Jean Ndayisaba v. Eric Holder, Jr. , 457 F. App'x 552 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0111n.06
FILED
No. 10-4477
Jan 31, 2012
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
JEAN WYCLIF NDAYISABA, )
)
Petitioner, ) ON PETITION FOR REVIEW
) OF A FINAL ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
ERIC H. HOLDER, JR., Attorney General, )
)
Respondent. )
)
BEFORE: MOORE, GRIFFIN, and WHITE, Circuit Judges.
GRIFFIN, Circuit Judge.
Petitioner Jean Wyclif Ndayisaba, a native and citizen of Rwanda, applied for asylum,
withholding of removal, and relief under Article III of the Convention Against Torture (“CAT”),
claiming he would be persecuted at the hands of the Rwandan government on account of his status
as a member of the Hutu tribe and Seventh Day Adventist (“SDA”) Church. Ndayisaba testified
before the International Criminal Tribunal for Rwanda (“ICTR”)1 on behalf of a fellow Hutu and
1
The Fifth Circuit explained the historical origins of the ICTR as follows:
Rwanda has been the source of ongoing ethnic conflict between members of the
majority Hutu and minority Tutsi tribes. In April 1994, President Juvenal
Habyarimana of Rwanda, a Hutu, was killed when his aircraft crashed due to an
artillery attack. The crash triggered a wave of violence by the Hutus against the
Tutsis, which resulted in the deaths of between 500,000 and one-million persons.
Tutsi rebels triumphed over the Hutus, and the Tutsi-dominated government then
requested the U.N. to create an international war crimes tribunal. An investigation
by the U.N. established that the mass exterminations of the Tutsis – motivated by
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SDA member accused of genocide. An Immigration Judge (“IJ”) determined that Ndayisaba failed
to establish his eligibility for relief. The Board of Immigration Appeals (“BIA”) dismissed his
appeal, and Ndayisaba petitioned us for review. Because the administrative record does not compel
a conclusion contrary to the one reached by the IJ and BIA, we deny the petition.
I.
Petitioner Ndayisaba entered the United States on a non-immigrant visitor visa. He remained
past his authorized period of stay and later filed an application for asylum, withholding of removal,
and relief under CAT, all based upon his fear of being prosecuted, tortured, or killed because he
testified before the ICTR on behalf of a fellow Hutu and SDA member on trial for genocide.
The Department of Homeland Security subsequently served Ndayisaba with a Notice to
Appear (“NTA”), charging him with removability for remaining in the United States longer than
permitted. His application for relief was referred to the Detroit Immigration Court. At his first court
appearance, Ndayisaba admitted the factual allegations in the NTA, conceded removability, and
renewed his requests for asylum, withholding of removal, and relief under CAT.
At a merits hearing, Ndayisaba offered his testimony and the testimony of former U.S.
Attorney General Ramsey Clark. Clark served as counsel for Elizaphan Ntakirutimana, on whose
ethnic hatred – had been planned for months. The Security Council adopted
Resolution 955, which created the ICTR to prosecute and to punish the individuals
responsible for the violations in Rwanda and its neighboring states between January 1
and December 31, 1994.
Ntakirutimana v. Reno, 184 F.3d 419, 421-22 (5th Cir. 1999).
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behalf Ndayisaba testified before the ICTR. The IJ summarized the testimony and made findings
as follows:
The respondent is a Rwandan Hutu and a pastor for the Seventh Day Adventist
(“SDA”) Church. He was born in Kibuye, Rwanda on September 5, 1961. The
respondent fears returning to his home country based on his belief that he will be
subjected to torture or death because of his status as a Hutu religious leader who
testified before the ICTR in support of another Hutu accused of genocide. After
surviving the 1994 Rwandan genocide he fled with his wife and daughter to the
neighboring Democratic Republic of Congo (“DRC”). After leaving Rwanda, the
respondent spent time living and working in DRC, Nigeria, Togo, Burkina Faso,
Benin, and Ghana. The respondent’s wife and daughter are currently living in Ghana.
At the end of the 1994 Rwandan genocide, instigated by Hutu rebels, many Hutus
fled Rwanda fearing retaliation by Tutsis. The respondent began to fear for his and
his family’s safety upon learning that a group of Catholic Church bishops were killed
in May of 1994. Additionally, he heard reports that Tutsi rebels planned to kill any
Hutus they came across and radio broadcasts called for Hutus to surrender or flee.
