Abdoulaye Bary v. Eric H. Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0411n.06

No. 08-4346
FILED
UNITED STATES COURT OF APPEALS Jun 08, 2009
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk

ABDOULAYE SAMBA BARY,

Petitioner,
ON PETITION FOR
v. REVIEW OF AN ORDER
OF THE BOARD OF
ERIC H. HOLDER, JR., United IMMIGRATION APPEALS
States Attorney General,

Respondent.

Before: MARTIN and KETHLEDGE, Circuit Judges; and WATSON, District
Judge.*

WATSON, District Judge. Abdoulaye Samba Bary, a native and citizen of

Mauritania, seeks review of the Board of Immigration Appeals’ (“BIA”) decision which

dismissed his appeal of the Immigration Judge’s (“IJ”) denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture (“CAT”).

The BIA affirmed the IJ’s determination that Bary had established past persecution, but also

agreed with the IJ’s finding of changed country conditions in Mauritania. Bary argues that

the IJ incorrectly determined that Bary failed to prove that he timely filed his application for

*
The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio,
sitting by designation.
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asylum, and that the IJ’s finding of fundamentally changed country conditions is not

supported by substantial evidence. We are without jurisdiction to address Bary’s first

argument, and find his second argument to be without merit. We therefore DENY Bary’s

petition for review.

I. BACKGROUND

Bary is black and a member of the Fulani tribe. (JA 116). He was born in Tethiane,

Mauritania on July 24, 1968. (JA 146, 165, 166). When Bary lived in Mauritania, he took

care of cattle for a living. (JA 146). He married on March 28, 1988. Bary has two children,

both of whom were born in Nguidjilone, Senegal. (JA 152).

In the late afternoon of April 29, 1989, Bary was outside the village with his father,

taking care of their cows. (JA 147). Members of the Mauritanian military showed up and

began to beat Bary’s father. (JA 147). Bary attempted to intervene and one of the soldiers

beat him with the butt of a gun. Bary passed out. (JA 147). Bary testified that the soldiers

had acted out of a belief that his father was part of FLAM, a group that fought for black

people’s rights. The soldiers took Bary to a jail and put him in a cell with about twenty-five

other people. (JA 147). While he was in the jail, Bary learned that his father had died. (JA

148). Bary was mistreated in jail. (JA 147).

Eventually military police officers took Bary and the other detainees to a nearby river

on the Mauritania-Senegal border, where the officers threw them into the water and told them
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to go to Senegal. (JA 149). Some of the people drowned, but Bary and others managed to

swim across the river to Senegal. (JA 149). After he reached Senegal, Bary went to city of

Nguidjilone, where he found his mother and wife in a refugee camp. (JA 150). Bary

supported his family by gathering roots in the forest and selling them. (JA 152). Later he

loaded and unloaded trucks. (JA 155). Bary lived at the refugee camp until July 28, 1995,

when he went to Dakar to find work. (JA 152). He was unable to find employment because

he was not from Senegal. (JA 152). Bary’s wife and children still live in Nguidjilone. (JA

153).

Bary stated that he decided to come to the United States because here he would be

treated like everyone else. (JA 153). He testified that he arrived in the United States in New

York City, New York on March 18, 2001. (JA 153). He filed his application for asylum on

August 27, 2001. (JA 154). Bary said Mauritania has not changed, and he will not return

there because he would be killed. (JA 154-55).

On September 11, 2001, Bary filed his applications for asylum and withholding of

removal, as well as relief under CAT. (JA 124). He asserted that he was persecuted in

Mauritania because he was black and a Fulani, or because he was believed to be a member

of FLAM. On July 12, 2005, the Immigration and Naturalization Service served Bary a

Notice to Appear which alleged that Bary was deportable. (JA 27). On May 22, 2006, Bary

filed a motion to change venue from Cleveland, Ohio to Cincinnati, Ohio. (JA 259). He also
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conceded removability. (JA 260). The IJ conducted a hearing on Bary’s applications and

issued an oral decision denying them on July 25, 2007.

Bary was the only witness at the hearing. The IJ found Bary to be generally credible.

(JA 123). Nevertheless, because there was no corroborating evidence, the IJ concluded that

Bary failed to meet his burden of showing by clear and convincing evidence that he filed his

claim within one year after he entered the United States. (JA 124-25).

The IJ found that Bary had met his burden of establishing past persecution, which

gives rise to a presumption of a well-founded fear of future persecution. (JA 125). The IJ

held, however, that evidence of changed country conditions in Mauritania rebutted the

presumption. (JA 126-27). He based this conclusion on the State Department’s Profile for

Mauritania. (JA 126). The IJ observed that former President Taya was deposed in a

bloodless coup in 2005, and that the government under which Bary had lived was gone. (JA

126). He noted that there had been free and fair elections in Mauritania recently. (JA 126).

The IJ further noted that many of the refugees from the 1989 to 1991 period had returned

from Senegal to Mauritania, and that many of them had been able to reacquire their property.

