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                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11212
                        Non-Argument Calendar
                      ________________________

                        Agency No. A088-076-096



WANNAKU WATTAWADUGE WIJITHANANDA FERNANDO,

                                                                    Petitioner,


                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                            (February 6, 2014)

Before PRYOR, FAY and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Wannaku Fernando seeks review of the Board of Immigration Appeals’

(BIA’s) denial of his motion to reopen removal proceedings based on changed

country conditions. After thorough review, we deny Fernando’s petition.

                                          I.

      Fernando, a native and citizen of Sri Lanka, was admitted to the United

States as a crewman in March 1997 with authorization to remain for 29 days.

More than a decade later, the Department of Homeland Security (DHS) served

Fernando with a Notice to Appear, charging him with removability under the

Immigration and Nationality Act (INA) § 237(a)(1)(B), for remaining in the United

States longer than permitted, and § 237(a)(1)(C)(i), for failing to maintain

crewman status. At hearings before an Immigration Judge (IJ), Fernando conceded

removability.

      Subsequently, Fernando filed an application for asylum, withholding of

removal, and CAT relief, contending he feared he would be persecuted and

tortured upon return to Sri Lanka based on his brother’s involvement with an

opposition party. After a May 2011 hearing on the matter, the IJ denied

Fernando’s applications, finding that his asylum application was time-barred, his

testimony was not credible, and he had not met his burden of establishing

eligibility for withholding of removal or CAT relief. The BIA dismissed

Fernando’s appeal, and he did not petition this court for review of that order.


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      Instead, in October 2012, Fernando moved the BIA to reopen his removal

proceedings based on changed country conditions. He contended that, as a failed

asylum applicant, he would be subject to persecution and torture if he returned to

Sri Lanka, making him eligible for relief despite the IJ’s and BIA’s earlier

conclusions.

      In support of his motion, Fernando submitted the following evidence:

previous, unpublished BIA decisions granting motions to reopen in similar cases; a

June 2011 Amnesty International article requesting that Sri Lankan authorities

refrain from mistreating 26 recently returned failed asylum seekers, citing the

country’s “history of arresting and detaining rejected Sri Lankan asylum seekers

upon their return”; a June 2011 Freedom from Torture editorial expressing concern

that failed asylum seekers may be at risk of torture because of Amnesty

International’s documentation of their “continued arrest and detention”; two 2010

news articles reporting that asylum seekers returned from Australia had been

arrested at the Sri Lankan airport, some of whom were detained and assaulted; a

September 2010 Amnesty International article reporting that three failed asylum

seekers returning to Sri Lanka in 2009 were detained, beaten, and tortured; a

January 2010 Refugee Documentation of Ireland report stating that Sri Lankan

police interviewed every deportee upon their return to Sri Lanka but focused most

intently on people with links to the Liberation Tigers of Tamil Eelam and those


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traveling without documents; an undated statement from an immigration attorney

indicating her client’s U.S. asylum application failed, he was deported to Sri Lanka

in February 2009, he was taken into custody, his whereabouts were presently

unknown, and the attorney feared her client had been tortured or killed; an undated

affirmation from another immigration attorney stating a representative at the Sri

Lankan consulate indicated that, to obtain a new passport in that country, an

applicant had to sign an affidavit as to whether they had applied for asylum in the

U.S. (information confirmed on the Sri Lankan Embassy’s website); and an

October 2007 opinion from Dr. Chris Smith, associate fellow at the Royal Institute

for International Affairs, noting two detentions of failed asylum applicants in Sri

Lanka – one of which resulted in torture – in 2002 and 2003.

      In addition to these, Fernando attached a November 2011 Sri Lanka

“Bulletin: Recent Reports on Torture and Ill-Treatment” from the U.K. Border

Agency, which cited reports prepared by various non-governmental organizations

(including the Amnesty International and Freedom from Torture reports) listing

torture as a continued concern in Sri Lanka. It stated that, from May 2009 through

September 2011, fourteen individuals returning to Sri Lanka from abroad reported

torture, four of whom had tried but failed to obtain asylum elsewhere. The 2011

Bulletin also cited the U.K. Border Agency’s own Country of Origin Information

(COI) Report, detailing similar conditions in Sri Lanka.


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      The BIA denied Fernando’s motion to reopen. It first concluded Fernando

had not shown the conditions he complained of did not exist at the time of his May

2011 hearing so as to constitute “changed” conditions or circumstances supported

by “new evidence” that was unavailable, undiscoverable, or unpresentable at the

previous hearing. Rather than showing the conditions had changed in Sri Lanka,

the BIA found that Fernando’s evidence showed the Sri Lankan government had

been paying notice to failed asylum seekers years before his asylum proceedings in

the U.S. and were simply continuing. The BIA took administrative notice of the

U.K. Border Agency’s 2012 COI Report and found the report supported the

conclusions about continuing problems in Sri Lanka. This is Fernando’s petition

for review of that order.

