         10-990-ag
         Farook v. Holder
                                                                                        BIA
                                                                                  Elstein, IJ
                                                                               A094 814 754
                             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 25 th day of January, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                BARRINGTON D. PARKER,
 9                REENA RAGGI,
10                       Circuit Judges.
11       _______________________________________
12
13       MOHAMED USAMA HUSSAIN FAROOK,
14                Petitioner,
15
16                          v.                                  10-990-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ______________________________________
22
23       FOR PETITIONER:               Benjamin B. Xue, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General, Civil Division; James A.
27                                     Hunolt, Senior Litigation Counsel;
28                                     Patrick J. Glen, Trial Attorney,
29                                     Office of Immigration Litigation,
30                                     United States Department of Justice,
31                                     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 in part and DISMISSED in part.

5        Petitioner Mohamed Usama Hussain Farook, a native and

6    citizen of Sri Lanka, seeks review of a February 18, 2010

7    decision of the BIA affirming the August 13, 2008 decision

8    of Immigration Judge (“IJ”) Annette S. Elstein denying his

9    application for asylum, withholding of removal, and relief

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

11   Usama Hussain Farook, No. A094 814 754 (B.I.A. Feb. 18,

12   2010), aff’g No. A094 814 754 (Immig. Ct. N.Y. City Aug. 13,

13   2008).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we review the

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

17   Yan Chen, 417 F.3d 268, 271 (2d Cir. 2005).     The applicable

18   standards of review are well-established.     See 8 U.S.C.

19   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

20   (2d Cir. 2009).




                                   2
1    I.   Asylum

2         A.   Persecution by the Police

3         Substantial evidence supports the agency’s

4    determination that any harm suffered while Farook was in

5    police custody was not on account of a protected ground.

6    See 8 U.S.C. § 1101(a)(42).   As amended by the REAL ID Act,

7    Title 8, Section 1158(b)(1)(B)(i) of the U.S. Code provides

8    that an asylum “applicant must establish that race,

9    religion, nationality, membership in a particular social

10   group, or political opinion was or will be at least one

11   central reason for persecuting the applicant.”     In its first

12   published decision discussing the “one central reason”

13   standard, the BIA held that “the protected ground . . .

14   cannot be incidental, tangential, superficial, or

15   subordinate to another reason for harm.”     Matter of J-B-N- &

16   S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007).

17        The agency reasonably found that police officers

18   questioned and beat Farook during a criminal investigation

19   into his girlfriend’s disappearance and that their question

20   about the fact that he and his girlfriend practiced

21   different religions during his interrogation did not

22   demonstrate a religious motive for the abuse he suffered.


                                   3
1    Moreover, the IJ reasonably noted that country conditions in

2    Sri Lanka reflected that general abuse of criminal suspects

3    occurs, but did not show that the Sri Lankan police

4    persecute people on account of their religion.    Thus,

5    substantial evidence supports the agency’s determination

6    that Farook’s alleged persecution by the police did not

7    establish his eligibility for asylum because he did not show

8    that his religion was one central reason for the harm he

9    suffered.    See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(B)(i).

10       B.      Persecution by the Liberation Tamil Tigers of

11               Eelam

12       As to Farook’s claimed fear of persecution by the

13   Liberation Tamil Tigers of Eelam (“LTTE”), even if there

14   were a reasonable basis for concluding that the Sri Lankan

15   government has been “unable or unwilling to control” this

16   group, Rizal v. Gonzales, 442 F.3d 84, 92 (2d Cir. 2006)

17   “we can state with confidence” that the same denial decision

18   would be made “if we were to remand,” Xiao Ji Chen v. U.S.

19   Dep't of Justice, 471 F.3d 315, 338 (2d Cir. 2006).       Indeed,

20   we take judicial notice of the fact that the LTTE were

21   defeated by the Sri Lankan army in May 2009, see U.S. Dep’t

22   of State, Sri Lanka, Country Reports on Human Rights


                                     4
1    Practices 2009 (2010), available at

2    http://www.state.gov/g/drl/rls/hrrpt/2009/sca/136093.htm

3    (last visited Nov. 3, 2010); see also Hoxhallari v.

4    Gonzales, 468 F.3d 179, 186 n.5 (2d Cir. 2006) (noting that

5    this Court has the power to “exercise independent discretion

6    to take judicial notice of any further changes in a

7    country’s politics that occurred between the time of the

8    BIA’s determination [] and our review”), and therefore the

9    LTTE is now a group that the Sri Lankan government is able

10   and willing to control.   Thus, Farook could not establish

11   his eligibility for asylum based on his claim that he has a

12   well-founded fear of future persecution at the hands of the

13   LTTE.   See Rizal, 442 F.3d at 92.

14   II.   Withholding of Removal and CAT Relief

15         Similarly, although Farook’s Notice of Appeal and brief

16   on appeal to the BIA adequately exhausted his claim for

17   withholding of removal, see 8 U.S.C. 1252(d)(1); see also

18   Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006), no

19   remand is warranted, see INS v. Orlando Ventura, 537 U.S.

20   12, 16 (2002), because that claim was based on the same

21   factual predicate as his claim for asylum and fails for the

22   same reasons discussed above, see Xiao Ji Chen, 471 F.3d at


                                   5
1    338; see also 8 U.S.C. § 1231(b)(3)(A); Matter of Acosta, 19

2    I. & N. Dec. 211, 222, 236 (BIA 1985), overruled on other

3    grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA

4    1989).

5        Finally, we lack jurisdiction to consider Farook’s

6    challenges to the IJ’s denial of his application for CAT

7    relief because he failed to exhaust those arguments before

8    the BIA.   See 8 U.S.C. 1252(d)(1); see also Karaj, 462 F.3d

9    at 119.

10       For the foregoing reasons, the petition for review is

11   DENIED in part and DISMISSED in part.    As we have completed

12   our review, any pending motion for a stay of removal in this

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

14   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
20




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