18-2620
Perera v. Wilkinson
BIA
A099 758 977
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 TO 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 1st day of February, two thousand twenty-one.
5
6 PRESENT:
7 AMALYA L. KEARSE,
8 PIERRE N. LEVAL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 KASTURI ARACHCHIGE JOSEPH GAMI
14 PERERA,
15 Petitioner,
16
17 v. 18-2620
18
19 MONTY WILKINSON, ACTING UNITED
20 STATES ATTORNEY GENERAL,
21 Respondent. 1
22 _____________________________________
23
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Acting Attorney General Monty Wilkinson is automatically
substituted for former Acting Attorney General Jeffrey A.
Rosen as Respondent.
1 FOR PETITIONER: VISUVANATHAN RUDRAKUMARAN, ESQ., New
2 York, NY.
3
4 FOR RESPONDENT: R. TRENT MCCOTTER, Deputy Associate
5 Attorney General (Joseph H. Hunt,
6 Assistant Attorney General, Margot
7 L. Carter, Senior Litigation
8 Counsel, Aaron D. Nelson, Trial
9 Attorney, on the brief), United
10 States Department of Justice,
11 Washington, DC.
12 UPON DUE CONSIDERATION of this petition for review of a
13 Board of Immigration Appeals (“BIA”) decision, it is hereby
14 ORDERED, ADJUDGED, AND DECREED that the petition for review
15 is DENIED.
16 Petitioner Kasturi Arachchige Joseph Gami Perera, a
17 native and citizen of Sri Lanka, seeks review of a 2018
18 decision of the BIA denying his motion to reopen his removal
19 proceedings. In re Perera, No. A 099 758 977 (B.I.A. Aug. 2,
20 2018). We assume the parties’ familiarity with the underlying
21 facts and procedural history, to which we refer only as
22 necessary to explain our decision to deny the petition for
23 review.
24 We review the BIA’s denial of a motion to reopen for
25 abuse of discretion and its country conditions determination
26 for substantial evidence. See Jian Hui Shao v. Mukasey, 546
2
1 F.3d 138, 168–69 (2d Cir. 2008). Generally, an alien seeking
2 to reopen may file one motion to reopen no later than 90 days
3 after the final administrative decision. 8 U.S.C.
4 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Perera’s
5 2018 motion to reopen was untimely because it was filed more
6 than six years after his 2011 final removal order. The 90-
7 day time limitation is not applicable, however, where the
8 movant seeks permission to apply for asylum “based on changed
9 country conditions arising in the country of nationality or
10 the country to which removal has been ordered, if such
11 evidence is material and was not available and would not have
12 been discovered or presented at the previous proceedings.”
13 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
14 § 1003.2(c)(3)(ii). “In determining whether evidence
15 accompanying a motion to reopen demonstrates a material
16 change in country conditions that would justify reopening,
17 [the agency] compare[s] the evidence of country conditions
18 submitted with the motion to those that existed at the time
19 of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec.
20 247, 253 (BIA 2007).
21
3
1 Upon review, we hold that the agency erred in concluding
2 that the conditions facing unsuccessful asylum seekers
3 returning to Sri Lanka (in general, those with perceived ties
4 to the group, the Liberation Tigers of Tamil Ealam (“LTTE”))
5 did not change in the time between Perera’s original 2008
6 asylum hearing and his 2018 motion to reopen. Nevertheless,
7 we deny the petition for review in light of our conclusion
8 that remanding the matter to the agency for Perera to file a
9 successive asylum application would be futile. Xiao Ji Chen
10 v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.
11 2006)(Remand is not required where it “would be futile”). The
12 record demonstrates that Perera is unlikely to face
13 persecution as a returned asylum seeker in Sri Lanka.
