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 SUMMA RY 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 7 th** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **JOSÉ A. CABRANES,** 8 **DEBRA ANN LIVINGSTON,** 9 Circuit Judges**.** 10

**_______________________________________** 11 12 **SWENTHINI SABARATNAM,** 13 Petitioner**,** 14 15 **v. 10-1442-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Visuvanathan Rudrakumaran, New York,** 23 **New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Anh-Thu P. Mai-Windle,** 27 **Senior Litigation Counsel; Ann M.** 28 **Welhaf, Attorney, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 3 review is GRANTED. 4 Swenthini Sabaratnam, a native of Zambia and citizen of 5 Sri Lanka, seeks review of an April 22, 2009, decision of 6 the BIA, affirming the September 18, 2007, decision of 7 immigration judge (“IJ”), insofar as he pretermitted her 8 asylum application as untimely, and vacating the IJ’s 9 decision insofar as he denied her application for 10 withholding of removal. In re Swenthini Sabaratnam, No. 11 A026 859 895 (B.I.A. Apr. 22, 2009), aff’g in part and 12 vacating in part No. A026 859 895 (Immig. Ct. Buffalo Sept. 13 18, 2007). We assume the parties’ familiarity with the 14 underlying facts and procedural history of this case. 15 Under the circumstances of this case, we review the 16 IJ’s decision as modified by the BIA decision, i.e., minus 17 the arguments for denying relief that were rejected by the 18

BIA. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 F.3d 19 520, 522 (2d Cir. 2005). The applicable standards of review 20 are well-established. See8 U.S.C. § 1252(b)(4)(B); see 21 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 22 2009). 233 Sabaratnam challenges the agency’s pretermission of her 1 asylum application as untimely filed; specifically, its 2 finding that she failed to demonstrate extraordinary 3 circumstances excusing the untimeliness of that application. 4 Title 8, Section 1158(a)(3) of the United States Code 5 provides that no court shall have jurisdiction to review the 6 agency’s finding that an asylum application was untimely 7 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither 8 changed nor extraordinary circumstances excusing the 9 untimeliness under 8 U.S.C. § 1158(a)(2)(D). 10 Notwithstanding that provision, however, we retain 11 jurisdiction to review constitutional claims and “questions 12 of law.” 8 U.S.C. § 1252(a)(2)(D). 13 Here, Sabaratnam argues that the agency erred as a 14 matter of law by applying to her case the requirements for 15 bringing an ineffective assistance of counsel claim 16 announced in Matter of Lozada , 19 I. & N. Dec. 637 (BIA 17 1988). She contends that she should have been excused from 18 complying with those requirements because her counsel 19 admitted to the IJ that he was at fault for the untimely 20 filing of her asylum application. Sabaratnam’s argument 21 that the agency applied an incorrect legal standard raises a 22 question of law over which this Court has jurisdiction. See 234 Gui Yin Liu v. INS, 508 F.3d 716, 721 (2d Cir. 2007) 1 (citation omitted). 2 Under both the agency’s regulations and Matter of 3 Lozada , an alien claiming ineffective assistance of counsel 4 must submit: 5 (1) an affidavit setting forth in detail the 6 agreement with former counsel concerning what 7 action would be taken and what counsel did or did 8 not represent in this regard; (2) proof that the 9 alien notified former counsel of the allegations 10 of ineffective assistance and allowed counsel an 11 opportunity to respond; and (3) if a violation of 12 ethical or legal responsibilities is claimed, a 13 statement as to whether the alien filed a 14 complaint with any disciplinary authority 15 regarding counsel’s conduct and, if a complaint 16 was not filed, an explanation for not doing so. 17 18 Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005) (quoting 19 Esposito v. INS, 987 F.2d 108, 110-11 (2d Cir. 1993) (per 20 curiam) (citing Matter of Lozada , 19 I. & N. Dec. at 639)); 21 see also 8 C.F.R. §§ 208.4(a)(5)(iii), 1208.4(a)(5)(iii). 22 We have never demanded strict adherence to these 23 requirements, but have recognized that substantial 24 compliance is required “to deter meritless claims and to 25 provide a basis for determining whether counsel’s assistance 26 was in fact ineffective.” Twum, 411 F.3d at 59 (citation 27 omitted); see also Yi Long Yang v. Gonzales, 478 F.3d 133, 28 143-44 (2d Cir. 2007) (citation omitted). We have found 29 substantial compliance when the facts on which an 305 ineffective assistance of counsel claim is based “are clear 1 on the face of the record.” Yi Long Yang, 478 F.3d at 143. 2 In this case, requiring Sabaratnam’s strict compliance 3 with the Lozada requirements was unnecessary because her 4 attorney admitted to the IJ the ineffective assistance, and 5 because the IJ had an opportunity to question Sabaratnam’s 6 counsel on the record to determine the veracity of his 7 admission, but chose not do so. See Qun Yang v. McElroy, 8 277 F.3d 158, 162 (2d Cir. 2002) (“the IJ . . ., unlike an 9 Article III judge, is not merely the fact finder and 10 adjudicator but also has an obligation to establish the 11 record”) (citations omitted). Indeed, her attorney’s 12 concession alone satisfied the Lozada requirements because 13 it demonstrated that they had an agreement regarding 14 representation, established that he had notice of her 15 allegations of ineffective assistance, and explained her 16 failure to file a complaint regarding his ineffective 17 assistance. See Yi Long Yang, 478 F.3d at 143; see also 18

