10-5260-ag

Kandaswamy v. Holder

BIA

Vomacka, IJ

A092 013 447 

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 9th 4 day of March, two thousand twelve.

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 PETER W. HALL,

10 GERARD E. LYNCH,

11 Circuit Judges. 

12 _______________________________________

13

14 SUNTHER KANDASWAMY,

15 Petitioner, 

16

17 v. 10-5260-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 New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Daniel E. Goldman, Senior

29 Litigation Counsel; Lindsay Corliss,
1 Trial Attorney, Office of

2 Immigration Litigation, United

3 States Department of Justice,

4 Washington, D.C.

5

6 UPON DUE CONSIDERATION of this petition for review of a

7 Board of Immigration Appeals (“BIA”) decision, it is hereby

8 ORDERED, ADJUDGED, AND DECREED that the petition for review

9 is GRANTED.

10 Sunther Kandaswamy, a native and citizen of Sri Lanka,

11 seeks review of a November 30, 2010, decision of the BIA

12 affirming the July 7, 2009, decision of Immigration Judge

13 (“IJ”) Alan Vomacka, which denied his application for

14 asylum, withholding of removal, and relief under the

15 Convention Against Torture (“CAT”). In re Sunther

16 Kandaswamy, No. A092 013 447 (B.I.A. Nov. 30, 2010), aff’g

17 No. A092 013 447 (Immig. Ct. N.Y. City July 7, 2009). We

18 assume the parties’ familiarity with the underlying facts

19 and procedural history in this case.

20 Under the circumstances of this case, we have reviewed 

21 the entire IJ decision. See Ming Xia Chen v. BIA, 435 F.3d

22 141, 144 (2d Cir. 2006). The applicable standards of review

23 are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin

24 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

25 

2
1 I. Asylum

2 Title 8, Section 1158(a)(3) of the United States Code

3 provides that no court shall have jurisdiction to review the

4 agency’s finding that an asylum application was untimely

5 under 8 U.S.C. § 1158(a)(2)(B), or a finding that no change

6 or extraordinary circumstance excuses the untimeliness under

7 8 U.S.C. § 1158(a)(2)(D). We nevertheless retain

8 jurisdiction to review constitutional claims and “questions

9 of law.” 8 U.S.C. § 1252(a)(2)(D). 

10 Kandaswamy argues first that, as a matter of law, the

11 agency failed to make an explicit finding as to an excuse

12 for untimeliness. However, a review of the IJ’s decision

13 shows that he did in fact determine that Kandaswamy had not

14 demonstrated extraordinary or changed circumstances.

15 Kandaswamy argues that, in any event, any such finding

16 was in error. Because the IJ mischaracterized the record,

17 and because both the IJ and the BIA relied on that

18 mischaracterization in determining that Kandaswamy failed to

19 show changed circumstances sufficient to excuse the one year

20 filing deadline, the agency erred as a matter of law. See

21 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

22 Cir. 2006); see also Mendez v. Holder, 566 F.3d 316, 323 (2d

3
1 Cir. 2009). 

2 The IJ noted in his decision that “the Tamil conflict

3 has been going on in Sri Lanka for approximately 25 to 30

4 years” and “[n]othing has changed”; and the BIA agreed with

5 that finding in affirming the IJ’s decision to pretermit

6 Kandaswamy’s asylum application. The statement that nothing

7 has changed in Sri Lanka in the past decades seriously

8 misstates the record. Country condition evidence indicates:

9 that there was a cease-fire between the government and the

10 LTTE in 2002, which began to break down in 2006 and was

11 formally dissolved in January 2008; and that disappearances

12 of ethnic Tamils by the government, and government-sponsored

13 paramilitary groups, has “increased dramatically” since

14 2006. This error affected the agency’s decision regarding

15 changed circumstances sufficient to excuse the one year

16 deadline for filing an asylum application. See Tian-Yong

17 Chen v. I.N.S., 359 F.3d 121, 127 (2d Cir. 2004). Moreover,

18 remand to the agency to correct its error would not be

19 futile, because it is not clear that the agency would adhere

20 to its prior decision to pretermit Kandaswamy’s asylum

21 application if it were to assess the record accurately. See

22 Xiao Ji Chen, 471 F.3d at 338. 

4
1 II. Withholding of Removal

2 A. Individual Likelihood of Persecution

3 Kandaswamy claims that he will be persecuted in Sri

4 Lanka because the government will assume that a Tamil who

5 lived abroad supports the LTTE, or, alternatively, that he

6 will be persecuted as an unsuccessful asylum seeker. 

