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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 19 th** **day of April, two thousand twelve.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **REENA RAGGI,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **SACHILATHA SIUABALASINGAM, AKA**  13 **SRIESWARY SAKKARAUTHAN,** 14 Petitioner**,** 15 16 **v. 10-3240-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**______________________________________** 22 23 **FOR PETITIONER: Visuvanathan Rudrakumaran, New York,** 24 **N.Y.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Richard M. Evans, Assistant** 28 **Director; Jeffrey J. Bernstein,** 29 **Attorney, Office of Immigration** 302 **Litigation, Civil Division, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is GRANTED. 8 Sachilatha Siuabalasingam, a native and citizen of Sri 9 Lanka, seeks review of a July 15, 2010 decision of the BIA 10 denying her motion to reopen. In re Sachilatha 11 Siuabalasingam, No. A076 154 805 (B.I.A. July 15, 2010). We 12 assume the parties’ familiarity with the underlying facts 13 and procedural history of this case, which we reference only 14 as necessary to explain our decision to grant the petition 15 for review. 16 We review the BIA’s denial of a motion to reopen for 17 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d 18 Cir. 2006). Where the BIA evaluates country conditions 19 evidence, we review that determination for substantial 20 evidence. Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d 21 Cir. 2008). 22

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241Because 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 The BIA denied Siuabalasingam’s motion finding that she 1 did not establish her prima facie eligibility for relief. 1 2 In order to meet this burden she was required to “show a 3 realistic chancethat [she] will be able to establish [her] 4 eligibility [for asylum].” Poradisova v. Gonzales, 420 F.3d 5 70, 78 (2d Cir. 2005) (emphasis added; internal quotation 6 marks omitted). 7 Siuabalasingam claims she carried this burden by 8 showing (1) that subsequent to her prior asylum hearing, the 9 persecution of Tamils resumed and intensified; (2) failed 10 Tamil asylum seekers who are returned to Sri Lanka are 11 routinely persecuted or tortured by the government; and (3) 12 the Sri Lankan government will single her out for 13 persecution because she participated in protests in the 14 United States. 15 Errors of law appear to have informed the BIA’s 16 conclusion that Siuabalasingam did not establish a pattern 17 or practice of persecution against Tamils. Reports of the 18 United States Department of State (“State Department”) and 194 the United Nations High Commissioner for Refugees (“UNHCR”) 1 do not simply demonstrate isolated incidents of violence 2 against Tamils, as indicated by the agency. See In re 3 Sachilatha Siuabalasingam, slip op. at 2. Rather, these 4 reports describe widespread violence against Tamils 5 perpetrated by the Sri Lankan government, government6 supported paramilitary groups, and other actors. For 7 example, the UNHCR report states that “[h]arassment, 8 intimidation, arrest, detention, torture, abduction and 9 killing at the hands of government forces, the LTTE [ i.e. , 10 the Tamil Tigers] and paramilitary or armed groups are 11 frequently reported to be inflicted on Tamils from the North 12 and East. Individuals suspected of having LTTE affiliations 13 are at risk of human rights abuses by the authorities or 14 allegedly government sponsored paramilitary groups.” CAR at 15 110. The State Department report also describes killings, 16 disappearances, and torture perpetrated against Tamils by 17 paramilitaries and securities forces who operate with 18 “systemic impunity.” Id. at 85, 87. See Cao He Lin v. U.S. 19 Dep’t of Justice , 428 F.3d 391, 405 (2d Cir. 2005) 20 (remanding case where agency “mischaracterized the record”). 21

225 Moreover, the BIA failed adequately to explain its 1 conclusion that Siuabalasingam did not establish prima facie 2 eligibility for relief based on a pattern or practice of 3 persecution against Tamil returnees . While the BIA 4 generally need not “expressly parse or refute on the record” 5 every piece of evidence a movant offers, see Wei Guang Wang 6

v. BIA, 437 F.3d 270, 275 (2d Cir. 2006), the BIA here 7 abused its discretion in failing to offer any explanation 8 for its decision not to credit Siuabalasingam’s extensive 9 relevant evidence about the Sri Lankan government’s 10 mistreatment of returnees. See Poradisova , 420 F.3d at 81- 11 82 (holding that the BIA abused its discretion in denying a 12 motion to reopen where it gave only a perfunctory summary of 13 material evidence in the record). 14 Finally, the BIA failed to address Siuabalasingam’s 15 claim that she faced a particular risk of mistreatment as a 16 result of her political activity in the United States. 17 While Siuabalasingam had been found not credible at her 18 initial removal hearing in claiming past persecution in Sri 19 Lanka, that finding was not determinative of her new claim, 20 based on subsequent activity in the United States. See Paul 21 v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2008) (“[A]n 226 [asylum] applicant may prevail on a theory of future 1 persecution despite an IJ’s adverse credibility ruling as to 2 past persecution, so long as the factual predicate of the 3 applicant’s claim of future persecution is independent of 4 the testimony that the IJ found not to be credible.”). 5 Thus, without expressing any view as to how the agency 6 should resolve these questions, we need to know that they 7 have been addressed and the basis for their resolution to 8 conduct even deferential review. See Poradisova , 420 F.3d 9
at 77. 10 For the foregoing reasons, the petition for review is 11 GRANTED, and the case is REMANDED to the BIA for proceedings 12 consistent with this decision. Any pending request for oral 13 argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20