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. 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 9 th** **day of March, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge, 8 **PETER W. HALL,** 9 **GERARD E. LYNCH,** 10 Circuit Judges**.** 11

**_______________________________________** 12 13 **SUNTHER KANDASWAMY,** 14 Petitioner**,** 15 16 **v. 10-5260-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 **New York.** 25 26 **FOR RESPONDENT: Tony West, Assistant Attorney** 27 **General; Daniel E. Goldman, Senior** 28 **Litigation Counsel; Lindsay Corliss,** 29**Trial Attorney, Office of** 1 **Immigration Litigation, United** 2 **States Department of Justice,** 3 **Washington, D.C.** 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED that the petition for review 8 is GRANTED. 9 Sunther Kandaswamy, a native and citizen of Sri Lanka, 10 seeks review of a November 30, 2010, decision of the BIA 11 affirming the July 7, 2009, decision of Immigration Judge 12 (“IJ”) Alan Vomacka, which denied his application for 13 asylum, withholding of removal, and relief under the 14 Convention Against Torture (“CAT”). In re Sunther 15 Kandaswamy,No. A092 013 447 (B.I.A. Nov. 30, 2010),aff’g 16 No. A092 013 447 (Immig. Ct. N.Y. City July 7, 2009). We 17 assume the parties’ familiarity with the underlying facts 18 and procedural history in this case. 19 Under the circumstances of this case, we have reviewed 20 the entire IJ decision. See Ming Xia Chen v. BIA, 435 F.3d 21 141, 144 (2d Cir. 2006). The applicable standards of review 22 are well-established. See8 U.S.C. § 1252(b)(4)(B); Yanqin 23 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 24

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2**I. Asylum** 1 Title 8, Section 1158(a)(3) of the United States Code 2 provides that no court shall have jurisdiction to review the 3 agency’s finding that an asylum application was untimely 4 under 8 U.S.C. § 1158(a)(2)(B), or a finding that no change 5 or extraordinary circumstance excuses the untimeliness under 6 8 U.S.C. § 1158(a)(2)(D). We nevertheless retain 7 jurisdiction to review constitutional claims and “questions 8 of law.” 8 U.S.C. § 1252(a)(2)(D). 9 Kandaswamy argues first that, as a matter of law, the 10 agency failed to make an explicit finding as to an excuse 11 for untimeliness. However, a review of the IJ’s decision 12 shows that he did in fact determine that Kandaswamy had not 13 demonstrated extraordinary or changed circumstances. 14 Kandaswamy argues that, in any event, any such finding 15 was in error. Because the IJ mischaracterized the record, 16 and because both the IJ and the BIA relied on that 17 mischaracterization in determining that Kandaswamy failed to 18 show changed circumstances sufficient to excuse the one year 19 filing deadline, the agency erred as a matter of law. See 20 Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 329 (2d 21 Cir. 2006); see also Mendez v. Holder, 566 F.3d 316, 323 (2d 22

3Cir. 2009). 1 The IJ noted in his decision that “the Tamil conflict 2 has been going on in Sri Lanka for approximately 25 to 30 3 years” and “[n]othing has changed”; and the BIA agreed with 4 that finding in affirming the IJ’s decision to pretermit 5 Kandaswamy’s asylum application. The statement that nothing 6 has changed in Sri Lanka in the past decades seriously 7 misstates the record. Country condition evidence indicates: 8 that there was a cease-fire between the government and the 9 LTTE in 2002, which began to break down in 2006 and was 10 formally dissolved in January 2008; and that disappearances 11 of ethnic Tamils by the government, and government-sponsored 12 paramilitary groups, has “increased dramatically” since 13 2006. This error affected the agency’s decision regarding 14 changed circumstances sufficient to excuse the one year 15 deadline for filing an asylum application. See Tian-Yong 16 Chen v. I.N.S ., 359 F.3d 121, 127 (2d Cir. 2004). Moreover, 17 remand to the agency to correct its error would not be 18 futile, because it is not clear that the agency would adhere 19 to its prior decision to pretermit Kandaswamy’s asylum 20 application if it were to assess the record accurately. See 21 Xiao Ji Chen , 471 F.3d at 338. 22

