11-1673-ag
Suresh v. Holder
BIA
A074 854 119
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 18th day of April, two thousand twelve.
PRESENT:
RALPH K. WINTER,
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
WASANTHA SURESH,
Petitioner,
v. 11-1673-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Benjamin B. Xue, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Cindy S. Ferrier, Assistant
Director; Kimberly A. Burdge, Trial
Attorney, Office of Immigration
Litigation, Civil Division, 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 Wasantha Suresh, a native and citizen of Sri
Lanka, seeks review of a March 31, 2011 order of the BIA
denying his motion to reopen. In re Wasantha Suresh, No.
A074 854 119 (B.I.A. Mar. 31, 2011). We assume the parties’
familiarity with the underlying facts and procedural history
in this 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). Here, because Suresh filed his
motion to reopen more than 90 days after the BIA issued a
final order of removal in his case, he was required to show
changed circumstances in Sri Lanka to excuse the untimely
filing. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).
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In support of his motion, Suresh submitted several
reports which he argued established a material change in Sri
Lanka by demonstrating that, since the end of the civil war
in May 2009, the Sri Lankan government has begun targeting
suspected Tamil Tigers (“LTTE”) sympathizers. However, the
reports provide only limited support for that assertion.
Two of the reports, addressing a proposed constitutional
amendment and alleged war crimes in the last months of the
civil war, have no bearing on the treatment of LTTE
sympathizers after the war. The other two reports are an
embassy advisory mentioning the detention of some former
LTTE members and a report discussing police brutality and
the use of anti-terrorism legislation to silence critics of
the government. By contrast, the 1999 State Department
report submitted in support of Suresh’s original asylum
application describes the widespread torture and arbitrary
arrest of Tamils at the hands of the Sri Lankan authorities,
and so the BIA did not err in concluding that conditions in
Sri Lanka have not deteriorated since Suresh’s original
asylum proceedings. Accordingly, because substantial
evidence supports the agency’s finding that Suresh did not
establish material changed country conditions, the BIA did
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not abuse its discretion in denying his motion to reopen as
untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i),(ii).
Moreover, as the BIA noted, Suresh offered no evidence
to rebut the IJ’s previous adverse credibility
determination, which we affirmed on appeal. See Suresh v.
U.S. Department of Justice, 204 F. App’x 935 (2d Cir. 2006).
Accordingly, the BIA reasonably declined to credit the
affidavits Suresh submitted in support of his motion to
reopen, in which he, his sister, and his uncle suggested
that the Sri Lankan authorities viewed him as an LTTE
sympathizer. See Qin Wen Zheng v. Gonzales, 500 F.3d 143,
148-149 (2d Cir. 2007) (holding that the BIA did not abuse
its discretion in declining to credit documents submitted in
support of motion to reopen where the alien had been found
not credible by the IJ). Therefore, even if Suresh’s
submissions had established a change in the Sri Lankan
government’s treatment of suspected LTTE sympathizers, he
would not have been eligible for relief.
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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