11-1673-ag
    Suresh v. Holder
                                                                                  BIA
                                                                          A074 854 119
                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 18th day of April, two thousand twelve.

    PRESENT:
             RALPH K. WINTER,
             ROBERT A. KATZMANN,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________
    WASANTHA SURESH,
             Petitioner,

                       v.                                  11-1673-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Benjamin B. Xue, New York, N.Y.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Cindy S. Ferrier, Assistant
                                  Director; Kimberly A. Burdge, Trial
                                  Attorney, Office of Immigration
                                  Litigation, Civil Division, United
                                  States Department of Justice,
                                  Washington, D.C.
    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 Wasantha Suresh, a native and citizen of Sri

Lanka, seeks review of a March 31, 2011 order of the BIA

denying his motion to reopen.       In re Wasantha Suresh, No.

A074 854 119 (B.I.A. Mar. 31, 2011).      We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

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

abuse of discretion.     Ali v. Gonzales, 

, 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 Jian Hui Shao v. Mukasey, 

, 169 (2d Cir. 2008).     Here, because Suresh filed his

motion to reopen more than 90 days after the BIA issued a

final order of removal in his case, he was required to show

changed circumstances in Sri Lanka to excuse the untimely

filing.   See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).




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    In support of his motion, Suresh submitted several

reports which he argued established a material change in Sri

Lanka by demonstrating that, since the end of the civil war

in May 2009, the Sri Lankan government has begun targeting

suspected Tamil Tigers (“LTTE”) sympathizers.   However, the

reports provide only limited support for that assertion.

Two of the reports, addressing a proposed constitutional

amendment and alleged war crimes in the last months of the

civil war, have no bearing on the treatment of LTTE

sympathizers after the war.   The other two reports are an

embassy advisory mentioning the detention of some former

LTTE members and a report discussing police brutality and

the use of anti-terrorism legislation to silence critics of

the government.   By contrast, the 1999 State Department

report submitted in support of Suresh’s original asylum

application describes the widespread torture and arbitrary

arrest of Tamils at the hands of the Sri Lankan authorities,

and so the BIA did not err in concluding that conditions in

Sri Lanka have not deteriorated since Suresh’s original

asylum proceedings.    Accordingly, because substantial

evidence supports the agency’s finding that Suresh did not

establish material changed country conditions, the BIA did


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not abuse its discretion in denying his motion to reopen as

untimely.     See 8 U.S.C. § 1229a(c)(7)(C)(i),(ii).

    Moreover, as the BIA noted, Suresh offered no evidence

to rebut the IJ’s previous adverse credibility

determination, which we affirmed on appeal.     See Suresh v.

U.S. Department of Justice, 204 F. App’x 935 (2d Cir. 2006).

Accordingly, the BIA reasonably declined to credit the

affidavits Suresh submitted in support of his motion to

reopen, in which he, his sister, and his uncle suggested

that the Sri Lankan authorities viewed him as an LTTE

sympathizer.     See Qin Wen Zheng v. Gonzales, 

,

148-149 (2d Cir. 2007) (holding that the BIA did not abuse

its discretion in declining to credit documents submitted in

support of motion to reopen where the alien had been found

not credible by the IJ).     Therefore, even if Suresh’s

submissions had established a change in the Sri Lankan

government’s treatment of suspected LTTE sympathizers, he

would not have been eligible for relief.

    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.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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