                                        No. 03-4062
                                  File Name: 05a0446n.06
                                    Filed: May 27, 2005

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

CHANDANA WEERASINGHE,                               )
                                                    )
   Petitioner,                                      )
                                                    )
       v.                                           ) ON PETITION FOR REVIEW OF
                                                    ) AN ORDER OF THE BOARD OF
JOHN ASHCROFT,                                      ) IMMIGRATION APPEALS
                                                    )
   Respondent.                                      )



Before:          NELSON and BATCHELDER, Circuit Judges, and COLLIER, District
                 Judge.*


       DAVID A. NELSON, Circuit Judge. This case comes before us on a petition for

review of a final order in which the Board of Immigration Appeals denied an application for

asylum and withholding of removal. Citing the absence of corroborating evidence, an

immigration judge declined to credit the petitioner’s testimony that he was arrested, detained,

and beaten by police in his native country. The petitioner now argues that the immigration

judge erred in refusing to admit corroborating documents offered on the date of the hearing.




       *
       The Honorable Curtis L. Collier, United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 03-4062
Page 2

       No such argument was presented in the administrative appeal. The petitioner’s failure

to exhaust this issue deprives our court of jurisdiction to consider it. See Ramani v. Ashcroft,

378 F.3d 554, 558-60 (6th Cir. 2004). Accordingly, we shall deny the petition for review.


                                               I


       The petitioner, Chandana Weerasinghe, entered the United States without

documentation in October of 2000. The Immigration and Naturalization Service initiated

removal proceedings against him, and Mr. Weerasinghe applied for asylum and withholding

of removal. According to Mr. Weerasinghe’s asylum application, he is a native and citizen

of Sri Lanka.

       Mr. Weerasinghe was the only witness at the hearing on his application. He testified

that he was arrested by Sri Lankan police in August of 1999 and detained for seven or eight

days, during which time he was beaten and questioned about a man named Samon

Deleanadachi. (This individual is also referred to in the hearing transcript as Samantha

Liyange.) The police told Mr. Weerasinghe, he said, that Mr. Deleanadachi provided money

and weapons to the Tamil Tigers, a terrorist organization of ethnic Tamils. Mr. Weerasinghe

denied any knowledge of such activities. Mr. Weerasinghe was released after his father

bribed an official. He then learned that a friend he knew as Samon Peraro was the man the

police called Samon Deleanadachi. Mr. Weerasinghe said that he fled Sri Lanka in fear of

both the police and Mr. Deleanadachi.
No. 03-4062
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       Although Mr. Weerasinghe testified that he speaks to his family in Sri Lanka about

once a week, he did not present an affidavit from his father or any other documents

corroborating his testimony. His lawyer sought to introduce four documents at the hearing,

but the immigration judge refused to accept them on the ground that they should have been

submitted in advance of the hearing date.

       At the conclusion of the hearing, the immigration judge denied Mr. Weerasinghe’s

application. The immigration judge observed that Weerasinghe’s uncorroborated testimony

was not “the type of specific, detailed, believable testimony which is capable of providing

adequate support for his claim.”

       Mr. Weerasinghe appealed to the Board of Immigration Appeals, presenting two

assignments of error. First, Weerasinghe challenged the immigration judge’s credibility

determination, noting that it was at least partially based on the absence of corroborating

evidence. Second, Weerasinghe challenged the immigration judge’s refusal of a request to

continue the hearing. The Board affirmed without opinion.

       Mr. Weerasinghe has filed a timely petition for review.


                                            II


       Broadly speaking, Mr. Weerasinghe argues that the immigration judge should not

have discredited his testimony because of the lack of corroborating evidence. The thrust of
No. 03-4062
Page 4

his argument is that the judge should not have rejected his offer of documents on the date of

the hearing without letting Weerasinghe attempt to justify the untimeliness of the submission.

       That specific argument was never presented to the Board of Immigration Appeals.

