         11-3712
         Kalansuriya v. Holder
                                                                                       BIA
                                                                               A097 538 432
                                 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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 6th day of June, two thousand thirteen.
 5
 6       PRESENT:
 7                REENA RAGGI,
 8                DENNY CHIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       GAMINI KALANSURIYA,
14                Petitioner,
15
16                           v.                                 11-3712
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Visuvanathan Rudrakumaran, New York,
24                                        New York.
25
26       FOR RESPONDENT:                  Stuart F. Delery, Acting Assistant
27                                        Attorney General; Luis E. Perez,
28                                        Senior Litigation Counsel; Joseph D.
29                                        Hardy, Trial Attorney, Office of
30                                        Immigration Litigation, United
31                                        States Department of Justice,
32                                        Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Gamini Kalansuriya, a native and citizen of Sri Lanka,

 6   seeks review of an August 18, 2011, decision of the BIA

 7   denying his motion to reopen.       In re Gamini Kalansuriya,

 8   No. A097 538 432 (B.I.A. Aug. 18, 2011).      We assume the

 9   parties’ familiarity with the underlying facts and

10   procedural history in this case.

11       We review the BIA’s denial of a motion to reopen for

12   abuse of discretion.   See Ali v. Gonzales, 448 F.3d 515, 517

13   (2d Cir. 2006) (per curiam).    There is no dispute that

14   Kalansuriya’s motion to reopen was untimely because it was

15   filed more than 90 days after the BIA issued its final order

16   of removal.   See 8 U.S.C. § 1229a(c)(7)(C)(i); see also

17   8 C.F.R. § 1003.2(c)(2).

18       Kalansuriya contends, however, that his untimely filing

19   should be excused because he obtained new and material

20   evidence demonstrating that failed asylum seekers and

21   criminal deportees who are returned to Sri Lanka are

22   routinely persecuted or tortured by the Sri Lankan

23   government.

                                     2
 1   See 8 U.S.C. § 1229a(c)(7)(C)(ii).   We conclude that the

 2   BIA’s denial of Kalansuriya’s motion to reopen as untimely

 3   was not an abuse of discretion.

 4       Pursuant to 8 U.S.C. § 1229a(c)(7)(B), the movant bears

 5   the burden of supporting his motion to reopen with relevant

 6   evidence.   See INS v. Abudu, 485 U.S. 94, 104 (1988).    “In

 7   determining whether evidence accompanying a motion to reopen

 8   demonstrates a material change in country conditions that

 9   would justify reopening, [the BIA] compare[s] the evidence

10   of country conditions submitted with the motion to those

11   that existed at the time of the merits hearing below.”      In

12   re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007); see 8

13   C.F.R. § 1003.2(c)(3)(ii).   Because Kalansuriya failed

14   properly to support his motion with any evidence describing

15   conditions in Sri Lanka for returning asylum seekers or

16   criminal deportees at the time of his 2008 merits hearing,

17   we conclude that the BIA’s finding of no materially changed

18   country conditions is supported by substantial evidence and

19   that the BIA did not abuse its discretion in denying the

20   motion to reopen on that basis.   See 8 U.S.C. §

21   1229a(c)(7)(B); Jian Hui Shao v. Mukasey, 546 F.3d 138, 169

22   (2d Cir. 2008).


                                   3
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stay of

3    removal that the Court previously granted in this petition

4    is VACATED, and any pending motion for a stay of removal in

5    this petition is DISMISSED as moot.    Any pending request for

6    oral argument in this petition is DENIED in accordance with

7    Federal Rule of Appellate Procedure 34(a)(2), and Second

8    Circuit Local Rule 34.1(b).

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




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