    16-1464
    Doe v. Sessions
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A205 298 083
                           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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    26th day of July, two thousand seventeen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    JOHN DOE, AKA SUVENDRAN
    KANAPATHIPILLAI,
                  Petitioner,

                      v.                                             16-1464
                                                                     NAC
    JEFFERSON B. SESSIONS III,
    UNITED STATES ATTORNEY GENERAL,
                  Respondent.
    _____________________________________

    FOR PETITIONER:                      Theodore N. Cox, New York, NY.

    FOR RESPONDENT:                      Chad A. Readler, Acting Assistant
                                         Attorney General; Russell J.E.
                                         Verby, Senior Litigation Counsel;
                                         John D. Williams, Trial Attorney,
                            Office of Immigration Litigation,
                            United States Department of Justice,
                            Washington, DC.


    UPON DUE CONSIDERATION of this petition for review of a

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

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

DENIED.

    Petitioner Suvendran Kanapathipillai, a native and citizen

of Sri Lanka, seeks review of an April 27, 2016, decision of

the BIA affirming a July 24, 2014, decision of an Immigration

Judge (“IJ”) denying Kanapathipillai’s application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).   In re Suvendran Kanapathipillai, No. A205 298

083 (B.I.A. Apr. 27, 2016), aff’g No. A205 298 083 (Immig. Ct.

N.Y. City July 24, 2014).   We assume the parties’ familiarity

with the underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed the

decision of the IJ as supplemented by the BIA.      Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).      The applicable

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

§ 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66

                               2
(2d Cir. 2008); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d

Cir. 2009).

  I.     Adverse Credibility Determination

       For asylum applications like Kanapathipillai’s governed by

the REAL ID Act, the agency may “[c]onsidering the totality of

the     circumstances,”      base     a     credibility      finding    on

inconsistencies in an asylum applicant’s statements and other

record evidence with or “without regard to whether” those

inconsistencies go “to the heart of the applicant’s claim.”

8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia Lin, 534 F.3d

at 163-64.      For the reasons that follow, we conclude that

substantial evidence supports the agency’s determination that

Kanapathipillai was not credible.

       In reaching its decision, the agency properly relied on two

types of material inconsistencies: (1) inconsistencies about

why the army targeted Kanapathipillai, and (2) inconsistencies

about    the   dates   of   the   alleged     persecution.      8   U.S.C.

§ 1158(b)(1)(B)(iii).             Regarding     the   first     type   of

inconsistency, Kanapathipillai offered different responses for

why the government targeted him, ranging from a lack of any

knowledge to the army’s belief that he was a member of the
                                     3
Liberation Tigers of Tamil Eelam (“LTTE”).                Kanapathipillai

contends that the IJ mischaracterized the evidence and should

have credited his explanations.                But the record reflects

evolving statements and the IJ was not required to accept

Kanapathipillai’s various explanations.               Majidi v. Gonzales,

430 F.3d 77, 80-81 (2d Cir. 2005).                  Moreover, because the

agency’s interpretation is grounded in the record, we cannot

find to the contrary.   See Siewe v. Gonzales, 480 F.3d 160, 168

(2d Cir. 2007) (“[R]ecord support for a contrary inference—even

one more plausible or natural—does not suggest error.”).

    Regarding the second type of inconsistency, the agency

reasonably relied on Kanapathipillai’s inconsistent dates for

when the army detained him and his father.               The IJ noted that

Kanapathipillai testified that his first incident with the army

occurred in January 2012 and later testified that it occurred

in the last month of that year. The IJ also noted that

Kanapathipillai testified that his father was arrested in the

first month of 2011, but his written statement says that the

father’s   arrest   occurred   in       the    twelfth    month   of   2011.

Kanapathipillai     contends   that           the   IJ   exaggerated     the

inconsistencies and should have credited his explanations, such
                                    4
as confusion and nervousness.           But the inconsistencies were

apparent and Kanapathipillai’s explanations do not compel a

different conclusion.         Majidi, 430 F.3d at 80-81.

