner’s last name “Jeyabalasingam” because that is how he
spelled his name on his asylum application and how it was spelled in the initial
immigration proceedings. We note, however, that the order on review spells his last
name “Jeyabalasinggam.”
Appeals (BIA) upheld the IJ’s decision. Mr. Jeyabalasingam now seeks review of the
BIA’s decision. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the
petition for review.
I. BACKGROUND
Mr. Jeyabalasingam’s ethnicity and language is Tamil. The IJ’s decision
provided the following background information:
Governmental apparatuses in Sri Lanka have been
controlled for decades by the Sinhalese ethnic majority.
Tamil are the largest ethnic and linguistic minority in Sri
Lanka, representing about l1 percent of the population. Tamil
is an official and national language in Sri Lanka.
From 1983 until 2002 Tamil separatists fought the
government. The main military arm of the separatists was the
Liberation Tigers of Tamil Eelam (LTTE), which the U.S.
Department of State designated a foreign terrorist
organization (FTO) in 1997. The civil war formally ended
with a cease fire in 2002, but the cease fire was abrogated by
both parties in 2006. The Sri Lankan government withdrew
from the cease fire in 2008 and defeated the separatists in
2009.
The Sri Lankan government engages in widespread
mistreatment of the Tamil minority (including torture).
Tamils with actual or perceived links to the LTTE are
particularly vulnerable to mistreatment.
Admin. R. at 48.
The IJ summarized Mr. Jeyabalasingam’s testimony about his family background
and his childhood in Sri Lanka:
[Petitioner’s] father was killed in 1994 by navy
shelling as he was plying his trade as a fisherman.
[Petitioner] was born one month after his father was killed.
2
[Petitioner’s] family left Nagarkovil because the Sri Lankan
army was bombing the area. They moved to Vanni.
[Petitioner’s] maternal uncle, who was a member of
the LTTE, lived near [petitioner] and helped his sister—
[petitioner’s mother]—raise her family. The uncle was killed
in May 2000 by a Sri Lankan warplane.
[Petitioner’s] older brother followed his father’s trade
and worked as a fisherman. He disappeared in February 2007
when he was fishing. His fate and whereabouts have never
been determined. [Petitioner] claims that the Sri Lankan navy
had a history of abducting Tamils; [petitioner] suspects, but
has no proof, that the navy abducted his brother.
In 2009, the Sri Lankan army captured Vanni and
many ethnic Sihhalese moved into Vanni. [Petitioner’s]
family was required to move to a refugee camp in Vavuniya.
Life was difficult in the camp. Sinhalese authorities would
subject [petitioner’s] mother to frequent questioning because
her brother ([petitioner’s] uncle) had been a member of
LTTE. The authorities claimed, erroneously, that
[petitioner’s] older brother had also been a member of LTTE
and claimed to disbelieve [petitioner’s] mother’s denials. She
was asked to sign a statement that her older son had been a
member of LTTE.
Id. at 48-49.
Mr. Jeyabalasingam testified at the hearing that he and his family left the
refugee camp in 2010. In 2015, his work included taking fish to the market to sell.
One day, a Sinhalese gang stole his fish. He did not report the theft to the police
because he did not believe they would help a Tamil. He stopped going to the market
to sell fish because his mother was afraid for him.
In 2017, Mr. Jeyabalasingam and his family participated in a protest
demonstration asking the government to return land to the Tamil people that the
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government had taken from them. A few days later, members of the Sri Lankan army
came to his home when they were canvassing the neighborhood after the protest.
They ordered him to go with them for questioning. He agreed at first, but when they
told him to get into their vehicle, he resisted. One of the soldiers put a gun against
Mr. Jeyabalasingam’s head to force him into the vehicle.
Once everyone was inside the vehicle, the soldiers told Mr. Jeyabalasingam
that he should not participate in any other protests if he desired to live. They said
they would release him for money. The soldiers took him back to his house. His
mother gave them money, and his sister gave them a gold ring. Before they left, the
Tamil who accompanied the soldiers to act as an interpreter told Mr. Jeyabalasingam
that the army knew his uncle had been a member of LTTE and that he should leave
Sri Lanka to be safe. Mr. Jeyabalasingam decided to leave Sri Lanka.
