         13-1046
         Hanarasingha v. Lynch
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A089 915 599
                                 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 29th day of January, two thousand sixteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                ROBERT D. SACK,
10                GERARD E. LYNCH,
11                     Circuit Judges.
12       _____________________________________
13
14       NAMAL NUWAN HANARASINGHA,
15                Petitioner,
16
17                          v.                                  13-1046
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                  Nhan C. Vo, Richmond Hill, New York.
25
26       FOR RESPONDENT:                  Stuart F. Delery, Assistant Attorney
27                                        General; John S. Hogan, Senior
28                                        Litigation Counsel; Channah F.
29                                        Norman, Trial Attorney, Civil
30                                        Division, Office of Immigration
31                                        Litigation, United States Department
32                                        of Justice, Washington D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Namal Nuwan Hanarasingha, a native and

 6   citizen of Sri Lanka, seeks review of a February 22, 2013

 7   decision of the BIA affirming a January 26, 2011 decision of

 8   an Immigration Judge (“IJ”) denying Hanarasingha’s

 9   application for asylum, withholding of removal and relief

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

11   Nuwan Hanarasingha, No. A089 915 599 (B.I.A. Feb. 22, 2013),

12   aff’g No. A089 915 599 (Immig. Ct. N.Y. City Jan. 26, 2011).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008) (internal quotation marks omitted).   “The ‘substantial

19   evidence’ standard of review applies, and we uphold the IJ’s

20   factual findings if they are supported by reasonable,

21   substantial and probative evidence in the record.”   Yanqin

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


                                   2
 1   quotation marks and citations omitted).     See also 8 U.S.C.

 2   § 1252(b)(4)(B).   We   “defer to an IJ’s credibility

 3   determination unless, from the totality of the

 4   circumstances, it is plain that no reasonable fact-finder

 5   could make such an adverse credibility ruling.”     Xiu Xia Lin

 6   v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008).

 7       Here, the IJ’s adverse credibility finding rested

 8   primarily on the fact that Hanarasingha testified

 9   extensively about a September 2007 physical attack by

10   opposition party “thugs,” but had failed to refer to that

11   attack in his written asylum application.    While an asylum

12   applicant is “not required to list every incident of

13   persecution” in his application, Pavlova v. INS, 441 F.3d

14   82, 90 (2d Cir. 2006), “[a] lacuna in an applicant’s

15   testimony or omission in a document submitted to corroborate

16   the applicant’s testimony, like a direct inconsistency

17   between one or more of those forms of evidence, can serve as

18   a proper basis for an adverse credibility determination,”

19   Xiu Xia Lin, 534 F.3d at 166 n.3.

20       Hanarasingha testified that the September 2007 attack

21   was the “most serious” incident of persecution he suffered.

22   Nevertheless, in a written statement submitted with his


                                    3
 1   asylum application, he described threats made by opposition

 2   leaders, but made no mention of the attack.     The IJ

 3   reasonably deemed that omission significant.     Further,

 4   Hanarasingha failed to submit documents to corroborate his

 5   political affiliation with Sri Lanka’s United National Party

 6   – the cornerstone of his asylum claim, and the reason he was

 7   purportedly attacked.    See Biao Yang v. Gonzales, 496 F.3d

 8   268, 273 (2d Cir. 2007).   Based on those factors, the IJ

 9   found Hanarasingha incredible.     We cannot conclude that no

10   reasonable factfinder would have made such an adverse

11   credibility finding.    Majidi v. Gonzales, 430 F.3d 77, 80

12   (2d Cir. 2005).

13       Having found that Hanarasingha failed to establish

14   eligibility for asylum on credibility grounds, the agency

15   did not err in denying withholding of removal and relief

16   under the CAT, as those claims shared the same factual

17   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

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

19   520, 523 (2d Cir. 2005).

20       Hanarasingha also challenges the agency’s rejection of

21   three documents that he produced, for the first time, at his

22   merits hearing.   An IJ may set a deadline for documents to

23   be filed and thereafter deem the opportunity to file them

                                    4
 1   waived.    8 C.F.R. § 1003.31(c).   Such a waiver is not

 2   automatic because the IJ “retains the authority to determine

 3   how to treat an untimely filing.” Imm. Ct. Pract. Man.

 4   ch. 3.1(d)(ii).     We review an IJ’s rejection of untimely

 5   documents for abuse of discretion.     Dedji v. Mukasey, 525

 6   F.3d 187, 191 (2d Cir. 2008).

 7       Hanarasingha’s removal proceedings began in March 2009.

 8   The IJ imposed a document submission deadline of August 24,

 9   2009, but noted that the Immigration Court Practice Manual

10   permitted filing within 15 days of the January 2011 merits

11   hearing.     Imm. Ct. Pract. Man. ch. 3.1(b)(ii)(A).

12   Hanarasingha’s documents were untimely by either measure.

13   He attempted to excuse the lateness by arguing that his

14   mother was afraid to request the documents and that the

15   documents’ custodians either were frightened or for some

16   other reason refused her requests.     The IJ was within his

17   discretion to rule that Hanarasingha had not established

18   good cause for his fifteen-month delay in submitting the

19   documents.     Nor can Hanarasingha demonstrate “substantial

20   prejudice from enforcement of the deadline.”     Dedji, 525

21   F.3d at 192.     The record suggests just the opposite – that

22   is, the three rejected documents actually impugned

23   Hanarasingha’s credibility.

                                     5
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6




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