Ouattara v. Garland ( 2023 )

21-6083
Ouattara v. Garland
BIA
Sponzo, IJ
A206 298 274
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 Thurgood Marshall
3 United States Courthouse, 40 Foley Square, in the City of
4 New York, on the 23rd day of August, two thousand twenty-
5 three.
6
7 PRESENT:
8 DEBRA ANN LIVINGSTON,
9 Chief Judge,
10 RICHARD C. WESLEY,
11 EUNICE C. LEE,
12 Circuit Judges.
13 _____________________________________
14
15 DAOUDA OUATTARA,
16 Petitioner,
17
18 v. 21-6083
19 NAC
20 MERRICK B. GARLAND, UNITED
21 STATES ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25
26 FOR PETITIONER: Gary J. Yerman, Esq., New York,
27 NY.
28
1 FOR RESPONDENT: Brian Boynton, Acting Assistant
2 Attorney General; Paul Fiorino,
3 Senior Litigation Counsel; Kevin
4 J. Conway, Trial Attorney, Office
5 of Immigration Litigation, United
6 States Department of Justice,
7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED that the petition for review
11 is GRANTED in part and DENIED in part.
12 Petitioner Daouda Ouattara, a native and citizen of the
13 Cote d’Ivoire, seeks review of a January 28, 2021 decision of
14 the BIA affirming a September 4, 2018 decision of an
15 Immigration Judge (“IJ”) denying his application for asylum,
16 withholding of removal, and relief under the Convention
17 Against Torture (“CAT”). In re Daouda Ouattara, No. A 206
18 298 274 (B.I.A. Jan. 28, 2021), aff’g No. A 206 298 274
19 (Immigr. Ct. N.Y.C. Sept. 4, 2018). We assume the parties’
20 familiarity with the underlying facts, procedural history,
21 and arguments on appeal.
22 We have reviewed the IJ’s decision as modified by the
23 BIA——i.e., minus the firm resettlement finding that the BIA
24 did not rely on. See Xue Hong Yang v. U.S. Dep’t of Just.,
25 426 F.3d 520, 522 (2d Cir. 2005) (“[W]e review the judgment
2
1 of the IJ as modified by the BIA’s decision——that is, minus
2 the single argument for denying relief that was rejected by
3 the BIA.”). We review factual findings for substantial
4 evidence and questions of law de novo. See 8 U.S.C.
5 § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir.
6 2010).
7 I. Asylum and Withholding of Removal Claims
8 An asylum applicant must establish past persecution or a
9 well-founded fear of future persecution on account of race,
10 religion, nationality, membership in a particular social
11 group, or political opinion. See 8 U.S.C. §§ 1101(a)(42),
12 1158(b)(1)(B)(i). “Claims for withholding of removal under
13 the INA are closely related to asylum,” Ramsameachire v.
14 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004), but the Attorney
15 General must grant withholding of removal if the applicant
16 establishes that it is more likely than not that his “life or
17 freedom would be threatened in [the] country because of [his]
18 race, religion, nationality, membership in a particular
19 social group, or political opinion,” 8 U.S.C.
20 § 1231(b)(3)(A). Here, the agency determined that Ouattara
3
1 had established past persecution based on his membership in
2 “the Dyula ethnic tribe.” CAR at 34, 54.
3 Ouattara testified at his removal hearing and submitted
4 letters from his mother and sister, as well as country
5 conditions evidence. Ouattara’s evidence indicated that in
6 2002 a group of armed civilians and uniformed men broke into
7 his home, beat him unconscious, and raped his sister and
8 sister-in-law. The men abducted Ouattara, along with his
9 brothers and father, to a camp where they suffered repeated
10 beatings, shocking with electric batons, and other forms of
11 violence. Shortly after being released from the camp,
12 Ouattara’s father died from the abuse. Following his
13 father’s death, a group of military personnel and civilians
14 attacked and burned Ouattara’s home, took him to the camp
15 again, and subjected him to further abuse for three days.
16 The IJ credited Ouattara’s testimony and other evidence,
17 finding that he had established past persecution and was
18 therefore entitled to a presumption of a well-founded fear of
19 future persecution. See 8 C.F.R. § 1208.13(b)(1). The
20 government could rebut that presumption by establishing by a
21 preponderance of the evidence that “[t]here has been a
4
1 fundamental change in circumstances such that the applicant
2 no longer has a well-founded fear of
3 persecution.” Id. § 1208.13(b)(1)(i), (ii); see also Cao He
4 Lin v. U.S. Dep’t of Just., 428 F.3d 391, 399 (2d Cir. 2005).
5 In determining whether the government has met its burden, the
6 IJ must conduct “an individualized analysis of whether the
7 changes in conditions in the relevant country were so
8 fundamental that they are sufficient to rebut the
9 presumption.” Lecaj, 616 F.3d at 115 (alterations adopted;
10 internal quotation marks omitted). And the IJ should
11 consider “how [the] changed conditions would affect the
12 specific petitioner’s situation.” Id. (internal quotation
13 marks omitted). Notably, DHS submitted no evidence before
14 the IJ.
