Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-8-2008
Diaby v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3086
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3086
___________
MAMADOU DIABY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A73-544-551
(U.S. Immigration Judge: Alberto J. Riefkohl)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 2, 2008
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
Filed: July 8, 2008
___________
OPINION OF THE COURT
___________
PER CURIAM.
Mamadou Diaby, a native and citizen of Côte d’Ivoire, petitions for review of an
order of the Board of Immigration Appeals (BIA or Board), which denied his motion to
reopen his immigration proceedings. For the reasons that follow, we will grant the
petition and remand for further proceedings.
Diaby entered the United States on a nonimmigrant visa in 1993 and stayed longer
than permitted. He filed an affirmative application for asylum in 1996, claiming past
persecution based on his membership in the Ivorian Popular Front (FPI) political party.
An Immigration Judge (IJ) denied relief on August 29, 1997. Diaby appealed, but failed
to file a brief, and the BIA dismissed the appeal on January 19, 2001.
On May 21, 2007, Diaby filed a motion to reopen, citing changed circumstances in
the Côte d’Ivoire. In the intervening years, the FPI became the ruling party. However,
Diaby’s family back home was not happy with the way the party was representing the
interests of Muslims of his ethnicity (Dioula). His family members all changed their
allegiance to the Rally of Republicans (RDR) political party. Diaby joined that party in
2004 in New Jersey. Diaby’s sister was killed on January 7, 2006, due to her political
involvement. His brother Ibrahim and sister Mariama were threatened, detained and
injured by government authorities, and an arrest warrant was issued for Mariama.
Mariama fled the country in 2001 and applied for asylum in the United Kingdom. Diaby
does not know the whereabouts of Ibrahim.
The BIA denied the motion to reopen. The BIA stated that Diaby’s motion to
reopen did not establish a prima facie case of eligibility for asylum or withholding of
removal based on changed country conditions, but rather was based on a personal change,
2
his changed party affiliation. Although the BIA did not make an adverse credibility
finding, it also appears that it disbelieved Diaby’s claims. The decision states:
Ten years ago, the respondent who was born in Abidjan, in the southern
Ivory Coast, claimed to be a father of seven (six of whom are identified in
the I-589), and an active FPI member. Now, he claims to be a “Dioula
Muslim” from the “North” of the country, a father of five (four of whom are
identified in the I-589), and an active RDR member . . . .
App. at 8. The BIA also found that Diaby failed to adequately explain his disassociation
with FPI. The decision noted that the evidence concerning his siblings “does little to
corroborate his assertion that his siblings have suffered and feared harm due to their RDR
support,” as his sister’s death certificate did not show a cause of death, and an affidavit
from Mariam stated that “she is originally from Samatiguila in the northern part of the
country, but the respondent had maintained that the family is from the south.” The BIA
noted that the country is divided politically between north and south, and found this to be
a significant problem with the evidence. As the BIA found that Diaby had failed to
establish a prima facie case for reopening on the basis of changed country conditions, it
denied the motion as untimely. See 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be
filed within 90 days of final administrative decision) and § 1003.2(c)(3)(ii) (time
limitations do not apply to motion to reopen based on changed country circumstances if
evidence supporting motion is material and was unavailable at previous hearing). Diaby
filed a timely, counseled petition for review.
3
Where the Board finds a petitioner has failed to make a prima facie case for
reopening, we review the Board’s findings of fact for substantial evidence, and review its
ultimate decision to reject the motion to reopen for an abuse of discretion. Sevoian v.
Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). To establish a prima facie case for
reopening, the petitioner must produce evidence showing a “reasonable likelihood” that
he is eligible for relief; i.e., in the case of asylum, a “realistic chance” that he will be
granted asylum in the future. Shardar v. Attorney General, 503 F.3d 308, 313 (3d Cir.
2007). “Facts presented in the motion to reopen are accepted as true unless inherently
unbelievable.” Id. (internal quotation and citation omitted). We hold that the Board’s
findings are not supported by substantial evidence.
From reading the Board’s decision, one would think that Diaby suddenly claimed
for the first time in his motion to reopen that he is a Dioula Muslim. This is not so.
