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.

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

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 23rd 4 day of June, two thousand thirteen.

5

6 PRESENT:

7 Robert A. Katzmann,

8 Chief Judge,

9 Barrington D. Parker, 

10 Reena Raggi,

11 Circuit Judges.

12 _________________________________________

13

14 SAMPATH GAMMEDDEGODA LIYANAGE, 

15 NIMMI IROSHANI DEL SI NANAYAKKARA PALLAGE,

16 Petitioners, 

17

18 v. 13-592

19 NAC 

20 ERIC H. HOLDER, JR., UNITED STATES 

21 ATTORNEY GENERAL, 

22 Respondent.

23

24 _________________________________________

25

26 FOR PETITIONERS: Visuvanathan Rudrakumaran, New York,

27 NY. 

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29 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
1 Attorney General; Derek C. Julius,

2 Senior Litigation Counsel; Jessica

3 R. C. Malloy, Trial Attorney, Office

4 of Immigration Litigation, United

5 States Department of Justice,

6 Washington, D.C.

7

8 UPON DUE CONSIDERATION of this petition for review of a

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

10 ORDERED, ADJUDGED, AND DECREED that the petition for review

11 is DENIED.

12 Petitioner Sampath Gammeddegoda Liyanage and his wife,

13 Nimmi Iroshani Del Si Nanayakkara Pallage (“Petitioners”),

14 natives and citizens of Sri Lanka, seek review of the

15 February 5, 2013 decision of the BIA denying their motion to

16 reopen. In re Sampath Gammeddegoda Liyanage, et al., Nos.

17 A088 775 709/710 (B.I.A. Feb. 5, 2013). We assume the

18 parties’ familiarity with the underlying facts and

19 procedural history of the case. 

20 We review the BIA’s denial of a motion to reopen for

21 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d

22 Cir. 2005) (per curiam). An alien seeking to reopen

23 proceedings may file a motion to reopen no later than 90

24 days after the date on which the final administrative

25 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i);

26 8 C.F.R. § 1003.2(c)(2). It is undisputed that Petitioners’

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1 motion to reopen was untimely because they filed it in April

2 2012, almost two years after the order of removal became

3 final. However, the time limitation does not apply to a

4 motion to reopen that is “based on changed circumstances

5 arising in the country of nationality or in the country to

6 which deportation has been ordered, if such evidence is

7 material and was not available and could not have been

8 discovered or presented at the previous hearing.” 8 C.F.R.

9 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).

10 Petitioners argue that Sri Lanka’s policy of

11 persecuting and torturing failed asylum seekers, their

12 status as failed asylum seekers, and the Sri Lankan

13 government’s threats to Liyanage’s mother in 2010 all

14 constitute changed country conditions, and moreover show

15 their prima facie eligibility for asylum. The BIA concluded

16 that the Sri Lankan government’s policy of mistreating

17 individuals returning from abroad was a continuation of

18 prior practices, not a change in country conditions, and

19 moreover, Petitioners had not shown that the policy was

20 directed particularly at failed asylum seekers. The BIA

21 further concluded that the threats to Liyanage’s mother did

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1 not establish Petitioners’ prima facie eligibility for

2 asylum. 

3 Substantial evidence, including a 2010 Sri Lanka report

4 by the Refugee Documentation Centre of Ireland discussing

5 treatment of returning Sri Lankans and citing a report from

6 2006 describing the same conditions and a 2007 U.S. State

7 Department Human Rights Report describing generally

8 mistreatment, torture, and arbitrary arrests and detention

9 by the Sri Lankan government, supports the BIA’s conclusion

10 that any mistreatment of individuals who return to Sri Lanka

11 from abroad is a continuation of prior practices, not a

12 change in country conditions. See Jian Hui Shao v. Mukasey,

13 546 F.3d 138, 169 (2d Cir. 2008); see also Matter of S-Y-G-,

14 24 I. & N. Dec. 247, 253 (BIA 2007). 

