Aminata Dieng v. William Barr ( 2020 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0023p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AMINATA DIENG; OUSSEYNOU NDIAYE LO, ┐
Petitioners, │
│
> No. 19-3010
v. │
│
│
WILLIAM P. BARR, Attorney General, │
Respondent. │
┘
Appeal from the Board of Immigration Appeals;
Nos. A 088 197 111; A 093 428 046.
Decided and Filed: January 22, 2020
Before: BATCHELDER, WHITE, and THAPAR, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Danielle Beach-Oswald, BEACH-OSWALD IMMIGRATION LAW
ASSOCIATES, PC, Washington, D.C., for Petitioners. Jennifer A. Singer, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
BATCHELDER, J., delivered the opinion of the court in which THAPAR, J., joined.
WHITE, J. (pp. 11–16), delivered a separate dissenting opinion.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Aminata Dieng and her husband, Ousseynou
Ndiaye Lo, petition for review of the order of the Board of Immigration Appeals (Board or BIA)
denying their motion to reopen their application for asylum. We hold that the Board did not
No. 19-3010 Dieng v. Barr Page 2
abuse its discretion when it found that petitioners failed to provide material evidence of changed
country conditions in Senegal and therefore DENY the petition.
I.
Aminata Dieng and Ousseynou Ndiaye Lo are citizens and natives of Senegal.
Lo entered the United States in 1997 and although he entered the country on a non-immigrant
student visa to enroll at the University of Tennessee, he never attended the university. Dieng
used a false passport to join Lo in the United States in 2003. They married in 2005 and Dieng
gave birth to a daughter a year later.
A.
In 2007, Dieng applied for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT), claiming her husband as a derivative applicant.1 Dieng
alleged she was a member of the Fulani tribe and that she escaped Senegal because certain
relatives attempted to subject her to female genital mutilation (FGM). She asserted that if she
were removed to Senegal, she and her daughters2 would be subjected to FGM by her relatives.
An Immigration Judge (IJ) held a removal hearing in 2008. Dieng and Lo both testified
that Lo is a member of the Wolof tribe, an ethnic group that does not regularly practice FGM.
Dieng stated that Senegalese nationals would therefore consider their daughter a member of the
Wolof tribe, governed by Wolof traditions. Dieng conceded that if she returned to Senegal, it
would be “too late for [her relatives] to have [her] circumcised” because she was married and
had two children. AR 501. But Dieng and Lo feared that their daughter might be circumcised if
she accompanied her parents to Senegal. Lo testified that if he and his wife returned to Senegal,
his brother, an American citizen, could take care of their daughter. The IJ denied petitioners’
request for asylum, withholding of removal, and protection under the CAT.
1
We fully described the details of petitioners’ asylum proceedings in Dieng v. Holder, 698 F.3d 866 (6th
Cir. 2012). We revisit only the facts necessary to give context to the present petition.
2
Dieng’s oldest daughter, Mariame, was born in Gambia in 2003, as a result of a previous relationship in
Senegal. Mariame has remained in Gambia with Dieng’s mother since her birth.
No. 19-3010 Dieng v. Barr Page 3
The BIA denied Dieng and Lo’s subsequent appeal. The BIA found that Dieng
established past persecution. AR 384; see 8 C.F.R. § 208.13(b)(1) (providing that an applicant
will establish refugee status if she establishes persecution “on account of . . . membership in a
particular social group”). But because Dieng testified that she no longer feared FGM, the BIA
found that a “fundamental change in circumstances” rebutted the presumption of a “well-founded
fear of future persecution.” AR 384; see 8 C.F.R. § 208.13(b)(1)(i)(A).
The BIA also held that it was reasonable for Dieng and Lo to internally relocate to
another area of Senegal to avoid FGM. AR 384; see 8 C.F.R. § 208.13(b)(1)(i)(B) (providing
that an IJ may deny the asylum application if the applicant “could avoid future persecution by
relocating to another part of the applicant’s country of nationality”). To support this conclusion,
the BIA cited:
(1) Lo’s testimony that he was a member of the Wolof tribe, which does not
practice FGM; (2) the dearth of evidence showing that Dieng’s Fulani relatives
(if still alive) would learn of her whereabouts in Senegal and seek her out to
attempt FGM; and (3) the State Department’s reports indicating that while the
outlawed practice of FGM is common in Senegal, it is not universal.
