Fallou Ndiaye v. William P. Barr , 931 F.3d 656 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1135
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Fallou N’Diaye
lllllllllllllllllllllPetitioner
v.
William P. Barr, Attorney General of the United States1
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: January 15, 2019
Filed: July 24, 2019
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Before BENTON, MELLOY, and KELLY, Circuit Judges.
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MELLOY, Circuit Judge.
In 2005, Petitioner Fallou N’Diaye was placed in removal proceedings for
overstaying his visa. He applied for asylum, withholding of removal, and protection
1
William P. Barr has been appointed to serve as Attorney General of the United
States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
under the Convention Against Torture (“CAT”). An immigration judge denied his
application, finding that he had not met his burden of proof on the merits and
ordering him removed. The BIA affirmed. Thereafter, N’Diaye filed a motion to
reopen with the BIA because he had married a United States citizen after the
immigration judge issued the removal order. The BIA granted the motion, and
N’Diaye was placed in another round of removal proceedings.
In the second round of removal proceedings, a second immigration judge
ordered N’Diaye removed. The second immigration judge concluded that N’Diaye
was ineligible to adjust his status because he had previously provided material
support to a terrorist organization. The BIA ultimately affirmed on the same grounds.
N’Diaye filed a petition for review of the BIA’s decision with this Court. We deny
the petition.
I. Background
A. The First Round of Proceedings
N’Diaye is originally from Tindody, Senegal. He was legally admitted to the
United States in September 2003 as a non-immigrant visitor with authorization to
remain in the country for no more than six months. He overstayed his visa. In 2005,
he was placed in removal proceedings.
N’Diaye applied for asylum, withholding of removal, and CAT protection. In
October 2008, the immigration judge held a hearing on his application. Relevant to
this appeal, N’Diaye said that he had been raised in Senegal for most of his childhood
years. His mother was dead, but his father was alive. They had both been members
of the Movement of Democratic Forces of Casamance (“MFDC”), serving as
“representatives of the MFDC in the town where they used to live.” N’Diaye
explained that “[e]verything [a person] needed to know about the movement MFDC”
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could be learned from his parents, and “if [the person] wanted to become a member
of the MFDC, they were the contacts.”
N’Diaye testified that he joined the MFDC around September 1998. He
“belong[ed] to . . . a particular section of the MFDC,” the goal of which was “to
recruit new members.” According to N’Diaye, the goal of the MFDC when he joined
was to achieve “independence from Senegal” for the Casamance region. He
explained how the MFDC had “started . . . in the political arena, trying to get
independent.” However, because “the president didn’t keep up with his promise,”
members of the MFDC “started using force” sometime in the 1980s.
N’Diaye explained that he never advocated the use of force against the
government, nor did he ever take any action to harm another person in furtherance of
the MFDC’s goals. However, on cross-examination, he explained that when he
joined the MFDC, he was aware that it was “an armed separatist movement” that
fought with the Senegalese government. He claimed that the MFDC only fought
soldiers; it did not kill Senegalese civilians. Reports to the contrary, he explained,
were fabricated by the Senegalese government to make the MFDC look bad.
Nevertheless, N’Diaye knew when he joined the MFDC that its members had
weapons and used them against Senegalese soldiers.
N’Diaye did much to support the MFDC. He claimed that he helped recruit
approximately 50 people to the MFDC by “tell[ing] them about the . . . movement,
help[ing] them finance wise and giv[ing]them the information about the MFDC.” He
explained that he had been giving money to the MFDC on a monthly basis since he
entered the United States in 2003. He also sent clothes and other supplies to leaders
of the MFDC. He estimated that he had given approximately $700 or $800 of his
own money to the MFDC.
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N’Diaye’s testimony caused the government to argue at closing that he should
be statutorily barred from receiving relief because he had materially supported a
terrorist organization. See 8 U.S.C. 1182(a)(3)(B)(iv)(VI) (rendering an alien who
has “commit[ted] an act that the actor knows, or reasonably should know, affords
material support” to a terrorist organization inadmissible). In the interest of fairness,
the immigration judge continued the hearing to allow N’Diaye to respond to the
government’s newly raised argument. The parties submitted supplemental
documentation about the MFDC, and the government submitted a brief arguing in
favor of applying the bar. The immigration judge then held a final merits hearing.
At the final hearing, N’Diaye testified about the structure of the MFDC. He
explained that the MFDC is comprised of two factions: (1) the armed rebels who
fought with the government and (2) the “other wings,” led by “Abbe Diamacoune,”
that negotiated with the government in a peaceful way. N’Diaye later clarified that
Abbe was a title that meant priest; Diamacoune’s first name was really Augustin.