The respondent fled the country to DRC with his family on July 17, 1994.
While in DRC, the respondent worked for an unaccompanied minors camp being run
by the Adventist Development and Relief Agency. In August of 1994, upon hearing
that the Rwanda Patriotic Front (“RPF”), the Tutsi led army, had soldiers in the
refugee camps, the respondent decided to leave DRC for Nigeria out of fear of what
would happen to him if the RPF learned of his presence at the camp. This fear was
based on the belief that he would be in danger because he was a high-profile preacher
in Rwanda and was well known to the government.
The respondent and his family resided in Nigeria from October 1995 until December
1996. During this time he was living at the Adventist Seminary of West Africa,
Ilishan-Remo, but was unable to acquire humanitarian assistance and was forced to
leave when the seminary realized he was not sponsored by the Rwanda Union
Mission. The next country the respondent traveled to was Togo, where he lived with
his family until June 1997. During this time the respondent was able to volunteer and
work. He also obtained some limited financial assistance (US $50) from the United
Nations High Commissioner for Refugees (“UNHCR”). The respondent began to
fear [for] his safety in Togo after several church members criticized his presence in
Togo, and accused him of participating in the 1994 killings. In June of 1997, the
respondent left Togo for Burkina Faso.
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The respondent lived in Burkina Faso until 2002. While there, the respondent
applied for asylum through UNHCR and received provisional refugee status pending
[a] determination by the National Commission for Refugees. Also while living in
Burkina Faso, the respondent was contacted by Ramsey Clark (“Clark”), defense
counsel for an individual charged with genocide by the ICTR. Clark was looking for
people who could testify on behalf of his client and asked the respondent if he would
be willing to help. Although he was scared of the possible consequences of testifying
before the ICTR, he eventually agreed and made arrangements to leave Burkina Faso
for Tanzania. When the respondent and his family received their refugee passports
they were mistakenly under the impression that they had received asylum status in
Burkina Faso.
Both the respondent and his wife were called to testify as defense witnesses for
defendants before the ICTR.[2] In order to protect their identities so they would not
be in danger as a result of their testimonies both were given witness numbers: the
respondent was Witness # 5 and his wife was Witness # 22. During his testimony,
however, the prosecutor, in a surprise move, asserted that the respondent had
participated in genocide and was guilty of raping three women. This, coupled with
information about his background that was revealed during his testimony, led to news
reports in Africa that a “young Adventist preacher” and star of the church had been
accused of genocide by the ICTR prosecutor. After he gave his testimony the
respondent was fearful of what would happen to him because he knew of many SDA
preachers who had been accused of genocide and jailed in Rwanda. The respondent
and his family hoped to stay in a safe house in Tanzania until they could be assured
further protection by the ICTR, but shortly after they gave their testimony they were
forced to leave. Because the respondent refused to leave the safe house without
assurances that he would be protected, he was handcuffed and driven to the airport.
The chief of the Witness and Victims Support Section for the ICTR treated the
respondent and his family in a hostile manner, did not allow them to take their
possessions with them when they left the safe house, and threatened to send them
back to Rwanda, calling them interahamwe, a military group known for participating
in the genocide. They were flown back to Burkina Faso, but once they returned they
no longer had the travel documents issued to them before leaving for Tanzania. Out
of fear that they would be sent back to Rwanda by the government of Burkina Faso,
they fled to Benin.
2
The defendants were Ntakirutimana and his son. Both were found guilty of aiding and
abetting genocide, and Ntakirutimana was later sentenced to ten years in prison.
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Once in Benin, the respondent again sought asylum status through the UNHCR. The
UNHCR advised him that he would have to return to Burkina Faso because it was the
first place that he received a provisional UNHCR refugee document. The respondent
continued to fear what might happen to him if he were forced to return to Rwanda.
On the advice of Clark, who suggested he would be safe in Ghana, the respondent
took his family there.
The respondent and his family arrived in Ghana in July of 2002. The respondent
remained there until entering the United States on December 8, 2007. In Ghana, the
respondent found work at an SDA church and served as the Accra Tertiary
Institutions Chaplain in charge of SDA students at several Ghanaian educational
facilities. While he was living in Ghana, some members of the respondent’s church
were critical of allowing an SDA pastor “accused of genocide” to live and work
among them. The respondent and his family continued to live in fear despite having
secured steady employment and having lived in Ghana without incident for 5 years.