Dieng v. Holder, 698 F.3d 866, 871 (6th Cir. 2012).
Finally, the BIA held that Dieng failed to establish a well-founded fear of persecution
based on her claim that her daughter would be subjected to FGM if they returned to Senegal.
AR 385. The BIA “reiterated the reasonable option of relocation to a safe area” within Senegal
and noted that their daughter, as a member of the Wolof tribe, would not be subject to FGM.
Dieng, 698 F.3d at 871. In an order dated March 25, 2010, the BIA dismissed petitioners’ appeal
but granted Dieng and Lo sixty days’ voluntary departure. AR 383–87. We denied Dieng and
Lo’s petition for review. See id. at 866.3
3
In Dieng and Lo’s first petition, we considered the 2001 U.S. Department of State’s report on FGM,
which:
estimated that approximately twenty percent of the female population in Senegal has undergone
FGM, with ninety percent of these females being between the ages of two and five. The Wolof
and Serere ethnic groups, and most Christians, do not engage in FGM, and it is hardly practiced at
all in most heavily populated urban areas. The practice of FGM is primarily concentrated in rural
areas amongst the Halpularen (Peul and Toucouleur) ethnic group.
Dieng, 698 F.3d at 873.
No. 19-3010 Dieng v. Barr Page 4
B.
Dieng and Lo nevertheless remained in the United States and their second daughter was
born here in 2013. In early 2018, the Department of Homeland Security (DHS) began the
process of enforcing the BIA’s 2010 order and directed Dieng and Lo to renew their Senegalese
passports. Only then did the petitioners file a motion to reopen their asylum application, alleging
that changed conditions in Senegal warranted reopening. See 8 C.F.R. § 1003.2(c)(3)(ii).
Dieng and Lo proffered several documents in support of their motion. Personal affidavits
and letters from several family members purported to show that certain relatives in Senegal
learned of petitioners’ impending removal from the United States and renewed their demands
that Dieng and her daughters undergo FGM.4 In his affidavit, Lo alleged: that he received letters
from both of his parents asking about his return so that FGM could be performed on Dieng and
their daughters; that his mother was a member of the Fulani tribe and had always demanded that
Dieng and her daughters be circumcised; and that Lo’s two sisters were circumcised and were
making efforts to flee Senegal. The affidavits further alleged that the Senegalese government
would not protect Dieng or her daughters from harm. To establish the prevalence of FGM in
Senegal, Petitioners included a charitable organization’s 2015 report entitled “Country Profile:
FGM in Senegal,” as well as the 2016 U.S. Department of State report on Senegal.5
The BIA held that the petitioners’ motion was time-barred under 8 U.S.C. § 1229a(c)(7)
and 8 C.F.R. § 1003.2(c)(2), which require aliens to file a motion to reopen within 90 days of the
BIA’s final order. AR 3. Although an exception exists for those seeking to apply for asylum
based on changed country conditions, see 8 C.F.R. § 1003.2(c)(3)(ii), the BIA held that Dieng
and Lo failed to “submit [] persuasive new evidence of changed country conditions arising in
[Senegal] that would affect their asylum claim.” AR 4. The BIA explained:
4
Dieng also alleged that the stress from the fear of FGM caused her to miscarry and included a physician’s
letter indicating that she miscarried in August 2017. The record also includes a psychological evaluation stating that
Dieng suffers from PTSD.
5
The 2016 U.S. Department of State’s report provided that “17 percent of girls below age 15 had been
subjected to FGM [], but the practice continued to decline.” AR 361–62.
