19-605

Doe v. Garland

BIA

A205 298 083

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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals 

2 for the Second Circuit, held at the Thurgood Marshall 

3 United States Courthouse, 40 Foley Square, in the City of 

New York, on the 21st 4 day of April, two thousand twenty-two.

5

6 PRESENT:

7 JOHN M. WALKER, JR.,

8 BARRINGTON D. PARKER,

9 JOSEPH F. BIANCO,

10 Circuit Judges.

11 _____________________________________

12

13 JOHN DOE, AKA SUVENDRAN

14 KANAPATHIPILLAI, AKA

15 SUVENTHIRAN KANAPATHIPPILLAI

16 Petitioner,

17

18 v. 19-605

19 NAC

20 MERRICK B. GARLAND, UNITED 

21 STATES ATTORNEY GENERAL,

Respondent.1 22

23 _____________________________________

24

25 FOR PETITIONER: Visuvanathan Rudrakumaran, Esq., 

26 New York, NY.

1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General 

Merrick B. Garland is automatically substituted for Attorney General William P. 

Barr.
2

1

2 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 

3 General; Shelley R. Goad, 

4 Assistant Director; Laura Halliday 

5 Hickein, Trial Attorney, Office of 

6 Immigration Litigation, United 

7 States Department of Justice, 

8 Washington, DC.

9 UPON DUE CONSIDERATION of this petition for review of a 

10 Board of Immigration Appeals (“BIA”) decision, it is hereby 

11 ORDERED, ADJUDGED, AND DECREED that the petition for review 

12 is DENIED.

13 Petitioner, a native and citizen of Sri Lanka, seeks 

14 review of a February 13, 2019, decision of the BIA denying

15 his motion to reopen his removal proceedings. In re John 

16 Doe, a.k.a., Suvendran Kanapathipillai, a.k.a. Suventhiran 

17 Kanapathippillai, No. A 205 298 083 (B.I.A. Feb. 13, 2019). 

18 We assume the parties’ familiarity with the underlying facts 

19 and procedural history.

20 We review the agency’s denial of a motion to reopen for 

21 abuse of discretion and review any determination regarding 

22 country conditions for substantial evidence. See Jian Hui 

23 Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). 

24 Petitioner argued that conditions in Sri Lanka had worsened 

25 for failed asylum seekers and that the situation for Tamils 
3

1 had worsened such that there was a pattern or practice of 

2 persecution. 

3 It is undisputed that Petitioner’s 2018 motion was 

4 untimely because he filed it almost two years after his 

5 removal order became final in 2016. See 8 U.S.C. 

6 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This time 

7 limitation does not apply if reopening is sought to apply for 

8 asylum and the motion “is based on changed country conditions 

9 arising in the country of nationality or the country to which 

10 removal has been ordered, if such evidence is material and 

11 was not available and would not have been discovered or 

12 presented at the previous proceeding.” 8 U.S.C. 

13 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3). However, the 

14 BIA did not err in finding that Petitioner failed to 

15 demonstrate a material change in conditions.

16 Much of Petitioner’s evidence in support of his motion 

17 was available at the time of his removal proceedings before 

18 the IJ and, in fact, was in the record before the IJ. 

19 Accordingly, those articles were evidence of past conditions 

20 but did not themselves support reopening because they were or 

21 could have been presented previously. See 8 U.S.C. 
4

1 § 1229a(c)(7)(C)(ii) (requiring that motion to reopen be 

2 based on “evidence [that] is material and was not available 

3 and would not have been discovered or presented at the 

4 previous proceeding”). The evidence that post-dated 

5 Petitioner’s hearing before the IJ reflected that the Sri 

6 Lankan government has stated that returning asylum seekers 

7 would not be harmed and did not provide details of why certain 

8 individual Tamils had been found to be at risk of persecution. 

9 Thus, the record supports the BIA’s conclusion that 

10 Petitioner failed to demonstrate a material worsening of 

11 conditions as needed to excuse the filing deadline for his 

12 motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii); Jian Hui Shao, 

13 546 F.3d at 168 (movant has “heavy burden of demonstrating 

14 that the proffered new evidence would likely alter the result”

15 (internal quotation marks omitted)); In re S-Y-G-, 24 I. & N. 

16 Dec. 247, 253 (B.I.A. 2007) (“In determining whether evidence 

17 accompanying a motion to reopen demonstrates a material 

18 change in country conditions that would justify reopening, 

19 [the BIA] compare[s] the evidence of country conditions 

20 submitted with the motion to those that existed at the time 

21 of the merits hearing below.”).
5

1 Because this finding was dispositive, we do not reach 

2 the agency’s alternative determination that Petitioner failed 

3 to establish his prima facie eligibility for asylum. See INS 

4 v. Abudu, 485 U.S. 94, 104–05 (1988) (observing that there 

5 are independent grounds for denial of reopening, including 

6 failure to submit “previously unavailable, material evidence” 

7 and failure to “establish[] a prima facie case for the 

8 underlying substantive relief sought”); INS v. Bagamasbad, 

9 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies 

10 are not required to make findings on issues the decision of 

11 which is unnecessary to the results they reach.”). 

12 For the foregoing reasons, the petition for review is 

13 DENIED. All pending motions and applications are DENIED and 

14 stays VACATED.

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe,

17 Clerk of Court