Mr. Jeyabalasingam entered the United States without a valid entry document.
During immigration proceedings, he conceded he was removable as charged. He
applied for asylum, withholding of removal, and protection under the CAT. The IJ
denied relief, and the BIA upheld the IJ’s decision. Mr. Jeyabalasingam filed a
timely petition for review of the BIA’s decision.
II. AGENCY DECISIONS
To receive asylum, Mr. Jeyabalasingam needed to show he had suffered past
persecution or that he would suffer future persecution on account of a protected
ground—race, religion, nationality, membership in a particular social group, or
political opinion. See Rodas-Orellana v. Holder, 780 F.3d 982, 986 (10th Cir. 2015).
4
For withholding of removal, he needed to meet a higher burden of proof than for
asylum by “establish[ing] a clear probability of persecution on account of one of the
statutorily protected grounds.” Uanreroro v. Gonzales, 443 F.3d 1197, 1202
(10th Cir. 2006). For CAT relief, Mr. Jeyabalasingam had to prove it was more
likely than not he would be tortured if he returned to Sri Lanka. See id.
The IJ concluded that Mr. Jeyabalasingam had not established past persecution
because “[t]he two instances of direct harm [petitioner] testified to—the robbery at
the hands of the Sinhalese gang and his brief detention by members of the Sinhalese
army—do not rise to the level of persecution.” Admin. R. at 51. The IJ further
determined that Mr. Jeyabalasingam had not shown a well-founded fear of future
persecution because the evidence was insufficient to show he would be persecuted
based on his status as an ethnic Tamil, his political opinion, or his request for asylum.
Mr. Jeyabalasingam also argued he would suffer future persecution based on
his membership in the particular social group (PSG) of ethnic Tamils who have a
family member who was a member of the LTTE. The IJ concluded this proposed
PSG was not cognizable because “[t]here is no evidence in the record that the Sri
Lankan society recognizes the proposed PSG as socially distinct.” Id. at 52.
The IJ then determined that, because Mr. Jeyabalasingam failed to establish his
entitlement to asylum relief, “he necessarily failed to meet the higher evidentiary
burden to establish eligibility for withholding.” Id. at 53. As to his CAT claim, the
IJ found there was no evidence Mr. Jeyabalasingam was tortured in the past and that
5
he “ha[d] failed to present evidence that there is a clear probability that he faces a
future threat of torture.” Id. at 54.
Mr. Jeyabalasingam appealed to the BIA. The BIA affirmed the IJ’s
conclusions that Mr. Jeyabalasingam had not established past persecution or a well-
founded fear of future persecution based on any protected ground. It agreed with the
IJ that Mr. Jeyabalasingam had failed to establish his membership in a cognizable
PSG. The BIA also agreed that the record did not establish a basis for CAT relief.
III. DISCUSSION
Mr. Jeyabalasingam challenges the BIA’s decision upholding the IJ’s denial of
his asylum application. He argues the BIA erred in determining that he failed to
establish (A) past persecution, (B) a well-founded fear of future persecution, or (C) a
socially distinct PSG. Because we hold the BIA committed no legal error and that
substantial evidence supported each of these determinations, we deny the petition. 2
When a single member of the BIA affirms the IJ’s decision in a brief order,
see 8 C.F.R. § 1003.1(e)(5), the BIA’s decision is the final order under review,
see Uanreroro, 443 F.3d at 1204. “[W]hen seeking to understand the grounds
provided by the BIA, we are not precluded from consulting the IJ’s more complete
explanation of those same grounds.” Id. “We review the BIA’s legal determinations
2
Mr. Jeyabalasingam does not challenge the BIA’s decision upholding the
denial of his applications for withholding of removal or for CAT relief. He has
therefore waived review of the denial of those claims for relief. See Krastev v. INS,
292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on appeal are deemed to be
waived.”).
6
de novo, and its findings of fact under a substantial-evidence standard.” Niang v.
Gonzales, 422 F.3d 1187, 1196 (10th Cir. 2005). Under that standard “the BIA’s
findings of fact are conclusive unless the record demonstrates that any reasonable
adjudicator would be compelled to conclude to the contrary.” Id.