15 Moreover, the BIA did not abuse its discretion in

16 determining that Petitioners did not show that there was a

17 pattern or practice of persecuting failed asylum seekers in

18 Sri Lanka, or that filing for asylum, alone, would result in

19 an increased risk of persecution or torture. The evidence

20 indicated that Tamil deportees to Sri Lanka, including

21 failed asylum seekers, were detained and questioned

22 regarding links to the LTTE, but quickly released if no

4
1 links were found and that physical examinations of returnees

2 occurred when there was suspicion that they had LTTE links,

3 but were not otherwise routinely carried out on immigration

4 returnees. 

5 Petitioners object to the BIA taking administrative

6 notice of the 2012 United Kingdom Border Agency’s Sri Lanka

7 Country of Origin Information Report (“U.K. COI Report”),

8 arguing that their lack of opportunity to respond to the

9 report violated due process. Generally the BIA errs when it

10 does not allow a movant an opportunity to rebut the

11 significance of potentially dispositive facts of which the

12 BIA took notice. See Chhetry v. U.S. Dep’t of Justice, 490

13 F.3d 196, 201 (2d Cir. 2007). However, the U.K. COI Report,

14 and the facts within it of which the BIA took administrative

15 notice, were cumulative of facts already in the record, and

16 in fact an earlier version of the report itself was referred

17 to in a report submitted by Petitioners in support of their

18 motion. See Jian Hui Shao, 546 F.3d at 168 (differentiating

19 Chhetry on the basis that the judicially noticed facts in

20 that case were the sole basis for denial of the motion to

21 reopen, as opposed to cumulative, and corroborative, of

22 facts already in the record). 

5
1 Nor did the BIA abuse its discretion in determining

2 that the affidavit from Liyanage’s mother, stating that she

3 had been visited by Sri Lankan police on two occasions in

4 2010, asked about her son, threatened, and detained once for

5 a few hours, did not establish Petitioners’ prima facie

6 eligibility for relief. See INS v. Abudu, 485 U.S. 94, 104-

7 05 (1988). The harassment and brief detention that

8 Liyanage’s mother described did not constitute persecution,

9 and military officers’ questions about where Liyanage lived,

10 and their demand that his mother surrender him, did not show

11 a reasonable likelihood that they sought to persecute him

12 upon his return. See Jian Hui Shao, 546 F.3d at 172

13 (evidence of penalties or sanctions does not necessarily

14 signal a reasonable possibility of persecution); Ivanishvili

15 v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006);

16 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).

17 Accordingly, as the BIA’s determination that there was

18 no change in country conditions is supported by substantial

19 evidence and as the Petitioners have not identified any

20 error in the BIA’s conclusion that they failed to

21 demonstrate prima facie eligibility for asylum or other

22 relief, the BIA did not abuse its discretion in denying

6
1 Petitioners’ motion to reopen. See 8 U.S.C.

2 § 1229a(c)(7)(C)(ii); Abudu, 485 U.S. at 104-05; Kaur, 413

3 F.3d at 233. 

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, the pending

6 motions for a stay of removal and to compel the government

7 to return Liyanage to the United States are DISMISSED as

8 moot. However, because Liyanage was removed from the United

9 States after filing the petition for review and a motion for

10 a stay of removal, the government is ORDERED to show cause,

11 within thirty days of the date of this order, why Liyanage

12 was removed to Sri Lanka despite the agreement to forbear

13 from removing petitioners who have filed motions for stays

14 of removal; why the government should not be sanctioned for

15 breaching the forbearance policy; and what the government

16 can do in the future to avoid removing petitioners who have

17 pending motions for stays of removal. 

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1 Any pending request for oral argument in this petition

2 is DENIED in accordance with Federal Rule of Appellate

3 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

4 FOR THE COURT: 

5 Catherine O’Hagan Wolfe, Clerk

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