Wannaku Fernando v. U.S. Attorney General , 554 F. App'x 852 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11212
Non-Argument Calendar
________________________
Agency No. A088-076-096
WANNAKU WATTAWADUGE WIJITHANANDA FERNANDO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 6, 2014)
Before PRYOR, FAY and KRAVITCH, Circuit Judges.
PER CURIAM:
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Wannaku Fernando seeks review of the Board of Immigration Appeals’
(BIA’s) denial of his motion to reopen removal proceedings based on changed
country conditions. After thorough review, we deny Fernando’s petition.
I.
Fernando, a native and citizen of Sri Lanka, was admitted to the United
States as a crewman in March 1997 with authorization to remain for 29 days.
More than a decade later, the Department of Homeland Security (DHS) served
Fernando with a Notice to Appear, charging him with removability under the
Immigration and Nationality Act (INA) § 237(a)(1)(B), for remaining in the United
States longer than permitted, and § 237(a)(1)(C)(i), for failing to maintain
crewman status. At hearings before an Immigration Judge (IJ), Fernando conceded
removability.
Subsequently, Fernando filed an application for asylum, withholding of
removal, and CAT relief, contending he feared he would be persecuted and
tortured upon return to Sri Lanka based on his brother’s involvement with an
opposition party. After a May 2011 hearing on the matter, the IJ denied
Fernando’s applications, finding that his asylum application was time-barred, his
testimony was not credible, and he had not met his burden of establishing
eligibility for withholding of removal or CAT relief. The BIA dismissed
Fernando’s appeal, and he did not petition this court for review of that order.
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Instead, in October 2012, Fernando moved the BIA to reopen his removal
proceedings based on changed country conditions. He contended that, as a failed
asylum applicant, he would be subject to persecution and torture if he returned to
Sri Lanka, making him eligible for relief despite the IJ’s and BIA’s earlier
conclusions.
In support of his motion, Fernando submitted the following evidence:
previous, unpublished BIA decisions granting motions to reopen in similar cases; a
June 2011 Amnesty International article requesting that Sri Lankan authorities
refrain from mistreating 26 recently returned failed asylum seekers, citing the
country’s “history of arresting and detaining rejected Sri Lankan asylum seekers
upon their return”; a June 2011 Freedom from Torture editorial expressing concern
that failed asylum seekers may be at risk of torture because of Amnesty
International’s documentation of their “continued arrest and detention”; two 2010
news articles reporting that asylum seekers returned from Australia had been
arrested at the Sri Lankan airport, some of whom were detained and assaulted; a
September 2010 Amnesty International article reporting that three failed asylum
seekers returning to Sri Lanka in 2009 were detained, beaten, and tortured; a
January 2010 Refugee Documentation of Ireland report stating that Sri Lankan
police interviewed every deportee upon their return to Sri Lanka but focused most
intently on people with links to the Liberation Tigers of Tamil Eelam and those
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traveling without documents; an undated statement from an immigration attorney
indicating her client’s U.S. asylum application failed, he was deported to Sri Lanka
in February 2009, he was taken into custody, his whereabouts were presently
unknown, and the attorney feared her client had been tortured or killed; an undated
affirmation from another immigration attorney stating a representative at the Sri
Lankan consulate indicated that, to obtain a new passport in that country, an
applicant had to sign an affidavit as to whether they had applied for asylum in the
U.S. (information confirmed on the Sri Lankan Embassy’s website); and an
October 2007 opinion from Dr. Chris Smith, associate fellow at the Royal Institute
for International Affairs, noting two detentions of failed asylum applicants in Sri
Lanka – one of which resulted in torture – in 2002 and 2003.
In addition to these, Fernando attached a November 2011 Sri Lanka
“Bulletin: Recent Reports on Torture and Ill-Treatment” from the U.K. Border
Agency, which cited reports prepared by various non-governmental organizations
(including the Amnesty International and Freedom from Torture reports) listing
torture as a continued concern in Sri Lanka. It stated that, from May 2009 through
September 2011, fourteen individuals returning to Sri Lanka from abroad reported
torture, four of whom had tried but failed to obtain asylum elsewhere. The 2011
Bulletin also cited the U.K. Border Agency’s own Country of Origin Information
(COI) Report, detailing similar conditions in Sri Lanka.