A. Past Persecution
Mr. Jeyabalasingam contends the BIA erred because it (1) misconstrued this
court’s case law regarding the level of harm required to establish past persecution,
and (2) “overlooked and misconstrued evidence pertaining to the harm suffered by
Petitioner and failed to consider such harm cumulatively.” Pet’r Br. at 16.
1. Level of Harm
In its discussion of Mr. Jeyabalasingam’s past-persecution claim, the BIA
reviewed the IJ’s finding that the robbery by the Sinhalese gang and
Mr. Jeyabalasingam’s brief detention and extortion by members of the army did not
rise to the necessary level of persecution. The BIA cited two cases in which this
court upheld the agency’s finding of no past persecution—Tulengkey v. Gonzales,
425 F.3d 1277, 1281 (10th Cir. 2005), and Kapcia v. INS, 944 F.2d 702, 704-05, 708
(10th Cir. 1991). See Admin. R. at 3. It noted that Tulengkey involved a robbery
and, in Kapcia, the alien was detained on two separate occasions. See id. Comparing
those cases with Nazaraghaie v. INS, 102 F.3d 460, 463-64 (10th Cir. 1996), the BIA
noted that in Nazaraghaie, this court “suggest[ed] that [the] asylum applicant’s
severe beating and ten month imprisonment on account of his political opinion
constituted persecution.” Admin. R. at 3-4. It then stated, “Here, we have no
7
allegations of imprisonment or severe beatings. Rather, the [petitioner] suffered
harassment and a brief detention on account of his family’s ties and suspected ties to
the LTTE and his ethnicity, and for the purposes of extortion.” Id. at 4.
Mr. Jeyabalasingam argues that “[t]he BIA incorrectly implied that the
Nazaraghaie decision establishes that imprisonment or severe beatings are required
in order to establish past persecution.” Pet’r Br. at 16-17. But the BIA did not make
this implication; nor does Nazaraghaie.
The Immigration and Nationality Act does not define persecution, but we have
explained that “a finding of persecution requires the infliction of suffering or harm
upon those who differ (in race, religion, or political opinion) in a way regarded as
offensive and must entail more than just restrictions or threats to life and liberty.”
Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (internal quotation marks
omitted). We seek guidance from cases that have addressed whether particular
circumstances support a finding of past persecution. See, e.g., Xue v. Lynch,
846 F.3d 1099, 1107 (10th Cir. 2017) (noting that “this court has previously
determined that similar fact situations did not compel a finding of past persecution”
and citing to cases from this court).
The BIA followed that approach here. It did not imply that past persecution
could only be established by imprisonment or severe beatings. It determined that
Mr. Jeyabalasingam’s circumstances were more similar to cases in which this court
had concluded that the evidence did not call for a finding of past persecution. He has
not shown reversible error on this issue.
8
2. Failure to Consider Evidence
Although Mr. Jeyabalasingam concedes he “may not have experienced a single
incident of harm that reaches the level of past persecution, the record shows that he
suffered numerous instances of harm over an extended period of time in Sri Lanka.”
Pet’r Br. at 17. But this argument is based on alleged instances of past persecution
that were not raised in his brief to the BIA.
As part of his cumulative-harm argument on appeal, he asserts that the BIA did
not consider that:
• “Petitioner suffered when his family was forcibly relocated to a refugee camp
in 2009”;
• “he was severely restricted in his ability to work in order to support his family
by the dangerous conditions imposed on the Tamil communities by the Sinhala
military”; and
• “was also restricted from returning to his family’s land, which had been
seized and was never returned although the war between the Sinhala and the
Tamil separatists ostensibly ended in about 2008.”
Id. at 18. He therefore contends that “[t]he record shows that the harm experienced
by Petitioner in Sri Lanka cumulatively rose to the level of past persecution.” Id.
Mr. Jeyabalasingam’s argument fails because he did not include those
allegations in his brief to the BIA. See Admin. R. at 10. Because he did not
administratively exhaust any claim of past persecution beyond the robbery or his
encounter with the soldiers, we lack jurisdiction to consider those unexhausted
claims. See 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal
only if . . . the alien has exhausted all administrative remedies available to the alien
9
as of right[.]”); Molina v. Holder, 763 F.3d 1259, 1262 (10th Cir. 2014) (“In
immigration cases, our jurisdiction extends only to issues that have been exhausted
before the Board[.]”).
