NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 18-2980 _____________ SATHEESKANNAN SENTHINATHAN, Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES, Respondent
____________
On Petition for Review of a Decision of the Board of Immigration Appeals (A079-784-809) Immigration Judge: Charles M. Honeyman
Submitted under L.A.R. § 34.1(a) April 5, 2019
Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District Judge*
(Filed: April 18, 2019)
OPINION ____________
* The Honorable Mitchell S. Goldberg, United States District Judge of the United States District Court for the Eastern District of Pennsylvania, sitting by designation. This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. GOLDBERG, District Judge.
Petitioner Satheeskannan Senthinathan, a citizen of Sri Lanka, sought and was
denied admission to the United States in 2001, and since that time, has repeatedly pursued
protection from removal and asylum. On August 7, 2018, the Board of Immigration
Appeals (“BIA”) denied his fourth motion to reopen his petition seeking asylum,
withholding of removal under the Immigration and Nationality Act, and withholding of
removal under the regulations implementing the Convention Against Torture. On
September 6, 2018, Senthinathan filed a Petition for Review, challenging the BIA’s
decision, pursuant to this Court’s jurisdiction under 8 U.S.C. § 1252. For the reasons set
forth below, we will dismiss the petition in part and deny the petition in part.
I. BACKGROUND
On October 28, 2001, Senthinathan, a then 22-year-old native and citizen of Sri
Lanka, attempted to enter the United States at the border at San Ysidro, California using
fraudulent documents. He was denied admission and detained by United States
Immigration officials. During review by an asylum officer, Senthinathan expressed a fear
of persecution, which the asylum officer deemed credible and proper for referral to the San
Diego Immigration Court. Senthinathan was also placed in removal proceedings for failing
to possess a valid entry document and for making a willful misrepresentation of material
fact in violation of Sections 212(a)(7)(A)(i)(I) and 212(a)(6)(C)(i) of the Immigration and
Nationality Act (“INA”), 8 U.S.C. § 1182(a)(7)(A)(i)(I), (a)(6)(C)(i). Thereafter, on
January 10, 2002, Senthinathan filed a written asylum application requesting asylum based
on race, nationality, membership in a particular social group, and political opinion.
2 On August 8, 2003, the Immigration Judge denied Senthinathan’s application,
finding that “[g]iven [Senthinathan’s] admitted perjury regarding his travel to the United
States, the internal inconsistencies in [Senthinathan’s] testimony not related to such travel,
and the lack of easily obtainable corroborating evidence, the Court cannot find that
[Senthinathan] has given credible testimony in this case.” AR 1421. The Immigration
Judge concluded that “[Senthinathan] is not eligible for asylum, as he has failed to present
credible testimony to support his claim of past or future persecution by the Sri Lankan
security forces, and his fear of the Tamil Tigers [a terrorist organization], though
objectively evident, is not on the basis of a prescribed ground.” Id. The Immigration Judge
also determined that because Senthinathan’s testimony was not credible, Senthinathan had
failed to demonstrate that he would, more likely than not, be tortured if removed to Sri
Lanka. In reaching these conclusions, the Immigration Judge relied, in part, on testimony
from Special Agent Steven Schultz, a member of the Joint Terrorism Task Force, who was
asked to investigate the arrival of approximately twenty Sri Lankans in November 2001,
because of possible ties with the LTTE (the “Tamil Tigers”).
Senthinathan timely appealed to the Board of Immigration Appeals (“BIA”), which
affirmed the Immigration Court’s decision on January 2, 2004. The BIA stated, in part,
that “we agree with the Immigration Judge that [Senthinathan’s] credibility was adversely
affected by his admittedly false initial testimony regarding the circumstances of his route
to the United States, as well as discrepancies between his asylum application and that
portion of his testimony that he claimed was truthful.” AR 1367. It further noted that,
“[g]iven the testimony presented by an agent of the Department of Homeland Security, we
3 find it highly likely that, even if [Senthinathan] is not a member of the Liberation Tigers
of Tamil Eelam (LTTE), a designated foreign terrorist organization, he no doubt was aware
of the LTTE’s involvement in the smuggling operation in which he participated.” Id.
Senthinathan sought review from the United States Court of Appeals for the Ninth
Circuit. On April 20, 2006, the Ninth Circuit found “substantial record evidence to support
the [Immigration Judge’s] adverse credibility finding,” and affirmed the BIA’s decision.
Senthinathan v. Gonzales, 176 F. App’x 865, 866 (9th Cir. 2006).
On October 4, 2006, Senthinathan filed his first motion to reopen/reconsider with
the BIA, alleging that his ongoing detention by the Immigration and Naturalization Service
(“INS”) precluded him from properly documenting his claim for relief, and that, if given
the opportunity, he could substantiate his claim through additional documents, medical
reports, and witnesses. The BIA denied his motion on November 6, 2006, finding that,
because it had not been filed within thirty days of the administratively-final order, it was
untimely pursuant to 8 C.F.R. § 1003.2(b)(2), and would not be substantively considered.
