11-3712
Kalansuriya v. Holder
BIA
A097 538 432
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 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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 6th day of June, two thousand thirteen.
5
6 PRESENT:
7 REENA RAGGI,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 GAMINI KALANSURIYA,
14 Petitioner,
15
16 v. 11-3712
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Visuvanathan Rudrakumaran, New York,
24 New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
27 Attorney General; Luis E. Perez,
28 Senior Litigation Counsel; Joseph D.
29 Hardy, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Gamini Kalansuriya, a native and citizen of Sri Lanka,
6 seeks review of an August 18, 2011, decision of the BIA
7 denying his motion to reopen. In re Gamini Kalansuriya,
8 No. A097 538 432 (B.I.A. Aug. 18, 2011). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006) (per curiam). There is no dispute that
14 Kalansuriya’s motion to reopen was untimely because it was
15 filed more than 90 days after the BIA issued its final order
16 of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i); see also
17 8 C.F.R. § 1003.2(c)(2).
18 Kalansuriya contends, however, that his untimely filing
19 should be excused because he obtained new and material
20 evidence demonstrating that failed asylum seekers and
21 criminal deportees who are returned to Sri Lanka are
22 routinely persecuted or tortured by the Sri Lankan
23 government.
2
1 See 8 U.S.C. § 1229a(c)(7)(C)(ii). We conclude that the
2 BIA’s denial of Kalansuriya’s motion to reopen as untimely
3 was not an abuse of discretion.
4 Pursuant to 8 U.S.C. § 1229a(c)(7)(B), the movant bears
5 the burden of supporting his motion to reopen with relevant
6 evidence. See INS v. Abudu, 485 U.S. 94, 104 (1988). “In
7 determining whether evidence accompanying a motion to reopen
8 demonstrates a material change in country conditions that
9 would justify reopening, [the BIA] compare[s] the evidence
10 of country conditions submitted with the motion to those
11 that existed at the time of the merits hearing below.” In
12 re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007); see 8
13 C.F.R. § 1003.2(c)(3)(ii). Because Kalansuriya failed
14 properly to support his motion with any evidence describing
15 conditions in Sri Lanka for returning asylum seekers or
16 criminal deportees at the time of his 2008 merits hearing,
17 we conclude that the BIA’s finding of no materially changed
18 country conditions is supported by substantial evidence and
19 that the BIA did not abuse its discretion in denying the
20 motion to reopen on that basis. See 8 U.S.C. §
21 1229a(c)(7)(B); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
22 (2d Cir. 2008).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
4