Anandarajah v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1721
___________
JULIAN RAJANAYAGAN ANANDARAJAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-302-954)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 16, 2013
Before: AMBRO, JORDAN and BARRY, Circuit Judges
(Opinion filed : October 31, 2013)
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OPINION
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PER CURIAM
Julian Rajanayagan Anandarajah (“Anandarajah”) petitions for review of the
Board of Immigration Appeals’ (“BIA” or “Board”) decision denying his fourth motion
to reopen removal proceedings. For the following reasons, we will deny the petition for
review.
I.
Anandarajah, a citizen of Sri Lanka and an ethnic Tamil, petitioned for review of
the Board’s order affirming the Immigration Judge’s (“IJ”) decision to deny his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). He alleged a fear of persecution, claiming that the Sri Lankan
government believes he is, or was, a supporter of the Liberation Tigers of Tamil Eelam
(“LTTE”). We denied the petition for review, concluding that substantial evidence
supported the IJ’s determination that Anandarajah’s testimony was not credible. See
Anandarajah v. Att’y Gen., 258 F. App’x 495 (3d Cir. 2007).
In 2008, Anandarajah filed a motion to reopen based upon changed country
conditions, in which he asserted that there had been a breakdown in the enforcement of
the 2002 Cease-Fire Accord, resulting in greater persecution of ethnic Tamils. He also
alleged that he would be detained and interrogated upon his arrival as a failed Tamil
asylum seeker. We denied the petition for review, concluding that the BIA did not abuse
its discretion in determining that Anandarajah failed to show changed country conditions
sufficient to excuse the untimeliness of his motion to reopen. See Anandarajah v. Att’y
Gen., 352 F. App’x 667 (3d Cir. 2009) (per curiam).
In 2009, Anandarajah filed a second motion to reopen. In this motion, he claimed
that his attorney, Visuvanathan Rudrakumaran, is known for his support of the LTTE,
and he argued that he was in danger because of his attorney-client relationship with
Rudrakaman. The Board denied his motion, noting that the factual basis of
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Anandarajah’s claim for asylum had previously been rejected as not credible.
Anandarajah petitioned for review, but his petition was procedurally terminated at his
request after we denied his motion for a stay of removal. See Anandarajah v. Att’y Gen.,
C.A. No. 10-1498.
In 2010, Anandarajah filed a third motion to reopen, again based upon changed
country conditions. This motion advanced the same arguments as his second motion to
reopen and included essentially the same substantive evidence. The BIA denied the
motion, noting that Anandarajah had once again failed to rebut the IJ’s original adverse
credibility determination and had failed to demonstrate changed conditions in Sri Lanka.
We denied his petition for review. See Anandarajah v. Att’y Gen., 456 F. App’x 130 (3d
Cir. 2011) (per curiam).
In October 2012, Anandarajah filed a fourth motion to reopen. In this motion, he
claimed that he would be persecuted or tortured upon his return to Sri Lanka because of
his status as a “returned asylum seeker.” Specifically, he argued that Sri Lanka requires
applicants for Sri Lankan passports to indicate whether they have applied for asylum or
sign an affidavit stating that they have never applied for or acquired refugee or asylum
status. In denying the motion, the BIA determined that Anandarajah’s evidence neither
established a change in country conditions nor demonstrated that he would suffer
persecution upon his return to Sri Lanka. Accordingly, the BIA determined that
Anandarajah lacked a basis for filing his fourth motion to reopen after the 90-day
deadline for motions to reopen had passed. The BIA also declined to exercise its sua
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sponte authority to reopen. Through counsel, Anandarajah timely filed this petition for
review.1
II.
We have jurisdiction under 8 U.S.C. § 1252. We review denials of motions to
reopen under a deferential abuse of discretion standard and will not disturb the decision
“unless [it is] found to be arbitrary, irrational, or contrary to law.”2 Guo v. Ashcroft, 386
F.3d 556, 562 (3d Cir. 2004) (citation omitted). Generally, an alien may file only one
motion to reopen and must file it with the BIA “no later than 90 days after the date on
which the final administrative decision was rendered[.]” 8 C.F.R. § 1003.2(c)(2). The
time and number requirements are waived for motions to reopen that are “based upon
changed country conditions proved by evidence that is material and was not available and
could not have been discovered or presented at the previous proceeding.” Pllumi v. Att’y
Gen., 642 F.3d 155, 161 (3d Cir. 2011).
Anandarajah does not dispute that this motion to reopen, his fourth, was filed more
than 90 days after the BIA’s final decision. Rather, he first alleges that the Board abused
its discretion by selectively considering the evidence to find that he failed to establish
1
We lack jurisdiction to review the portion of the BIA’s decision that denied sua sponte
reopening. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003).
2
Because we find that the BIA decision was not arbitrary, irrational, or contrary to law,
we do not reach the BIA’s alternative determination that Anandarajah did not establish a
prima facie case for asylum relief. See Sevoian v. Ashcroft, 290 F.3d 166, 169-70 (3d
Cir. 2002) (citing INS v. Abudu, 485 U.S. 94, 105 (1988) (stating that the Board may
deny a motion to reopen in asylum cases where it determines that “the movant would not
be entitled to the discretionary grant of relief”)).
