Barry v. Holder

11-3482
Barry v. Holder
BIA
A094 816 675
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 16th day of October, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 IBRAHIMA BARRY,
14 Petitioner,
15
16 v. 11-3482
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; Mary Jane Candaux,
27 Assistant Director; Ashley Martin,
28 Trial Attorney; Katelin Buell, Law
29 Clerk, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 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 Ibrahima Barry, a native and citizen of

6 Guinea, seeks review of an August 1, 2011, order of the BIA

7 denying Barry’s motion to reopen his immigration

8 proceedings. In re Ibrahima Barry, No. A094 816 675 (B.I.A.

9 Aug. 1, 2011). We assume the parties’ familiarity with the

10 underlying facts and procedural history in this case.

11 We review the BIA’s denial of a motion to reopen for

12 abuse of discretion, mindful of the Supreme Court’s

13 admonition that such motions are “‘disfavored.’” Ali v.

14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (quoting INS v.

15 Doherty, 502 U.S. 314, 323 (1992)). “To prevail on [a]

16 motion [to reopen], the movant must . . . establish prima

17 facie eligibility for asylum, i.e., a realistic chance that

18 he will be able to establish eligibility.” Poradisova v.

19 Gonzales, 420 F.3d 70, 78 (2d Cir. 2005) (internal quotation

20 marks omitted). “This requires the alien to carry the

21 ‘heavy burden’ of demonstrating that the proffered new

22 evidence would likely alter the result in her case.” Jian

2
1 Hui Shao v. Mukasey, 546 F.3d 138, 168 (2d Cir. 2008)

2 (quoting Abudu, 485 U.S. at 110).

3 Barry argues that the medical records he submitted in

4 support of his motion to reopen demonstrate that he suffered

5 past persecution in Guinea. However, the BIA reasonably

6 determined that this evidence would not likely alter the

7 outcome of Barry’s case, as the medical records were not

8 consistent with Barry’s testimony during his merits hearing,

9 but, rather, described a later attack and beating that he

10 did not mention during his merits hearing. Given these

11 inconsistencies, the BIA did not abuse its discretion in

12 determining that the medical records would not likely alter

13 the outcome of Barry’s proceedings. Id.

14 The BIA also reasonably concluded that the death

15 certificate of Barry’s half-brother was not likely to alter

16 the outcome of his proceedings. Although the death

17 certificate reflected that Barry’s half-brother had died as

18 a result of a wound from a firearm, it did not describe the

19 circumstances surrounding his death. Accordingly, the death

20 certificate was not persuasive evidence that Barry either

21 suffered past persecution in Guinea, or that he would suffer

22 persecution there based on his political opinions.

3
1 Although the BIA did not directly address evidence that

2 Barry feared future persecution in Guinea based on his Peuhl

3 ethnicity and his participation in pro-democracy activities

4 in the United States, we decline to remand this case to the

5 BIA. Barry fails to establish that the evidence in support

6 of his claim of future persecution was “material” and “was

7 not available and could not have been discovered or

8 presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).

9 The letter supporting Barry’s claim that he participates in

10 pro-democracy activities in the United States reflects that

11 he has been a member of the Union for the Development of the

12 Fouta Djallon since 2007 – nearly two years prior to his

13 April 2009 merits hearing. Barry does not explain how

14 evidence of his political activities in the United States

15 was unavailable at the time of that hearing. The various

16 news articles about mistreatment of Peuhl people fail to

17 establish a “pattern or practice” of persecution. 8 C.F.R.

18 § 208.13(b)(2)(iii). Accordingly, the record establishes

19 that Barry failed to satisfy the requirements for reopening,

20 and we “can predict with confidence that the agency would

21 reach the same result” even if it considered Barry’s

22 evidence regarding his ethnicity and his political

4
1 activities in the United States. Xiao Kui Lin v. Mukasey,

2 553 F.3d 217, 222 (2d Cir. 2009).

3 For the foregoing reasons, the petition for review is

4 DENIED.

5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk

5