528 F. App'x 68
2d Cir.2013Background
- Petitioner Quinten Bryan Sathees Periyathamby, a Sri Lankan national, was found removable after a conviction for first-degree sexual abuse by forcible compulsion (an aggravated felony).
- He applied for withholding of removal and deferral of removal under the Convention Against Torture (CAT); an IJ denied relief and the BIA affirmed on March 29, 2011.
- Periyathamby did not contest the aggravated-felony determination on appeal to this Court.
- He argued the IJ failed to apply Frentescu factors in finding his conviction a "particularly serious crime" and that res judicata from a prior asylum grant should establish CAT relief eligibility.
- He also claimed a likelihood of future torture or death by Sri Lankan forces based on past threats and incidents involving navy personnel; the IJ found record evidence and country reports did not show torture was more likely than not.
- The Second Circuit reviewed the IJ’s decision (as supplemented by the BIA) and denied the petition for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review removal given aggravated-felony finding | Challenge agency’s Frentescu analysis and CAT denial | Agency’s aggravated-felony finding not challenged; jurisdiction limited | Court lacked jurisdiction to revisit factual findings tied to aggravated felony; reviewed legal questions and constitutional claims only |
| Frentescu factors/application to particularly serious crime determination | IJ failed to consider Frentescu factors when deeming conviction particularly serious | Agency expressly considered Frentescu factors; conviction disqualifies from withholding | Held that agency did consider Frentescu factors; claim without merit |
| Res judicata effect of prior asylum grant on CAT eligibility | Prior asylum grant precludes denial of CAT relief (res judicata) | CAT standard differs from asylum; res judicata does not automatically apply | Rejected — CAT inquiry is independent and can be more stringent than asylum |
| Likelihood of torture upon return (CAT deferral) | Past slapping/threats and discriminatory screening show likely torture on return | Country reports, ability to relocate internally, and family remaining safely in Sri Lanka undercut likelihood | Even assuming reviewable, substantial evidence supports IJ that torture is not more likely than not; CAT relief denied |
Key Cases Cited
- Yan Chen v. Gonzales, 417 F.3d 268 (2d Cir.) (standard for reviewing IJ decision as supplemented by BIA)
- Yanqin Weng v. Holder, 562 F.3d 510 (2d Cir.) (standards of review for immigration appeals)
- Sepulveda v. Gonzales, 407 F.3d 59 (2d Cir.) (jurisdiction for reviewing legal questions despite aggravated-felony removability)
- Nolasco v. Holder, 637 F.3d 159 (2d Cir.) (unchallenged agency findings deemed abandoned)
- Ramsameachire v. Ashcroft, 357 F.3d 169 (2d Cir.) (CAT inquiry independent from asylum)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir.) (jurisdictional bar to reviewing fact-bound CAT deferral challenges)
- Pierre v. Gonzales, 502 F.3d 109 (2d Cir.) (definition and high threshold for torture under CAT)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir.) (internal relocation and evidence considerations for CAT claims)
- Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir.) (diminished future-fear claim where family remains safely in home country)