Mohamed Sifran Mubarack v. Eric H. Holder , 595 F. App'x 54 ( 2014 )


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  • 12-1331-ag
    Mohamed Sifran Mubarack v. Eric H. Holder
    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.
    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 24th day of December, two thousand fourteen.
    PRESENT:            JOSÉ A. CABRANES,
    RAYMOND J. LOHIER, JR.,
    CHRISTOPHER F. DRONEY,
    Circuit Judges.
    MOHAMED SIFRAN MUBARACK,
    Petitioner,
    v.
    No. 12-1331-ag
    ERIC H. HOLDER, JR., UNITED STATES ATTORNEY
    GENERAL,
    Respondent.
    FOR PETITIONER:                                      Hsien Chih Kung, Benjamin B. Xue, Xue &
    Associates, P.C., New York, NY.
    FOR APPELLEE:                                        Yedidya Cohen, Anthony C. Payne, Office of
    Immigration Litigation; Stuart F. Delery,
    Acting Assistant Attorney General; United
    States Department of Justice, Washington,
    D.C.
    UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
    ADJUDGED, AND DECREED that the petition for review of a Board of Immigration Appeals
    decision is DENIED.
    Mohamed Sifran Mubarack, a native and citizen of Sri Lanka, seeks review of a March 8,
    2012 decision of the Board of Immigration Appeals (“BIA”) affirming the January 25, 2010 decision
    of an Immigration Judge (“IJ”), which denied his application for asylum, withholding of removal,
    and relief under the Convention Against Torture (“CAT”). In re Mohamed Sifran Mubarack, No. A089
    008 802 (BIA Mar. 8, 2012), aff’g No. A089 008 802 (Immig. Ct. N.Y. City Jan. 25, 2010) (“BIA
    Decision”). We assume the parties’ familiarity with the underlying facts and procedural history in
    this case.
    Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s
    decisions. See Zaman v. Mukasey, 
    514 F.3d 233
    , 237 (2d Cir. 2008). The well-established standard of
    review requires that we evaluate whether the BIA’s decision is supported by “reasonable, substantial
    and probative evidence in the record.” Yanqin Weng v. Holder, 
    562 F.3d 510
    , 513 (2d Cir. 2009); see 8
    U.S.C. § 1252(b)(4)(B). The burden of proving eligibility for asylum and withholding of removal
    rests with the applicant. See 8 U.S.C. § 1158(b)(1)(B); 8 U.S.C. § 1231(b)(3)(C).
    Mubarack first claims that the Sri Lankan government persecuted him on account of the
    political opinion it imputed to him. Because neither the IJ nor the BIA made an adverse credibility
    determination, we assume that Mubarack’s testimony was credible. See 8 U.S.C. § 1158(b)(1)(B)(iii)
    (“[I]f no adverse credibility determination is explicitly made, the applicant . . . shall have a rebuttable
    presumption of credibility on appeal.”); 
    Zaman, 514 F.3d at 237
    n.3.
    Pursuant to the REAL ID Act, in order to establish that he was persecuted “on account of”
    a political opinion, Mubarack must show that the Sri Lankan government’s perception of his
    political opinion, support for the Liberation Tigers of Tamil Eelam (“LTTE”), was “at least one
    central reason” for his persecution. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i); Acharya v. Holder,
    