Mr. Weerasinghe’s brief to the Board had this, and only this, to say with respect to his first

assignment of error:

             “Immigration Judge found Respondent to be lacking credibility.
       Immigration Judge stated that Respondent failed to substantiate his claim by
       producing documentation or corroborative evidence.

              Respondent relied on his testimony because his [sic] did not or was
       unable to obtain additional documentation. Respondent testified that he was
       taken into custody and beaten by the police for what he found out later to be
       because of a relationship with a friend that he had no idea to be a member of
       the Temele Tigers. Respondent has a well-founded fear of persecution if
       forced to return to Sri Lanka. Respondent feels that [he] will be killed either
       by the police or by the Temele Tigers.”

       With respect to Mr. Weerasinghe’s second assignment of error, the brief said only that

the immigration judge should have granted a continuance because Weerasinghe was

“somewhat disoriented” and “unable to answer simple questions regarding his claim.” There

was no suggestion that a continuance was needed for a reason having anything to do with

corroborating documents.

       Far from challenging the immigration judge’s exclusion of late-submitted documents,

Mr. Weerasinghe’s brief suggested that the absence of corroborating evidence was due to his

own (or perhaps his attorney’s) failure or inability to obtain such evidence. The brief made
No. 03-4062
Page 5

no mention whatever of Weerasinghe’s unsuccessful attempt to introduce documents on the

date of the hearing.

       Mr. Weerasinghe contends that his brief sufficiently raised a “challenge to the

Immigration Judge’s credibility determination based upon [Weerasinghe’s] alleged failure

to corroborate his claim.” Perhaps so. But Weerasinghe’s argument to this court is not that

he in fact placed corroborating evidence in the record, or that his testimony should have been

credited regardless of whether there was corroborating evidence. His argument, to repeat,

is that the immigration judge should not have excluded his documents without allowing him

to explain why he was late in presenting them. It cannot fairly be said, in our opinion, that

the argument Mr. Weerasinghe has presented here was subsumed within the argument he

presented to the Board.

       Our decision in Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004), is instructive on this

point. The notice of appeal filed with the Board in Ramani had raised a general challenge

to the immigration judge’s credibility determination. See id. at 557. But Mr. Ramani’s

arguments to this court were more specific; he argued that the judge had used unadmitted and

unreliable evidence to impugn his credibility. See id. at 558. Noting that the more specific

arguments had not been presented to the Board in the notice of appeal, we concluded that the
No. 03-4062
Page 6

petitioner had failed to exhaust his administrative remedies. Id. at 558-59. The logic of

Ramani dictates that we reach the same conclusion here.1

       Mr. Weerasinghe’s failure to exhaust his administrative remedies deprives this court

of jurisdiction. See 8 U.S.C. § 1252(d)(1); Ramani, 378 F.3d at 558, 559. As we held in

Ramani, “only claims properly presented to the [Board] and considered on their merits can

be reviewed by this court in an immigration appeal.” Ramani, 378 F.3d at 560. Because the

argument advanced here was not properly presented to the Board, the petition for review is

DENIED.




       1
        The respondent has suggested that Mr. Weerasinghe could have exhausted his
evidentiary issue by submitting the excluded documents to the Board. We are not persuaded
that he had that option. Although the Board was empowered to review the immigration
judge’s factual findings de novo, see 8 C.F.R. § 3.1(d)(1) (2002), it was not empowered to
receive additional evidence. See 8 C.F.R. § 1003.1(d)(3)(iv) (2005). (The regulations
governing appeals to the Board were amended while Mr. Weerasinghe’s appeal was pending,
and while a regulation requiring the Board to review factual findings for clear error was not
made applicable to pending cases, a regulation prohibiting the Board from receiving evidence
was made applicable to such cases. See id. § 1003.3(f); 67 Fed. Reg. 54878, 54899 (Aug.
26, 2002).) Mr. Weerasinghe could have moved for a remand to the immigration judge, see
8 C.F.R. § 1003.1(d)(3)(iv) (2005), but that would probably have been a vain act.