(JA 126). He acknowledged that significant human rights problems still existed in

Mauritania, including discrimination against ethnic and racial minorities. (JA 126). The IJ

stated that Bary “may still face unfortunate discrimination and harassment given his race and

ethnicity, but this would not put him at risk for actual persecution.” (JA 126). In addition,
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the IJ noted that Bary had lived in Senegal, away from any eminent threat of persecution, for

twelve years before he entered the United States illegally. (JA 127-28). On these bases, the

IJ denied Bary’s applications for asylum, withholding of removal, and relief under CAT.

Bary appealed the IJ’s decision to the BIA. The BIA issued an order affirming the IJ’s

decision and dismissing Bary’s appeal on September 17, 2008. (JA 2). Bary timely filed his

petition for review of the BIA’s order on October 16, 2008.

II. ANALYSIS

Bary raises two issues. First, Bary challenges the IJ’s finding that he failed to

demonstrate by clear and convincing evidence that he filed his application for asylum within

one year after entering the United States. Second, Bary asserts that the IJ’s finding of

changed country conditions is not supported by substantial evidence.

A. Standard of Review

When the BIA summarily affirms the IJ’s decision without discussing the relevant

issues in-depth, this Court reviews the IJ’s ruling as the final agency decision. Sarr v.

Gonzales, 485 F.3d 354, 359 (6th Cir. 2007). Factual findings, including findings of changed

country conditions, are reviewed under the substantial evidence standard. Lin v. Holder, ----

F.3d----, 2009 WL 1323443, at *3 (6th Cir. May 14, 2009); Ndrecaj v. Mukasey, 522 F.3d

667, 672 (6th Cir. 2008). Under that standard, the agency’s findings of fact must be accepted

unless any reasonable adjudicator would be compelled to conclude otherwise. Id. at 672-73.
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B. Timeliness of Asylum Application

An alien seeking asylum bears the burden of proving by clear and convincing

evidence that the application has been filed within one year after the date of the alien's arrival

in the United States. 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). Bary argues that

the IJ erred when he found that Bary had failed to show by clear and convincing evidence

that he timely filed his application for asylum within one year after entering the United

States. Bary maintains that he satisfied his burden through his direct testimony that he

arrived in the United States on March 18, 2001. Bary points out that the IJ found that his

testimony was credible. It is undisputed that Bary filed his application for asylum on August

27, 2001.

Although the Government in the instant case did not address jurisdiction with respect

to the IJ’s finding that Bary failed to establish timeliness, “‘we are under an independent

obligation to police our own jurisdiction,’ and thus we can raise the issue of jurisdiction sua

sponte.” Bonner v. Perry, 564 F.3d 424, 426 (6th Cir. Apr. 20, 2009) (quoting S.E.C. v.

Basic Energy & Affiliated Res., Inc., 273 F.3d 657, 665 (6th Cir.2001)). In Sy v. Holder, this

Court addressed the issue of jurisdiction to review an IJ’s determination concerning

timeliness:

Sy first challenges the IJ's factual finding, as affirmed by the BIA, that his
asylum application was untimely, arguing that his testimony showed that he
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filed the application within a year of arriving in the United States. See 8 U.S.C.
§ 1158(a)(2)(B); 8 C .F.R. § 1208.4(a)(2). Congress, however, has withdrawn
our authority to review this kind of contention. Under the immigration laws,
we do not have jurisdiction to review a denied asylum application if the
challenge turns only on claims of factual error or of abused discretion.
Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006); see 8 U.S.C. §
1158(a)(3). Because Sy challenges only the factual determinations of the IJ and
the BIA, his request for relief exceeds our authority to grant him relief.

Sy v. Holder, No. 08-3635, 2009 WL 596106, * 1 (6th Cir. Mar. 10, 2009). Here, as in Sy,

Bary challenges the IJ’s factual determination that Bary failed to prove that he filed his

asylum petition within one year after arriving in the United States. We lack jurisdiction to

review such a finding. 8 U.S.C. § 1158(a)(3).

C. Fundamentally Changed Country Conditions

Bary also challenges the IJ’s finding of changed country conditions in Mauritania.

He argues the IJ’s determination is not supported by substantial evidence. The IJ’s

determination that Bary failed to prove that he timely filed his application precludes Bary’s

asylum claim. Nevertheless, we will also examine the IJ’s finding of changed country

conditions with respect to Bary’s asylum claim as an alternative basis for our decision.

Under § 208(a) of the Immigration and Nationality Act (“INA”), an alien may be

granted asylum if he is a “refugee.” 8 U.S.C. § 1158(a). A refugee is an alien who is unable

or unwilling to return to his home country “because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social group,
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or political opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). A demonstration of

past persecution gives rise to a rebuttable presumption of a well-founded fear of future

persecution. 8 C.F.R. § 208.13(b)(1). The government may overcome this presumption by

showing by a preponderance of the evidence that there has been “a fundamental change in

the circumstances such that the applicant no longer has a well-founded fear of persecution

in the applicant’s country of nationality.” 8 C.F.R. § 208.13(b)(1)(i)(A). Country Reports

and Asylum Profiles may constitute substantial evidence supporting agency decisions

denying asylum on the basis of fundamentally changed country conditions. Ramaj v.

