10-1442-ag

Sabaratnam v. Holder

BIA

Montante, IJ

A026 859 895

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

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

New York, on the 7th 4 day of July, two thousand eleven.

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSÉ A. CABRANES,

9 DEBRA ANN LIVINGSTON,

10 Circuit Judges.

11 _______________________________________

12

13 SWENTHINI SABARATNAM,

14 Petitioner, 

15

16 v. 10-1442-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Visuvanathan Rudrakumaran, New York,

24 New York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Anh-Thu P. Mai-Windle,

28 Senior Litigation Counsel; Ann M.

29 Welhaf, Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is GRANTED.

5 Swenthini Sabaratnam, a native of Zambia and citizen of

6 Sri Lanka, seeks review of an April 22, 2009, decision of

7 the BIA, affirming the September 18, 2007, decision of

8 immigration judge (“IJ”), insofar as he pretermitted her

9 asylum application as untimely, and vacating the IJ’s

10 decision insofar as he denied her application for

11 withholding of removal. In re Swenthini Sabaratnam, No.

12 A026 859 895 (B.I.A. Apr. 22, 2009), aff’g in part and

13 vacating in part No. A026 859 895 (Immig. Ct. Buffalo Sept.

14 18, 2007). We assume the parties’ familiarity with the

15 underlying facts and procedural history of this case.

16 Under the circumstances of this case, we review the

17 IJ’s decision as modified by the BIA decision, i.e., minus

18 the arguments for denying relief that were rejected by the

19 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

20 520, 522 (2d Cir. 2005). The applicable standards of review

21 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see

22 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

23 2009). 
3

1 Sabaratnam challenges the agency’s pretermission of her

2 asylum application as untimely filed; specifically, its

3 finding that she failed to demonstrate extraordinary

4 circumstances excusing the untimeliness of that application. 

5 Title 8, Section 1158(a)(3) of the United States Code

6 provides that no court shall have jurisdiction to review the

7 agency’s finding that an asylum application was untimely

8 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

9 changed nor extraordinary circumstances excusing the

10 untimeliness under 8 U.S.C. § 1158(a)(2)(D). 

11 Notwithstanding that provision, however, we retain

12 jurisdiction to review constitutional claims and “questions

13 of law.” 8 U.S.C. § 1252(a)(2)(D). 

14 Here, Sabaratnam argues that the agency erred as a

15 matter of law by applying to her case the requirements for

16 bringing an ineffective assistance of counsel claim

17 announced in Matter of Lozada, 19 I. & N. Dec. 637 (BIA

18 1988). She contends that she should have been excused from

19 complying with those requirements because her counsel

20 admitted to the IJ that he was at fault for the untimely

21 filing of her asylum application. Sabaratnam’s argument

22 that the agency applied an incorrect legal standard raises a

23 question of law over which this Court has jurisdiction. See
4

1 Gui Yin Liu v. INS, 508 F.3d 716, 721 (2d Cir. 2007)

2 (citation omitted).

3 Under both the agency’s regulations and Matter of

4 Lozada, an alien claiming ineffective assistance of counsel

5 must submit: 

6 (1) an affidavit setting forth in detail the

7 agreement with former counsel concerning what

8 action would be taken and what counsel did or did

9 not represent in this regard; (2) proof that the

10 alien notified former counsel of the allegations

11 of ineffective assistance and allowed counsel an

12 opportunity to respond; and (3) if a violation of

13 ethical or legal responsibilities is claimed, a

14 statement as to whether the alien filed a

15 complaint with any disciplinary authority

16 regarding counsel’s conduct and, if a complaint

17 was not filed, an explanation for not doing so.

18

19 Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005) (quoting

20 Esposito v. INS, 987 F.2d 108, 110-11 (2d Cir. 1993) (per

21 curiam) (citing Matter of Lozada, 19 I. & N. Dec. at 639));

22 see also 8 C.F.R. §§ 208.4(a)(5)(iii), 1208.4(a)(5)(iii). 

