Enoh v. Sessions , 693 F. App'x 94 ( 2017 )

15-3494
Enoh v. Sessions
BIA
A095 420 131
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 16th day of August, two thousand seventeen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOHN M. WALKER, JR.,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 TERENCE ENOH ENOH,
14 Petitioner,
15
16 v. 15-3494
17 NAC
18 JEFFERSON B. SESSIONS, III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Eric Niba, Niba & Associates,
24 Atlanta, GA.
25
26 FOR RESPONDENT: Chad Readler, Acting Assistant
27 Attorney General; Kiley Kane, Senior
28 Litigation Counsel; Kathryn M.
29 McKinney, Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 GRANTED in part, DENIED in part, and the case is REMANDED for
5 further proceedings consistent with this order.
6 Petitioner Terence Enoh Enoh, a native and citizen of
7 Cameroon, seeks review of an October 5, 2015, decision of the
8 BIA denying his motion to reconsider and reopen. In re Terence
9 Enoh Enoh, No. A095 420 131 (B.I.A. Oct. 5, 2015). We assume
10 the parties’ familiarity with the underlying facts and
11 procedural history in this case.
12 Where, as here, an alien files a motion that seeks both
13 reconsideration of a prior decision and reopening of
14 proceedings, we treat the motion as comprising distinct motions
15 to reconsider and reopen. See Alrefae v. Chertoff, 471 F.3d
16 353, 357 (2d Cir. 2006). We review the BIA’s denial of motions
17 to reconsider and reopen for abuse of discretion. Zhao Quan
18 Chen v. Gonzales, 492 F.3d 153, 154 (2d Cir. 2007). When the
19 BIA considers relevant evidence of country conditions in
20 evaluating a motion to reopen, we review the BIA’s factual
21 findings under the substantial evidence standard. Jian Hui
22 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).
2
1 I. Motion to Reopen
2 An alien seeking to reopen proceedings may file one motion
3 to reopen no later than 90 days after the date on which the final
4 administrative decision was rendered. 8 U.S.C.
5 § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). It is
6 undisputed that Enoh’s August 2015 motion to reopen was untimely
7 and number barred because it was his second motion to reopen
8 and was filed nine months after his order of removal became final
9 in November 2014. See 8 U.S.C. § 1101(a)(47)(B)(i). These
10 time and numerical limitations may be excused, however, if the
11 motion is “based on changed country conditions arising in the
12 country of nationality or the country to which removal has been
13 ordered, if such evidence is material and was not available and
14 would not have been discovered or presented at the previous
15 proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
16 § 1003.2(c)(3)(ii).
17 Upon review, we conclude that the BIA abused its discretion
18 when it failed to address country conditions evidence relevant
19 to Enoh’s Christianity-based persecution claim, which he raised
20 for the first time in his supplemental affidavit. The BIA
21 acknowledged that Enoh submitted the supplemental affidavit,
22 but it made no findings as to whether country conditions had
3
1 materially changed for Christians in Cameroon. That was error.
2 See Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)
3 (“[T]he BIA abuses its discretion if it fails completely to
4 address evidence of changed country conditions offered by a
5 petitioner.”); Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.
6 2005) (“IJs and the BIA have a duty to explicitly consider any
7 country conditions evidence submitted by an applicant that
8 materially bears on his claim. A similar, if not greater, duty
9 arises in the context of motions to reopen based on changed
10 country conditions.”). Moreover, while Enoh had been found not
11 credible in his underlying proceedings as to his past political
12 activities, that finding does not impugn his Christianity-based
13 claim or obviate the need to consider relevant country
14 conditions. See Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.
15 2006) (“[A]n [asylum] applicant may prevail on a theory of
16 future persecution despite an IJ’s adverse credibility ruling
17 as to past persecution, so long as the factual predicate of the
18 applicant’s claim of future persecution is independent of the
19 testimony that the IJ found not to be credible.”).
20 Accordingly, we grant in part the petition for review with
21 respect to Enoh’s Christianity-based claim for reopening and
22 remand to the BIA to consider whether Enoh’s evidence concerning
4
1 the treatment of Christians in Cameroon amounts to materially
2 changed country conditions.
3 However, the petition is denied as to the following. We
4 find no abuse of discretion in the BIA’s determination that Enoh
5 failed to demonstrate a material change in country conditions
6 for his political-based persecution claim, which turned on his
7 support for the Southern Cameroon National Council (“SCNC”).
8 “In determining whether evidence accompanying a motion to
9 reopen demonstrates a material change in country conditions
10 that would justify reopening, [the BIA] compare[s] the evidence
11 of country conditions submitted with the motion to those that
12 existed at the time of the merits hearing below.” See In re
13 S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). Here, the BIA
14 properly observed that the evidence linking SCNC with Boko Haram
15 was not new or previously unavailable because this linkage began
16 before Enoh’s merits hearing in September 2012. See 8 U.S.C.
17 § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The BIA
18 also reasonably determined that Enoh’s generalized country
19 conditions evidence showed a continuation of the same or similar
20 conditions for SCNC members that existed at the time of his
21 merits hearing, rather than materially changed conditions or
22 circumstances. See Jian Hui Shao, 546 F.3d at 169.
5
1 We further conclude that the BIA did not abuse its
2 discretion in finding no material change in country conditions
3 based on Enoh’s individualized evidence. The BIA properly
4 observed that the SCNC member statements were not new or
5 previously unavailable because, with the exception of the
6 account of the police’s recent efforts to locate Enoh, they
7 described events that occurred before Enoh’s merits hearing in
8 2010. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
9 § 1003.2(c)(3)(ii). The BIA also properly declined to credit
10 the representations in the statements of the SCNC members and
11 Enoh’s family about the police’s recent search for him based
12 on the underlying adverse credibility determination. See Qin
13 Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir. 2007)
14 (holding that the agency may properly conclude that a prior
15 adverse credibility determination undermines the authenticity
16 of documentary evidence filed in support of a motion to reopen);
17 see also Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We
18 generally defer to the agency’s evaluation of the weight to be
19 afforded an applicant’s documentary evidence.”).
20 Accordingly, we find no abuse of discretion in the BIA’s
21 denial of Enoh’s motion to reopen with respect to his SCNC-based
22 claim.
6
1 II. Motion to Reconsider
2 Finally, we deny the petition to the extent that it
3 challenges the BIA’s denial of reconsideration of the
4 immigration judge’s adverse credibility determination. See 8
5 C.F.R. § 1003.2(b)(1)-(2); Ke Zhen Zhao v. U.S. Dep’t of
6 Justice, 265 F.3d 83, 90 (2d Cir. 2001). Enoh’s August 2015
7 motion to reconsider was filed more than 30 days after the BIA’s
8 2014 decision affirming the adverse credibility determination.
9 Accordingly, the BIA did not abuse its discretion in denying
10 the motion as untimely.
11 For the foregoing reasons, the petition for review is
12 GRANTED in part, DENIED in part, and the case is REMANDED for
13 further proceedings consistent with this order. As we have
14 completed our review, any stay of removal that the Court
15 previously granted in this petition is VACATED, and any pending
16 motion for a stay of removal in this petition is DISMISSED as
17 moot. Any pending request for oral argument in this petition
18 is DENIED in accordance with Federal Rule of Appellate Procedure
19 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
7