[ PUBLISH ] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 1 3

- 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

.

Case: 13-12893 Date Filed: 09/18/2014 Page: 1 of 152 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 wa s 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 hi s earlier arguments, we hold that we lack jurisdiction to review the earlier order

. W e 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 “fai led asylum seeker” if returned to Sri Lanka. Gaksakuman presented evidence that Sri Lanka detain s and torture s failed asylum seekers

. B ut the Board ruled that this evidence was insufficient because the Country Reports on Human Rights issued by the Departme nt 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 b eginning in 2009 he suffered various threats, beatings, extortion, and persecuti on at the hands of the Eelam

Case: 13-12893 Date Filed: 09/18/2014 Page: 2 of 153 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 arri ved in Miami, Florida , where t he 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 f iled 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 Nation s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 8 C.F.R. § 208.16(c). At the hear ing before an immigration judge, Gaksakuman ar gued 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 te stimony 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

. T he Board deferr ed 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

Case: 13-12893 Date Filed: 09/18/2014 Page: 3 of 154 the Board. But Gaksakuman later filed a motion to dismiss that petition befo re our Court, which we granted. Before he m oved to dismiss his petition in our Court , Gaksakuman also filed

a n 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 fail ed to address his argument that he would be persecuted upon his return to Sri Lan ka based on his status as a “failed asylum seeker.” Gaksakuman submitted new evidence to support this claim. T he Board des cribed 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 con sider Gaksakuman’s new argument and the evidence t hat he submitted to support it. On remand, the immigration judge consider ed Gaksakuman’s evidence tending to prove that torture was a possibility for returning , failed asylum seekers

. A report by t h e United Kingdom Border Agency collected sources ind icating 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

Case: 13-12893 Date Filed: 09/18/2014 Page: 4 of 155 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 Wa tch 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 w ho 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 f ace risk of torture on return.” Gaksakuman also presented a news report tending to prove that, regardless of any a ctual 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, “T he 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[].”

Case: 13-12893 Date Filed: 09/18/2014 Page: 5 of 156 The official stated that , in the eyes of the Sri Lankan government, all who fled are

“ branded ” as sympathizers of t he 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 s ome had permanent damage to hearing or eyesight. If they are “Sinhalese people who left,” the “assumption” was that they were Liberation T iger sympathizers and traitors. Gaksakuman’s evidence failed to persuade the immigration judge

. The immigration judge stated that , a lthough 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 torture d.” T he immigration judge ruled that the s ilence of the State Department r eports 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 a nother peti tion 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

Case: 13-12893 Date Filed: 09/18/2014 Page: 6 of 157 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 134 8, 1350 (11th Cir. 2005). We are limited to revie wing “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.3 d 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.3 d 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. Case: 13-12893 Date Filed: 09/18/2014 Page: 7 of 158 A. We Lack Jurisdiction to Review the 2012 Order of the Board. Neither party raised the issue of jurisdiction in its briefing, b ut i t 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 201 2 and
2013 orders of removal . There is no question as to our jurisdiction over the 2013 order , but t o seek judicial review of the 2012 order , Gaksakuman must have file d 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. Th e 30

- day window has now long since passed. Gaksakuman’s counsel contended at oral argu ment that “when the case was

re opened [by the Board] there was no final order, ” and we may review all of his arguments , but we disagree. As an initial matter, t here is some question as to what the Board actually granted after Gaksakuman moved to reopen the proceedings

. T he 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

trac ks the ordinary procedure for a reopening. 8 C.F.R. § 1003.2(i)

. Nevertheless,

Case: 13-12893 Date Filed: 09/18/2014 Page: 8 of 159 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 hold s 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 i n our Court, the Attorney Gener al 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 secon d 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, int act 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

Case: 13-12893 Date Filed: 09/18/2014 Page: 9 of 1510 petition did not modify or alter the 2012 order in any way. The Board initiated the additional proceeding solely to d etermine the merits of Gaksakuma n’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 G aksakuman 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 t he immigration judge considered only that new argument

. On appeal from th e 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 chall enge parts of the 2012 order in his brief ing

. 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 e xhausted all ad ministrative 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).

Case: 13-12893 Date Filed: 09/18/2014 Page: 10 of 1511 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 Conve ntion based on his membership in the social group of “ failed asylum seeker s . ” The Immigration Clinic of the University of Miami School of L aw, as amicus curiae , argues too that the Board failed to give Gaksakuman’s application reasoned consideration. The
B oard 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.3 d at 1375). The Board adopted the reasoning that the absence of evidence in reports of the State Depar tment somehow reb utted Gaksakuma n’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 th e 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

Case: 13-12893 Date Filed: 09/18/2014 Page: 11 of 1512 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 t o 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
“h istory 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 tortur e regardless of whether the failed asylum seeker was actually a Tamil with t ies to the Liberation Tigers. An official of the Catholic Church’s Edmund Rice Centre was quoted in one document as saying, “T he difficulty here is that there is a view in Sri Lank a that anybody who left the country through an unauthori sed manner, of unauthoris ed 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.”

Case: 13-12893 Date Filed: 09/18/2014 Page: 12 of 1513 T he immigration judge denied Gaksakuman’s application based on the silence of S tate Department r eports without discredit ing the evidence that Gaksakuma n presented or giv ing more weight to contrary evidence

. The immigration judge explained that he was entitled to “rel y heavily” on State Department r eports 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 r eports “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 ma rks omitted). State Department r eports cannot rebut an applicant’s evidence when those reports do not “comment upon” the individual’s application. State Department

r eports do not purport to be exhaustive , and the 2011 r eport 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 i f anything, the rep orts in this record corroborate Gaksakuman’s arguments . The reports state that the Sri Lankan go vernment and its agents commit “arbitrary and

Case: 13-12893 Date Filed: 09/18/2014 Page: 13 of 1514 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 neighborhoo ds, ” and a “disproportionate numb er of victims of human rights violations were Tamils.” The Board added little to the reasoning of the immigration judge , except that it found G aksakuma n 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 Liberat ion Tigers, h is 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, t he 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 fle d are branded the same
way. . . . [I]f they are Sinhalese people who left, then th ey mus t therefore be traitors.” Case: 13-12893 Date Filed: 09/18/2014 Page: 14 of 1515 We vacate the 2013 order. The Board failed to give “reasoned consideration” to Gaksakuman’s application. W e remand for further proceedings because we are “unable to review” the evidence in the first instance to determine whether G aksakuman is likely to suffer torture if he returns to Sri Lanka as a failed asylum seeker. Mezvrishvil i , 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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