* The Hon. James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 06a0477n.06 Filed: July 7, 2006 05-3711 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LAL KUMARA CHANDRAGUPTA MATARAGE, Petitioner,

v. ALBERTO G. GONZALES, Attorney General, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before: DAUGHTREY and COOK, Circuit Judges, and CARR, *District Judge.

PER CURIAM. The petitioner, Lal Kumara Chandr agupta Matarage, is a citizen of Sri Lanka who entered this countrylegally in August 1993. His permission to remain in the United States eventually expi red, but Matarage requested a sylum, withholding of removal, and relief pursuant to the United Nations Conv ention Against Torture. The immigration judge who heard the petitioner’s case deni ed the requested relief, and the Board of Immigration Appeals (BIA) affi rmed. Matarage now contends that the adverse decision is not supported by substant ial evidence in the record. He fu rther argues that he is entitled to a new evidentiary hearing because the immigration judge demons trated bias against05-3711 Matarage v. Gonzales

- 2 - him. Because we find no basis on which to sustain either of these contentions, we deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND Matarage became a lawyer in Sri Lanka in 1987. Although he claimed to have no particular political affiliations, the petitioner jo ined a law firm in his nat ive country that filed habeas corpus applications on behalf of indivi duals who had disappeared during civil strife between the government and Tamil separatists. Matarage testified that he had received the “usual sort of” telephone harassment as a result of his legal work, but explained that he did not take the threats “very seriously.” In 1993, however, he allegedly received an anonymous letter threatening his life about the sa me time that he was attacked on the road while returning from filing habeas corpus app lications against the head of an army camp. During that attack, Matarage said, he was approached by men brandishing automatic weapons and traveling in a van without visible lic ense plates. According to the petitioner’s testimony, the men “stopped my vehicle and they grabbed me out of my car and assaulted me and threatened me. . . . [T]hey asked me to stop filing the cases in the court of appeal, and if I continue, they told me they will do what they have done to [two lawyers who] were murdered by the forces.” The pet itioner also said that his atta ckers then took all of the legal files that he had with him in his vehicle. Matarage testified that, shaken by the enc ounter, he contacted a friend in the police department who advised him that his life was in danger and that he should leave the05-3711 Matarage v. Gonzales

- 3 - country as soon as possible. Matarage said that he did leave his home immediately but stayed in Sri Lanka for a while with a lawyer fr iend of his. Event ually, on August 12, 1993, he entered the United States on a six-month visitor’s visa. In June 1994, Matarage changed his immigration status to that ofa student and consequently was allowed to extend his stay in this country until December 1995. On March 21, 1995, Matarage filed an app lication for asylum and withholding of deportation with the Immigration and Naturalization Service. In May 1995, that request for relief was denied and the petitioner left the country for Canada, beginning a five-year odyssey of going back and forth between the tw o countries. His request for asylum in Canada was also denied and, according to the petit ioner’s attorney, “[h]e was returned to the United States from Canada underthe Reciprocal Agreement in April of 1999. He then returned to Canada in September 1999 to renewhis asylum request. He was again returned to the United States from Canada underthe Reciprocal Agreement on September 6, 2000.” On September 4, 2001, an initial removal hear ing was held in Detroit, Michigan. The petitioner failed to appear and the immigrat ion judge ordered Matarage removed to Sri Lanka. Due to the ineffectiv e assistance provided by the pet itioner’s counsel in failing to inform his client of the hearing date, Matarage was ultimately allowed to file a new asylum application on March 7, 2002. An evidentiary hearing was c onducted on January 16, 2004, after which the immigration judge once agai n denied Matarage’s requests for relief and05-3711 Matarage v. Gonzales

- 4 - ordered his removal on the gr ounds that the petitioner ha d failed to establish past persecution that would raise a rebuttable presumption of a well-founded fear of future persecution. The immigration court then conc luded that even if such a presumption had been raised, changed conditions in Sri Lanka indi cated that Matarage would not be subject to persecution should he return to his native land. The BIA affirmed that ruling “without opinion,” leading to this appeal.

DISCUSSION

A. Standard Of Review
When, as in this case, the BIA summarilyaffirms the decision of an immigration judge without issuing its own opini on, “we review the [immigrati on judge’s] decision as the final agency decision.” Denko v. INS , 351 F.3d 717, 726 (6th Cir. 2003 ). We must sustain a decision by the immigration judge denying re lief if that determination is “supported by reasonable, substantial, and pr obative evidence on the record considered as a whole.” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992). As we have recognized, “[u]nder this deferential standard, we may not reverse t he [immigration judge’s] determination simply because we would have decided the matter differently.” Koliada v. INS , 259 F.3d 482, 486 (6th Cir. 2001); Mikhailevitch v. INS , 146 F.3d 384, 388 (6th Cir. 1998). Rather, to overturn an immigration judge’s ruling “we must find that the evidence not only supports [a contrary] conclusion, but compels it.” Elias-Zacarias , 502 U.S. at 481 n.1 (emphasis in original).05-3711 Matarage v. Gonzales

