Doe v. Garland ( 2022 )

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
4 New York, on the 21st 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,
22 Respondent. 1
23 _____________________________________
24
25 FOR PETITIONER: Visuvanathan Rudrakumaran, Esq.,
26 New York, NY.
1Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Merrick B. Garland is automatically substituted for Attorney General William P.
Barr.
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
2
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.
3
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.”).
4
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
5