[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-12893

________________________

Agency No. A200-615-726

SALIPAN GAKSAKUMAN,

 Petitioner,

versus

U.S. ATTORNEY GENERAL,

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_______________________

(September 18, 2014)

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

WILLIAM PRYOR, Circuit Judge: 

In this petition for review, we consider whether silence in a report of the 

Department of State about torture of asylum seekers on return to an alien’s home 

country may rebut affirmative evidence of that torture presented by the alien. 

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Salipan Gaksakuman, an alien seeking asylum, withholding of removal, and relief 

under the Convention Against Torture, asks us to review not only his most recent 

order of removal, but also an earlier order. Because we conclude that the earlier 

order entered by the Board was final, that Gaksakuman declined to pursue a timely

petition for its review, and that Gaksakuman, in his second appeal to the Board, 

failed to exhaust his earlier arguments, we hold that we lack jurisdiction to review 

the earlier order. We instead review only the most recent order, in which the Board

denied Gaksakuman relief because it found he failed to establish that he would 

suffer persecution as a “failed asylum seeker” if returned to Sri Lanka. 

Gaksakuman presented evidence that Sri Lanka detains and tortures failed asylum 

seekers. But the Board ruled that this evidence was insufficient because the 

Country Reports on Human Rights issued by the Department of State were silent 

about the torture of failed asylum seekers in Sri Lanka. Because we conclude that 

the silence of a State Department report cannot, without more, rebut the affirmative 

evidence Gaksakuman presented, we vacate the Board’s order and remand for 

further proceedings. 

I. BACKGROUND

Salipan Gaksakuman is a native of Sri Lanka. Gaksakuman asserts that he is 

a Hindu priest of Tamil ethnicity. He alleges that beginning in 2009 he suffered 

various threats, beatings, extortion, and persecution at the hands of the Eelam 

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People’s Democratic Party and the Sri Lankan army. Gaksakuman’s father 

eventually sent his son out of the country to escape the violence by allegedly 

bribing officials to secure his son’s exit.

In December 2010, Gaksakuman arrived in Miami, Florida, where the 

Department of Homeland Security ordered him removed because he was present in 

the United States without having been admitted or paroled. 8 U.S.C. 

§1182(a)(6)(A)(i). Gaksakuman conceded his removability, but filed an application 

for asylum, 8 U.S.C. § 1158, for withholding of removal, 8 C.F.R. § 208.16(b), and 

for relief under the United Nations Convention Against Torture and Other Cruel, 

Inhuman or Degrading Treatment or Punishment, 8 C.F.R. § 208.16(c). 

At the hearing before an immigration judge, Gaksakuman argued that as a

Tamil, the Eelam People’s Democratic Party and the Sri Lankan army, which 

targeted Tamil families, threatened him with persecution. The immigration judge 

refused to credit Gaksakuman’s testimony about his fear of future persecution and

ruled that he had failed to establish that he would suffer persecution based on his 

Tamil ethnicity. 

Gaksakuman appealed to the Board of Immigration Appeals. The Board 

deferred to the findings of the immigration judge and dismissed the appeal in May 

2012. Gaksakuman then filed a timely petition in our Court to review the order of 

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the Board. But Gaksakuman later filed a motion to dismiss that petition before our 

Court, which we granted.

Before he moved to dismiss his petition in our Court, Gaksakuman also filed 

an untimely petition to reopen his case with the Board. In his motion to reopen,

Gaksakuman did not renew his earlier arguments, but instead argued that the 

immigration judge and the Board failed to address his argument that he would be 

persecuted upon his return to Sri Lanka based on his status as a “failed asylum 

seeker.” Gaksakuman submitted new evidence to support this claim. The Board 

described Gaksakuman’s motion as “in the nature of a motion seeking 

reconsideration” and sua sponte granted the motion. The Board remanded the 

record to the immigration judge to consider Gaksakuman’s new argument and the 

evidence that he submitted to support it.

On remand, the immigration judge considered Gaksakuman’s evidence

tending to prove that torture was a possibility for returning, failed asylum seekers. 

A report by the United Kingdom Border Agency collected sources indicating that 

torture and arbitrary detainment are rampant in Sri Lanka. The report indicated that 

there was a “persistent pattern of torture,” including against those individuals 

perceived to associate with a group called the Liberation Tigers of Tamil Ealam. 

“Those at particular risk of torture include Tamils who have an actual or perceived 

association with the Liberation Tigers.” Fourteen cases of torture were reported by 

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those who had traveled abroad prior to their detainment, including five who had 

traveled for education, three who had traveled for family reasons, and four who 

had sought refuge outside of Sri Lanka. A news article reported that a court in 

Britain had ordered a deportation of Tamils halted due to concerns they would be 

tortured on their return. 

