NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4468
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MAMADOU NBAYE,
(a/k/a AMADOU KORKA DIALLO),
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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On petition for Review of the Decision and
Order of the Board of Immigration Appeals
(BIA No. A097 520 789)
Honorable Grace A. Sease, Immigration Judge
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Submitted under Third Circuit LAR 34.1(a)
October 6, 2011
BEFORE: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges
(Filed: October 20, 2011)
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OPINION OF THE COURT
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GREENBERG, Circuit Judge.
This matter comes on before this Court on a petition for review of a decision and
order of the Board of Immigration Appeals (“BIA”) dated October 29, 2010, denying
petitioner Mamadou Nbaye’s motion to reopen his proceedings seeking asylum,
withholding of removal, and relief under the Convention Against Torture based on
changed country conditions in Guinea, his country of origin. He filed that motion
seeking reconsideration of the BIA’s denial of his earlier motion to reopen and
reconsideration of the earlier orders denying him relief. This case has a long history
which we need not set forth in detail. Rather, it is sufficient for us to point out that
Nbaye sought to enter this country with a stolen French passport on February 22, 2005,
but was intercepted at that time. Subsequently, numerous proceedings ensued arising
from the Department of Homeland Security initiating removal proceedings against him.
In these proceedings, Nbaye sought the three types of relief we listed above, as he claims
to fear returning to Guinea because he believes that if he returns he will be persecuted on
account of his political opinion attributable to his membership in the Rally of Guinean
People Party (“RPG”).
Nbaye consistently has been unsuccessful in the numerous proceedings that
followed his unlawful entry into this country, and has been subject to an administratively
final order of removal since December 12, 2005. Nevertheless, he remains in this
country. In its October 29, 2010 decision and order the BIA held that to the extent
Nbaye’s filing then before it was a motion for reconsideration of a decision denying a
prior motion for reconsideration, 8 C.F.R. § 1003.2 barred the motion. To the extent that
Nbaye was seeking a reopening of the proceedings, the BIA denied Nbaye’s motion
because: (1) he had not shown that there was a change in country conditions in Guinea
that was material to his claim, and (2) the motion was both time and number barred. See
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8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). Nbaye then filed the petition for review
now before us.
During his convoluted proceedings. Nbaye has contended that he has been subject
to persecution because of this involvement with the RPG. In his presentations, Nbaye has
included evidence that a military junta rather than the RPG was in power in Guinea on
September 28, 2009, and that it massacred its political opponents on that day. In the
current proceedings, Nbaye summarizes his argument as follows:
The Board decision dated October 29, 2010, is manifestly contrary
to law and an abuse of discretion. The BIA abused its discretion in finding
that the conditions in Guinea were substantially the same for RPG members
after the September 2009 massacre. The Petitioner’s evidence submitted in
his motion to reopen clearly shows a change in treatment of opposition
party members in the wake of the September 2009 massacre.
Petitioner’s br. at 11.
In the course of our review of this case, it came to our attention that since
December 2010 when there was a change of government, the RPG has been the
governing party in Guinea. Naturally we questioned whether this change in government
undercut Nbaye’s claim for relief, as he clearly attributed his persecution to his
involvement with the RPG. Consequently, we had our clerk address a letter to the
attorneys on this appeal which in material part read as follows:
The Guinea People Party (“RPG”) recently came to power in Guinea. The
Petitioner, a member of the RPG has repeatedly sought asylum and
withholding of removal for fear of persecution based on political opinion.
Counsel for the parties are directed to submit letter briefs . . . addressing the
impact, if any, the changed political circumstances in Guinea have on
Nbaye’s claim for relief and also addressing why the matter should not be
remanded to the [BIA] to consider the changed country conditions.
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The attorneys have filed the letter briefs as we directed. Nbaye contends that we
should grant his petition for review on the current record or, alternatively, should remand
the case to the BIA for consideration of the new evidence, since the record has closed on
the petition for review now before us. The Attorney General responded that we lack
jurisdiction to consider evidence of changed conditions in Guinea that occurred after the
BIA’s decision because our review is limited to consideration of the existing
administrative record. See 8 U.S.C. § 1252(b)(4)(A). The Attorney General further
contends that Nbaye is not entitled to relief on the current record and thus there is no
need to remand the case. Accordingly, the Attorney General argues that it would be
futile to remand the matter for further proceedings. Significantly, the parties’ briefs
confirm that the RPG has come to power.
We recognize that our precedents demonstrate that we have declined to take
judicial notice of materials not in the record on petition for review in removal cases, see
Wong v. Att’y Gen., 539 F.3d 225, 234 n.4 (3d Cir. 2008); Borishaj v. Ashcroft, 378 F.3d
314, 330 (3d Cir. 2004), and we further recognize that 8 U.S.C. § 1252(b)(4)(A) requires
that a court of appeals decide a petition for review of an order of removal only on the
record on which the order was entered. On the other hand, we are aware that other courts
of appeals have asserted that they have discretion to take judicial notice of changes in
political situations that have occurred after the issuance of an order of removal. See
Hoxhallari v. Gonzalez, 468 F.3d 179, 186 n.5 (2d Cir. 2006) (per curiam). It seems to us
that it would be myopic to ignore the circumstance that the RPG has come to power in
Guinea inasmuch as Nbaye attributes his persecution to membership in that party.
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We have concluded that although we cannot decide the case on the basis that there
has been a change in power in Guinea, our precedents and 8 U.S.C. § 1252(b)(4)(A) on
the one hand and the seemingly appropriate way to proceed in this matter on the other can
be accommodated by remanding the case to the BIA so that it can consider the change in
power in Guinea. After all, by remanding the matter for BIA’s consideration of the
change in power we neither would be approving nor rejecting the BIA’s decision and
order. See Borishaj, 378 F.3d at 330.
We realize that the Attorney General contends that it would be futile to remand the
matter because, even without regard for the change in government, Nbaye cannot prevail
in his effort to avoid removal. We, however, reject this basis for avoiding remand as it is
possible, though we do not express an opinion on this point, that based on the current
record we could grant Nbaye substantive relief on his petition for review but that on
remand the BIA may determine that the change in government precludes Nbaye from
obtaining relief. In that scenario the remand surely would not have been futile. Rather, it
would have been outcome determinative.
For the foregoing reasons, we grant the petition for review to the limited extent
that we will vacate the October 29, 2010 decision and order denying Nbaye’s motion but
do so without prejudice to the BIA reinstating the decision and order on the remand.
Thus, we do not base the vacation of the decision and order on our assessment of the
merits of Nbaye’s petition. On the remand the BIA should consider the possible effect of
the change in power in Guinea.
No costs will be taxed in these proceedings.
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