750 F.3d 25
1st Cir.2014Background
- Perera, a Sri Lankan national, was denied asylum, withholding, and CAT relief in removal proceedings that began in 2006 and ended in 2007; the BIA affirmed in 2008 and this court denied review.
- In 2010 Perera moved to reopen based on changed country conditions; the BIA denied in 2011 and this court denied review.
- In 2012 Perera filed a second motion to reopen, a stay of removal, and renewed relief requests, contending changed conditions due to ongoing Sri Lankan torture risks.
- The BIA denied the second motion to reopen, holding the affidavit requirement existed at the time of the 2006–2007 hearing and not a changed condition, and that other documents did not prove a material change; it also noted a 2012 UK report as context.
- This court reviews BIA’s denial of a motion to reopen for abuse of discretion and emphasizes the heavy burden on the movant to show a material adverse change and prima facie eligibility for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly denied the second motion to reopen for lack of changed country conditions. | Perera argues changed conditions and material evidence. | BIA held no material change; affidavit requirement remained in effect; evidence insufficient. | No reversible error; no material adverse change shown. |
| Whether Perera showed a prima facie case for relief to trigger reopening. | Perera asserts prima facie eligibility through new evidence. | Evidence did not establish prima facie eligibility for relief. | Not established; reopening properly denied. |
| Whether the use of the 2012 UK report and unpublished BIA opinions violated due process. | Perera contends improper notice and prejudice. | BIA may take official documents by administrative notice; no prejudice shown. | No due-process error based on abuse-of-discretion review. |
Key Cases Cited
- Perez v. Holder, 740 F.3d 57 (1st Cir. 2014) (motions to reopen disfavored; abuse of discretion standard)
- Gasparian v. Holder, 700 F.3d 611 (1st Cir. 2012) (exception to time/number bars when material changed country conditions and prima facie relief)
- Le Bin Zhu v. Holder, 622 F.3d 87 (1st Cir. 2010) (requirement that evidence be unavailable and undiscoverable at former hearing)
- Tawadrous v. Holder, 565 F.3d 35 (1st Cir. 2009) (material evidence must show deterioration, not mere continuation of conditions)
- Ven v. Ashcroft, 386 F.3d 357 (1st Cir. 2004) (movant bears heavy burden to show when change occurred)