Diallo v. Lynch , 620 F. App'x 24 ( 2015 )

14-500
Diallo v. Lynch
BIA
Videla, IJ
A088 380 384
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 1st day of July, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 PIERRE N. LEVAL,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges
11 _____________________________________
12
13 THIERNO FADJA DIALLO,
14 Petitioner,
15
16 v. 14-500
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.1
21 _____________________________________
22
23
24 FOR PETITIONER: Andy Wong, New York, New York.
25
1 - Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted for
former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Anthony C. Payne,
3 Senior Litigation Counsel; Colette
4 J. Wilson, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 GRANTED, in part, and DENIED, in part.
13 Petitioner Thierno Fadja Diallo, a native and citizen of
14 Guinea, seeks review of a January 30, 2014, decision of the BIA
15 affirming an April 7, 2011, decision of an Immigration Judge
16 (“IJ”) denying Diallo’s application for asylum, withholding of
17 removal, and relief under the Convention Against Torture
18 (“CAT”). In re Thierno Fadja Diallo, No. A088 380 384 (B.I.A.
19 Jan. 30, 2014), aff’g No. A088 380 384 (Immig. Ct. N.Y. City
20 Apr. 7, 2011). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Under the circumstances of this case, we have reviewed the
23 IJ’s decision as supplemented and modified by the BIA. See Xue
24 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
25 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
2
1 Therefore, we assume that Diallo established past persecution
2 based on his political opinion, and only consider the agency’s
3 findings that the Government rebutted the presumption of future
4 persecution in Guinea on that basis and that Diallo failed to
5 establish a well-founded fear of persecution on account of his
6 Fulani ethnicity. We additionally review the BIA’s
7 consideration of the country conditions evidence Diallo
8 submitted with his BIA appeal brief. The applicable standards
9 of review are well established. See 8 U.S.C. § 1252(b)(4)(B);
10 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
11 I. Political Opinion
12 The regulations require IJs to exercise the Attorney
13 General’s discretion to deny asylum to applicants who establish
14 eligibility based solely on past persecution when the
15 Government establishes a fundamental change in circumstances
16 sufficient to rebut the presumption of well-founded fear. 8
17 C.F.R. § 1208.13(b)(1). While it is the Government’s burden
18 to show the fundamental change, the weight of that burden
19 “depends at least in part on the degree to which the past and
20 future persecutions are of the same sort.” Islami v. Gonzales,
21 412 F.3d 391, 397 (2d Cir. 2005). A fundamental change may be
3
1 shown by a preponderance of the evidence, and we review the
2 agency’s conclusion for substantial evidence. Lecaj v.
3 Holder, 616 F.3d 111, 115, 116 (2d Cir. 2010). The agency must
4 provide a reasoned basis for finding that changed country
5 conditions rebut the presumption of persecution. Niang v.
6 Mukasey, 511 F.3d 138, 148-49 (2d Cir. 2007). Accordingly, the
7 agency cannot ignore significant information favorable to the
8 applicant or rely on general changes in country conditions
9 without conducting an individualized analysis. Tambadou v.
10 Gonzales, 446 F.3d 298, 303-04 (2d Cir. 2006).
11 Diallo claimed that he would be persecuted in Guinea based
12 on his affiliation with two political parties that opposed
13 Guinea’s ruling party, the Party for Unity and Progress. The
14 IJ based his decision solely on Diallo’s testimony that another
15 political party, the Rally for the Guinean People (“RPG”), was
16 now in power in Guinea. Although Diallo testified that the RPG
17 participated in the same political demonstration as Diallo,
18 which might suggest that they would have little interest in
19 persecuting him, id, Diallo did not assert a claim based on
20 membership in the RPG; so the agency’s reasoning is based on
21 evidence that may not be directly relevant to his claim (i.e.,
4
1 that the RPG is now in power). Furthermore, the IJ did not
2 consider any of the documentary record evidence. Although the
3 country conditions evidence Diallo submitted before the IJ was
4 outdated at the time of his 2011 decision, the IJ did not address
5 the evidence at all, nor did he consider the other corroborating
6 evidence Diallo submitted. Because the agency should have made
7 findings as to how the change in the ruling political party would
8 affect Diallo as a member of a different political party, we
9 grant his petition with respect to that finding.
10 II. Ethnicity
11 The agency reasonably found that Diallo did not satisfy his
12 burden to establish a well-founded fear of persecution based
13 on his ethnicity. To establish eligibility for asylum, an
14 applicant like Diallo, who did not show past persecution based
15 on his ethnicity, must demonstrate a well-founded fear of future
16 persecution. See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A); Kyaw
17 Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006). To do so,
18 he must show that he subjectively fears persecution and that
19 his fear is objectively reasonable. Ramsameachire v.
20 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian Hui
21 Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008). There are
5
1 two ways for an applicant to show objective fear: (1) offering
2 evidence that he would be singled out individually for
3 persecution, or (2) proving that a pattern or practice of
4 persecution of similarly situated persons exists in his home
5 country. Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007);
6 8 C.F.R. § 1208.13(b)(2).
7 Diallo’s claim that he will be persecuted due to his
8 ethnicity is primarily based on his assertion, during the merits
9 hearing, that the RPG leader in power has made disparaging
10 remarks about the Fulani people and that he fears persecution
11 on that basis. The agency reasonably found this assertion
12 insufficient to establish that Diallo will be individually
13 targeted in Guinea. See Hongsheng Leng v. Mukasey, 528 F.3d
14 135, 143 (2d Cir. 2008).
15 Diallo also argues that the Guinean government engages in
16 an ongoing practice of persecuting people of Fulani ethnicity
17 because politics and ethnicity in Guinea are intertwined. The
18 agency reasonably found that Diallo’s claim was speculative,
19 despite his credible testimony. Jian Hui Shao, 546 F.3d at 162.
20 The BIA has provided that “a ‘pattern or practice’ of
21 persecution is one that is ‘systemic, pervasive, or
6
1 organized,’” and we have “deemed that standard ‘a reasonable
2 one’ while at the same time seeking clarification from the BIA
3 as to how the standard might be applied reliably.” Id. at 150
4 n.6 (citing Mufied, 508 F.3d at 92-93). When the agency’s
5 determination that an individual did not establish a pattern
6 or practice of persecution is supported by background
7 materials, the agency has provided a “sufficient basis” for its
8 conclusion. Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.
9 2009). Other than Diallo’s assertion that Fulajis made up 40
10 percent of the Guinean population, there is no evidence that
11 the Guinean government or the RPG persecutes Fulanis. See
12 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).
13 Additionally, the BIA reasonably concluded that even if it
14 were to consider the background evidence provided in Diallo’s
15 May 2011 submission, the IJ did not err in finding Diallo’s claim
16 speculative. The documentary evidence does not establish that
17 Guinea’s government engages in ongoing persecution of Fulani
18 people. Accordingly, Diallo did not show a pattern or practice
19 of such persecution. Because Diallo failed to demonstrate a
20 well-founded fear of persecution, he necessarily cannot meet
21 the higher burden required for withholding of removal or CAT
7
1 relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.
2 2010).
3 For the foregoing reasons, the petition for review is
4 GRANTED, in part, and DENIED, in part. As we have completed
5 our review, any stay of removal that the Court previously
6 granted in this petition is VACATED, and any pending motion for
7 a stay of removal in this petition is DISMISSED as moot. Any
8 pending request for oral argument in this petition is DENIED
9 in accordance with Federal Rule of Appellate Procedure
10 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O=Hagan Wolfe, Clerk
8