13-592 Liyanage v. Holder BIA A088 775 709 A088 775 710 

### 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 23 rd** **day of June, two thousand thirteen.** 4 5 **PRESENT:** 6 **Robert A. Katzmann,** 7 Chief Judge**,** 8 **Barrington D. Parker,** 9 **Reena Raggi,** 10 Circuit Judges**.** 11

**_________________________________________** 12 13 **SAMPATH GAMMEDDEGODA LIYANAGE,** 14 **NIMMI IROSHANI DEL SI NANAYAKKARA PALLAGE,** 15 Petitioners**,** 16 17 **v. 13-592** 18 **NAC** 19 **ERIC H. HOLDER, JR., UNITED STATES** 20 **ATTORNEY GENERAL,** 21 Respondent**.** 22 23

**_________________________________________** 24 25 **FOR PETITIONERS: Visuvanathan Rudrakumaran, New York,** 26 **NY.** 27 28 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 29**Attorney General; Derek C. Julius,** 1 **Senior Litigation Counsel; Jessica** 2 **R. C. Malloy, Trial Attorney, Office** 3 **of Immigration Litigation, United** 4 **States Department of Justice,** 5 **Washington, D.C.** 6 7 UPON DUE CONSIDERATION of this petition for review of a 8 Board of Immigration Appeals (“BIA”) decision, it is hereby 9 ORDERED, ADJUDGED, AND DECREED that the petition for review 10 is DENIED. 11 Petitioner Sampath Gammeddegoda Liyanage and his wife, 12 Nimmi Iroshani Del Si Nanayakkara Pallage (“Petitioners”), 13 natives and citizens of Sri Lanka, seek review of the 14 February 5, 2013 decision of the BIA denying their motion to 15

reopen.In re Sampath Gammeddegoda Liyanage, et al. , Nos. 16 A088 775 709/710 (B.I.A. Feb. 5, 2013). We assume the 17 parties’ familiarity with the underlying facts and 18 procedural history of the case. 19 We review the BIA’s denial of a motion to reopen for 20 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d 21 Cir. 2005) (per curiam). An alien seeking to reopen 22 proceedings may file a motion to reopen no later than 90 23 days after the date on which the final administrative 24 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 25 8 C.F.R. § 1003.2(c)(2). It is undisputed that Petitioners’ 26 2motion to reopen was untimely because they filed it in April 1 2012, almost two years after the order of removal became 2 final. However, the time limitation does not apply to a 3 motion to reopen that is “based on changed circumstances 4 arising in the country of nationality or in the country to 5 which deportation has been ordered, if such evidence is 6 material and was not available and could not have been 7 discovered or presented at the previous hearing.” 8 C.F.R. 8 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). 9 Petitioners argue that Sri Lanka’s policy of 10 persecuting and torturing failed asylum seekers, their 11 status as failed asylum seekers, and the Sri Lankan 12 government’s threats to Liyanage’s mother in 2010 all 13 constitute changed country conditions, and moreover show 14 their prima facie eligibility for asylum. The BIA concluded 15 that the Sri Lankan government’s policy of mistreating 16 individuals returning from abroad was a continuation of 17 prior practices, not a change in country conditions, and 18 moreover, Petitioners had not shown that the policy was 19 directed particularly at failed asylum seekers. The BIA 20 further concluded that the threats to Liyanage’s mother did 21

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3not establish Petitioners’ prima facie eligibility for 1 asylum. 2 Substantial evidence, including a 2010 Sri Lanka report 3 by the Refugee Documentation Centre of Ireland discussing 4 treatment of returning Sri Lankans and citing a report from 5 2006 describing the same conditions and a 2007 U.S. State 6 Department Human Rights Report describing generally 7 mistreatment, torture, and arbitrary arrests and detention 8 by the Sri Lankan government, supports the BIA’s conclusion 9 that any mistreatment of individuals who return to Sri Lanka 10 from abroad is a continuation of prior practices, not a 11 change in country conditions. See Jian Hui Shao v. Mukasey, 12 546 F.3d 138, 169 (2d Cir. 2008); see also Matter of S-Y-G- , 13 24 I. & N. Dec. 247, 253 (BIA 2007). 14 Moreover, the BIA did not abuse its discretion in 15 determining that Petitioners did not show that there was a 16 pattern or practice of persecuting failed asylum seekers in 17 Sri Lanka, or that filing for asylum, alone, would result in 18 an increased risk of persecution or torture. The evidence 19 indicated that Tamil deportees to Sri Lanka, including 20 failed asylum seekers, were detained and questioned 21 regarding links to the LTTE, but quickly released if no 22