A Human Rights Watch news release reported that some failed Tamil 

asylum seekers were subjected to arbitrary arrest and torture upon their return, 

particularly if they were associated with the Liberation Tigers. An Amnesty 

International report stated that the Sri Lankan government had a “history of 

arresting and detaining rejected Sri Lankan asylum seekers upon their return and 

[the organization was] aware of cases of people being tortured.” A report by 

Freedom from Torture stated that “Sri Lankan Tamils who in the past had an actual 

or perceived association at any level with the [Liberation Tigers] but were able to 

leave Sri Lanka safely now face risk of torture on return.”

Gaksakuman also presented a news report tending to prove that, regardless 

of any actual affiliation with the Liberation Tigers, Sri Lankan officials detained 

and tortured failed asylum seekers as presumed traitors. An official of the Catholic 

Church’s Edmund Rice Centre was quoted as saying, “The difficulty here is that 

there is a view in Sri Lanka that anybody who left the country through an 

unauthorised manner, of unauthorised means . . . must therefore be [a] traitor[].” 

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The official stated that, in the eyes of the Sri Lankan government, all who fled are 

“branded” as sympathizers of the Liberation Tigers, and “consequently sending 

them back is sending them back into danger.” The Centre found that of the 11 

people removed to Sri Lanka from Australia, all of them had been arrested at the 

airport. Some were “bashed [and] assaulted,” and some had permanent damage to 

hearing or eyesight. If they are “Sinhalese people who left,” the “assumption” was 

that they were Liberation Tiger sympathizers and traitors.

Gaksakuman’s evidence failed to persuade the immigration judge. The 

immigration judge stated that, although Gaksakuman had “submitted documents . . 

. that suggest[ed] that failed Asylum seekers are being tortured in Sri Lanka, . . . 

the [Department of State] Human Rights Reports [did] not mention[] failed 

Asylum seekers being tortured.” The immigration judge ruled that the silence of 

the State Department reports rebutted Gaksakuman’s evidence, and the 

immigration judge denied Gaksakuman’s application. Gaksakuman appealed to the 

Board for review, but the Board adopted the order of the immigration judge and 

dismissed the appeal.

Gaksakuman then timely filed another petition for review in our Court. 

Gaksakuman also filed an emergency motion for a stay of removal, which we 

granted. Gaksakuman’s petition asks us to review not only the 2013 order denying 

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relief, but also the arguments the Board rejected in its 2012 order affirming the 

immigration judge’s first order of removal. 

II. STANDARD OF REVIEW

We review questions concerning our jurisdiction de novo. Ortega v. U.S. 

Att’y Gen., 416 F.3d 1348, 1350 (11th Cir. 2005). We are limited to reviewing 

“final order[s] of removal,” that have been timely filed. Balogun v. U.S. Att’y Gen.,

304 F.3d 1303, 1307 (11th Cir. 2002); 8 U.S.C. § 1252(b)(1). We must affirm the 

order of the agency if it has “given reasoned consideration” to the application, “and 

made adequate findings.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 

2006) (internal quotation marks omitted). When the Board fails to give “reasoned 

consideration” or to make “adequate findings,” we remand for further proceedings 

because we are “unable to review” the evidence in the first instance. Mezvrishvili v. 

U.S. Att’y Gen., 467 F.3d 1292, 1295 (11th Cir. 2006) (quoting Tan, 446 F.3d at

1377). We review the order of the Board only, but if it expressly adopts the 

reasoning of the immigration judge, we will review that order as well. Id. 

III.DISCUSSION

Our discussion proceeds in two parts. First, we explain that we lack

jurisdiction to review the 2012 order of the Board. Second, we explain that in its 

2013 order the Board failed to give reasoned consideration to Gaksakuman’s 

application. 

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A. We Lack Jurisdiction to Review the 2012 Order of the Board.

Neither party raised the issue of jurisdiction in its briefing, but it is “well 

settled that a federal court is obligated to inquire into [its] subject matter 

jurisdiction sua sponte.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 

(11th Cir. 1999). In this petition, Gaksakuman asks us to review both the 2012 and 

2013 orders of removal. There is no question as to our jurisdiction over the 2013 

order, but to seek judicial review of the 2012 order, Gaksakuman must have filed a 

petition with our Court within 30 days of the issuance of that order. 8 U.S.C. § 

1252(b)(1). Gaksakuman did so here, but then moved to dismiss his petition to our 

Court, which we granted. The 30-day window has now long since passed. 

