Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A200-615-726.
For Salipan Gaksakuman, Petitioner: Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY; Salipan Gaksakuman, Miami, FL.
For U.S. Attorney General, Respondent: Matthew B. George, Deitz P. Lefort, Jessica R. C. Malloy, Krystal Samuels, U.S. Department of Justice, Civil Division, Washington, DC; Michelle Ressler, District Counsel's Office, Usice, Miami, FL.
For University of Miami School of Law, Amicus Curiae: Matthew E. Price, Jenner & Block, LLP, Washington, DC.
Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
WILLIAM PRYOR, Circuit
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. 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.
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 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 ...