2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-24-2010

Arachchillage v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2476

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"Arachchillage v. Atty Gen USA" (2010). 2010 Decisions. Paper 1646.

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IMG-135 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2476

 

WIMALARATHNE ADHIKARI ARACHCHILLAGE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

 

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A093-459-376)

Immigration Judge: Honorable Dorothy Harbeck

 

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 24, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges.

(Filed: March 24, 2010)

 

OPINION

 

PER CURIAM

Petitioner, Wimalarathne Adhikari Arachchillage, seeks review of the Board of

Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will

deny his petition.
1

JVP stands for Janatha Vimukthi Peramuna (People’s Liberation Front).

2

I.

Arachchillage, a native and citizen of Sri Lanka, legally entered the United States

on a visa on October 24, 2004. Arachchillage remained in the United States beyond the

authorized stay period. He was served with a Notice to Appear and charged as removable

under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the

United States for a time longer than permitted. On March 21, 2007, he filed an

application for asylum and withholding of removal, and also sought protection under the

Convention Against Torture (“CAT”).

Arachchillage sought asylum on account of his political opinion as a member of

the United National Party (“UNP”), a rival political party to the JVP.1

 Arachchillage

alleged that the JVP, formerly a terrorist group that took control of the parliament in April

2004, sought vengeance against the UNP. He testified that members from the JVP threw

rocks and fired shots at the factory building where he worked, and came to his home and

threatened him with death, causing him to flee Sri Lanka. Arachchillage testified that he

left Sri Lanka for two weeks to escape the JVP, and when he returned, the death threats

continued. Arachchillage detailed an incident where he witnessed the abduction of a

political colleague; although he did not know who participated in the abduction, he

suspected it was members of the JVP. In addition, Arachchillage testified that he had
3

never been physically assaulted or arrested by the police or any group in Sri Lanka, but

because of his fear of the ongoing civil strife, he decided to flee Sri Lanka permanently.

Arachchillage claimed that he did not apply for asylum upon arriving in the United

States because he was afraid that he could be harmed and did not know that he could file

for protection. He testified that his family’s house was destroyed by fire in January 2007,

and stated that his father suspected the JVP, but admitted that there were no witnesses and

he did not know who was responsible. He also discussed how his housekeeper in Sri

Lanka quit after being threatened and stated that someone stole garden tools and livestock

from his property. He did not know who was involved with these incidents.

The IJ determined that Arachchillage was statutorily ineligible for asylum because

his application was time-barred and he failed to qualify for any exceptions to the one-year

bar. In analyzing Arachchillage’s claim for withholding of removal, the IJ found that he

had not experienced past persecution and could not show well-founded fear of future

persecution. Thus, he failed to meet the stricter burden of proof for withholding of

removal. The IJ also concluded that Arachchillage did not show that he should receive

CAT protection. The BIA agreed with the IJ’s determination that Arachchillage’s asylum

application was time-barred, that he failed to demonstrate persecution justifying

withholding of removal, and that he was ineligible for CAT protection. The BIA

dismissed the appeal, and Arachchillage, through counsel, filed a timely petition for

review. The government opposes the petition.
4

II.

Under the Immigration and Nationality Act (“INA”), “[n]o court shall have

jurisdiction to review any determination of the Attorney General” that an asylum

application is untimely. 8 U.S.C. § 1158(a)(3). Thus, we lack jurisdiction to review the

agency’s dismissal of Arachchillage’s asylum application as barred by the one-year

limitations period, as well as whether the statutory period was tolled by changed

conditions. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). Although the

REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restored judicial review of

constitutional claims and questions of law presented in petitions for review, Arachchillage

presents no such claim regarding the timeliness of his asylum application. See Jarbough

v. Att’y Gen., 483 F.3d 184, 188 (3d Cir. 2007).

We do, however, have jurisdiction over Arachchillage’s challenge to the denial of

withholding of removal and relief under the CAT. See Tarrawally, 338 F.3d at 185-86. 

We review these factual determinations under the substantial evidence standard, and will

uphold the decisions “unless the evidence not only supports a contrary conclusion, but

compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (internal citations

omitted).

To qualify for withholding of removal, Arachchillage must show that if returned to

Sri Lanka, a clear probability exists that his life or freedom would be threatened because

of his political opinion. See Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). 

Withholding of removal has a higher burden of proof than asylum. Id.; Lukwago v.
2

Arachchillage did not contest on appeal to the BIA whether the IJ erred in

determining that he failed to demonstrate past persecution. Thus, he has failed to exhaust

his administrative remedies regarding this issue, and this Court lacks jurisdiction to

address this issue. See 8 U.S.C. § 1252(d)(1).

5

Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). To meet the more stringent standard for

withholding of removal, an applicant must provide objective evidence that future

persecution is “more likely than not” to occur upon removal. Lukwago, 329 F.3d at 182

(citing 8 C.F.R. § 208.16(b)(2)); see also Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.

2005).

We agree that Arachchillage failed to prove a well-founded fear of future

persecution.2

 Arachchillage’s claims are based on speculation that the JVP was

responsible for the abduction of a political colleague and the burning of his father’s

house. He provides no objective evidence that he will be targeted on account of his

involvement with UNP or his political beliefs if he returns to Sri Lanka. He does not

show that the government would be unwilling or unable to control any alleged

persecution, especially when in light of his testimony regarding the efforts by the Sri

Lankan police to investigate his colleague’s abduction. C.f. Lie v. Ashcroft, 396 F.3d

530, 537-38 (3d Cir. 2005). Arachchillage also testified that he was able to return to Sri

Lanka, unharmed, after a two-week trip abroad, as well as depart Sri Lanka without

incident using his own passport. This evidence undercuts his claim of a clear probability

of persecution. See Toure v. Att’y Gen., 443 F.3d 310, 318 (3d Cir. 2006).
6

Finally, the record is devoid of any evidence that would render Arachchillage

eligible for CAT protection, as he fails to show that it more likely than not that he will

face torture if removed to Sri Lanka. See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.

2003). Accordingly, we will deny Arachchillage’s petition.