- 5 - B. Asylum Pursuant to the provisions of 8 U.S. C. § 1158(b)(1), the attorney general may grant asylum to an applicant determined to be “a refugee within the meaning of section 1101(a)(42)(A) of [title 8].” That statut ory subsection defines a “refugee” to mean any person who is outside any country ofsuch person’s nationality or, in the case of a person having no nationality, is outside anycountry in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself orherself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Thus, resolution of any request for asylum invo lves “a two-step inquiry: first, whether the petitioner is a ‘refugee’ withi n the meaning of the statut e, and second, whether the petitioner merits a favorable exercise ofdiscretion by the Attorney General.” Perkovic v. INS , 33 F.3d 615, 620 (6th Cir. 1994) (citing INS v. Cardoza-Fonseca , 480 U.S. 421, 428 n.5 (1987)). As explained in 8 C.F.R. § 208.13(b)(1), “[a]n applicantwho has been found to have established . . . past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original clai m” unless the immigrati on judge finds, by a preponderance of the evi dence, either that: (A) There has been a fundamental change in circumstances such that the applicant no longer has a well-founded fearof persecution in the applicant’s country of nationality . . . on account of political opinion; or05-3711 Matarage v. Gonzales

- 6 - (B) The applicant could avoid future per secution by relocating to another part of the applicant’s country of nationalit y . . . and under all the circumstances, it would be reasonable to expect the applicant to do so. 8 C.F.R. § 208.13(b)(1)(i). In making his determination in this matter, the immigration j udge assumed the truth of Matarage’s claims of harassment but conc luded “that the incidents that he has suffered do not rise to the level of past persecution. Hence, he is not entitled to any rebuttal [sic] presumption of future persecution.” The immi gration judge noted that ev en if the petitioner had established past persecution, “the bottom li ne is that because country conditions have changed, . . . [Matarage] cannot dem onstrate that there is a patte rn or practice in Sri Lanka of persecution of a group of persons similarly situated to him . . . .”

In an effort to establish a well-founded fear of future perse cution, the petitioner thus testified at the merits hearing that he personally knew three lawyers who had been murdered for filing habeas corpus applicati ons on behalf of “disappeared” individuals and that he knew of three additional lawyers who were victims ofsuch targeted violence. He also introduced a letter from one of his siblings that recounted how, ev en after the petitioner left Sri Lanka, unknown individuals came to his former home inquiring about his whereabouts. Three of the highlighted lawyer murder s occurred in 1988 and 1989, however, at least four years before Matarage himself wa s physically attacked and more than 15 years05-3711 Matarage v. Gonzales

- 7 - prior to the hearing in this ma tter. Moreover, the letter from the petitioner’s brother was dated September 12, 2000, more t han three years prior to the hearing. Matarage offered no more recent personal testimony to indicate that such abuses were continuing in Sri Lanka in 2004 or that unidentified marauders were still attempting to find him at his family home. Indeed, the United Stat es Department of State’s 2002 Country Report on Human Rights Practices in Sri Lanka (released March 31, 2003) states that “[ u]nlike in previous years, there were no credible r eports that security forces committed extrajudicial killings,” “and no reports of disappearances.” Admittedly, we have recognized “that St ate Department reports may be problematic sources on which to rely.” See Mullai v. Ashcroft , 385 F.3d 635, 639 (6th Cir. 2004) (citing Koliada , 259 F.3d at 487); see also , Mece v. Gonzales , 415 F.3d 562, 574 n.5 (6th Cir. 2005) (“speculation and broad generalizations by the State Department cannot trump concrete, detailed, and adequately corroborat ed evidence of specific instances of persecution”). Nevertheless, we have also adopted “the view that such reports are generally the best source of information on conditions in foreign nations.” Id. (citation and internal quotation marks omitted). Mor eover, “to reverse the immigration judge’s determination on this issue, . . . we must decide that the evidence would compel a reasonable factfinder to conclude that there is a reasonable chance of[Matarage] suffering future persecution if he were to return to [Sri Lanka].” Koliada , 259 F.3d at 488 (emphasis added). Because the petitioner has offered no concrete evidence of recent, coordinated attacks against habeas corpus lawyers in Sri Lanka, the evidence presented in the record05-3711 Matarage v. Gonzales

