Parnanthu v. Holder , 567 F. App'x 47 ( 2014 )

13-159
Parnanthu v. Holder
BIA
A077 022 500
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
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 23rd day of May, two thousand fourteen.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
ARULTHAS PARNANTHU,
Petitioner,
v. 13-159
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
New York.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Leslie McKay, Assistant
Director; Melissa K. Lott, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Arulthas Parnanthu, a native and citizen of
Sri Lanka, seeks review of a December 18, 2012, decision of
the BIA denying his motion to reopen his removal
proceedings. In re Arulthas Parnanthu, No. A077 022 500
(B.I.A. Dec. 18, 2012). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006) (per curiam). The agency may properly deny a
motion to reopen where the movant fails to establish a prima
facie case for the underlying substantive relief sought.
See INS v. Abudu, 485 U.S. 94, 104-05 (1988).
Contrary to Parnanthu’s assertions, the BIA did not err
in finding that he failed to demonstrate his prima facie
eligibility for relief as a returned asylum seeker. See
Jian Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)
(recognizing that an alien’s “ability to secure reopening
depends on a demonstration of prima facie eligibility for
2
[relief], which means she must show a ‘realistic chance’
that she will be able to obtain such relief”(citations
omitted)). Indeed, the BIA explicitly considered the
country conditions evidence and reasonably found that while
returning Sri Lankans are routinely screened and questioned
upon arrival, the mere filing of an asylum application was
not a factor increasing their risk of mistreatment and there
was not a pattern or practice of persecution or torture of
returned asylum seekers in Sri Lanka. See Adjin v. Bureau
of Citizenship and Immigration Servs., 437 F.3d 261, 264 (2d
Cir. 2006) (BIA’s conclusion that petitioners did not
establish prima facie eligibility for asylum affirmed where
petitioner’s evidence of country conditions principally
concerned “the persecution of a faction of ethnic Albanians
engaged in armed rebellion against the Macedonian government
and [did] not establish that any ethnic Albanian living in
Macedonia between 2001 and 2002 has a well-founded fear of
persecution, simply by virtue of his ethnicity”). Instead,
the BIA reasonably determined that the evidence reflected
that returning Sri Lankans with criminal records and ties to
the Liberation Tigers of Tamil Elam (“LTTE”) were at
increased risk of mistreatment or torture, characteristics
3
which Parnanthu either did not claim to possess, or could
not establish he possessed, in light of the agency’s prior
adverse credibility determination. Cf. Kaur v. BIA, 413
F.3d 232, 234 (2d Cir. 2005) (per curiam)(affirming the
BIA’s denial of an untimely motion to reopen on the basis
that the petitioner’s evidence “was not ‘material’ because
it did not rebut the adverse credibility finding that
provided the basis for the IJ’s denial of petitioner’s
underlying asylum application” (citation omitted)).
The BIA also did not err in finding that Parnanthu
failed to demonstrate his prima facie eligibility for relief
as a member of the Tamil diaspora because the evidence did
not indicate that the Sri Lankan government was targeting
the Tamil diaspora for persecution or torture, but merely
referenced the Sri Lankan government’s expenditures on
public relations firms in an effort to strengthen its public
image and weaken the international impact of the Tamil
diaspora’s resistance activities. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 165 (2d Cir. 2008) (BIA reasonably
declined to infer reasonable possibility of persecution from
official documents that spoke generally of punishment,
without referencing forced sterilization); Jian Xing Huang
4
v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (holding that “[i]n
the absence of solid support in the record for [an
applicant’s] assertion that he will be subjected to
[persecution], his fear is speculative at best”).
We further reject, as meritless, petitioner’s
contentions that (1) the BIA impermissibly required him to
demonstrate more than a reasonable likelihood that he could
establish eligibility for relief, and (2) the BIA abused its
discretion by failing to abide by unpublished decisions of
the BIA, which reopened and remanded proceedings to an
Immigration Judge on the basis of similar claims and
evidence. Nothing in the BIA’s opinion indicates that it
applied a heightened standard to petitioner’s motion and any
“apparent inconsistency” between the BIA’s decision in
Parnanthu’s case and its unpublished decisions “is of no
moment because unpublished opinions of the BIA have no
precedential value.” Ajdin, 437 F.3d at 264-65.
Because the BIA did not abuse its discretion in denying
Parnanthu’s motion to reopen for failure to demonstrate his
prima facie eligibility for relief, we decline to consider
Parnanthu’s challenges to the BIA’s alternative bases for
denial, that his evidence was not new and that he failed to
show a material change in country conditions. See INS v.
5
Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule
courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results
they reach.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, petitioner’s
pending request for oral argument in this petition is DENIED
in accordance with Federal Rule of Appellate Procedure
34(a)(2), and Second Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6