         13-592
         Liyanage v. Holder
                                                                                         BIA
                                                                                 A088 775 709
                                                                                 A088 775 710
                               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,
 4       on the 23rd day of June, two thousand thirteen.
 5
 6       PRESENT:
 7                Robert A. Katzmann,
 8                     Chief Judge,
 9                Barrington D. Parker,
10                Reena Raggi,
11                     Circuit Judges.
12       _________________________________________
13
14       SAMPATH GAMMEDDEGODA LIYANAGE,
15       NIMMI IROSHANI DEL SI NANAYAKKARA PALLAGE,
16                Petitioners,
17
18                            v.                                   13-592
19                                                                 NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23
24       _________________________________________
25
26       FOR PETITIONERS:               Visuvanathan Rudrakumaran, New York,
27                                      NY.
28
29       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
 1                             Attorney General; Derek C. Julius,
 2                             Senior Litigation Counsel; Jessica
 3                             R. C. Malloy, Trial Attorney, Office
 4                             of Immigration Litigation, United
 5                             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 Sampath Gammeddegoda Liyanage and his wife,

13   Nimmi Iroshani Del Si Nanayakkara Pallage (“Petitioners”),

14   natives and citizens of Sri Lanka, seek review of the

15   February 5, 2013 decision of the BIA denying their motion to

16   reopen.   In re Sampath Gammeddegoda Liyanage, et al., Nos.

17   A088 775 709/710 (B.I.A. Feb. 5, 2013).     We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history of the case.

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

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

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

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

24   days after the date on which the final administrative

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

26   8 C.F.R. § 1003.2(c)(2).     It is undisputed that Petitioners’

                                     2
 1   motion to reopen was untimely because they filed it in April

 2   2012, almost two years after the order of removal became

 3   final.   However, the time limitation does not apply to a

 4   motion to reopen that is “based on changed circumstances

 5   arising in the country of nationality or in the country to

 6   which deportation has been ordered, if such evidence is

 7   material and was not available and could not have been

 8   discovered or presented at the previous hearing.”     8 C.F.R.

 9   § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).

10       Petitioners argue that Sri Lanka’s policy of

11   persecuting and torturing failed asylum seekers, their

12   status as failed asylum seekers, and the Sri Lankan

13   government’s threats to Liyanage’s mother in 2010 all

14   constitute changed country conditions, and moreover show

15   their prima facie eligibility for asylum.   The BIA concluded

16   that the Sri Lankan government’s policy of mistreating

17   individuals returning from abroad was a continuation of

18   prior practices, not a change in country conditions, and

19   moreover, Petitioners had not shown that the policy was

20   directed particularly at failed asylum seekers.     The BIA

21   further concluded that the threats to Liyanage’s mother did

22


                                   3
 1   not establish Petitioners’ prima facie eligibility for

 2   asylum.

 3       Substantial evidence, including a 2010 Sri Lanka report

 4   by the Refugee Documentation Centre of Ireland discussing

 5   treatment of returning Sri Lankans and citing a report from

 6   2006 describing the same conditions and a 2007 U.S. State

 7   Department Human Rights Report describing generally

 8   mistreatment, torture, and arbitrary arrests and detention

 9   by the Sri Lankan government, supports the BIA’s conclusion

10   that any mistreatment of individuals who return to Sri Lanka

11   from abroad is a continuation of prior practices, not a

12   change in country conditions.       See Jian Hui Shao v. Mukasey,

13   546 F.3d 138, 169 (2d Cir. 2008); see also Matter of S-Y-G-,

14   24 I. & N. Dec. 247, 253 (BIA 2007).

15       Moreover, the BIA did not abuse its discretion in

16   determining that Petitioners did not show that there was a

17   pattern or practice of persecuting failed asylum seekers in

18   Sri Lanka, or that filing for asylum, alone, would result in

19   an increased risk of persecution or torture.      The evidence

20   indicated that Tamil deportees to Sri Lanka, including

21   failed asylum seekers, were detained and questioned

22   regarding links to the LTTE, but quickly released if no


                                     4
 1   links were found and that physical examinations of returnees

 2   occurred when there was suspicion that they had LTTE links,

 3   but were not otherwise routinely carried out on immigration

 4   returnees.

 5       Petitioners object to the BIA taking administrative

 6   notice of the 2012 United Kingdom Border Agency’s Sri Lanka

 7   Country of Origin Information Report (“U.K. COI Report”),

 8   arguing that their lack of opportunity to respond to the

 9   report violated due process.    Generally the BIA errs when it

10   does not allow a movant an opportunity to rebut the

11   significance of potentially dispositive facts of which the

12   BIA took notice.   See Chhetry v. U.S. Dep’t of Justice, 490

13   F.3d 196, 201 (2d Cir. 2007).       However, the U.K. COI Report,

14   and the facts within it of which the BIA took administrative

15   notice, were cumulative of facts already in the record, and

16   in fact an earlier version of the report itself was referred

17   to in a report submitted by Petitioners in support of their

18   motion.   See Jian Hui Shao, 546 F.3d at 168 (differentiating

19   Chhetry on the basis that the judicially noticed facts in

20   that case were the sole basis for denial of the motion to

21   reopen, as opposed to cumulative, and corroborative, of

22   facts already in the record).


                                     5
 1       Nor did the BIA abuse its discretion in determining

 2   that the affidavit from Liyanage’s mother, stating that she

 3   had been visited by Sri Lankan police on two occasions in

 4   2010, asked about her son, threatened, and detained once for

 5   a few hours, did not establish Petitioners’ prima facie

 6   eligibility for relief.   See INS v. Abudu, 485 U.S. 94, 104-

 7   05 (1988).   The harassment and brief detention that

 8   Liyanage’s mother described did not constitute persecution,

 9   and military officers’ questions about where Liyanage lived,

10   and their demand that his mother surrender him, did not show

11   a reasonable likelihood that they sought to persecute him

12   upon his return.   See Jian Hui Shao, 546 F.3d at 172

13   (evidence of penalties or sanctions does not necessarily

14   signal a reasonable possibility of persecution); Ivanishvili

15   v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006);

16   Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).

17       Accordingly, as the BIA’s determination that there was

18   no change in country conditions is supported by substantial

19   evidence and as the Petitioners have not identified any

20   error in the BIA’s conclusion that they failed to

21   demonstrate prima facie eligibility for asylum or other

22   relief, the BIA did not abuse its discretion in denying


                                   6
 1   Petitioners’ motion to reopen.      See 8 U.S.C.

 2   § 1229a(c)(7)(C)(ii); Abudu, 485 U.S. at 104-05; Kaur, 413

 3   F.3d at 233.

 4       For the foregoing reasons, the petition for review is

 5   DENIED.     As we have completed our review, the pending

 6   motions for a stay of removal and to compel the government

 7   to return Liyanage to the United States are DISMISSED as

 8   moot.     However, because Liyanage was removed from the United

 9   States after filing the petition for review and a motion for

10   a stay of removal, the government is ORDERED to show cause,

11   within thirty days of the date of this order, why Liyanage

12   was removed to Sri Lanka despite the agreement to forbear

13   from removing petitioners who have filed motions for stays

14   of removal; why the government should not be sanctioned for

15   breaching the forbearance policy; and what the government

16   can do in the future to avoid removing petitioners who have

17   pending motions for stays of removal.

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19

20

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                                     7
 1       Any pending request for oral argument in this petition

 2   is DENIED in accordance with Federal Rule of Appellate

 3   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

 4                              FOR THE COURT:
 5                              Catherine O’Hagan Wolfe, Clerk
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