1 The petitioner does argue that State Departmentreports and reports from groups like Amnesty International are replete with references to acts of murder and other human rights violations, many of which involve situations that are in no way similar to Matarage’s. See Appellant’s Br. at 15-17. Most of those reports, however, detail atrocities dating back to 1990, 1991, and up to 2001. Unlike the most recent country report from the State Department, therefore, the evidence offered by Matarage fails to provide an insight into the conditions existing in Sri Lanka near the time of the January 2004 immigration hearing. - 8 - before this court on appeal does not compel a conclusion cont rary to the one reached by the immigration judge in this case. 1 Substantial evidence in t he record thus supports the immigration judge’s denial of Ma tarage’s petition for asylum. C. Withholding Of Removal Matarage also petitions this court for re view of the administrative denial of his request for withholding of removal. Pursuant to the provisions of 8 U.S.C. § 1231(b)(3)(A), “the Attorney General may not re move an alien to a country ifthe Attorney General decides that the alien’s life or freedom would be threatened in that c ountry because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Thus, in order to qualify for withholding of remova l, the petitioner “must establish that there is a clear probability that he will be subject to persecution if forced to return to [Sri Lanka].” Pilica v. Ashcroft , 388 F.3d 941, 951 (6th Cir. 2004) (em phasis added). To make such a showing, a petitioner “must dem onstrate that ‘it is more lik ely than not’ thathe or she will be persecuted upon return.” Liti v. Gonzales , 411 F.3d 631, 641 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.16(b)(2)). Because this bur den is “a more stringent burden than what is required on a claim for asylum,” id. at 640 (quoting Pilica , 388 F.3d at 951), it follows from05-3711 Matarage v. Gonzales

- 9 - Matarage’s failure to establish his eligibilit y for asylum that he cannot satisfy the more onerous burden for withholding of removal either. See , e.g. Koliada , 259 F.3d at 489. D. Relief Under The United Nations Convention Against Torture The petitioner additionally requested relief under the provisions of the United Nations Convention Against Torture and Other Cr uel, Inhuman or Degrading Treatment or Punishment. To obtain withholding of remova l under that convention, “[t]he burden of proof is on the applicant . . . to establish that it is more likely than not that he or she would be tortured if removed to the proposed country ofremoval.” 8 C.F.R. § 208.16(c)(2). This burden is also significantly greater than t he burden required to demons trate eligibility for asylum. Whereas asylum may be granted bythe attorney general upon a showing of a “well-founded fear of persecuti on,” withholding of removal u nder the Convention Against Torture requires a showing that it is more likely than not that Matarage not only would be persecuted upon his return to Sri Lanka, but that he would be tortured . Because the petitioner cannot demonstrat e entitlement to a grant of asyl um in this case, he also cannot meet the more stringent requirements underthe Convention Against Torture. See , e.g. , Liti , 411 F.3d at 641. Substantia l evidence thus supports the immigration judge’s denial of this extraordinary relief to Matarage.05-3711 Matarage v. Gonzales

- 10 - E. Due Process Claim05-3711 Matarage v. Gonzales

- 11 - In a final allegation of error, the petitionerasserts that the i mmigration judge did not fairly and impartially preside over his claims for relief. The claim ofbias is premised upon statements that the immigrat ion judge made at the beginning of the January 2004 hearing. In inquiring whether the petitioner might be willing to withdraw his request for a hearing and instead agree to voluntary departure from th is country, the immigration judge noted: It also appears to me that[Matarage] had a similar application denied by the government. He probably had a similar application denied by the Canadian government, and as I read the latest Country Condition Reports, even if one would assume his story was true, thi ngs have changed in Sri Lanka vis-a-vis people such as he claims to be.

We review de novo any allegations of due process violations during removal hearings. See Mikhailevitch , 146 F.3d at 391. Such a review, moreover, entails a twopronged inquiry: “first, whetherthere was a defect in the removal proceeding; and second, whether the alien was prej udiced because of it.” Vasha v. Gonzales , 410 F.3d 863, 872 (6th Cir. 2005). Despite the petitioner’s ar guments to the contrary, the comments made by the immigration judge did not indi cate bias against Matarage on the part of the presiding official. Rather, the comments were more likely an attempt by the immigration judge to apprise the petitioner ofthe strength of the case to be presented against him and to extend a final benefit offer. Even if the judge’s comment s were to be construed as violative of due process, however, Matarage cannot establish prejudice from those statements given the uncontradicted change in country conditions that nullified any effort on the petitioner’s part05-3711 Matarage v. Gonzales

- 12 - to establish even a well-founded fearof future persecution in Sri Lanka. This issue is thus without merit.

CONCLUSION

Because the evidence in this matter does not compel a conclusion contrary to that reached by the immigration judge, we concl ude that substantial evidence supports the determination that conditions in Sri Lanka hav e changed to the extent that the petitioner cannot establish a well-founded fear of persecution upon his return to that country. Consequently, we must DENY Ma tarage’s petition for review and AFFIRM the immigration judge’s order of removal.