Mamadou Nbaye v. Atty Gen USA ( 2011 )

IMG-027 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3399
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MAMADOU NBAYE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A097-520-789)
Immigration Judge: Honorable Grace A. Sease
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2011
Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges
(Opinion filed: January 19, 2011)
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OPINION
___________
PER CURIAM
Before us is a petition for review of an order of the Board of Immigration Appeals
(“BIA”) denying the Petitioner’s motion to reopen his removal proceedings. For the
following reasons, we will deny the petition.
I.
Mamadou Nbaye, a native and citizen of Guinea, attempted to enter the United
States in 2005 using a stolen French passport. He was detained and subsequently pled
guilty to use of a fraudulent passport, in violation of 18 U.S.C. § 3551. While detained,
he applied for asylum and related relief. He claimed he would be persecuted on account
of his political opinion if returned to Guinea. In support of this claim, Nbaye stated that
he, his father, and his sister were members of the Rally of the Guinean People Party
(“RPG”), which opposed the party of the then-president of Guinea. JA at 346. Nbaye
claimed that he worked as a driver for the RPG, but quit after his father and sister were
killed by members of the ruling party. Id. at 351. Shortly thereafter, he and his mother
were beaten and he was imprisoned for ten months, until a friend paid a bribe for his
release. Id. at 352-53. He went to France several months later and then traveled to the
United States. Id. at 353-54.
In his hearing before the Immigration Judge (“IJ”), Nbaye offered his testimony,
his identification card and passport from Guinea, a map of Guinea, and a few reports and
articles about conditions in the country. JA at 311-40. The IJ found Nbaye “simply not
credible” based on inconsistencies she perceived in his testimony and a “less than
candid” demeanor. JA at 177-78. The IJ also faulted the lack of corroborating evidence
and did not accept Nbaye’s explanation that he had been unable to contact anyone to
obtain corroboration. Id. The IJ denied relief, and the BIA affirmed in 2005. Nbaye did
not petition for review of the BIA’s final order of removal.
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Several years later, in May 2009, Nbaye filed a counseled motion to reopen,
contending that changed circumstances in Guinea warranted reopening of his removal
proceedings. Nbaye cited a December 2008 military coup that overthrew the previous
government and reports of abuses by security forces. JA at 51. He argued that there
would be “escalated fighting among political groups” in Guinea and that his affiliation
with the RPG was now an even greater reason to fear persecution, torture, and death. Id.In support of his motion, Nbaye submitted a 2008 State Department Report on Human
Rights Practices in Guinea, as well as several articles about the coup. He also offered an
undated letter from a friend stating that many of Nbaye’s friends had been killed and that
his mother had fled to Senegal. The friend warned him never to return to Guinea because
“they” would torture and kill him. JA at 82. In addition to this evidence regarding
country conditions, Nbaye also offered evidence to corroborate his previous testimony,
including birth certificates for himself and his sister, death certificates for his sister and
father, and a newspaper article describing their deaths and his imprisonment. JA at 59-
80.
The BIA denied Nbaye’s motion, finding that he had “not demonstrated changed
country conditions satisfying the exception” for untimely motions to reopen. JA at 25.
In pertinent part, the BIA concluded that the undated letter from Nbaye’s friend was
insufficient to demonstrate worsening conditions in Guinea material to Nbaye’s claim.
Id. at 24-25. Acknowledging that the articles and State Department report showed a
change in the Government of Guinea, the BIA concluded that the documents did not
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show how the change in government would affect Nbaye “differently from the general
population of Guinea.” Id. at 25. In other words, the documents did not show that
“conditions have specifically worsened for supporters of the [RPG].” Id. Nbaye filed a
timely petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252 to review the order denying Nbaye’s
motion to reopen. In his brief, Nbaye also seeks review of an order from the BIA
denying his motion to reconsider the denial of his motion to reopen. His petition for
review, however, concerns only the BIA’s order denying his motion to reopen. Nbaye
has not moved to amend his petition to include the order denying reconsideration. We
therefore lack jurisdiction to review the BIA’s order denying reconsideration because
Nbaye has not filed a petition for review of that order. See 8 U.S.C. § 1252(b)(1).
The Government contends that Nbaye has waived any challenge to the BIA’s
order denying his motion to reopen by failing to address the order in his brief. See Resp.
