    08-5616-ag
    Arumaichsothylingam v. Holder
                                                                                  BIA
                                                                          A088 610 167


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

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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 8 th day of February, two thousand ten.

    PRESENT:
             ROBERT A. KATZMANN,
             BARRINGTON D. PARKER,
             PETER W. HALL,
                     Circuit Judges.
    ______________________________________

    EELAVENTHAN ARUMAICHSOTHYLINGAM,
             Petitioner,
                                                           08-5616-ag
                       v.                                  NAC

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL, *
             Respondent.
    ______________________________________

    FOR PETITIONER:                  Visuvanathan Rudrakumaran, New York,
                                     N.Y.



                 *
              Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr., is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
FOR RESPONDENT:           Tony West, Assistant Attorney
                          General; Linda S. Wernery, Assistant
                          Director; Lindsay B. Glauner, Trial
                          Attorney, 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, Eelaventhan Arumaichsothylingam, a native

and citizen of Sri Lanka, seeks review of an October 28,

2008, order of the BIA denying his motion to reopen his

removal proceedings.     In re Eelaventhan Arumaichsothylingam,

No. A 088 610 167 (B.I.A. Oct. 28, 2008).     We assume the

parties’ familiarity with the underlying facts and

procedural history of the 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).

    Contrary to Arumaichsothylingam’s argument that the BIA

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improperly failed to consider his prima facie eligibility

for asylum, we have articulated at least three permissible

bases upon which the BIA may deny a timely motion to reopen,

including: “(1) the movant’s failure to establish a prima

facie case of eligibility for asylum; (2) the movant’s

failure to . . . articulate material, previously unavailable

evidence that would be introduced at a new hearing; or (3) a

determination that even if the applicant were eligible,

asylum would be denied in the exercise of discretion.”     Cao

v. United States Dep’t of Justice, 421 F.3d 149, 156 (2d

Cir. 2005).   Movants submitting material, previously

unavailable evidence, bear the “heavy burden” of

“demonstrating a likelihood that the new evidence presented

would alter the result in the case.”    Id.

    Here, the BIA reasonably found that Arumaichsothylingam

failed to meet this “heavy burden.”    The county conditions

evidence Arumaichsothylingam submitted with his motion to

reopen did not materially differ from the evidence he

submitted to the IJ; thus, the BIA reasonably found that

this evidence would not alter the conclusions drawn by the

IJ in this case.   Sanusi v. Gonzales, 445 F.3d 193, 201 (2d

Cir. 2006) (quoting Matter of Coelho, 20 I&N Dec. 464, 473


                              3
(BIA 1992).   This conclusion was particularly appropriate

given the IJ’s prior determination that Arumaichsothylingam

was entirely lacking in credibility.   Id.

    Finally, contrary to Arumaichsothylingam’s assertion,

he advanced no separate argument in his motion to reopen

regarding his new eligibility for CAT relief.    Accordingly,

the BIA was under no obligation to conduct a separate

analysis of his prima facie eligibility for that relief.

See Paul v.   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

    We have considered Arumaichsothylingam’s remaining

arguments and find them to be without merit.    Accordingly,

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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