7 However, as the IJ observed, there is no evidence in the

8 record that the Sri Lanka government is persecuting Tamils

9 returning from abroad, or asylum seekers. See Jian Xing

10 Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005). 

11 Kandaswamy also did not establish that the government would

12 be aware that he sought and did not receive asylum. See

13 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). 

14 Accordingly, the IJ did not err in finding that Kandaswamy

15 failed to establish that he would be persecuted upon return

16 to Sri Lanka. 

17 B. Pattern or Practice

18 An applicant for withholding of removal may establish

19 eligibility for that relief by showing either that he will

20 be persecuted in the future, or that “there is a pattern or

21 practice of persecution of a group of persons similarly

22 situated to the applicant” on account of a protected ground,

23 and he is included in that group. 8 C.F.R. § 1208.16(b)(2);

5
1 see Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007). 

2 Kandaswamy also argues that he established a pattern or

3 practice of persecution of Tamils by the Sri Lankan

4 government and by paramilitary groups. The IJ concluded

5 that the record showed no more than “isolated incidents” of

6 individuals considered to be “part of a terrorist

7 organization” being “arrested, detained, and beaten.” As

8 evidence that there was no pattern or practice of

9 persecution of Tamils in Sri Lanka, the IJ observed that the

10 State Department had not granted temporary protected status

11 to Tamils in the United States. The BIA concurred with the

12 IJ’s findings. 

13 The agency’s conclusion is undermined by problems with

14 its fact-finding process, as it does not indicate what

15 evidence it relied upon in determining that there were only

16 isolated incidents of arrests, detentions and beatings:

17 moreover, it mischaracterizes the record regarding the

18 treatment of Tamils in Sri Lanka. See Cao He Lin v. U.S.

19 Dep't of Justice, 428 F.3d 391, 405 (2d Cir. 2005)(remanding

20 where the agency “mischaracterized the record”); cf. Santoso

21 v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (holding that

22 where the agency’s determination that an individual did not

23 establish a pattern or practice of persecution is supported

6
1 by background materials, the agency has provided a

2 “sufficient basis” for its conclusion). 

3 There is documentary evidence which the agency may

4 credit (or not) that suggests a high level of violence

5 against ethnic Tamil civilians at the hands of the Sri

6 Lankan government, government-supported paramilitary groups,

7 and other actors. A letter from members of the United

8 States Congress to Ambassador Rice states that “ethnic-based

9 violence is widespread in Sri Lanka, and Tamil noncombatants

10 are deliberately victimized by Sri Lankan Government

11 policies.” A 2008 Human Rights Watch report states that

12 “[h]undreds of enforced disappearances committed since 2006

13 have already placed Sri Lanka among the countries with the

14 highest number of new cases in the world. The victims are

15 primarily young ethnic Tamil men who ‘disappear’– often

16 after being picked up by government security forces in the

17 country’s embattled north and east, but also in the capital

18 Colombo.” A 2008 report from the UNHCR states that “Tamils

19 in Colombo . . . are at heightened risk of security checks,

20 arbitrary personal and house to house searches, harassment,

21 restrictions on freedom of movement, and other forms of

22 abuse” and “in relation to individuals who flee targeted

23 violence or human right abuses by the authorities or

7
1 paramilitary groups, there is no internal flight

2 alternative.” 

3 Finally, the designation of temporary protected status

4 is not required for finding a pattern or practice of

5 persecution. Compare 8 U.S.C. § 1254a(b)(1) (defining

6 designation of temporary protected status) with 8 C.F.R.

7 § 1208.16(b)(2)(i) (defining “pattern or practice”) and

8 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)

9 (defining persecution), overruled, in part, on other

10 grounds, by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

11 For the foregoing reasons, the petition for review is

12 GRANTED, and the case is remanded to the agency for further

13 proceedings. As we have completed our review, any stay of

14 removal that the Court previously granted in this petition

15 is VACATED, and any pending motion for a stay of removal in

16 this petition is DISMISSED as moot. Any pending request for

17 oral argument in this petition is DENIED in accordance with

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

19 Circuit Local Rule 34.1(b).

20 FOR THE COURT: 

21 Catherine O’Hagan Wolfe, Clerk

22

23

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