No. 19-3010 Dieng v. Barr Page 5
First, we give the statements in the [petitioners’] affidavits minimal weight as
they are self-serving and speculative. Second, the statements in their affidavits
regarding current country conditions in Senegal are not based on personal
knowledge. Third, the multiple statements from the [petitioners’] family
members are not persuasive because they are from interested witnesses,
speculative, and not corroborated with objective evidence. More importantly, the
new evidence presented does not overcome the central basis for our prior denial
of their claim - that the [petitioners’] can internally relocate. Moreover, the
[petitioners’] assertions that the Senegalese government is powerless to stop the
[petitioners’] relatives who allegedly want to FGM [sic] done are not
substantiated. Thus, the evidence presented does not demonstrate a change in
country conditions or circumstances material to the [petitioners’] claim for relief
or meet the [petitioners’] “heavy burden” of showing that if proceedings were
reopened, the new evidence offered would likely change the result in the case.
AR 4 (internal citations omitted).
The BIA held that petitioners’ fears that their daughters would be subjected to FGM
could not provide a basis for reopening the proceedings and noted that petitioners’ daughters are
United States citizens and not required to accompany their parents to Senegal. AR 4. The BIA
accordingly denied the motion to reopen and the petitioners appealed.
II.
“We review the BIA’s denial of a motion to reopen for an abuse of discretion.” Zhang v.
Mukaskey, 543 F.3d 851, 854 (6th Cir. 2008); see 8 C.F.R. § 1003.2(a) (“The decision to grant or
deny a motion to reopen or reconsider is within the discretion of the Board . . . .”). All legal
issues are reviewed de novo. Precetaj v. Sessions, 907 F.3d 453, 457 (6th Cir. 2018). We find
an abuse of discretion when the BIA’s decision “was made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible basis such as
invidious discrimination against a particular race or group.” Alizoti v. Gonzales, 477 F.3d 448,
453 (6th Cir. 2007).
Generally, a petitioner must file a motion to reopen within 90 days of the final order of
removal. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). But a motion to reopen based on
changed country conditions is excepted from the 90-day limitation if “it appears to the Board that
evidence sought to be offered is material and was not available and could not have been
No. 19-3010 Dieng v. Barr Page 6
discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1), (3)(ii). Reopening
motions must “state the new facts that will be proven at a hearing to be held if the motion is
granted” and “supported by affidavits or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B).
A.
Petitioners argue that the Board abused its discretion by failing to give a rational
explanation for its decision to deny reopening. In petitioners’ view, the Board did not adequately
explain why the new evidence failed to establish changed country conditions. Specifically,
petitioners argue that the Board erroneously ignored new evidence that: (1) Dieng and Lo’s
relatives renewed their threats to perform FGM, (2) Lo’s sisters recently fled Senegal to protect
their future daughters from FGM, and (3) FGM is practiced in Senegal despite the government’s
prohibition of the practice.6
Contrary to petitioners’ assertion, the Board adequately explained the basis for its denial
of the motion to reopen. There are
at least three independent grounds on which the BIA might deny a motion to
reopen—failure to establish a prima facie case for the relief sought, failure to
introduce previously unavailable, material evidence, and a determination that
even if these requirements were satisfied, the movant would not be entitled to the
discretionary grant of relief which he sought.
INS v. Doherty, 502 U.S. 314, 323 (1992) (internal quotation marks omitted). Here, the BIA
denied the motion on petitioners’ “failure to introduce previously unavailable, material
evidence.” See id.
As a threshold matter, we note that the Board has “broad discretion” to weigh the
credibility of the proffered evidence on a motion to reopen. Yu Yun Zhang v. Holder, 702 F.3d
878, 882 (6th Cir. 2012); see INS v. Abudu, 485 U.S. 94, 106–07 (1988) (“[T]he BIA may
determine, either as a sufficient ground for denying relief or as a necessary step toward granting
relief, whether the alien has produced previously unavailable, material evidence . . . .”).
Although the Board cannot base its decision on “cursory, summary, or conclusory statements,”
6
In their petition to this court, petitioners do not argue that they are entitled to reopening based on Dieng’s
fear that her daughters would be circumcised if they accompanied their parents to Senegal.
No. 19-3010 Dieng v. Barr Page 7
Lindor v. Holder, 317 F. App’x 492, 498 (6th Cir. 2009) (internal editing marks omitted), “[w]e
do not require the Board’s opinion to mention every piece of evidence before it or every logical
element of a motion.” Zhang, 543 F.3d at 854. Instead, we ask whether the BIA’s decision
articulated a basis to allow for meaningful appellate review. Precetaj, 907 F.3d at 459.
