         10-1442-ag
         Sabaratnam v. Holder
                                                                                        BIA
                                                                                 Montante, IJ
                                                                               A026 859 895
                                 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 7th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _______________________________________
12
13       SWENTHINI SABARATNAM,
14                Petitioner,
15
16                              v.                              10-1442-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Visuvanathan Rudrakumaran, New York,
24                                        New York.
25
26       FOR RESPONDENT:                  Tony West, Assistant Attorney
27                                        General; Anh-Thu P. Mai-Windle,
28                                        Senior Litigation Counsel; Ann M.
29                                        Welhaf, Attorney, Office of
30                                        Immigration Litigation, United
31                                        States Department of Justice,
32                                        Washington, D.C.
 1          UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is GRANTED.

 5          Swenthini Sabaratnam, a native of Zambia and citizen of

 6   Sri Lanka, seeks review of an April 22, 2009, decision of

 7   the BIA, affirming the September 18, 2007, decision of

 8   immigration judge (“IJ”), insofar as he pretermitted her

 9   asylum application as untimely, and vacating the IJ’s

10   decision insofar as he denied her application for

11   withholding of removal.     In re Swenthini Sabaratnam, No.

12   A026 859 895 (B.I.A. Apr. 22, 2009), aff’g in part and

13   vacating in part No. A026 859 895 (Immig. Ct. Buffalo Sept.

14   18, 2007).    We assume the parties’ familiarity with the

15   underlying facts and procedural history of this case.

16          Under the circumstances of this case, we review   the

17   IJ’s decision as modified by the BIA decision, i.e., minus

18   the arguments for denying relief that were rejected by the

19   BIA.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

20   520, 522 (2d Cir. 2005).    The applicable standards of review

21   are well-established.     See 8 U.S.C. § 1252(b)(4)(B); see

22   also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.

23   2009).


                                     2
 1       Sabaratnam challenges the agency’s pretermission of her

 2   asylum application as untimely filed; specifically, its

 3   finding that she failed to demonstrate extraordinary

 4   circumstances excusing the untimeliness of that application.

 5   Title 8, Section 1158(a)(3) of the United States Code

 6   provides that no court shall have jurisdiction to review the

 7   agency’s finding that an asylum application was untimely

 8   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

 9   changed nor extraordinary circumstances excusing the

10   untimeliness under 8 U.S.C. § 1158(a)(2)(D).

11   Notwithstanding that provision, however, we retain

12   jurisdiction to review constitutional claims and “questions

13   of law.”     8 U.S.C. § 1252(a)(2)(D).

14       Here, Sabaratnam argues that the agency erred as a

15   matter of law by applying to her case the requirements for

16   bringing an ineffective assistance of counsel claim

17   announced in Matter of Lozada, 19 I. & N. Dec. 637 (BIA

18   1988).     She contends that she should have been excused from

19   complying with those requirements because her counsel

20   admitted to the IJ that he was at fault for the untimely

21   filing of her asylum application.        Sabaratnam’s argument

22   that the agency applied an incorrect legal standard raises a

23   question of law over which this Court has jurisdiction.          See


                                     3
 1   Gui Yin Liu v. INS, 508 F.3d 716, 721 (2d Cir. 2007)

 2   (citation omitted).

 3       Under both the agency’s regulations and Matter of

 4   Lozada, an alien claiming ineffective assistance of counsel

 5   must submit:

 6         (1) an affidavit setting forth in detail the
 7         agreement with former counsel concerning what
 8         action would be taken and what counsel did or did
 9         not represent in this regard; (2) proof that the
10         alien notified former counsel of the allegations
11         of ineffective assistance and allowed counsel an
12         opportunity to respond; and (3) if a violation of
13         ethical or legal responsibilities is claimed, a
14         statement as to whether the alien filed a
15         complaint with any disciplinary authority
16         regarding counsel’s conduct and, if a complaint
17         was not filed, an explanation for not doing so.
18
19   Twum v. INS, 411 F.3d 54, 59 (2d Cir. 2005) (quoting

20   Esposito v. INS, 987 F.2d 108, 110-11 (2d Cir. 1993) (per

21   curiam) (citing Matter of Lozada, 19 I. & N. Dec. at 639));

22   see also 8 C.F.R. §§ 208.4(a)(5)(iii), 1208.4(a)(5)(iii).

