2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/478NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 3

- 3197

___________ IZZADEEN SHIABDEEN JAINUL ABDEEN , Petitioner

v. ATTORNEY GENERAL UNITED STATES OF AMERICA Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A 0 88

- 379

- 465 ) Immigration Judge: Honorable Annie S. Garcy

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) May 7, 2014 Before: SMITH, GARTH and BARRY , Circuit Judges (Opinion filed : May 7, 2014 )

___________

OPINION

___________ PER CURIAM Izzadeen Shiabdeen Jainul Abdeen (“ Abdeen ”) petitions for review of the Board of Immigration Appeals’ denial of his motion to reopen. For the reasons that follow, we will deny the petition for review.I. Abdeen, a citizen of Sri Lanka, arrived in the United States as a nonimmigrant visitor in Janu ary 2007 and received authorization to stay in the United States until April 23, 2007 . In August of that year , he filed an affirmative application for asylum. The asylum officer denied his application and referred his case to Immigration Court. He was

s ubsequently served with a notice to appear charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) for having stayed in the United States for a time longer than permitted . Although Abdeen conceded the charge in the notice to appear, he renewed his request for asylum and sought withholding of removal and relief under the Convention Against Torture (“CAT”). He based his asylum claim on a 2006 kidnapping in which he was held by unidentified individuals for three days until his wife paid a ransom . H e suspected , but did not know with certainty, that the kidnapping was perpetrated by a group with
connect ions to the Sri Lankan government. The I mmigration J udge (“IJ”) found Abdeen credible but concluded that he had been kidnapped for economic reason s rather than for his membership in a protected social group. The IJ also found that Abdeen failed to establish a well

- founde d fear of future persecution or that it was more likely than not that he would be subjected to torture upon his return. According ly, the IJ denie d Abdeen’s request for relief and ordered his removal to Sri Lanka. The Board of Immigration Appeals (“the Board”) affirmed, and we denied Abdeen’s petition for review, see Abdeen v. Att’y Gen. , 44 9 F. App’x 181 (3d Cir. 2011).More than a year later, Abdeen filed a counseled motion to reopen with the Board

. Although he acknowledged that his motion was untimely, he sought an exception to the filing deadline on the b asis of changed country conditions. Specifically, he asserted that

new ev idence demonstrated that the Sri Lankan government detains and tortures returned asylum seekers and that groups possibly associated with the government had increased abductions of Muslim businessmen for ransom

. The Board determined that Abdeen’s evidence did not demonstrate that the “arrest and detention of returned asylum seekers is a changed circumstance in Sri Lanka,” as the report he relied on stated that the Sri Lankan government had a “ history ” of arresting and detaining returned asylum seekers.
Mor eover, the Board stated that detention for a short period of time would not amount to persecution, and that Abdeen failed to establish that he was similarly situated to those who have claimed to be tortured upon their return to Sri Lanka. With regard to h is claim that abductions of businessmen have increased, the Board reiterated that Abdeen had previously failed to establish that his past abduct ion was motivated by his membership in a protected class, and it concluded that an “incremental” increase in abd uctions was “insufficient to meet the heavy burden of establishing changed circumstances.” Finally,
t he Board determined that Abdeen had not established his prima facie eligibility for the relief he sought. For those reasons, the Board denied Abdeen’s mo tion to reopen and declined to exercise its sua sponte authority to reopen proceedings. Through counsel, Abdeen filed a timely petition for review

.II. We have jurisdiction under 8 U.S.C. § 1252 , 1 and we review denials of motions to reopen under a defere ntial abuse of discretion standard

. 2 S ee Sevoian v. Ashcroft, 290 F.3d 166, 17 0, 174 (3d Cir. 2002) . “ Discretionary decisions of the [Board] will not be disturb ed unless they are found to be ‘ arbitrary, irr ational or contrary to law.’” Tipu v.
I

. N

. S

. , 2 0 F.3d 580, 582 (3d Cir. 1994) . A motion filed more than 90 days after the final decision of the Board cannot be entertained unless it “ is based upon changed country conditions proved by evidence that is material and was n ot available and could not have b een discovered or presented at the previous proceeding. ” Pllumi v. Att’y Gen. of the U.S. , 642 F.3d 155, 161 (3d Cir. 2011)

. Abdeen does not dispute that his motion to reopen was filed more than 90 days after the Board’s final decision , but he argues that country condi tions in Sri Lanka have changed

. In support of his claim, h e submitted a June 2011 Amnesty International press release that expressed concern that 26 “mostly Tamil” rejected asylum seekers would face torture upon their return to Sri Lanka fr om the United Kingdom. T he statement also noted that the Sri Lankan Government has a history of detain ing an d torturing returned asylum seekers. However, as the Board explained , t he Amnesty International press

1 W e lack jurisdiction to review the portion of the B oard ’s de cision that denied sua sponte reopening

. See Pllumi v. Att’y Gen. of the U.S. , 642 F.3d 155, 159 (3d Cir. 2011). 2 Because we find that the Board’s decision was not arbitrary, irrational, or contrary to law, we do not reach the Board’s alternative determi nation that Abdeen did not establish a prima facie case for asylum relief. See Sevoian , 290 F.3d at 169

- 70 (3d Cir. 2002) (stating the BIA may deny a motion to reopen in asylum cases where it determines that “the movant would not be entitled to the discre tionary grant of relief.”) (citing INS v.release did not establish that country condi tions had changed since his removal hearing in 2009 ; rather it demonstrated that the conditions have persisted

. See id. (concluding that the Petitioner had not established changed country conditions when “the conditions described have persisted,” even tho ugh the evidence submitted by the Petitioner was not available to him at the time of his initial removal hearing). Thus, even assuming that Abdeen presented objective evidence that the Sri Lankan government will know of his status as a returned asylum see ker, he has not proven th at conditions in Sri Lanka have changed for returned asylum seekers. See id. Abdeen also argues that substantial evidence does not support the Board’s conclusion that the increase in abductions of Muslim businessmen constitutes a changed country condition. He believes that the Board held him to a heightened standard for showing his eligibility for reopening based on the increase of such abductions

. Abdeen submitted a press release from the Asian Human Rights Commission and a repo rt of the Refugee Review Tribunal of Australia to demonstrate that the abductions of wealthy businessmen have increased and that members of the Tamil and Muslim communities are targeted in particular. The documents also expressed concern that the Sri Lank an government was either complicit or collaborating with the groups of kidnappers

. However, the Asian Human Rights Commission press release stated that it has been urging the Sri Lankan government to prevent abductions and disappearances “for many
years n ow,” and the Refugee Review Tribunal stated that the “wave of abductions” dates

Abudu , 485 U.S. 94, 105 (1988))back to mid

- 2006. Th erefore , the increase in abductions predate d Abdeen’s initial immigration hearing and does not constitute a change in country conditions. See id. After re viewing the record, it does not appear that the Board’s decision was arbitrary, irrational, or contrary to law. See Tipu , 20 F.3d at 582

. Accordingly , we will deny the petition for review.