N’Diaye stated that both factions had their own chief and that members of different
ethnic backgrounds made up the different factions—the peaceful faction was
predominantly composed of people from his and one other background, whereas
people from a variety of ethnic groups who spoke different dialects made up the rebel
faction. Critically, however, on cross-examination, N’Diaye said that despite having
“their own leader[s],” the two factions were “the same organization.” N’Diaye further
testified that he never possessed or used a weapon while he was a member of the
MFDC, nor did he ever have contact with or associate with the rebel faction. The
immigration judge heard closing arguments on the matter and permitted the parties
to submit further briefing one more time before she rendered her decision.
The immigration judge orally announced her decision to deny N’Diaye’s
application for relief on September 29, 2009. Regarding asylum, the immigration
judge said that N’Diaye failed to offer evidence of extraordinary or changed
circumstances to excuse his failure to file an application for asylum within one year
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of his arrival date; therefore, she declined to treat it as an asylum application. She
concluded that the government had met its burden of showing that the material-
support bar “may apply.” See 8 C.F.R. § 1240.8(d). However, she also concluded
that N’Diaye met his burden of “proving that the terrorism bar d[id] not apply”
because N’Diaye’s testimony and documentary evidence established that the MFDC
was made up of two factions and N’Diaye only supported the peaceful faction. She
found that N’Diaye’s testimony regarding his fear of returning to Senegal was not
credible. She also found that his other evidence was insufficient to establish a
credible fear of returning. She thus determined that N’Diaye was ineligible for
withholding of removal and CAT relief. Both N’Diaye and the government appealed.
The BIA affirmed the immigration judge’s decision in April 2012. The BIA
held that there was “no clear error in [the] Immigration Judge’s adverse credibility
assessment” or her factual findings. Moreover, the BIA concluded that “the record
simply d[id] not contain enough credible evidence for [N’Diaye] to meet his burden
of proof for withholding of removal” and CAT protection. The BIA declined to
address the government’s argument regarding the material-support bar.
B. The Second Round of Proceedings
The BIA reopened N’Diaye’s case in September 2012 because he had married
a U.S. citizen during the pendency of his appeal to the BIA and his wife had filed an
alien-relative visa petition on his behalf. The BIA concluded N’Diaye had submitted
new evidence that “would likely change the result in the case.” The BIA, however,
did not address the government’s argument regarding the material-support bar.
Instead, the BIA remanded the case to the immigration judge “for further
proceedings.”
N’Diaye had his case transferred to a second immigration judge in Kansas City,
Missouri, and applied to adjust his status. At a merits hearing before the second
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immigration judge, N’Diaye and his wife testified about their marriage, and N’Diaye
testified about his involvement with the MFDC. He claimed that when he was a
member of the MFDC, he would “attend meetings” and “go door to door with the
neighbors, try[ing] to inform them and have them join the movement.” His actions
were solely limited to recruiting others. He explained that the MFDC “was a non-
violent organization” but that “there were other organizations at that time, multiple
organizations that were fighting for independence, but in a violent way.” He did not
know much about those groups because he had “never been [a] member of those
groups.” He stated that the violent groups were “separate and different from [the]
MFDC,” with “their own leaders” and “their own agenda.”
On cross-examination, the government questioned N’Diaye about his testimony
before the first immigration judge. N’Diaye contradicted that earlier testimony,
stating that the MFDC was not an armed separatist movement. In a confusing manner
he explained that, to his knowledge, the political wing and the more militant wings
of the MFDC were “not involved.” There were “several groups that would engage
in” physical fighting, but his “was a non-violent group.” It “would not engage in
fight[s],” just “political negotiations.” When asked why he had earlier stated that his
organization had weapons and fought against government soldiers, N’Diaye
suggested that the court-appointed interpreter may not have accurately translated what
he said at earlier proceedings. The second immigration judge heard closing
arguments and took the matter under advisement.
In October 2014, the second immigration judge issued a written decision. He
held that the material-support bar applied and denied N’Diaye’s adjustment-of-status
application. The second immigration judge explained that the documents both parties
submitted established that the MFDC, even the peaceful wing N’Diaye claimed he
belonged to, engaged in various acts of violence that qualified it as a terrorist
organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III) (“Tier III”). The second
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immigration judge concluded that N’Diaye’s provision of “nearly $1,000.00” to the
MFDC and his recruitment of “approximately 50 people” for the organization
constituted material support. The second immigration judge credited N’Diaye’s
testimony regarding his membership in, and support of, the MFDC because it had
been consistent with the testimony N’Diaye had given to the first immigration judge.
However, the second immigration judge found that N’Diaye’s “testimony regarding
his knowledge of the activities of the MFDC was not credible.” (Emphasis omitted).
The second immigration judge thus concluded that N’Diaye could not carry his
burden of showing “by clear and convincing evidence that he did not know, and
should not reasonably have known, that the [MFDC] was a terrorist organization.”
The second immigration judge ordered N’Diaye removed.