Senthinathan did not seek review of this ruling.
On November 17, 2006, Senthinathan, represented by counsel, filed his second
motion to reopen based on changed circumstances to apply for asylum, withholding of
removal, and protection under the Convention Against Torture. Appended to this filing
were multiple articles regarding ethnic tension in Sri Lanka and governmental action
against the Tamil Tigers.
On January 18, 2007, the BIA sua sponte reconsidered its January 2, 2004 decision
and remanded the case to the San Diego Immigration Court, stating:
4 While the finding that [Senthinathan] did not testify credibly gives us pause in reopening for further consideration of an application based on the same claim, we find that sua sponte reconsideration and reopening of our January 2, 2004, decision is warranted for further consideration of the respondent’s applications in light of the Ninth Circuit’s intervening decision in Suntharalinkam v. Gonzales, 458 F.3d 1034 (9th Cir. 2006), in which the court, inter alia, criticized the reliance on inconsistencies that did not go to the heart of a similar Sri Lankan asylum claim and rejected, as speculative, the testimony of the DHS’s [Department of Homeland Security] witness, Agent Schultz, whose testimony was also specifically noted in the instant case.
AR 1223. In light of these observations, the BIA directed the Immigration Judge to
reconsider the asylum petition and the updated background evidence.
In January 2007, upon parole from immigration custody, Senthinathan moved to
Exton, Pennsylvania. He then sought and was granted a change of venue to the
Philadelphia Immigration Court.
On September 9, 2008, in compliance with the BIA’s remand instructions, the
Philadelphia Immigration Court entered a new decision denying (a) asylum, (b) the
withholding of removal under the INA, and (c) the withholding of removal under the
regulations implementing the Convention Against Torture. The Immigration Judge found
Senthinathan’s testimony to be credible and supported by corroborating evidence and
additionally determined that he was eligible for both asylum pursuant to INA § 208 and
withholding of removal pursuant to INA § 241(b)(3). Notwithstanding these findings, the
Immigration Judge concluded that Senthinathan was subject to the mandatory bar on these
forms of relief, as set forth in INA § 241(b)(3)(B)(iv), “due to the fact that he has engaged
in terrorist activity.” AR 658. The Immigration Judge ultimately determined that, because
Senthinathan was eligible for relief under the Convention Against Torture, but was subject
5 to mandatory denial of that relief, he should be granted deferral of removal to Sri Lanka
under 8 C.F.R. § 1208.17(a).
Senthinathan did not appeal this decision to the BIA, but rather filed a third motion
for reconsideration and/or to reopen with the Philadelphia Immigration Court. He argued
that: (1) the Immigration Judge violated collateral estoppel by finding he provided material
support to the Tamil Tigers; (2) the Immigration Judge violated due process by finding he
provided material support; (3) the record lacked a factual basis for the material support
finding; (4) the credibility determination precluded a finding that Senthinathan provided
material support to a terrorist organization; (5) the Immigration Judge in Philadelphia
should have applied the Ninth Circuit’s decision in Nadarajah v. Gonzales, 443 F.3d 1069
(9th Cir. 2006); and (6) the Immigration Judge incorrectly concluded that Senthinathan did
not deserve a favorable exercise of discretion.
In support of his motion, Senthinathan cited, for the first time, the testimony of
Professor Robert Oberst given in the 2004 removal proceedings of fellow Sri Lankan
Ahilan Nadarajah. In those proceedings, Agent Schultz—the same agent that was involved
in Senthinathan’s proceedings—had also concluded that Nadarajah was a member of the
Tamil Tigers based on the fact that he would never have been able to reach the United
States without the assistance of that group. Professor Oberst disagreed with Agent Schultz
by opining that the area where the individual lived was not controlled by the Tamil Tigers,
and that it was unlikely that the Tigers would smuggle any individuals out of that particular
area. Therefore, Senthinathan argued that Agent Schultz’s similar testimony given in his
proceedings should likewise be discredited.
6 On January 7, 2009, the Immigration Judge, in a comprehensive decision, denied
Senthinathan’s third motion seeking reopening and/or reconsideration. In doing so, the
Immigration Judge made multiple findings. First, he determined that the evidence
Senthinathan proffered was previously available and could have been submitted at his prior
hearing and with his motion for reconsideration. Second, he concluded that Senthinathan’s
decision to use the Tamil Tigers to smuggle him into the United States directed money to
that group, thus constituting material support, regardless of whether Senthinathan
personally paid the smugglers. Third, the Immigration Judge rejected Senthinathan’s
argument that a favorable credibility finding barred a material support finding. Fourth, the
Immigration Judge found that the Ninth Circuit’s decision in Nadarajah v. Gonzalez was
not controlling because (a) it addressed the legality of indefinite detention, not the merits
of the material support case; and (b) a decision granting Nadarajah relief did not compel
the same ruling in a different case where an individual determination had to be made based
on the record and the alien’s circumstances. Fifth, the Immigration Judge explained that
he lacked discretion to grant relief because, under the September 9, 2008 ruling,
Senthinathan was barred from asylum for providing material support to the Tamil Tigers.
