Perera v. Holder, Jr.

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1124
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
Boudin, Lipez, and Howard, Circuit Judges.
Visuvanathan Rudrakumaran on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, Melissa
Neiman-Kelting, Senior Litigation Counsel, Office of Immigration
Litigation, and Jane T. Schaffner, Trial Attorney, Office of
Immigration Litigation, Civil Division, United States Department of
Justice, on brief for respondent.
March 27, 2012
LIPEZ, Circuit Judge. Kumudinie Renuka Perera, a native
and citizen of Sri Lanka, petitions for review of a Board of
Immigration Appeals ("BIA") decision denying her untimely motion to
reopen removal proceedings based on a claim of changed country
conditions. We deny the petition.
I.
Perera entered the United States on January 26, 2004, as
a nonimmigrant visitor with authorization to remain in the country
until July 25, 2004. On January 20, 2005, she applied for asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"), claiming that she had been and would be persecuted
or tortured in Sri Lanka based on an imputed political opinion,
namely her alleged support for the Liberation Tigers of Tamil Eelam
("LTTE"), a terrorist group in Sri Lanka. The Department of
Homeland Security issued a Notice to Appear on March 24, 2005,
charging Perera with being subject to removal for overstaying her
visa. See 8 U.S.C. § 1227(a)(1)(B). Perera conceded that she was
removable as charged, but also renewed her application for relief.
At a hearing before an immigration judge ("IJ") on
October 26, 2006, Perera testified that her husband had been
induced by his business partner to enter into a series of
commercial construction contracts with a lumber merchant in
northern Sri Lanka. When the merchant was discovered by the police
to be a member of the LTTE, Perera's husband went into hiding. Two
-2-
days later, on February 15, 2003, Perera was questioned at her home
by police officers searching for her husband. The officers
returned to Perera's home on February 17, 2003, and threatened to
arrest her if her husband did not emerge from hiding and surrender
himself. Frightened, Perera went with her children to stay with
her parents, while her husband fled Sri Lanka for Japan. After
some time had passed, Perera began giving protection money to her
husband's business partner, believing that he was paying off the
police on her behalf, and returned to her home. On October 22,
2003, four officers wearing plain clothes blindfolded Perera and
abducted her from her home at gunpoint, questioning her at an
undisclosed location about her and her husband's involvement with
the LTTE. The officers released Perera only after she promised to
pay them the approximate equivalent of $2,700. She left for the
United States shortly thereafter.
Perera's testimony was corroborated by an affidavit
submitted to the IJ by her mother, who indicated that the police
had continued to look for Perera after she departed for the United
States. Perera's husband, who remained in Japan, submitted an
affidavit to the same effect, based on secondhand information. The
IJ was also given various background materials, including news
articles and a copy of the United States Department of State's 2005
Country Report on Human Rights Practices in Sri Lanka, which
-3-
described the prevalence of police corruption in Sri Lanka and the
mistreatment there of suspected LTTE collaborators.
In an oral decision delivered on April 17, 2007, the IJ
denied Perera's application for relief. The IJ found that Perera's
mistreatment in Sri Lanka had been part of an extortion scheme
hatched by her husband's business partner in combination with the
police, and had not been politically motivated. Accordingly, the
IJ held that Perera had failed to establish that she had suffered
past persecution or had a well-founded fear of future persecution
on account of an imputed political opinion or any other protected
ground, and thus was ineligible for asylum. See 8 U.S.C.
§ 1101(a)(42)(A); Seng v. Holder, 584 F.3d 13, 18 (1st Cir. 2009).
The IJ also held that Perera, perforce, had not established her
right to withholding of removal, since "claims for withholding of
removal require a higher level of proof than claims for asylum,"
Villa-Londono v. Holder, 600 F.3d 21, 24 n.1 (1st Cir. 2010), and
that Perera was not entitled to CAT protection because she had not
shown that it was more likely than not that she would be tortured
if returned to Sri Lanka, see 8 C.F.R. § 1208.16(c); Seng, 584 F.3d
at 20.
Perera appealed the IJ's decision to the BIA, which
dismissed her appeal on October 17, 2008, agreeing with the IJ that
"[t]he mistreatment [Perera] suffered was financially, not
politically, driven." Perera then filed a petition for review in
-4-
this court. Because Perera had "failed to demonstrate that the BIA
committed legal error or that the evidence compelled a finding that
she demonstrated a nexus between the mistreatment she described and
her imputed political opinion or that the claimed mistreatment
amounted to persecution," we denied the petition. Perera v.
Holder, No. 08-2410 (1st Cir. Nov. 16, 2009) (Judgment).
On April 26, 2010, eighteen months after the BIA
dismissed her appeal, Perera filed a motion asking the BIA to
reopen her removal proceedings. Although such motions usually must
be filed within ninety days of the entry of the final
administrative order of removal, see 8 U.S.C. § 1229a(c)(7)(C)(i),
Perera invoked an exception for motions that seek to introduce
previously unavailable, material evidence of changed country
conditions, see 8 C.F.R. § 1003.2(c)(3)(ii). In support of her
motion, Perera submitted affidavits from herself and her mother.
