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 P** **RECEDENTIAL 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 13**th**

### day of March, two thousand fourteen. 4 5 

### PRESENT: 6 **JOHN M. WALKER, JR.,** 7 **JOSÉ A. CABRANES,** 8 **RAYMOND J. LOHIER, JR.,** 9 

### Circuit Judges**.** 10



### _________________________________________ 11 12 

### SAMAN RANDENIYA, AKA FRANCIS ALEXANDER 13 

### WARNA FERNANDO, NAMALI RANDENIYA, AKA 14 

### MARY NAMALI DEEPTHI WARNAKULASURIYA, 15 

### SAVINDA RANDENIYA, AKA FERNANDO SAVINDA 16 

### WARNAKU SILMAGURUGE, KEVIN RANDENIYA, 17 

### AKA FERNANDO KEVIN WARNAKULA SILMAGURUGE, 18 

### NETHMI RANDENIYA, AKA FERNANDO NETHMI 19 

### WARNAKUL SILMAGURUGE, 20 

### Petitioners**,** 21 22 

### v. 13-851 23 

### NAC 24 

### ERIC H. HOLDER, JR., UNITED STATES 25 

### ATTORNEY GENERAL, 26 

### Respondent**.** 27



### _________________________________________ 28 29 

### FOR PETITIONERS: Nitin Kaushik, New York, NY. 30

### FOR RESPONDENT: Stuart F. Delery, Assistant Attorney 1 

### General; Ethan B. Kanter, Deputy 2 

### Chief, National Security Unit; 3 

### Daniel I. Smulow, Trial Attorney, 4 

### Office of Immigration Litigation, 5 

### United 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 Saman Randeniya (“Randeniya”), his wife, 13 

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

### their three children, Savinda Randeniya, Kevin Randeniya, 15 

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

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

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

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

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

### assume the parties’ familiarity with the underlying facts 21 

### and procedural history of the case. 22 

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

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

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

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

### days after the date on which the final administrative 27 

### 2

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

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

### motion to reopen was untimely because they filed it in 3 

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

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

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

### circumstances arising in the country of nationality or in 7 

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

### evidence is material and was not available and could not 9 

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

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

### § 1229a(c)(7)(C)(ii). 12 

### As an initial matter, Petitioners have been ordered 13 

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

### either in the initial proceedings or in the motion to 15 

### reopen. However, because the BIA analyzed whether Randeniya 16 

### established changed country conditions in Sri Lanka, and 17 

### because the statute indicates that to excuse untimeliness 18 

### the movant may show “changed country conditions arising in 19 

### the country of nationality orthe country to which removal 20 

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

### added), we analyze whether substantial evidence supports the 22



### 3

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

### country conditions in Sri Lanka. 2 

### Randeniya’s decision to join the Sri Lankan Democratic 3 

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

### reflects a self-induced change in personal circumstances, 5 

### and therefore does not exempt his motion from the applicable 6 

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

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

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

### abuse its discretion in concluding that his membership did 10 

### not establish an exception to the filing deadline. 11 

### Randeniya also argues that he demonstrated changed 12 

### country conditions based on his affidavit stating that the 13 

### Sri Lankan security forces were aware of his membership in 14 

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

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

### determination that this evidence was of little probative 17 

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

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

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

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

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



### 4

### Because Randeniya did not establish a change in country 1 

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

### Petitioners’ motion to reopen as untimely. 3 

### For the foregoing reasons, the petition for review is 4 

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

### removal that the Court previously granted in this petition 6 

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

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

### oral argument in this petition is DENIED in accordance with 9 

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

### Circuit Local Rule 34.1(b). 11



### FOR THE COURT: 12 

### Catherine O’Hagan Wolfe, Clerk 13 14 15



### 5