After his aunt died in 2007, the respondent decided to travel to the United States to
visit his aunt’s husband and children. He was able to obtain a non-immigrant visa
to enter the United States and upon arriving here was issued an 1-94 set to expire on
June 7, 2008. After arriving in the United States, the respondent traveled to
Michigan in search of a refugee shelter willing to help him obtain asylum. He
reached the Freedom House on December 16, 2007. The respondent applied for
asylum on June 27, 2008.
The respondent’s wife and daughter are currently living in Ghana under expired
passports. The respondent fears worsening conditions for his family because he has
since lost his job as a pastor for the SDA in Ghana and the church has asked his wife
to leave the house she is currently living in. Additionally, according to a letter from
a colleague, his wife has received several threatening phone calls from unknown
persons.
The IJ denied Ndayisaba’s requests for relief after concluding that he had failed to establish
eligibility. The IJ recognized that criminal prosecution may serve as a pretext for persecution where
it is motivated by a protected ground and the punishment is sufficiently serious. Although Ndayisaba
offered evidence that those who testified in support of persons accused of genocide had been arrested
and charged with genocide themselves, the IJ found “no evidence tending to show a nexus between
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testimony as a witness and being arrested.” She explained that “[i]t is equally plausible that the
Rwandan government had evidence supporting the commission of crimes of genocide by the
individuals who were arrested.” She noted also that Ndayisaba had not been charged with any crime,
and that, aside from the baseless allegations made by the ICTR prosecutor during cross-examination,
“there is no suggestion that the Rwandan government suspects him of wrong-doing or plans to bring
charges against him.” Finally, the IJ declined to adopt the view that “prosecuting crimes of genocide
is merely a pretext for persecution based on [a protected ground,]” reasoning that “[e]very country
has a legitimate interest in investigating and prosecuting serious violent crimes perpetrated on its soil
and against its people.” She denied Ndayisaba’s requests for withholding of removal and relief
under CAT for the same reasons.
The BIA affirmed. It agreed with the IJ that there was no showing that those arrested after
testifying were arrested because they testified. And it found nothing in the record, except for the
ICTR prosecutor’s allegations, showing that the Rwandan government suspects Ndayisaba of any
wrongdoing or intends to charge him with a crime. It added that the ICTR prosecutor was
reprimanded for making the baseless allegations; that Ndayisaba was permitted to depart Tanzania
– where the ICTR convenes – without incident and never experienced problems with any
government official, Rwandan or otherwise; that his wife also testified in support of the defense, and,
apart from receiving vague, threatening phone calls from unidentified individuals in Ghana, where
she resides, had suffered no harm; and that no attempt had been made to extradite his wife to
Rwanda.
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Ndayisaba timely petitioned for review.
II.
“Because the BIA adopted and supplemented the IJ’s decision, we review the opinion of the
IJ in conjunction with the BIA’s additional comments and discussion.” Cruz-Samayoa v. Holder,
607 F.3d 1145, 1149 (6th Cir. 2010). We review issues of law de novo and consider the factual
findings of the BIA using the substantial-evidence standard. Khalili v. Holder, 557 F.3d 429, 435
(6th Cir. 2009). The ultimate determination whether an alien has established past persecution or a
well-founded fear of future persecution is reviewed under the substantial-evidence standard.
Japarkulova v. Holder, 615 F.3d 696, 702 (6th Cir. 2010). Under this deferential standard of review,
agency findings “are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Khalili, 557 F.3d at 435; see also Yu v. Ashcroft, 364
F.3d 700, 702 (6th Cir. 2004) (noting that 8 U.S.C. § 1252(b)(4)(B) “basically codifies the Supreme
Court’s substantial evidence standard”). We may not reverse simply because we would have decided
the matter differently. Khalili, 557 F.3d at 435.
“The disposition of an application for asylum involves a two-step inquiry: (1) whether the
applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the
applicant merits a favorable exercise of discretion by the Attorney General.” Cruz-Samayoa, 607
F.3d at 1150 (citation and internal quotation marks omitted). “To qualify as a refugee, the applicant
must establish that he or she has suffered past persecution on the basis of race, religion, nationality,
social group, or political opinion; or show that he or she has a well-founded fear of [future]
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persecution on one of those same bases.” Id. (citation, internal quotation marks, and alterations
omitted); see also 8 C.F.R. § 1208.13(b).