In this case, the Board allowed for meaningful review by explaining that petitioners failed
to establish changed country conditions. “In determining whether evidence accompanying a
motion to reopen demonstrates a material change in country conditions that would justify
reopening, the BIA compares the evidence of country conditions submitted with the motion to
those that existed at the time of the merits hearing below.” Bi Feng Liu v. Holder, 560 F.3d 485,
491 (6th Cir. 2009) (internal editing marks omitted). For example, we have found evidence of a
material change in country conditions when the petitioner showed that persecution of her social
group had “escalated” since the original immigration proceeding. See Lorenzo v. Barr, No.
18-3606, 2019 WL 4065442, at *6 (6th Cir. July 9, 2019) (quoting Yu Yun Zhang, 702 F.3d at
880).
Dieng and Lo failed to establish such a material change. The Board explained as much
when it found that petitioners’ statements “regarding current country conditions in Senegal
[were] not based on personal knowledge”; that the letters were unpersuasive because they were
“from interested witnesses, speculative, and not corroborated with objective evidence”; and that
the “assertions that the Senegalese government is powerless to stop the [petitioners’] relatives
who allegedly want to FGM [sic] done [were] not substantiated.” AR 3; see Abdelghani v.
Holder, 567 F. App’x 388, 396 (6th Cir. 2014) (finding no abuse of discretion when the BIA
“chose not to accord great weight to the affidavits of [petitioner’s] relatives because they were
from interested witnesses”) (internal quotation marks omitted); Harchenko v. INS, 379 F.3d 405,
410 (6th Cir. 2004) (“[A]n alien filing a motion to reopen based on changed country conditions
cannot rely on speculative conclusions or mere assertions of fear of possible persecution, but
No. 19-3010 Dieng v. Barr Page 8
instead must offer reasonably specific information showing a real threat of individual
persecution.”) (internal quotation marks omitted).7
Finding no material evidence of changed country conditions, the Board declined to
reopen proceedings on Dieng and Lo’s underlying asylum claim. The Board explained that it
denied petitioners’ original asylum application for failure to establish a “well-founded fear of
persecution,” AR 384–85; see 8 C.F.R. § 208.13(b)(1)(i)(B), and that “the new evidence
presented [could] not overcome the central basis for [the BIA’s] prior denial of their claim” (i.e.,
that Dieng and Lo could internally relocate). AR 3. Therefore, even if the new evidence were
credible, petitioners still failed to establish a “well-founded fear of persecution.” See Yu Yun
Zhang, 702 F.3d at 880 (“Once a petitioner establishes changed country conditions, she must
then establish a prima facie claim, or a reasonable likelihood of succeeding on the merits, for
obtaining asylum . . . .”) (internal quotation marks and italics omitted); Yousif v. INS, 794 F.2d
236, 241 (6th Cir. 1986) (“[A] motion to reopen should not be granted unless the petitioner
makes a prima facie showing that the statutory requirements for the underlying relief have been
met.”). We found no abuse of discretion when we first considered the BIA’s determination that
petitioners could reasonably relocate to avoid FGM, see Dieng, 698 F.3d at 871, and we decline
to do so in the present case.
B.
Petitioners point out that this court has compared the BIA’s role in adjudicating motions
to reopen immigration proceedings to “a trial court’s role in reviewing a motion for summary
judgment.” Trujillo Diaz v. Sessions, 880 F.3d 244, 252 (6th Cir. 2018). Petitioners therefore
contend that the BIA must “accept as true reasonably specific facts proffered by an alien in
support of her motion unless [the BIA] finds those facts to be inherently unbelievable.” Id.
(quoting Haftlang v. INS, 790 F.2d 140, 143 (D.C. Cir. 1986)). According to petitioners, the
7
The government gives numerous examples of inconsistencies between petitioners’ 2008 testimony and the
evidence offered for reopening. But in determining whether the BIA abused its discretion, we look only at “the
basis articulated in the decision and we may not assume that the Board considered factors that it failed to mention in
its opinion.” Precetaj, 907 F.3d at 458–59 (quoting Daneshvar v. Ashcroft, 355 F.3d 615, 626 (6th Cir. 2004))
(internal editing marks omitted).
