             Case: 13-12893     Date Filed: 09/18/2014   Page: 1 of 15


                                                                         [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 13-12893
                           ________________________

                            Agency No. A200-615-726


SALIPAN GAKSAKUMAN,

                                                                          Petitioner,
                                       versus


U.S. ATTORNEY GENERAL,

                                                                         Respondent.

                           ________________________

                      Petition for Review of a Decision of the
                           Board of Immigration Appeals
                            _______________________

                               (September 18, 2014)

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

      In this petition for review, we consider whether silence in a report of the

Department of State about torture of asylum seekers on return to an alien’s home

country may rebut affirmative evidence of that torture presented by the alien.
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Salipan Gaksakuman, an alien seeking asylum, withholding of removal, and relief

under the Convention Against Torture, asks us to review not only his most recent

order of removal, but also an earlier order. Because we conclude that the earlier

order entered by the Board was final, that Gaksakuman declined to pursue a timely

petition for its review, and that Gaksakuman, in his second appeal to the Board,

failed to exhaust his earlier arguments, we hold that we lack jurisdiction to review

the earlier order. We instead review only the most recent order, in which the Board

denied Gaksakuman relief because it found he failed to establish that he would

suffer persecution as a “failed asylum seeker” if returned to Sri Lanka.

Gaksakuman presented evidence that Sri Lanka detains and tortures failed asylum

seekers. But the Board ruled that this evidence was insufficient because the

Country Reports on Human Rights issued by the Department of State were silent

about the torture of failed asylum seekers in Sri Lanka. Because we conclude that

the silence of a State Department report cannot, without more, rebut the affirmative

evidence Gaksakuman presented, we vacate the Board’s order and remand for

further proceedings.

                               I. BACKGROUND
      Salipan Gaksakuman is a native of Sri Lanka. Gaksakuman asserts that he is

a Hindu priest of Tamil ethnicity. He alleges that beginning in 2009 he suffered

various threats, beatings, extortion, and persecution at the hands of the Eelam


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People’s Democratic Party and the Sri Lankan army. Gaksakuman’s father

eventually sent his son out of the country to escape the violence by allegedly

bribing officials to secure his son’s exit.

      In December 2010, Gaksakuman arrived in Miami, Florida, where the

Department of Homeland Security ordered him removed because he was present in

the United States without having been admitted or paroled. 8 U.S.C.

§1182(a)(6)(A)(i). Gaksakuman conceded his removability, but filed an application

for asylum, 8 U.S.C. § 1158, for withholding of removal, 8 C.F.R. § 208.16(b), and

for relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, 8 C.F.R. § 208.16(c).

      At the hearing before an immigration judge, Gaksakuman argued that as a

Tamil, the Eelam People’s Democratic Party and the Sri Lankan army, which

targeted Tamil families, threatened him with persecution. The immigration judge

refused to credit Gaksakuman’s testimony about his fear of future persecution and

ruled that he had failed to establish that he would suffer persecution based on his

Tamil ethnicity.

      Gaksakuman appealed to the Board of Immigration Appeals. The Board

deferred to the findings of the immigration judge and dismissed the appeal in May

2012. Gaksakuman then filed a timely petition in our Court to review the order of




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the Board. But Gaksakuman later filed a motion to dismiss that petition before our

Court, which we granted.

      Before he moved to dismiss his petition in our Court, Gaksakuman also filed

an untimely petition to reopen his case with the Board. In his motion to reopen,

Gaksakuman did not renew his earlier arguments, but instead argued that the

immigration judge and the Board failed to address his argument that he would be

persecuted upon his return to Sri Lanka based on his status as a “failed asylum

seeker.” Gaksakuman submitted new evidence to support this claim. The Board

described Gaksakuman’s motion as “in the nature of a motion seeking

reconsideration” and sua sponte granted the motion. The Board remanded the

record to the immigration judge to consider Gaksakuman’s new argument and the

evidence that he submitted to support it.

      On remand, the immigration judge considered Gaksakuman’s evidence

tending to prove that torture was a possibility for returning, failed asylum seekers.

A report by the United Kingdom Border Agency collected sources indicating that

torture and arbitrary detainment are rampant in Sri Lanka. The report indicated that

there was a “persistent pattern of torture,” including against those individuals

perceived to associate with a group called the Liberation Tigers of Tamil Ealam.