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The BIA denied Fernando’s motion to reopen. It first concluded Fernando
had not shown the conditions he complained of did not exist at the time of his May
2011 hearing so as to constitute “changed” conditions or circumstances supported
by “new evidence” that was unavailable, undiscoverable, or unpresentable at the
previous hearing. Rather than showing the conditions had changed in Sri Lanka,
the BIA found that Fernando’s evidence showed the Sri Lankan government had
been paying notice to failed asylum seekers years before his asylum proceedings in
the U.S. and were simply continuing. The BIA took administrative notice of the
U.K. Border Agency’s 2012 COI Report and found the report supported the
conclusions about continuing problems in Sri Lanka. This is Fernando’s petition
for review of that order.
II.
Fernando first contends the BIA erred in denying his motion to reopen
removal proceedings. Generally, a motion to reopen must be filed within 90 days
of the final order of removal. 8 C.F.R. § 1003.23(b)(1). The time limitation does
not apply, however, “when (1) an alien files a motion to reopen that seeks asylum,
withholding of removal, or relief under the [CAT]; (2) the motion is predicated on
changed country conditions; and (3) the changed conditions are material and could
not have been discovered at the time of the removal proceedings.” Jiang v. U.S.
Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “The moving party bears a
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heavy burden, as motions to reopen are disfavored, especially in removal
proceedings.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). 1
We review the denial of a motion to reopen for an abuse of discretion, granting a
petition and vacating the BIA’s order only when the BIA exercised its discretion in
an arbitrary or capricious manner. Jiang, 568 F.3d at 1256.
After a thorough review of Fernando’s submissions to the BIA, we conclude
the BIA did not abuse its discretion in denying the motion to reopen. Fernando
filed his motion more than 90 days after his final order of removal, so to be eligible
for relief he must establish changed country conditions that could not have been
discovered at the time of his initial removal proceedings. 8 C.F.R. §
1003.23(b)(1), (b)(4)(i). The BIA’s denial of Fernando’s motion based on his
failure to show the evidence he presented was previously unavailable or
undiscoverable was not arbitrary or capricious. The BIA not only noted several
pieces of the evidence he submitted existed prior to his May 2011 removal hearing,
but also considered whether that evidence was available to Fernando at that time
and determined Fernando had not met his burden of showing previous
unavailability. Much of the evidence was readily publicly available before May
2011. Further, the evidence Fernando submitted that post-dated his May 2011
1
This precedent squarely forecloses Fernando’s argument that the BIA erroneously saddled him
with the burden to prove the Sri Lankan government had changed its view of failed asylum
seekers since his May 2011 removal proceedings.
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hearing 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 Fernando filed his initial application. Accordingly, we will not
vacate the BIA’s order on this ground.
III.
Next, Fernando argues that, by taking administrative notice of the 2012 COI
Report, the BIA denied him his right to due process. We review constitutional
challenges de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir.
2008). To establish a due process violation in a removal proceeding, the petitioner
must show he was “deprived of liberty without due process of law, and that the
asserted errors caused [him] substantial prejudice.” Id. To show substantial
prejudice as a result of the denial of due process, a petitioner “must demonstrate
that, in the absence of the alleged violations, the outcome of the proceeding would
have been different.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.
2010) (citing Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987)).
We conclude that, assuming the BIA’s taking administrative notice of the
2012 COI Report without providing Fernando an opportunity to respond violated
his right to due process, he has not carried the heavy burden of showing resulting
substantial prejudice. The BIA’s order makes clear that, only after determining
Fernando could not show changed country conditions, it found the 2012 COI
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Report was “consistent with” and confirmed its conclusions. Based on this
language, Fernando cannot show his motion would have been decided differently if
the BIA had not taken administrative notice of the 2012 COI Report. We,
therefore, cannot vacate the BIA’s order on this ground.2
IV.
Finally, Fernando requests in his motion styled “motion to refer to
mediation,” the court to remand his proceeding to the BIA for placement on its
inactive docket. As Fernando points out, the Second Circuit, with the
government’s approval, recently established a procedure for remanding cases to the
BIA “when the Government elects to suspend, at least temporarily, proceedings
against a petitioner.” See In re Immigration Petitions for Review Pending in the
U.S. Court of Appeals for the Second Circuit, 702 F.3d 160, 161 (2d Cir. 2012).
To date, however, this court has not adopted a similar policy. Accordingly, we
deny Fernando’s motion.
V.
For the reasons set forth above, Fernando’s petition for review of the BIA’s
order and his motion for remand are denied.
PETITION DENIED, MOTION DENIED.
2
Fernando’s “reliance on unpublished BIA decisions is misplaced as the BIA accords no
precedential value to its unreported decisions.” De la Rosa v. U.S. Att’y Gen., 579 F.3d 1327,
1336 (11th Cir. 2009).
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