Perera v. Holder , 750 F.3d 25 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1312
KUMUDINIE RENUKA PERERA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Visuvanathan Rudrakumaran on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Eric W. Marsteller, Senior Litigation Counsel, Office of
Immigration Litigation, and Jane T. Schaffner, Trial Attorney,
Office of Immigration Litigation, Civil Division, on brief for
respondent.
April 22, 2014
THOMPSON, Circuit Judge.
PREFACE
This is an immigration case involving Kumudinie Renuka
Perera, a native and citizen of Sri Lanka. Perera asks us to
review an order of the Board of Immigration Appeals ("BIA") denying
her second motion to reopen long-closed removal proceedings. We
deny her petition, for reasons shortly stated. First, some
background.
HOW THE CASE GOT HERE
The parties are familiar with the facts — elsewhere
recounted, see Perera v. Holder, 471 F. App'x 4 (1st Cir. 2012) —
so a simple summary suffices.
Following a hearing that began in 2006 and ended in 2007,
an Immigration Judge ("IJ") rejected Perera's claims for asylum,
withholding of removal, and relief under the Convention Against
Torture ("CAT"), finding two things (among others): first, that
her rough treatment at the hands of Sri Lankan police officers had
been sparked by an intent to extort money from her, not to
persecute her for her political beliefs — i.e., her supposedly
supporting a Sri Lankan separatist group called the Liberation
Tigers of Tamil Eelam ("LTTE"); and second, that she had not shown
that future torture was likely if she were sent back there. So the
IJ ordered her removed. The BIA dismissed her appeal in 2008. And
we denied her petition for review.
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In 2010 — eighteen months after the BIA had dismissed her
appeal — Perera moved to reopen her case, alleging changed
circumstances in her homeland, e.g., that the police were still
looking high and low for her, adamantly insisting that she is an
LTTE backer. The BIA denied the motion some eight months later,
concluding that her evidence did not show that Sri Lanka had taken
a turn for the worse. And we again denied her petition for review.
In 2012 — more than three years after the BIA had
affirmed her order of removal — Perera filed another motion to
reopen (which is the subject of today's battle), along with a
motion to stay removal and a renewed application for asylum and
related relief. Again alleging changed country conditions, this
time Perera insisted that the Sri Lankan government would persecute
her as a failed asylum seeker if returned home — though she copped
to the possibility that "this fact existed during the Immigration
Court hearing." Emphasizing Sri Lanka's "history of torturing
returned asylum seekers," Perera also wrote that her attorney had
learned in 2011 that the Sri Lankan consulate in New York requires
passport applicants to sign an affidavit stating that they "have
not applied [for] or acquired any refugee or asylum status in" the
United States. Sri Lankan officials use this affidavit to help
single out asylum seekers for persecution (torture or otherwise) —
or so she argued. And to support her claims, she submitted a copy
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of the affidavit plus other documents describing conditions in Sri
Lanka. Here are some of the other documents' highlights:
C A 2011 article by Freedom from Torture suggested that
26 recently-returned failed asylum seekers might be
tortured by Sri Lankan officials, pointing to "the
continued arrest and detention of refused asylum
seekers on their return" and its "awareness of cases
of torture on return."
C A 2011 Amnesty International article expressed the
same concern, relying on the country's "history of
arresting and detaining rejected Sri Lankan asylum
seekers upon their return."
C A 2011 report by the United Nations Committee Against
Torture spotlighted "the continued and consistent
allegations of widespread use of torture and other
cruel, inhuman or degrading treatment" of persons in
Sri Lankan police custody. And the report urged the
Sri Lankan government to prosecute those who torture.
C A 2011 Sri Lankan newspaper article touted "an [i]n-
depth interview" with a former Sri Lankan judge. When
asked about the "continued and consistent allegations
of widespread use of torture" noted by the United
Nations Committee Against Torture, the retired judge
said, "This has been worrying me from the time I was
introduced to the several torture methods used by the
military and the police when I heard [terrorism-
related cases] in the High Court of Colombo twenty
years ago."
C A 2010 report by the Refugee Documentation Centre of
Ireland explained that Sri Lankan officials
interviewed deportees on their return to Sri Lanka,
zeroing in on persons with LTTE ties or who had
traveled with false documents. This has been going on
as far back as 2004, the report stressed.
