Kulothungam v. Lynch

14-1236 Kulothungam v. Lynch BIA Connelly, IJ A200 944 353 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 19th day of January, two thousand sixteen.

PRESENT: ROBERT A. KATZMANN, Chief Judge, REENA RAGGI, DENNY CHIN, Circuit Judges. _____________________________________

PASKARATHUNGAN KULOTHUNGAM, Petitioner,

v. 14-1236 NAC LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL, Respondent.

_____________________________________

FOR PETITIONER: Visuvanathan Rudrakumaran, Esq., New York, New York.

FOR RESPONDENT: Mona Maria Yousif, United States Attorney, Office of Immigration 1  Litigation, United States Department of Justice, Washington, D.C.; Brianne Whelan Cohen, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

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.

Paskarathungan Kulothungam, a native and citizen of Sri

Lanka, seeks review of an April 3, 2014 decision of the BIA

affirming a December 20, 2013 decision of an Immigration Judge

(“IJ”) denying his application for withholding of removal and

relief under the Convention Against Torture (“CAT”). See In

re Kulathungam, No. A200 944 353 (B.I.A. Apr. 3, 2014), aff’g

No. A200 944 353 (Immig. Ct. Batavia, N.Y. Dec. 20, 2013). We

assume the parties’ familiarity with the underlying facts and

procedural history in this case, which we reference only as

necessary to explain our decision to deny the petition.

Because the BIA affirmed the IJ’s decision, we review the

two decisions in tandem. Applying the “substantial evidence”

standard, “we uphold the IJ's factual findings if they are

supported by reasonable, substantial and probative evidence in

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

(internal quotation marks omitted). “By contrast, we review

de novo questions of law and the BIA's application of law to

undisputed fact.” Id. (internal alterations and quotation

marks omitted); see also 8 U.S.C. § 1252(b)(4).

Withholding of removal under 8 U.S.C. § 1231 requires the

applicant to show that it is more likely than not that he will

be persecuted “because of [his] race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3); see also Ramsameachire v. Ashcroft, 357

F.3d 169, 178 (2d Cir. 2004). If an applicant establishes that

he suffered past persecution on account of a protected ground,

it is presumed that he is likely to be persecuted in the future

“on the basis of the original claim.” 8 C.F.R.

§ 1208.16(b)(1)(i).

Here, the agency reasonably ruled that Kulothungam was not

entitled to a presumption of a likelihood of future persecution

based on past threats and assaults by members of the Sri Lankan

military and Tamil Liberation Party of Tamira (“PLOTE”),

because he did not establish that the past harm was on account

of a protected ground. Kulothungam’s testimony revealed that

he was harmed for following his employer’s orders to disconnect

3 unauthorized electricity lines, and did not provide any direct

or circumstantial evidence that he was targeted on account of

his ethnicity or an imputed political opinion that was “so

compelling” that it would warrant reversal of the BIA’s

decision. INS v. Elias-Zacarias, 502 U.S. 478, 481–84 & n.1

(1992).

Absent the presumption derived from past persecution, an

applicant for withholding of removal must establish that it is

more likely than not that he will face future persecution on

account of a protected ground. To carry this burden an

applicant need not “provide evidence that he . . . would be

singled out individually for . . . persecution” if he

establishes that “there is a pattern or practice of persecution

of a group of persons similarly situated” to him on account of

a protected ground, and that his “inclusion in and

identification with such group” means “it is more likely than

not” he would be persecuted upon return. 8 C.F.R.

§§ 1208.16(b)(2). Here, the agency reasonably determined that

Kulothungam failed to make this showing.

The country condition evidence indicates that the Sri

Lankan armed forces sometimes arbitrarily arrest and harm

persons suspected of being LTTE sympathizers, and that ethnic

4 Tamils face generalized discrimination and harassment.

However, Kulothungam did not show that he is or would likely

be perceived to be an LTTE sympathizer, or that he would likely

face harm rising to the level of persecution on account of his

Tamil ethnicity alone. Indeed, Kulothungam admitted that he

lived unharmed in Sri Lanka for many years except for the two

instances when he disconnected illegally obtained electricity.

Moreover, as the agency reasonably found, Kulothungam’s

assertion that he would likely face harm based on the proposed

social group of individuals who have sought asylum in the United

States is not supported by the evidence presented. That some

unsuccessful Tamil asylum seekers are detained and that one

individual was tortured upon return to Sri Lanka do not compel

the conclusion that returned asylum seekers, in general, face

likely persecution or torture. See Lin v. United States Dep’t

of Justice, 432 F.3d 156, 159-60 (2d Cir. 2005).

The agency further reasonably determined that Kulothungam

did not establish a likelihood of torture on any other ground

by or with the acquiescence of the Sri Lankan government. See

8 C.F.R. § 1208.16(c)(2). He provided no direct or

circumstantial evidence, and his country condition evidence did

not establish, that members of the PLOTE or the military would

5 look for him based on his disconnection of their unauthorized

electricity lines years ago or that they would inflict harm

rising to the level of torture if they found him. See Savchuck

v. Mukasey, 518 F.3d 119, 123-24 (2d Cir. 2008) (stating that

alien cannot show that he faces likely torture if occurrence

of one link in chain cannot be shown to be more likely than not:

“It is the likelihood of all necessary events coming together

that must more likely than not lead to torture, and a chain of

events cannot be more likely than its least likely link.”

(quoting In re J-F-F-, 23 I. & N. Dec. 912, 918 n.4 (A.G. 2006))).

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument

in this petition is DENIED in accordance with Fed. R. App. P.

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

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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