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changed country conditions. The BIA is required to consider a party’s evidence of
changed country conditions, and it “should provide us with more than cursory, summary
or conclusory statements, so that we are able to discern its reasons for declining to afford
relief to a petitioner.” Zheng v. Att’y Gen., 549 F.3d 260, 268 (3d Cir. 2008) (quoting
Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). However, it need not “expressly parse
or refute on the record each individual argument or piece of evidence offered by the
petitioner.” Id., 437 F.3d at 275. Here, the BIA reviewed—among the evidence that
Anandarajah submitted—the Refugee Documentation Centre (Ireland) Legal Aid Board’s
report on Sri Lanka (the “2010 Irish Report”), which discussed the treatment of returnees
to Sri Lanka; the United Kingdom Border Agency’s Sri Lanka Bulletin: Recent Reports
on Torture and Ill Treatment” (“2011 U.K. Sri Lanka Bulletin”), which summarized other
reports concerning the mistreatment and torture of returnees suspected of having ties to
the LTTE; news articles from Freedom From Torture and Amnesty International; and
statements by other attorneys who represented Tamil clients. Given the Board’s thorough
review of these documents, its conclusion that Anandarajah’s evidence did not
demonstrate the existence of changed country conditions was not an abuse of discretion.
To the extent Anandarajah argues that the Board erred by failing to find the
existence of changed country conditions, we conclude that the BIA’s determination was
reasonable. As its decision made explicitly clear, conditions in Sri Lanka are far from
ideal, and some returnees, including failed asylum seekers, risk mistreatment; this is
especially true for those associated with the LTTE. The BIA noted that “the documents
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submitted by the respondent show that the Sri Lankan government continues to use
mistreatment, including torture, . . . and the victims of mistreatment or torture include
individuals who returned from abroad, which in turn may include individuals who had
applied for but were denied asylum.” (A.R. 8.) This conclusion is supported by the 2010
Irish Report and 2011 U.K. Sri Lanka Bulletin, both of which note that returnees to Sri
Lanka, including failed asylum seekers, have risked detention and mistreatment since at
least 2004. We agree with the Government that Anandarajah’s claim is largely a
reiteration of his “failed asylum seeker” argument, which we rejected when we reviewed
the Board’s denial of his first and third motions to reopen. See Anandarajah, 456 F.
App’x at 134; Anandarajah, 352 F. App’x at 672. Based upon the evidence, the BIA
plausibly concluded that failed asylum seekers have risked mistreatment upon return to
Sri Lanka since before Anandarajah’s 2005 hearing.3 See Pllumi, 642 F.3d at 161 (BIA
did not err in denying reopening where “the conditions described have persisted”).
Anandarajah also argues that the BIA’s decision was irrational, because the
agency inexplicably departed from a prior case involving another failed asylum seeker
from Sri Lanka; however, he does not explain how the two cases involved similar facts.
To the extent that he relies on unpublished BIA decisions, “unpublished, single-member
BIA decisions have no precedential value, do not bind the BIA, and therefore do not
3
Contrary to Anandarajah’s argument, the Board also reasonably concluded that Sri
Lanka’s requirement that applicants for passports sign an affidavit regarding whether
they have ever applied for or acquired refugee or asylum status is related to Sri Lankan
law demanding that an individual granted asylum elsewhere not be issued a Sri Lankan
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carry the force of law except as to those parties for whom the opinion is rendered.” De
Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 350 (3d Cir. 2010). Furthermore, it appears
that in the prior case the BIA was adjudicating a timely motion to reopen, as the agency
explicitly held that, if considered as a motion for reconsideration, the petitioner’s
submission would have been untimely. Compare 8 C.F.R. § 1003.2(b)(2) (establishing a
30-day period for filing reconsideration motions), with 8 C.F.R. § 1003.2(c)(2)
(establishing a 90-day period for filing a motion to reopen). Even fact patterns that may
be “almost identical” can lead to different outcomes when different procedural postures
are involved.
Finally, Anandarajah asserts that the BIA denied him due process by considering
the United Kingdom Border Agency’s 2012 Sri Lanka Country of Origin Information
Report, a document outside of the record, without allowing him to respond to it. We
agree with the Government that Anandarajah has not shown substantial prejudice. See
Delgado-Sobalvarro v. Att’y Gen., 625 F.3d 782, 787 (3d Cir. 2010). Nowhere in his
brief does he describe what his response to this report would have been. Furthermore,
this report was dated March 7, 2012; Anandarajah’s motion to reopen, by contrast, was
dated October 1, 2012. This timing suggests that he could have been aware of the report
by the time he submitted his motion, and, in any event, he could have asked the BIA to
reconsider its decision.
III.
passport. 7
After reviewing the record, we conclude that the Board’s decision to deny
Anandarajah’s motion to reopen was not arbitrary, irrational, or contrary to law.
Accordingly, we will deny the petition for review.
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