                                        II.

      Fernando first contends the BIA erred in denying his motion to reopen

removal proceedings. Generally, a motion to reopen must be filed within 90 days

of the final order of removal. 8 C.F.R. § 1003.23(b)(1). The time limitation does

not apply, however, “when (1) an alien files a motion to reopen that seeks asylum,

withholding of removal, or relief under the [CAT]; (2) the motion is predicated on

changed country conditions; and (3) the changed conditions are material and could

not have been discovered at the time of the removal proceedings.” Jiang v. U.S.

Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “The moving party bears a


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heavy burden, as motions to reopen are disfavored, especially in removal

proceedings.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). 1

We review the denial of a motion to reopen for an abuse of discretion, granting a

petition and vacating the BIA’s order only when the BIA exercised its discretion in

an arbitrary or capricious manner. Jiang, 568 F.3d at 1256.

       After a thorough review of Fernando’s submissions to the BIA, we conclude

the BIA did not abuse its discretion in denying the motion to reopen. Fernando

filed his motion more than 90 days after his final order of removal, so to be eligible

for relief he must establish changed country conditions that could not have been

discovered at the time of his initial removal proceedings. 8 C.F.R. §

1003.23(b)(1), (b)(4)(i). The BIA’s denial of Fernando’s motion based on his

failure to show the evidence he presented was previously unavailable or

undiscoverable was not arbitrary or capricious. The BIA not only noted several

pieces of the evidence he submitted existed prior to his May 2011 removal hearing,

but also considered whether that evidence was available to Fernando at that time

and determined Fernando had not met his burden of showing previous

unavailability. Much of the evidence was readily publicly available before May

2011. Further, the evidence Fernando submitted that post-dated his May 2011


1
   This precedent squarely forecloses Fernando’s argument that the BIA erroneously saddled him
with the burden to prove the Sri Lankan government had changed its view of failed asylum
seekers since his May 2011 removal proceedings.
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hearing supported the BIA’s conclusion that conditions in Sri Lanka had not

changed but, rather, the Sri Lankan government was continuing a practice that

existed when Fernando filed his initial application. Accordingly, we will not

vacate the BIA’s order on this ground.

                                         III.

      Next, Fernando argues that, by taking administrative notice of the 2012 COI

Report, the BIA denied him his right to due process. We review constitutional

challenges de novo. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341 (11th Cir.

2008). To establish a due process violation in a removal proceeding, the petitioner

must show he was “deprived of liberty without due process of law, and that the

asserted errors caused [him] substantial prejudice.” Id. To show substantial

prejudice as a result of the denial of due process, a petitioner “must demonstrate

that, in the absence of the alleged violations, the outcome of the proceeding would

have been different.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir.

2010) (citing Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987)).

      We conclude that, assuming the BIA’s taking administrative notice of the

2012 COI Report without providing Fernando an opportunity to respond violated

his right to due process, he has not carried the heavy burden of showing resulting

substantial prejudice. The BIA’s order makes clear that, only after determining

Fernando could not show changed country conditions, it found the 2012 COI


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Report was “consistent with” and confirmed its conclusions. Based on this

language, Fernando cannot show his motion would have been decided differently if

the BIA had not taken administrative notice of the 2012 COI Report. We,

therefore, cannot vacate the BIA’s order on this ground.2

                                              IV.

       Finally, Fernando requests in his motion styled “motion to refer to

mediation,” the court to remand his proceeding to the BIA for placement on its

inactive docket. As Fernando points out, the Second Circuit, with the

government’s approval, recently established a procedure for remanding cases to the

BIA “when the Government elects to suspend, at least temporarily, proceedings

against a petitioner.” See In re Immigration Petitions for Review Pending in the

U.S. Court of Appeals for the Second Circuit, 702 F.3d 160, 161 (2d Cir. 2012).

To date, however, this court has not adopted a similar policy. Accordingly, we

deny Fernando’s motion.

                                               V.

       For the reasons set forth above, Fernando’s petition for review of the BIA’s

order and his motion for remand are denied.

       PETITION DENIED, MOTION DENIED.


2
  Fernando’s “reliance on unpublished BIA decisions is misplaced as the BIA accords no
precedential value to its unreported decisions.” De la Rosa v. U.S. Att’y Gen., 579 F.3d 1327,
1336 (11th Cir. 2009).
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