         13-2484
         Seenithamby Rasaiah v. Holder
                                                                                        BIA
                                                                                   Straus, IJ
                                                                               A097 849 218
                                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 13th day of November, two thousand fourteen.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                GUIDO CALABRESI,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _____________________________________
12
13       KOMALA SEENITHAMBY RASAIAH,
14                Petitioner,
15
16                           v.                                 13-2484
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                  Joshua Bardavid, New York, NY.
24
25       FOR RESPONDENTS:                 Stuart F. Delery, Assistant Attorney
26                                        General; Michael P. Lindemann,
27                                        Chief; Aaron R. Petty, Counsel for
28                                        National Security, National Security
29                                        Unit, Office of Immigration
30                                        Litigation, United States Department
31                                        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 GRANTED, in part, and DENIED, in part.

 5       Komala Seenithamby Rasaiah, a native and citizen of Sri

 6   Lanka, seeks review of a June 7, 2013, order of the BIA

 7   affirming the February 15, 2012, decision of Immigration

 8   Judge (“IJ”) Michael W. Straus denying her application for

 9   asylum, withholding of removal, and relief under the

10   Convention Against Torture (“CAT”).    In re Komala

11   Seenithamby Rasaiah, No. A097 849 218 (B.I.A. June 7, 2013),

12   aff’g No. A097 849 218 (Immig. Ct. N.Y. City Feb. 15, 2012).

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 have reviewed

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

17   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    Because

18   Seenithamby Rasaiah has not challenged the agency’s

19   pretermission of her asylum application as untimely, we

20   address only her eligibility for withholding of removal and

21   CAT relief.

22

23

                                  2
 1   I.   Withholding of Removal

 2        A.    Change in Conditions

 3        An alien who demonstrates past persecution benefits

 4   from a presumption that her life or freedom would be

 5   threatened in the future, as required for a grant of

 6   withholding of removal.    See 8 C.F.R. § 1208.16(b)(1)(i).

 7   The government may rebut this presumption if it shows a

 8   “fundamental change in circumstances such that the

 9   applicant’s life or freedom would not be threatened” upon

10   removal.    8 C.F.R. § 1208.16(b)(1)(i)(A), (ii).   The

11   government must prove the fundamental change by a

12   preponderance of the evidence, and we review the agency’s

13   conclusion for substantial evidence.    Lecaj v. Holder, 616

14   F.3d 111, 115, 116 (2d Cir. 2010).

15        The agency neither provided a reasoned basis for

16   concluding that the government rebutted the presumption of

17   persecution, nor conducted an individualized analysis of how

18   changed conditions would affect Seenithamby Rasaiah’s

19   specific situation.    See Passi v. Mukasey, 535 F.3d 98, 102

20   (2d Cir. 2008); Niang v. Mukasey, 511 F.3d 138, 148-49 (2d

21   Cir. 2007).    The IJ found that Seenithamby Rasaiah had been

22   persecuted by the Sri Lankan army on account of both her


                                       3
 1   Tamil ethnicity, and the political opinion the army imputed

 2   to her – that she supported the LTTE.     While the IJ

 3   summarized the evidence regarding a change in conditions, he

 4   did not make any specific finding as to what fundamental

 5   change the evidence showed, or how the change was relevant

 6   to Seenithamby Rasaiah’s situation.     The IJ also concluded

 7   that there was no evidence that officials in Sri Lanka

 8   continued to look for Seenithamby Rasaiah.     However, the

 9   burden was not on Seenithamby Rasaiah to show that she would

10   be targeted, as persecution was presumed, but on the

11   government to rebut the presumption and show that her life

12   or freedom would not be threatened.     See 8 C.F.R

13   § 1208.16(b)(1)(i)(A), (ii).

14       Furthermore, the IJ’s conclusion that the government

15   met its burden to show, by a preponderance of the evidence,

16   a fundamental change in conditions is not supported by

17   substantial evidence, as the evidence shows that the Sri

18   Lankan army still subjects those it suspects of supporting

19   the LTTE to abuse and torture.     See Lecaj, 616 F.3d at 116.

