                                                              NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                      No. 13-3197
                                      ___________

                     IZZADEEN SHIABDEEN JAINUL ABDEEN,
                                                Petitioner

                                            v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA
                                             Respondent

                       ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A088-379-465)
                     Immigration Judge: Honorable Annie S. Garcy
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 7, 2014
                 Before: SMITH, GARTH and BARRY, Circuit Judges

                               (Opinion filed: May 7, 2014)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Izzadeen Shiabdeen Jainul Abdeen (“Abdeen”) petitions for review of the Board

of Immigration Appeals’ denial of his motion to reopen. For the reasons that follow, we

will deny the petition for review.
                                                  I.

       Abdeen, a citizen of Sri Lanka, arrived in the United States as a nonimmigrant

visitor in January 2007 and received authorization to stay in the United States until April

23, 2007. In August of that year, he filed an affirmative application for asylum. The

asylum officer denied his application and referred his case to Immigration Court. He was

subsequently served with a notice to appear charging him with removability pursuant to 8

U.S.C. § 1227(a)(1)(B) for having stayed in the United States for a time longer than

permitted. Although Abdeen conceded the charge in the notice to appear, he renewed his

request for asylum and sought withholding of removal and relief under the Convention

Against Torture (“CAT”).

       He based his asylum claim on a 2006 kidnapping in which he was held by

unidentified individuals for three days until his wife paid a ransom. He suspected, but

did not know with certainty, that the kidnapping was perpetrated by a group with

connections to the Sri Lankan government. The Immigration Judge (“IJ”) found Abdeen

credible but concluded that he had been kidnapped for economic reasons rather than for

his membership in a protected social group. The IJ also found that Abdeen failed to

establish a well-founded fear of future persecution or that it was more likely than not that

he would be subjected to torture upon his return. Accordingly, the IJ denied Abdeen’s

request for relief and ordered his removal to Sri Lanka. The Board of Immigration

Appeals (“the Board”) affirmed, and we denied Abdeen’s petition for review, see Abdeen

v. Att’y Gen., 449 F. App’x 181 (3d Cir. 2011).




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       More than a year later, Abdeen filed a counseled motion to reopen with the Board.

Although he acknowledged that his motion was untimely, he sought an exception to the

filing deadline on the basis of changed country conditions. Specifically, he asserted that

new evidence demonstrated that the Sri Lankan government detains and tortures returned

asylum seekers and that groups possibly associated with the government had increased

abductions of Muslim businessmen for ransom. The Board determined that Abdeen’s

evidence did not demonstrate that the “arrest and detention of returned asylum seekers is

a changed circumstance in Sri Lanka,” as the report he relied on stated that the Sri

Lankan government had a “history” of arresting and detaining returned asylum seekers.

Moreover, the Board stated that detention for a short period of time would not amount to

persecution, and that Abdeen failed to establish that he was similarly situated to those

who have claimed to be tortured upon their return to Sri Lanka. With regard to his claim

that abductions of businessmen have increased, the Board reiterated that Abdeen had

previously failed to establish that his past abduction was motivated by his membership in

a protected class, and it concluded that an “incremental” increase in abductions was

“insufficient to meet the heavy burden of establishing changed circumstances.” Finally,

the Board determined that Abdeen had not established his prima facie eligibility for the

relief he sought. For those reasons, the Board denied Abdeen’s motion to reopen and

declined to exercise its sua sponte authority to reopen proceedings. Through counsel,

Abdeen filed a timely petition for review.




                                             3
                                                 II.

       We have jurisdiction under 8 U.S.C. § 1252, 1 and we review denials of motions to

reopen under a deferential abuse of discretion standard. 2 See Sevoian v. Ashcroft,

290 F.3d 166, 170, 174 (3d Cir. 2002). “Discretionary decisions of the [Board] will not

be disturbed unless they are found to be ‘arbitrary, irrational or contrary to law.’” Tipu v.

I.N.S., 20 F.3d 580, 582 (3d Cir. 1994). A motion filed more than 90 days after the final

decision of the Board cannot be entertained unless it “is based upon changed country

conditions proved by evidence that is material and was not available and could not have

been discovered or presented at the previous proceeding.” Pllumi v. Att’y Gen. of the

U.S., 642 F.3d 155, 161 (3d Cir. 2011).

       Abdeen does not dispute that his motion to reopen was filed more than 90 days

after the Board’s final decision, but he argues that country conditions in Sri Lanka have

changed. In support of his claim, he submitted a June 2011 Amnesty International press

release that expressed concern that 26 “mostly Tamil” rejected asylum seekers would

face torture upon their return to Sri Lanka from the United Kingdom. The statement also

noted that the Sri Lankan Government has a history of detaining and torturing returned

asylum seekers. However, as the Board explained, the Amnesty International press


1
  We lack jurisdiction to review the portion of the Board’s decision that denied sua sponte
reopening. See Pllumi v. Att’y Gen. of the U.S., 642 F.3d 155, 159 (3d Cir. 2011).
2
  Because we find that the Board’s decision was not arbitrary, irrational, or contrary to
law, we do not reach the Board’s alternative determination that Abdeen did not establish
a prima facie case for asylum relief. See Sevoian, 290 F.3d at 169-70 (3d Cir. 2002)
(stating the BIA may deny a motion to reopen in asylum cases where it determines that
“the movant would not be entitled to the discretionary grant of relief.”) (citing INS v.



                                            4
release did not establish that country conditions had changed since his removal hearing in

2009; rather it demonstrated that the conditions have persisted. See id. (concluding that

the Petitioner had not established changed country conditions when “the conditions

described have persisted,” even though the evidence submitted by the Petitioner was not

available to him at the time of his initial removal hearing). Thus, even assuming that

Abdeen presented objective evidence that the Sri Lankan government will know of his

status as a returned asylum seeker, he has not proven that conditions in Sri Lanka have

changed for returned asylum seekers. See id.

       Abdeen also argues that substantial evidence does not support the Board’s

conclusion that the increase in abductions of Muslim businessmen constitutes a changed

country condition. He believes that the Board held him to a heightened standard for

showing his eligibility for reopening based on the increase of such abductions. Abdeen

submitted a press release from the Asian Human Rights Commission and a report of the

Refugee Review Tribunal of Australia to demonstrate that the abductions of wealthy

businessmen have increased and that members of the Tamil and Muslim communities are

targeted in particular. The documents also expressed concern that the Sri Lankan

government was either complicit or collaborating with the groups of kidnappers.

However, the Asian Human Rights Commission press release stated that it has been

urging the Sri Lankan government to prevent abductions and disappearances “for many

years now,” and the Refugee Review Tribunal stated that the “wave of abductions” dates


Abudu, 485 U.S. 94, 105 (1988))



                                            5
back to mid-2006. Therefore, the increase in abductions predated Abdeen’s initial

immigration hearing and does not constitute a change in country conditions. See id.

       After reviewing the record, it does not appear that the Board’s decision was

arbitrary, irrational, or contrary to law. See Tipu, 20 F.3d at 582. Accordingly, we will

deny the petition for review.




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