Niang v. Barr ( 2019 )

16-3869
Niang v. Barr
BIA
Hom, IJ
A073 048 664
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 11th day of July, two thousand nineteen.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
RICHARD C. WESLEY,
Circuit Judges.
_____________________________________
FODE NIANG,
Petitioner,
v. 16-3869
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Edward J. Cuccia, Cuccia & Campise,
PLLC, New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant
Attorney General; Alison Marie
Igoe, Daniel I. Smulow, Senior
Counsel for National Security,
Office of Immigration Litigation,
United States Department of
Justice, Washington, DC.
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 Fode Niang, a native and citizen of Senegal,
seeks review of an October 18, 2016, decision of the BIA
affirming a November 18, 2015, decision of an Immigration
Judge (“IJ”) denying both Niang’s application for asylum and
withholding of removal and his request for administrative
closure based on his material support for a terrorist
organization. In re Fode Niang, No. A 073 048 664 (B.I.A. Oct.
18, 2016), aff’g No. A073 048 664 (Immig. Ct. N.Y.C. Nov. 18,
2015). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
We have reviewed the IJ’s decision as modified by the
BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
520, 522 (2d Cir. 2005). The applicable standards of review
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are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
An alien who has engaged in a terrorist activity is
statutorily ineligible for asylum, withholding of removal,
and adjustment of status. See 8 U.S.C. §§ 1158(b)(2)(A)(v),
1255(a), 1231(b)(3)(B)(iv). “Terrorist activity” includes,
among other things:
any activity which is unlawful under the laws of the
place where it is committed (or which, if it had
been committed in the United States, would be
unlawful under the laws of the United States or any
State) and which involves . . . [t]he use of
any . . . firearm . . . (other than for mere
personal monetary gain), with intent to endanger,
directly or indirectly, the safety of one or more
individuals or to cause substantial damage to
property.
Id. § 1182(a)(3)(B)(iii)(V)(b). Engaging in terrorist
activity includes, inter alia, committing an act that “the
actor knows, or reasonably should know, affords material
support” to a terrorist organization, where the actor cannot
demonstrate by clear and convincing evidence that he “did not
know, and should not reasonably have known, that the
organization was a terrorist organization.” Id.
§ 1182(a)(3)(B)(iv)(VI)(dd). A “terrorist organization” is
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defined, in relevant part, as an organization “that is a group
of two or more individuals, whether organized or not, which
engages in, or has a subgroup which engages in [terrorist
activity].” Id. § 1182(a)(3)(B)(vi)(III). The Government
bears the initial burden of establishing that “the evidence
indicates” that the material support bar may apply, and the
alien must then prove by a preponderance of the evidence that
the material support bar does not apply. See 8 C.F.R.
§ 1240.8(d); see also In re R-S-H, 23 I. & N. Dec. 629, 640-
41 (B.I.A. 2003).
We find no error in the agency’s conclusions that
Niang’s participation in armed conflict in Senegal as a member
of the Movement of Democratic Forces of Casamance (“MFDC”)
barred asylum, withholding of removal, and adjustment of
status. First, the Government established that the MFDC is a
terrorist organization through reports detailing the MFDC’s
insurgent activities during the years of Niang’s membership
(1990 to 1992). Niang does not challenge this determination.
Second, Niang’s statements in his 1993 asylum application
and 1997 asylum interview were sufficient to establish that
Niang provided material support to the MFDC. Namely, Niang
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stated that while a member of the MFDC, he was a “notorious
fighter” and “avid proponent against the government” who shot
at Senegalese troops. Certified Administrative Record at 500.
Although Niang contends that the 1993 application was a
complete fabrication, he has not provided compelling evidence
to support his allegation that he was not in Senegal between
1990 and 1992. That allegation conflicts with his initial
statements, and the documentary evidence does not place him,
as he claims, in Gabon for that period. Given Niang’s
conflicting accounts of his whereabouts and activities, the
agency was not required to accept his disavowal. See Siewe v.
Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“[A] single false
document or a single instance of false testimony may (if
attributable to the petitioner) infect the balance of the
alien's uncorroborated or unauthenticated evidence.”).
Given the evidence that the MFDC is a terrorist
organization, that Niang was an active member of the MFDC
from 1990 to 1992, and Niang’s failure to challenge the
designation or argue that he was unaware of the nature of the
MFDC’s activities, the record does not compel reversal of the
IJ’s determination that Niang provided material support to a
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terrorist organization. See Yanqin Weng, 562 F.3d at 513
(“[W]e uphold the IJ’s factual findings if they are supported
by ‘reasonable, substantial and probative evidence in the
record.’” (citation omitted)).
To the extent Niang separately argues that the agency
should have granted administrative closure, there was no
basis for closure because Niang is barred from adjustment of
status. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd) (alien who
provided material support to terrorist organization is
inadmissible to the United States); id. § 1255(a) (alien must
be admissible to the United States in order to adjust status);
Am. Acad. of Religion v. Napolitano, 573 F.3d 115, 118 (2d
Cir. 2009) (“The INA renders inadmissible, and therefore
ineligible for a visa, . . . an alien who has ‘engaged in a
terrorist activity.’”). Moreover, the Attorney General’s
decision in Matter of Castro-Tum, 27 I. & N. Dec. 271, 275-
78, 283-84, 290–92 (A.G. 2018), now precludes the IJ or BIA
from granting administrative closure except in specific
circumstances not relevant here.
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For the foregoing reasons, Niang’s petition for review
is DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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