4links were found and that physical examinations of returnees 1 occurred when there was suspicion that they had LTTE links, 2 but were not otherwise routinely carried out on immigration 3

returnees. 4 Petitioners object to the BIA taking administrative 5 notice of the 2012 United Kingdom Border Agency’s Sri Lanka 6 Country of Origin Information Report (“U.K. COI Report”), 7 arguing that their lack of opportunity to respond to the 8 report violated due process. Generally the BIA errs when it 9 does not allow a movant an opportunity to rebut the 10 significance of potentially dispositive facts of which the 11 BIA took notice. See Chhetry v. U.S. Dep’t of Justice , 490 12 F.3d 196, 201 (2d Cir. 2007). However, the U.K. COI Report, 13 and the facts within it of which the BIA took administrative 14 notice, were cumulative of facts already in the record, and 15 in fact an earlier version of the report itself was referred 16 to in a report submitted by Petitioners in support of their 17 motion. See Jian Hui Shao, 546 F.3d at 168 (differentiating 18 Chhetry on the basis that the judicially noticed facts in 19 that case were the sole basis for denial of the motion to 20 reopen, as opposed to cumulative, and corroborative, of 21 facts already in the record). 22

5Nor did the BIA abuse its discretion in determining 1 that the affidavit from Liyanage’s mother, stating that she 2 had been visited by Sri Lankan police on two occasions in 3 2010, asked about her son, threatened, and detained once for 4 a few hours, did not establish Petitioners’ prima facie 5 eligibility for relief. See INS v. Abudu , 485 U.S. 94, 104- 6 05 (1988). The harassment and brief detention that 7 Liyanage’s mother described did not constitute persecution, 8 and military officers’ questions about where Liyanage lived, 9 and their demand that his mother surrender him, did not show 10 a reasonable likelihood that they sought to persecute him 11 upon his return. See Jian Hui Shao, 546 F.3d at 172 12 (evidence of penalties or sanctions does not necessarily 13 signal a reasonable possibility of persecution); Ivanishvili 14 v. U.S. Dep’t of Justice , 433 F.3d 332, 341 (2d Cir. 2006); 15 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005). 16 Accordingly, as the BIA’s determination that there was 17 no change in country conditions is supported by substantial 18 evidence and as the Petitioners have not identified any 19 error in the BIA’s conclusion that they failed to 20 demonstrate prima facie eligibility for asylum or other 21 relief, the BIA did not abuse its discretion in denying 22

6Petitioners’ motion to reopen. See 8 U.S.C. 1 § 1229a(c)(7)(C)(ii);Abudu, 485 U.S. at 104-05; Kaur, 413 2 F.3d at 233. 3 For the foregoing reasons, the petition for review is 4 DENIED. As we have completed our review, the pending 5 motions for a stay of removal and to compel the government 6 to return Liyanage to the United States are DISMISSED as 7 moot. However, because Liyanage was removed from the United 8 States after filing the petition for review and a motion for 9 a stay of removal, the government is ORDERED to show cause, 10 within thirty days of the date of this order, why Liyanage 11 was removed to Sri Lanka despite the agreement to forbear 12 from removing petitioners who have filed motions for stays 13 of removal; why the government should not be sanctioned for 14 breaching the forbearance policy; and what the government 15 can do in the future to avoid removing petitioners who have 16 pending motions for stays of removal. 17

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7Any pending request for oral argument in this petition 1 is DENIED in accordance with Federal Rule of Appellate 2 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 3

FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7 8 9 10 11 12

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