“Those at particular risk of torture include Tamils who have an actual or perceived

association with the Liberation Tigers.” Fourteen cases of torture were reported by

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those who had traveled abroad prior to their detainment, including five who had

traveled for education, three who had traveled for family reasons, and four who

had sought refuge outside of Sri Lanka. A news article reported that a court in

Britain had ordered a deportation of Tamils halted due to concerns they would be

tortured on their return.

      A Human Rights Watch news release reported that some failed Tamil

asylum seekers were subjected to arbitrary arrest and torture upon their return,

particularly if they were associated with the Liberation Tigers. An Amnesty

International report stated that the Sri Lankan government had a “history of

arresting and detaining rejected Sri Lankan asylum seekers upon their return and

[the organization was] aware of cases of people being tortured.” A report by

Freedom from Torture stated that “Sri Lankan Tamils who in the past had an actual

or perceived association at any level with the [Liberation Tigers] but were able to

leave Sri Lanka safely now face risk of torture on return.”

      Gaksakuman also presented a news report tending to prove that, regardless

of any actual affiliation with the Liberation Tigers, Sri Lankan officials detained

and tortured failed asylum seekers as presumed traitors. An official of the Catholic

Church’s Edmund Rice Centre was quoted as saying, “The difficulty here is that

there is a view in Sri Lanka that anybody who left the country through an

unauthorised manner, of unauthorised means . . . must therefore be [a] traitor[].”

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The official stated that, in the eyes of the Sri Lankan government, all who fled are

“branded” as sympathizers of the Liberation Tigers, and “consequently sending

them back is sending them back into danger.” The Centre found that of the 11

people removed to Sri Lanka from Australia, all of them had been arrested at the

airport. Some were “bashed [and] assaulted,” and some had permanent damage to

hearing or eyesight. If they are “Sinhalese people who left,” the “assumption” was

that they were Liberation Tiger sympathizers and traitors.

      Gaksakuman’s evidence failed to persuade the immigration judge. The

immigration judge stated that, although Gaksakuman had “submitted documents . .

. that suggest[ed] that failed Asylum seekers are being tortured in Sri Lanka, . . .

the [Department of State] Human Rights Reports [did] not mention[] failed

Asylum seekers being tortured.” The immigration judge ruled that the silence of

the State Department reports rebutted Gaksakuman’s evidence, and the

immigration judge denied Gaksakuman’s application. Gaksakuman appealed to the

Board for review, but the Board adopted the order of the immigration judge and

dismissed the appeal.

      Gaksakuman then timely filed another petition for review in our Court.

Gaksakuman also filed an emergency motion for a stay of removal, which we

granted. Gaksakuman’s petition asks us to review not only the 2013 order denying




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relief, but also the arguments the Board rejected in its 2012 order affirming the

immigration judge’s first order of removal.

                          II. STANDARD OF REVIEW
      We review questions concerning our jurisdiction de novo. Ortega v. U.S.

Att’y Gen., 416 F.3d 1348, 1350 (11th Cir. 2005). We are limited to reviewing

“final order[s] of removal,” that have been timely filed. Balogun v. U.S. Att’y Gen.,

304 F.3d 1303, 1307 (11th Cir. 2002); 8 U.S.C. § 1252(b)(1). We must affirm the

order of the agency if it has “given reasoned consideration” to the application, “and

made adequate findings.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir.

2006) (internal quotation marks omitted). When the Board fails to give “reasoned

consideration” or to make “adequate findings,” we remand for further proceedings

because we are “unable to review” the evidence in the first instance. Mezvrishvili v.

U.S. Att’y Gen., 467 F.3d 1292, 1295 (11th Cir. 2006) (quoting Tan, 446 F.3d at

1377). We review the order of the Board only, but if it expressly adopts the

reasoning of the immigration judge, we will review that order as well. Id.

                                 III. DISCUSSION
      Our discussion proceeds in two parts. First, we explain that we lack

jurisdiction to review the 2012 order of the Board. Second, we explain that in its

2013 order the Board failed to give reasoned consideration to Gaksakuman’s

application.


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          A. We Lack Jurisdiction to Review the 2012 Order of the Board.

      Neither party raised the issue of jurisdiction in its briefing, but it is “well

settled that a federal court is obligated to inquire into [its] subject matter

jurisdiction sua sponte.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410

(11th Cir. 1999). In this petition, Gaksakuman asks us to review both the 2012 and

2013 orders of removal. There is no question as to our jurisdiction over the 2013

order, but to seek judicial review of the 2012 order, Gaksakuman must have filed a

petition with our Court within 30 days of the issuance of that order. 8 U.S.C. §

1252(b)(1). Gaksakuman did so here, but then moved to dismiss his petition to our

Court, which we granted. The 30-day window has now long since passed.

