Perera v. Holder

United States Court of Appeals
For the First Circuit

No. 13-1312

KUMUDINIE RENUKA PERERA,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.

Visuvanathan Rudrakumaran on brief for petitioner.
Stuart F. Delery, Assistant Attorney General, Civil Division,
Eric W. Marsteller, Senior Litigation Counsel, Office of
Immigration Litigation, and Jane T. Schaffner, Trial Attorney,
Office of Immigration Litigation, Civil Division, on brief for
respondent.

April 22, 2014
 THOMPSON, Circuit Judge.

PREFACE

This is an immigration case involving Kumudinie Renuka

Perera, a native and citizen of Sri Lanka. Perera asks us to

review an order of the Board of Immigration Appeals ("BIA") denying

her second motion to reopen long-closed removal proceedings. We

deny her petition, for reasons shortly stated. First, some

background.

HOW THE CASE GOT HERE

The parties are familiar with the facts — elsewhere

recounted, see Perera v. Holder, 471 F. App'x 4 (1st Cir. 2012) —

so a simple summary suffices.

Following a hearing that began in 2006 and ended in 2007,

an Immigration Judge ("IJ") rejected Perera's claims for asylum,

withholding of removal, and relief under the Convention Against

Torture ("CAT"), finding two things (among others): first, that

her rough treatment at the hands of Sri Lankan police officers had

been sparked by an intent to extort money from her, not to

persecute her for her political beliefs — i.e., her supposedly

supporting a Sri Lankan separatist group called the Liberation

Tigers of Tamil Eelam ("LTTE"); and second, that she had not shown

that future torture was likely if she were sent back there. So the

IJ ordered her removed. The BIA dismissed her appeal in 2008. And

we denied her petition for review.

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 In 2010 — eighteen months after the BIA had dismissed her

appeal — Perera moved to reopen her case, alleging changed

circumstances in her homeland, e.g., that the police were still

looking high and low for her, adamantly insisting that she is an

LTTE backer. The BIA denied the motion some eight months later,

concluding that her evidence did not show that Sri Lanka had taken

a turn for the worse. And we again denied her petition for review.

In 2012 — more than three years after the BIA had

affirmed her order of removal — Perera filed another motion to

reopen (which is the subject of today's battle), along with a

motion to stay removal and a renewed application for asylum and

related relief. Again alleging changed country conditions, this

time Perera insisted that the Sri Lankan government would persecute

her as a failed asylum seeker if returned home — though she copped

to the possibility that "this fact existed during the Immigration

Court hearing." Emphasizing Sri Lanka's "history of torturing

returned asylum seekers," Perera also wrote that her attorney had

learned in 2011 that the Sri Lankan consulate in New York requires

passport applicants to sign an affidavit stating that they "have

not applied [for] or acquired any refugee or asylum status in" the

United States. Sri Lankan officials use this affidavit to help

single out asylum seekers for persecution (torture or otherwise) —

or so she argued. And to support her claims, she submitted a copy

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of the affidavit plus other documents describing conditions in Sri

Lanka. Here are some of the other documents' highlights:

C A 2011 article by Freedom from Torture suggested that
26 recently-returned failed asylum seekers might be
tortured by Sri Lankan officials, pointing to "the
continued arrest and detention of refused asylum
seekers on their return" and its "awareness of cases
of torture on return."

C A 2011 Amnesty International article expressed the
same concern, relying on the country's "history of
arresting and detaining rejected Sri Lankan asylum
seekers upon their return."

C A 2011 report by the United Nations Committee Against
Torture spotlighted "the continued and consistent
allegations of widespread use of torture and other
cruel, inhuman or degrading treatment" of persons in
Sri Lankan police custody. And the report urged the
Sri Lankan government to prosecute those who torture.

C A 2011 Sri Lankan newspaper article touted "an [i]n-
depth interview" with a former Sri Lankan judge. When
asked about the "continued and consistent allegations
of widespread use of torture" noted by the United
Nations Committee Against Torture, the retired judge
said, "This has been worrying me from the time I was
introduced to the several torture methods used by the
military and the police when I heard [terrorism-
related cases] in the High Court of Colombo twenty
years ago."

C A 2010 report by the Refugee Documentation Centre of
Ireland explained that Sri Lankan officials
interviewed deportees on their return to Sri Lanka,
zeroing in on persons with LTTE ties or who had
traveled with false documents. This has been going on
as far back as 2004, the report stressed.

