Wimalarathne Adhikari Arachchillage v. Attorney General of the United States

IMG-135 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2476
WIMALARATHNE ADHIKARI ARACHCHILLAGE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A093-459-376)
Immigration Judge: Honorable Dorothy Harbeck
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 24, 2010
Before: RENDELL, FISHER and GARTH, Circuit Judges.
(Filed: March 24, 2010)
OPINION
PER CURIAM
Petitioner, Wimalarathne Adhikari Arachchillage, seeks review of the Board of
Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will
deny his petition.

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1JVP stands for Janatha Vimukthi Peramuna (People’s Liberation Front).
2
I.
Arachchillage, a native and citizen of Sri Lanka, legally entered the United States
on a visa on October 24, 2004. Arachchillage remained in the United States beyond the
authorized stay period. He was served with a Notice to Appear and charged as removable
under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the
United States for a time longer than permitted. On March 21, 2007, he filed an
application for asylum and withholding of removal, and also sought protection under the
Convention Against Torture (“CAT”).
Arachchillage sought asylum on account of his political opinion as a member of
the United National Party (“UNP”), a rival political party to the JVP.1 Arachchillage
alleged that the JVP, formerly a terrorist group that took control of the parliament in April
2004, sought vengeance against the UNP. He testified that members from the JVP threw
rocks and fired shots at the factory building where he worked, and came to his home and
threatened him with death, causing him to flee Sri Lanka. Arachchillage testified that he
left Sri Lanka for two weeks to escape the JVP, and when he returned, the death threats
continued. Arachchillage detailed an incident where he witnessed the abduction of a
political colleague; although he did not know who participated in the abduction, he
suspected it was members of the JVP. In addition, Arachchillage testified that he had

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never been physically assaulted or arrested by the police or any group in Sri Lanka, but
because of his fear of the ongoing civil strife, he decided to flee Sri Lanka permanently.
Arachchillage claimed that he did not apply for asylum upon arriving in the United
States because he was afraid that he could be harmed and did not know that he could file
for protection. He testified that his family’s house was destroyed by fire in January 2007,
and stated that his father suspected the JVP, but admitted that there were no witnesses and
he did not know who was responsible. He also discussed how his housekeeper in Sri
Lanka quit after being threatened and stated that someone stole garden tools and livestock
from his property. He did not know who was involved with these incidents.
The IJ determined that Arachchillage was statutorily ineligible for asylum because
his application was time-barred and he failed to qualify for any exceptions to the one-year
bar. In analyzing Arachchillage’s claim for withholding of removal, the IJ found that he
had not experienced past persecution and could not show well-founded fear of future
persecution. Thus, he failed to meet the stricter burden of proof for withholding of
removal. The IJ also concluded that Arachchillage did not show that he should receive
CAT protection. The BIA agreed with the IJ’s determination that Arachchillage’s asylum
application was time-barred, that he failed to demonstrate persecution justifying
withholding of removal, and that he was ineligible for CAT protection. The BIA
dismissed the appeal, and Arachchillage, through counsel, filed a timely petition for
review. The government opposes the petition.

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II.
Under the Immigration and Nationality Act (“INA”), “[n]o court shall have
jurisdiction to review any determination of the Attorney General” that an asylum
application is untimely. 8 U.S.C. § 1158(a)(3). Thus, we lack jurisdiction to review the
agency’s dismissal of Arachchillage’s asylum application as barred by the one-year
limitations period, as well as whether the statutory period was tolled by changed
conditions. See Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). Although the
REAL ID Act of 2005, 8 U.S.C. § 1252(a)(2)(D), restored judicial review of
constitutional claims and questions of law presented in petitions for review, Arachchillage
presents no such claim regarding the timeliness of his asylum application. See Jarbough
v. Att’y Gen., 483 F.3d 184, 188 (3d Cir. 2007).
We do, however, have jurisdiction over Arachchillage’s challenge to the denial of
withholding of removal and relief under the CAT. See Tarrawally, 338 F.3d at 185-86.
We review these factual determinations under the substantial evidence standard, and will
uphold the decisions “unless the evidence not only supports a contrary conclusion, but
compels it.” Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (internal citations
omitted).
To qualify for withholding of removal, Arachchillage must show that if returned to
Sri Lanka, a clear probability exists that his life or freedom would be threatened because
of his political opinion. See Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001).
Withholding of removal has a higher burden of proof than asylum. Id.; Lukwago v.

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2Arachchillage did not contest on appeal to the BIA whether the IJ erred in
determining that he failed to demonstrate past persecution. Thus, he has failed to exhaust
his administrative remedies regarding this issue, and this Court lacks jurisdiction to
address this issue. See 8 U.S.C. § 1252(d)(1).
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Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). To meet the more stringent standard for
withholding of removal, an applicant must provide objective evidence that future
persecution is “more likely than not” to occur upon removal. Lukwago, 329 F.3d at 182
(citing 8 C.F.R. § 208.16(b)(2)); see also Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir.
2005).
We agree that Arachchillage failed to prove a well-founded fear of future
persecution. 2 Arachchillage’s claims are based on speculation that the JVP was
responsible for the abduction of a political colleague and the burning of his father’s
house. He provides no objective evidence that he will be targeted on account of his
involvement with UNP or his political beliefs if he returns to Sri Lanka. He does not
show that the government would be unwilling or unable to control any alleged
persecution, especially when in light of his testimony regarding the efforts by the Sri
Lankan police to investigate his colleague’s abduction. C.f. Lie v. Ashcroft, 396 F.3d
530, 537-38 (3d Cir. 2005). Arachchillage also testified that he was able to return to Sri
Lanka, unharmed, after a two-week trip abroad, as well as depart Sri Lanka without
incident using his own passport. This evidence undercuts his claim of a clear probability
of persecution. See Toure v. Att’y Gen., 443 F.3d 310, 318 (3d Cir. 2006).

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Finally, the record is devoid of any evidence that would render Arachchillage
eligible for CAT protection, as he fails to show that it more likely than not that he will
face torture if removed to Sri Lanka. See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
2003). Accordingly, we will deny Arachchillage’s petition.

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