         10-3882-ag
         Kathaluwa Weligamage v. Holder
                                                                                       BIA
                                                                                  Abrams, IJ
                                                                               A088 526 180
                               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 May, two thousand twelve.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                ROBERT D. SACK,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _______________________________________
12
13       CHANDIMA ROSHAN DE SILV KATHALUWA
14       WELIGAMAGE,
15                Petitioner,
16
17                          v.                                  10-3882-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                   Benjamin B. Xue, Esq., New York, New
25                                         York.
26
27       FOR RESPONDENT:                   Tony West, Assistant Attorney
28                                         General; Ada E. Bosque, Senior
29                                         Litigation Counsel; Jem C. Sponzo,
 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   decision of the Board of Immigration Appeals (“BIA”), it is

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

 9   review is DENIED.

10       Chandima Roshan De Silv Kathaluwa Weligamage, native

11   and citizen of Sri Lanka, seeks review of an August 31, 2010

12   decision of the BIA affirming the April 6, 2009 decision of

13   Immigration Judge (“IJ”) Steven R. Abrams denying his

14   application for asylum, withholding of removal, and relief

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

16   Chandima Roshan De Silv Kathaluwa Weligamage, No. A088 526

17   180 (B.I.A. Aug. 31, 2010), aff’g No. A088 526 180 (Immig.

18   Ct. N.Y.C. Apr. 6, 2009).    We assume the parties’

19   familiarity with the underlying facts and procedural history

20   of this case.

21       Under the circumstances of this case, we review only

22   the BIA’s decision because, unlike the IJ, the BIA assumed

23   Weligamage to be credible.    See Yahong Zheng v. Gonzales,

24   409 F.3d 804, 809 (2d Cir. 2005).    The applicable standards

25   of review are well-established.     See 8 U.S.C. §

                                    2
 1   1252(b)(4)(B) (“[T]he administrative findings of fact are

 2   conclusive unless any reasonable adjudicator would be

 3   compelled to conclude to the contrary.”); Aliyev v. Mukasey,

 4   549 F.3d 111, 115 (2d Cir. 2008) (reviewing agency’s factual

 5   findings under substantial evidence standard).

 6       The BIA has defined persecution as “a threat to the

 7   life or freedom of, or the infliction of suffering or harm

 8   upon, those who differ in a way regarded as offensive.”

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

10   overruled on other grounds by Matter of Mogharrabi, 19 I. &

11   N. Dec. 439 (BIA 1987); accord Baba v. Holder, 569 F.3d 79,

12   85 (2d Cir. 2009).    The harm or suffering must be inflicted

13   in order to punish the individual for possessing a belief or

14   characteristic the persecutor seeks to overcome, and

15   inflicted either by the government or by persons or an

16   organization that the government is unable or unwilling to

17   control.     See id. at 222; Rizal v. Gonzales, 442 F.3d 84, 92

18   (2d Cir. 2006).    “[A]n IJ, weighing the evidence to

19   determine if the alien has met his burden, may rely on the

20   absence of corroborating evidence adduced by an otherwise

21   credible applicant unless such evidence cannot be reasonably

22   obtained.”     Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.

23   2009); see 8 U.S.C. § 1158(b)(1)(B)(ii).

                                     3
 1       The agency reasonably found that Weligamage’s testimony

 2   alone, even if credible, was insufficiently persuasive or

 3   detailed to support his assertion that the harm he suffered

 4   and feared in Sri Lanka was inflicted by members of the

 5   United People’s Freedom Alliance National Party (“UPF”)

 6   because of his membership in and canvassing for the United

 7   National Party (“UNP”). See Chuilu Liu, 575 F.3d at 196–97.

 8   Moreover, as the agency found, the country conditions

 9   evidence in the record did not corroborate Weligamage’s

10   assertion that he was targeted on account of his membership

11   in the UNP or that similarly situated individuals are

12   targeted by members of the UPF.   See Diallo v. INS, 232 F.3d

13   279, 288 (2d Cir. 2000) (stating that corroboration

14   “typically includes both evidence of general country

15   conditions and evidence that substantiates the applicant’s

16   particular claims”).

17       Moreover, although the agency overlooked an affidavit

18   submitted by a friend of Weligamage at whose house

19   Weligamage hid on two occasions, remand is unnecessary in

20   this situation because a review of that affidavit reveals

21   that it contains only the friend’s account of Weligamage’s

22   subjective understanding of the situation, and no extrinsic

23   evidence connecting the UPF to the attacks Weligamage

                                  4
 1   suffered.    See Manzur v. U.S. Dep’t of Homeland Sec., 494

 2   F.3d 281, 289 (2d Cir. 2007) (“This Court will decline a

 3   remand as futile if we can confidently predict that the

 4   agency would reach the same decision absent the errors that

 5   were made.” (internal quotation marks and citations

 6   omitted)).

 7       In light of the above, the agency reasonably determined

 8   that Weligamage failed to demonstrate either past

 9   persecution or a well-founded fear of future persecution in

10   Sri Lanka.   See 8 C.F.R. § 1208.13(b) (setting forth bases

11   for establishing eligibility for asylum).   Additionally, the

12   agency did not err in questioning the objective

13   reasonableness of Weligamage’s claimed fear of persecution

14   in light of the fact that his father, who was also involved

15   with the UNP, and sisters remain unharmed in Sri Lanka.       See

16   Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

17   Accordingly, we find no error in the agency’s determination

18   that Weligamage failed to meet his burden of proof as to his

19   claims for asylum and withholding of removal.     See 8 U.S.C.

20   § 1158(b)(1)(B)(ii); 8 U.S.C. § 1231(b)(3)(C); see also

21   Chuilu Liu, 575 F.3d at 198–99.

22       Finally, as Weligamage failed to demonstrate a

23   likelihood of being persecuted, the agency did not err in
                                    5
 1   finding that he failed to establish his eligibility for CAT

 2   relief, where his claims were based on the same factual

 3   predicate and supported by the same evidence.    See Paul v.

 4   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16




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