The BIA denied Perera's motion to reopen and denied her

motion for stay of removal as moot. Turning to the affidavit

issue, the BIA said that Perera failed to show that this

requirement was not in effect at the time of her hearing — meaning

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that the affidavit requirement did not constitute "changed

conditions or circumstances." Also, the BIA added, she never

showed that a prior overseas asylum application increases the risk

of persecution in Sri Lanka. As for the other documents Perera

presented, none showed that the complained-of Sri Lankan conditions

did not exist at the time of her 2006/2007 hearing, the BIA noted

— meaning that this evidence did not constitute "changed conditions

or circumstances" either. Actually, rather than showing changed

conditions, the BIA found that these documents showed that Sri

Lankan officials were continuing to do basically what they had been

doing at the time of her 2006/2007 hearing. Cinching this

conclusion for the BIA was a 2012 report by the United Kingdom

Border Agency, which the BIA administratively noticed. We will

later refer to this as the 2012 UK report. Anyway, that report,

the BIA wrote, not only supported the finding about continuing

problems in Sri Lanka, but it also revealed that the 26 returning

failed asylum seekers mentioned above had been "allowed to proceed

without incident."

The BIA then rejected Perera's bid to coax a contrary

ruling with an unpublished BIA opinion (opinions like that are not

binding precedent, the BIA said). And on top of all this, the BIA

found that Perera had not shown prima facie eligibility for

withholding of removal, asylum, or CAT relief and that no

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"exceptional circumstances" justified its exercising its discretion

to reopen on its own.

Which brings us to today, with Perera essentially

complaining that her proof did show changed country conditions and

that she did make out a prima facie case for relief.

OUR TAKE ON THE CASE

Motions to reopen are "disfavored" because of the threat

they pose to finality. See, e.g., Perez v. Holder, 740 F.3d 57, 61

(1st Cir. 2014). Consequently, the BIA has a fair degree of

latitude in deciding whether to grant or deny such motions. Id.

And we review the BIA's decision only for abuse of discretion. Id.

Basically, that means the BIA's decision will hold unless the

challenger "can show that the BIA committed an error of law or

exercised its judgment in an arbitrary, capricious, or irrational

way," Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007) — a

"highly deferential" standard of review, to be sure, Roberts v.

Gonzales, 422 F.3d 33, 35 (1st Cir. 2005), though "not [a]

toothless" one, Aponte v. Holder, 610 F.3d 1, 4 (1st Cir. 2010).

Ordinarily, a party may file only a single motion to

reopen — and she must file it within 90 days of the final

administrative decision. See 8 C.F.R. § 1003.2(c)(2). Perera's

motion is both number-barred and time-barred. On this, all agree.

But an exception to these bars exists if the reopen motion is based

on "previously unavailable information showing material changed

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circumstances" and the petitioner's proof makes out "'a prima facie

case sufficient to ground a claim of eligibility for the underlying

substantive relief.'" Gasparian v. Holder, 700 F.3d 611, 613 (1st

2012) (citing, among other authorities, 8 C.F.R.

§ 1003.2(c)(3)(ii), and quoting Le Bin Zhu v. Holder, 622 F.3d 87,

92 (1st Cir. 2010)); see also Perez, 740 F.3d at 62. Perera tries

to fit her case within these parameters. That effort fails.

We begin — and ultimately end — with the changed-country-

conditions issue. See Perez, 740 F.3d 62-63 (stopping the analysis

after upholding the BIA's ruling that the petitioner "had not

introduced new, material evidence"). As the BIA supportably

concluded, Perera never showed that the affidavit requirement was

not in place at the time of her 2006/2007 hearing. Perera

complains that the BIA unfairly stuck her with the burden of

"prov[ing] a negative." But having filed this "disfavored" motion,

she — and no one else — bore the "heavy burden" of proving when the

material change occurred. See Ven v. Ashcroft, 386 F.3d 357, 361

(1st Cir. 2004); see also 8 U.S.C. § 1229a(c)(7)(B) (explaining

that the moving party's reopen motion "shall state the new facts

that will be proven at a hearing to be held if the motion is

granted, and shall be supported by affidavits or other evidentiary

material"). Perera also floats the idea that the affidavit

requirement infracts "international law." But she never explains

how or why this is so. And she cites no authority for her thesis,

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either. So her theory is waived by "perfunctory" treatment. See,

e.g., Ahmed v. Holder, 611 F.3d 90, 98 (1st Cir. 2010). On the

BIA's handling of the affidavit requirement, then, we see no abused

discretion.