Diaby indicated at the outset of his initial asylum hearing that he was Dioula and that his
religion was Muslim. A.R. 124. He also testified in the Dioula language. Although he
was born in the south, and appears to have attended school in the south, he testified that
his father was at the time still alive and that he lived in “the village,” which is Samatigila,
in the extreme north of Côte d’Ivoire. A.R. 134, 230.1 Diaby apparently identifies as a
northerner because of his ethnicity, even though he may not have grown up in the north.
In fact, a document from the RDR party in New Jersey notes that “his family, back home,
1
Diaby’s new asylum application indicates that his father is deceased. A.R. 16.
4
as any other family originally from the north of Côte d’Ivoire is suspected to be
politically engaged in favor of the RDR.” A.R. 37 (emphasis added).2
The Board does not appear to have given sufficient weight to Diaby’s additional
evidence. Diaby presented evidence that one sister was killed, another was arrested and
tortured in detention, and that his brother was also arrested and beaten, because of their
involvement with the RDR party. The Board did not indicate that any of these facts were
“inherently unbelievable,” rather, they seemed to require additional detail, a requirement
we do not find necessary to establish a prima facie case. Considering as true this
evidence, and the evidence that Diaby has been a member of the RDR party since 2004,
we find that Diaby has made out a prima facie case for reopening.
Even if the Board had correctly found that Diaby had made out a prima facie case,
it would be justified in denying the motion as untimely unless the motion was found to be
based on changed country conditions. 3 It is true that Diaby’s motion was based, in part,
2
The BIA also noted discrepancies between the number of children listed on Diaby’s
two asylum applications. As the BIA did not explicitly make an adverse credibility
determination, we need not reach the issue of whether review of such a determination
would be governed by the provisions of the REAL ID Act, which allows a trier of fact to
make a credibility determination “without regard to whether an inconsistency, inaccuracy,
or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
Kaita v. Attorney General, 522 F.3d 288 (3d Cir. 2008) (noting that REAL ID Act
provisions do not apply to petitions filed before May 11, 2005). We note, however, that
the number of children Diaby has is entirely irrelevant to his asylum claim.
3
Of course, the Board may deny a motion to reopen as a matter of discretion even if
the applicant has made out a prima facie case; 8 C.F.R. § 1003.2(a); but the BIA here did
not deny Diaby’s motion as a matter of discretion.
5
on changed personal circumstances; ie., his change in political affiliation. However, the
change in personal circumstances would have been of little significance absent a change
in country conditions. At the time of Diaby’s first asylum hearing, a State Department
official, asked to comment on Diaby’s asylum request, noted that “mere affiliation with
the FPI, or any other opposition political party in Côte d’Ivoire, is unlikely by itself to be
the basis for persecution by the government.” A.R. 217 (emphasis added). The official
attached a report regarding asylum claims and country conditions for Côte d’Ivoire, dated
July 1996, which confirms that affiliation with either the FPI or RDR parties “would not
expose that person to danger for that reason alone.” A.R. 222. Based on the evidence
Diaby submitted with his motion to reopen, it appears that country conditions have
changed to make involvement with the RDR much more dangerous.
Diaby also notes that the BIA decision cites a State Department travel warning,
which mentions a peace accord “between Ivorian President Gbagbo and the New Forces
rebel leader, Guillaume Soro.” The BIA appears to have inferred from this statement that
this peace accord would create peace for everyone in Côte d’Ivoire. Because we remand
for other reasons, Diaby will have an opportunity to address this statement, and we need
not reach the issue of whether the BIA abused its discretion in making such an inference
without allowing Diaby a chance to rebut the information. Cf. Chhetry v. U.S. Dep’t of
Justice, 490 F.3d 196, (2d Cir. 2007) (while BIA is authorized to take administrative
notice of changed country conditions, it abused its discretion where it denied a motion to
6
reopen based on inferences drawn from the administratively noticed facts without giving
the alien an opportunity to rebut the inferences).
For the foregoing reasons, we will grant the petition and remand with instructions
to reopen the matter for further proceedings.4
4
Although Diaby also seeks withholding of removal in his motion to reopen, because
we conclude that he has made a prima facie case for asylum, we need not deal with this
form of alternative relief. Shardar, 503 F.3d at 312, n.4.
7