NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 18-3832
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WARNKULA SOORIYA AUGUSTINE FERNANDO,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
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On Petition for Review of an Order of
The Board of Immigration Appeals
(Agency No. A070-650-606)
Immigration Judge: Eugene Pugliese
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 3, 2019
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Before: SHWARTZ, SCIRICA, and FUENTES, Circuit Judges.
(Filed: October 8, 2019)
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OPINION
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SHWARTZ, Circuit Judge.
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Warnkula Sooriya Augustine Fernando petitions for review of an order from the
Board of Immigration Appeals (“BIA”) denying his motion to reopen. Because the BIA
did not abuse its discretion, we will deny the petition.
I
Fernando is a native and citizen of Sri Lanka who entered the United States
without valid entry documents in 1990. He requested asylum, claiming that he was “an
active member” of the Liberation Tigers of Tamil Eelam who feared being “arrested or
killed” by the Sri Lankan government. AR 1140. Fernando’s application was denied and
referred to an immigration judge (“IJ”).
The Immigration and Naturalization Service charged Fernando with removability,
which he conceded. During his 1998 removal proceedings, Fernando sought asylum and
withholding of removal and claimed that, as “a Tamil male from Sri Lanka, [he]
belong[ed] to a minority ethnic group that has been discriminated against by the Sri
Lankan government since 1948.” AR 1120. Unlike his first asylum application, his
second did not assert membership in the Liberation Tigers. The IJ denied his application,
citing “credibility problems,” including his conflicting asylum applications. AR 842.
Fernando appealed, challenging the IJ’s credibility determination, and the BIA dismissed
the appeal. We denied his petition for review, concluding, among other things, that there
was substantial evidence to support the adverse credibility determination. Fernando v.
Att’y Gen., 181 F. App’x 196, 198 (3d Cir. 2006).
Fernando then filed motions to reopen in 2006, 2007, 2017, and 2018, each of
which the BIA denied. In his latest motion, Fernando claimed that there were two
2
“material change[s] in country conditions” warranting reopening of his immigration
proceedings: (1) failed asylum seekers would now be “subjected to torture” upon return
to Sri Lanka and (2) Tamils would now suffer persecution “on account of their ethnicity
alone.” AR 25-26. The BIA denied the motion because Fernando’s supporting
documents did not reflect the two alleged changes. Fernando petitions for review.
II1
Generally, an alien may file only one motion to reopen “within 90 days of the date
of entry of a final administrative order of removal.” 8 U.S.C. §§ 1229a(c)(7); 8 C.F.R. §
1003.2(c)(2). An alien can file an otherwise time- or number-barred motion if he
demonstrates “changed circumstances arising in the country of nationality” from the time
of his merits hearing to the time of his latest reopening hearing. 8 C.F.R. §
1003.2(c)(3)(ii); Liem v. Att’y Gen., 921 F.3d 388, 395 (3d Cir. 2019). The evidence of
changed country conditions must be “material” and unavailable at the original merits
hearing. 8 C.F.R. § 1003.2(c)(3)(ii).
Fernando’s argument that the BIA overlooked documents showing changed
country conditions in Sri Lanka affecting failed asylum seekers and Tamils lacks merit.
1
The BIA had jurisdiction under 8 C.F.R. § 1003.2(c). We have jurisdiction
under 8 U.S.C. § 1252(a). “We review the BIA’s denial of a motion to reopen for abuse
of discretion . . . and review its underlying factual findings related to the motion for
substantial evidence.” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006). Under the
“substantial evidence standard,” we will uphold a factual finding “unless the evidence not
only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477,
483-84 (3d Cir. 2001).
3
First, Fernando failed to show any changes in country conditions for failed asylum
seekers between 1998, the year of his merits hearing, and 2018, the year of his fourth
motion to reopen. For instance, Fernando points to two newspaper articles reporting that
failed asylum seekers face danger in Sri Lanka, but both articles were published in 2010
and do not address country conditions in 2018. Likewise, Fernando cites an opinion by
an expert whose “most recent fact-finding visit to Sri Lanka was in May 2005.” AR 271.
In addition, an article submitted during Fernando’s merits hearing in 1998 stated that a
“Tamil refugee . . . was reportedly arrested by police in Sri Lanka as soon as he arrived at
the airport.” AR 1062. Lastly, Fernando included in his fourth motion to reopen a
newspaper article from early 2017 reporting that “failed asylum seekers” who “returned
to Sri Lanka . . . were tortured.” AR 238. That same article, however, observed that
failed asylum seekers “still risk torture on return to Sri Lanka,” AR 236 (capitalizations
omitted), and that human rights abuses are “ongoing,” AR 237. Thus, substantial
evidence supports the BIA’s conclusion that this article “do[es] not show changed
country conditions or intensified mistreatment of returned asylum seekers.”2 AR 4; see
Perera v. Holder, 750 F.3d 25, 29 (1st Cir. 2014) (observing that “evidence of Sri Lanka’s
2
Fernando erroneously contends that the BIA failed to review an article describing
Sri Lankan security forces seeking to interrogate Tamils when they returned home from
abroad. The BIA discussed this article in its opinion denying Fernando’s third motion to
reopen and noted in its fourth denial that “[o]ther documents submitted in support of the
returned asylum seeker claim . . . were considered and addressed in the [BIA’s] prior
decision.” AR 5. In any event, the article addresses country conditions from 2009 to
2015, not those in 2018.
4
history of torturing returned asylum seekers . . . is, sadly, an old condition that has
continued, which also makes [the petitioner’s] reopen motion a nonstarter”).
Second, substantial evidence supports the BIA’s finding that the treatment of
Tamils in Sri Lanka did not materially change between 1998 and 2018. Fernando argues
that, while being Tamil contributed to a person’s persecution in 1998, since 2018, being
Tamil is a dispositive “factor” resulting in persecution in Sri Lanka. Pet’r’s Br. at 15.
Unfortunately, as the BIA correctly recognized, Fernando’s evidence showed that
“ethnicity has long been a factor in mistreatment of Tamils . . . by the Sri Lankan
government.” AR 5-6. For example, one document titled “Sri Lanka’s Genocide Against
Tamils” provided that “Sri Lanka’s historic violations include over 60 years of state-
sponsored anti-Tamil pogroms, massacres, sexual violence, and acts of cultural and
linguistic destruction perpetrated by the state.” AR 375. A 1997 Department of State
country conditions report about Sri Lanka also noted that Sri Lankan security forces
“conduct[ed] mass arrests of young Tamils.” AR 1126. In short, Fernando’s evidence
shows the continued mistreatment of Tamils in Sri Lanka and the absence of a material
change in country conditions.
Accordingly, because Fernando’s motion is time- and number-barred and he has
not presented a basis to overcome this limitation, we cannot say the BIA abused its
discretion in denying Fernando’s fourth motion to reopen.3
3
Because a change in country conditions is a “threshold question” before a motion
to reopen may “be brought,” and substantial evidence supports the BIA’s finding that
Fernando failed to show material changes in country conditions, we need not address the
5
III
For the foregoing reasons, we will deny Fernando’s petition for review.
merits of whether he has “ma[d]e out a prima facie case for asylum” or withholding of
removal. Shardar v. Att’y Gen., 503 F.3d 308, 312 (3d Cir. 2007).
6