Finally, as to the request for sua sponte reopening, the Immigration Judge noted that a
successful motion to reopen must be accompanied by evidence that was not previously
available or discoverable and that is material to the claim. The Immigration Judge noted
that the trial transcript from the Nadarajah case and the testimony of Professor Robert
Oberst were not new evidence, since the transcript had been filed on January 3, 2005, and
therefore was available prior to the filing of the third motion to reopen.
7 Senthinathan appealed to the BIA, which dismissed the appeal on January 13, 2012.
The BIA found that the Philadelphia Immigration Court had specifically and thoroughly
addressed each of Senthinathan’s arguments.
Senthinathan then petitioned for review to this Court. On February 28, 2013, we
denied his petition, finding substantial evidence in the record to support the Immigration
Judge’s denial of the motion to reopen, and noting that much of the evidence presented by
Senthinathan was previously available or discoverable. Senthinathan v. Att’y Gen. of the
United States, 514 F. App’x 237 (3d Cir. 2013).
Approximately five years later, on February 6, 2018, Senthinathan filed a fourth
motion to reopen to apply for asylum, withholding of removal, and protection under the
Convention Against Torture pursuant to the BIA’s sua sponte powers and/or based on
changed circumstances. To avoid the time and number limits on motions to reopen, set
forth in 8 U.S.C. § 1229a(c)(7)(A) and (C)(i), Senthinathan cited changed country
conditions. Senthinathan also challenged the Immigration Judge’s factual finding that he
provided material support to the Tamil Tigers, again relying on the testimony of Professor
Robert Oberst. Further, he claimed that under the “pattern or practice of persecution”
regulation, 8 C.F.R. § 208(b)(2)(iii)(A), he was eligible for asylum.
On August 7, 2018, the BIA denied the motion to reopen, finding that it was
untimely and number-barred, and that Senthinathan had not shown that he was prima facie
eligible for asylum, withholding of removal, or withholding of removal under the
Convention Against Torture. The BIA noted that because the Immigration Judge
determined that Senthinathan provided material support to a designated terrorist
8 organization—a decision affirmed by both the BIA and this Court—that determination
barred any relief except for deferral of removal under the Convention Against Torture,
relief which Senthinathan had already been granted. The BIA also rejected Senthinathan’s
reliance on the testimony of Professor Oberst because that evidence predated the
Immigration Judge’s 2008 decision and was already considered and rejected. Finally, the
BIA declined to exercise its sua sponte discretionary authority to reopen proceedings
because Senthinathan had not demonstrated an exceptional situation justifying the exercise
of that authority.
Senthinathan filed a Petition for Review in this Court on September 6, 2018.
II. JURISDICTION
We have jurisdiction over this matter pursuant to 8 U.S.C. § 1252(a)(1), which
explicitly confers jurisdiction to review final orders of removal on the courts of appeals,
and implicitly confers jurisdiction to review the denial of motions to reopen. Mata v.
Lynch, 135 S. Ct. 2150, 2154 (2015).
III. ANALYSIS
Senthinathan challenges both the BIA’s denial of his motion to reopen based on the
BIA’s sua sponte power and his motion to reopen based on changed country circumstances.
For the following reasons, we lack jurisdiction to review the BIA’s decision not to exercise
its sua sponte power and will not disturb the rulings or findings of the BIA otherwise.
A. DENIAL OF MOTION TO REOPEN SUA SPONTE
Senthinathan first contends that the BIA’s denial of his motion to reopen pursuant
to its sua sponte power was in error.
9 Decisions as to the exercise of sua sponte authority to reopen a case are committed
to the “unfettered discretion” of the BIA. Calle-Vujiles v. Ashcroft, 320 F.3d 472, 474 (3d
Cir. 2003) (quotations omitted). Thus, an order by the BIA declining to exercise
jurisdiction to reopen sua sponte is “functionally unreviewable.” Sang Goo Park v.
Attorney Gen., 846 F.3d 645, 651 (3d Cir. 2017). Only two exceptions exist to the rule
against review: (1) when the BIA relies on an incorrect legal premise in denying a motion
to reopen sua sponte, and (2) if the BIA announces and follows a general policy by which
its exercise of discretion will be governed. Id. at 651.