Nor do we see any abused discretion in the BIA's handling

of the other documents. Recall how Perera herself conceded below

that the Sri Lankan government has a "history of torturing returned

asylum seekers" and that this "fact" may have "existed during the

Immigration Court hearing." Well, we are not surprised that she

did — after all, some of the very documents she trumpets contain

statements stressing things like how the country has a "history of

arresting and detaining rejected Sri Lankan asylum seekers" and how

there are "continued and consistent allegations of widespread use

of torture." (Emphasis added.) Looking for a way out of this

predicament, Perera says that the documents themselves were not

available before the 2006/2007 hearing. Ergo, the argument

continues, her reopen bid was bottomed on evidence that showed a

new and material adverse change in country conditions. The big

problem for her, however, is that she has not shown why other

evidence of Sri Lanka's "history of torturing returned asylum

seekers" — again, words lifted from her reopen motion — was

"unavailable and undiscoverable" at the time of her removal

proceedings. See Le Bin Zhu, 622 F.3d at 92 (citing 8 C.F.R.

§ 1003.2(c)(1), which provides that "[a] motion to reopen

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proceedings shall not be granted unless . . . [the] evidence sought

to be offered is material and was not available and could not have

been discovered or presented at the former hearing"). Clinching

matters, some of her documents show that her complained-of threat

of torture is, sadly, an old condition that has continued, which

also makes her reopen motion a nonstarter. See Tawadrous v.

Holder, 565 F.3d 35, 38 (1st Cir. 2009) (explaining how material,

previously-unavailable evidence must show "the intensification or

deterioration of country conditions, not their mere continuation");

see also generally Fernando v. U.S. Att'y Gen., 2014 WL 464228, at

*1-2 (11th Cir. Feb. 6, 2014) (unpublished) (concluding that

certain documents — including some of the ones Perera relies on

here — "supported the BIA's conclusion that conditions in Sri Lanka

had not changed but, rather, the Sri Lankan government was

continuing a practice that existed when [petitioner] filed his

initial application" and thus doomed his reopen motion).1

As a fallback, Perera blasts the BIA for not following

the unpublished BIA opinion — applying Third Circuit law — that she

had unearthed. But, as the BIA rightly noted, unpublished opinions

like that have "no precedential force." Ang v. Gonzales, 430 F.3d

50, 58 (1st Cir. 2005). So that argument goes nowhere.

Perera also criticizes the BIA for administratively

noticing the 2012 UK report, adding, too, that the BIA never gave

1
Perera's lawyer also represented the Fernando petitioner.

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her a chance to weigh in on that document, which, she protests,

violated her due-process rights. Importantly, the BIA can take

"administrative notice of commonly known facts such as current

events or the contents of official documents." 8 C.F.R.

§ 1003.1(d)(3)(iv). True, Perera insists that 2012 UK report does

not discuss commonly-known facts. But — and it is an important

"but" — she nowhere contends that the report does not constitute an

official document. Applying abuse-of-discretion review, see Yang

Zhao-Cheng v. Holder, 721 F.3d 25, 28 (1st Cir. 2013); see also

Rivera-Cruz v. I.N.S., 948 F.2d 962, 966 (5th Cir. 1991), we find

no error.

Also, a winning due-process claim requires (among other

things) a showing of prejudice, i.e., a showing that the defect

likely affected the proceeding's outcome. See, e.g., Amouri v.

Holder, 572 F.3d 29, 36 (1st Cir. 2009). On de novo review, see

id. at 35-36, we see that Perera makes no effort at all to satisfy

this standard — she does not say what bones she would pick with the

report, for example. And we doubt that she could in any event,

since it is clear that only after finding no proof of changed

conditions did the BIA mention the 2012 UK report, and then simply

to say that the report was "consistent with" its conclusions. See

generally Fernando, 2014 WL 464228, at *3 (reaching the same result

in dealing with the same report).

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 The bottom line, then, is that BIA did not reversibly err

in concluding that Perera's second reopen motion was barred by her

failure to show a material adverse change in country conditions.

And that is that.

FINAL WORDS

Our work over, we deny Perera's petition for judicial

review.

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