To demonstrate a well-founded fear of future persecution, the alien must show that
“‘persecution is a reasonable possibility’” should he be sent back to his home country. Perkovic v.
INS, 33 F.3d 615, 620 (6th Cir. 1994) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987)).
The concept of well-founded fear “has both a subjective and an objective component: an alien must
actually fear that he will be persecuted upon return to his country, and he must present evidence
establishing an ‘objective situation’ under which his fear can be deemed reasonable.” Id. at 620-21.
An alien need not show that he “probably will be persecuted if he is deported; ‘[o]ne can certainly
have a well-founded fear of an event happening when there is less than a 50% chance of the
occurrence taking place.’” Id. (quoting Cardoza-Fonseca, 480 U.S. at 431). A well-founded fear
of future persecution can be based on either a likelihood of harm specifically targeted at the alien or
a “pattern or practice” of persecution of others similarly situated. 8 C.F.R. § 208.13(b)(2)(iii); see
Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005).
We have recognized that criminal prosecution can amount to persecution. See
Cruz-Samayoa, 607 F.3d at 1151. “A petitioner may . . . establish that prosecution reaches the level
of persecution if the individual can demonstrate that the prosecution or criminal investigation ‘was
actually pretext for persecution’ on account of one of the INA’s enumerated grounds.” Id. (quoting
Lakaj v. Gonzales, 158 F. App’x 678, 683 (6th Cir. 2005)). We consider the “substance and context”
of the law an alien’s native country is attempting to enforce to determine whether the government
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is legitimately attempting to prosecute criminal activity, or is instead seeking only to persecute
persons on account of a protected ground. Id. Prosecution under a general law can constitute
persecution if the punishment is disproportionately severe to the offense. Id. at 1152.
We note first that Ndayisaba has abandoned any claim of past persecution by failing to raise
the issue in his appellate brief. See Terry v. Tyson Farms, Inc., 604 F.3d 272, 280 n.5 (6th Cir.
2010). Thus, with respect to asylum, we need only consider whether the record compels a finding
that Ndayisaba established a reasonable, well-founded fear of future persecution. We find that
substantial evidence supports the determination that his fear is not well-founded.3
Ndayisaba allegedly fears being arrested and charged with genocide upon arrival in Rwanda
because he testified before the ICTR on behalf of a defendant charged with genocide. Although his
application for relief indicates that he seeks relief based on all five protected grounds, his appellate
brief argues persecution only on account of his “ethnicity and testimony before the ICTR in support
of a Hutu Seventh Day Adventist Pastor accused of genocide.” Counsel further clarified at oral
argument that Ndayisaba fears persecution solely on account of his membership in a particular social
group, which we assume consists of members of the Hutu tribe who testified on behalf of those
accused of genocide. Neither the IJ nor the BIA conducted any analysis of whether this asserted
group qualifies as a “particular social group,” and the parties do not address the issue in their
3
The IJ found Ndayisaba credible, which means he established the subjective component of
his burden. See Akhtar, 406 F.3d at 404 (“The subjective fear component turns largely upon the
applicant’s own testimony and credibility.” (quoting Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th
Cir. 2004))). The BIA did not disturb this finding.
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appellate briefs. We assume, without deciding, that Ndayisaba’s asserted social group is sufficiently
particularized to warrant recognition as a “particular social group” for purposes of asylum and
withholding of removal. See generally Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011); In re A-
M-E & J-G-U, 24 I. & N. Dec. 69, 74 (BIA 2007).
Ndayisaba asserts that any criminal prosecution would be a mere pretext for persecution on
account of his past testimony before the ICTR. The IJ rejected this claim. She found no evidence
to support the view that prosecuting the crime of genocide in Rwanda serves as a pretext for
persecuting defense witnesses for their prior testimony. To be sure, Ndayisaba did offer evidence
showing that those who testified were themselves arrested and prosecuted, but the IJ found no
evidence of a connection between testifying and being arrested and prosecuted. She found it equally
plausible that authorities had legitimate reason to believe that those arrested and charged after
testifying had themselves participated in genocide.
