Balasuriya v. INS ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 00-60091
Summary Calendar
__________________
AMITHA PRADEEP BALASURIYA,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 443 821
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November 27, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Amitha Pradeep Balasuriya, a native and
citizen of Sri Lanka, petitions this court for review of the Board
of Immigration Appeals’(BIA) order denying his motion to reopen the
removal proceedings for consideration of Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture). This court
may not consider evidence which was not presented initially to the
BIA. Rivera-Cruz v. INS, 948 F.2d 962, 967 (5th Cir. 1991). Nor
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 00-60091
-2-
can this court consider the BIA’s initial order dismissing
Balasuriya’s appeal from the immigration judge’s order of removal
and denial of the requests for asylum and for withholding of
removal. Balasuriya did not petition this court for review of that
final order.
Balasuriya contends that the BIA utilized the wrong standard
of review in considering his motion. To be eligible for
withholding of removal under the Convention Against Torture,
Balasuriya had the burden “to establish that it is more likely than
not that he . . . would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2) (2000). The BIA did
not abuse its discretion by denying Balasuriya’s request to reopen.
His new evidence was insufficient to meet his burden. See De
Morales v. INS, 116 F.3d 145, 147-49 (5th Cir. 1997).
Accordingly, Balasuriya’s petition for review is DENIED.