Gaksakuman v. U.S. Att’y Gen.

In Gaksakuman v. U.S. Att’y Gen., No. 13-12893 (Sep. 18, 2014), the Eleventh Circuit considered whether affirmative evidence produced by an alien of the torture of asylum seekers upon return to the alien’s home country may be rebutted by the Department of State remaining silent on the issue in their Country Reports on Human Rights.  Gaksakuman, seeking asylum, presented evidence that his native country of Sri Lanka tortures failed asylum seekers to the Board of Immigration Appeals.  The Board denied Gaksakuman relief, stating that he failed to establish that he would suffer torture upon return to his native country because the Department of State was silent on that issue in their report on Sri Lanka.  The Eleventh Circuit vacated and remanded the order, holding that “the silence of a State Department report cannot, without more, rebut the affirmative evidence” presented by Gaksakuman.

Gaksakuman was persecuted in his home country and escaped to Miami after his father bribed Sri Lankan officials to secure his escape.  Gaksakuman filed for asylum after the Department of Homeland Security ordered him removed pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).  Gaksakuman 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 Treatement or Punishment, 8 C.F.R. § 208.16(c).  Gaksakuman argued before the immigration judge that he was of Tamil ethnicity and therefore, perceived to be associated with the Liberation Tigers of Tamil, a group persecuted by the ruling party and the Sri Lankan army.  The immigration judge did not credit Gaksakuman’s testimony and Gaksakuman appealed to the Board of Immigration Appeals.  The Board deferred to the immigration judges ruling and dismissed the claim in 2012.

After filing a petition and a subsequently filing a motion to dismiss that petition to the Eleventh Circuit, Gaksakuman filed an untimely petition to reopen his case with the Board, stating that the Board did not consider his argument that he would be tortured.  The Board granted the motion sua sponte and remanded to the immigration judge.  In 2013, the immigration judge once again rejected Gaksakuman’s arguments and evidence concerning torture because “the Department of State Human Rights Reports did not mention failed Asylum seeker being tortured,” which effectively rebutted Gaksakuman’s evidence.

Gaksakuman sought to have the Eleventh Circuit review both his 2012 claims that were dismissed by the Board and his 2013 claims.  The court ruled that they did not have jurisdiction to review the 2012 order of the Board.  The relevant rule is 8 U.S.C. § 1252(b)(1), which mandates that Gaksakuman must have filed a petition with the Eleventh Circuit within 30 days of the issuance of his order from the Board.  Gaksakuman did this, but then filed a petition to dismiss that petition, and as the Eleventh Circuit received the current order, the 30 days had long since passed.  Gaksakuman argued that there was no final order from the board in 2012.  That the Board reconsidered the case was of no consequence for this matter of jurisdiction and time because “an order resulting from a motion to reconsider does not, lacking more, vacate or render the original order non-final.”  Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346 (11th Cir. 2005).  And even if the Eleventh Circuit characterized the Boards 2013 decision as reopening Gaksakuman’s case, Gaksakuman did not renew any of his original arguments.  Thus, the Eleventh Circuit lacked jurisdiction.

Finally, concerning the 2013 order of the Board, the Eleventh Circuit ruled that “the Board failed to give ‘reasoned consideration’ to Gaksakuman’s application.”  Gaksakuman presented evidence from non-profits and newspapers tending to prove that failed asylum seekers are subject to torture upon return to Sri Lanka, especially if they are perceived as being associated with the Liberation Tigers (regardless of whether they are or not).  The Eleventh Circuit recognized that immigration judges can rely heavily on State Department reports only to the extent they “comment upon . . . questions raised by an alien.”  Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1280 (11th Cir. 2009).  But the reports are not exhaustive and to the extent that the report did not comment at all on the issue of torture, the judge erred in ruling that it rebutted Gaksakuman’s ample evidence.  The court also noted that the report, if anything, tended to corroborate Gaksakuman’s claims by detailing torture of detainees and arbitrary arrests.

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