     15-1035
     Perera v. Lynch
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A089 224 988
                            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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   15th day of December, two thousand sixteen.
 5
 6   PRESENT:
 7            JON O. NEWMAN,
 8            DENNIS JACOBS,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   KODIKARA ARACHCHIGE JUDE FRANK
14   PERERA,
15            Petitioner,
16
17                     v.                                            15-1035
18                                                                   NAC
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Visuvanathan Rudrakumaran, Law
25                                       Office of Visuvanathan
26                                       Rudrakumaran, New York, New York.
27
28   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
29                                       Assistant Attorney General; Anthony
30                                       P. Nicastro, Acting Assistant
31                                       Director; Yanal H. Yousef, Trial
1                                 Attorney, Office of Immigration
2                                 Litigation, United States
3                                 Department of Justice, Washington,
4                                 D.C.
5
6        UPON DUE CONSIDERATION of this petition for review of a

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

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

9    DENIED.

10       Petitioner Kodikara Arachchige Jude Frank Perera, a native

11   and citizen of Sri Lanka, seeks review of a March 10, 2015,

12   decision of the BIA affirming a June 4, 2013, decision of an

13   Immigration Judge (“IJ”) denying Perera’s application for

14   asylum, withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).     In re Kodikara Arachchige Jude Frank

16   Perera, No. A089 224 988 (B.I.A. Mar. 10, 2015), aff’g No. A089

17   224 988 (Immig. Ct. N.Y. City June 4, 2013).       We assume the

18   parties’ familiarity with the underlying facts and procedural

19   history in this case.

20       We have reviewed both the IJ’s and the BIA’s opinions “for

21   the sake of completeness.”    Wangchuck v. DHS, 448 F.3d 524, 528

22   (2d Cir. 2006).   We review the IJ’s factual findings under the

23   substantial   evidence   standard,   upholding   those   findings

                                      2
1    “unless any reasonable adjudicator would be compelled to

2    conclude to the contrary.”    8 U.S.C. § 1252(b)(4)(B); Xiu Xia

3    Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).         We review

4    de novo questions of law and the agency’s application of law

5    to undisputed fact.   Yanqin Weng v. Holder, 562 F.3d 510, 513

6    (2d Cir. 2009).

7        1. Perera argues that the doctrines of collateral estoppel

8    and law of the case barred the IJ from reconsidering his

9    credibility on remand.   His reliance on collateral estoppel is

10   misplaced, as that doctrine applies only to relitigation of

11   issues decided by entry of a final judgment on the merits.         Gelb

12   v. Royal Globe Ins. Co., 798 F.2d 38, 44 (2d Cir. 1986).

13       The law of the case doctrine provides “that when a court

14   has ruled on an issue, that decision should generally be adhered

15   to by that court in subsequent stages in the same case . . .

16   unless cogent and compelling reasons militate otherwise.”

17   United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002)

18   (internal quotation marks and citations omitted).            Here, the

19   “cogent and compelling” reasons for reconsidering Perera’s

20   credibility were the indictment of his former counsel for filing

21   fraudulent   applications    and       Perera’s   decision   to   offer
                                        3
1    additional testimony on remand.         See Johnson v. Holder, 564

2    F.3d 95, 99 (2d Cir. 2009) (explaining that “law of the case

3    doctrine does not rigidly bind a court to its former decisions”

4    and that the “availability of new evidence” is a cogent and

5    compelling   reason    for   altering   a   prior   ruling   (internal

6    quotation marks omitted)).

7        2. Perera also argues that the BIA remand was limited to

8    determining whether the harm he suffered was on account of a

9    protected ground, and that reconsideration of his credibility

10   was therefore beyond the scope of the remand.                Perera is

11   incorrect.   “[U]nless the Board qualifies or limits the remand

12   for a specific purpose, the remand is effective for the stated

13   purpose and for consideration of any and all matters which the

14   Service officer deems appropriate in the exercise of his

15   administrative discretion.”      Matter of Patel, 16 I. & N. Dec.

