13-1470 De Saa v. Holder BIA A078 385 700 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF**  **APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN**  **ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 11 th** **day of July, two thousand fourteen.** 4 5 **PRESENT: JON O. NEWMAN,** 6 **RALPH K. WINTER,** 7 **REENA RAGGI,** 8 Circuit Judges**.** 9

**_____________________________________** 10 11 **JOSEPH R. DE SAA,** 12 **AKA JOSEPH ROHAN DE SAA,** 13 Petitioner**,** 14 15 **v. 13-1470** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONERS: Joshua Bardavid, Esq., New York,**  23 **New York.** 24 25 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney**  26 **General; John S. Hogan, Senior** 27 **Litigation Counsel; Todd J. Cochran,** 28 **Trial Attorney, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 311 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review is 4

DENIED. 5 Petitioner Joseph R. De Saa, a native and citizen of Sri 6 Lanka, seeks review of the March 19, 2013 decision of the BIA 7 denying his motion to reopen.In re Joseph R. De Saa , No. 8 A078 385 700 (B.I.A. Mar. 19, 2013). We assume the parties’ 9 familiarity with the underlying facts and procedural history 10 of the case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d 13 Cir. 2005). When the BIA considers relevant evidence of 14 country conditions in evaluating a motion to reopen, we review 15 the BIA’s factual findings under the substantial evidence 16 standard. See Jian Hui Shao v. Mukasey,546 F.3d 138, 169 (2d 17 Cir. 2008). 18 An alien seeking to reopen proceedings may file one 19 motion to reopen no later than 90 days after the date on which 20 the final administrative decision was rendered. See8 U.S.C. 21 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). However, 22 the time limitation does not apply to a motion to reopen that 23

2is “based on changed circumstances arising in the country of 1 nationality or in the country to which deportation has been 2 ordered, if such evidence is material and was not available 3 and could not have been discovered or presented at the 4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 5 U.S.C. § 1229a(c)(7)(C)(ii). Nonetheless, the BIA may deny an 6 untimely motion to reopen based on the movant’s failure to 7 establish a prima facie case for the underlying substantive 8 relief sought. See INS v. Abudu , 485 U.S. 94, 104-05 (1988). 9 The BIA concluded that the Sri Lankan government’s policy 10 of mistreating individuals returning from abroad was a 11 continuation of prior practices, not a change in country 12 conditions and, moreover, that De Saa had not shown that the 13 policy was directed particularly at failed asylum seekers. 14 The BIA did not abuse its discretion in denying De Saa’s 15 motion on these grounds. 16 De Saa argues that the Sri Lankan government requires 17 individuals seeking to renew their Sri Lankan passport to sign 18 an affidavit stating that they have not applied for refugee 19 status, indicating that the Sri Lankan government persecutes 20 failed asylum seekers. However, as the BIA noted, the 21 evidence shows that Sri Lankan citizens who were granted 22

3asylum in the U.S. are not entitled to a Sri Lankan passport, 1 and if an individual has an asylum application pending in the 2 U.S., the Sri Lankan government will issue only temporary 3 travel documents. Accordingly, the Sri Lankan government has 4 other, valid reasons to inquire as to an individual’s asylum 5 status that are unrelated to persecution. 6 Furthermore, while the evidence shows that returnees may 7 face some risk of harm, substantial evidence supports the 8 BIA’s conclusion that De Saa did not show that there was a 9 pattern or practice of persecuting failed asylum seekers in 10 Sri Lanka, or that a prior overseas asylum application is a 11 factor that increases the risk of mistreatment or torture. 12 The evidence shows that certain factors – such as Tamil 13 ethnicity, actual or suspected ties to the Liberation Tigers 14 of Tamil Eelam, or scars that suggest prior involvement in 15 armed conflict – in conjunction with returning to Sri Lanka as 16 a failed asylum seeker, may increase the risk of mistreatment 17 or torture. De Saa does not claim that any of these factors 18 are relevant to him. Accordingly, because De Saa did not 19 establish his prima facie eligibility for asylum, the BIA did 20 not abuse its discretion in denying his motion to reopen. See 21 INS v. Abudu , 485 U.S. at 104-05. 22

4For the foregoing reasons, the petition for review is 1 DENIED. As we have completed our review, any stay of removal 2 that the Court previously granted in this petition is VACATED, 3 and any pending motion for a stay of removal in this petition 4 is DISMISSED as moot. Any pending request for oral argument 5 in this petition is DENIED in accordance with Federal Rule of 6 Appellate Procedure 34(a)(2), and Second Circuit Local Rule 7 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court 10 11 12

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