Diallo v. Garland

20-2834
Diallo v. Garland
BIA
Hochul, IJ
A208 745 180
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 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 the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 15th day of May, two thousand twenty-
4 three.
5
6 PRESENT:
7 DENNIS JACOBS,
8 JOSEPH F. BIANCO,
9 MYRNA PÉREZ,
10 Circuit Judges.
11 _____________________________________
12
13 ABIDINA DIALLO,
14 Petitioner,
15
16 v. 20-2834
17 NAC
18 MERRICK B. GARLAND, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
1 FOR PETITIONER: Abidina Diallo, pro se, Bronx, N.Y.
2
3 FOR RESPONDENT: Brian Boynton, Acting Assistant Attorney
4 General; Cindy S. Ferrier, Assistant Director;
5 Kimberly A. Burdge, Trial Attorney, Office of
6 Immigration Litigation, United States
7 Department of Justice, Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a Board of
9 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND
10 DECREED that the petition for review is DENIED.
11 Petitioner Abidina Diallo, a native and citizen of Guinea, seeks review of an
12 August 3, 2020 decision of the BIA denying his motion to remand and affirming a
13 July 27, 2018 decision of an Immigration Judge (“IJ”), which denied his
14 applications for asylum, withholding of removal, and protection under the
15 Convention Against Torture (“CAT”). In re Abidina Diallo, No. A208 745 180
16 (B.I.A. Aug. 3, 2020), aff’g No. A208 745 180 (Immigr. Ct. Buffalo, N.Y. July 27,
17 2018). We assume the parties’ familiarity with the underlying facts and
18 procedural history.
19 We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual
21 findings for substantial evidence and its legal conclusions, including constitutional
2
1 claims, de novo. See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009); see
2 also Dale v. Barr, 967 F.3d 133, 138 (2d Cir. 2020). “[T]he administrative findings
3 of fact are conclusive unless any reasonable adjudicator would be compelled to
4 conclude to the contrary[.]” 8 U.S.C. § 1252(b)(4)(B). We review the denial of a
5 motion to remand for abuse of discretion. See Li Yong Cao v. U.S. Dep’t of Just., 421
6 F.3d 149, 156 (2d Cir. 2005) (“A motion to remand that relies on newly available
7 evidence is held to the substantive requirements of a motion to reopen.”); see also
8 Ke Zhen Zhao v. U.S. Dep’t of Just., 265 F.3d 83, 93 (2d Cir. 2001) (motion to reopen
9 reviewed for abuse of discretion). An abuse of discretion may be found if the
10 BIA’s decision “provides no rational explanation, inexplicably departs from
11 established policies, is devoid of any reasoning, or contains only summary or
12 conclusory statements; that is to say, where the Board has acted in an arbitrary or
13 capricious manner.” Kaur v. BIA, 413 F.3d 232, 233–34 (2d Cir. 2005) (per curiam)
14 (internal quotation marks and citation omitted).
15 We deny the petition. As an initial matter, Diallo failed to exhaust any
16 challenge to the IJ’s denial of asylum, withholding of removal, and CAT
17 protection. We have held that petitioners must raise to the BIA any specific issues
18 that they later seek to address in this Court. See Lin Zhong v. U.S. Dep’t of Just.,
3
1 480 F.3d 104, 119–20 (2d Cir. 2007); see also Foster v. INS, 376 F.3d 75, 78 (2d Cir.
2 2004) (per curiam). Diallo’s prior counsel’s brief statements in the Notice of
3 Appeal to the BIA were insufficient to preserve a challenge to the IJ’s denial of
4 relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005) (where a
5 petitioner “devotes only a single conclusory sentence to the argument,” we deem
6 the “claim abandoned and do not consider it.”).
7 We find no abuse of discretion in the agency’s denial of the motion to
8 remand. The BIA has “broad discretion” when deciding whether to grant a
9 motion to remand for new evidence. INS v. Doherty, 502 U.S. 314, 323 (1992)
10 (internal quotation marks and citation omitted). “Permissible reasons to deny
11 such a motion include (1) the movant’s failure to make a prima facie case of
12 eligibility for asylum; (2) the movant’s failure to comply with the requirement of 8
13 C.F.R. § 3.2(c)(1) that his motion articulate material, previously unavailable
14 evidence that would be introduced at a new hearing; or (3) a determination that
15 even if the applicant were eligible, asylum would be denied in the exercise of
16 discretion.” Li Yong Cao, 421 F.3d at 156; see also INS v. Abudu, 485 U.S. 94, 104–05
17 (1988). The movant bears a “heavy burden of demonstrating a likelihood that the
18 new evidence presented would alter the result in the case.” Li Yong Cao, 421 F.3d
41 at 156 (internal quotation marks and citation omitted).
2 Here, Diallo moved the BIA in May 2020 to remand based on evidence that
3 he was a member of the political party, the Union of Democratic Forces of Guinea
4 in the Bronx, country conditions, which indicated that the Guinean government
5 was arresting and harming members of that party, that his brother had been
6 arrested and harmed for his membership in the same party, and that officials had
7 searched his family home and indicated that they were interested in Diallo. The
8 agency did not err in finding that Diallo did not establish either that this evidence
9 was previously unavailable, that conditions in Guinea had materially worsened
10 since his July 2018 hearing, or that the evidence related to Diallo’s own likelihood
11 of harm such that it would likely change the outcome of the case. Li Yong Cao,
12 421 F.3d at 156 (noting that the agency may deny a motion if new evidence is not
13 material or was not previously unavailable and that movant must show evidence
14 would likely have changed the outcome).
15 For the foregoing reasons, the petition for review is DENIED. All pending
16 motions and applications are DENIED and stays VACATED.
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe,
19 Clerk of Court
5