     17-1249
     Viknesrajah v. Barr
                                                                                   BIA
                                                                           A095 665 546

                                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 TO 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
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 9th day of April, two thousand nineteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   NADARAJAH VIKNESRAJAH, AKA MARIO
14   D’AMICO, AKA VIKNESRAJAH
15   NADARAJAH,
16            Petitioner,
17
18                         v.                                    17-1249
19                                                               NAC
20
21   WILLIAM P. BARR, UNITED STATES
22   ATTORNEY GENERAL,
23            Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                       Visuvanathan Rudrakumaran,
27                                         New York, NY.
28
29   FOR RESPONDENT:                       Joseph H. Hunter, Assistant
30                                         Attorney General; Daniel I.
31                                         Smulow, Senior Counsel for
32                                         National Security Unit; Alison
1                                   Marie Igoe, Senior Counsel for
2                                   National Security Unit, Office of
3                                   Immigration Litigation, United
4                                   States Department of Justice,
5                                   Washington, DC.
6
7          UPON DUE CONSIDERATION of this petition for review of a

8    Board of Immigration Appeals (“BIA”) decision, it is hereby

9    ORDERED, ADJUDGED, AND DECREED that the petition for review

10   is DENIED.

11         Petitioner Nadarajah Viknesrajah, a native and citizen

12   of Sri Lanka, seeks review of March 28, 2017, decision of the

13   BIA   denying   his   motion    to       reopen.   In   re   Nadarajah

14   Viknesrajah, No. A095 665 546 (B.I.A. Mar. 28, 2017).              We

15   assume the parties’ familiarity with the underlying facts and

16   procedural history in this case.

17         We review the BIA’s denial of Viknesrajah’s motion to

18   reopen for abuse of discretion and consider whether its

19   conclusion regarding changed country conditions is supported

20   by substantial evidence.       Jian Hui Shao v. Mukasey, 546 F.3d

21   138, 168-69 (2d Cir. 2008).

22         It is undisputed that Viknesrajah’s 2016 motion to

23   reopen was untimely as it was filed almost three years

24   after the BIA’s last decision in his case.          See 8 U.S.C.
                                          2
1    § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).             The time

2    limitation does not apply if reopening is sought to apply

3    for asylum (or withholding of removal and protection under

4    the Convention Against Torture (“CAT”)) and the motion “is

5    based on changed country conditions arising in the country

6    of nationality or the country to which removal has been

7    ordered, if such evidence is material and was not available

8    and would not have been discovered or presented at the

9    previous proceeding.”       8 U.S.C. § 1229a(c)(7)(C)(ii); see

10   also 8 C.F.R. § 1003.2(c)(3)(ii).          However, as discussed

11   below, the BIA did not abuse its discretion in denying

12   reopening because Viknesrajah failed to establish a

13   material change in conditions given the lack of evidence of

14   worsened treatment of (1) Tamils from areas formerly

15   controlled by the Liberation Tigers of Tamil Eelam (“LTTE”)

16   who are associated with or perceived to be associated with

17   the LTTE, (2) failed asylum seekers, and (3) Tamils

18   returning from western countries.

19        As an initial matter, two of the fourteen articles were

20   available at the time of Viknesrajah’s removal proceedings

21   before   the   IJ   and   one   was   in   the   record   of   his   prior
                                           3
1    proceedings.         Accordingly, those articles are evidence of

2    past    conditions     but   do    not       themselves   support       reopening

3    because they were or could have been presented previously.

4    See 8 U.S.C. § 1229a(c)(7)(C)(ii) (requiring that motion to

5    reopen be based on “evidence [that] is material and was not

6    available and would not have been discovered or presented at

7    the previous proceeding”).

8           The new evidence that post-dates Viknesrajah’s final

9    hearing does not support his claim that the Sri Lankan

10   government      has    increased         its     mistreatment       of     Tamils

11   associated or perceived to be associated with the LTTE, failed

12   asylum seekers, or Tamils returning from western countries.

13   The articles reflect that mistreatment of Tamils associated

14   or perceived to be associated with the LTTE and failed asylum

15   seekers has continued but has not increased, as needed to

16   amount to changed circumstances.                See In re S-Y-G-, 24 I. &

17   N. Dec. 247, 253 (BIA 2007) (“In determining whether evidence

18   accompanying     a    motion      to   reopen     demonstrates      a    material

19   change in country conditions that would justify reopening,

20   [the    BIA]   compare[s]      the     evidence     of    country   conditions


                                              4
1    submitted with the motion to those that existed at the time

2    of the merits hearing below.”).

3        As for evidence that Sri Lanka tortures Tamils returning

4    from western countries, “the record [at Viknesrajah’s prior

5    proceedings was] devoid of any evidence that the Sri Lankan

6    government tortures returning Tamils.”          Viknesrajah v. Lynch,

7    620 F. App’x 28, 30 (2d Cir. 2015).       The evidence he submitted

8    with his motion to reopen is similarly scant.                 The BIA

9    therefore     reasonably    concluded   that    Viknesrajah   did   not

10   submit enough evidence that “Tamils returning from Western

11   countries are likely to suffer torture in Sri Lanka,” let

12   alone evidence that there has been a material change in the

13   treatment of returning Tamils as needed to overcome the time

14   limitation on the motion to reopen.            In re of S-Y-G-, 24 I.

15   & N. Dec. at 257 (“Change that is incremental or incidental

16   does not meet the regulatory requirements for late motions.”)

17       Thus, on this record, the agency was not compelled to

18   conclude that Viknesrajah’s evidence reflected a change in

19   conditions material to his fear of torture.             See Jian Hui

20   Shao,   546   F.3d   at    171.   Because   Viknesrajah    failed   to

21   demonstrate a material change, the agency did not abuse its
                                       5
1    discretion in denying his motion to reopen as untimely.   See

2    8 U.S.C. § 1229a(c)(7)(C).

3        For the foregoing reasons, the petition for review is

4    DENIED.   As we have completed our review, the pending motion

5    for a stay of removal in this petition is DISMISSED as moot.

6    Any pending request for oral argument in this petition is

7    DENIED in accordance with Federal Rule of Appellate Procedure

8    34(a)(2), and Second Circuit Local Rule 34.1(b).

 9                                FOR THE COURT:
10                                Catherine O’Hagan Wolfe,
11                                Clerk of Court




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