Kumar Perera v. Attorney General United States , 536 F. App'x 240 ( 2013 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1611
___________
KUMAR CHANDANA PERERA;
LAKSHIKA KRISHANTHI JAYASURIYA;
SEMALI DULYANA PERERA,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-009-080, A089-009-081, and A089-009-082)
Immigration Judge: Honorable Susan Roy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 11, 2013
Before: VANASKIE, SCIRICA and COWEN, Circuit Judges
(Opinion filed: September 12, 2013)
_________
OPINION
_________
PER CURIAM
The petitioners were previously before us when we denied their petition for review
of an adverse asylum, withholding of removal, and Convention Against Torture (CAT)
order of removal by the Board of Immigration Appeals (BIA). See Perera v. Att’y Gen.,
447 F. App’x 365, 369 (3d Cir. 2011) (nonprecedential per curiam). In May 2012, almost
two years after the BIA entered its order, the family filed a motion to reopen based on
their fear of being persecuted or tortured in Sri Lanka for having sought asylum in the
United States. They claimed to have become aware of the purported risk they faced in
February 2012 when attempting to renew travel documents. See, e.g., Administrative
Record (A.R.) 26–27, 142. Attached to the lengthy motion were more than a hundred
pages of supporting exhibits. See A.R. 81–199.
The BIA examined this new evidence in a thorough opinion, concluding that the
petitioners had failed to show that “these conditions did not exist before and at the time of
their hearing, such that they represent changed conditions or circumstances since that
time.” A.R. 7.1 More specifically, the submissions indicated that “the Sri Lankan
government continues to use mistreatment, including torture, and the victims of torture
include individuals who returned from abroad, which in turn may include returned
asylum seekers.” A.R. 8 (emphasis added). The motion to reopen was thus denied.
This timely, counseled petition for review followed. We have jurisdiction under 8
U.S.C. § 1252 to review the BIA’s denial of the motion to reopen, but our review is
deferential; we will reverse only if the BIA abused its discretion, such that its decision
was arbitrary, irrational, or contrary to law. Abulashvili v. Att’y Gen., 663 F.3d 197, 202
1
The BIA also decided that the petitioners had not made a prima facie showing of their
entitlement to relief, and separately declined to reopen sua sponte. See A.R. 11. The prima facie
determination is not relevant to our analysis. Also, sua sponte relief has not been briefed and is
thus not before us, Dwumaah v. Att’y Gen., 609 F.3d 586, 589 n.3 (3d Cir. 2010), but we would
be without jurisdiction to review the discretionary decision in any event. See Desai v. Att’y
Gen., 695 F.3d 267, 269 (3d Cir. 2012).
2
(3d Cir. 2011) (citations omitted).
Under the Immigration and Nationality Act, a single motion to reopen removal
proceedings may be filed within 90 days of the entry of a final order of removal. 8
U.S.C. § 1229a(c)(7)(A), (C)(i); Desai, 695 F.3d at 269–70. Both the statute and the
relevant regulations provide an exception for motions based on evidence of changed
country conditions “arising in the country of nationality or the country to which removal
has been ordered,” but only “if [the] evidence is material and was not available and
would not have been discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii); accord 8 C.F.R. § 1003.2(c)(3)(ii). “Therefore, if the [alien]
presents material evidence of changed country conditions that could not have been
presented during the hearing before the IJ, his motion can be considered, even if there has
been a prior motion to reopen or the motion is beyond the 90-day time limit for filing.”
Shardar v. Att’y Gen., 503 F.3d 308, 313 (3d Cir. 2007). A showing of changed country
conditions is a threshold consideration to an analysis of the full merits of the motion to
reopen. Id. at 312; see also Ni v. Holder, 715 F.3d 620, 624 (7th Cir. 2013); Khan v.
Att’y Gen., 691 F.3d 488, 498 (3d Cir. 2012). “The burden of proof on a motion to
reopen is on the alien to establish eligibility for the requested relief.” Pllumi v. Att’y
Gen., 642 F.3d 155, 161 (3d Cir. 2011) (citing 8 C.F.R. § 1003.2(c)).2
2
The petitioners contend that Immigration & Naturalization Service v. Abudu, 485 U.S. 94(1988), established that “the BIA may deny a Motion to Reopen based on changed country
conditions on three grounds.” Pet’rs’ Br. 5. Although Abudu did construe the predecessor
regulation to the one involved in this case, 8 C.F.R. § 3.2, it did not and could not have involved
the changed-country-conditions exception to the time and number limits on motions to reopen,
which were enacted after Abudu was decided. See, e.g., Pruidze v. Holder, 632 F.3d 234, 236
3
At the outset, the BIA did not abuse its discretion when it determined that the
affidavit used by the Sri Lankan consulate to determine asylum status did not amount to a
changed circumstance. Even assuming that the presence of the affidavit was in fact
material to the petitioners’ applications—a proposition that is by no means clear—the
BIA was within its discretion to point out the lack of any indication that such an inquiry
was, in fact, a change from the circumstances existing during the original asylum
application process. The petitioners argue that the BIA asked them to “prove a negative”
by showing that there was no such previous declaration, but the burden was theirs, and
the lack of available evidence does not mean that the BIA’s decision was either unfair or
invalid. Cf. Moosa v. Holder, 644 F.3d 380, 386 (7th Cir. 2011) (discussing alien’s
ability to introduce current country reports and affidavits describing past conditions).3
The same analysis extends to the BIA’s consideration of whether the new
(6th Cir. 2011); Hernandez-Rodriguez v. Pasquarell, 118 F.3d 1034, 1040–41 & n.8 (5th Cir.
