Balasegarathum v. Garland

Opinion

22-6566 Balasegarathum v. Garland BIA A205 710 146

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 8th day of January, two thousand twenty- five.

PRESENT: JOSÉ A. CABRANES, RICHARD J. SULLIVAN, EUNICE C. LEE, Circuit Judges. _____________________________________

PIRASATH BALASEGARATHUM, Petitioner,

v. 22-6566 NAC MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________ FOR PETITIONER: Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran, New York, NY.

FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant Attorney General; Sabatino F. Leo, Assistant Director; Corey L. Farrell, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

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 Pirasath Balasegarathum, a native and citizen of Sri Lanka, seeks

review of a decision of the BIA denying his motion to reopen his removal

proceedings. In re Pirasath Balasegarathum, No. A205 710 146 (B.I.A. Nov. 18,

2022). We assume the parties’ familiarity with the underlying facts and

procedural history.

We review the BIA’s denial of a motion to reopen for abuse of discretion and

any findings regarding changed country conditions for substantial evidence. See

Jian Hui Shao v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008). A noncitizen who

has been ordered removed may file a motion to reopen proceedings within 90 days

of the date on which the final order of removal was entered. 8 U.S.C. 2 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However this time limit does not apply

if the motion “is based on changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented

at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii).

In reviewing a motion to reopen based on changed country conditions, “the

BIA must ‘compare the evidence of country conditions submitted with the motion

to those that existed at the time of the merits hearing below.’” Tanusantoso v. Barr,

962 F.3d 694, 698 (2d Cir. 2020) (quoting In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A.

2007)). Further, if the movant’s “persecution claim was previously denied based

on an adverse credibility finding in the underlying proceedings, the [movant]

must either overcome the prior determination or show that the new claim is

independent of the evidence that was found to be not credible.” Matter of F-S-N-,

28 I. & N. Dec. 1, 3 (B.I.A. 2020); see also Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005).

Here, Balasegarathum’s 2020 motion to reopen was untimely because he

filed it three years after his removal order became final in 2017, well past the 90-

day deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

3 Nonetheless, Balasegarathum asserted in his motion that conditions in Sri Lanka

had materially changed after elections in 2019, such that his fear of persecution as

a Tamil and failed asylum seeker is well-founded. Balasegarathum also

submitted evidence to overcome the agency’s prior determination that he was not

credible as to his claim that he was at risk of persecution on account of his

suspected ties to the Liberation Tigers of Tamil Eelam (“LTTE”), a terrorist

organization designated as such by the United States.

Upon our review of the record, we find substantial evidence supports the

BIA’s conclusion that Balasegarathum failed to show a change in country

conditions in support of his motion to reopen. The BIA reasonably found that

Balasegarathum’s evidence showed that, after the 2019 elections in Sri Lanka, a

repressive political regime returned to power and there were fears that conditions

would deteriorate for Tamils; but his supporting evidence did not show a material

change in conditions for Tamils since Balasegarathum’s hearing in 2015. See

8 U.S.C. § 1229a(c)(7)(C)(ii); see also Tanusantoso, 962 F.3d at 698. The BIA also

reasonably found that Balasegarathum had not shown a material change in

conditions for failed asylum seekers in Sri Lanka because the evidence he

submitted on that point was from 2010. And, insofar as he submitted statements

4 from his family asserting that the Sri Lankan army had come looking for him in

2020, the BIA did not err in declining to credit those statements given that the

authors were interested parties and were not be subject to cross-examination. See

Y.C. v. Holder, 741 F.3d 324, 334 (2d Cir. 2013) (“We defer to the agency’s

determination of the weight afforded to a[] [movant]’s documentary evidence.”).

Because Balasegarathum failed to demonstrate a material change in

conditions in Sri Lanka, the BIA did not abuse its discretion in denying his

untimely motion to reopen. For this reason, we need not address whether the

BIA erred in finding that Balasegarathum also failed to overcome the agency’s

prior adverse credibility determination.

For the foregoing reasons, the petition for review is DENIED. All pending

motions and applications are DENIED and stays VACATED.

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