10-3240-ag

Siuabalasingam v. Holder

BIA

A076 154 805

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 19th 4 day of April, two thousand twelve.

5

6 PRESENT:

7 RALPH K. WINTER,

8 REENA RAGGI,

9 SUSAN L. CARNEY,

10 Circuit Judges. 

11 _______________________________________

12

13 SACHILATHA SIUABALASINGAM, AKA 

14 SRIESWARY SAKKARAUTHAN,

15 Petitioner, 

16

17 v. 10-3240-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 ______________________________________

23

24 FOR PETITIONER: Visuvanathan Rudrakumaran, New York,

25 N.Y.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Richard M. Evans, Assistant

29 Director; Jeffrey J. Bernstein,

30 Attorney, Office of Immigration
2

1 Litigation, Civil Division, United

2 States Department of Justice,

3 Washington, D.C.

4

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.

9 Sachilatha Siuabalasingam, a native and citizen of Sri

10 Lanka, seeks review of a July 15, 2010 decision of the BIA

11 denying her motion to reopen. In re Sachilatha

12 Siuabalasingam, No. A076 154 805 (B.I.A. July 15, 2010). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history of this case, which we reference only

15 as necessary to explain our decision to grant the petition

16 for review.

17 We review the BIA’s denial of a motion to reopen for

18 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

19 Cir. 2006). Where the BIA evaluates country conditions

20 evidence, we review that determination for substantial

21 evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d

22 Cir. 2008).

23

24
1 Because Siuabalasingam’s motion to reopen was filed

more than 90 days after the BIA’s final order of removal,

she was required to establish changed country conditions. 

See 8 U.S.C. § 1229a(c)(7)(C). As the BIA did not

determine whether she established a material change in

Sri Lanka we do not address the issue.

3

1 The BIA denied Siuabalasingam’s motion finding that she

did not establish her prima facie eligibility for relief.1 2

3 In order to meet this burden she was required to “show a

4 realistic chance that [she] will be able to establish [her]

5 eligibility [for asylum].” Poradisova v. Gonzales, 420 F.3d

6 70, 78 (2d Cir. 2005) (emphasis added; internal quotation

7 marks omitted).

8 Siuabalasingam claims she carried this burden by

9 showing (1) that subsequent to her prior asylum hearing, the

10 persecution of Tamils resumed and intensified; (2) failed

11 Tamil asylum seekers who are returned to Sri Lanka are

12 routinely persecuted or tortured by the government; and (3)

13 the Sri Lankan government will single her out for

14 persecution because she participated in protests in the

15 United States.

16 Errors of law appear to have informed the BIA’s

17 conclusion that Siuabalasingam did not establish a pattern

18 or practice of persecution against Tamils. Reports of the

19 United States Department of State (“State Department”) and
4

1 the United Nations High Commissioner for Refugees (“UNHCR”)

2 do not simply demonstrate isolated incidents of violence

3 against Tamils, as indicated by the agency. See In re

4 Sachilatha Siuabalasingam, slip op. at 2. Rather, these

5 reports describe widespread violence against Tamils

6 perpetrated by the Sri Lankan government, government7 supported paramilitary groups, and other actors. For

8 example, the UNHCR report states that “[h]arassment,

9 intimidation, arrest, detention, torture, abduction and

10 killing at the hands of government forces, the LTTE [i.e.,

11 the Tamil Tigers] and paramilitary or armed groups are

12 frequently reported to be inflicted on Tamils from the North

13 and East. Individuals suspected of having LTTE affiliations

14 are at risk of human rights abuses by the authorities or

15 allegedly government sponsored paramilitary groups.” CAR at

16 110. The State Department report also describes killings,

17 disappearances, and torture perpetrated against Tamils by

18 paramilitaries and securities forces who operate with

19 “systemic impunity.” Id. at 85, 87. See Cao He Lin v. U.S.

20 Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005)

21 (remanding case where agency “mischaracterized the record”). 

22
5

1 Moreover, the BIA failed adequately to explain its

2 conclusion that Siuabalasingam did not establish prima facie

3 eligibility for relief based on a pattern or practice of

4 persecution against Tamil returnees. While the BIA

5 generally need not “expressly parse or refute on the record”

6 every piece of evidence a movant offers, see Wei Guang Wang

7 v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), the BIA here

8 abused its discretion in failing to offer any explanation

9 for its decision not to credit Siuabalasingam’s extensive

10 relevant evidence about the Sri Lankan government’s

11 mistreatment of returnees. See Poradisova, 420 F.3d at 81-

12 82 (holding that the BIA abused its discretion in denying a

13 motion to reopen where it gave only a perfunctory summary of

14 material evidence in the record).

15 Finally, the BIA failed to address Siuabalasingam’s

16 claim that she faced a particular risk of mistreatment as a

17 result of her political activity in the United States. 

18 While Siuabalasingam had been found not credible at her

19 initial removal hearing in claiming past persecution in Sri

20 Lanka, that finding was not determinative of her new claim,

21 based on subsequent activity in the United States. See Paul

22 v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2008) (“[A]n
6

1 [asylum] applicant may prevail on a theory of future

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

3 past persecution, so long as the factual predicate of the

4 applicant’s claim of future persecution is independent of

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

6 Thus, without expressing any view as to how the agency

7 should resolve these questions, we need to know that they

8 have been addressed and the basis for their resolution to

9 conduct even deferential review. See Poradisova, 420 F.3d

10 at 77. 

11 For the foregoing reasons, the petition for review is

12 GRANTED, and the case is REMANDED to the BIA for proceedings

13 consistent with this decision. Any pending request for oral

14 argument in this petition is DENIED in accordance with

15 Federal Rule of Appellate Procedure 34(a)(2), and Second

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19

20