20   Accordingly, the agency erred in its conclusion that the

21   government demonstrated that there had been a fundamental

22   change in Sri Lanka such that Seenithamby Rasaiah’s life or

23   freedom would not be threatened.

                                    4
 1       B.       Material Support Bar

 2       Aliens who have “engaged in a terrorist activity” are

 3   statutorily ineligible for withholding of removal under both

 4   8 U.S.C. § 1231(b)(3) and the CAT.      See 8 U.S.C.

 5   §§ 1231(b)(3)(B)(iv), 1227(a)(4)(B) (withholding under

 6   § 1231(b)(3)); 8 C.F.R. § 1208.16(d)(2) (withholding under

 7   the CAT).      Engaging in a terrorist activity includes, among

 8   other things, committing an act that “the actor knows, or

 9   reasonably should know, affords material support” to a

10   designated terrorist organization.      8 U.S.C.

11   § 1182(a)(3)(B)(iv)(VI).      We lack jurisdiction to review an

12   agency determination that an alien is subject to the

13   terrorist activity bar, 8 U.S.C. § 1158(b)(2)(D),1 but

14   retain jurisdiction to review questions of law and

15   constitutional claims, 8 U.S.C. § 1252(a)(2)(D), and review

16   those claims de novo.      See Rosario v. Holder, 627 F.3d 58,

17   61 (2d Cir. 2010).      Seenithamby Rasaiah argues that the

18   terrorist activity bar does not apply to her because the aid

19   she provided the LTTE was involuntary, and there is an


              1
            Although this statute relates to asylum
       applications, see 8 U.S.C. § 1158(b)(2)(D), we assume for
       the purposes of this order that that the jurisdictional
       bar extends to review of the denial of withholding of
       removal. In any event, Seenithamby Rasaiah avoids the
       jurisdictional bar by raising a question of law.
                                  5
 1   implied duress exception to the bar.    Her argument raises a

 2   question of law regarding the construction of the statute

 3   and thus is subject to judicial review.    See id.

 4         We recently remanded to the BIA the same issue in Ay v.

 5   Holder, 743 F.3d 317 (2d Cir. 2014).    For the reasons we

 6   stated in that decision, principally the ambiguity of the

 7   statute and lack of precedential decision by the BIA, we

 8   find it prudent to remand for the BIA to “address the matter

 9   in the first instance in light of its own expertise.”

10   Negusie v. Holder, 555 U.S. 511, 517 (2009)(internal

11   quotation marks omitted).

12   II.   CAT Relief

13         Lastly, the agency did not err in denying CAT relief.

14   Unlike the standards for asylum and withholding of removal,

15   where a finding of past persecution gives rise to a

16   presumption of future persecution, past torture does not

17   give rise to a presumption of future torture for the purpose

18   of CAT eligibility.   Instead, evidence of past torture

19   serves only as evidence relevant to the possibility of

20   future torture.    See 8 C.F.R. § 1208.16(c)(3).     While

21   Seenithamby Rasaiah’s past treatment was horrific, she has

22   not resided in Sri Lanka for over a decade, and she has not

23   presented any particularized evidence to show that anyone in
                                    6
 1   Sri Lanka seeks to torture her specifically.       See 8 C.F.R.

 2   § 1208.16(c)(3); Mu Xiang Lin v. U.S. Dep’t of Justice, 432

 3   F.3d 156, 160 (2d Cir. 2005).       As a result, substantial

 4   evidence supports the agency’s conclusion that Seenithamby

 5   Rasaiah has not established that she will be tortured by or

 6   with the acquiescence of the Sri Lankan government.       See 8

 7   C.F.R. § 1208.17; Mu Xiang Lin, 432 F.3d at 159.

 8       For the foregoing reasons, the petition for review is

 9   GRANTED, in part, with regard to Seenithamby Rasaiah’s

10   withholding application, and DENIED, in part, with regard to

11   her CAT application.   As we have completed our review, any

12   stay of removal that the Court previously granted in this

13   petition is VACATED, and any pending motion for a stay of

14   removal in this petition is DISMISSED as moot. Any pending

15   request for oral argument in this petition is DENIED in

16   accordance with Federal Rule of Appellate Procedure

17   34(a)(2), and Second Circuit Local Rule 34.1(b).

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




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