Gaksakuman’s counsel contended at oral argument that “when the case was 

reopened [by the Board] there was no final order,” and we may review all of his 

arguments, but we disagree.

As an initial matter, there is some question as to what the Board actually 

granted after Gaksakuman moved to reopen the proceedings. The Board repeatedly 

called its order a grant of a motion for reconsideration. But the Board remanded the 

record to the immigration judge to consider Gaksakuman’s new argument and 

evidence that he would suffer persecution as a failed asylum seeker. This remand

tracks the ordinary procedure for a reopening. 8 C.F.R. § 1003.2(i). Nevertheless,

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whether the Board ordered a reopening or a reconsideration, we lack jurisdiction

over the 2012 order. 

If the 2013 order was the result of a reconsideration, our precedent holds that 

the 2012 order remains a final order and we lack jurisdiction to review it. In 

Jaggernauth v. United States Attorney General, we decided that an order resulting 

from a motion to reconsider does not, lacking more, vacate or render the original 

order non-final. 432 F.3d 1346 (11th Cir. 2005). In Jaggernauth, the petitioner 

filed a timely petition in our Court for review of a final order of removal by the 

Board. Id. at 1348–49. The petitioner continued to prosecute that petition, but also 

moved the Board to reconsider its order of removal. Id. The Board granted the 

motion and again ordered the petitioner’s removal. Id. at 1349–50. Then in our 

Court, the Attorney General moved to dismiss the petition to review the first order 

on the ground it was no longer final because the Board had implicitly vacated it 

when the Board granted reconsideration. Id. at 1348. We disagreed. “We do not 

believe the [Board] intended its second order to . . . change the substance of the 

original order. The [order on reconsideration] explicitly upholds the [original 

order], . . . suggesting the [Board’s] intent was to leave the [original] order, as well 

as the reasoning underlying the order, intact and unmodified.” Id. at 1351. 

Accordingly we held that we retained jurisdiction over the first order because it 

remained final. Id. at 1352. Likewise, the 2013 order of removal in Gaksakuman’s 

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petition did not modify or alter the 2012 order in any way. The Board initiated the 

additional proceeding solely to determine the merits of Gaksakuman’s new

argument, based on his status as a failed asylum seeker. The Board left the 2012 

order “intact and unmodified.” Id. at 1351. So if the Board granted a motion to 

reconsider, Jaggernauth forecloses our review of the earlier order. 

If the Board instead reopened the proceeding, we still lack jurisdiction 

because Gaksakuman did not renew his original arguments in his motion to reopen. 

The Board granted Gaksakuman’s motion only to allow consideration of his new 

argument that he would be subject to persecution as a “failed asylum seeker” on 

return to Sri Lanka. And the immigration judge considered only that new 

argument. On appeal from the order denying Gaksakuman’s application, the Board 

ruled on only his new argument. To be sure, during that appeal to the Board, after

the immigration judge had rejected Gaksakuman’s new argument, Gaksakuman

attempted to challenge parts of the 2012 order in his briefing. But that attempt 

came too late. Gaksakuman failed to exhaust the arguments he now seeks to raise 

and we lack jurisdiction to consider them. 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.”); see also Amaya-Artunduaga v. U.S. Atty. 

Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (explaining that appeals court lacks 

jurisdiction to consider an argument not raised before the Board). 

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B. The Board Failed to Give Reasoned Consideration to Gaksakuman’s Argument 

That He Would Suffer Persecution as a Failed Asylum Seeker.

Gaksakuman argues that the Board erred when it denied his application for 

asylum, withholding of removal, and relief under the Convention based on his 

membership in the social group of “failed asylum seekers.” The Immigration 

Clinic of the University of Miami School of Law, as amicus curiae, argues too that 

the Board failed to give Gaksakuman’s application reasoned consideration. The 

Board adopted the reasoning of the immigration judge’s order on reconsideration, 

so we review both orders. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 

2001). 

We agree with Gaksakuman and the persuasive brief of the amicus curiae

that the Board failed to give “reasoned consideration” to Gaksakuman’s

application. Mezvrishvili, 467 F.3d at 1295 (quoting Tan, 446 F.3d at 1375). The 

Board adopted the reasoning that the absence of evidence in reports of the State 

Department somehow rebutted Gaksakuman’s evidence of torture. That logic is 

flawed. 

Gaksakuman submitted evidence in support of his allegation that, as a 

“failed asylum seeker,” he would be subject to torture upon his return to Sri Lanka. 