Gonzales, 466 F.3d 520, 531 (6th Cir. 2006). Although State Department reports may be

problematic sources on which to rely, they are, nonetheless, generally the best evidence

available to ascertain country conditions. Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir.

2004).

Here, the IJ relied upon the State Department’s Profile for Mauritania. Bary argues

the Profile itself undermines the IJ’s finding. He refers to the following passages:

The government’s human rights record is poor; however, there were some
significant improvements. At year’s end the military continued to control the
government, limiting citizens’ ability to change their government. Other
abuses included harsh prison conditions, official impunity, arbitrary arrest,
prolonged pretrial detention, executive influence on the judiciary, and
restrictions on freedoms of speech, press, assembly, association, and religion.
There was a widespread public perception of governmental corruption and a
lack of access to government information. Discrimination against women and
female genital mutilation (FGM) continued. Trafficking in persons, ethnic and
racial tensions, and political marginalization of largely southern-based ethnic
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groups were problems. Involuntary servitude, particularly in remote regions
of the country, and child labor in the informal sector occurred.
....
Although the constitution and law prohibit such practices, there were reports
that police beat and tortured suspects in custody, and there were instances of
torture in prisons. Alleged police torture techniques included beating,
hanging, burning with cigarettes, electric shock, and cutting. According to
reports, those who lacked money or influential family or tribal ties were the
most likely to be tortured. Authorities rarely took action against those
responsible for such abuse.
....
Racial and ethnic minorities faced governmental discrimination. The
inconsistent issuance of national identification cards, which were required for
voting, effectively disenfranchised numerous members of southern minority
groups. Racial and cultural tension and discrimination also arose from the
geographic and cultural divides between Moors and Afro Mauritanians.

(JA 188, 198).

After reviewing the Profile, the IJ acknowledged in his oral decision that Bary “may

still face unfortunate discrimination and harassment given his race and ethnicity . . . .” (JA

126). He nevertheless concluded that “this would not put him at risk for actual persecution.”

(JA 126). The IJ’s conclusion is not a contradiction, as this Court has also recognized that

harassment and discrimination do not necessarily equate with persecution for purposes of

asylum. See Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir. 1998). Furthermore, as the

IJ noted, the government that had persecuted Bary was no longer in power, and there had

recently been free and fair elections in Mauritania. Significantly, a substantial number of the
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other refugees from the 1989 to 1991 period had returned to Mauritania, many of whom had

been able to reclaim their property.

The portions of the State Department Profile upon which Bary relies paint a grim

picture of human rights in Mauritania. In light of other evidence in the Profile, however, we

cannot say that any reasonable adjudicator would be compelled to conclude that country

conditions in Mauritania had not fundamentally changed since Bary left there in 1989.

Accordingly, we find that substantial evidence supported the IJ’s determination of changed

country conditions. For this additional reason, we will not overturn the BIA’s denial of

Bary’s application for asylum.

Lastly, Bary asserts that after the IJ and BIA denied his claims for relief, the

Mauritanian military initiated a coup d’état and overthrew the civilian government. “[I]n

light of the highly complex and sensitive nature of the question of changed country

conditions,” we allow the BIA “the opportunity to address the matter in the first intance in

light of its own expertise,” Khora v. Gonzales, 172 F. App’x 634, 639-40 (6th Cir. 2006)

(internal quotation marks and citation omitted).

Bary’s proper recourse, then, is to petition the BIA to reopen his case under 8 C.F.R.

§ 1003.2(c)(1), which allows the BIA to “reopen a closed proceeding if the petitioner

includes with the petition affidavits and the information to be considered at the reopened

proceeding relating to the change in conditions since the BIA originally considered the
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claim.” Zeito v. Gonzales, 152 F. App’x 496, 503 (6th Cir. 2005). The time and numerical

limitations placed on motions to reopen do not apply to those based on changed country

conditions. 8 C.F.R. § 1003.2(c)(3)(ii). We do not express any view as to the merits of such

a petition in Bary’s case.

D. Withholding of Removal and Relief under CAT

Bary also sought withholding of removal and protection under CAT. To qualify for

withholding of removal under the INA, an alien must demonstrate that it is “more likely than

not” that he will be persecuted if he returns to his home country. 8 C.F.R. §

1208.16(b)(1)(B)(ii). Similarly, an alien seeking relief under CAT must prove that it is more

likely than not that he will be tortured upon his return. 8 C.F.R. § 1208.16(c)(2). Since Bary

cannot satisfy the standard for asylum, it follows he cannot meet the more stringent standards

which govern his withholding of removal and CAT claims. See Ndrecaj, 522 F.3d at 677;

Sarr v. Gonzales, 485 F.3d 354, 361-62 (6th Cir. 2007).

V. DISPOSITION

For the foregoing reasons, we conclude that we are without jurisdiction to review the

IJ’s determination that Bary failed to prove that he filed his asylum application within one

year after arriving in the United States. We further find that substantial evidence supports

the IJ’s finding of fundamentally changed country conditions. We therefore DENY Bary’s

petition for review.