       As the agency observed, Kanapathipillai also failed to

rehabilitate his testimony with corroborating evidence.                See

Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

(explaining that “failure to corroborate . . . testimony may

bear on credibility[] because the absence of corroboration in

general makes an applicant unable to rehabilitate testimony

that has already been called into question”).            He alleged that

the army interrogated his brother in January 2014, but his

mother’s letter omitted that information and he did not provide

a letter from his brother.       See Xiu Xia Lin, 543 F.3d at 166-67

& n.3 (concluding that omissions from corroborating documents

such    as   letters   from    family    members   are    the   same   as

inconsistencies and may be relied on as part of an adverse

credibility determination).

       Kanapathipillai’s final challenge to the agency’s adverse

credibility    determination—that       the   IJ   overlooked   medical

evidence of his parents’ injuries that supported his story—also

fails.    “[W]e presume that an IJ has taken into account all of
                                    5
the evidence before [her], unless the record compellingly

suggests otherwise.”    Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 336 n.17 (2d Cir. 2006).      Here, the IJ stated that she

“considered the entire record including all of the documents

whether or not they are specifically mentioned,” and nothing

in the record suggests otherwise.           Moreover, as the BIA

reasoned, evidence of his parents’ injuries cannot cure the

inconsistencies addressed above, which are sufficient to

support the IJ’s adverse credibility determination.

  II. Future Persecution as a Returning Asylum Seeker

    Kanapathipillai asserted an independent claim that he

would be persecuted for having left Sri Lanka to seek asylum

abroad.     To   be   eligible   for     asylum   on   this   basis,

Kanapathipillai had to establish that the Sri Lankan government

had a pattern or practice of persecuting returning asylum

seekers and would know that he falls into that category.         See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 142-43 (2d Cir. 2008);

Kyaw Zwar Tun v. U.S. INS, 445 F.3d 554, 564 (2d Cir. 2006).

We need not reach the agency’s finding that Kanapathipillai

failed to show that the government would discover his status

because the agency reasonably concluded that Kanapathipillai
                                 6
failed to show targeting of asylum seekers that was “so systemic

or   pervasive      as   to   amount    to   a   pattern   or   practice   of

persecution.”       Mufied v. Mukasey, 508 F.3d 88, 92 (2d Cir. 2007)

(internal quotation marks omitted).

       The bulk of the country conditions evidence was outdated,

and Kanapathipillai did not submit any evidence showing that

prior conditions persisted.              Particularly, the most recent

evidence identifies only two individuals who were returned to

Sri Lanka and their circumstances are distinguishable: both men

fled Sri Lanka with a large group, and only the organizer of

the trip was alleged to have suffered physical harm on return.

Moreover, other evidence reflected that detentions generally

lasted only a few days to two weeks and related to charges of

illegally departing Sri Lanka, an offense punishable by a fine.

Qun Yang v. McElroy, 277 F.3d 158, 163 n.5 (2d Cir. 2002)

(“Possible persecution for violation of a statute applicable

to all citizens would not standing alone constitute a valid

basis for asylum.”); Saleh v. U.S. Dep’t of Justice, 962 F.2d

234,    239   (2d   Cir.      1992)    (same).     Given   this   evidence,

Kanapathipillai has not shown “systemic and pervasive” harm

that rises to the level of persecution.             Siewe, 480 F.3d at 167
                                        7
(“Decisions as to . . . which of competing inferences to draw

are entirely within the province of the trier of fact.”

(internal quotation marks omitted)).              Additionally, some

evidence links detention to suspected LTTE support, a ground

on   which   Kanapathipillai      was   found   incredible.        Because

Kanapathipillai’s claim for asylum, withholding of removal, and

CAT relief are all based on the same factual predicate, the

adverse credibility determination and pattern or practice

findings are dispositive.         Paul v. Gonzales, 444 F.3d 148,

155-57 (2d Cir. 2006).

       Finally, Kanapathipillai argues that the BIA failed to

consider his claim that Sri Lanka persecutes all Tamils, but

remand is not necessary because he was not credible regarding

his past harm or fear of future harm as a Tamil or suspected

LTTE member. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d

Cir.    2004)   (holding   that    “well-founded     fear     of   future

persecution . . . requires that the alien present credible

testimony that he subjectively fears persecution and establish

that his fear is objectively reasonable”).           Moreover, he did

not argue before the IJ that there is a pattern or practice of

persecution of Tamils generally.        See Prabhudial v. Holder, 780
                                    8
F.3d 553, 555 (2d Cir. 2015) (“The BIA may refuse to consider

an issue that could have been, but was not, raised before an

IJ.”).

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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