Contrary to the IJ’s conclusion, however, there is record evidence demonstrating that some
persons who testified for the defense were later arrested, despite a lack of evidence to support the
arrest and detention. This suggests that they were arrested merely as a pretext for persecution on
account of their testimony.
Additionally, Ndayisaba offered an amicus brief filed by the Human Rights Watch (“HRW”)
in an unrelated ICTR prosecution arguing against the ICTR prosecutor’s request to have the matter
transferred to a Rwandan court. The HRW argued that the accused would not get a fair trial in
Rwanda in part because potential defense witnesses would be deterred from testifying out of fear of
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being prosecuted by the Rwandan government for harboring “genocidal ideology.” The brief
indicates that witnesses who appeared for the defense in proceedings before the ICTR were arrested
and detained shortly after they returned to Rwanda:
In several cases documented by HRW, witnesses who have appeared for the defence
at the ICTR were arrested after their return to Rwanda. In one case, the witness was
detained without charge for two years and then released. In another case, in 2005,
where a witness was himself falsely accused of genocide, the prosecutor general
acknowledged in writing that there was no proof, although as of this writing [on
January 3, 2008,] the person is still detained. Although these witnesses and others
had testified as protected witnesses, many in their communities knew of their
testimony and attributed their arrests to that testimony.
There is also evidence that the fear harbored by potential defense witnesses is so strong that many
forego testifying on behalf of those they know to be innocent. The HRW brief illustrates one
example:
In the last two months alone, HRW has documented four cases of persons who
refused, out of fear, to testify in defence of persons whom they knew to be innocent
of the charges against them. In a recent case, a man who was too frightened to testify
in defence of a person who had saved his life and that of more than ten family
members broke down in tears while describing his shame to a HRW researcher.
Ramsey Clark testified regarding the difficulty in locating persons who could testify on behalf of his
clients because many feared that testifying would subject them to arrest, detention, torture, and
possible death at the hands of the Rwandan government simply for testifying.
Despite this evidence of some nexus between testifying and criminal prosecution, however,
it is equally plausible, as the IJ concluded, that many, if not most, arrests and detentions of ICTR
defense witnesses are legitimate. Indeed, as the government emphasizes on appeal, the HRW amicus
brief expressly “makes no judgments on the merits of the arrests or indictments” of ICTR defense
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witnesses who returned to Rwanda. And the fact that many witnesses were arrested shortly after they
testified might suggest that their testimony provided the necessary evidence to support their arrest
and prosecution (though it might also suggest that the witnesses were arrested and charged simply
because they testified). Given this evidence and the different inferences one may permissibly draw
from it, the IJ was permitted to conclude that Ndayisaba had failed to demonstrate that Rwanda uses
baseless arrest, detention, and prosecution as a method of persecuting defense witnesses in genocide
cases.
The IJ also determined that Ndayisaba’s fear was not well-founded because, apart from his
own fear, there was no other evidence that he, specifically, would be arrested and prosecuted if he
returned to Rwanda. She noted a lack of evidence demonstrating that the Rwandan government
suspects him of any wrongdoing or plans to bring charges against him. She noted also that he has
not been indicted for any crime by the Rwandan government. The BIA added that Ndayisaba’s wife,
who also testified on behalf of Ntakirutimana, has not been arrested or charged with a crime and
“continues to live in Africa with her daughter.”
But this reasoning is faulty. The fact that Ndayisaba has not been indicted does not foreclose
a reasonable probability that he will be once he returns to Rwanda. Nor does it necessarily make it
less likely that he will be indicted upon return.4 Also, the fact that his wife continues to live safely
in Ghana, thousands of miles from Rwanda, does not demonstrate that he will not be prosecuted if
4
However, Ndayisaba’s counsel admitted at oral argument that Rwanda has indicted persons
in absentia, making it less likely that Rwanda intends to indict him if he returns.
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he returns to Rwanda. Cf. Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000) (holding that the ongoing
safety of family members in an alien’s country of origin mitigates a well-founded fear when family
members are “similarly situated to the applicant and thus presumably subject to similar risk”);
accord Yang Lin v. Holder, 320 F. App’x 428, 435 n.5 (6th Cir. 2009) (per curiam).