The BIA denied Perera's motion to reopen and denied her
motion for stay of removal as moot. Turning to the affidavit
issue, the BIA said that Perera failed to show that this
requirement was not in effect at the time of her hearing — meaning
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that the affidavit requirement did not constitute "changed
conditions or circumstances." Also, the BIA added, she never
showed that a prior overseas asylum application increases the risk
of persecution in Sri Lanka. As for the other documents Perera
presented, none showed that the complained-of Sri Lankan conditions
did not exist at the time of her 2006/2007 hearing, the BIA noted
— meaning that this evidence did not constitute "changed conditions
or circumstances" either. Actually, rather than showing changed
conditions, the BIA found that these documents showed that Sri
Lankan officials were continuing to do basically what they had been
doing at the time of her 2006/2007 hearing. Cinching this
conclusion for the BIA was a 2012 report by the United Kingdom
Border Agency, which the BIA administratively noticed. We will
later refer to this as the 2012 UK report. Anyway, that report,
the BIA wrote, not only supported the finding about continuing
problems in Sri Lanka, but it also revealed that the 26 returning
failed asylum seekers mentioned above had been "allowed to proceed
without incident."
The BIA then rejected Perera's bid to coax a contrary
ruling with an unpublished BIA opinion (opinions like that are not
binding precedent, the BIA said). And on top of all this, the BIA
found that Perera had not shown prima facie eligibility for
withholding of removal, asylum, or CAT relief and that no
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"exceptional circumstances" justified its exercising its discretion
to reopen on its own.
Which brings us to today, with Perera essentially
complaining that her proof did show changed country conditions and
that she did make out a prima facie case for relief.
OUR TAKE ON THE CASE
Motions to reopen are "disfavored" because of the threat
they pose to finality. See, e.g., Perez v. Holder, 740 F.3d 57, 61
(1st Cir. 2014). Consequently, the BIA has a fair degree of
latitude in deciding whether to grant or deny such motions. Id.
And we review the BIA's decision only for abuse of discretion. Id.
Basically, that means the BIA's decision will hold unless the
challenger "can show that the BIA committed an error of law or
exercised its judgment in an arbitrary, capricious, or irrational
way," Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007) — a
"highly deferential" standard of review, to be sure, Roberts v.
Gonzales, 422 F.3d 33, 35 (1st Cir. 2005), though "not [a]
toothless" one, Aponte v. Holder, 610 F.3d 1, 4 (1st Cir. 2010).
Ordinarily, a party may file only a single motion to
reopen — and she must file it within 90 days of the final
administrative decision. See 8 C.F.R. § 1003.2(c)(2). Perera's
motion is both number-barred and time-barred. On this, all agree.
But an exception to these bars exists if the reopen motion is based
on "previously unavailable information showing material changed
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circumstances" and the petitioner's proof makes out "'a prima facie
case sufficient to ground a claim of eligibility for the underlying
substantive relief.'" Gasparian v. Holder, 700 F.3d 611, 613 (1st
2012) (citing, among other authorities, 8 C.F.R.
§ 1003.2(c)(3)(ii), and quoting Le Bin Zhu v. Holder, 622 F.3d 87,
92 (1st Cir. 2010)); see also Perez, 740 F.3d at 62. Perera tries
to fit her case within these parameters. That effort fails.
We begin — and ultimately end — with the changed-country-
conditions issue. See Perez, 740 F.3d 62-63 (stopping the analysis
after upholding the BIA's ruling that the petitioner "had not
introduced new, material evidence"). As the BIA supportably
concluded, Perera never showed that the affidavit requirement was
not in place at the time of her 2006/2007 hearing. Perera
complains that the BIA unfairly stuck her with the burden of
"prov[ing] a negative." But having filed this "disfavored" motion,
she — and no one else — bore the "heavy burden" of proving when the
material change occurred. See Ven v. Ashcroft, 386 F.3d 357, 361
(1st Cir. 2004); see also 8 U.S.C. § 1229a(c)(7)(B) (explaining
that the moving party's reopen motion "shall state the new facts
that will be proven at a hearing to be held if the motion is
granted, and shall be supported by affidavits or other evidentiary
material"). Perera also floats the idea that the affidavit
requirement infracts "international law." But she never explains
how or why this is so. And she cites no authority for her thesis,
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either. So her theory is waived by "perfunctory" treatment. See,
e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010). On the
BIA's handling of the affidavit requirement, then, we see no abused
discretion.
