08-5616-ag
Arumaichsothylingam v. Holder
BIA
A088 610 167
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 8 th day of February, two thousand ten.
PRESENT:
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
PETER W. HALL,
Circuit Judges.
______________________________________
EELAVENTHAN ARUMAICHSOTHYLINGAM,
Petitioner,
08-5616-ag
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, *
Respondent.
______________________________________
FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
N.Y.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Lindsay B. Glauner, Trial
Attorney, 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, Eelaventhan Arumaichsothylingam, a native
and citizen of Sri Lanka, seeks review of an October 28,
2008, order of the BIA denying his motion to reopen his
removal proceedings. In re Eelaventhan Arumaichsothylingam,
No. A 088 610 167 (B.I.A. Oct. 28, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006). When the BIA considers relevant evidence of
country conditions in evaluating a motion to reopen, we
review the BIA’s factual findings under the substantial
evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 169 (2d Cir. 2008).
Contrary to Arumaichsothylingam’s argument that the BIA
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improperly failed to consider his prima facie eligibility
for asylum, we have articulated at least three permissible
bases upon which the BIA may deny a timely motion to reopen,
including: “(1) the movant’s failure to establish a prima
facie case of eligibility for asylum; (2) the movant’s
failure to . . . articulate material, previously unavailable
evidence that would be introduced at a new hearing; or (3) a
determination that even if the applicant were eligible,
asylum would be denied in the exercise of discretion.” Cao
v. United States Dep’t of Justice, 421 F.3d 149, 156 (2d
Cir. 2005). Movants submitting material, previously
unavailable evidence, bear the “heavy burden” of
“demonstrating a likelihood that the new evidence presented
would alter the result in the case.” Id.
Here, the BIA reasonably found that Arumaichsothylingam
failed to meet this “heavy burden.” The county conditions
evidence Arumaichsothylingam submitted with his motion to
reopen did not materially differ from the evidence he
submitted to the IJ; thus, the BIA reasonably found that
this evidence would not alter the conclusions drawn by the
IJ in this case. Sanusi v. Gonzales, 445 F.3d 193, 201 (2d
Cir. 2006) (quoting Matter of Coelho, 20 I&N Dec. 464, 473
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(BIA 1992). This conclusion was particularly appropriate
given the IJ’s prior determination that Arumaichsothylingam
was entirely lacking in credibility. Id.
Finally, contrary to Arumaichsothylingam’s assertion,
he advanced no separate argument in his motion to reopen
regarding his new eligibility for CAT relief. Accordingly,
the BIA was under no obligation to conduct a separate
analysis of his prima facie eligibility for that relief.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
We have considered Arumaichsothylingam’s remaining
arguments and find them to be without merit. Accordingly,
for the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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