16   600, 601 (BIA 1978).    Because the BIA did not limit its remand,

17   the IJ had the authority to consider Perera’s credibility.         Id.

18       3. Perera argues that the IJ evidenced bias when he asked

19   Perera if he wished to withdraw his asylum application as a

20   result of his former counsel’s indictment.             This was not

21   evidence of bias.      The IJ made clear that he provided this
                                       4
1    opportunity as part of his duty to advise Perera of the

2    consequences of filing a frivolous application.           8 U.S.C.

3    § 1158(d)(4)(A) (providing that agency must advise applicant

4    of consequences of knowingly filing a frivolous application).

5        4. Perera challenges the merits of the IJ’s adverse

6    credibility finding.      We conclude that the finding is supported

7    by substantial evidence.      The agency may, “[c]onsidering the

8    totality of the circumstances . . . base a credibility

9    determination on” inconsistencies in an applicant’s statements

10   and other record evidence “without regard to whether” those

11   inconsistencies go “to the heart of the applicant’s claim.”       8

12   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.

13   “We defer . . . to an IJ's credibility determination unless,

14   from the totality of the circumstances, it is plain that no

15   reasonable fact-finder could make such an adverse credibility

16   ruling.”   Xiu Xia Lin, 534 F.3d at 167.

17       Here, however, the inconsistencies went to the heart of the

18   claim,   including   an    inconsistency   concerning   “the   very

19   persecution from which [the petitioner] sought asylum.”        Xian

20   Tuan Ye v. DHS, 446 F.3d 289, 294-95 (2d Cir. 2006).        Perera

21   testified on remand that the Sri Lankan military broke his legs
                                       5
1    when they beat him.    The medical report he submitted, however,

2    described only bruises and a problem with nerves in his arm.

3    This inconsistency, standing alone, is sufficient to support

4    the adverse credibility determination because it concerned the

5    sole incident of harm that formed the basis of Perera’s claim.

6    Id.   The IJ was not required to credit Perera’s explanation,

7    that the report detailed the treatment, not the injuries. It

8    makes little sense that he would receive treatment for bruises,

9    but not for fractures.      Majidi v. Gonzales, 430 F.3d 77, 80 (2d

10   Cir. 2005).

11         The adverse credibility determination is reinforced by

12   Perera’s inconsistent testimony as to why he remained in Sri

13   Lanka for several months after receiving a visa to travel to

14   the United States.         He testified that he needed to secure

15   housing for his family; but he had previously testified that

16   he stayed to receive additional medical care.          The IJ was not

17   required to accept Perera’s explanation that he may have

18   forgotten to mention the need to secure housing.         Majidi, 430

19   F.3d at 80.

20         In   addition   to    these   inconsistencies,    the   adverse

21   credibility determination is supported by Perera’s lack of
                                         6
1    corroboration.     Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d

2    Cir. 2007) (“An applicant’s failure to corroborate his . . .

3    testimony may bear on credibility, because the absence of

4    corroboration    in    general        makes   an   applicant    unable    to

5    rehabilitate testimony that has already been called into

6    question.”).     As the IJ observed, Perera failed to produce

7    medical records documenting his injuries or affidavits from his

8    brother-in-law and a family friend explaining how they were able

9    to bribe the Sri Lankan military to get Perera out of detention.

10        Considering      the    inconsistencies       and    the   failure   to

11   corroborate, the “totality of the circumstances” supports the

12   adverse credibility determination.            See Xiu Xia Lin, 534 F.3d

13   at   165-66.     The        adverse    credibility       determination    is

14   dispositive of asylum, withholding of removal, and CAT relief,

15   as all three claims were based on the same factual predicate.

16   Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).

17   Accordingly, we decline to reach Perera’s arguments regarding

18   whether his claim bore a nexus to a protected ground.               INS v.

19   Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts

20   and agencies are not required to make findings on issues the

21   decision of which is unnecessary to the results they reach.”).
                                            7
1       For the foregoing reasons, the petition for review is

2   DENIED.

3                             FOR THE COURT:
4                             Catherine O=Hagan Wolfe, Clerk




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