15 Nevertheless, the IJ denied all relief. See CAR at 30.
16 The BIA, in affirming, described the IJ as holding “that the
17 DHS carried its burden to rebut the presumption of a well-
18 founded fear . . . . Specifically, the Immigration Judge found
19 that the DHS established that there has been a fundamental
20 change in circumstances . . . .” CAR at 3. We conclude that
21 the BIA erred in affirming because the IJ improperly shifted
5
1 the burden of proof to Ouattara and failed to analyze whether
2 the government had met its burden to rebut the presumption of
3 a well-founded fear of future persecution.
4 Here, the agency first erred by incorrectly shifting the
5 burden of proof to Ouattara to show a fundamental change in
6 circumstances. Contrary to the description by the BIA, the
7 IJ’s decision did not hold “that DHS carried its burden,” but
8 instead held only that “respondent’s otherwise presumed well-
9 founded fear of future persecution is rebutted,” without ever
10 mentioning DHS. CAR at 28. That the IJ in fact incorrectly
11 placed the burden of proof squarely on Ouattara is indicated
12 by the IJ’s repeated references to the absence of affirmative
13 proof from Ouattara that he faced a future threat, rather
14 than to evidence from the government rebutting the
15 presumption that he did. See CAR at 29–30 (reasoning that
16 the record “is devoid of sufficient evidence of a threat to
17 respondent since his departure from Cote d’Ivoire in 2002,”
18 and “lacks sufficient evidence establishing the objective
19 reasonableness of a fear of future persecution”).
20 Because Ouattara was entitled to a presumption of a well-
21 founded fear of future persecution, the appropriate inquiry
6
1 was not whether he had made an affirmative showing of
2 fundamentally unchanged country conditions. See id.3 Rather, at this stage, “[t]he burden rest[ed] firmly with the
4 government,” Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010),
5 to show by a preponderance of the evidence that “[t]here has
6 been a fundamental change in circumstances such that the
7 applicant no longer has a well-founded fear of persecution,”
8 8 C.F.R. § 1208.13(b)(1)(i), (ii) (emphasis added).
9 While DHS was not necessarily required to present
10 evidence to meet its burden of showing a fundamental change,
11 the IJ’s sua sponte finding of changed circumstances was not
12 otherwise “supported by reasonable, substantial and probative
13 evidence in the record when considered as a whole.” Iouri
14 v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007) (internal
15 quotation marks and citation omitted). “[W]here facts
16 important to an ultimate agency conclusion have been totally
17 overlooked and others have been seriously mischaracterized,
18 we conclude that an error of law has occurred.” Acharya v.
19 Holder, 761 F.3d 289, 300 (2d Cir. 2014) (internal quotation
20 marks and citation omitted). As to at least three material
21 aspects of the record, the IJ seriously mischaracterized or
7
1 overlooked Ouattara’s evidence——the only evidence in the
2 record——in concluding that the presumption of future
3 persecution had been rebutted.
4 First, in noting that Ouattara “testified that conditions
5 are ‘a little bit better in Cote d’Ivoire’ today,” CAR at 29,
6 the IJ mischaracterized Ouattara’s testimony as suggesting he
7 did not fear future persecution. In fact, when asked whether
8 the 2011 election made things better for his tribal group,
9 Ouattara responded ”[t]here is still the xenophobia problem.
10 Even though Alassane is in power . . . . It got a little
11 better but it continued. Because they are still the arms
12 that are circulating in the hands of the young people.” CAR
13 at 86–87 (emphasis added). At most, Ouattara’s testimony,
14 which noted a continuing threat, suggested a reduction of
15 abuse, but “[t]he [agency] apparently did not fully perceive
16 the significant distinction between a drop in abuses and an
17 end to abuses.” Tambadou v. Gonzales, 446 F.3d 298, 304 (2d
18 Cir. 2006) (emphases added).
19 The IJ compounded this specific error by overlooking
20 other aspects of Ouattara’s testimony. For example, Ouattara
21 testified that he fears persecution on account of his
8
1 ethnicity by armed civilians and uniformed men——similar to
2 the mobs that beat him unconscious, raped his family members,
3 and burned down his farm——who continue to operate with
4 impunity despite the change in government. 1 CAR at 57–58,
5 61, 68, 214–15. The IJ utterly failed to address these facts,
6 stating simply that the “[c]urrent president is supportive of
7 respondent’s particular ethnic group.” CAR at 29.
