Bah v. Gonzales ( 2007 )

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 07a0317n.06
Filed: May 8, 2007
No. 06-3704
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AISSATO BAILO BAH, )
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW OF AN
) ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
ALBERTO GONZALEZ, )
)
Respondent. )
)
)
_____________________________________ )
BEFORE: ROGERS AND GRIFFIN, Circuit Judges; RUSSELL, District Judge*
RUSSELL, District Judge. Petitioner Ms. Aissata Bailo Bah (“Ms. Bah”) appeals the Board
of Immigration Appeals’ (“BIA”) decision denying the motion of Ms. Bah to reopen her petition for
asylum. Ms. Bah contends that the BIA abused its discretion in not reopening her petition because
she experienced changed circumstances after she had appeared in front of the Immigration Judge that
warranted granting her motion to reopen.
BACKGROUND
*
Honorable Thomas B. Russell, United States District Judge for the W estern District of Kentucky, sitting by
designation.
Ms. Bah was born in Guinea in 1975. At the age of seven, Bah was subjected to “female
genitalia mutilation,”1 (“FGM”) as it was forced upon her by four women who held her down on the
floor, while another cut her with a knife used to cut grass. No anesthesia or sterilization was used
during the FGM, and afterwards, Ms. Bah was hospitalized with an infection, which eventually
caused her to have many health problems.2
In 1998, while living in Guinea, Ms. Bah, her husband and her father were members of an
opposition party known as “Rally of the People of Guinea” or “RPG.” Ms. Bah would organize
meetings, distribute T-shirts to women and attend RPG meetings. On December 14, 1998, following
the presidential elections in Guinea, Alpha Conde, the leader of RPG, and several of his associates,
including Ms. Bah’s husband, were arrested. She has not seen her husband since. Eight days later,
on December 22, 1998, soldiers came to Ms. Bah’s house, destroyed the contents of her home and
then proceeded to rape her.
On October 5, 2001, Ms. Bah was arrested for attending and participating at a rally in
opposition to the President of Guinea. While in prison at Camp Alpha Yaya, she was again raped,
this time by the commandant of the prison. With the assistance of the commandant, Ms. Bah was
able to escape from prison and flee to Mali.
1
“Forced female genital mutilation involves the infliction of grave harm constituting persecution on account
of membership in a particular social group that can form the basis of a successful claim for asylum...Female genital
mutilation, or FGM, is the collective name given to a series of surgical operations, involving the removal of some or all
of the external genitalia, performed on girls and women primarily in Africa and Asia. Often performed under unsanitary
conditions with highly rudimentary instruments, female genital mutilation is ‘extremely painful,’ ‘permanently disfigures
the female genitalia, [and] exposes the girl or woman to the risk of serious, potentially life-threatening complications,’
including ‘bleeding, infection, urine retention, stress, shock, psychological trauma, and damage to the urethra and
anus.’...The practice of FGM has been internationally recognized as a violation of women’s and female children’s rights.”
Abay v. Ashcroft, 368 F.3d 634, 638 (6th Cir. 2004).
2
“[T]he term ‘female genital mutilation’ has become the preferred generic term when describing any form of
physical mutilation to a female's genitals. The term “circumcision” is considered by many to be physically inaccurate
in describing the most common form of the practice, Type II (excision), which results in the complete removal of the
clitoris.” Abay, 368 F.3d at 639, n. 2.
Ms. Bah arrived in the United States at John Fitzgerald Kennedy International Airport on or
about June 29, 2002. Upon leaving Guinea, Ms. Bah left behind her three children, including her
eldest daughter, Hadja, who was subjected to FGM at the age of ten.
After arriving in the United States, Ms. Bah moved from New York City to Memphis,
Tennessee. Ms. Bah filed her application for asylum and for withholding of removal on September
3, 2002, and on February 20, 2003, INS charged that Ms. Bah was subject to removal under Section
237(a)(1)(A) of Immigration and Naturalization Act. On September 24, 2003, Judge Charles E.
