11-2085-ag

Perera v. Holder

BIA

Hom, IJ

A099 758 977

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

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 9th day of August, two thousand twelve.

PRESENT:

JOSÉ A. CABRANES,

GERARD E. LYNCH,

SUSAN L. CARNEY,

Circuit Judges.

_______________________________________

KASTURI ARACHCHIGE JOSEPH GAMI PERERA,

Petitioner, 

 v. 11-2085-ag

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Visuvanathan Rudrakumaran, New York,

New York 

FOR RESPONDENT: Tony West, Assistant Attorney

General; Terri J. Scadron, Assistant

Director; Richard Zanfardino, Trial

Attorney, Office of Immigration

Litigation, United States Department

of Justice, Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Kasturi Arachchige Joseph Gami Perera, a native and

citizen of Sri Lanka, seeks review of an April 21, 2011,

decision of the BIA affirming the October 30, 2008, decision

of Immigration Judge (“IJ”) Sandy K. Hom, which denied his

application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Kasturi

Arachchige Joseph Gami Perera, No. A099 758 977 (B.I.A. Apr.

21, 2011), aff’g No. A099 758 977 (Immig. Ct. N.Y. City Oct.

30, 2008). We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

Under the circumstances of this case, we have reviewed

the IJ’s decision as supplemented by the BIA. See Yan Chen

v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

“substantial evidence” standard of review applies, Islam v.

Gonzales, 469 F.3d 53, 55 (2d Cir. 2006), and “we uphold the

IJ’s factual findings if they are supported by reasonable,

substantial and probative evidence in the record.” Yanqin

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

quotation omitted); see also 8 U.S.C. § 1252(b)(4)(B).
3

For asylum applications such as Perera’s, governed by

the amendments made to the Immigration and Nationality Act

by the REAL ID Act of 2005, the agency may, considering the

totality of the circumstances, base a credibility finding on

inconsistencies in the applicant’s statements, without

regard to whether the inconsistencies go “to the heart of

the applicant’s claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii);

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

When an inconsistency is dramatic, the agency may render an

adverse credibility finding on its basis without first

soliciting an explanation. See Majidi v. Gonzales, 430 F.3d

77, 81 (2d Cir. 2005). In this case, substantial evidence

supports the agency’s adverse credibility determination,

based on inconsistencies between Perera’s testimony and the

record of his Canadian asylum proceedings. 

There were several dramatic inconsistencies between

Perera’s statement to the Canadian Immigration and Refugee

Board (“CIRB”) and his testimony before the IJ, including

for example his omission before the IJ of any mention of an

incident occurring in July 2001, when in his statement to

the CIRB he indicated that in July 2001 the police raided

his house, beat his wife, and threatened him. Because “[a]n

inconsistency and an omission are . . . functionally
4

equivalent,” the agency properly relied upon Perera’s

omissions in finding Perera not credible. Xiu Xia Lin, 534

F.3d at 166; see also 8 U.S.C. § 1158(b)(1)(B)(iii); Majidi,

430 F.3d at 81. We therefore defer to that finding. 

Because the only evidence of a threat to Perera’s life or

freedom depended upon his credibility, the adverse

credibility determination in this case necessarily precludes

success on his claims for asylum, withholding of removal,

and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d

Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

520, 523 (2d Cir. 2005) 

For the foregoing reasons, the petition for review is

DENIED. Petitioner’s pending request for oral argument is

also DENIED in accordance with Federal Rule of Appellate

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk