Ponnampalam v. Barr ( 2019 )

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, 45 F.3d 14, 17 (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,
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598 F.3d 10, 13 (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., 448 F.3d 524, 528 (2d Cir. 2006).
The applicable standards of review are well established. See
8 U.S.C. § 1252(b)(4)(B); Hong Fei Gao v. Sessions, 891 F.3d
67, 76 (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
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regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii); see Xiu Xia
Lin v. Mukasey, 534 F.3d 162, 163-64 (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 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi v. Gonzales, 430
F.3d 77, 81 n.1 (2d Cir. 2005) (recognizing that particular
deference is given to the trier of fact’s assessment of
demeanor) ; Qiu v. Ashcroft, 329 F.3d 140, 152 (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, 494 F.3d 296, 305 (2d Cir. 2007). The
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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, 453 F.3d 99, 109
(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 id.
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 8 U.S.C.
§ 1158(b)(1)(B)(iii). He did not compellingly explain his
inconsistent statements. See Majidi, 430 F.3d at 80 (“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
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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 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Given Ponnampalam’s demeanor and inconsistent evidence,
the agency’s adverse credibility determination is supported
by substantial evidence. See 8 U.S.C. § 1158(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, 444 F.3d 148, 156-57 (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 id. 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
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particular social group, or political opinion.” 8 C.F.R.
§ 1208.13(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, 508 F.3d 88, 92 (2d Cir.
2007) (quoting In re A-M-, 23 I. & N. Dec. 737, 741 (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
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practice of persecution of similarly situated individuals in
Sri Lanka. See 8 C.F.R. § 1208.13(b)(2)(iii); see also
Santoso v. Holder, 580 F.3d 110, 112 & n.1 (2d Cir. 2009)
(denying petition where agency considered background
materials and rejected pattern or practice claim); In re A-
M-, 23 I. & N. Dec. at 741.
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, 386 F.3d 922 (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, 444 F.3d at 156-57.
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
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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
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