19

- 605 Doe v. Garland BIA A 205 298 083 

### 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 ELECTR ONIC 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.** 

**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **1 s**  **t d**  **a y of**  **A p**  **r i**  **l , two thousand**  **twenty**

**- t**  **w o** 

**.** 4 5 **PRESENT:** 6 **JOHN M. WALKER, JR. ,**  7 **BARRINGTON D. PARKER ,**  8 **JOSEPH F. BIANCO ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **JOHN DOE ,**  **AKA SUVENDRAN** 13 **KANAPATHIPILLAI, AKA**  14 **SUVENTHIRAN KANAPATHIPPILLAI** 15 **Petitioner ,**  16 17

**v. 19** 

**- 605**  18 **NAC** 19 **MERRICK B. GARLAND, UNITED**  20 **STATES ATTORNEY GENERAL**  **,** 21 **Respondent**

**. 1**  22

**_____________________________________** 23 24 **FOR PETITIONER :**  Visuv anathan Rudrakumaran , Esq., 25 New York , NY

. 26

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 **FOR RESPONDENT:** Joseph H. Hunt , Assistant Attorney 2 General ; Shelley R. Goad , 3 Assistant Director; Laura Hall iday 4 Hickein , Trial Attorney, Office of 5 Immigration Litigation, United 6 States Department of Justice, 7 Washington, D C. 8

UPON DUE CONSIDERATION of this petition for review of a 9

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

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 11

is DENIED

. 12

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

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

his motion to reopen his removal proceedings

. In re John 15

Doe, a.k.a., Suv endran Kanapathipillai , a.k.a. Suventhiran 16

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

. 17

We assume the parties’ familiarity with the underlying facts 18

and procedural history. 19

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

abuse of discretion and review any determination regarding 21

country conditions for substantial evidence. See Jian Hui 22

Shao v. Mukasey , 546 F.3d 138, 16 8

- 6 9 (2d Cir. 2008). 23

Petitioner argued that conditions in Sri Lanka had worsened 24

for failed asylum seekers and th at the situation for Tamils 253 had worsened such that there was a pattern or practice of 1

persecuti on
. 2

It is undisputed that Petitioner ’s 2018 motion was 3

untimely because he filed it almost two years after his 4

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

§ 1 229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). This time 6

limitation do es not apply if reopening is sought to apply for 7

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

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

remova l has been ordered, if such evidence is material and 10

was not available and would not have been discovered or 11

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

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

BIA did not err in finding that Petit ioner failed to 14

demonstrate a material change in conditions. 15

M uch of Petitioner’s evidence in support of h is motion 16

was available at the time of his removal proceedings before 17

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

. 18

Accordingly, those articles were evidence of past conditions 19

but did not themselves support reopening because they were or 20

could have been presented previously. See 8 U.S.C. 214 § 1229a(c)(7)(C)(ii) (requiring that motion to reopen be 1

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

and would not have been discovered or presented at the 3

previous proceeding”). The evidence that post

- dated 4

Petitioner’s hearing before the IJ reflect ed that the Sri 5

Lankan government has stated that retur ning asylum seekers 6

w ould not be harmed and did not provide details of why certain 7

individual Tamils had been found to be at risk of persecution

. 8

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

Petitioner failed to demonstrate a material worsening of 10

conditions a s needed to excuse the filing deadline for his 11

motion

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

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

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

(internal quotat ion marks omitted) ) ; In re S

- Y

- G

- , 24 I. & N. 15

Dec. 247, 253 (B

. I

. A

. 2007) ( “In determining whether evidence 16

accompanying a motion to reopen demonstrates a material 17

change in country conditions that would justify reopening, 18

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

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

of the merits hearing below.” ). 215 Because this finding was dis positive, we do not reach 1

the agency’s alternative determination that Petitioner failed 2

to establish his prima facie eligibility for asylum. S ee INS 3

v. Abudu , 485 U.S. 94, 104

– 05 (1988) (observing that there 4

are independent grounds for denial of reopening, including 5

failure to submit “previously unavailable , material evidence” 6

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

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

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

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

which is unnecessary to the results they reach.”)

. 11

For the foregoing reasons, the petition for review is 12

DENIED

. All pending motions and applications are DENIED and 13

stays VACATED. 14

FOR THE COURT: 15 Catherine O ’ Hagan Wolfe , 16 Clerk of Court 17