12-4635
Fofana v. Holder
BIA
Videla, IJ
A098 642 305
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
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 3rd day of April, two thousand fourteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 RAYMOND J. LOHIER, JR.,
11 Circuit Judges.
12 _____________________________________
13
14 AMADOU FOFANA, AKA MOUSSA BASSIROU,
15 Petitioner,
16
17 v. 12-4635
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Theodore Vialet, New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General; Jennifer L. Lightbody,
28 Senior Litigation Counsel; Matthew
29 A. Connelly, Trial Attorney, Office
1 of Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is GRANTED.
10 Petitioner Amadou Fofana, a native and citizen of Cote
11 d’Ivoire, seeks review of the October 25, 2012, decision of
12 the BIA affirming the September 13, 2011, decision of an
13 immigration judge (“IJ”) denying his motion to reopen. In
14 re Amadou Fofana, No. A098 642 305 (B.I.A. Oct. 25, 2012),
15 aff’g No. A098 642 305 (Immig. Ct. N.Y.C. Sept. 13, 2011).
16 We assume the parties’ familiarity with the underlying facts
17 and procedural history in this case.
18 The agency’s determination that Fofana did not show a
19 change in country conditions is not supported by substantial
20 evidence and, accordingly, the agency abused its discretion
21 in denying his motion to reopen as untimely. See Jian Hui
22 Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Kaur v.
23 BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An
24 alien may file one motion to reopen no later than 90 days
25 after the date on which the final administrative decision
2
1 has been rendered in the proceedings sought to be reopened.
2 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1).
3 There is no dispute that Fofana’s July 2011 motion was
4 untimely and number-barred, as it was his second motion to
5 reopen, and the final administrative decision was issued in
6 April 2010. See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
7 § 1003.23(b)(1).
8 The time limitation does not apply to a motion to
9 reopen if it is “based on changed country conditions arising
10 in the country of nationality or in the country to which
11 removal has been ordered, if such evidence is material and
12 was not available and could not have been discovered or
13 presented at the previous proceeding.” 8 C.F.R.
14 § 1003.23(b)(4)(i); see 8 U.S.C. § 1229a(c)(7)(C)(ii).
15 While the agency concluded that conditions in Cote d’Ivoire
16 remained adverse, and had not worsened, the country
17 conditions evidence Fofana submitted shows that there was a
18 material worsening of conditions for individuals, like him,
19 who were members of the political party Rally for
20 Republicans (“RDR”).
21 The 2010 U.S. State Department Human Rights Report on
22 Cote d’Ivoire explains that in November 2010, the RDR
3
1 candidate for president, Alassane Ouattara, won the runoff
2 election against the incumbent, Laurent Gbagbo; Gbagbo
3 refused to relinquish control; and the two men established
4 separate governments. The Report further provides that,
5 although forces loyal to Gbagbo had engaged in human rights
6 abuses prior to the election, following the election, they
7 began targeting RDR members and Ouattara supporters
8 specifically, raiding campaign offices and individual homes,
9 killing, injuring, and detaining RDR supporters, and, in one
10 instance, firing on RDR supporters during a demonstration,
11 killing at least twenty people and arresting hundreds.
12 Accordingly, the agency’s conclusion that Fofana did not
13 show changed country conditions is not supported by
14 substantial evidence. See Jian Hui Shao, 546 F.3d at 169;
15 Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (the
16 substantial evidence standard “requires a certain minimum
17 level of analysis from the IJ and BIA, as well as some
18 indication that the IJ considered material evidence
19 supporting a petitioner’s claim.” (internal quotation marks
20 and alteration omitted)).
4
1 For the foregoing reasons, the petition for review is
2 GRANTED and the case is REMANDED for further proceedings
3 consistent with this decision.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
5