Bakayoko v. Holder

13-3241
Bakayoko v. Holder
BIA
Vomacka, IJ
A088 186 018
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of April, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 FOULHEL SIDIKI BAKAYOKO,
14 Petitioner,
15
16 v. 13-3241
17 NAC
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Andy Wong, New York, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Holly M. Smith, Senior
28 Litigation Counsel; Juria L. Jones,
29 Trial Attorney; Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DISMISSED in part and DENIED in part.
9 Petitioner Foulhel Sidiki Bakayoko, a native and citizen
10 of the Ivory Coast, seeks review of an August 7, 2013 decision
11 of the BIA, which affirmed a February 9, 2012 decision of an
12 Immigration Judge (“IJ”) denying Bakayoko’s application for
13 asylum, withholding of removal, and relief under the Convention
14 Against Torture (“CAT”). In re Foulhel Sidiki Bakayoko, No.
15 A088 186 018 (B.I.A. Aug. 7, 2013), aff’g No. A088 186 018
16 (Immig. Ct. N.Y. City Feb. 9, 2012). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 We have reviewed the IJ’s decision as supplemented by the
20 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
21 The applicable standards of review are well established. See
22 8 U.S.C. § 1252(b)(4); see also Yanqin Weng v. Holder, 562 F.3d
23 510, 513 (2d Cir. 2009). Bakayoko does not challenge the
2
1 agency’s denial of CAT relief, so we review only his asylum and
2 withholding of removal claims.
3 I. Timeliness of the Asylum Application
4 An asylum applicant must demonstrate “by clear and
5 convincing evidence that the application has been filed within
6 1 year after the date of the alien’s arrival in the United
7 States,” or must demonstrate “either the existence of changed
8 circumstances which materially affect the applicant’s
9 eligibility or extraordinary circumstances relating to the
10 delay in filing an application.” 8 U.S.C. § 1158(a)(2)(B),
11 (D). We lack jurisdiction to review the agency’s finding that
12 an applicant did not meet his burden to show timely filing, or
13 its finding of neither changed nor extraordinary circumstances
14 excusing the untimeliness. Id. § 1158(a)(3). We retain
15 jurisdiction, however, to review constitutional claims and
16 “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
17 It is undisputed that Bakayoko entered the United States
18 in 2001 and applied for asylum in 2008, well beyond the one-year
19 filing deadline. Because Bakayoko challenges only the IJ’s
20 finding that there were no extraordinary circumstances excusing
21 the untimely filing of his asylum application, we are without
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1 jurisdiction to review the IJ’s pretermission of his asylum
2 application. See 8 U.S.C. § 1158(a)(3).
3 II. Withholding of Removal
4 The agency also reasonably determined that Bakayoko failed
5 to meet his burden to establish eligibility for withholding of
6 removal. Withholding of removal under 8 U.S.C. § 1231(b)(3)
7 is a mandatory form of relief that requires an applicant like
8 Bakayoko, who does not allege past persecution, to show that
9 it is more likely than not that his “life or freedom would be
10 threatened in the proposed country of removal on account of
11 race, religion, nationality, membership in a particular social
12 group, or political opinion.” 8 C.F.R. § 1208.16(b).
13 The agency reasonably found that despite his credible
14 testimony, Bakayoko did not establish a “clear probability” of
15 persecution by either the Popular Ivorian Front (“FPI”) or the
16 Ivory Coast government. Hongsheng Leng v. Mukasey, 528 F.3d
17 135, 143 (2d Cir. 2008). Bakayoko has never been harmed or
18 threatened in the Ivory Coast; the harm to Bakayoko’s mother
19 and brother occurred over 10 years ago; and there is no evidence
20 that anyone in his family has been harmed since then. Indeed,
21 Bakayoko asserts in his personal statement that his parents fled
4
1 to Burkina Faso several years ago, which suggests that they are
2 no longer a political threat and are unlikely to be targeted
3 again. Furthermore, although Bakayoko claims that he will be
4 persecuted because of his Rally for Republicans (“RDR”)
5 membership, he was never an RDR member in the Ivory Coast, and
6 he does not point to any evidence that anyone in the Ivory Coast
7 is aware that he is a member of RDR’s New York chapter.
8 Even if he were known to be an RDR member, the background
9 evidence also shows that a regime change has occurred since
10 Bakayoko left the Ivory Coast and that Alassane Ouattara, the
11 head of Bakayoko’s political party, is now in power. Although
12 the evidence reveals continuing and uncertain political
13 turmoil, that turmoil does not demonstrate that Bakayoko will
14 be targeted for harm on account of a protected ground. See
15 Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999).
16 The IJ also found that Bakayoko failed to corroborate his
17 testimony, specifying several items that he could have
18 submitted but did not. For the first time on appeal, Bakayoko
19 objects that the agency violated his right to due process by
20 not telling him what corroborating evidence was required prior
21 to the IJ’s oral decision. But because the lack of
5
1 corroborating evidence was only an additional ground, and
2 because the IJ’s decision was adequately supported by the
3 finding that Bakayoko had not demonstrated a clear probability
4 of persecution in light of the changed political situation in
5 the Ivory Coast and the remoteness of the past actions against
6 relatives, we need not reach the merits of this objection on
7 appeal.
8 For the foregoing reasons, the petition for review is
9 DISMISSED in part and DENIED in part. As we have completed our
10 review, any stay of removal that the Court previously granted
11 in this petition is VACATED, and any pending motion for a stay
12 of removal in this petition is DISMISSED as moot. Any pending
13 request for oral argument in this petition is DENIED in
14 accordance with Federal Rule of Appellate Procedure 34(a)(2),
15 and Second Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
6