         13-851
         Randeniya v. Holder
                                                                                            BIA
                                                                        A099 320 086/087/088/089
                                                                                   A076 143 068
                                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 13th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                         JOHN M. WALKER, JR.,
 8                         JOSÉ A. CABRANES,
 9                         RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _________________________________________
12
13       SAMAN RANDENIYA, AKA FRANCIS ALEXANDER
14       WARNA FERNANDO, NAMALI RANDENIYA, AKA
15       MARY NAMALI DEEPTHI WARNAKULASURIYA,
16       SAVINDA RANDENIYA, AKA FERNANDO SAVINDA
17       WARNAKU SILMAGURUGE, KEVIN RANDENIYA,
18       AKA FERNANDO KEVIN WARNAKULA SILMAGURUGE,
19       NETHMI RANDENIYA, AKA FERNANDO NETHMI
20       WARNAKUL SILMAGURUGE,
21                     Petitioners,
22
23                             v.                                  13-851
24                                                                 NAC
25       ERIC H. HOLDER, JR., UNITED STATES
26       ATTORNEY GENERAL,
27                     Respondent.
28       _________________________________________
29
30       FOR PETITIONERS:                 Nitin Kaushik, New York, NY.
 1   FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
 2                           General; Ethan B. Kanter, Deputy
 3                           Chief, National Security Unit;
 4                           Daniel I. Smulow, Trial Attorney,
 5                           Office of Immigration Litigation,
 6                           United States Department of Justice,
 7                           Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

10   Board of Immigration Appeals (“BIA”) decision, it is hereby

11   ORDERED, ADJUDGED, AND DECREED that the petition for review

12   is DENIED.

13       Petitioner Saman Randeniya (“Randeniya”), his wife,

14   Namali Randeniya, natives and citizens of Sri Lanka, and

15   their three children, Savinda Randeniya, Kevin Randeniya,

16   and Nethmi Randeniya (collectively, “Petitioners”), natives

17   of Italy and citizens of Sri Lanka, seek review of the

18   February 20, 2013, decision of the BIA denying their motion

19   to reopen.   In re Saman Randeniya, et al., Nos. A099 320

20   086/087/088/089, A076 143 068 (B.I.A. Feb. 20, 2013).    We

21   assume the parties’ familiarity with the underlying facts

22   and procedural history of the case.

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

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

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

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

27   days after the date on which the final administrative

                                   2
 1   decision was rendered.     8 U.S.C. § 1229a(c)(7)(C)(i); 8

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

 3   motion to reopen was untimely because they filed it in

 4   November 2012, more than four years after the order of

 5   removal became final.     However, the time limitation does not

 6   apply to a motion to reopen that is “based on changed

 7   circumstances arising in the country of nationality or in

 8   the country to which deportation has been ordered, if such

 9   evidence is material and was not available and could not

10   have been discovered or presented at the previous hearing.”

11   8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

12   § 1229a(c)(7)(C)(ii).

13       As an initial matter, Petitioners have been ordered

14   removed to Italy, and have not challenged that designation,

15   either in the initial proceedings or in the motion to

16   reopen.   However, because the BIA analyzed whether Randeniya

17   established changed country conditions in Sri Lanka, and

18   because the statute indicates that to excuse untimeliness

19   the movant may show     “changed country conditions arising in

20   the country of nationality or the country to which removal

21   has been ordered,” 8 U.S.C. § 1229a(c)(7)(C)(ii) (emphasis

22   added), we analyze whether substantial evidence supports the


                                     3
 1   BIA’s conclusion that Randeniya did not establish changed

 2   country conditions in Sri Lanka.

 3       Randeniya’s decision to join the Sri Lankan Democratic

 4   National Alliance (“DNA”) while in the United States

 5   reflects a self-induced change in personal circumstances,

 6   and therefore does not exempt his motion from the applicable

 7   bars.   See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d

 8   Cir. 2006).   Because Randeniya did not join the DNA until

 9   2009, well after he was ordered removed, the BIA did not

10   abuse its discretion in concluding that his membership did

11   not establish an exception to the filing deadline.

12       Randeniya also argues that he demonstrated changed

13   country conditions based on his affidavit stating that the

14   Sri Lankan security forces were aware of his membership in

15   the DNA, visited his sister’s home in Sri Lanka, and told

16   her that they would kill him if he returned.      The BIA’s

17   determination that this evidence was of little probative

18   value is entitled to deference, particularly in light of the

19   agency’s prior finding that Randeniya was not credible as to

20   certain aspects of his claim.       See Qin Wen Zheng v.

21   Gonzales, 500 F.3d 143, 149 (2d Cir. 2007); Xiao Ji Chen v.

22   U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006).


                                     4
 1       Because Randeniya did not establish a change in country

 2   conditions, the BIA did not abuse its discretion in denying

 3   Petitioners’ motion to reopen as untimely.

 4       For the foregoing reasons, the petition for review is

 5   DENIED.   As we have completed our review, any stay of

 6   removal that the Court previously granted in this petition

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

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

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15




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