Mr. Jeyabalasingam also argues:
The BIA[’s] decision does not acknowledge that during the
“brief detention,” the Sinhala soldiers abused Petitioner
physically and pointed a gun at his head, threatening to kill
him. Petitioner specifically argued in his brief on appeal that
it was error for the [IJ] to fail to address the imminent,
realistic threat of death as part of the cumulative harm
amounting to persecution of the Petitioner.
Pet’r Br. at 18.
Mr. Jeyabalasingam tries to argue cumulative harm from events that happened
during a single incident, as opposed to the cumulative impact of multiple incidents. See
Ritonga v. Holder, 633 F.3d 971, 975 (10th Cir. 2011) (“We do not look at each incident
in isolation, but instead consider them collectively, because the cumulative effects of
multiple incidents may constitute persecution.” (emphasis added)). The encounter with
the soldiers was one incident in which the soldiers used a gun to force him into their
vehicle and detained him briefly until he agreed to pay them for his release. Contrary to
Mr. Jeyabalasingam’s assertion to this court, the soldiers did not physically harm him.
See Admin. R. at 158-59 (“Now, when the army came to your home in March 2017, did
they physically harm you? . . . . [Response:] [T]hey physically did not harm me.”). And
forcing him into a vehicle at gun point, while threatening, is not the same as
“threaten[ing] to kill him” or subjecting him to an “imminent, realistic threat of death.”
The BIA said he was harassed, briefly detained, and was the victim of extortion.
10
Whether considered as one incident or more, the encounter with the soldiers does not
compel the conclusion that Mr. Jeyabalasingam suffered past persecution. 3
B. Future Persecution
Before the BIA, Mr. Jeyabalasingam argued he had a well-founded fear of
future persecution based on (1) his membership in a PSG, (2) a pattern and practice
of persecution against ethnic Tamils, and (3) his political opinion.
A fear of future persecution “is objectively well-founded if (1) the petitioner
may be singled out for persecution [on account of a protected ground] upon returning
to [his] country of origin, or (2) there is a pattern or practice in [that] country of
persecution of a group of persons similarly situated to the applicant” on account of a
protected ground. Ritonga, 633 F.3d at 976 (internal quotation marks and ellipsis
omitted).
1. Particular Social Group
Mr. Jeyabalasingam challenges the BIA’s decision to affirm the IJ’s
conclusion that he did not establish his membership in a cognizable PSG. The BIA
determined that Mr. Jeyabalasingam’s “proposed [PSG] of ‘ethnic Tamils who have a
family member who was a member of the LTTE’ lacks social distinction.” Admin.
R. at 4. Social distinction means that a group “must be perceived as a group by
3
Mr. Jeyabalasingam does not raise any argument on appeal about the incident
in which the Sinhalese criminals robbed him; he has therefore waived any challenge
to that part of the BIA’s determination regarding his claim for past persecution. See
Krastev, 292 F.3d at 1280.
11
society.” Rodas-Orellana, 780 F.3d at 991 (internal quotation marks omitted); see
also Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014) (“[S]ocial distinction
exists where the relevant society perceives, considers, or recognizes the group as a
distinct social group.”), vacated in part on other grounds by Reyes v. Lynch, 842 F.3d
1125, 1129, 1143 (9th Cir. 2016). The BIA concluded that “[petitioner] did not
establish that Sri Lankan society views ethnic Tamils who have a family member
who was a member of the LTTE as a sufficiently separate or distinct group.” Admin.
R. at 4 (internal quotation marks omitted).
Mr. Jeyabalasingam argues the BIA’s analysis was too conclusory. We
disagree. The BIA appropriately considered the issue based on what he presented in
his brief to the BIA. It asserted: “The members of the LTTE family are socially
distinguishable. It is a small society and the society knows each and every one.” Id.
at 15. The brief also stated that when his family was in the refugee camp, someone
told the army his uncle was in the LTTE.
