Chandana Weerasinghe v. John Ashcroft

*The Honorable Curtis L. Collier, United States District Judge for the Eastern District
of Tennessee, sitting by designation.
No. 03-4062
File Name: 05a0446n.06
Filed: May 27, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHANDANA WEERASINGHE,
Petitioner,
v.
JOHN ASHCROFT,
Respondent.
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ON PETITION FOR REVIEW OF
AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
Before: NELSON and BATCHELDER, Circuit Judges, and COLLIER, District
Judge.*
DAVID A. NELSON, Circuit Judge. This case comes before us on a petition for
review of a final order in which the Board of Immigration Appeals denied an application for
asylum and withholding of removal. Citing the absence of corroborating evidence, an
immigration judge declined to credit the petitioner’s testimony that he was arrested, detained,
and beaten by police in his native country. The petitioner now argues that the immigration
judge erred in refusing to admit corroborating documents offered on the date of the hearing.

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No such argument was presented in the administrative appeal. The petitioner’s failure
to exhaust this issue deprives our court of jurisdiction to consider it. See Ramani v. Ashcroft,
378 F.3d 554, 558-60 (6 th Cir. 2004). Accordingly, we shall deny the petition for review.
I
The petitioner, Chandana Weerasinghe, entered the United States without
documentation in October of 2000. The Immigration and Naturalization Service initiated
removal proceedings against him, and Mr. Weerasinghe applied for asylum and withholding
of removal. According to Mr. Weerasinghe’s asylum application, he is a native and citizen
of Sri Lanka.
Mr. Weerasinghe was the only witness at the hearing on his application. He testified
that he was arrested by Sri Lankan police in August of 1999 and detained for seven or eight
days, during which time he was beaten and questioned about a man named Samon
Deleanadachi. (This individual is also referred to in the hearing transcript as Samantha
Liyange.) The police told Mr. Weerasinghe, he said, that Mr. Deleanadachi provided money
and weapons to the Tamil Tigers, a terrorist organization of ethnic Tamils. Mr. Weerasinghe
denied any knowledge of such activities. Mr. Weerasinghe was released after his father
bribed an official. He then learned that a friend he knew as Samon Peraro was the man the
police called Samon Deleanadachi. Mr. Weerasinghe said that he fled Sri Lanka in fear of
both the police and Mr. Deleanadachi.

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Although Mr. Weerasinghe testified that he speaks to his family in Sri Lanka about
once a week, he did not present an affidavit from his father or any other documents
corroborating his testimony. His lawyer sought to introduce four documents at the hearing,
but the immigration judge refused to accept them on the ground that they should have been
submitted in advance of the hearing date.
At the conclusion of the hearing, the immigration judge denied Mr. Weerasinghe’s
application. The immigration judge observed that Weerasinghe’s uncorroborated testimony
was not “the type of specific, detailed, believable testimony which is capable of providing
adequate support for his claim.”
Mr. Weerasinghe appealed to the Board of Immigration Appeals, presenting two
assignments of error. First, Weerasinghe challenged the immigration judge’s credibility
determination, noting that it was at least partially based on the absence of corroborating
evidence. Second, Weerasinghe challenged the immigration judge’s refusal of a request to
continue the hearing. The Board affirmed without opinion.
Mr. Weerasinghe has filed a timely petition for review.
II
Broadly speaking, Mr. Weerasinghe argues that the immigration judge should not
have discredited his testimony because of the lack of corroborating evidence. The thrust of

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his argument is that the judge should not have rejected his offer of documents on the date of
the hearing without letting Weerasinghe attempt to justify the untimeliness of the submission.
That specific argument was never presented to the Board of Immigration Appeals.
Mr. Weerasinghe’s brief to the Board had this, and only this, to say with respect to his first
assignment of error:
“Immigration Judge found Respondent to be lacking credibility.
Immigration Judge stated that Respondent failed to substantiate his claim by
producing documentation or corroborative evidence.
Respondent relied on his testimony because his [sic] did not or was
unable to obtain additional documentation. Respondent testified that he was
taken into custody and beaten by the police for what he found out later to be
because of a relationship with a friend that he had no idea to be a member of
the Temele Tigers. Respondent has a well-founded fear of persecution if
forced to return to Sri Lanka. Respondent feels that [he] will be killed either
by the police or by the Temele Tigers.”
With respect to Mr. Weerasinghe’s second assignment of error, the brief said only that
the immigration judge should have granted a continuance because Weerasinghe was
“somewhat disoriented” and “unable to answer simple questions regarding his claim.” There
was no suggestion that a continuance was needed for a reason having anything to do with
corroborating documents.
Far from challenging the immigration judge’s exclusion of late-submitted documents,
Mr. Weerasinghe’s brief suggested that the absence of corroborating evidence was due to his
own (or perhaps his attorney’s) failure or inability to obtain such evidence. The brief made

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no mention whatever of Weerasinghe’s unsuccessful attempt to introduce documents on the
date of the hearing.
Mr. Weerasinghe contends that his brief sufficiently raised a “challenge to the
Immigration Judge’s credibility determination based upon [Weerasinghe’s] alleged failure
to corroborate his claim.” Perhaps so. But Weerasinghe’s argument to this court is not that
he in fact placed corroborating evidence in the record, or that his testimony should have been
credited regardless of whether there was corroborating evidence. His argument, to repeat,
is that the immigration judge should not have excluded his documents without allowing him
to explain why he was late in presenting them. It cannot fairly be said, in our opinion, that
the argument Mr. Weerasinghe has presented here was subsumed within the argument he
presented to the Board.
Our decision in Ramani v. Ashcroft, 378 F.3d 554 (6th Cir. 2004), is instructive on this
point. The notice of appeal filed with the Board in Ramani had raised a general challenge
to the immigration judge’s credibility determination. See id. at 557. But Mr. Ramani’s
arguments to this court were more specific; he argued that the judge had used unadmitted and
unreliable evidence to impugn his credibility. See id. at 558. Noting that the more specific
arguments had not been presented to the Board in the notice of appeal, we concluded that the

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1The respondent has suggested that Mr. Weerasinghe could have exhausted his
evidentiary issue by submitting the excluded documents to the Board. We are not persuaded
that he had that option. Although the Board was empowered to review the immigration
judge’s factual findings de novo, see 8 C.F.R. § 3.1(d)(1) (2002), it was not empowered to
receive additional evidence. See 8 C.F.R. § 1003.1(d)(3)(iv) (2005). (The regulations
governing appeals to the Board were amended while Mr. Weerasinghe’s appeal was pending,
and while a regulation requiring the Board to review factual findings for clear error was not
made applicable to pending cases, a regulation prohibiting the Board from receiving evidence
was made applicable to such cases. See id. § 1003.3(f); 67 Fed. Reg. 54878, 54899 (Aug.
26, 2002).) Mr. Weerasinghe could have moved for a remand to the immigration judge, see
8 C.F.R. § 1003.1(d)(3)(iv) (2005), but that would probably have been a vain act.
petitioner had failed to exhaust his administrative remedies. Id. at 558-59. The logic of
Ramani dictates that we reach the same conclusion here.1
Mr. Weerasinghe’s failure to exhaust his administrative remedies deprives this court
of jurisdiction. See 8 U.S.C. § 1252(d)(1); Ramani, 378 F.3d at 558, 559. As we held in
Ramani, “only claims properly presented to the [Board] and considered on their merits can
be reviewed by this court in an immigration appeal.” Ramani, 378 F.3d at 560. Because the
argument advanced here was not properly presented to the Board, the petition for review is
DENIED.

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