4**II. Withholding of Removal** 1 **A. Individual Likelihood of Persecution** 2 Kandaswamy claims that he will be persecuted in Sri 3 Lanka because the government will assume that a Tamil who 4 lived abroad supports the LTTE, or, alternatively, that he 5 will be persecuted as an unsuccessful asylum seeker. 6 However, as the IJ observed, there is no evidence in the 7 record that the Sri Lanka government is persecuting Tamils 8 returning from abroad, or asylum seekers. See Jian Xing 9 Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005). 10 Kandaswamy also did not establish that the government would 11 be aware that he sought and did not receive asylum. See 12 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). 13 Accordingly, the IJ did not err in finding that Kandaswamy 14 failed to establish that he would be persecuted upon return 15 to Sri Lanka. 16 **B. Pattern or Practice** 17 An applicant for withholding of removal may establish 18 eligibility for that relief by showing either that he will 19 be persecuted in the future, or that “there is a pattern or 20 practice of persecution of a group of persons similarly 21 situated to the applicant” on account of a protected ground, 22 and he is included in that group. 8 C.F.R. § 1208.16(b)(2); 23 5see Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007). 1 Kandaswamy also argues that he established a pattern or 2 practice of persecution of Tamils by the Sri Lankan 3 government and by paramilitary groups. The IJ concluded 4 that the record showed no more than “isolated incidents” of 5 individuals considered to be “part of a terrorist 6 organization” being “arrested, detained, and beaten.” As 7 evidence that there was no pattern or practice of 8 persecution of Tamils in Sri Lanka, the IJ observed that the 9 State Department had not granted temporary protected status 10 to Tamils in the United States. The BIA concurred with the 11 IJ’s findings. 12 The agency’s conclusion is undermined by problems with 13 its fact-finding process, as it does not indicate what 14 evidence it relied upon in determining that there were only 15 isolated incidents of arrests, detentions and beatings: 16 moreover, it mischaracterizes the record regarding the 17 treatment of Tamils in Sri Lanka.See Cao He Lin v. U.S. 18 Dep't of Justice , 428 F.3d 391, 405 (2d Cir. 2005)(remanding 19 where the agency “mischaracterized the record”); cf. Santoso 20 v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (holding that 21 where the agency’s determination that an individual did not 22 establish a pattern or practice of persecution is supported 23 6by background materials, the agency has provided a 1 “sufficient basis” for its conclusion). 2 There is documentary evidence which the agency may 3 credit (or not) that suggests a high level of violence 4 against ethnic Tamil civilians at the hands of the Sri 5 Lankan government, government-supported paramilitary groups, 6 and other actors. A letter from members of the United 7 States Congress to Ambassador Rice states that “ethnic-based 8 violence is widespread in Sri Lanka, and Tamil noncombatants 9 are deliberately victimized by Sri Lankan Government 10 policies.” A 2008 Human Rights Watch report states that 11 “[h]undreds of enforced disappearances committed since 2006 12 have already placed Sri Lanka among the countries with the 13 highest number of new cases in the world. The victims are 14 primarily young ethnic Tamil men who ‘disappear’– often 15 after being picked up by government security forces in the 16 country’s embattled north and east, but also in the capital 17 Colombo.” A 2008 report from the UNHCR states that “Tamils 18 in Colombo . . . are at heightened risk of security checks, 19 arbitrary personal and house to house searches, harassment, 20 restrictions on freedom of movement, and other forms of 21 abuse” and “in relation to individuals who flee targeted 22 violence or human right abuses by the authorities or 23

7paramilitary groups, there is no internal flight 1 alternative.” 2 Finally, the designation of temporary protected status 3 is not required for finding a pattern or practice of 4 persecution. Compare8 U.S.C. § 1254a(b)(1) (defining 5 designation of temporary protected status) with8 C.F.R. 6 § 1208.16(b)(2)(i) (defining “pattern or practice”) and 7 Matter of Acosta , 19 I. & N. Dec. 211, 222 (BIA 1985) 8 (defining persecution), overruled, in part, on other 9 grounds ,by INS v. Cardoza-Fonseca , 480 U.S. 421 (1987). 10 For the foregoing reasons, the petition for review is 11 GRANTED, and the case is remanded to the agency for further 12 proceedings. As we have completed our review, any stay of 13 removal that the Court previously granted in this petition 14 is VACATED, and any pending motion for a stay of removal in 15 this petition is DISMISSED as moot. Any pending request for 16 oral argument in this petition is DENIED in accordance with 17 Federal Rule of Appellate Procedure 34(a)(2), and Second 18 Circuit Local Rule 34.1(b). 19

FOR THE COURT: 20 Catherine O’Hagan Wolfe, Clerk 21 22 23

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