    761 F.3d 289
    , 296 (2d Cir. 2014). The persecution may be on account of an opinion imputed to
    Mubarack by the Sri Lankan government, regardless of whether or not the imputation is accurate.
    See Delgado v. Mukasey, 
    508 F.3d 702
    , 706 (2d Cir. 2007).
    Mubarack testified that after being abducted by the LTTE, he was arrested by the Sri Lankan
    military who tortured him at a military base. According to Mubarack, he told the military that he
    had not supplied diesel to the LTTE, but gave the LTTE money instead, and that he could not
    identify or locate the camp to which the LTTE had taken him. The military did not believe him, he
    asserts, and began beating and torturing him for about an hour. Mubarack’s testimony continued:
    At the end of the hour, the military asked Mubarack to identify the LTTE members who abducted
    2
    him, and Mubarack responded that he would recognize them if he saw them, but did not know their
    names or current whereabouts. He was then held and tortured by the military for five days. At the
    end of the five days, he gave the military the names of three people in his village who, he believed,
    had a connection to the LTTE, and was then released, with instructions to report to the military
    camp every week. After his release, Mubarack traveled to Colombo and reported to the military
    base there, but, upon being summoned by the military back to his home village, he feared he would
    be killed and so arranged to travel to the United States instead. After Mubarack left Sri Lanka, the
    army came to his parents’ house and threatened them on multiple occasions until his parents went
    into hiding within Sri Lanka.
    The IJ concluded that the Sri Lankan military did not subject Mubarack to past persecution
    on account of a protected ground, but rather, interrogated him because he had information about
    the LTTE. The BIA affirmed the IJ’s decision, concluding that the government persecuted him as a
    result of its desire to obtain intelligence information, in light of the fact that the abuse was inflicted
    upon Mubarack in conjunction with questioning and did not continue after intelligence had been
    gathered.
    In Matter of S-P-, a case involving the torture of a Sri Lankan individual by the government
    after he was detained as a suspected LTTE member, the BIA discussed the difficulty of ascertaining
    motive and whether “harm was inflicted because of imputed political views rather than a desire to
    obtain intelligence information.” 21 I. & N. Dec. 486, 493 (BIA 1996). In Matter of S-P-, the BIA
    “approved a ‘totality of the circumstances’ analysis for discerning persecutory motives.” Vumi v.
    Gonzales, 
    502 F.3d 150
    , 157 (2d Cir. 2007) (quoting S-P-, 21 I. & N. Dec. at 494). Persecution based
    on political opinion is established when there is “direct or circumstantial evidence” that one central
    reason for the abuse was “an assumption that [the applicant’s] political views were antithetical to
    those of the government.” S-P-, 21 I. & N. Dec. at 494; see 8 U.S.C. § 1158(b)(1)(B)(i).
    In the case at bar, the BIA rested its conclusion that there was no nexus to a protected
    ground on the fact that “[t]he abuse that was inflicted upon [Mubarack] was done in conjunction
    with questioning as to the whereabouts of LTTE members,” Mubarack “was released after giving
    the names of LTTE members in his village,” and “unlike the alien in Matter of S-P-, the harm
    inflicted did not continue after the intelligence had been gathered.” BIA Decision at 2. We
    conclude that these findings are not clearly erroneous. Moreover, these facts distinguish this case
    from S-P-, and suggest instead that the questioning here was aimed at intelligence gathering rather
    than political persecution. Because substantial evidence supported the BIA’s conclusion that
    Mubarack “does not establish that an imputed political opinion was one central reason that he
    suffered abuse at the hands of the Sri Lankan military,” 
    id., and because,
    in any event, the evidence
    3
    does not compel a contrary conclusion, this claim fails.1 8 U.S.C. § 1252(b)(4)(B); Suzhen Meng v.
    Holder, 
    770 F.3d 1071
    , 1073 (2d Cir. 2014).
    Mubarack’s remaining claims regarding a fear of future persecution on account of a
    protected ground are similarly unavailing. The IJ and BIA found that the conflict between the Sri
    Lankan government and the LTTE effectively ended in 2009. According to the BIA’s well-reasoned
    decision, Mubarack failed to produce sufficient evidence that the Sri Lankan government currently
    engages in a pattern and practice of persecution against suspected LTTE supporters and also failed
    to adequately show that it is more likely than not that he would be tortured upon return to Sri
    Lanka.
    For the foregoing reasons, the petition for review is DENIED. As we have completed our
    review, any stay of removal that the Court previously granted in this petition is VACATED, and any
    pending motion for a stay of removal in this petition is DISMISSED as moot.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    1 In light of this determination, Mubarack is not entitled to shift the burden to the government
    regarding his future persecution claims. See 8 C.F.R. § 1208.16(b)(1)(i).
    4
    

Document Info

Docket Number: 12-1331-ag

Citation Numbers: 595 F. App'x 54

Filed Date: 12/24/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023