The brief’s assertions lacked evidentiary support. The fact that someone knew
Mr. Jeyabalasingam’s uncle was in the LTTE does not demonstrate that Sri Lankan
society views ethnic Tamils who have an LTTE family member as a socially distinct
group. Although Mr. Jeyabalasingam faults the BIA for not citing to evidence, he did
not cite record evidence to support this argument in his brief to the BIA, see id. at
14-15, or in his brief to this court, see Pet’r Br. at 20-21. The BIA correctly noted
that the applicant must demonstrate the existence of a cognizable PSG, see, e.g.,
Rodas-Orellana, 780 F.3d at 991 (holding that petitioner failed to demonstrate his
12
proposed group was socially distinct). We see no error in the BIA’s conclusion that
Mr. Jeyabalasingam failed to do so here.
2. Pattern or Practice of Persecution
Mr. Jeyabalasingam also challenges the BIA’s determination that he failed to
show a pattern or practice of discrimination against ethnic Tamils to support his
claim that he had a well-founded fear of future persecution.
The BIA said that the IJ “considered the long history of civil war, hostility and
violence and mistreatment against the Tamil population by the majority Sinhalese
and the government of Sri Lanka, including torture.” Admin. R. at 4. But it further
explained, “civil strife that ‘causes substantial hardships for an ethnic minority, . . .
does not automatically entitle all members of that minority to asylum.’” Id. (quoting
Rasiah v. Holder, 589 F.3d 1, 5 (1st. Cir. 2009)). The BIA noted that “[t]he
[petitioner] has not cited to a case where the Board or a court has found a pattern or
practice of persecution against Tamils in Sri Lanka.” Id. And it said that “[t]he
[petitioner] has also not cited to any specific information in the record which
establishes a pattern or practice of persecution and which the [IJ] failed to consider.”
Id. The BIA concluded that “the record does not establish that the treatment of
Tamils, however unacceptable, is so widespread as to constitute a pattern or practice
of persecution.” Id.
Mr. Jeyabalasingam contends that “[t]he BIA’s reliance on Rasiah is
inapposite” because the alien in Rasiah was found to be not credible and “depended
solely on the pattern or practice theory for his claim, rather than using it to bolster his
13
credible testimony, as the Petitioner has done in the present case.” Pet’r Br. at 24.
But the BIA cited Rasiah for the general proposition that “civil strife that ‘causes
substantial hardships for an ethnic minority, . . . does not automatically entitle all
members of that minority to asylum.” Admin. R. at 4 (quoting Rasiah, 589 F.3d at
5). We see no legal error in the BIA’s citation to Rasiah. 4
We agree with the BIA that the record does not compel the conclusion that
Mr. Jeyabalasingam established a well-founded fear of future persecution based on a
pattern or practice of persecution against ethnic Tamils.
3. Political Opinion
Mr. Jeyabalasingam claimed he had a well-founded fear of future persecution
on account of his political opinion. In his brief to the BIA, he argued that he would
be “subject to persecution on account of political opinion, namely participation in the
protest against the government.” Id. at 12. He also argued that he would be subject
to persecution as a “failed Tamil asylum seeker[].” Id. at 14.
4
Mr. Jeyabalasingam attempts to make a new argument, quoting from Rasiah
that “‘[a]n applicant can often reinforce his claim of individualized harm or danger
by showing that persecution of similarly situated persons has occurred.’” Pet’r Br. at
25 (quoting Rasiah, 589 F.3d at 4). Focusing on this language, he argues that
“neither the BIA nor the [IJ] properly considered Petitioner’s ‘pattern or practice’
argument as reinforcing his claim of individualized danger and past harm.” Id. He
asserts that “the BIA erred as a matter of law by considering the past harm that
Petitioner suffered as an entirely separate claim from his pattern or practice claim.”
Id. But Mr. Jeyabalasingam did not raise this argument to the IJ or the BIA. Because
he failed to exhaust his administrative remedies with respect to this argument, we
lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Molina, 763 F.3d at 1262.