The affidavits stated that, since Perera filed her original
application for relief, the police had not stopped searching for
her, and her husband had been temporarily detained by immigration
officers after appearing at a Sri Lankan airport with falsified
travel documents. Perera also submitted a transcript of remarks
made by United States Secretary of State Hillary Clinton condemning
the use of sexual violence in armed conflicts, as well as assorted
news clippings and reports, including the United States Department
-5-
of State's 2009 Country Report on Human Rights Practices in Sri
Lanka.
On January 6, 2011, the BIA denied Perera's motion to
reopen as untimely, holding that the new evidence submitted did not
demonstrate a material change in country conditions. The BIA
explained that most of the new evidence merely indicated a
continuation, rather than a change, of conditions in Sri Lanka.
The only evidence that did not fit this mold was the detention of
Perera's husband by immigration officers, which the BIA said did
not affect Perera's eligibility for relief because it was not due
to an imputed political opinion and did not suggest an increased
risk of torture.
This petition for review followed on January 31, 2011.
II.
Motions to reopen removal proceedings "are disfavored due
to the strong public interest in concluding litigation."
Ratnasingam v. Holder, 556 F.3d 10, 15 (1st Cir. 2009). "As a
result, the BIA enjoys considerable latitude in deciding whether to
grant or deny such a motion." Raza v. Gonzales, 484 F.3d 125, 127
(1st Cir. 2007). Our review of such decisions is solely for abuse
of discretion. See Smith v. Holder, 627 F.3d 427, 433 (1st Cir.
2010). "This means, in effect, that such a decision will stand
unless the complaining party can show that the BIA committed an
error of law or exercised its judgment in an arbitrary, capricious,
-6-
or irrational way." Raza, 484 F.3d at 127; see also Smith, 627
F.3d at 433.
The BIA may entertain an untimely motion to reopen if an
alien makes a convincing demonstration of changed conditions in his
or her homeland. See 8 C.F.R. § 1003.2(c)(3)(ii); Raza, 484 F.3d
at 127. "Those changes, however, must be material to the
underlying substantive relief that the alien is seeking . . . and
the evidence tendered in support thereof must have been unavailable
during the prior proceedings." Raza, 484 F.3d at 127. In
addition, the new evidence submitted, together with the evidence
already in the record, must establish a prima facie showing of
eligibility for the underlying substantive relief sought by the
alien. See Smith, 627 F.3d at 438-39.
Perera contends that the BIA abused its discretion in
holding that the changed-conditions exception did not warrant
reopening her removal proceedings. She argues that the affidavits
submitted in support of her motion to reopen, which describe the
police's continued interest in her whereabouts and her husband's
temporary detention by Sri Lankan immigration officers, demonstrate
that events subsequent to her original application for relief have
increased her risk of persecution and torture in Sri Lanka.
We discern no abuse of discretion. The affidavits
accompanying Perera's motion to reopen generally reflect a
continuation of conditions that existed in Sri Lanka at the time of
-7-
Perera's original application for relief. In particular, the
affidavits' description of the police's ongoing efforts to locate
Perera adds nothing new to the mix. Perera described similar
efforts in her original application, and there is no indication
that the police have intensified their search in any manner. See
Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir. 2009) (stating that
evidence accompanying a motion to reopen "must demonstrate the
intensification or deterioration of country conditions, not their
mere continuation"); Ratnasingam, 556 F.3d at 15 (dismissing
petition because evidence "did not demonstrate intensified
persecution but mirrored evidence submitted in support of
[petitioner's] original application"). Moreover, the additional
evidence does nothing to undermine the earlier conclusion of the IJ
and the BIA that the mistreatment suffered by Perera was
financially, not politically, driven.
To the extent that the affidavits do reflect changed
conditions, the changes are not material to Perera's eligibility
for relief. The only new development of note is the detention of
Perera's husband by Sri Lankan immigration officers. Perera claims
that this event warrants reopening her removal proceedings,
pointing to our statement in Smith that "recent violence against a
petitioner's family members can constitute a material change in
country conditions." 627 F.3d at 436. However, there is no
evidence that Perera's husband was harmed during his detention or,
-8-
indeed, that his detention was prompted by anything other than his
possession of falsified travel documents and violation of Sri
Lanka's immigration laws. As such, the detention does not increase
the risk that Perera will be persecuted on account of an imputed
political opinion or any other protected ground if returned to Sri
Lanka.
III.
In sum, Perera has failed to introduce new, material
evidence of changed conditions in Sri Lanka. Accordingly, we hold
that the BIA did not abuse its discretion in denying her untimely
motion to reopen her removal proceedings.
The petition for review is denied.
So ordered.
-9-