17-1249
Viknesrajah v. Barr
BIA
A095 665 546
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 9th day of April, two thousand nineteen.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 NADARAJAH VIKNESRAJAH, AKA MARIO
14 D’AMICO, AKA VIKNESRAJAH
15 NADARAJAH,
16 Petitioner,
17
18 v. 17-1249
19 NAC
20
21 WILLIAM P. BARR, UNITED STATES
22 ATTORNEY GENERAL,
23 Respondent.
24 _____________________________________
25
26 FOR PETITIONER: Visuvanathan Rudrakumaran,
27 New York, NY.
28
29 FOR RESPONDENT: Joseph H. Hunter, Assistant
30 Attorney General; Daniel I.
31 Smulow, Senior Counsel for
32 National Security Unit; Alison
1 Marie Igoe, Senior Counsel for
2 National Security Unit, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Nadarajah Viknesrajah, a native and citizen
12 of Sri Lanka, seeks review of March 28, 2017, decision of the
13 BIA denying his motion to reopen. In re Nadarajah
14 Viknesrajah, No. A095 665 546 (B.I.A. Mar. 28, 2017). We
15 assume the parties’ familiarity with the underlying facts and
16 procedural history in this case.
17 We review the BIA’s denial of Viknesrajah’s motion to
18 reopen for abuse of discretion and consider whether its
19 conclusion regarding changed country conditions is supported
20 by substantial evidence. Jian Hui Shao v. Mukasey, 546 F.3d
21 138, 168-69 (2d Cir. 2008).
22 It is undisputed that Viknesrajah’s 2016 motion to
23 reopen was untimely as it was filed almost three years
24 after the BIA’s last decision in his case. See 8 U.S.C.
2
1 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time
2 limitation does not apply if reopening is sought to apply
3 for asylum (or withholding of removal and protection under
4 the Convention Against Torture (“CAT”)) and the motion “is
5 based on changed country conditions arising in the country
6 of nationality or the country to which removal has been
7 ordered, if such evidence is material and was not available
8 and would not have been discovered or presented at the
9 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
10 also 8 C.F.R. § 1003.2(c)(3)(ii). However, as discussed
11 below, the BIA did not abuse its discretion in denying
12 reopening because Viknesrajah failed to establish a
13 material change in conditions given the lack of evidence of
14 worsened treatment of (1) Tamils from areas formerly
15 controlled by the Liberation Tigers of Tamil Eelam (“LTTE”)
16 who are associated with or perceived to be associated with
17 the LTTE, (2) failed asylum seekers, and (3) Tamils
18 returning from western countries.
19 As an initial matter, two of the fourteen articles were
20 available at the time of Viknesrajah’s removal proceedings
21 before the IJ and one was in the record of his prior
3
1 proceedings. Accordingly, those articles are evidence of
2 past conditions but do not themselves support reopening
3 because they were or could have been presented previously.
4 See 8 U.S.C. § 1229a(c)(7)(C)(ii) (requiring that motion to
5 reopen be based on “evidence [that] is material and was not
6 available and would not have been discovered or presented at
7 the previous proceeding”).
8 The new evidence that post-dates Viknesrajah’s final
9 hearing does not support his claim that the Sri Lankan
10 government has increased its mistreatment of Tamils
11 associated or perceived to be associated with the LTTE, failed
12 asylum seekers, or Tamils returning from western countries.
13 The articles reflect that mistreatment of Tamils associated
14 or perceived to be associated with the LTTE and failed asylum
15 seekers has continued but has not increased, as needed to
16 amount to changed circumstances. See In re S-Y-G-, 24 I. &
17 N. Dec. 247, 253 (BIA 2007) (“In determining whether evidence
18 accompanying a motion to reopen demonstrates a material
19 change in country conditions that would justify reopening,
20 [the BIA] compare[s] the evidence of country conditions
4
1 submitted with the motion to those that existed at the time
2 of the merits hearing below.”).
3 As for evidence that Sri Lanka tortures Tamils returning
4 from western countries, “the record [at Viknesrajah’s prior
5 proceedings was] devoid of any evidence that the Sri Lankan
6 government tortures returning Tamils.” Viknesrajah v. Lynch,
7 620 F. App’x 28, 30 (2d Cir. 2015). The evidence he submitted
8 with his motion to reopen is similarly scant. The BIA
9 therefore reasonably concluded that Viknesrajah did not
10 submit enough evidence that “Tamils returning from Western
11 countries are likely to suffer torture in Sri Lanka,” let
12 alone evidence that there has been a material change in the
13 treatment of returning Tamils as needed to overcome the time
14 limitation on the motion to reopen. In re of S-Y-G-, 24 I.
15 & N. Dec. at 257 (“Change that is incremental or incidental
16 does not meet the regulatory requirements for late motions.”)
17 Thus, on this record, the agency was not compelled to
18 conclude that Viknesrajah’s evidence reflected a change in
19 conditions material to his fear of torture. See Jian Hui
20 Shao, 546 F.3d at 171. Because Viknesrajah failed to
21 demonstrate a material change, the agency did not abuse its
5
1 discretion in denying his motion to reopen as untimely. See
2 8 U.S.C. § 1229a(c)(7)(C).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, the pending motion
5 for a stay of removal in this petition is DISMISSED as moot.
6 Any pending request for oral argument in this petition is
7 DENIED in accordance with Federal Rule of Appellate Procedure
8 34(a)(2), and Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe,
11 Clerk of Court
6