Pazar (“Judge Pazar”) issued his decision denying: asylum, withholding of removal, and protection
under the U.N. Convention Against Torture. Aside from noting that he believed Ms. Bah had not
been completely forthright in answering many questions, Judge Pazar also found that Ms. Bah failed
to meet her burden of proving a clear probability of persecution, as required in order to be withheld
from removal and/or receive protection under the U.N. Convention Against Torture. Ms. Bah
appealed this decision to the BIA on October 22, 2003.
While awaiting a decision on her appeal, Ms. Bah gave birth to a fourth child on May 14,
2004; a daughter named Diariou. On January 18, 2005, the BIA adopted the decision of Judge Pazar,
and dismissed Ms. Bah’s appeal. Between May 14, 2004, and January 18, 2005, Ms. Bah did not
inform the BIA about the birth of her daughter.
On April 3, 2006, Ms. Bah filed a motion to reopen her petition, contending that the birth of
Diariou changed Ms. Bah’s circumstances because if she were to be deported, her daughter would
be subjected to FGM upon her return to Guinea. In addition, Ms. Bah argued that there would be
a high likelihood that she would have to watch her daughter be subjected to FGM if Ms. Bah was
forced to return with her to Guinea.
On May 2, 2006, the BIA denied Ms. Bah’s motion to reopen, concluding that her motion
to reopen was untimely because it was received over 90 days after the BIA’s initial decision on
January 18, 2005. The BIA also stated that the evidence filed with the motion was insufficient to
warrant a reopening based on changed circumstances in Guinea, noting that Ms. Bah had failed to
show changed circumstances in Guinea that would excuse her lack of timeliness in filing her motion
to reopen.
STANDARD OF REVIEW
This Court reviews the denial of a motion to reopen a petition for asylum for an abuse of
discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992). An abuse
of discretion can be shown when the BIA offers no “rational explanation, inexplicably depart[s] from
established policies, or rest[s] on an impermissible basis such as invidious discrimination against a
particular race or group.” Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982). This Court reviews
legal issues de novo. Harchenko v. INS, 379 F.3d 405, 409 (6th Cir. 2004).
“The scope of review is exceedingly narrow because a lack of statutory standards provides
the Attorney General with unusually broad discretion...Nevertheless, the BIA may be reversed if it
fails to actually consider the facts and circumstances respecting each petitioner’s claim of extreme
hardship...Such a decision would be reversed as arbitrary or capricious.” Daneshvar v. Ashcroft, 355
F.3d 615, 626 (6th Cir. 2004)(quoting Hazime v. INS, 17 F.3d 136, 140 (6th Cir.1994) (citations
omitted)). This Court may review the denial of an asylum application for untimeliness where the
appeal seeks review of constitutional claims or matters of statutory construction, but it lacks
jurisdiction to do so where the appeal seeks review of discretionary or factual questions. Almuhtaseb
v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006). “Generally speaking, a court of appeals should
remand a case to an agency for decision of a matter that statutes place primarily in agency hands.”
INS v. Ventura, 537 U.S. 12, 16 (2002).
“[T]he Board’s denial of relief may be affirmed only on the basis articulated in the decision
and this Court may not assume that the Board considered factors that it failed to mention in its
opinion.” Daneshvar, 355 F.3d at 626. “Motions for reopening of immigration proceedings are
disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis
of newly discovered evidence.” Doherty, 502 U.S. at 323 (citing INS v. Abudu, 485 U.S. 94, 107-08
(1988)). This Court does not review the decision of the Immigration Judge; rather, “judicial review
is specifically limited to the decision of the BIA.” Hazime, 17 F.3d at 140.
ANALYSIS
8 C.F.R § 1003.2(c)(3)(ii) states that “changed circumstances” must arise “in the country of
nationality or in the country to which deportation has been ordered” in order to excuse the time
limitation within the regulation. These “changed circumstances” must relate to conditions in the
country of the nationality of the applicant or in the country in which deportation has been ordered.
