         11-1640
         Periyathamby v. Holder
                                                                                       BIA
                                                                                Sagerman, IJ
                                                                               A089 193 597
                                  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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 25th day of June, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _______________________________________
12
13       QUINTEN BRYAN SATHEES PERIYATHAMBY,
14                Petitioner,
15
16                           v.                                 11-1640
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                   Visuvanathan Rudrakumaran, New York,
24                                         NY.
25
26       FOR RESPONDENT:                   Stuart F. Delery, Acting Assistant
27                                         Attorney General; Shelley R. Goad,
28                                         Assistant Director; Nancy K. Canter,
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 DENIED.

 9       Quinten Bryan Sathees Periyathamby, a native and

10   citizen of Sri Lanka, seeks review of a March 29, 2011,

11   decision of the BIA affirming the October 21, 2010, decision

12   of Immigration Judge (“IJ”) Roger Sagerman, which denied his

13   application for withholding of removal and relief under the

14   Convention Against Torture (“CAT”).   In re Quinten Bryan

15   Sathees Periyathamby, No. A089 193 597 (B.I.A. Mar. 29,

16   2011), aff’g No. A089 193 597 (Immig. Ct. Napanoch Oct. 21,

17   2010).   We assume the parties’ familiarity with the

18   underlying facts and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   the decision of the IJ as supplemented by the BIA.     See Yan

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

22   applicable standards of review are well established.     See

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

24



                                   2
 1       We generally lack jurisdiction to review the removal

 2   order of an alien who was found removable by reason of

 3   having committed an aggravated felony.    See 8 U.S.C.

 4   §§ 1227(a)(2)(A)(iii), 1252(a)(2)(C).    We do, however,

 5   retain jurisdiction to review colorable constitutional

 6   claims or questions of law, such as an IJ’s determination

 7   that an alien is statutorily ineligible for relief from

 8   removal.   See id. § 1252(a)(2)(D); Sepulveda v. Gonzales,

 9   407 F.3d 59, 62-63 (2d Cir. 2005).

10       At the outset, we note that because Periyathamby does

11   not challenge on appeal the agency’s conclusion that he

12   committed the aggravated felony of first-degree sexual abuse

13   by forcible compulsion, see N.Y. Penal Law § 130.65(1), any

14   such argument is deemed abandoned, see Nolasco v. Holder,

15   637 F.3d 159, 161 (2d Cir. 2011).    Insofar as Periyathamby

16   contends that the IJ committed legal error by failing to

17   consider the factors set forth in In re Frentescu, 18

18   I. & N. Dec. 244, 247 (BIA 1982), in finding that his sexual

19   assault conviction constituted a “particularly serious

20   crime” disqualifying him from withholding of removal, 8

21   U.S.C. § 1231(b)(3)(B)(ii), that argument is without merit

22   because the agency expressly considered the Frentescu

23   factors.

                                   3
 1       Periyathamby similarly fails to raise a meritorious

 2   constitutional claim or question of law regarding the denial

 3   of CAT relief.   Although we possess jurisdiction to consider

 4   his argument that the agency erred in failing to recognize

 5   that, under the doctrine of res judicata, his previous grant

 6   of asylum conclusively establishes his eligibility for CAT

 7   relief, the argument is frivolous because the requirements

 8   for CAT relief are different from, and in some respects more

 9   stringent than, those for asylum.   See Ramsameachire v.

10   Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004) (“Because the

11   CAT inquiry is independent of the asylum analysis . . . the

12   BIA's decision with respect to an alien's claims for asylum

13   and withholding of removal pursuant to the INA should never,

14   in itself, be determinative of the alien's CAT claim.”).

15       Moreover, while we have not expressly held that

16   § 1252(a)(2)(C)’s jurisdictional bar applies to claims of

17   deferral of removal under the CAT, see De La Rosa v. Holder,

18   598 F.3d 103, 107 (2d Cir. 2010), our court repeatedly has

19   assumed that the jurisdictional bar indeed applies to such

20   claims, see, e.g., Savchuk v. Mukasey, 518 F.3d 119, 123 (2d

21   Cir. 2008); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.

22   2007); Maiwand v. Gonzales, 501 F.3d 101, 105 (2d Cir.


                                   4
 1   2007).   Accordingly, Periyathamby’s arguments relating to

 2   the weighing of evidence demonstrating his eligibility for

 3   deferral of removal, which “essentially dispute the

 4   correctness of [the] IJ’s fact-finding,” are barred from

 5   further review for lack of jurisdiction.   Xiao Ji Chen v.

 6   U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

 7       In any event, to the extent we may consider the issue,

 8   see Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 338

 9   n.2 (2d Cir. 2006) (reiterating that we may assume

10   statutory, but not constitutional, jurisdiction to evaluate

11   merits where jurisdictional issues are complex and claims

12   are meritless), we conclude that the agency’s determination

13   that Periyathamby failed to show a likelihood that he would

14   be tortured or killed by Sri Lankan forces upon a return to

15   that country is supported by substantial record evidence.

16   The 2009 U.S. State Department Report on the Recent Conflict

17   in Sri Lanka and the 2009 State Department Human Rights

18   Report state that the Sri Lankan government inadvertently

19   killed Tamil civilians during its conflict with the LTTE,

20   but note that the conflict ended in May 2009.   While the Sri

21   Lankan government has effectively curtailed access to aid in

22   its efforts to screen Tamil refugees for LTTE rebels, the IJ

23   reasonably found that this discrimination does not rise to
                                   5
 1   the level of torture.   See 8 C.F.R. § 208.18(a)(2) (“Torture

 2   is an extreme form of cruel and inhuman treatment and does

 3   not include lesser forms of cruel, inhuman or degrading

 4   treatment or punishment that do not amount to torture.”);

 5   Pierre v. Gonzales, 502 F.3d at 118 (holding that “torture”

 6   requires a specific intent to torture).   Furthermore,

 7   Periyathamby testified that he was slapped and threatened by

 8   members of the navy, but that he was able to safely reside

 9   in another part of Sri Lanka for over two months, and that

10   his mother and sister remained in Sri Lanka without

11   incident.   Because Periyathamby did not suffer torture at

12   the hands of the navy and could safely relocate within Sri

13   Lanka, the IJ reasonably found that his claims did not

14   demonstrate a likelihood that he would be subject to torture

15   if he were removed to Sri Lanka.   See 8 C.F.R.

16   §§ 1208.16(c), 1208.17; Khouzam v. Ashcroft, 361 F.3d 161,

17   168 (2d Cir. 2004) (noting that CAT relief is available only

18   when torture is more than likely); Melgar de Torres v. Reno,

19   191 F.3d 307, 313 (2d Cir. 1999) (finding that where alien’s

20   similarly situated mother and daughters continued to live in

21   alien’s native country, claim of future fear of harm was

22   diminished); see also Matter of J-F-F-, 23 I. & N. Dec. 912

23   (AG 2006) (denying deferral of removal due to speculative

24   nature of petitioner’s claim).
                                   6
1        For the foregoing reasons, the petition for review is

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

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

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




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