14
The BIA determined that “[petitioner] has not presented evidence that his fear
that he will be singled out for persecution on account of his political opinion is
objectively reasonable.” Id. at 4. Mr. Jeyabalasingam argues the IJ and BIA “failed
to address credible testimony by the Petitioner that the S[i]nhala army had
specifically targeted him because of his participation in a protest and that they told
his mother they would kill him if they found him.” Pet’r Br. at 28. But the IJ did
address this claim, concluding that there was “insufficient evidence that Sri Lankan
authorities will persecute [petitioner] . . . because he participated in a single public
protest in 2017.” Admin. R. at 52. We may rely on the IJ’s more complete
explanation when considering the BIA’s decision on this issue. See Uanreroro,
443 F.3d at 1204.
As for his allegation about the army’s threat to kill him, Mr. Jeyabalasingam
did testify his mother told him that army members came to his house in January 2018
after he left the country and that the soldiers said if he was not there when they came
back they would send a “shooting order for him . . . [saying] he should be shot and
killed.” Admin. R. at 139-40. But the IJ noted that Mr. Jeyabalasingam’s mother
had made statements about his detention in 2017 that he himself disputed (that he
was tortured before he was released and that the soldiers tortured his mother too).
See id. at 50 n.2. The IJ therefore stated that “[g]iven [p]etitioner’s mother’s
tendency to exaggerate, the Court is skeptical that [the 2018] visit occurred and finds
not credible the details of the visit she reported.” Id. Mr. Jeyabalasingam did not
challenge the IJ’s decision that his mother was not credible. He has therefore not
15
cited to any credible testimony to support his claim that members of the Sri Lankan
army would kill him if he returned to Sri Lanka. The credible evidence in the record
does not compel the conclusion that Mr. Jeyabalasingam has an objectively
reasonable fear of future persecution on account of his political opinion based on his
participation in a single protest in 2017.
As for his claim that he would be subject to future persecution because he
sought asylum in the United States, the BIA determined that the “record does not
establish that [petitioner] will be persecuted on account of his political opinion based
on his filing an asylum application in the United States. Asylum applications are
confidential and the contents of such applications cannot be disclosed to third parties
without the written consent of the applicant.” Id. at 4. The BIA further determined
that Mr. Jeyabalasingam “ha[d] not presented evidence that his fear that he will be
singled out for persecution on account of his political opinion is objectively
reasonable.” Id. Mr. Jeyabalasingam contends the BIA erred in resolving this claim
because “the fact that Petitioner fled Sri Lanka and tried to live in the United States
before being deported would naturally draw the inference that he sought asylum.”
Pet’r Br. at 28. Although Sri Lankans may infer he had sought asylum based on his
circumstances, he fails to cite to any record evidence to show that failed asylum
seekers are subject to persecution in Sri Lanka. Id. Accordingly, he has not shown
that a reasonable adjudicator would be compelled to conclude that he would be
subject to persecution on account of his political opinion because he filed an asylum
application in the United States.
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Finally, Mr. Jeyabalasingam contends that the BIA “failed to consider the past
harm [he] experienced . . . as evidence that he has an objectively reasonable fear of
future persecution on account of an imputed political opinion.” Id. at 27 (emphasis
added). The alleged imputed political opinion is his uncle’s membership in the
LTTE. A finding of past persecution can give rise to a rebuttable presumption of
future persecution. See Karki v. Holder, 715 F.3d 792, 801 (10th Cir. 2013);
8 C.F.R. § 1208.13(b)(1). But here, the BIA considered all of Mr. Jeyabalasingam’s
past harm, including his “harassment and a brief detention on account of his family’s
ties and suspected ties to the LTTE.” Admin. R. at 4. The BIA affirmed the IJ’s
determination that he failed to establish past harm rising to the level of persecution.
Id.
Because Mr. Jeyabalasingam did not establish past harm on the basis of his
family’s ties or suspected ties to the LTTE, there is no presumption of future
persecution on that basis. See 8 C.F.R. 1208.13(b)(1). Mr. Jeyabalasingam has not
pointed to any record evidence that would compel the conclusion that he has an
objectively reasonable fear of future persecution on account of his family’s ties to the
LTTE or an imputed political opinion based on his family’s ties to the LTTE.
Although he states that “[t]he record and the credible testimony of the Petitioner
establish that he was individually targeted in the past because of an imputed political
opinion,” Pet’r Br. at 29, he provides no record citations to support this conclusory
assertion.
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IV. CONCLUSION
Substantial evidence supports the BIA’s determination that
Mr. Jeyabalasingam failed to establish past persecution or a well-founded fear of
future persecution on any protected ground. We further find no legal error in the
BIA’s analysis. We therefore deny the petition for review.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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