1997). This failure to distinguish between the threshold requirement of demonstrating changed
country conditions and the analysis pertinent to the merits of a motion to reopen is a common
theme throughout the petitioners’ briefs. See, e.g., Pet’rs’ Br. 25–26 (relying upon standard in
Guo v. Ashcroft, 386 F.3d 556, 560 (3d Cir. 2004), which dealt with a timely motion to reopen).
3
Although it does not affect our decision today, we followed the instructions for obtaining the
consular materials discussed in the BIA opinion cited on page eleven of the petitioners’ opening
brief. We were not able to find on the Sri Lankan consular website the exact affidavit that is
presented by the petitioners, but we were able to access the passport application. Through the
use of the Internet Archive’s “Wayback Machine,” which allows users to browse versions of
pages and documents as they existed at various points in history, we were able to determine that
questions pertaining to applications for asylum have been a longstanding feature of the
“Repatriation” passport-application process. See, e.g., Appl. for a Sri Lankan Travel Doc. (May
7, 2006),
http://web.archive.org/web/20060507034740/http://www.slembassyusa.org/consular/forms_repat
riation/repatriation.pdf.
4
documents showed a changed risk of torture or mistreatment for returning asylum
applicants as a category. As the agency made abundantly clear, conditions are far from
ideal, and some returnees risk mistreatment—especially those affiliated with the LTTE
(Liberation Tigers of Tamil Eelam). See A.R. 7. The BIA surveyed the evidence and
saw no material change; and while the petitioners disagree with this assessment, they
have not shown that the BIA’s decision was infirm under our deferential standard of
review.4
The petitioners also argue that the BIA’s decision was irrational, because the
agency inexplicably departed from prior cases presenting nearly identical facts. See, e.g.,
Pet’rs’ Br. 21–22. To the extent that the petitioners rely on unpublished BIA decisions,
“unpublished, single-member BIA decisions have no precedential value, do not bind the
BIA, and therefore do not carry the force of law except as to those parties for whom the
opinion is rendered.” De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 350 (3d Cir. 2010).
Furthermore, it appears that the BIA was adjudicating a timely motion to reopen in the
case cited, as the agency explicitly held that, if considered as a motion for
reconsideration, the petitioner’s submission would have been untimely. See A.R. 177.
Compare 8 C.F.R. § 1003.2(b)(2) (establishing a 30-day period for filing reconsideration
4
The Government contends that the “changed circumstance” advanced by the petitioners is
simply a change in personal circumstances (due to having applied for asylum) and could not
support a motion to reopen in this context. As the Government acknowledges, the case it cites for
that proposition, Anandarajah v. Att’y Gen., 352 F. App’x. 667, 672 (3d Cir. 2009) (per curiam),
is nonprecedential and not binding. See 3d Cir. I.O.P. 5.7. But in any event, the petitioners
claim that attitudes in Sri Lanka have changed towards failed asylum seekers; a change in
personal circumstances that is accompanied by a change in country conditions could be a basis
for reopening. Cf. Liu v. Att’y Gen., 555 F.3d 145, 151 (3d Cir. 2009) (citing Jin v. Mukasey,
538 F.3d 143, 147 (2d Cir. 2008)).
5
motions), with 8 C.F.R. § 1003.2(c)(2) (establishing a 90-day period for filing a motion
to reopen). Even fact patterns that may be “nearly identical” can nonetheless lead to
different outcomes in a markedly different procedural posture.
Finally, the petitioners assert that the BIA denied them due process by considering
a document outside of the record without allowing them to respond to it. We agree with
the Government that the petitioners have not shown substantial prejudice. See Delgado-
Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010). Also, the report in question
was dated March 7, 2012; the petitioners’ motion to reopen, by contrast, was dated May
7, 2012. See A. R. 80. This timing suggests that the petitioners could have been aware
of the report by the time they submitted their motion, and they could have asked the BIA
to reconsider its decision.
For the foregoing reasons, and because the petitioners’ challenge to the BIA’s
decision is otherwise without merit, we conclude that the BIA did not abuse its discretion
by denying the motion to reopen. We will deny the petition for review of the BIA’s
decision.
6