    12-3057
    Pocesta v. Holder
                                                                                  BIA
                                                                              Segal, IJ
                                                                          A096 038 826



                         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
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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.

         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 5th day of February, two thousand fourteen.

    PRESENT:
             JON O. NEWMAN,
             RALPH K. WINTER,
             REENA RAGGI,
                  Circuit Judges.
    _____________________________________

    BURIM POCESTA, AKA KRISHANTHA PEDURU SINGHEGE, AKA
    KRISHANTHA GAYAN KUMARA PEDURU SINGHEGE,
             Petitioner,

                        v.                                 12-3057
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________


    FOR PETITIONER:               Joshua Bardavid, New York, New York.
FOR RESPONDENT:           Stuart F. Delery, Acting Assistant
                          Attorney General; Daniel E. Goldman,
                          Senior Litigation Counsel; Jem C.
                          Sponzo, Trial Attorney, Office of
                          Immigration Litigation, United
                          States Department of Justice,
                          Washington, D.C.

       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 Burim Pocesta, a native and citizen of Sri

Lanka, seeks review of a July 9, 2012, order of the BIA,

affirming Immigration Judge (“IJ”) Alice Segal’s April 21,

2011, denial of asylum, withholding of removal, and relief

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

Pocesta, No. A096 038 826 (B.I.A. Jul. 9, 2012), aff’g No.

A096 038 826 (Immig. Ct. N.Y. City Apr. 21, 2011).           We assume

the    parties’   familiarity   with    the   underlying    facts   and

procedural history in this case.

       We have reviewed the IJ’s decision as supplemented by the

BIA.     See 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); Yanqin Weng

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



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I.    Persecution by the LTTE--Changed Circumstances

      An alien who, like Pocesta, demonstrates past persecution

benefits from the presumption of a well-founded fear of future

persecution.         See 8 C.F.R. §§ 1208.13(b)(1).               Once past

persecution is established, the burden rests firmly with the

government to rebut this presumption by showing, inter alia,

a    “‘fundamental      change     in   circumstances      such   that    the

applicant’s life or freedom would not be threatened on account

of    any   of   the    five     [protected]     grounds    ...   upon    the

applicant’s removal.’”         Kone v. Holder, 596 F.3d 141, 147 (2d

Cir. 2010)(quoting 8 C.F.R. § 1208.16(b)(1)(i)-(ii)); accord

8 C.F.R. § 1208.13(b)(1)(i)-(ii).                We review the agency’s

finding     of   a     fundamental      change   in   circumstances       for

substantial evidence.          Alibasic v. Mukasey, 547 F.3d 78, 86

(2d Cir. 2008).

      Here, the agency’s finding that circumstances in Sri

Lanka had fundamentally changed is supported by the record.

See Niang v. Mukasey, 511 F.3d 138, 149 (2d Cir. 2007).                  While

the agency found that Pocesta had suffered past persecution at

the hands of the Liberation Tigers of Tamil Elam (“LTTE”), it

also found that State Department country reports demonstrated

that conditions in Sri Lanka have significantly changed since


                                        3
the end of the war in May 2009.            See Hui Lin Huang v. Holder,

677 F.3d 130, 138 (2d Cir. 2012) (approving BIA’s reliance on

State      Department      country    reports     as     best    source     for

information on country conditions); Hoxhallari v. Gonzales,

468 F.3d 179, 187 (2d Cir. 2006) (per curiam).

      Though Pocesta argues that the agency failed to account

for   post-war     conditions,       the   IJ   explicitly      noted     those

conditions, citing reports alleging that the LTTE has an

underground network and that certain parts of the country

remain military zones.         Nevertheless, the IJ found that the

background evidence showed that the Sri Lankan government was

making efforts to curb LTTE activity.             See Hui Lin Huang, 677

F.3d at 138; Hoxhallari, 468 F.3d at 187.

      To    the   extent    that     Pocesta    argues    that    while     the

situation in Sri Lanka may be improving overall, the situation

in his hometown of Mannar is still very dangerous, he failed

to raise this issue below and it is thus unexhausted.                   See Lin

Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1(b) (2d

Cir. 2007).       In sum, we conclude that the agency’s finding

that circumstances in Sri Lanka had fundamentally changed is

supported by substantial evidence.              See Alibasic, 547 F.3d at

86.


                                       4
II. Persecution by the Sri Lankan Government

    Pocesta also argues that the agency erred in finding that

he had not suffered past persecution at the hands of the Sri

Lankan government, and erred in finding he did not have a

well-founded fear of the government.           Though he concedes that

his detention by the army did not constitute persecution, he

argues   that   they   led   the   LTTE   to    target   him,   and   the

persecution by the LTTE along with the army’s detention should

be considered cumulatively to show past persecution and/or a

well-founded fear of the Sri Lankan government.

    However, contrary to Pocesta’s argument, the agency did

consider Pocesta’s harm cumulatively.             See     Poradisova v.

Gonzales, 420 F.3d 70, 79 (2d Cir. 2005) (requiring the agency

to consider the cumulative significance of events).             While it

found Pocesta had suffered past persecution at the hands of

the LTTE, it also found that Pocesta had never been mistreated

when detained by the army, that the army never suspected him

of being an LTTE member, and thus there was neither harm nor

a nexus to find past persecution caused by the Sri Lankan

government.     See 8 U.S.C. § 1101(a)(42).             The agency also

reasonably found that Pocesta’s purported fear of the Sri

Lankan government was mere conjecture unsupported by the

record evidence, particularly given that he had provided the
                                   5
army with information against the LTTE.            See Jian Xing Huang

v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (requiring “solid

support”    in   the   record   to   find    a   well-founded   fear   of

persecution).      Therefore, the agency did properly consider

Pocesta’s past harm in the aggregate in concluding that he

established neither past persecution nor a well-founded fear

of harm at the hands of the Sri Lankan government.          Cf. Manzur

v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 290 (2d Cir.

2007).     As Pocesta failed to establish his eligibility for

asylum, he necessarily fails to meet the higher burdens for

withholding of removal and CAT.             See Paul v. Gonzales, 444

F.3d 148, 156 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED.    As we have completed our review, the 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 of Court




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