         10-3417-ag
         Gammeddegoda Liyanage v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A088 775 709
                                                                               A088 775 710
                               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 30th day of November, two thousand eleven.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                    Circuit Judges.
11       _____________________________________
12
13       SAMPATH GAMMEDDEGODA LIYANAGE, NIMMI
14       IROSHANI DEL SI NANAYAKKARA PALLAGE,
15                Petitioners,
16
17                         v.                                   10-3417-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; Douglas E. Ginsburg,
 1                           Assistant Director; Katherine A.
 2                           Smith, Trial Attorney, Office of
 3                           Immigration Litigation, United
 4                           States Department of Justice,
 5                           Washington, D.C.
 6
 7       UPON DUE CONSIDERATION of this petition for review of a

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

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

10   is DENIED.

11       Petitioners Sampath Gammeddegoda Liyanage and Nimmi

12   Iroshani Del Si Nanayakkara Pallage, natives and citizens of

13   Sri Lanka, seek review of a July 27, 2010 order of the BIA,

14   affirming the September 22, 2008, decision of Immigration

15   Judge (“IJ”) Sandy K. Hom, which denied their applications

16   for asylum, withholding of removal, and relief under the

17   Convention Against Torture (“CAT”).    In re Sampath

18   Gammeddegoda Liyanage, Nimmi Iroshani Del Si Nanayakkara

19   Pallage, Nos. A088 775 709/710 (B.I.A. July 27, 2010), aff’g

20   Nos. A088 775 709/710 (Immig. Ct. N.Y. City Sep. 22, 2008).

21   We assume the parties’ familiarity with the underlying facts

22   and procedural history in this case.

23       Under the circumstances of this case, we have reviewed

24   both the IJ’s and the BIA’s opinions “for the sake of

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

26   2008).   The applicable standards of review are well-

                                   2
 1   established.   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

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

 3       After finding that Petitioners failed to establish past

 4   persecution, the agency reasonably determined that

 5   Petitioners’ fear of future persecution from the Liberation

 6   Tigers of Tamil Eelam ("LTTE") lacked a sufficient nexus to

 7   a statutorily protected ground.       See 8 U.S.C.

 8   §§ 1158(b)(1)(B)(i), 1231(b)(3)(A).      Although Petitioners

 9   argue that their prior abduction was revenge for Nanayakkara

10   Pallage's father's arrest of LTTE members, they do not

11   challenge the agency’s finding that the LTTE’s actions did

12   not amount to past persecution.      Moreover, based on

13   Gammeddegoda Liyanage's testimony that the LTTE was

14   interested in him to acquire dynamite from his rock

15   quarrying business, the agency reasonably determined that

16   the LTTE’s future contact and threats were not related to a

17   statutorily protected ground.       See INS v. Elias-Zacarias,

18   502 U.S. 478, 482-83 (1992) (holding that the desire of a

19   guerrilla movement to "fill their ranks in order to carry on

20   their war against the government and pursue their political

21   goals . . . does not render the forced recruitment

22   ‘persecution on account of . . . political opinion'")

23   (internal citations omitted)).

                                     3
 1       The agency’s determination that Petitioners failed to

 2   establish a well-founded fear of future persecution from the

 3   Sri Lankan army is also supported by substantial evidence.

 4   See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.

 5   2005).   Gammeddegoda Liyanage testified that he had not

 6   heard the army had been looking for him since February 2007

 7   and Nanayakkara Pallage testified that the army never made

 8   threats as a result of Gammeddegoda Liyanage's refusal to

 9   cooperate against the LTTE.   Although Gammeddegoda Liyanage

10   testified that the army falsely suspected that he illegally

11   provided dynamite to the LTTE, or was planning to do so, he

12   also testified that his business partner, who signed for the

13   dynamite, had been questioned and released by the army and

14   was in the process of restarting their rock quarrying

15   business.   Under these circumstances,   the agency's finding

16   that Petitioners failed to establish a well-founded fear of

17   future persecution at the hands of the Sri Lankan army was

18   supported by substantial evidence, as it cannot be said that

19   "any reasonable adjudicator would be compelled to conclude

20   to the contrary."   8 U.S.C. § 1252(b)(4)(B); see Jian Xing

21   Huang, 421 F.3d at 129.

22



                                   4
 1       In addition, Petitioners’ contention that the agency

 2   failed to consider corroborative affidavits showing a well-

 3   founded fear of persecution is without merit.     Although the

 4   agency did not specifically refer to these documents,

 5   because the agency's denial of relief was not based on a

 6   lack of corroboration or credibility, the record does not

 7   compellingly suggest that the agency failed to consider the

 8   evidence.     See Xiao Ji Chen v. U.S. Dep't of Justice, 471

 9   F.3d 315, 337 n.17 (2d Cir. 2006).     Indeed, nothing in

10   Petitioners' cited evidence contradicts Gammeddegoda

11   Liyanage's own testimony that the army has not sought his

12   whereabouts since February 2007, or the agency's finding

13   that the LTTE's conduct was not motivated by statutorily

14   protected ground.     Accordingly, the agency did not err in

15   denying Petitioners' applications for asylum and withholding

16   of removal.     See id.

17       Lastly, in denying CAT relief, the agency reasonably

18   relied on Petitioners’ failure to demonstrate that they

19   would be tortured with the acquiescence of a public

20   official.     See 8 C.F.R. § 1208.18(a)(7).   The agency noted

21   that the Sri Lankan government took affirmative actions to

22   combat the LTTE as evidenced in Petitioners’ claims, but

23   based its decision on Gammeddegoda Liyanage’s uncontradicted
                                     5
 1   testimony that neither he nor any member of his family had

 2   ever been arrested or physically mistreated by the

 3   government of Sri Lanka.   Under these circumstances, the

 4   agency did not err in determining that the Petitioners

 5   failed to demonstrate that they would more likely than not

 6   be tortured upon removal to Sri Lanka.    See 8 C.F.R. §

 7   1208.16(c)(2); Yan Yan Lin v. Holder, 584 F.3d 75, 82 (2d

 8   Cir. 2009).

 9       For the foregoing reasons, the petition for review is

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

11   removal that the Court previously granted in this petition

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

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

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

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




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