         13-3872
         Samarakoon Mudiyanselage v. Lynch
                                                                                        BIA
                                                                                   Sichel, IJ
                                                                               A099 938 760
                               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 19th day of August, two thousand fifteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _____________________________________
12
13       UPUL CHAMINDA ABEYR SAMARAKOON
14       MUDIYANSELAGE,
15                Petitioner,
16
17                          v.                                  13-3872
18                                                              NAC
19       LORETTA E. LYNCH, UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                      Nitin Kaushik, New York, NY.
25
26       FOR RESPONDENT:                      Stuart F. Delery, Assistant Attorney
27                                            General; Stephen J. Flynn, Assistant
28                                            Director; Robert Michael Stalzer,
29                                            Trial Attorney, Office of
30                                            Immigration Litigation, United
 1                          States Department of Justice,
 2                          Washington, D.C.
 3
 4       UPON DUE CONSIDERATION of this petition for review of a

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

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

 7   is DENIED.

 8       Petitioner Upul Chaminda Abeyr Samarakoon

 9   Mudiyanselage, a native and citizen of Sri Lanka, seeks

10   review of a September 16, 2013 order of the BIA, affirming

11   the August 22, 2012 decision of an Immigration Judge (“IJ”),

12   which denied asylum, withholding of removal, and Convention

13   Against Torture (“CAT”) relief, and denying Samarakoon

14   Mudiyanselage’s motion to remand.   In re Samarakoon

15   Mudiyanselage, No. A099 938 760 (B.I.A. Sept. 16, 2013),

16   aff’g No. A099 938 760 (Immig. Ct. N.Y.C. Aug. 22, 2012).

17   We assume the parties’ familiarity with the underlying facts

18   and procedural history in this case.

19       Under the circumstances of this case, we have reviewed

20   the IJ’s decision as supplemented by the BIA.    See Yan Chen

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

22   applicable standards of review are well established.     See 8

23   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,



                                  2
 1   513 (2d Cir. 2009); Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.

 2   2005).

 3   I.   Denial of Asylum and Related Relief

 4        To establish eligibility for asylum, an applicant like

 5   Samarakoon Mudiyanselage, who does not allege past

 6   persecution, must demonstrate a well-founded fear of future

 7   persecution.   See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A);

 8   Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006).        To

 9   demonstrate a well-founded fear of future persecution, an

10   applicant must show that he subjectively fears persecution

11   and that this fear is objectively reasonable.     See

12   Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004);

13   see also Jian Hui Shao v. Mukasey, 546 F.3d 138, 162 (2d

14   Cir. 2008).

15         The agency reasonably found that Samarakoon

16   Mudiyanselage failed to establish that his fear of

17   persecution by the Sri Lankan government was objectively

18   reasonable, despite his credible testimony.     See Jian Hui

19   Shao, 546 F.3d at 162.   First, the agency reasonably relied

20   on Samarakoon Mudiyanselage’s lack of evidence.     See Jian

21   Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

22   Although he testified that his mother received visits from


                                   3
 1   Sri Lankan officials who told her that he would be killed if

 2   he returned, Samarakoon Mudiyanselage provided no additional

 3   support and points to nothing in the record to establish his

 4   claim.   Samarakoon Mudiyanselage also testified that he has

 5   heard from media reports that army deserters who returned to

 6   Sri Lanka were abducted and killed by the defense ministry,

 7   but did not submit any of those media reports.

 8       The agency also reasonably found that Samarakoon

 9   Mudiyanselage’s country conditions evidence, particularly

10   the 2010 and 2011 State Department reports, did not support

11   his claim.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

12   F.3d 315, 341-42 (2d Cir. 2006).   While the country reports

13   do show that the Sri Lankan government has engaged in a high

14   number of kidnappings and extrajudicial killings, they also

15   state that most of the Sri Lankan government’s victims were

16   former Liberation Tigers of Tamil Eelam (“LTTE”) members,

17   presumed LTTE sympathizers, and Tamils – not army deserters.

18       Because Samarakoon Mudiyanselage failed to demonstrate

19   a well-founded fear of persecution, he necessarily failed to

20   meet the higher burden required for withholding of removal

21   or CAT relief.    See Lecaj v. Holder, 616 F.3d 111, 119-20

22   (2d Cir. 2010).


                                    4
 1   II. Motion to Remand

 2        We hold the BIA’s denial of a motion to remand that

 3   relies on new evidence to the substantive standard for

 4   motions to reopen.    See Li Yong Cao v. U.S. Dep’t of

 5   Justice, 421 F.3d 149, 156-57 (2d Cir. 2005).    We review the

 6   BIA’s denial of a motion to remand or reopen for an abuse of

 7   discretion.   See Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.

 8   2005) (per curiam).    The BIA has “broad discretion” in

 9   reviewing a motion to remand based on new evidence.      See INS

10   v. Doherty, 502 U.S. 314, 323 (1992).

11       Here, the BIA did err in relying on the date of the

12   IJ’s written decision and not the date of Samarakoon

13   Mudiyanselage’s last hearing before the IJ in finding that

14   the media report was not previously available.    See 8 C.F.R.

15   § 1003.2(c)(1).   The last merits hearing in Samarakoon

16   Mudiyanselage’s case was held in November 2011, and the

17   media report, from May 2012, was not available at that time.

18   Nevertheless, the BIA considered Samarakoon Mudiyanselage’s

19   motion on the merits, and reasonably found that the media

20   report would not alter the outcome of his proceedings if

21   they were reopened.    See Sanusi v. Gonzales, 445 F.3d 193,

22   201 (2d Cir. 2006).    The media report states that the Sri

23   Lankan government arrested over 36,400 deserters and dealt
                                    5
 1   with them pursuant to “military law.”        It does not prove

 2   that returning army deserters are abducted and killed, as

 3   Samarakoon Mudiyanselage testified.       Moreover, the article

 4   also does not prove that the punishment for deserting army

 5   members constituted persecution and not prosecution under a

 6   generally applicable law.     See Jin Jin Long v. Holder, 620

 7   F.3d 162, 166 (2d Cir. 2010).       Accordingly, the BIA did not

 8   err in denying Samarakoon Mudiyanselage’s motion to remand

 9   because the new evidence he submitted would not alter the

10   outcome of his proceedings if they were reopened.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

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

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

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




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