23 We have never demanded strict adherence to these

24 requirements, but have recognized that substantial

25 compliance is required “to deter meritless claims and to

26 provide a basis for determining whether counsel’s assistance

27 was in fact ineffective.” Twum, 411 F.3d at 59 (citation

28 omitted); see also Yi Long Yang v. Gonzales, 478 F.3d 133,

29 143-44 (2d Cir. 2007) (citation omitted). We have found

30 substantial compliance when the facts on which an
5

1 ineffective assistance of counsel claim is based “are clear

2 on the face of the record.” Yi Long Yang, 478 F.3d at 143. 

3 In this case, requiring Sabaratnam’s strict compliance

4 with the Lozada requirements was unnecessary because her

5 attorney admitted to the IJ the ineffective assistance, and

6 because the IJ had an opportunity to question Sabaratnam’s

7 counsel on the record to determine the veracity of his

8 admission, but chose not do so. See Qun Yang v. McElroy,

9 277 F.3d 158, 162 (2d Cir. 2002) (“the IJ . . ., unlike an

10 Article III judge, is not merely the fact finder and

11 adjudicator but also has an obligation to establish the

12 record”) (citations omitted). Indeed, her attorney’s

13 concession alone satisfied the Lozada requirements because

14 it demonstrated that they had an agreement regarding

15 representation, established that he had notice of her

16 allegations of ineffective assistance, and explained her

17 failure to file a complaint regarding his ineffective

18 assistance. See Yi Long Yang, 478 F.3d at 143; see also

19 Twum, 411 F.3d at 59. Therefore, we conclude that

20 Sabaratnam substantially complied with the procedural

21 requirements of Lozada, and remand for the agency to decide

22 whether she was prejudiced by the ineffective assistance of

23 her counsel. See Yi Long Yang, 478 F.3d at 143-44.

24 We note that although there has been a significant
6

1 change in conditions in Sri Lanka, we cannot confidently

2 predict that remand would be futile. See Shunfu Li v.

3 Mukasey, 529 F.3d 141, 150 (2d Cir. 2008). In granting

4 Sabaratnam’s parents asylum, the BIA found that they had

5 demonstrated a well-founded fear of harm by the Liberation

6 Tigers of Tamil Eelam (“LTTE”), a group that the Sri Lankan

7 government was unable to control, and noted that the Sri

8 Lankan government often detained young Tamils based on an

9 incorrect assumption that they were LTTE members. Although

10 in May 2009, the Sri Lankan army defeated the LTTE

11 militarily, ending the civil war in Sri Lanka and capturing

12 all remaining LTTE-controlled territory, the U.S. Department

13 of State 2010 Country Report on Human Rights Practices in

14 Sri Lanka indicates that repercussions of the war continue

15 to impact human rights in Sri Lanka, particularly for Tamils

16 such as Sabaratnam. U.S. Dep’t of State, Sri Lanka, Country

17 Reports on Human Rights Practices 2010 (2011), available at

18 http://www.state.gov/g/drl/rls/hrrpt/2010/sca/154486.htm;

19 see also Hoxhallari v. Gonzales, 468 F.3d 179, 186 n.5 (2d

20 Cir. 2006) (providing that the Court “may always exercise

21 independent discretion to take judicial notice of any

22 further changes in a country’s politics that occurred

23 between the time of the BIA’s determination decision and

24 [the Court’s] review”). Furthermore, on remand, the agency
7

1 may decide that Sabaratnam is entitled to nunc pro tunc

2 relief. See Xue Yong Zhang v. Holder, 617 F.3d 650, 665 &

3 n.13 (2d Cir. 2010) (recognizing that “an award of nunc pro

4 tunc may, in an appropriate circumstance, be granted as a

5 means of rectifying error in immigration proceedings” and

6 that “[w]hen a matter is adjudicated nunc pro tunc, it is as

7 if it were done as of the time that it should have been

8 done.”) (internal quotation marks and citations omitted). 

9 For the foregoing reasons, the petition for review is

10 GRANTED. As we have completed our review, any stay of

11 removal that the Court previously granted in this petition

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

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

14 oral argument in this petition is DENIED in accordance with

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

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT: 

18 Catherine O’Hagan Wolfe, Clerk

19