Twum, 411 F.3d at 59. Therefore, we conclude that 19 Sabaratnam substantially complied with the procedural 20 requirements of Lozada , and remand for the agency to decide 21 whether she was prejudiced by the ineffective assistance of 22 her counsel. See Yi Long Yang, 478 F.3d at 143-44. 23 We note that although there has been a significant 246 change in conditions in Sri Lanka, we cannot confidently 1 predict that remand would be futile. See Shunfu Li v. 2 Mukasey, 529 F.3d 141, 150 (2d Cir. 2008). In granting 3 Sabaratnam’s parents asylum, the BIA found that they had 4 demonstrated a well-founded fear of harm by the Liberation 5 Tigers of Tamil Eelam (“LTTE”), a group that the Sri Lankan 6 government was unable to control, and noted that the Sri 7 Lankan government often detained young Tamils based on an 8 incorrect assumption that they were LTTE members. Although 9 in May 2009, the Sri Lankan army defeated the LTTE 10 militarily, ending the civil war in Sri Lanka and capturing 11 all remaining LTTE-controlled territory, the U.S. Department 12 of State 2010 Country Report on Human Rights Practices in 13 Sri Lanka indicates that repercussions of the war continue 14 to impact human rights in Sri Lanka, particularly for Tamils 15 such as Sabaratnam. U.S. Dep’t of State, Sri Lanka, Country 16 Reports on Human Rights Practices 2010 (2011), available at 17 http://www.state.gov/g/drl/rls/hrrpt/2010/sca/154486.htm; 18 see also Hoxhallari v. Gonzales, 468 F.3d 179, 186 n.5 (2d 19 Cir. 2006) (providing that the Court “may always exercise 20 independent discretion to take judicial notice of any 21 further changes in a country’s politics that occurred 22 between the time of the BIA’s determination decision and 23 [the Court’s] review”). Furthermore, on remand, the agency 247 may decide that Sabaratnam is entitled to nunc pro tunc 1 relief. See Xue Yong Zhang v. Holder, 617 F.3d 650, 665 & 2 n.13 (2d Cir. 2010) (recognizing that “an award of nunc pro 3

tunc may, in an appropriate circumstance , be granted as a 4 means of rectifying error in immigration proceedings” and 5 that “[w]hen a matter is adjudicated nunc pro tunc , it is as 6 if it were done as of the time that it should have been 7 done.”) (internal quotation marks and citations omitted). 8 For the foregoing reasons, the petition for review is 9 GRANTED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition 11 is VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19