No. 19-3010 Dieng v. Barr Page 9
BIA abused its discretion because it did not “explicitly find” that petitioners’ new evidence was
“inherently unbelievable.” Lorenzo, No. 18-3606, 2019 WL 4065442, at *5.
It is true that a prior panel has analogized the standard of review on a motion to reopen to
the standard of review on a motion for summary judgment. Trujillo Diaz, 880 F.3d at 252; see
also Lorenzo, No. 18-3606, 2019 WL 4065442, at *5. And we are bound by such precedent. See
6 Cir. R. 32.1(b). We note, however, that the Supreme Court has consistently analogized
motions to reopen or reconsider immigration proceedings, not to motions for summary judgment,
but to motions for relief from judgment under Federal Rule of Civil Procedure 60(b), see Kucana
v. Holder, 558 U.S. 233, 242 (2010) (citing Stone v. INS, 514 U.S. 386, 401 (1995)); Doherty,
502 U.S. at 326, or to motions for a new trial under Federal Rule of Criminal Procedure 33.
See Abudu, 485 U.S. at 110. Indeed, in Abudu, 485 U.S. at 109–10, the Supreme Court explicitly
rejected the contention that motions to reopen immigration proceedings are analogous to motions
for summary judgment:
[The Court has] never suggested that all ambiguities in the factual averments must
be resolved in the movant’s favor, and we have never analogized such a motion to
a motion for summary judgment. The appropriate analogy is a motion for a new
trial in a criminal case on the basis of newly discovered evidence, as to which
courts have uniformly held that the moving party bears a heavy burden.
Id. at 109–10 (citing Taylor v. Illinois, 484 U.S. 400, 414 n.18 (1988)). Comparing the BIA’s
adjudicatory role to that of a trial judge reviewing a motion for summary judgment is
inappropriate where “every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” Doherty, 502 U.S. at 323.
But even if the summary judgment standard analogy were correct, the BIA did, in fact,
find that petitioners’ new evidence was inherently unbelievable. When denying a motion to
reopen, we require that the BIA articulate a basis for its decision that will allow this court to
engage in meaningful review. See Precetaj, 907 F.3d at 458. Of course, such meaningful review
is possible when the BIA explicitly declares that new evidence is inherently unbelievable. But
we do not require the BIA to recite these magic words every time it denies a motion to reopen on
evidentiary grounds. So long as the BIA adequately indicates its finding that new evidence was
inherently unbelievable, we will find no abuse of discretion. See Trujillo Diaz, 880 F.3d at 253
 No. 19-3010 Dieng v. Barr Page 10
(holding that the BIA abused its discretion because it did not “make any findings” indicating that
the new evidence was “inherently unbelievable”).
Here, the BIA explained that it gave the new evidence minimal weight because: the
affidavits were “self-serving and speculative”; the petitioners’ statements concerning changed
country conditions were not “based on personal knowledge”; and the letters from petitioners’
family members were from “interested witnesses, speculative, and not corroborated with
objective evidence.” AR 4. In other words, the BIA found that the petitioners’ new evidence
was inherently unbelievable. In any event, petitioners failed to substantiate their claim that the
“Senegalese government is powerless to stop the [petitioners’] relatives” from performing FGM
on Dieng and her daughters. Id. Such an unsubstantiated claim cannot rise to the level of a
“reasonably specific fact” that the BIA is required to accept as true. See Trujillo Diaz, 880 F.3d
at 252. We therefore find no abuse of discretion because the BIA gave a “rational explanation”
for its determination that petitioners’ new evidence lacked credibility. See Alizoti, 477 F.3d 448
at 453.
III.
For the foregoing reasons, we DENY the petition for review.
No. 19-3010 Dieng v. Barr Page 11
_________________
DISSENT
_________________
HELENE N. WHITE, Circuit Judge, dissenting. I do not agree that the BIA acted within
its discretion in reviewing Petitioners’ motion to reopen. The BIA failed to apply existing
precedent and dismissed reasonably specific evidence presented in support of Petitioners’ claims
without providing adequate rationale.