See Haddad v. Gonzales, 437 F.3d 515, 517-18 (6th Cir. 2006). Without a showing of changed
country conditions under 8 C.F.R § 1003.2(c)(3)(ii), an applicant is subject to the 90-day deadline
for filing a motion to reopen as mandated under 8 C.F.R § 1003.2(c)(2), and the BIA may deny the
applicant’s motion to reopen. Haddad, 437 F.3d at 518.
In her Motion to Reopen filed on April 3, 2006, Ms. Bah noted 8 C.F.R § 1003.2(c)(2) as the
relevant law supporting her motion to reopen. Ms. Bah claimed that she had experienced changed
circumstances after she had appeared in front of the Immigration Judge that warranted granting her
motion to reopen. Ms. Bah titled this section of her motion as “Respondent’s Claim for Asylum is
Based on Changed Circumstances.” Specifically, Ms. Bah, through counsel, stated:
[Ms. Bah] gave birth to Diariou, on May 14, 2004 in Richmond, Virginia.
Respondent’s circumstances have changed since she made her application for asylum
in the United States before the [Immigration Judge] in August 2002. At that time,
[Ms. Bah’s] claim was based on her involvement with a political party. [Ms. Bah] did
not have a little girl born in the U.S. who could be subjected to the same type of
torture [Ms. Bah] endured from FGM. Even though, [Ms. Bah] herself had been
circumcised at the time, she didn’t have Diariou who would be forced to undergo the
same procedure if she were deported. [Ms. Bah’s] fear that she would not able [sic]
to protect her daughter from FGM if she returns to her country did not exist.
The changed circumstances addressed by Ms. Bah in her motion to reopen were personal
circumstances because they did not deal with changed conditions in Guinea, but instead related to
Ms. Bah’s personal situation in the United States concerning the birth of her daughter, and the
potential implications of the birth concerning her daughter’s subjection to FGM upon her deportation
to Guinea. See Haddad, 437 F.3d at 517-18.
In its one paragraph decision of May 2, 2006, the BIA denied the motion to reopen Ms. Bah’s
petition for asylum. Citing 8 C.F.R § 1003.2(c)(2), the BIA stated that a motion to reopen a previous
final decision must be filed within 90 days after the date of the decision. In its review, the BIA noted
that Ms. Bah filed her motion to reopen more than 90 days after its initial decision on January 18,
2005. Further, the BIA held that the evidence submitted in support of the motion to reopen was
“insufficient to warrant reopening for consideration of asylum based on changed circumstances in
Guinea.” In addressing Ms. Bah’s fear that her daughter may have to experience FGM should
Diariou return with her to Guinea and that Ms. Bah was subjected to FGM in Guinea at age 7, the
BIA held that Ms. Bah “had not shown changed circumstances which would excuse her failure to
timely file the motion to reopen.” In addition, the BIA noted that it made its initial decision on
January 18, 2005, and Ms. Bah’s daughter was born on May 14, 2004.
The BIA did not abuse its discretion in finding that Ms. Bah did not show “changed
circumstances” under 8 C.F.R § 1003.2(c)(2)(ii) that would excuse her failure to file within 90 days
because Ms. Bah did not allege changed circumstances in Guinea, but instead put forth changed
personal circumstances here in the United States. In addition, Ms. Bah knew of her changed personal
circumstances at the time the BIA made its initial decision on January 18, 2005, yet she did not file
her petition to reopen until well past the 90 day deadline. In its order, the BIA provided a rational
explanation for its decision and properly considered the facts related to Ms. Bah’s claim.
Accordingly, the BIA did not abuse its discretion when reviewing Ms. Bah’s motion to reopen her
asylum application.
CONCLUSION
For the reasons set out above, we DENY the petition for review.