                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-2527
                                       ___________

                     IZZADEEN SHIABDEEN JAINUL ABDEEN,
                                   Petitioner

                                             v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                  Respondent
                   ____________________________________

                        On Petition for Review of a Decision of the
                           United States Department of Justice
                             Board of Immigration Appeals
                                  (BIA-1: A088-379-465)
                         Immigration Judge: Hon. Annie S. Garcy
                       ____________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 23, 2019

                Before: JORDAN, KRAUSE, and ROTH, Circuit Judges

                              (Opinion filed: May 30, 2019)


                                        OPINION*




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

       Izzadeen Shiabdeen Jainul Abdeen, an alien from Sri Lanka, petitions for review

of an order by the Board of Immigration Appeals (BIA) denying his second motion to

reopen removal proceedings because he failed to establish prima facie eligibility for

relief. We will deny the petition.

       Background

       Abdeen previously applied for, but was not granted, asylum, withholding of

removal, and protection under the Convention Against Torture (CAT) on the basis that he

endured mistreatment for supporting the Sri Lanka Muslim Congress. He subsequently

filed a motion to reopen his proceedings but missed the filing deadline. See 8 U.S.C. §

1229a(c)(7)(C)(i) (requiring motion to be filed “within 90 days of the . . . order of

removal”). The BIA denied the motion, finding that the “changed country conditions”

exception to the filing deadline, 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. §

1003.2(c)(3)(ii), did not apply.

       Several years later, Abdeen filed a second motion to reopen, arguing that the

changed-conditions exception now applied because multiple incidents of violence against

Muslims had recently transpired in Sri Lanka. The BIA again denied his motion because,

even assuming arguendo that conditions in Sri Lanka had changed, the BIA will only

grant a motion to reopen if the alien establishes prima facie eligibility for relief, Khan v.

Att’y Gen., 691 F.3d 488, 496 (3d Cir. 2012), which it concluded Abdeen had failed to

do. This appeal followed.



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       Discussion1

       Abdeen petitions for review of the BIA’s denial of his motion to reopen removal

proceedings, positing that (1) the BIA failed to address one of the arguments in his

motion concerning the aggregated risk of persecution he would face in Sri Lanka as a

Muslim and as a returned asylum-seeker; (2) the BIA failed to consider certain evidence

he presented; (3) the BIA applied the wrong legal standard in determining whether he had

established prima facie eligibility for relief; and (4) the BIA’s determination that he did

not establish prima facie eligibility was simply incorrect. None of these arguments is

persuasive.

       A. The BIA’s Failure to Consider Abdeen’s Aggregated-Risk Argument

       As the Government concedes, the BIA failed to expressly address Abdeen’s

argument that he was entitled to asylum because the “cumulative effect,” Petitioner’s Br.

9, of being someone who fled Sri Lanka seeking asylum and being Muslim created a

sufficient risk that he would face persecution upon return. But as the Government also

points out, any error was harmless.

       An error is harmless when it is “highly probable that the error did not affect the

outcome of the case.” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d Cir. 2011). To

obtain a different outcome, a petitioner would need “to produce objective evidence

showing a reasonable likelihood that he can establish that he is entitled to relief.” Guo v.


       1
        This Court has jurisdiction over Abdeen’s petition for review pursuant to 8
U.S.C. § 1252(a)(1). See Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006). We
review the BIA’s denial of his motion to reopen for abuse of discretion. See Guo v.
Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
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Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004) (citations omitted). And for the relief of

asylum, a petitioner like Abdeen, among other things, would need to establish a well-

founded fear of persecution. See Huang v. Att’y Gen., 620 F.3d 372, 380–81 (3d Cir.

2010).

         Here, there is almost no chance that the BIA, considering Abdeen’s returned

asylum-seeker argument, would have concluded he could establish a well-founded fear of

persecution. Essentially all of the evidence Abdeen offered regarding the persecution

that returned asylum-seekers purportedly face in Sri Lanka concerned people who were

persecuted for being Tamil and were, only incidentally, returned asylum-seekers.