14 Perera adduced sufficient evidence that country
15 conditions in Sri Lanka changed between 2008 and 2018. Most
16 notably, the multi-decade civil war, fought between the LTTE
17 (which sought to establish an independent state for the Tamil
18 minority of Sri Lanka) and the government (which is controlled
19 by the country’s Sinhalese ethnic majority group), ended in
20 2009. See Certified Administrative Record at 368, 691, 702,
21 767-68. The nature of persecution facing returning asylum
4
1 seekers has in turn changed.
2 Specifically, Perera adduced evidence that incidents of
3 detention, torture, and even killing of returning asylum
4 seekers escalated in the post-war period — after the 2008
5 hearing. See id. at 350, 356, 360, 368, 373 (describing that
6 groups of asylum seekers were detained immediately upon entry
7 at the Sri Lankan border in 2010, 2012, and 2017). Indeed,
8 these incidents appear to have been more systematically
9 carried out than the two isolated examples in 2003 and 2006,
10 cited in the record. See id. at 280, 392 (describing two
11 incidents in which a returning Tamil individual was detained
12 upon entry and then tortured or killed).
13 Furthermore, assessing an asylum application based on
14 such persecution requires that attention be paid to the
15 nuances of the post-war regime and to the particular returning
16 asylum seekers that the regime is targeting. For example,
17 Perera’s evidence shows that the government has largely
18 targeted returning Tamil individuals who the government
19 suspects have ties to the LTTE. See id. at 368, 373. The
20 situation in Sri Lanka facing these asylum seekers has also
21 fluctuated overtime. Although the government claimed at one
5
1 point that returning Tamil asylum seekers faced no
2 repercussions, human rights groups, the United Nations, and
3 the press have documented significant examples to the
4 contrary. See id. at 345, 347, 367–69, 373. Perera could not
5 have adduced evidence of these conditions in 2008, because
6 this post-war reality did not yet exist.
7 We nevertheless deny the petition for review because
8 remanding to allow Perera to file a successive asylum
9 application would be futile. All of the evidence that Perera
10 submits shows that the danger to returning asylum seekers
11 lies at the Sri Lankan border, where such individuals may be
12 detained immediately upon or shortly after entering the
13 country and then held indefinitely, tortured, or even killed.
14 See id. at 350, 356, 360, 368, 373. By contrast, Perera’s
15 counsel admitted at oral argument that Perera was permitted
16 to enter Sri Lanka after his deportation from the United
17 States in 2018, and he has continued to live there without
18 any reported incident.
19 Furthermore, unlike the Tamil asylum seekers who, the
20 record shows, are the main target of the Sri Lankan
21 government, Perera is part of the majority ethnic group, the
6
1 Sinhalese. Certainly, some Sinhalese have also faced
2 persecution by the government, usually for suspected ties to
3 the LTTE. See id. at 350, 356. But in Perera’s prior asylum
4 proceedings, we concluded that these were not his
5 circumstances. He could not credibly show that the government
6 targeted him for any purported ties to the LTTE or any other
7 reason. See In re Kasturi Arachchige Joseph Gami Perera, No.
8 A099 758 977 (Immig. Ct. N.Y. City Oct. 30, 2008), aff’d No.
9 A099 758 977 (B.I.A. Apr. 21, 2011), aff’d Perera v. Holder,
10 491 F. App’x 239 (2d Cir. 2012) (“[T]he respondent is unable
11 to demonstrate that there is a particular interest in him by
12 . . . the police or the government of Sri Lanka,” as a result
13 of his wife’s family’s alleged sympathies for the LTTE or
14 otherwise). Indeed, in our 2012 review, we upheld an
15 immigration judge’s adverse determination of Perera’s
16 credibility with respect to his accounts of persecution,
17 given “dramatic inconsistences” in the testimony he gave to
18 U.S. and Canadian asylum authorities, respectively. See
19 Perera, 491 F. App’x at 240.
20
21
7
1 For the foregoing reasons, the petition for review is
2 DENIED.
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe,
5 Clerk of Court
8