The BIA ultimately affirmed the second immigration judge’s decision. The BIA
concluded that there was no legal impediment barring the second immigration judge
from reexamining the issue of whether the material-support bar applied. The BIA
agreed with the second immigration judge’s holding that the MFDC is a Tier-III
terrorist organization. The BIA explained that “the statutory definition of ‘terrorist
organization’ is broad” and stated that even “a subgroup engaging in terrorist
activities renders the whole group a terrorist organization.” The BIA also agreed with
the second immigration judge’s conclusion that N’Diaye did not establish by clear
and convincing evidence that he did not know and should not reasonably have known
that the MFDC was a terrorist organization. The BIA concluded that the second
immigration judge did not clearly err in making his credibility determination. The
BIA cited N’Diaye’s conflicting testimony and pointed out that “the documentary
evidence does not demonstrate that the political wing of the MFDC is separate and
distinct from the militant wing.” N’Diaye timely petitioned this Court to review and
reverse the BIA’s decision.
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II. Discussion
A. Standard of Review and Statutory Background
When reviewing a decision from the BIA, “[w]e review the BIA’s legal
determinations de novo, but we accord ‘substantial deference to the BIA’s
interpretation of the statutes and regulations it administers.’” Godfrey v. Lynch, 811
F.3d 1013, 1017 (8th Cir. 2016) (quoting Spacek v. Holder, 688 F.3d 536, 538 (8th
Cir. 2012)). We overturn the BIA’s findings of fact only when “they are unsupported
by substantial evidence.” Id. A factual finding is unsupported by substantial
evidence when we, after reviewing the record as a whole, “determine that it would not
be possible for a reasonable fact-finder to adopt the BIA’s position.” Juarez-
Coronado v. Barr, 919 F.3d 1085, 1088 (8th Cir. 2019) (quoting Eusebio v. Ashcroft,
361 F.3d 1088, 1091 (8th Cir. 2004)). Where, as here, the BIA has “adopted the
findings or the reasoning of the [immigration judge], we also review the [immigration
judge’s] decision as part of the final agency action.” Godfrey, 811 F.3d at 1017
(quoting Garcia-Gonzalez v. Holder, 737 F.3d 498, 500 (8th Cir. 2013)).
Under the Immigration and Nationality Act (“INA”), a nonimmigrant alien
seeking to adjust status must, among other things, be “admissible to the United States
for permanent residence.” 8 U.S.C. § 1255(a). An alien is inadmissible if he “has
engaged in a terrorist activity.” Id. § 1182(a)(3)(B)(i)(I). The INA defines the term
“engage in terrorist activity” to mean, among other things:
to commit an act that the actor knows, or reasonably should know,
affords material support, including a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or training
. . . (dd) to a [Tier-III] terrorist organization . . . unless the actor can
demonstrate by clear and convincing evidence that the actor did not
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know, and should not reasonably have known, that the organization was
a terrorist organization.
Id. § 1182(a)(3)(B)(iv)(VI). A Tier-III terrorist organization is an organization “that
is a group of two or more individuals, whether organized or not, which engages in,
or has a subgroup which engages in” terrorist activities. Id. § 1182(a)(3)(B)(vi)(III).
A terrorist activity, in turn, is:
any activity which is unlawful under the laws of the place where it is
committed (or which, if it had been committed in the United States,
would be unlawful under the laws of the United States or any State) and
which involves any of the following:
(I) The highjacking or sabotage of any conveyance (including an
aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or
continue to detain, another individual in order to compel a third
person (including a governmental organization) to do or abstain
from doing any act as an explicit or implicit condition for the
release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as
defined in section 1116(b)(4) of title 18) or upon the liberty of
such a person.
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or nuclear weapon or
device, or
(b) explosive, firearm, or other weapon or dangerous
device (other than for mere personal monetary gain),
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with intent to endanger, directly or indirectly, the safety of one or
more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
Id. § 1182(a)(3)(B)(iii). In removal proceedings, the burden is on the alien to
establish that he is eligible to adjust status. See 8 C.F.R. § 1240.8(d). If the evidence
indicates that the alien may have materially supported a terrorist organization, he
must also prove by a preponderance of the evidence that the material-support bar to
admissibility does not apply. See id.
B. Analysis
N’Diaye essentially argues that the MFDC he supported was not a terrorist
organization. Alternatively, he argues that he did not know and should not
reasonably have known the MFDC was a terrorist organization when he supported it.
We hold that N’Diaye failed to meet his burden of proof on both issues.
The evidence before the second immigration judge indicated that the material-
support bar may have applied. N’Diaye recruited approximately 50 people for the
organization and gave it nearly $1,000. Moreover, documentary evidence submitted
by both parties indicated that the MFDC was a terrorist organization when N’Diaye
supported it. During the relevant periods, the MFDC reportedly killed, wounded, and
mutilated citizens, committed assassinations, and engaged in other violence using
firearms and “other weapon[s] or dangerous device[s] . . . with intent to endanger . . .
the safety of one or more individuals” and to substantially damage property. 8 U.S.C.