I. Background
The majority omits the following details of Petitioners’ story, which go back to Dieng’s
childhood and are, in my view, critical to understanding the posture of this case.
At the hearing before the immigration judge in 2007, where both Dieng and Lo were
found to be credible witnesses, Dieng described her family’s history with the practice of FGM.
Dieng testified that in 1981, her older sister had been subjected to FGM and died of a resulting
infection. After that, her parents decided they opposed FGM and would not let Dieng be
subjected to it. However, two of her uncles and her aunt felt strongly that Dieng should be
circumcised. When Dieng was three, they came to her house and attempted to perform the
procedure. When her mother tried to run from the house with Dieng, Dieng’s uncle burned
Dieng on the arm with a hot iron. Dieng’s uncles continued to threaten her parents and, in May
of 2001—when Dieng was about nineteen—her uncles and aunt returned to her family home and
threatened to kill Dieng if they weren’t allowed to circumcise her. A fight ensued, and her uncle
hit her with a stick, threatened her with a knife, and cut the bottom of her foot before her
neighbors intervened. That incident precipitated her decision to flee Senegal, first for Gambia,
then for the United States.
This information formed the basis for the BIA’s finding that Dieng had established past
persecution based on her membership in a particular social group. However, because Dieng had
testified that she believed it was too late for her relatives to subject her to FGM and that she was
mainly concerned about her U.S. citizen daughters being subjected to FGM, the BIA found that
Dieng had not established a well-founded fear of future persecution. The BIA also found that
No. 19-3010 Dieng v. Barr Page 12
Dieng and Lo could relocate to a part of Senegal where FGM is practiced less frequently,
allowing Dieng and her daughters to avoid the threat of FGM. The BIA found it significant that
the Wolof tribe, which Lo belongs to, does not generally practice FGM. The BIA added that
with respect to Dieng’s family, Petitioners “could not provide any concrete evidence of how
these individuals would learn of their whereabouts, nor did they know if these individuals were
even still alive.” (R. 6-2, PID 88.)
As the majority states, Petitioners did not seek to reopen their asylum application until
the Department of Homeland Security began the process of enforcing the BIA’s 2010 order.
But, Dieng explained that upon learning that Petitioners and their daughters faced imminent
return to Senegal, relatives—including those whom the BIA had previously doubted could learn
of Petitioners’ whereabouts—called Dieng and renewed their threats to perform FGM on her and
her daughters. The letters from family members offered in support of Dieng’s affidavit support
her account. Lo offered an affidavit and letters from family members explaining that his family
was also seeking information about Petitioners’ return to Senegal and that seeking safety with
them would not be an option given his mother’s belief in FGM. These letters also expressed that
the Senegalese government would not protect Dieng and her daughters from Petitioners’
relatives.
Petitioners supported their claims with a 2016 Department of State report stating that
although FGM was criminalized in Senegal, the government had not prosecuted anyone for
performing FGM during the previous year. The report stated that although the practice had
declined overall and the percentage of Senegalese girls subjected to FGM was 17%, the
Toucouleur (Fulani) ethnic group still practiced some of the most extreme forms of FGM. (Id. at
PID 362.) A 2015 report produced by a charitable organization gave a slightly higher estimation
of FGM prevalence at 25.7%, and noted that issues with self-reporting following the
criminalization of FGM have contributed to difficulty measuring prevalence rates. (Id. at PID
300.)
No. 19-3010 Dieng v. Barr Page 13
II. Changed Country Conditions
With respect to the BIA’s finding that Petitioners failed to produce previously
unavailable, material evidence of changed country conditions, the majority correctly recognizes
the BIA’s broad discretion. See INS v. Abudu, 485 U.S. 94, 96 (1988). But this discretion is not
limitless; the BIA abuses its discretion when it exercises it “in a way that is arbitrary, irrational
or contrary to law.” Daneshvar v. Ashcroft, 355 F.3d 615, 625-26 (6th Cir. 2004). Regardless of
the most apt analogy, our precedent unambiguously required the BIA to “accept as true
reasonably specific facts proffered by [Petitioners] in support of [their] motion to reopen unless it
[found] those facts to be inherently unbelievable.” Trujillo Diaz v. Sessions, 880 F.3d 244, 252
(6th Cir. 2018) (quoting Haftlang v. INS, 790 F.2d 140, 143 (D.C. Cir. 1986)). See also Pablo
Lorenzo v. Barr, 2019 WL 4065442, at *5 (6th Cir. July 9, 2019) (quoting Trujillo, 880 F.3d at
253) (finding that the BIA abused its discretion where it failed to “either ‘explicitly find’ that
[the petitioner’s] reasonably specific facts were ‘inherently unbelievable’ or ‘accept’ [his] facts
‘as true’ . . . .”); Juan-Pedro v. Sessions, 740 F. App’x 467, 471 (6th Cir. 2018) (same). Insofar
as the majority declines to apply this precedent, I disagree.