Senthinathan does not establish either exception. Rather, he contends that had the
BIA taken into consideration the testimony of Professor Oberst—which challenged Agent
Schultz’s testimony regarding Senthinathan’s provision of material support to the Tamil
Tigers—the BIA would have found that Senthinathan had established a prima facie case
of entitlement to relief. He asserts that the BIA’s refusal to consider Professor Oberst’s
testimony because it was previously available constituted legal error since the exclusion of
evidence as “previously-available” is only a concern in a motion to reopen for changed
country conditions.
We have no jurisdiction to consider these arguments. On appeal to the BIA,
Senthinathan challenged the evidentiary basis of the Immigration Judge’s material support
finding. Noting that the evidence predated the Immigration Judge’s decision, the BIA
remarked that the Immigration Judge “previously considered and rejected the respondent’s
request to reopen based on the testimony of Dr. Oberst.” AR 04. The BIA’s refusal to
10 exercise its discretion to reconsider the Immigration Judge’s factual determination
regarding material support is not subject to judicial review.
B. DENIAL OF MOTION TO REOPEN BASED ON CHANGED COUNTRY CIRCUMSTANCES
Senthinathan’s second argument challenges the denial of the motion to reopen based
on changed country circumstances.
Two standards of review are applicable. Liu v. Attorney General of U.S., 555 F.3d
145, 148 (3d Cir. 2009). First, we review the denial of a motion to reopen for an abuse of
discretion. Id. Second, using a deferential standard of review, we uphold the BIA’s factual
determinations if they are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992)). “[W]e can reject the BIA’s factual findings only if ‘any reasonable adjudicator
would be compelled to conclude to the contrary.’” Id. (quoting Elias-Zacarias, 502 U.S. at
481 and citing 8 U.S.C. § 1252(b)(4)(B)).
There is no dispute that Senthinathan’s motion to reopen was untimely, as it was not
filed with the BIA within ninety days of the BIA’s 2012 decision. See 8 U.S.C. §
1229a(c)(7)(A) & (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the ninety-day
requirement does not apply to motions that rely on evidence of “changed country
conditions arising in the country of nationality or the country to which removal has been
ordered if such evidence is material and was not available and would not have been
discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
11 C.F.R. § 1003.2(c)(3)(ii). The reference to “previous proceeding” refers to the proceeding
before the immigration judge. Filja v. Gonzales, 447 F.3d 241, 252 (3d Cir. 2006).
The immigration judge or the BIA may deny a motion to reopen immigration
proceedings on one of three principal grounds: (1) the movant failed to establish a prima
facie case for the relief sought; (2) the movant has failed to introduce previously
unavailable material evidence that justified reopening; or (3) in cases in which the ultimate
grant of relief being sought is discretionary (asylum, suspension of deportation, and
adjustment of status), the BIA can “pass by” the first two bases and determine that even if
they were met, the movant would not be entitled to relief. Id. at 255 (citing INS v. Doherty,
502 U.S. 314 (1992); INS v. Abudu, 485 U.S. 94, 105 (1988)).
Here, the BIA found that Senthinathan failed to introduce previously-unavailable
material evidence that justified reopening. Specifically, the BIA noted that the evidence
on which Senthinathan’s motion to reopen was premised—Professor Oberst’s testimony—
predated the Immigration Judge’s 2008 decision and, therefore, could have been introduced
at that proceeding.
In an effort to avoid this bar, Senthinathan makes the unsubstantiated argument that
because “Professor Oberst’s testimony did not originate from the country of deportation
. . . it cannot be excluded on the ground that Professor Oberst’s testimony was previously
available.” (Petitioner’s Br. 12.) However, the statute, 8 U.S.C. § 1229a(c)(7)(C)(ii), does
not make any distinction between testimony or evidence that originates from the country
of deportation and testimony or evidence that does not. Rather, it simply requires that a
petitioner produce material evidence that was not available at the previous proceeding of
12 changed country conditions arising in the petitioner’s country of nationality. Thus, because
Professor Oberst’s testimony was available prior to the Immigration Judge’s 2008 decision,
the BIA properly declined to consider it.
Senthinathan has had more than adequate review of his case. He received two
separate merits hearings in 2002 and 2008. In lieu of appealing the 2008 decision to the
BIA, he requested that the Immigration Judge reconsider or reopen and offered, for the first
time, Professor Oberst’s testimony. The Immigration Judge properly declined to consider
this evidence as undermining the material support finding—a decision that was ultimately
affirmed by this Court. As Senthinathan failed to introduce previously-unavailable
material evidence that justified his February 6, 2018 motion to reopen, the BIA did not
abuse its discretion.
IV.
For these reasons, we will dismiss Senthinathan’s Petition for Review as to the
BIA’s decision not to exercise its sua sponte authority and deny the remainder of the
petition for lack of merit.