§ 1182(a)(3)(B)(iii)(V)(b). The burden was thus on N’Diaye to prove the material-
support bar did not apply.
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The BIA correctly concluded that N’Diaye failed to meet his burden of proving
that the MFDC did not qualify as a Tier-III terrorist organization at the time he
supported it. At all relevant times, the MFDC easily fit within the statutory definition
of a Tier-III terrorist organization. It was an organized “group of two or more
individuals,” and it engaged in terrorist activities. Id. § 1182(a)(3)(B)(vi)(III).
Specifically, documents submitted by both parties show that the MFDC: “shelled
civilian targets,” in some instances to deter people from voting in elections that the
MFDC viewed as illegitimate; violently attacked and robbed civilians; killed civilians
who were suspected of being government supporters; planted landmines on public
roadways; brutalized and raped women; stole property; mutilated and tortured
individuals in attempts to gain information about government forces; and assassinated
at least one government official.
N’Diaye argues that the second immigration judge and the BIA erred in failing
to make a “particularized factual finding” that the militant wing of the MFDC was a
“‘subgroup’ of the MFDC.” He argues that case law from the Third and Seventh
Circuits treats the BIA’s failure to make such a finding as reversible error. See Uddin
v. Attorney Gen. United States, 870 F.3d 282, 290 (3d Cir. 2017); Khan v. Holder,
766 F.3d 689, 699–702 (7th Cir. 2014). We need not decide whether to adopt a
similar rule. In this case, N’Diaye testified that the group he supported was an
“armed separatist” group that used weapons to fight against government forces.
Nevertheless, N’Diaye now argues that he belonged to an MFDC that was wholly
independent from the violent groups that committed the atrocities listed above. That
argument, however, is unsupported by the record. Like the BIA before us, we
acknowledge evidence in the record that suggests “the MFDC ha[d] multiple factions
that . . . varied across geographic and ideological lines.” However, nothing in the
record convinces us that N’Diaye recruited members for and gave money to a
completely peaceful faction. To the contrary, N’Diaye said he supported an “armed
separatist” group. He said that his group was led by Abbe Diamacoune, who the
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documentary evidence reveals helped found and lead the more violent Southern Front
of the MFDC’s militant wing in addition to the organization’s political wing.
Diamacoune later served as president of the entire MFDC. Given the lack of
evidence that N’Diaye supported an entirely peaceful faction of the MFDC, coupled
with the substantial evidence to the contrary, we reject N’Diaye’s argument that he
supported a wholly independent, peaceful MFDC.2
The BIA likewise was correct in concluding that N’Diaye failed to meet his
burden of proving that he did not know or should not have had reason to know the
MFDC was a terrorist organization when he supported it. Substantial evidence
supports the BIA’s finding that N’Diaye’s testimony was not credible as to this issue.
Furthermore, N’Diaye failed to put forth any other evidence, let alone the kind that
is clear and convincing, to show that he did not know or should not have had reason
to know that the MFDC engaged in terrorist activities.
Finally, N’Diaye essentially argues that collateral estoppel and the law-of-the-
case doctrine should have prevented the second immigration judge from
reconsidering whether N’Diaye materially supported a terrorist organization. We
disagree. Collateral estoppel does not apply here because the issue was not
previously determined by a valid and final judgment. Rather, it “was determined at
an earlier stage of the same action and was reconsidered pursuant to the reopening of
the action.” Estrada-Rodriguez v. Lynch, 825 F.3d 397, 402 (8th Cir. 2016)
(emphasis omitted); see also Arizona v. California, 460 U.S. 605, 619 (1983) (“It is
clear that res judicata and collateral estoppel do not apply if a party moves the
2
We acknowledge, as did both immigration judges who heard him, that
N’Diaye’s testimony suffers from significant credibility issues. However, in at least
the instances just cited, N’Diaye’s testimony comports with what we have found in
the documents. We, therefore, cannot fault the BIA for taking him at his word in
these limited circumstances.
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rendering court in the same proceeding to correct or modify its judgment.”). Nor did
the second immigration judge abuse his discretion by reconsidering the issue. See
Estrada-Rodriguez, 825 F.3d at 403 (holding that an immigration judge did not abuse
discretion by reconsidering an issue on remand); see also In re Patel, 16 I. & N. Dec.
600, 601 (BIA 1978) (holding that unless qualified or limited for a specific purpose,
a “remand is effective for the stated purpose and for consideration of any and all
matters” that the immigration judge deems appropriate).
III. Conclusion
For the foregoing reasons, we deny N’Diaye’s petition for review.
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