Nevertheless, the record does not compel the conclusion that Ndayisaba’s fear of being
baselessly arrested, detained, and prosecuted when he returns to Rwanda is well-founded. In
addition to the fact that he has not been charged with genocide, there is further support in the record
for the IJ’s conclusion. One of Ndayisaba’s co-directors at the SDA complex in Mugonero, over
which Ntakirutimana presided, has not been arrested, detained, or charged with genocide, despite
his close affiliation with Ntakirutimana during the 1994 genocide. Rather, he is working as President
of the SDA East Rwanda Association in Rwanda’s capital city. And although another co-director
has been arrested and is soon to be tried for genocide (as of Ndayisaba’s immigration merits
hearing), there is no indication that the co-director testified before the ICTR on behalf of
Ntakirutimana, or, if he did, that his testimony was the motivation behind the arrest and prosecution.
But even if the record compelled the conclusion that Ndayisaba would be arrested and
charged with genocide were he to return to Rwanda, it does not also compel concluding that a
prosecution would be a mere pretext for persecuting him on account of his testimony before the
ICTR and his protected social group status. Ndayisaba potentially implicated himself when he
testified on behalf of Ntakirutimana, whom the ICTR later determined was guilty of aiding and
abetting genocide. And “neither the BIA nor the federal court of appeals has the jurisdiction to
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determine whether [Ndayisaba] is, in fact, guilty of the [potential] charges levied, and the mere fact
that he proclaims innocence is an insufficient basis upon which to determine that the charges are
pretextual.” Cruz-Samayoa, 607 F.3d at 1152.
Despite record support for a contrary view, the record does not compel the conclusion that
Ndayisaba has a reasonable, well-founded fear of being baselessly prosecuted on account of his
earlier testimony on behalf of one accused of genocide.5
III.
Ndayisaba offers for our consideration additional information that he contends supports his
requests for relief but was apparently unavailable at his merits hearing. He has not made clear
exactly what he wants us to do with this information, suggesting at times that we should consider
it directly in these proceedings and at other times that we should remand the matter so the BIA can
consider it.
We cannot consider this newly offered information in the first instance. The statutory
provision establishing the scope of judicial review of a final order of removal provides that “the
court of appeals shall decide the petition only on the administrative record on which the order of
removal is based.” 8 U.S.C. § 1252(b)(4)(A) (emphasis added); see Bejjani v. United States, 271
F.3d 670, 676 (6th Cir. 2001) (“[T]his Court is prohibited [in immigration cases] from considering
5
Because Ndayisaba cannot carry his burden with respect to asylum, he necessarily cannot
do so with respect to withholding of removal. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005).
As for Ndayisaba’s CAT claim, we find that substantial evidence supports the BIA’s determination
that Ndayisaba failed to demonstrate that it is more likely than not that he will be tortured if he is
removed to Rwanda. See 8 C.F.R. § 1208.16(c)(2).
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facts not in the administrative record . . . .”), abrogated on other grounds by Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006); see also 28 U.S.C. § 2347(a) (“Unless determined on a motion to
dismiss, petitions to review orders reviewable under this chapter are heard in the court of appeals on
the record of the pleadings, evidence adduced, and proceedings before the agency, when the agency
has held a hearing whether or not required to do so by law.”). Therefore, we cannot consider the new
facts, and we have not done so.
Nor can we remand the matter to the BIA so it can consider the new information. The INA’s
review provisions specifically forbid it: “Judicial review of a final order of removal . . . is governed
only by chapter 158 of Title 28 [28 U.S.C. §§ 2341-2351], except as provided in subsection (b) of
this section and except that the court may not order the taking of additional evidence under section
2347(c) of such title.” 8 U.S.C. § 1252(a)(1) (emphasis added); see Fang Huang v. Mukasey, 523
F.3d 640, 656 (6th Cir. 2008) (“[W]e lack a statutory basis for remanding her case or for
supplementing the record.”).
Ndayisaba is not foreclosed from presenting the new information in support of his application
for relief; it is just that we cannot consider it or order the BIA to do so. He must follow the proper
procedure for presenting the evidence, which involves filing a motion to reopen his proceedings
before the BIA. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c); Japarkulova, 615 F.3d at 702.
There are no time limitations for moving to reopen based on changed circumstances in the alien’s
home country so long as the evidence is material and could not have been discovered or presented
previously. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
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IV.
For these reasons, we deny the petition for review.
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