Gaksakuman’s counsel contended at oral argument that “when the case was

reopened [by the Board] there was no final order,” and we may review all of his

arguments, but we disagree.

      As an initial matter, there is some question as to what the Board actually

granted after Gaksakuman moved to reopen the proceedings. The Board repeatedly

called its order a grant of a motion for reconsideration. But the Board remanded the

record to the immigration judge to consider Gaksakuman’s new argument and

evidence that he would suffer persecution as a failed asylum seeker. This remand

tracks the ordinary procedure for a reopening. 8 C.F.R. § 1003.2(i). Nevertheless,




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whether the Board ordered a reopening or a reconsideration, we lack jurisdiction

over the 2012 order.

      If the 2013 order was the result of a reconsideration, our precedent holds that

the 2012 order remains a final order and we lack jurisdiction to review it. In

Jaggernauth v. United States Attorney General, we decided that an order resulting

from a motion to reconsider does not, lacking more, vacate or render the original

order non-final. 432 F.3d 1346 (11th Cir. 2005). In Jaggernauth, the petitioner

filed a timely petition in our Court for review of a final order of removal by the

Board. Id. at 1348–49. The petitioner continued to prosecute that petition, but also

moved the Board to reconsider its order of removal. Id. The Board granted the

motion and again ordered the petitioner’s removal. Id. at 1349–50. Then in our

Court, the Attorney General moved to dismiss the petition to review the first order

on the ground it was no longer final because the Board had implicitly vacated it

when the Board granted reconsideration. Id. at 1348. We disagreed. “We do not

believe the [Board] intended its second order to . . . change the substance of the

original order. The [order on reconsideration] explicitly upholds the [original

order], . . . suggesting the [Board’s] intent was to leave the [original] order, as well

as the reasoning underlying the order, intact and unmodified.” Id. at 1351.

Accordingly we held that we retained jurisdiction over the first order because it

remained final. Id. at 1352. Likewise, the 2013 order of removal in Gaksakuman’s

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petition did not modify or alter the 2012 order in any way. The Board initiated the

additional proceeding solely to determine the merits of Gaksakuman’s new

argument, based on his status as a failed asylum seeker. The Board left the 2012

order “intact and unmodified.” Id. at 1351. So if the Board granted a motion to

reconsider, Jaggernauth forecloses our review of the earlier order.

      If the Board instead reopened the proceeding, we still lack jurisdiction

because Gaksakuman did not renew his original arguments in his motion to reopen.

The Board granted Gaksakuman’s motion only to allow consideration of his new

argument that he would be subject to persecution as a “failed asylum seeker” on

return to Sri Lanka. And the immigration judge considered only that new

argument. On appeal from the order denying Gaksakuman’s application, the Board

ruled on only his new argument. To be sure, during that appeal to the Board, after

the immigration judge had rejected Gaksakuman’s new argument, Gaksakuman

attempted to challenge parts of the 2012 order in his briefing. But that attempt

came too late. Gaksakuman failed to exhaust the arguments he now seeks to raise

and we lack jurisdiction to consider them. See 8 U.S.C. 1252(d)(1) (“A court may

review a final order of removal only if . . . the alien has exhausted all

administrative remedies available.”); see also Amaya-Artunduaga v. U.S. Atty.

Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (explaining that appeals court lacks

jurisdiction to consider an argument not raised before the Board).

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B. The Board Failed to Give Reasoned Consideration to Gaksakuman’s Argument
         That He Would Suffer Persecution as a Failed Asylum Seeker.

      Gaksakuman argues that the Board erred when it denied his application for

asylum, withholding of removal, and relief under the Convention based on his

membership in the social group of “failed asylum seekers.” The Immigration

Clinic of the University of Miami School of Law, as amicus curiae, argues too that

the Board failed to give Gaksakuman’s application reasoned consideration. The

Board adopted the reasoning of the immigration judge’s order on reconsideration,

so we review both orders. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001).

      We agree with Gaksakuman and the persuasive brief of the amicus curiae

that the Board failed to give “reasoned consideration” to Gaksakuman’s

application. Mezvrishvili, 467 F.3d at 1295 (quoting Tan, 446 F.3d at 1375). The

Board adopted the reasoning that the absence of evidence in reports of the State

Department somehow rebutted Gaksakuman’s evidence of torture. That logic is

flawed.

      Gaksakuman submitted evidence in support of his allegation that, as a

“failed asylum seeker,” he would be subject to torture upon his return to Sri Lanka.

