09-2720-ag
Kumarasinghe v. Holder
BIA
A 029 029 432
A 070 900 983
A 070 900 984
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 27 th day of April, two thousand ten.
PRESENT:
JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
REENA RAGGI,
Circuit Judges.
_______________________________________
SISIRA KUMARASINGHE, ANULA RATNAYAKE,
JAYASANKA KUMARASINGHE,
Petitioners,
v. 09-2720-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Sisira Kumarasinghe, pro se, Staten
Island, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Jamie M. Dowd,
Senior Litigation Counsel, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Petitioners Sisira Kumarasinghe, Anula Ratnayake, and
Jayasanka Kumarasinghe, natives and citizens of Sri Lanka,
seek review of the May 29, 2009 order of the BIA denying
their motion to reopen. 1 In re Sisira Kumarasinghe, Anula
Ratnayake, Jayasanka Kumarasinghe, Nos. A 029 029 432, 070
900 983, 070 900 984 (B.I.A. May 29, 2009). We review the
BIA’s denial of a motion to reopen for abuse of discretion,
mindful of the Supreme Court’s admonition that such motions
are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006) (citing INS v. Doherty, 502 U.S. 314, 322-23
(1992)). In doing so, we assume the parties’ familiarity
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Sisira Kumarasinghe is the lead respondent in this
case. Anula Ratnayake, his wife, and Jayasanka
Kumarasinghe, his son, are included as derivative
applicants.
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with the facts and the record of prior proceedings, which we
reference only to the extent necessary to explain our
decision.
Having thoroughly reviewed the record, we identify no
abuse of discretion in the BIA’s denial of petitioners’
motion to reopen as untimely. First, it is undisputed that
the motion to reopen was filed more than six years after the
BIA’s June 2002 final order. See 8 C.F.R. § 1003.2(c)(2)
(providing that motion to reopen “must be filed no later
than 90 days after” final administrative order). Although
there is no time limit for filing a motion to reopen “based
on changed circumstances arising in the country of
nationality or in the country to which deportation has been
ordered, if such evidence is material and was not available
and could not have been discovered or presented at the
previous hearing,” id. § 1003.2(c)(3)(ii), the BIA properly
found that petitioners failed to demonstrate that their
motion satisfied the requirements of this exception. See
INS v. Abudu, 485 U.S. 94, 104-05 (1988).
Petitioners argue that they demonstrated changed
country conditions based on the government’s violation of
8 C.F.R. § 208.6. We are not persuaded. Under § 208.6,
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“[i]nformation contained in or pertaining to any asylum
application . . . shall not be disclosed without the written
consent of the applicant.” Id. The relevant inquiry
therefore is “whether the information disclosed by the
government was sufficient to give rise to a reasonable
inference” that the petitioners had applied for asylum.
Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 264 (2d
Cir. 2006).
Here, the BIA properly found that because petitioners
submitted no evidence demonstrating that the details of
their asylum claims were disclosed to the American
consulate, the consulate could not have relayed such
information to Sri Lankan authorities. Furthermore,
although petitioners submitted a letter from local police
requesting that Sisira Kumarasinghe appear for “an official
matter,” the BIA concluded that the letter was not only
unauthenticated but also failed to provide any indication
that the police were aware of petitioners’ claims for
asylum. Cf. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d
391, 404-05 (2d Cir. 2005) (holding that IJ may not reject
asylum seeker’s document solely because it is
unauthenticated); Jian Xing Huang v. INS, 421 F.3d 125, 129
4
(2d Cir. 2005) (concluding that fear not objectively
reasonable if it lacks “solid support” in record and is
merely “speculative at best”). On this record, the BIA’s
determination that the government did not violate § 208.6
was not an abuse of discretion.
Petitioners also contend that they demonstrated prima
facie eligibility for relief on account of changed country
conditions by pointing to Sisira Kumarasinghe’s support of a
political opponent of the Sri Lankan President. This
contention is unavailing. A statement submitted by Sisira
Kumarasinghe’s brother-in-law gave no indication that Sri
Lankan authorities were aware of Kumarasinghe’s alleged
return to political activity. Nor did petitioners submit
any corroborating evidence in support of the claim of
renewed political involvement, which contradicted Sisira
Kumarasinghe’s testimony that he had not been involved in
politics for more than twenty years. Diallo v. INS, 232
F.3d 279, 285-86 (2d Cir. 2000) (corroborating evidence “may
be required where it would reasonably be expected”). As the
BIA noted, such corroborating evidence should have been
readily available given Sisira Kumarasinghe’s assertion that
the former President of Sri Lanka personally contacted him
and asked him to contest a local election. In light of
5
these facts, the BIA did not abuse its discretion in
rejecting petitioners’ claim that Sisira Kumarasinghe’s
renewed political involvement demonstrated changed country
conditions sufficient to cure the untimeliness of their
motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii).
Petitioners’ remaining arguments that the BIA engaged
in improper fact-finding and applied the wrong legal
standard also fail. In assessing whether petitioners’
evidence of changed country conditions was “material and was
not available and could not have been discovered or
presented at the former hearing,” 8 C.F.R. § 1003.2(c)(1),
the BIA did nothing more than perform the function legally
required of it.
Having determined that petitioners failed to
demonstrate changed country conditions and that their motion
to reopen was therefore untimely, the BIA had no occasion to
reach petitioners’ claims for relief under the Convention
Against Torture.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
6
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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