23   We have never demanded strict adherence to these

24   requirements, but have recognized that substantial

25   compliance is required “to deter meritless claims and to

26   provide a basis for determining whether counsel’s assistance

27   was in fact ineffective.”   Twum, 411 F.3d at 59 (citation

28   omitted); see also Yi Long Yang v. Gonzales, 478 F.3d 133,

29   143-44 (2d Cir. 2007) (citation omitted).   We have found

30   substantial compliance when the facts on which an

                                   4
 1   ineffective assistance of counsel claim is based “are clear

 2   on the face of the record.”     Yi Long Yang, 478 F.3d at 143.

 3       In this case, requiring Sabaratnam’s strict compliance

 4   with the Lozada requirements was unnecessary because her

 5   attorney admitted to the IJ the ineffective assistance, and

 6   because the IJ had an opportunity to question Sabaratnam’s

 7   counsel on the record to determine the veracity of his

 8   admission, but chose not do so.     See Qun Yang v. McElroy,

 9   277 F.3d 158, 162 (2d Cir. 2002) (“the IJ . . ., unlike an

10   Article III judge, is not merely the fact finder and

11   adjudicator but also has an obligation to establish the

12   record”) (citations omitted).     Indeed, her attorney’s

13   concession alone satisfied the Lozada requirements because

14   it demonstrated that they had an agreement regarding

15   representation, established that he had notice of her

16   allegations of ineffective assistance, and explained her

17   failure to file a complaint regarding his ineffective

18   assistance.    See Yi Long Yang, 478 F.3d at 143; see also

19   Twum, 411 F.3d at 59.   Therefore, we conclude that

20   Sabaratnam substantially complied with the procedural

21   requirements of Lozada, and remand for the agency to decide

22   whether she was prejudiced by the ineffective assistance of

23   her counsel.    See Yi Long Yang, 478 F.3d at 143-44.

24       We note that although there has been a significant
                                  5
 1   change in conditions in Sri Lanka, we cannot confidently

 2   predict that remand would be futile.   See Shunfu Li v.

 3   Mukasey, 529 F.3d 141, 150 (2d Cir. 2008).   In granting

 4   Sabaratnam’s parents asylum, the BIA found that they had

 5   demonstrated a well-founded fear of harm by the Liberation

 6   Tigers of Tamil Eelam (“LTTE”), a group that the Sri Lankan

 7   government was unable to control, and noted that the Sri

 8   Lankan government often detained young Tamils based on an

 9   incorrect assumption that they were LTTE members.    Although

10   in May 2009, the Sri Lankan army defeated the LTTE

11   militarily, ending the civil war in Sri Lanka and capturing

12   all remaining LTTE-controlled territory, the U.S. Department

13   of State 2010 Country Report on Human Rights Practices in

14   Sri Lanka indicates that repercussions of the war continue

15   to impact human rights in Sri Lanka, particularly for Tamils

16   such as Sabaratnam.   U.S. Dep’t of State, Sri Lanka, Country

17   Reports on Human Rights Practices 2010 (2011), available at

18   http://www.state.gov/g/drl/rls/hrrpt/2010/sca/154486.htm;

19   see also Hoxhallari v. Gonzales, 468 F.3d 179, 186 n.5 (2d

20   Cir. 2006) (providing that the Court “may always exercise

21   independent discretion to take judicial notice of any

22   further changes in a country’s politics that occurred

23   between the time of the BIA’s determination decision and

24   [the Court’s] review”).   Furthermore, on remand, the agency
                                    6
 1   may decide that Sabaratnam is entitled to nunc pro tunc

 2   relief.    See Xue Yong Zhang v. Holder, 617 F.3d 650, 665 &

 3   n.13 (2d Cir. 2010) (recognizing that “an award of nunc pro

 4   tunc may, in an appropriate circumstance, be granted as a

 5   means of rectifying error in immigration proceedings” and

 6   that “[w]hen a matter is adjudicated nunc pro tunc, it is as

 7   if it were done as of the time that it should have been

 8   done.”) (internal quotation marks and citations omitted).

 9       For the foregoing reasons, the petition for review is

10   GRANTED.   As we have completed our review, any stay of

11   removal that the Court previously granted in this petition

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

13   this petition is DISMISSED as moot.    Any pending request for

14   oral argument in this petition is DENIED in accordance with

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

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19




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