The majority relies on I.N.S. v. Abudu to support its assertion that “[c]omparing the BIA’s
adjudicatory role to that of a trial judge reviewing a motion for summary judgment is
inappropriate.” (Maj. Op. at 9.) But the Court in Abudu held only that courts of appeals
reviewing the BIA’s denials of motions to reopen for failure to introduce previously unavailable,
material evidence must apply an abuse of discretion standard. 485 U.S. at 104-05. Nothing in
that holding requires us to give limitless discretion to the BIA. Thus, we—and our sister
circuits—have required the BIA to carefully consider reasonably specific evidence presented in
support of a motion to reopen and either accept it as true or find it inherently unbelievable. See,
e.g., Trujillo, 880 F.3d at 253; Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (“[F]acts
presented in affidavits supporting a motion to reopen must be accepted as true unless inherently
unbelievable.”); Gebremichael v. I.N.S., 10 F.3d 28, 40 (1st Cir. 1993) (noting that the BIA
should accept as true facts stated in an affidavit supporting a motion to reopen); Fessehaye v.
Gonzales, 414 F.3d 746, 755 (7th Cir. 2005) (same); Shardar v. Attorney General of U.S.,
503 F.3d 308, 317 (3d Cir. 2007) (evidence presented in affidavit in support of motion to reopen
No. 19-3010 Dieng v. Barr Page 14
“must be accepted as true at the motion-to-reopen stage”). Conclusory statements regarding an
affidavit’s speculative or incredible nature that are unsupported by the record are insufficient in
this respect. See 880 F.3d at 253.
In Trujillo, the petitioner submitted a declaration from her father supporting her claim
that her familial membership made her a target for violence. Id. at 252. The declaration
included recitations of gang members’ statements that they wanted to find the petitioner and her
family because of her brother’s refusal to join the gang. Id. The BIA found that the petitioner
had failed to show that she would be targeted based on her familial membership because the
declaration she offered was “speculative and conclusory.” Id. Because the declaration contained
specific facts linking the petitioner’s familial membership to the threats against her, we
concluded that the only way the BIA could have considered the declaration speculative or
conclusory was if it had considered the facts within it to be “inherently unbelievable.” Id. at 253.
However, the BIA did not explicitly make such a finding. Id. “Nor did it make any findings that
would indicate that it reached this conclusion,” such as “internal inconsistencies” in the
declaration or a “determination that [the] affidavit was incompatible with some other
incontrovertible piece of evidence.” Id. Because it did not make such a finding, we concluded
that the BIA should have accepted the facts in the declaration as true. Id.
The BIA made a similar error here. It dismissed Petitioners’ affidavits as “speculative,”
“not based on personal knowledge,” and “self-serving,” and found that “the multiple statements
from the [Petitioners’] family members are not persuasive because they are from interested
witnesses, speculative, and not corroborated with objective evidence.” (R. 6-2, PID 4.) Yet the
affidavits include reasonably specific facts describing changed circumstances in Senegal. For
example, Dieng stated in her affidavit that once she and her husband renewed their passports to
return to Senegal around February of 2018, her uncles began calling her demanding to know the
date of their arrival and demanding that she and her daughters be subjected to FGM. She
described her family’s anger with her for not “being cut” and not allowing her daughters to be
cut. (Id. at PID 65.) These claims are consistent with statements in letters from the family,
including a letter from Dieng’s cousin—who herself states she was subjected to FGM as an
adult—explaining that Dieng’s uncles and aunts have “harassed” her to find out about Dieng and
No. 19-3010 Dieng v. Barr Page 15
her family and plan to “put their hands on all of you to perform the FGM and show respect to our
Fulani culture.” (Id. at PID 153.) Other letters contain similar statements. (See, e.g., Letter
from Ndeye Lo, id. at PID 146-47 (“My Mother is well aware of your wife Aminata and your
daughter’s situation, knowing that your entire family will be sent home soon due to your status
and your wife status. . . .Trust me, they will have FGM done on them as soon as they get to
Senegal.”).)
