09-2720-ag

Kumarasinghe v. Holder

BIA

A 029 029 432

A 070 900 983

A 070 900 984

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 27 day of April, two thousand ten. th

PRESENT:

JOHN M. WALKER, JR.,

BARRINGTON D. PARKER,

REENA RAGGI,

 Circuit Judges. 

_______________________________________

SISIRA KUMARASINGHE, ANULA RATNAYAKE,

JAYASANKA KUMARASINGHE,

Petitioners, 

 v. 09-2720-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Sisira Kumarasinghe, pro se, Staten

Island, New York.
 Sisira Kumarasinghe is the lead respondent in this 1

case. Anula Ratnayake, his wife, and Jayasanka

Kumarasinghe, his son, are included as derivative

applicants.

2

FOR RESPONDENT: Tony West, Assistant Attorney

General; Ernesto H. Molina, Jr.,

Assistant Director; Jamie M. Dowd,

Senior Litigation Counsel, Office of

Immigration Litigation, United

States Department of Justice,

Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

Petitioners Sisira Kumarasinghe, Anula Ratnayake, and

Jayasanka Kumarasinghe, natives and citizens of Sri Lanka,

seek review of the May 29, 2009 order of the BIA denying

their motion to reopen. In re Sisira Kumarasinghe, Anula 1

Ratnayake, Jayasanka Kumarasinghe, Nos. A 029 029 432, 070

900 983, 070 900 984 (B.I.A. May 29, 2009). We review the

BIA’s denial of a motion to reopen for abuse of discretion,

mindful of the Supreme Court’s admonition that such motions

are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23

(1992)). In doing so, we assume the parties’ familiarity
3

with the facts and the record of prior proceedings, which we

reference only to the extent necessary to explain our

decision.

Having thoroughly reviewed the record, we identify no

abuse of discretion in the BIA’s denial of petitioners’

motion to reopen as untimely. First, it is undisputed that

the motion to reopen was filed more than six years after the

BIA’s June 2002 final order. See 8 C.F.R. § 1003.2(c)(2)

(providing that motion to reopen “must be filed no later

than 90 days after” final administrative order). Although

there is no time limit for filing a motion to reopen “based

on changed circumstances arising in the country of

nationality or in the country to which deportation has been

ordered, if such evidence is material and was not available

and could not have been discovered or presented at the

previous hearing,” id. § 1003.2(c)(3)(ii), the BIA properly

found that petitioners failed to demonstrate that their

motion satisfied the requirements of this exception. See

INS v. Abudu, 485 U.S. 94, 104-05 (1988).

Petitioners argue that they demonstrated changed

country conditions based on the government’s violation of 

8 C.F.R. § 208.6. We are not persuaded. Under § 208.6,
4

“[i]nformation contained in or pertaining to any asylum

application . . . shall not be disclosed without the written

consent of the applicant.” Id. The relevant inquiry

therefore is “whether the information disclosed by the

government was sufficient to give rise to a reasonable

inference” that the petitioners had applied for asylum. 

Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 264 (2d

Cir. 2006). 

Here, the BIA properly found that because petitioners

submitted no evidence demonstrating that the details of

their asylum claims were disclosed to the American

consulate, the consulate could not have relayed such

information to Sri Lankan authorities. Furthermore,

although petitioners submitted a letter from local police

requesting that Sisira Kumarasinghe appear for “an official

matter,” the BIA concluded that the letter was not only

unauthenticated but also failed to provide any indication

that the police were aware of petitioners’ claims for

asylum. Cf. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d

391, 404-05 (2d Cir. 2005) (holding that IJ may not reject

asylum seeker’s document solely because it is

unauthenticated); Jian Xing Huang v. INS, 421 F.3d 125, 129
5

(2d Cir. 2005) (concluding that fear not objectively

reasonable if it lacks “solid support” in record and is

merely “speculative at best”). On this record, the BIA’s

determination that the government did not violate § 208.6

was not an abuse of discretion. 

Petitioners also contend that they demonstrated prima

facie eligibility for relief on account of changed country

conditions by pointing to Sisira Kumarasinghe’s support of a

political opponent of the Sri Lankan President. This

contention is unavailing. A statement submitted by Sisira

Kumarasinghe’s brother-in-law gave no indication that Sri

Lankan authorities were aware of Kumarasinghe’s alleged

return to political activity. Nor did petitioners submit

any corroborating evidence in support of the claim of

renewed political involvement, which contradicted Sisira

Kumarasinghe’s testimony that he had not been involved in

politics for more than twenty years. Diallo v. INS, 232

F.3d 279, 285-86 (2d Cir. 2000) (corroborating evidence “may

be required where it would reasonably be expected”). As the

BIA noted, such corroborating evidence should have been

readily available given Sisira Kumarasinghe’s assertion that

the former President of Sri Lanka personally contacted him

and asked him to contest a local election. In light of
6

these facts, the BIA did not abuse its discretion in

rejecting petitioners’ claim that Sisira Kumarasinghe’s

renewed political involvement demonstrated changed country

conditions sufficient to cure the untimeliness of their

motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii).

Petitioners’ remaining arguments that the BIA engaged

in improper fact-finding and applied the wrong legal

standard also fail. In assessing whether petitioners’

evidence of changed country conditions was “material and was

not available and could not have been discovered or

presented at the former hearing,” 8 C.F.R. § 1003.2(c)(1),

the BIA did nothing more than perform the function legally

required of it. 

Having determined that petitioners failed to

demonstrate changed country conditions and that their motion

to reopen was therefore untimely, the BIA had no occasion to

reach petitioners’ claims for relief under the Convention

Against Torture. 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for
7

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk