Jalloh v. Holder

13-2645
Jalloh v. Holder
BIA
Sichel, IJ
A095 841 077
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
CORRECTED 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th 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 CHERNOR SADU JALLOH,
14 Petitioner,
15
16 v. 13-2645
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch is automatically substituted
for former Attorney General Eric H. Holder, Jr.
1
1 FOR PETITIONER: Carmine D. Boccuzi, Jr., Cleary
2 Gottlieb Steen & Hamilton,
3 New York, New York.
4
5 FOR RESPONDENT: Stuart F. Delery, Assistant
6 Attorney General; Lyle D. Jentzer,
7 Senior Counsel for National
8 Security; Alison Marie Igoe,
9 Senior Counsel for National
10 Security, National Security Unit,
11 Office of Immigration Litigation,
12 United States Department of
13 Justice, Washington, D.C.
14
15 UPON DUE CONSIDERATION of this petition for review of a
16 Board of Immigration Appeals (“BIA”) decision, it is hereby
17 ORDERED, ADJUDGED, AND DECREED that the petition for review
18 is DENIED in part, and GRANTED in part.
19 Petitioner Chernor Sadu Jalloh, a native and citizen of
20 Sierra Leone, seeks review of a June 11, 2013, decision of
21 the BIA: (1) affirming a November 30, 2011, decision of an
22 Immigration Judge (“IJ”) denying Jalloh’s application for
23 withholding of removal; and (2) denying his motion to reopen
24 and remand his prior asylum proceedings. In re Jalloh, No.
25 A095 841 077 (B.I.A. June 11, 2013), aff’g No. A095 841 077
26 (Immig. Ct. N.Y. City Nov. 30, 2011). We assume the
27 parties’ familiarity with the underlying facts and
28 procedural history in this case.
2
1 Under the circumstances of this case, we have reviewed
2 the IJ’s decision as supplemented by the BIA. See Yan Chen
3 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
4 applicable standards of review are well established. See 8
5 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562
6 F.3d 510, 513 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515,
7 517 (2d Cir. 2006); Cao v. U.S. Dep’t of Justice, 421 F.3d
8 149, 157 (2d Cir. 2005).
9 I. Change in Conditions
10 An alien who demonstrates past persecution benefits
11 from a presumption that his life or freedom would be
12 threatened in his home country in the future, as required
13 for a grant of withholding of removal. See 8 C.F.R. §
14 1208.16(b)(1)(i). The Government may rebut this presumption
15 if it shows a “fundamental change in circumstances such that
16 the applicant’s life or freedom would not be threatened”
17 upon removal. 8 C.F.R. § 1208.16(b)(1)(i)(A), (ii). The
18 Government must prove the fundamental change by a
19 preponderance of the evidence, and we review the agency’s
20 conclusion for substantial evidence. Lecaj v. Holder, 616
21 F.3d 111, 115, 116 (2d Cir. 2010). The agency must provide
3
1 a reasoned basis for finding that changed country conditions
2 rebut the presumption. Niang v. Mukasey, 511 F.3d 138, 148-
3 49 (2d Cir. 2007).
4 Substantial evidence supports the agency’s finding that
5 although Jalloh suffered past persecution, there was a
6 fundamental change in Sierra Leone, as shown in the U.S.
7 State Department country conditions reports. See Xiao Ji
8 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.
9 2006). The 2002 State Department report shows that
10 Revolutionary United Front (“RUF”) insurgents disarmed and
11 demobilized after the civil war ended in 2002. A more
12 recent report demonstrates that by 2010, the RUF had all but
13 ceased to exist and several of its leaders were tried and
14 incarcerated for their crimes. The 2010 State Department
15 report also recounts the aftermath of Sierra Leone’s
16 “devastating” civil war, describing the gradual improvements
17 in Sierra Leone in the following years. Although the report
18 does mention several human rights violations, none of the
19 abuses listed are tied to people of Fulani ethnicity,
20 Jalloh’s home region, or the RUF. See Lecaj, 616 F.3d at
21 119. Furthermore, there is no “contrary or countervailing
4
1 evidence” in the record to suggest that the RUF’s abuses
2 have continued. Id. at 115-16.
3 II. Material Support Bar
4 The agency also determined that Jalloh’s claim for
5 withholding of removal was barred because he gave “material
6 support” to the RUF, which is a terrorist organization.
7 Jalloh contends that if he provided any support to the RUF,
8 it was immaterial and provided under duress. We have
9 recently remanded cases to the BIA to clarify in
10 precedential decisions the meaning of the term “material,”
11 Ayvaz v. Holder, 564 F. App’x 625 (2d Cir. 2014), and
12 whether there is an implicit duress exception, Ay v. Holder,
13 743 F.3d 317, 320 (2d Cir. 2014). Although the agency’s
14 alternative determination of changed country conditions
15 provides a sufficient basis for denying Jalloh withholding
16 of removal, the material support finding may impact Jalloh’s
17 eligibility for future immigration benefits, such as
18 adjustment of status. See, e.g., 8 U.S.C.
19 § 1182(a)(3)(B)(iv)(VI). Furthermore, the Department of
20 Homeland Security designated Sierra Leone for Temporary
21 Protected Status (“TPS”) in November 2014. Jalloh may apply
5
1 for TPS relief until the May 20, 2015 deadline, but will be
2 ineligible if subject to the material support bar.
3 Consequently, the petition is granted with respect to
4 the agency’s material support ruling, and this issue is
5 remanded for further proceedings consistent with this order.
6 The agency may, if it chooses, vacate the material support
7 finding as unnecessary to the resolution of the present
8 matter, leaving the question of whether Jalloh is barred
9 from future immigration benefits on that basis for
10 determination if and when he should apply for such benefits.
11 III. Motion to Reopen and Remand
12 Jalloh moved the BIA to reopen and remand proceedings,
13 arguing that but for the ineffective assistance of his prior
14 counsel, he would have proved that he timely applied for
15 asylum and was eligible for humanitarian asylum. We review
16 the BIA’s denial of a motion to reopen for abuse of
17 discretion. See Ali, 448 F.3d at 517. The agency denied
18 Jalloh’s motion because even if his counsel was ineffective,
19 he was ineligible for asylum because he was subject to the
20 material support bar and there had been a fundamental change
21 in Sierra Leone. See 8 U.S.C. § 1158(b)(2)(A)(v),
6
1 1182(a)(3)(B)(i)(I); 8 C.F.R. § 1208.13(b)(1)(iii). The BIA
2 did not abuse its discretion. However, if the agency
3 decides upon remand that Jalloh is not subject to the
4 material support bar, it should then revisit Jalloh’s motion
5 because he may be eligible for humanitarian asylum, even
6 though country conditions have changed in Sierra Leone. See
7 8 C.F.R. § 1208.13(b)(1)(iii).
8 IV. IFP Motion and Reimbursement of Filing Fee
9 Jalloh also filed a motion to proceed in forma pauperis
10 (“IFP”) and for reimbursement of the filing fee to his pro
11 bono counsel, who paid the fee for him upon filing the
12 petition. Pursuant to 28 U.S.C. § 1915(a) and (e), we may
13 permit an indigent petitioner to proceed IFP, but must
14 dismiss the petition if it is frivolous. Jalloh has clearly
15 raised a non-frivolous challenge to the agency’s decision
16 and demonstrated that he is indigent. Therefore, the motion
17 for IFP status is granted. As to pro bono counsel’s request
18 for reimbursement of the filing fee, because IFP status is
19 granted and Jalloh was not required to pay the filing fee,
20 that request is granted.
21
7
1 For the foregoing reasons, the petition for review is
2 DENIED in part and GRANTED in part and the case is remanded
3 to the BIA. The motion for IFP status and reimbursement of
4 the filing fee is GRANTED, and the Clerk’s Office is
5 directed to make any arrangements necessary to return the
6 funds. As we have completed our review, the pending motion
7 for a stay of removal in this petition is DISMISSED as moot.
8 The pending request for oral argument in this petition is
9 DENIED in accordance with Federal Rule of Appellate
10 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
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