         10-5260-ag
         Kandaswamy v. Holder
                                                                                        BIA
                                                                                Vomacka, IJ
                                                                               A092 013 447
                                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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 9th day of March, two thousand twelve.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                PETER W. HALL,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _______________________________________
13
14       SUNTHER KANDASWAMY,
15                Petitioner,
16
17                         v.                                   10-5260-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Visuvanathan Rudrakumaran, New York,
25                                       New York.
26
27       FOR RESPONDENT:                 Tony West, Assistant Attorney
28                                       General; Daniel E. Goldman, Senior
29                                       Litigation Counsel; Lindsay Corliss,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, United
 3                             States Department of Justice,
 4                             Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is GRANTED.

10       Sunther Kandaswamy, a native and citizen of Sri Lanka,

11   seeks review of a November 30, 2010, decision of the BIA

12   affirming the July 7, 2009, decision of Immigration Judge

13   (“IJ”) Alan Vomacka, which denied his application for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).     In re Sunther

16   Kandaswamy, No. A092 013 447 (B.I.A. Nov. 30, 2010), aff’g

17   No. A092 013 447 (Immig. Ct. N.Y. City July 7, 2009).      We

18   assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the entire IJ decision.     See Ming Xia Chen v. BIA, 435 F.3d

22   141, 144 (2d Cir. 2006).    The applicable standards of review

23   are well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

25


                                     2
 1   I.   Asylum

 2        Title 8, Section 1158(a)(3) of the United States Code

 3   provides that no court shall have jurisdiction to review the

 4   agency’s finding that an asylum application was untimely

 5   under 8 U.S.C. § 1158(a)(2)(B), or a finding that no change

 6   or extraordinary circumstance excuses the untimeliness under

 7   8 U.S.C. § 1158(a)(2)(D).      We nevertheless retain

 8   jurisdiction to review constitutional claims and “questions

 9   of law.”      8 U.S.C. § 1252(a)(2)(D).

10        Kandaswamy argues first that, as a matter of law, the

11   agency failed to make an explicit finding as to an excuse

12   for untimeliness.      However, a review of the IJ’s decision

13   shows that he did in fact determine that Kandaswamy had not

14   demonstrated extraordinary or changed circumstances.

15        Kandaswamy argues that, in any event, any such finding

16   was in error.      Because the IJ mischaracterized the record,

17   and because both the IJ and the BIA relied on that

18   mischaracterization in determining that Kandaswamy failed to

19   show changed circumstances sufficient to excuse the one year

20   filing deadline, the agency erred as a matter of law.      See

21   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d

22   Cir. 2006); see also Mendez v. Holder, 566 F.3d 316, 323 (2d


                                      3
 1   Cir. 2009).

 2       The IJ noted in his decision that “the Tamil conflict

 3   has been going on in Sri Lanka for approximately 25 to 30

 4   years” and “[n]othing has changed”; and the BIA agreed with

 5   that finding in affirming the IJ’s decision to pretermit

 6   Kandaswamy’s asylum application.   The statement that nothing

 7   has changed in Sri Lanka in the past decades seriously

 8   misstates the record.   Country condition evidence indicates:

 9   that there was a cease-fire between the government and the

10   LTTE in 2002, which began to break down   in 2006 and was

11   formally dissolved in January 2008; and that disappearances

12   of ethnic Tamils by the government, and government-sponsored

13   paramilitary groups, has “increased dramatically” since

14   2006.   This error affected the agency’s decision regarding

15   changed circumstances sufficient to excuse the one year

16   deadline for filing an asylum application.   See Tian-Yong

17   Chen v. I.N.S., 359 F.3d 121, 127 (2d Cir. 2004).   Moreover,

18   remand to the agency to correct its error would not be

19   futile, because it is not clear that the agency would adhere

20   to its prior decision to pretermit Kandaswamy’s asylum

21   application if it were to assess the record accurately.      See

22   Xiao Ji Chen, 471 F.3d at 338.


                                   4
 1   II. Withholding of Removal

 2       A.   Individual Likelihood of Persecution

 3       Kandaswamy claims that he will be persecuted in Sri

 4   Lanka because the government will assume that a Tamil who

 5   lived abroad supports the LTTE, or, alternatively, that he

 6   will be persecuted as an unsuccessful asylum seeker.

