No. 08-5616-ag.United States Court of Appeals, Second Circuit.
February 8, 2010.
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.
Visuvanathan Rudrakumaran, New York, N.Y., for Petitioner.
Tony West, Assistant Attorney General; Linda S. Wernery, Assistant Director; Lindsay B. Glauner, Trial Attorney, United
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States Department of Justice, Washington, D.C., for Respondent.
PRESENT: ROBERTA. KATZMANN, B.D. PARKER, PETER W. HALL, Circuit Judges.
SUMMARY ORDER
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 J van Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
Contrary to Arumaichsothylingam’s argument that the BIA 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 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.” Coo 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) (quotin Matter of Coelho, 20 I N Dec. 464, 473 (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 hi 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.
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