Barry v. Holder , 363 F. App'x 114 ( 2010 )

08-0325-ag
Barry v. Holder
BIA
Schoppert, IJ
A79 069 624
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 1 st day of February, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 ROSEMARY S. POOLER,
9 ROBERT A. KATZMANN,
10 Circuit Judges.
11 _____________________________________
12
13 BOUBACAR BARRY,
14 Petitioner,
15
16 v. 08-0325-ag
17 NAC
18 ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
19 Respondent.
20 _____________________________________
21 FOR PETITIONER: Ronald S. Salomon, Brooklyn, New
22 York.
23
24
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr., is
automatically substituted for former Acting Attorney
General Peter D. Keisler as respondent in this case.
1 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
2 Attorney General; Linda S. Wernery,
3 Assistant Director; Sarah Maloney,
4 Attorney, Office of Immigration
5 Litigation, Civil Division, United
6 States Department of Justice,
Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review
2 of a decision of the Board of Immigration Appeals (“BIA”),
3 it is hereby ORDERED, ADJUDGED, AND DECREED, that the
4 petition for review is DENIED, in part, and DISMISSED, in
5 part.
6 Petitioner Boubacar Barry, allegedly a native and citizen
7 of Sierra Leone, seeks review of a December 19, 2007 order
8 of the BIA affirming the March 9, 2006 decision of
9 Immigration Judge (“IJ”) Douglas B. Schoppert, denying his
10 applications for asylum, withholding of removal, and relief
11 under the Convention Against Torture (“CAT”). In re
12 Boubacar Barry, No. A79 069 624 (B.I.A. Dec. 19, 2007),
13 aff’g No. A79 069 624 (Immig. Ct. N.Y. City Mar. 9, 2006).
14 We assume the parties’ familiarity with the underlying facts
15 and procedural history of the case.
16 As an initial matter, because Barry does not challenge
17 the IJ’s pretermission of his untimely asylum application,
18 we deem any such challenge to have been waived. See Yueqing
2
1 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.
2 2005). In any event, we generally lack jurisdiction to
3 review such findings. See 8 U.S.C. § 1158(a)(3). Moreover,
4 because Barry failed to meaningfully challenge the IJ’s
5 denial of his CAT claim before the BIA, we dismiss his
6 petition for review to the extent that he now challenges the
7 IJ’s denial of that relief. See 8 U.S.C. § 1252(d)(1);
8 Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
9 When the BIA issues an opinion that fully adopts the IJ’s
10 decision, we review the IJ’s decision. See Mei Chai Ye v.
11 U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007).
12 However, when the BIA affirms the IJ’s decision in some
13 respects but not others, we review the IJ’s decision as
14 modified by the BIA’s decision, i.e. minus the arguments for
15 denying relief that were rejected by the BIA. See Xue Hong
16 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
17 2005). Here, the BIA agreed with the IJ’s finding that
18 country conditions in Sierra Leone had changed such that any
19 presumption of a well-founded fear of future persecution was
20 rebutted. It is unclear, however, whether the BIA agreed
21 with the IJ’s finding that Barry failed to demonstrate past
22 persecution based on the death of his parents. Thus, for
3
1 purposes of our decision, we assume that Barry suffered past
2 persecution. See Yan Chen v. Gonzales, 417 F.3d 268, 271
3 (2d Cir. 2005).
4 We review the agency’s factual findings under the
5 substantial evidence standard. See 8 U.S.C.
6 § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland
7 Sec., 494 F.3d 281, 289 (2d Cir. 2007). We review de novo
8 questions of law and the application of law to undisputed
9 fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110
10 (2d Cir. 2008).
11 Substantial evidence supports the agency’s finding that
12 Barry failed to demonstrate a well-founded fear of future
13 persecution. The IJ did not err in concluding that country
14 conditions in Sierra Leone had changed when “the 11-year
15 civil conflict officially ended in January of 2002, . . .
16 the government, backed by a large U.N. peace-keeping force,
17 had subsequently asserted control over the whole country,
18 and the R.U.F., or Revolutionary United Front, insurgence
19 has completed disarmament and demobilization in 2002.” In
20 upholding a similar finding, we have noted that the civil
21 war ending in Sierra Leone, inter alia, demonstrated changed
22 country conditions. See Jalloh v. Gonzales, 498 F.3d 148,
4
1 151 n.2 (2d Cir. 2007). While Barry argues that the IJ’s
2 holding in this case was erroneous, we are unpersuaded by
3 his argument. See 8 U.S.C. § 1252(b)(4)(B); see also
4 Manzur, 494 F.3d at 289. Accordingly, we find no error in
5 the agency’s denial of Barry’s application for withholding
6 of removal.
7 For the foregoing reasons, the petition for review is
8 DENIED, in part, and DISMISSED, in part.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
13
14
5