20

- 4124 Soyza v. Garland BIA Hom, IJ A 205 901 198 

### 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 Thu**  **rgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 5**  **t h**  **d a**  **y of M**  **a y**  **, two thousand twenty** 
**- t**  **h r**  **e e** 
**.** 4 5 **PRESENT:** 6 **JOSÉ A. CABRANES ,**  7 **SUSAN L. CARNEY ,**  8 **MICHAEL H. PARK ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **GIHAN SUNIMAL WIJEMU NI**  **SOYZA ,**  13 **Petitioner ,**  14 15
**v. 20** 

**- 4124**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  Visuvanathan Rudrakumaran , New 23 York, NY. 24 25 **FOR RESPONDENT:** Brian M. Boynton , Assistant 26 Attorney General ; Jonathan A. 27 Robbins , Sherease Pratt , Senior 282 Litigation Counsel , Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D C. 4
UPON DUE CONSIDERATION of this petition for review of a 5
Board of Immigration Appeals (“BIA”) decision, it is hereby 6
ORDERED, ADJUDGED, AND DECREED that the petitio n for review 7

is DENIED in part and GRANT ED in part

. 8

Petitioner Gihan Sunimal Wijemu ni Soyza , a native and 9

citizen of Sri Lanka , seeks review of a November 9, 2020 , 10

decision of the BIA affirming a June 25, 2018 , decision of an 11
Immigration Judge (“IJ”) denying his application for asylum, 12
withholding of removal, and relief under the Convention 13
Against Torture (“CAT”)

. In re Gihan Sunimal Wijemu ni Soyza , 14

No. A 205 901 198 (B.I.A. Nov. 9, 2020 ), aff’g No. A 205 901 15

198 (Immig. Ct. N.Y. City June 25, 2018 ). We assume the 16
parties’ familiarity with the underlying facts and procedural 17
history. 18

We have considered bot h the IJ’s and BIA’s opinions “for 19
the sake of completeness .” Wangchuck v. Dep’t of Homeland 20

Sec. , 448 F.3d 524, 528 (2d Cir. 2006). The applicable 21

standards of review are well established. See 8 U.S.C. 22

§ 1252(b)(4)( B) ( “ [T]he administrative findings of fact are 233 conclusive unless any reasonable adjudicator would be 1
compelled to conclude to the contrary

. ”) ; Yanqin Weng v. 2

Holder , 562 F.3d 510, 513 (2d Cir. 2009) ( reviewing 3
factfinding for substantial evidence and questions of law de 4

novo). 5
Soyza alleged that officers in the Sri Lankan navy 6
arrested, beat, and interrogated him because they suspected 7
he was helping his employer, a wealthy and influential 8

fisherman named Kingsley Silver, transport alleged terrorists 9
(the Liberation Tigers of Tamil Elam (“LTTE”) ) from a refugee 10
camp in Sri Lanka. As set forth below, we find no abuse of 11

discretion in the IJ’s exclusion of late

- filed evidence, and 12
we deny the petition as to asylum and withholding for lack of 13
nexus to a protected ground. We remand for further 14

consideration of the CAT claim. 15

I. Late

- filed Evidence 16

T he IJ did not abuse his discretion by excluding Soyza’s 17

late

- filed evidence

. Soyza filed th is evidence beyond the 18
February 2018 deadline set by the IJ. IJs have broad 19
discretion to set filing deadlines and may deem the 20
opportunity to file documents waived when deadlines are not 214 met

. See 8 C.F.R. § 1003.31(h); Matter of Jesus Interiano

1

Rosa , 25 I. & N. 264, 26 5

– 66 (B.I.A. 2010) ( discussing IJ’s 2
authority to deem opportunity to file supporting documents 3

waived ); see also Morgan v. Gonzales , 445 F.3d 549 , 551 (2d 4
Cir. 2006) (“ IJs are accorded wide latitude in calendar 5

management, and we will not micromanage their scheduling 6
decisions.”). Because Soyza had notice of the deadline and 7
more than a year to compile his evidence, the IJ did not abuse 8
his discretion in declining to consider the late

- filed 9

evidence. See Dedji v. Mukasey , 525 F.3d 187, 191

– 92 (2d 10
Cir. 2008) (reviewing rejection of late

- filed evidence for 11
abuse of discretion). 12

II. Asylum and Withholding of Removal 13
Soyza had to demonstrate that “one central” motivation 14

for h is arrest was his persecutors’ belief that he supported 15

the LTTE . 8 U.S.C. § 1158(b)(1)(B)(i); see also Quituizaca 16

v. Garland , 52 F.4th 103, 109

– 14 (2d Cir. 2022) (holding that 17
the “one central reason” standard applies to both asylum and 18
withholding of removal). Substantial evidence supports the 19
agency’s conclusion that he failed to establish a nexus