Abdeen is not Tamil, and the evidence therefore did not speak to his risk of future

persecution. Indeed, the BIA previously rejected a highly similar argument in Abdeen’s

first motion on precisely that basis. And the only meaningful difference between his

prior and current arguments is that Abdeen now seeks to aggregate the risk of persecution

he faces as a returned asylum-seeker and as a Muslim. But as Abdeen’s evidence

concerns a group to which he does not belong, the aggregated risk is not materially

different than the original risk, and the BIA’s failure to consider Abdeen’s aggregation

argument thus was harmless.

         B. The BIA’s Purported Failure to Consider Certain Evidence

         The BIA abuses its discretion if it fails to “appraise[] the material evidence before

it.” Sevoian v. Ashcroft, 290 F.3d 166, 177 (3d Cir. 2002) (citation omitted). Abdeen

contends that happened here—asserting in broad terms that the BIA overlooked a litany

of evidence he presented—but he does not explain specifically why the BIA’s assessment

                                               4
of his evidence did not suffice. Though the BIA did not discuss each piece of evidence

offered by Abdeen, the BIA observed that he had “presented a number of articles

showing that . . . anti-Muslim hate groups . . . have engaged in attacks against the Muslim

minority” and explained how it reached its decision in spite of that evidence, A.R. 3–4,

which is all it was required to do, see Sevoian, 290 F.3d at 178 (“The Board is not

required to write an exegesis on every contention, . . . but only to show that it has

reviewed the record and grasped the movant’s claims.” (citations omitted)). We therefore

find no abuse of discretion in the BIA’s evaluation of Abdeen’s evidence.

          C. The BIA’s Application of the Prima Facie Eligibility Standard

          Abdeen also contends that, while he was only required to show a “reasonable

likelihood” that he would later be able to establish entitlement to relief, Guo, 386 F.3d at

563, the BIA held him to the higher standard that ultimately governs eligibility for relief

itself.

          The BIA is entitled to a “presumption of regularity,” Kamara v. Att’y Gen., 420

F.3d 202, 212 (3d Cir. 2005), and accordingly, “[a]bsent evidence to the contrary,

[courts] presume[] that the BIA applied the correct standard,” Pilica v. Ashcroft, 388 F.3d

941, 949 (6th Cir. 2004). Here, Abdeen failed to put forward evidence to the contrary.

While it is true that the BIA did not expressly reference the “reasonable likelihood”

standard, it did cite this Court’s articulation of that standard when framing its discussion

of prima facie eligibility. See A.R. 3 (citing Khan, 691 F.3d at 496). And although it

alluded to the standards that govern eligibility for asylum and CAT protection, it did not

conclude that Abdeen’s motion failed because he could not meet those standards. Rather,

                                               5
it held he had not made a prima facie showing that he could meet those standards. See

A.R. 4 (“[T]he evidence . . . does not make a prima facie showing that the respondent has

a well-founded fear or a clear probability of persecution by individuals the Sri Lankan

government is unable or unwilling to control. . . . Nor has the respondent presented a

prima facie case that he will more likely than not be subjected to torture [by a

government actor or by someone with government acquiescence].” (emphasis added)). In

short, although the BIA could have been more explicit about the standard it was applying,

it does not appear to have held Abdeen to a higher standard than appropriate.

       D. The BIA’s Ultimate Finding Regarding Prima Facie Eligibility

       Abdeen’s final argument is that the BIA erred by concluding that he did not

establish prima facie eligibility for relief. But he does not highlight any specific legal

error, and instead merely quibbles with the BIA’s assessment of the evidence. We cannot

say that assessment was “arbitrary, irrational or contrary to law,” and the BIA therefore

did not abuse its discretion on this issue as well. Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir.

1994) (citations omitted).

       Conclusion

       For the aforementioned reasons, we will deny the petition as to the BIA’s June 11,

2018 order.




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