Ndiaye v. Holder

11-3550 Ndiaye v. Holder 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 4th day of September, two thousand twelve. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 GERARD E. LYNCH, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _______________________________________ 12 13 OMAR NDIAYE, 14 Petitioner, 15 16 v. 11-3550-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: Theodore Vialet, New York, New York. 24 25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 26 Attorney General; Ernesto H. Molina, 27 Jr., Assistant Director; Joanna L. 28 Watson, Trial Attorney, Office of 29 Immigration Litigation, United 30 States Department of Justice, 31 Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 Board of Immigration Appeals (“BIA”) decision, it is hereby 3 ORDERED, ADJUDGED, AND DECREED that the petition for review 4 is DENIED. 5 Petitioner Omar Ndiaye, a native and citizen of 6 Mauritania, seeks review of an August 15, 2011, decision of 7 the BIA reversing the March 5, 2009, decision of Immigration 8 Judge (“IJ”) Helen Sichel, granting his application for 9 asylum. In re Omar Ndiaye, No. 078 642 291 (B.I.A. Aug. 15, 10 2011), rev’g No. A078 642 291 (Immig. Ct. N.Y. City Mar. 5, 11 2009). We assume the parties’ familiarity with the 12 underlying facts and procedural history in this case. 13 Under the circumstances of this case, we have reviewed 14 the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268, 15 271 (2d Cir. 2005). The applicable standards of review are 16 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng 17 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 18 Ndiaye challenges the BIA’s vacatur of the IJ’s grant 19 of asylum. Because the IJ found that Ndiaye demonstrated 20 past persecution, and the BIA did not reverse that finding, 21 he benefitted from the presumption of a well-founded fear of 22 future persecution. See 8 C.F.R. §§ 1208.13(b)(1), 23 1208.16(b)(1)(I); see also Baba v. Holder, 569 F.3d 79, 86 2 1 (2d Cir. 2009); Li Hua Lin v. U.S. Dep’t of Justice, 453 2 F.3d 99, 105 (2d Cir. 2006). However, the regulations 3 require the agency to exercise the Attorney General’s 4 discretion to deny asylum to applicants who establish 5 eligibility based solely on past persecution when the 6 government establishes a fundamental change in circumstances 7 sufficient to rebut the presumption of well-founded fear. 8 8 C.F.R. § 1208.13(b)(1); see also id. § 1208.16(b)(1) 9 (setting forth application of presumption for withholding of 10 removal). 11 Here, the BIA reasonably concluded that the government 12 established a fundamental change in circumstances through 13 the U.S. Department of State 2007 Country Report on Human 14 Rights for Mauritania which stated that “[t]he new 15 government acted quickly to address the country’s most 16 serious human rights problems, [including] preparations for 17 the repatriation of thousands of Afro-Mauritanians living as 18 refugees in Senegal and Mali following their expulsion 19 during ethnic tensions and violence in 1989-91.” Admin. R. 20 at 3, 198; see Ba v. Mukasey, 539 F.3d 1265, 1268-69 (10th 21 Cir. 2008) (2004 and 2005 Country Reports stating that 22 government was cooperating with repatriation of Afro- 3 1 Mauritanian refugees from Senegal, inter alia, rebutted 2 presumption of well-founded fear of persecution of Afro- 3 Mauritanian petitioner who was persecuted by the White Moors 4 in 1989). But cf. Niang v. Mukasey, 511 F.3d 138, 149 (2d 5 Cir. 2007) (finding insufficient the BIA’s conclusion that 6 “the current situation in Mauritania has improved 7 dramatically” without reasoning or citation to any 8 supporting facts). The BIA also did not err in citing the 9 more recent 2009 Mauritania Country Report of which it took 10 administrative notice, which indicated that the national 11 reconciliation program for the repatriation of Afro- 12 Mauritanian refugees from Senegal and Mali conducted, in 13 coordination with the Office of the United Nations High 14 Commissioner for Refugees, was successfully concluded. See 15 Qun Yang v. McElroy, 277 F.3d 158, 163 n.4 (2d Cir. 2002) 16 (“It is well-settled that the BIA has the authority to take 17 administrative notice of current events bearing on an 18 applicant’s well-founded fear of persecution.”). 19 Ndiaye’s argument that the government has not 20 established a fundamental change in circumstances because 21 the Country Reports also indicate ongoing struggles for 22 Afro-Mauritanians related to political participation and 4 1 civil rights in general, is unpersuasive as political 2 disenfranchisement and racial discrimination are not 3 persecution. Ivanishvilli v. U.S. Dep’t of Justice, 433 4 F.3d 332, 341 (2d Cir. 2006) (noting that harm must rise 5 above “mere harassment” to constitute persecution). Indeed, 6 all of Ndiaye’s evidence was from 2002 or earlier; thus 7 there is no objective evidence that he would still be 8 subject to persecution in Mauritania. Ba, 539 F.3d at 1266- 9 67 (a showing of possible future discrimination does not 10 establish a fear of future persecution). Moreover, the BIA 11 did not err in relying solely on State Department Country 12 Reports for evidence of current country conditions, as there 13 was no other evidence presented. See Xiao Ji Chen v. U.S. 14 Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006); Tu 15 Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006); cf. 16 Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004) 17 (noting that remand may be appropriate “where the agency’s 18 determination is based on an inaccurate perception of the 19 record, omitting potentially significant facts”). 20 Accordingly, as the agency reasonably concluded that the 21 government overcame Ndiaye’s presumption of a well-founded 22 fear of future persecution, it did not err in denying his 23 application for asylum and withholding of removal. 8 C.F.R. 5 1 §§ 1208.13(b)(1)(I), 1208.16(b)(1). We have considered all 2 of Ndiaye’s remaining arguments and find them to be without 3 merit. 4 For the foregoing reasons, the petition for review is 5 DENIED. 6 FOR THE COURT: 7 Catherine O’Hagan Wolfe, Clerk 8 9 6