. See 20

Edimo

- Doua lla v. Gonzales , 464 F.3d 276, 282 (2d Cir. 2006) 215 (reviewing nexus determination for substantial evidence). 1
Soyza testified he piloted a fishing trawler and after 2

the war with the LTTE ended in 2009, his employer required 3
him to illegally transport displaced people from refugee 4
camps. Soyza testified that he believed he was transporting 5
displaced people, not terrorists, and that he knew the 6
activity was illegal. When he was arrested by the navy, 7
Soyza explained t hat he did not know the people he was 8
transporting were linked to the LTTE , but he was arrested 9
because transporting displaced people is a criminal act . He 10
testified that he was released when he gave up Silver’s name. 11
Based on this evidence, the agency re asonably concluded that 12
he did not establish that the navy was motivated by a belief 13
that he supported the LTTE, but rather arrested him because 14
of the illegal activity and to discover who employed him. 15

See Yueqing Zhang v. Gonzales , 426 F.3d 540, 545 (2d Cir. 16

2005) (requiring “direct o r circumstantial evidence” of 17
persecutors’ motivation) ; Chun Gao v. Gonzales , 424 F.3d 122, 18
130 (2d Cir. 2005) (holding that applicant has “burden . . . 19
to show that his persecutors actually imputed a political 20
opinion to him” (quotation marks omitted)). Soyza ’s argument 216 that t he agency failed to perform a mixed motive analysis 1

f ails because the agency considered why he was arrested and 2
the evidence reflected that he was intercepted for engaging 3
in criminal activity and beaten to obtain his employer’s name, 4
not because he was suspected of supporting terrorists. See 5

In re J

- B

- N

- & S

- M

- , 24 I. & N. Dec. 208, 214 (B.I.A. 2007) 6
(A protected ground “cannot be incidental, tangential, 7
superficial, or subordinate to another reason for harm.”); 8

see also Chun Gao , 424 F.3d at 130 (burden on applicant to 9
prove opinion was imputed)

. 10

III. CAT claim 11

We do not reach a conclusion regarding the ultimate merit 12
of Soyza’s CAT claim, but remand for further consideration by 13
the agency given the lack of clarity and errors in the IJ’s 14

decision. A successful CAT claim requires a showing that the 15
applicant w ill “more likely than not” be tortured by or with 16
the acquiescence of government officials. See 8 C.F.R. 17

§§ 1208.16(c), 1208.17(a). “Torture is defined as any act 18
by which severe pain or suffering, whether physical or mental, 19
is intentionally inflicted on a person for such purposes as 20
obtaining from him or her or a third person information or a 217 confession, punishing him or her for an a ct he or she or a 1
third person has committed or is suspected of having 2
committed, intimidating or coercing him or her or a third 3
person, or for any reason based on discrimination of any kind, 4
when such pain or suffering is inflicted by, or at the 5
instigati on of, or with the consent or acquiescence of, a 6
public official acting in an official capacity or other person 7
acting in an official capacity .” Id. § 1208.18(a)(1). 1 “In 8
assessing whether it is more likely than not that an applicant 9

would be tortured” the agency “shall” consider “all evidence 10
relevant to the possibility of future torture . . . including, 11
. . . “[e]vidence of past torture inflicted upon the 12
applicant,” ability to relocate within the country, 13
“[e]vidence of gross, flagrant or mass violati ons of human 14
rights within the country of removal,” and “[o]ther relevant 15
information regarding conditions in the country of removal .” 16

Id. § 1208.16(c)(3). 17
In denying CAT relief, the IJ stated that Soyza “claimed 18
he was mistreated during interrogation” but there was “no 19

evidence to show that [he] was a victim of torture before his 20

1 Citations are to the version of the regulations in force at the time of the agency’s decisions.8 departure.” This statement does not explain how Soyza’s 1
testimony about his beating by naval officers to obtain 2
information about alleged crimes did not rise to the level of 3

tort ure. See 8 C.F.R. § 1208.18(a)(1) (defining torture). 4

The IJ compounded the error by stating there was no evidence 5

that Soyza “suffered torture by [the government’s] 6
acquiescence” even though Soyza testified he was beaten by 7
members of the military

. The IJ may have intended to make 8
an adverse credibility determination, but the credibility 9
section of the IJ’s decision does not identify grounds for 10
finding Soyza not credible and the conclusion of the 11
credibility analysis i s incoherent. See Certified Admin

. 12

Record at 3 8 (“ The court did not find the respondent ’ s claim 13
that he was persecuted based upn an impute claim of 14
persecution as he was suspected to the a LTTE supporter. ”). 15
While the BIA and the Government take the position that Soyza 16

waived his CAT cla im on appeal, he flagged the IJ’s improper 17
reliance on credibility grounds. Given the BIA’s failure to 18
address that point and the obvious problems with the IJ’s 19
decision, we remand for further consideration of the CAT 20

claim. See Poradisova v. Gonzales , 420 F.3d 70, 77 (2d Cir. 219 2005) (“requir[ing] a certain minimum level of analysis from 1
the IJ and BIA opinions denying asylum . . . if judicial 2
review is to be meaningful”). 3
For the foregoing reasons, the petition for review is 4
DENIED in part as to asylu m and withholding of removal and 5
GRANTED in part and remanded for further consideration of the 6

CAT claim

. All pending motions and applications are DENIED 7
and stays VACATED. 8

FOR THE COURT: 9 Catherine O ’ Hagan Wolfe , 10 Clerk of Court 11