Salipan Gaksakuman v. U.S. Attorney General, 767 F.3d 1164

Background

Salipan Gaksakuman, a Sri Lankan Tamil, applied for asylum, withholding of removal, and CAT relief after arriving in the U.S. without admission. He alleged threats and violence by Sri Lankan actors and feared torture if returned.
An IJ denied relief, finding Gaksakuman not credible on future persecution; the BIA affirmed in 2012. Gaksakuman timely petitioned this Court but later moved to dismiss that petition.
Gaksakuman filed a motion to reopen/reconsider before the BIA raising a new claim that he would be persecuted as a “failed asylum seeker”; the BIA granted relief in the nature of reconsideration/remand to consider that new claim.
On remand the IJ considered new documentary evidence (reports from UK Border Agency, Human Rights Watch, Amnesty, Freedom from Torture, news sources, Edmund Rice Centre) indicating returned failed asylum seekers in Sri Lanka may be detained and tortured.
The IJ and then the BIA again denied relief, reasoning that State Department Country Reports were silent about torture of failed asylum seekers and that silence rebutted Gaksakuman’s evidence.
The Eleventh Circuit considered jurisdiction over the 2012 order and reviewed the 2013 order; it held it lacked jurisdiction to review the 2012 order, vacated the 2013 order, and remanded because the BIA failed to give reasoned consideration to the evidence (the State Department silence could not automatically rebut petitioner’s evidence).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction to review 2012 BIA order	Gaksakuman argued the reopening/reconsideration left no final 2012 order and all claims may be reviewed	Government argued 2012 order remained final (reconsideration does not vacate) and petitioner failed to timely seek review of it	Court: No jurisdiction over 2012 order—reconsideration left it final; petitioner also failed to exhaust earlier arguments on reopening
Whether silence in State Dept. Reports rebuts petitioner’s evidence of risk to failed asylum seekers	Gaksakuman: documentary evidence shows returned failed asylum seekers are detained/tortured; SD reports’ silence cannot override affirmative evidence	Government/IJ/BIA: IJ may rely heavily on State Dept. reports; their silence negates petitioner’s claim	Court: Silence alone cannot rebut affirmative evidence; SD reports are not exhaustive and must be relevant to the specific claim
Whether petitioner established membership in the social group “failed asylum seekers”	Gaksakuman: as a Tamil and failed asylum seeker he fits the group and faces risk	BIA: petitioner failed to show he was a Tamil with actual or perceived LTTE association and thus failed the group test	Court: BIA gave insufficient reasoning—petitioner’s Tamil status not controverted and evidence suggested returnees are branded regardless of actual ties; remand required
Adequacy of BIA/IJ decisionmaking	Gaksakuman/Amicus: agency failed to give reasoned consideration to the evidence and improperly weighed silence from State Dept.	Government: agency followed precedent and properly relied on SD reports	Court: Agency did not provide reasoned consideration or adequate findings; vacated and remanded for further proceedings

Key Cases Cited

Ortega v. U.S. Attorney General, 416 F.3d 1348 (11th Cir. 2005) (jurisdiction reviewed de novo)
Balogun v. U.S. Attorney General, 304 F.3d 1303 (11th Cir. 2002) (limitations on review of final removal orders)
Tan v. U.S. Attorney General, 446 F.3d 1369 (11th Cir. 2006) (agency must give reasoned consideration and adequate findings)
Mezvrishvili v. U.S. Attorney General, 467 F.3d 1292 (11th Cir. 2006) (remand when agency fails to make adequate findings)
Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005) (order on reconsideration does not necessarily vacate original final order)
Al Najjar v. Ashcroft, 257 F.3d 1262 (11th Cir. 2001) (review focuses on BIA and adopted IJ reasoning)
Reyes–Sanchez v. U.S. Attorney General, 369 F.3d 1239 (11th Cir. 2004) (IJ may rely heavily on State Department reports but relevance is key)
Tang v. U.S. Attorney General, 578 F.3d 1270 (11th Cir. 2009) (State Department reports reliable only as to highly specific, relevant questions)
University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 1999) (court must inquire into subject-matter jurisdiction sua sponte)
Amaya-Artunduaga v. U.S. Attorney General, 463 F.3d 1247 (11th Cir. 2006) (failure to exhaust administrative remedies bars judicial review)