As in Trujillo, the BIA could only have found this evidence to be speculative,
uncorroborated, and not based on personal knowledge if it found the declarations, letters, and
reports provided by Petitioners to be inherently unbelievable. As described above, the affidavits
contain reasonably specific facts based largely on personal communications from family
members in Senegal. The accompanying letters, especially the letter from Dieng’s cousin
describing her own experience as an adult subjected to FGM, corroborate Petitioners’ statements
about the new threats against Dieng and her daughters. And although the DHS and charitable
organization reports suggest that overall rates of FGM in Senegal have decreased, they also
indicate that the practice remains prevalent among many ethnic groups, including the group to
which Dieng belongs.
But the BIA did not find the evidence presented by Petitioners to be inherently
unbelievable. Nor did it make other findings that would suggest as much—i.e., findings of
internal inconsistencies or inconsistencies with other, incontrovertible evidence.1 See 880 F.3d
at 253. Without finding the declarations and letters to be inherently unbelievable, the BIA
should have accepted the reasonably specific facts within them to be true. Id. Its failure to do so
was an abuse of discretion.
1
The majority maintains that even if the BIA was required to either accept the reasonably specific facts
asserted by Petitioners as true or find them inherently unbelievable, the BIA met its obligation because it did find the
evidence inherently unbelievable. I disagree that the BIA made such a finding. Although the BIA need not always
use the phrase “inherently unbelievable” to discredit evidence presented in a motion to reopen, where, as here,
petitioners present specific, consistent evidence of threats of violence against them, the BIA must offer more than
conclusory statements as to the “speculative” or “uncorroborated” nature of the evidence to demonstrate that it
considered the evidence inherently unbelievable. See Trujillo, 880 F.3d at 253.
No. 19-3010 Dieng v. Barr Page 16
III. Prima Facie Eligibility
The BIA found that Petitioners failed to establish a well-founded fear of future
persecution because “the new evidence presented does not overcome the central basis for [its]
prior denial of their claim—that the respondents can internally relocate.” (R. 6-2, PID 4.) The
BIA also concluded that “the respondents’ assertions that the Senegalese government is
powerless to stop the respondents’ relatives who allegedly want to [sic] FGM done are
unsubstantiated.” (Id.)
It may be true that when Petitioners first presented their claims in 2008, they failed to
show that they could not safely relocate in Senegal or that the government was unable or
unwilling to protect Dieng and her children. But that was 2008. In 2019, Petitioners presented
new evidence in support of their argument that they cannot safely relocate to another part of
Senegal and that the Senegalese government will not protect them. For example, Petitioners
submitted statements expressing that their families began actively seeking information about
their return to Senegal in 2018 and explaining that the family had found Dieng’s adult cousin
upon her own return to the country and had performed FGM on her against her will. They also
submitted reports showing that despite the criminalization of FGM, it is still practiced with
impunity. Rather than considering this evidence and explaining its insufficiency, the BIA
elected to rest on its previous denial of Petitioners’ claim.
That too is reversible error. Although the BIA can choose to base its denial of a motion
to reopen on any independent ground, “once it elects the ground(s) on which to base its ruling,
the BIA needs to analyze and explain the basis on which it decides against a petitioner.” Lindor
v. Holder, 317 F. App’x 492, 499 (6th Cir. 2009). It cannot rely on “[c]ursory, summary, or
conclusory statements.” Daneshvar, 355 F.3d at 626. That is precisely what the BIA did in this
case.
IV. Conclusion
For the foregoing reasons, I would grant the petition for review, vacate the BIA’s
decision, and remand for further proceedings.