8 Second, the IJ mischaracterized Ouattara’s family
9 letters, inaccurately asserting that neither letter makes any
10 mention of a present threat of persecution. But Ouattara’s
11 mother wrote that Cote d’Ivoire had many areas that remained
12 dangerous and outside government protection, which she
13 described as a “precarious peace.” CAR at 29, 137 (emphasis
14 added). His sister’s letter likewise noted that the people
15 of Cote d’Ivoire suffer from “arbitrary arrests” and
16 highlighted that the government lacks “total control” over
17 public security. CAR at 146. Contrary to the IJ’s
18 characterization, a reasonable factfinder would be compelled
19 to view these letters——which, after detailing past
1 This was not a newly identified fear: Ouattara made a similar
statement in his written application for asylum. See CAR at
215.
9
1 persecution, refer to an ongoing and precarious security
2 situation despite a change in government—as at least making
3 “mention of a present threat [of persecution].” CAR at 29.
4 And, on any fair reading, the letters do not provide
5 affirmative support for the conclusion that “[t]here has been
6 a fundamental change in circumstances such that the applicant
7 no longer has a well-founded fear of persecution.” 8 C.F.R.
8 § 1208.13(b)(1)(i)(A) (emphasis added).
9 The IJ further misconstrued Ouattara’s sister’s letter
10 as supporting changed conditions based on the fact that she
11 “remain[ed] without incident in Cote d’Ivoire” since being
12 “attacked in 2002,” and the letter did not specifically
13 mention further incidents. CAR at 29. An inference of
14 changed conditions based on this silence, however, cannot
15 satisfy the DHS’s burden to overcome the presumption of future
16 persecution. First, not only does the sister’s own suffering
17 since 2002 have little or no bearing in the circumstances of
18 this case on whether Ouattara himself faces a present threat
19 of persecution, the absence of any explicit mention of a
20 present threat in her letter should not have been held against
21 Ouattara without giving him a chance to respond. See Cao He
10
1 Lin, 428 F.3d at 394–95 (holding that, even where an applicant
2 is not entitled to the presumption, “if [an IJ] intends to
3 rely on the absence of certain corroborative evidence to hold
4 that an applicant has not satisfied his burden of proof, [the
5 IJ] must give the applicant an opportunity to explain its
6 absence”).
7 Third and finally, the IJ’s decision did not explicitly
8 discuss any of the country conditions reports in the record.
9 These reports uniformly support the existence of a well-
10 founded fear of future persecution. The IJ merely stated
11 that the “[c]urrent president is supportive of respondent’s
12 particular ethnic group.” CAR at 29. But “the mere fact
13 that . . . the former dictator was replaced . . . [is]
14 insufficient to show changed country circumstances” where the
15 election and post-election period have been suffused with
16 violence, impunity, arbitrary detention, and unlawful
17 killings. Baba v. Holder, 569 F.3d 79, 87 (2d Cir. 2009).
18 In denying Ouattara’s asylum and withholding claims, the
19 IJ incorrectly shifted the burden of proof and
20 mischaracterized or overlooked Ouattara’s evidence. For
21 these reasons, we vacate the BIA’s ruling affirming the denial
11
1 of Ouattara’s petition for asylum and withholding of removal.
2 See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289
3 (2d Cir. 2007).
4 II. CAT Claim
5 The BIA did not err in finding that Ouattara waived his
6 CAT claim because it may deem an issue waived where the
7 applicant fails to assert a meaningful challenge on appeal.
8 See Matter of Y–I–M–, 27 I. & N. Dec. 724, 729 n.2 (B.I.A.
9 2019), vacated on other grounds by Malets v. Garland, 66 F.4th
10 49 (2d Cir. 2023); Matter of R–A–M–, 25 I. & N. Dec. 657, 658
11 n.2 (B.I.A. 2012). A party does not raise a meaningful
12 challenge when it “devotes only a single conclusory sentence
13 to the argument . . . .” Yueqing Zhang v. Gonzales, 426 F.3d
14 540, 545 n.7 (2d Cir. 2005). The BIA did not err in finding
15 that Ouattara waived his CAT claim because his argument
16 consisted of a single sentence challenging an adverse
17 credibility determination that the IJ did not make.
18
19 * * *
20
12
1 For the foregoing reasons, the petition for review is
2 GRANTED in part and DENIED in part. All pending motions and
3 applications are DENIED and stays VACATED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe,
6 Clerk of Court
13