The immigration judge found most of the evidence credible, including reports from

non-profit organizations and newspapers. The evidence tended to prove that

officials in Sri Lanka tortured at least some failed asylum seekers, particularly if
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they had an actual or perceived association with the Liberation Tigers. A report by

the United Kingdom Border Agency established that failed asylum seekers

returning to Sri Lanka are subject to torture where officials believe the returnee has

ties to the Liberation Tigers. A Human Rights Watch news release reported that

some failed Tamil asylum seekers were subjected to arbitrary arrest and torture

upon their return, particularly if they were associated with the Liberation Tigers.

An Amnesty International report stated that the Sri Lankan government had a

“history of arresting and detaining rejected Sri Lankan asylum seekers upon their

return and [the organization was] aware of cases of people being tortured.”

      Gaksakuman also presented evidence tending to prove that there was a risk

of detainment and torture regardless of whether the failed asylum seeker was

actually a Tamil with ties to the Liberation Tigers. An official of the Catholic

Church’s Edmund Rice Centre was quoted in one document as saying, “The

difficulty here is that there is a view in Sri Lanka that anybody who left the country

through an unauthorised manner, of unauthorised means . . . must therefore be [a]

traitor[].” The official stated that, in the eyes of the Sri Lankan government, all

who fled are branded as sympathizers of the Liberation Tigers, and “consequently

sending them back is sending them back into danger.” If the returnee was

Sinhalese, the assumption was that they were a “traitor.”




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      The immigration judge denied Gaksakuman’s application based on the

silence of State Department reports without discrediting the evidence that

Gaksakuman presented or giving more weight to contrary evidence. The

immigration judge explained that he was entitled to “rely heavily” on State

Department reports and concluded that, “[a]lthough [Gaksakuman] has submitted

documents and supporting materials that suggest that failed Asylum seekers are

being tortured in Sri Lanka,” the silence of the State Department reports “negates

his claim.” We have recognized that an immigration judge is “entitled to rely

heavily on” State Department reports, Reyes–Sanchez v. U.S. Att'y Gen., 369 F.3d

1239, 1243 (11th Cir. 2004), but those reports are reliable only to the extent they

“comment upon or are relevant to the highly specific question[s]” raised by an

alien, Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009) (internal

quotation marks omitted).

      State Department reports cannot rebut an applicant’s evidence when those

reports do not “comment upon” the individual’s application. State Department

reports do not purport to be exhaustive, and the 2011 report states in its

introduction that it “do[es] not attempt to catalog every incidence, however

egregious, of a particular type of human rights abuse in a country.” And if

anything, the reports in this record corroborate Gaksakuman’s arguments. The

reports state that the Sri Lankan government and its agents commit “arbitrary and

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unlawful killings, . . . torture[] and abuse[ of] detainees, . . . and arbitrar[y]

arrest[s].” The government of Sri Lanka “continue[s] to search for and detain

persons it suspected of being [Liberation Tigers] sympathizers.” The government

“infringed on . . . rights[] particularly when conducting . . . operations in Tamil

neighborhoods,” and a “disproportionate number of victims of human rights

violations were Tamils.”

       The Board added little to the reasoning of the immigration judge, except that

it found Gaksakuman had not established he was a member of the group “failed

asylum seekers” because he failed to establish he was a “Tamil[] who had an actual

or perceived association with the Liberation Tigers.” But Gaksakuman’s status as a

Tamil was never questioned by the immigration judge. And even if Gaksakuman

failed to prove actual association with the Liberation Tigers, his evidence tended to

prove that any Sinhalese who sought asylum would be perceived as affiliated with

the Liberation Tigers regardless of actual association. For instance, the official of

the Edmund Rice Center stated, “[W]hile [Australia’s Federal Government] is wise

to urge caution in returning asylum seekers connected to the [Liberation Tigers], in

the eyes of the Sri Lankan government all those who fled are branded the same

way. . . . [I]f they are Sinhalese people who left, then they must therefore be

traitors.”




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      We vacate the 2013 order. The Board failed to give “reasoned

consideration” to Gaksakuman’s application. We remand for further proceedings

because we are “unable to review” the evidence in the first instance to determine

whether Gaksakuman is likely to suffer torture if he returns to Sri Lanka as a failed

asylum seeker. Mezvrishvili, 467 F.3d at 1295 (quoting Tan, 446 F.3d at 1375).

                                IV. CONCLUSION
      We GRANT the petition for review, VACATE the order of the Board, and

REMAND for further proceedings.




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