Nor do we see any abused discretion in the BIA's handling
of the other documents. Recall how Perera herself conceded below
that the Sri Lankan government has a "history of torturing returned
asylum seekers" and that this "fact" may have "existed during the
Immigration Court hearing." Well, we are not surprised that she
did — after all, some of the very documents she trumpets contain
statements stressing things like how the country has a "history of
arresting and detaining rejected Sri Lankan asylum seekers" and how
there are "continued and consistent allegations of widespread use
of torture." (Emphasis added.) Looking for a way out of this
predicament, Perera says that the documents themselves were not
available before the 2006/2007 hearing. Ergo, the argument
continues, her reopen bid was bottomed on evidence that showed a
new and material adverse change in country conditions. The big
problem for her, however, is that she has not shown why other
evidence of Sri Lanka's "history of torturing returned asylum
seekers" — again, words lifted from her reopen motion — was
"unavailable and undiscoverable" at the time of her removal
proceedings. See Le Bin Zhu, 622 F.3d at 92 (citing 8 C.F.R.
§ 1003.2(c)(1), which provides that "[a] motion to reopen
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proceedings shall not be granted unless . . . [the] evidence sought
to be offered is material and was not available and could not have
been discovered or presented at the former hearing"). Clinching
matters, some of her documents show that her complained-of threat
of torture is, sadly, an old condition that has continued, which
also makes her reopen motion a nonstarter. See Tawadrous v.
Holder, 565 F.3d 35, 38 (1st Cir. 2009) (explaining how material,
previously-unavailable evidence must show "the intensification or
deterioration of country conditions, not their mere continuation");
see also generally Fernando v. U.S. Att'y Gen., 2014 WL 464228, at
*1-2 (11th Cir. Feb. 6, 2014) (unpublished) (concluding that
certain documents — including some of the ones Perera relies on
here — "supported the BIA's conclusion that conditions in Sri Lanka
had not changed but, rather, the Sri Lankan government was
continuing a practice that existed when [petitioner] filed his
initial application" and thus doomed his reopen motion).1
As a fallback, Perera blasts the BIA for not following
the unpublished BIA opinion — applying Third Circuit law — that she
had unearthed. But, as the BIA rightly noted, unpublished opinions
like that have "no precedential force." Ang v. Gonzales, 430 F.3d
50, 58 (1st Cir. 2005). So that argument goes nowhere.
Perera also criticizes the BIA for administratively
noticing the 2012 UK report, adding, too, that the BIA never gave
1
Perera's lawyer also represented the Fernando petitioner.
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her a chance to weigh in on that document, which, she protests,
violated her due-process rights. Importantly, the BIA can take
"administrative notice of commonly known facts such as current
events or the contents of official documents." 8 C.F.R.
§ 1003.1(d)(3)(iv). True, Perera insists that 2012 UK report does
not discuss commonly-known facts. But — and it is an important
"but" — she nowhere contends that the report does not constitute an
official document. Applying abuse-of-discretion review, see Yang
Zhao-Cheng v. Holder, 721 F.3d 25, 28 (1st Cir. 2013); see also
Rivera-Cruz v. I.N.S., 948 F.2d 962, 966 (5th Cir. 1991), we find
no error.
Also, a winning due-process claim requires (among other
things) a showing of prejudice, i.e., a showing that the defect
likely affected the proceeding's outcome. See, e.g., Amouri v.
Holder, 572 F.3d 29, 36 (1st Cir. 2009). On de novo review, see
id. at 35-36, we see that Perera makes no effort at all to satisfy
this standard — she does not say what bones she would pick with the
report, for example. And we doubt that she could in any event,
since it is clear that only after finding no proof of changed
conditions did the BIA mention the 2012 UK report, and then simply
to say that the report was "consistent with" its conclusions. See
generally Fernando, 2014 WL 464228, at *3 (reaching the same result
in dealing with the same report).
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The bottom line, then, is that BIA did not reversibly err
in concluding that Perera's second reopen motion was barred by her
failure to show a material adverse change in country conditions.
And that is that.
FINAL WORDS
Our work over, we deny Perera's petition for judicial
review.
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