13-851 

Randeniya v. Holder 

 BIA

 A099 320 086/087/088/089

 A076 143 068

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 13th 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 JOSÉ A. CABRANES,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _________________________________________

12

13 SAMAN RANDENIYA, AKA FRANCIS ALEXANDER 

14 WARNA FERNANDO, NAMALI RANDENIYA, AKA 

15 MARY NAMALI DEEPTHI WARNAKULASURIYA,

16 SAVINDA RANDENIYA, AKA FERNANDO SAVINDA 

17 WARNAKU SILMAGURUGE, KEVIN RANDENIYA, 

18 AKA FERNANDO KEVIN WARNAKULA SILMAGURUGE,

19 NETHMI RANDENIYA, AKA FERNANDO NETHMI 

20 WARNAKUL SILMAGURUGE,

21 Petitioners, 

22

23 v. 13-851

24 NAC 

25 ERIC H. HOLDER, JR., UNITED STATES 

26 ATTORNEY GENERAL, 

27 Respondent.

28 _________________________________________

29

30 FOR PETITIONERS: Nitin Kaushik, New York, NY. 
1 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

2 General; Ethan B. Kanter, Deputy

3 Chief, National Security Unit;

4 Daniel I. Smulow, Trial Attorney,

5 Office of Immigration Litigation,

6 United States Department of Justice,

7 Washington, D.C.

8

9 UPON DUE CONSIDERATION of this petition for review of a

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

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

12 is DENIED.

13 Petitioner Saman Randeniya (“Randeniya”), his wife,

14 Namali Randeniya, natives and citizens of Sri Lanka, and

15 their three children, Savinda Randeniya, Kevin Randeniya,

16 and Nethmi Randeniya (collectively, “Petitioners”), natives

17 of Italy and citizens of Sri Lanka, seek review of the

18 February 20, 2013, decision of the BIA denying their motion

19 to reopen. In re Saman Randeniya, et al., Nos. A099 320

20 086/087/088/089, A076 143 068 (B.I.A. Feb. 20, 2013). We

21 assume the parties’ familiarity with the underlying facts

22 and procedural history of the case. 

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

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

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

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

27 days after the date on which the final administrative

2
1 decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8

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

3 motion to reopen was untimely because they filed it in

4 November 2012, more than four years after the order of

5 removal became final. However, the time limitation does not

6 apply to a motion to reopen that is “based on changed

7 circumstances arising in the country of nationality or in

8 the country to which deportation has been ordered, if such

9 evidence is material and was not available and could not

10 have been discovered or presented at the previous hearing.” 

11 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

12 § 1229a(c)(7)(C)(ii).

13 As an initial matter, Petitioners have been ordered

14 removed to Italy, and have not challenged that designation,

15 either in the initial proceedings or in the motion to

16 reopen. However, because the BIA analyzed whether Randeniya

17 established changed country conditions in Sri Lanka, and

18 because the statute indicates that to excuse untimeliness

19 the movant may show “changed country conditions arising in

20 the country of nationality or the country to which removal

21 has been ordered,” 8 U.S.C. § 1229a(c)(7)(C)(ii) (emphasis

22 added), we analyze whether substantial evidence supports the

3
1 BIA’s conclusion that Randeniya did not establish changed

2 country conditions in Sri Lanka. 

3 Randeniya’s decision to join the Sri Lankan Democratic

4 National Alliance (“DNA”) while in the United States

5 reflects a self-induced change in personal circumstances,

6 and therefore does not exempt his motion from the applicable

7 bars. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d

8 Cir. 2006). Because Randeniya did not join the DNA until

9 2009, well after he was ordered removed, the BIA did not

10 abuse its discretion in concluding that his membership did

11 not establish an exception to the filing deadline.

12 Randeniya also argues that he demonstrated changed

13 country conditions based on his affidavit stating that the

14 Sri Lankan security forces were aware of his membership in

15 the DNA, visited his sister’s home in Sri Lanka, and told

16 her that they would kill him if he returned. The BIA’s

17 determination that this evidence was of little probative

18 value is entitled to deference, particularly in light of the

19 agency’s prior finding that Randeniya was not credible as to

20 certain aspects of his claim. See Qin Wen Zheng v.

21 Gonzales, 500 F.3d 143, 149 (2d Cir. 2007); Xiao Ji Chen v.

22 U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006). 

4
1 Because Randeniya did not establish a change in country

2 conditions, the BIA did not abuse its discretion in denying

3 Petitioners’ motion to reopen as untimely. 

4 For the foregoing reasons, the petition for review is

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

6 removal that the Court previously granted in this petition

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

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

9 oral argument in this petition is DENIED in accordance with

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

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14

15

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