Br. at 15. We disagree. Although it is “well settled that an appellant’s failure to identify
or argue an issue in his opening brief constitutes waiver of that issue on appeal,” United
States v. Pellulo, 399 F.3d 197, 222 (3d Cir. 2002), and Nbaye does frame the issues for
review in terms of the denial of the motion for reconsideration, he nonetheless refers to
the “decisions” of the BIA in his argument and makes arguments that pertain to the
substance of the BIA’s denial of the motion to reopen. See Pet. Br. at 14-16. We
therefore conclude that Nbaye has not waived review of the BIA’s order denying the
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motion to reopen.
III.
A motion to reopen “must be filed no later than 90 days after the date on which
the final administrative decision was rendered in the proceeding sought to be reopened.”
See 8 C.F.R. § 1003.2(c)(2). Nbaye filed his motion years after the BIA issued its final
order of removal and he does not contest its untimeliness. Instead, Nbaye sought to
proceed under the exception for motions based on “changed country conditions arising in
the country of nationality . . . if such evidence is material and was not available and
would not have been discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
We review the BIA’s denial of Nbaye’s motion to reopen for an abuse of
discretion and may reverse only if it is “arbitrary, irrational, or contrary to law.” Shardar
v. Att’y Gen., 503 F.3d 308, 311 (3d Cir. 2007). We consider whether Nbaye presented
both evidence of changed country conditions and a prima facie case for asylum. Id. at
312. “To establish a prima facie case for asylum, the alien must produce objective
evidence that, when considered together with the evidence of record, shows a reasonable
likelihood that he is entitled to relief.” Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir.
2010).
To show changed country conditions, Nbaye presented a letter from a friend, news
articles about the coup, and a State Department Report. The BIA determined that the
letter is not “sufficient to demonstrate worsening conditions in Guinea that are material”
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to Nbaye’s claim. JA at 24-25. The undated letter states “they have killed a lot of your
friends, for example Mouctar, Moustapha, Kadiatou, etc.” and warns Nbaye not to return
because “[t]hey will torture you so that you suffer before they kill you.” JA at 82. The
writer does not elaborate on these dire events in the short letter and does not identify who
“they” are. The BIA did not abuse its discretion in concluding that the vague or
unconfirmed claims and warning in the letter are insufficient to constitute evidence of
changed country conditions. Furthermore, we note that Nbaye attests that he received the
undated letter in April 2008, many months before the December 2008 coup. JA at 134.
Therefore, the letter describes events that occurred before the coup and cannot constitute
evidence of changed conditions due to the coup.
With regard to the news articles and report, the BIA acknowledged that they
“show that there has been a change in the government of Guinea since [Nbaye’s] hearing,
but “they do not demonstrate how the December 2008 coup will affect [him] differently
from the general population of Guinea.” JA at 25. The BIA then held that Nbaye failed
to show changed country conditions. Id. This holding is somewhat confusing, given the
BIA’s apparent recognition that the background material showed a change of conditions
in Guinea. It appears to us that the Board’s rationale more aptly supports a conclusion
that Nbaye failed to make a prima facie case that he is eligible for asylum in light of the
changed country conditions. See Shardar, 503 F.3d at 312 (explaining that whether a
movant has presented new evidence of changed country conditions and whether the
evidence as a whole makes out a prima facie case for asylum are distinct issues).
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Nonetheless, it is apparent that the BIA did not abuse its discretion by determining
that the background material Nbaye submitted is insufficient to warrant reopening the
removal proceedings. The BIA concluded that the material does “not demonstrate that
conditions have specifically worsened for supporters of the [RPG.]” JA at 25. A review
of the background material supports that conclusion. Although the State Department
report and news articles describe turbulent conditions in Guinea following the coup, none
of the material suggests that the new regime is targeting RPG members for persecution.
Nbaye has thus failed to make the showing of a “a particularized threat of persecution”
that is required of asylum applicants. Shardar, 503 F.3d at 316.
In his brief, Nbaye argues that he fears the Guinean military because they killed
his family and imprisoned him and, therefore, the fact that the military now controls
Guinea provides a “compelling basis” to reopen his removal proceedings. Pet. Br. at 16.
This attempt to recharacterize his claim for asylum is of no avail. Eligibility for asylum
must be based on a showing of past persecution or a well-founded fear of future
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Nbaye’s asylum claim is clearly
based on “political opinion,” i.e., his membership in the RPG. JA at 123, 133. And, as
explained above, the evidence he submitted in support of his motion to reopen does not
show that the military coup in Guinea represents a particularized threat to RPG members.
For these reasons, we will deny the petition for review.
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