Barry v. Holder

08-0325-ag Barry v. Holder BIA Schoppert, IJ A79 069 624 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 1 st day of February, two thousand ten. 5 6 PRESENT: 7 GUIDO CALABRESI, 8 ROSEMARY S. POOLER, 9 ROBERT A. KATZMANN, 10 Circuit Judges. 11 _____________________________________ 12 13 BOUBACAR BARRY, 14 Petitioner, 15 16 v. 08-0325-ag 17 NAC 18 ERIC H. HOLDER, JR., ATTORNEY GENERAL, * 19 Respondent. 20 _____________________________________ 21 FOR PETITIONER: Ronald S. Salomon, Brooklyn, New 22 York. 23 24 * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr., is automatically substituted for former Acting Attorney General Peter D. Keisler as respondent in this case. 1 FOR RESPONDENT: Michael F. Hertz, Acting Assistant 2 Attorney General; Linda S. Wernery, 3 Assistant Director; Sarah Maloney, 4 Attorney, Office of Immigration 5 Litigation, Civil Division, United 6 States Department of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review 2 of a decision of the Board of Immigration Appeals (“BIA”), 3 it is hereby ORDERED, ADJUDGED, AND DECREED, that the 4 petition for review is DENIED, in part, and DISMISSED, in 5 part. 6 Petitioner Boubacar Barry, allegedly a native and citizen 7 of Sierra Leone, seeks review of a December 19, 2007 order 8 of the BIA affirming the March 9, 2006 decision of 9 Immigration Judge (“IJ”) Douglas B. Schoppert, denying his 10 applications for asylum, withholding of removal, and relief 11 under the Convention Against Torture (“CAT”). In re 12 Boubacar Barry, No. A79 069 624 (B.I.A. Dec. 19, 2007), 13 aff’g No. A79 069 624 (Immig. Ct. N.Y. City Mar. 9, 2006). 14 We assume the parties’ familiarity with the underlying facts 15 and procedural history of the case. 16 As an initial matter, because Barry does not challenge 17 the IJ’s pretermission of his untimely asylum application, 18 we deem any such challenge to have been waived. See Yueqing 2 1 Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2 2005). In any event, we generally lack jurisdiction to 3 review such findings. See 8 U.S.C. § 1158(a)(3). Moreover, 4 because Barry failed to meaningfully challenge the IJ’s 5 denial of his CAT claim before the BIA, we dismiss his 6 petition for review to the extent that he now challenges the 7 IJ’s denial of that relief. See 8 U.S.C. § 1252(d)(1); 8 Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006). 9 When the BIA issues an opinion that fully adopts the IJ’s 10 decision, we review the IJ’s decision. See Mei Chai Ye v. 11 U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007). 12 However, when the BIA affirms the IJ’s decision in some 13 respects but not others, we review the IJ’s decision as 14 modified by the BIA’s decision, i.e. minus the arguments for 15 denying relief that were rejected by the BIA. See Xue Hong 16 Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 17 2005). Here, the BIA agreed with the IJ’s finding that 18 country conditions in Sierra Leone had changed such that any 19 presumption of a well-founded fear of future persecution was 20 rebutted. It is unclear, however, whether the BIA agreed 21 with the IJ’s finding that Barry failed to demonstrate past 22 persecution based on the death of his parents. Thus, for 3 1 purposes of our decision, we assume that Barry suffered past 2 persecution. See Yan Chen v. Gonzales, 417 F.3d 268, 271 3 (2d Cir. 2005). 4 We review the agency’s factual findings under the 5 substantial evidence standard. See 8 U.S.C. 6 § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland 7 Sec., 494 F.3d 281, 289 (2d Cir. 2007). We review de novo 8 questions of law and the application of law to undisputed 9 fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 10 (2d Cir. 2008). 11 Substantial evidence supports the agency’s finding that 12 Barry failed to demonstrate a well-founded fear of future 13 persecution. The IJ did not err in concluding that country 14 conditions in Sierra Leone had changed when “the 11-year 15 civil conflict officially ended in January of 2002, . . . 16 the government, backed by a large U.N. peace-keeping force, 17 had subsequently asserted control over the whole country, 18 and the R.U.F., or Revolutionary United Front, insurgence 19 has completed disarmament and demobilization in 2002.” In 20 upholding a similar finding, we have noted that the civil 21 war ending in Sierra Leone, inter alia, demonstrated changed 22 country conditions. See Jalloh v. Gonzales, 498 F.3d 148, 4 1 151 n.2 (2d Cir. 2007). While Barry argues that the IJ’s 2 holding in this case was erroneous, we are unpersuaded by 3 his argument. See 8 U.S.C. § 1252(b)(4)(B); see also 4 Manzur, 494 F.3d at 289. Accordingly, we find no error in 5 the agency’s denial of Barry’s application for withholding 6 of removal. 7 For the foregoing reasons, the petition for review is 8 DENIED, in part, and DISMISSED, in part. 9 10 FOR THE COURT: 11 Catherine O’Hagan Wolfe, Clerk 12 13 14 5