 7   However, as the IJ observed, there is no evidence in the

 8   record that the Sri Lanka government is persecuting Tamils

 9   returning from abroad, or asylum seekers.   See Jian Xing

10   Huang v. INS, 421 F.3d 125, 128-29 (2d Cir. 2005).

11   Kandaswamy also did not establish that the government would

12   be aware that he sought and did not receive asylum.    See

13   Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).

14   Accordingly, the IJ did not err in finding that Kandaswamy

15   failed to establish that he would be persecuted upon return

16   to Sri Lanka.

17       B.   Pattern or Practice

18       An applicant for withholding of removal may establish

19   eligibility for that relief by showing either that he will

20   be persecuted in the future, or that “there is a pattern or

21   practice of persecution of a group of persons similarly

22   situated to the applicant” on account of a protected ground,

23   and he is included in that group.   8 C.F.R. § 1208.16(b)(2);
                                   5
 1   see Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).

 2   Kandaswamy also argues that he established a pattern or

 3   practice of persecution of Tamils by the Sri Lankan

 4   government and by paramilitary groups.     The IJ concluded

 5   that the record showed no more than “isolated incidents” of

 6   individuals considered to be “part of a terrorist

 7   organization” being “arrested, detained, and beaten.”     As

 8   evidence that there was no pattern or practice of

 9   persecution of Tamils in Sri Lanka, the IJ observed that the

10   State Department had not granted temporary protected status

11   to Tamils in the United States.     The BIA concurred with the

12   IJ’s findings.

13       The agency’s conclusion is undermined by problems with

14   its fact-finding process, as it does not indicate what

15   evidence it relied upon in determining that there were only

16   isolated incidents of arrests, detentions and beatings:

17   moreover, it mischaracterizes the record regarding the

18   treatment of Tamils in Sri Lanka.     See Cao He Lin v. U.S.

19   Dep't of Justice, 428 F.3d 391, 405 (2d Cir. 2005)(remanding

20   where the agency “mischaracterized the record”); cf. Santoso

21   v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (holding that

22   where the agency’s determination that an individual did not

23   establish a pattern or practice of persecution is supported
                                  6
 1   by background materials, the agency has provided a

 2   “sufficient basis” for its conclusion).

 3       There is documentary evidence which the agency may

 4   credit (or not) that suggests a high level of violence

 5   against ethnic Tamil civilians at the hands of the Sri

 6   Lankan government, government-supported paramilitary groups,

 7   and other actors.    A letter from members of the United

 8   States Congress to Ambassador Rice states that “ethnic-based

 9   violence is widespread in Sri Lanka, and Tamil noncombatants

10   are deliberately victimized by Sri Lankan Government

11   policies.”    A 2008 Human Rights Watch report states that

12   “[h]undreds of enforced disappearances committed since 2006

13   have already placed Sri Lanka among the countries with the

14   highest number of new cases in the world. The victims are

15   primarily young ethnic Tamil men who ‘disappear’– often

16   after being picked up by government security forces in the

17   country’s embattled north and east, but also in the capital

18   Colombo.”    A 2008 report from the UNHCR states that “Tamils

19   in Colombo . . . are at heightened risk of security checks,

20   arbitrary personal and house to house searches, harassment,

21   restrictions on freedom of movement, and other forms of

22   abuse” and “in relation to individuals who flee targeted

23   violence or human right abuses by the authorities or

                                    7
 1   paramilitary groups, there is no internal flight

 2   alternative.”

 3       Finally, the designation of temporary protected status

 4   is not required for finding a pattern or practice of

 5   persecution.    Compare 8 U.S.C. § 1254a(b)(1) (defining

 6   designation of temporary protected status) with 8 C.F.R.

 7   § 1208.16(b)(2)(i) (defining “pattern or practice”) and

 8   Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)

 9   (defining persecution), overruled, in part, on other

10   grounds, by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

11         For the foregoing reasons, the petition for review is

12   GRANTED, and the case is remanded to the agency for further

13   proceedings.    As we have completed our review, any stay of

14   removal that the Court previously granted in this petition

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

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

17   oral argument in this petition is DENIED in accordance with

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

19   Circuit Local Rule 34.1(b).

20                                 FOR THE COURT:
21                                 Catherine O’Hagan Wolfe, Clerk
22
23




                                    8