The immigration judge found most of the evidence credible, including reports from 

non-profit organizations and newspapers. The evidence tended to prove that 

officials in Sri Lanka tortured at least some failed asylum seekers, particularly if 

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they had an actual or perceived association with the Liberation Tigers. A report by 

the United Kingdom Border Agency established that failed asylum seekers 

returning to Sri Lanka are subject to torture where officials believe the returnee has 

ties to the Liberation Tigers. A Human Rights Watch news release reported that 

some failed Tamil asylum seekers were subjected to arbitrary arrest and torture 

upon their return, particularly if they were associated with the Liberation Tigers. 

An Amnesty International report stated that the Sri Lankan government had a 

“history of arresting and detaining rejected Sri Lankan asylum seekers upon their 

return and [the organization was] aware of cases of people being tortured.” 

Gaksakuman also presented evidence tending to prove that there was a risk 

of detainment and torture regardless of whether the failed asylum seeker was 

actually a Tamil with ties to the Liberation Tigers. An official of the Catholic 

Church’s Edmund Rice Centre was quoted in one document as saying, “The 

difficulty here is that there is a view in Sri Lanka that anybody who left the country 

through an unauthorised manner, of unauthorised means . . . must therefore be [a] 

traitor[].” The official stated that, in the eyes of the Sri Lankan government, all 

who fled are branded as sympathizers of the Liberation Tigers, and “consequently 

sending them back is sending them back into danger.” If the returnee was 

Sinhalese, the assumption was that they were a “traitor.” 

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The immigration judge denied Gaksakuman’s application based on the 

silence of State Department reports without discrediting the evidence that 

Gaksakuman presented or giving more weight to contrary evidence. The

immigration judge explained that he was entitled to “rely heavily” on State 

Department reports and concluded that, “[a]lthough [Gaksakuman] has submitted 

documents and supporting materials that suggest that failed Asylum seekers are 

being tortured in Sri Lanka,” the silence of the State Department reports “negates 

his claim.” We have recognized that an immigration judge is “entitled to rely 

heavily on” State Department reports, Reyes–Sanchez v. U.S. Att'y Gen., 369 F.3d 

1239, 1243 (11th Cir. 2004), but those reports are reliable only to the extent they 

“comment upon or are relevant to the highly specific question[s]” raised by an 

alien, Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009) (internal 

quotation marks omitted). 

State Department reports cannot rebut an applicant’s evidence when those 

reports do not “comment upon” the individual’s application. State Department 

reports do not purport to be exhaustive, and the 2011 report states in its 

introduction that it “do[es] not attempt to catalog every incidence, however 

egregious, of a particular type of human rights abuse in a country.” And if 

anything, the reports in this record corroborate Gaksakuman’s arguments. The 

reports state that the Sri Lankan government and its agents commit “arbitrary and 

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unlawful killings, . . . torture[] and abuse[ of] detainees, . . . and arbitrar[y] 

arrest[s].” The government of Sri Lanka “continue[s] to search for and detain 

persons it suspected of being [Liberation Tigers] sympathizers.” The government 

“infringed on . . . rights[] particularly when conducting . . . operations in Tamil 

neighborhoods,” and a “disproportionate number of victims of human rights 

violations were Tamils.” 

The Board added little to the reasoning of the immigration judge, except that

it found Gaksakuman had not established he was a member of the group “failed 

asylum seekers” because he failed to establish he was a “Tamil[] who had an actual 

or perceived association with the Liberation Tigers.” But Gaksakuman’s status as a 

Tamil was never questioned by the immigration judge. And even if Gaksakuman 

failed to prove actual association with the Liberation Tigers, his evidence tended to 

prove that any Sinhalese who sought asylum would be perceived as affiliated with

the Liberation Tigers regardless of actual association. For instance, the official of 

the Edmund Rice Center stated, “[W]hile [Australia’s Federal Government] is wise 

to urge caution in returning asylum seekers connected to the [Liberation Tigers], in 

the eyes of the Sri Lankan government all those who fled are branded the same 

way. . . . [I]f they are Sinhalese people who left, then they must therefore be 

traitors.”

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We vacate the 2013 order. The Board failed to give “reasoned 

consideration” to Gaksakuman’s application. We remand for further proceedings 

because we are “unable to review” the evidence in the first instance to determine 

whether Gaksakuman is likely to suffer torture if he returns to Sri Lanka as a failed 

asylum seeker. Mezvrishvili, 467 F.3d at 1295 (quoting Tan, 446 F.3d at 1375).

IV. CONCLUSION

We GRANT the petition for review, VACATE the order of the Board, and 

REMAND for further proceedings.

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