Jalloh v. Holder

13-2645 Jalloh v. Holder BIA Sichel, IJ A095 841 077 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CORRECTED 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 TO 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 29th day of April, two thousand fifteen. [5] 6 PRESENT: 7 RALPH K. WINTER, 8 GUIDO CALABRESI, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ [12] 13 CHERNOR SADU JALLOH, 14 Petitioner, [15] 16 v. 13-2645 17 NAC [18] 19 LORETTA E. LYNCH, UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent.1 22 _____________________________________ [1] Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Loretta E. Lynch is automatically substituted for former Attorney General Eric H. Holder, Jr. [1] 1 FOR PETITIONER: Carmine D. Boccuzi, Jr., Cleary 2 Gottlieb Steen & Hamilton, 3 New York, New York. [4] 5 FOR RESPONDENT: Stuart F. Delery, Assistant 6 Attorney General; Lyle D. Jentzer, 7 Senior Counsel for National 8 Security; Alison Marie Igoe, 9 Senior Counsel for National 10 Security, National Security Unit, 11 Office of Immigration Litigation, 12 United States Department of 13 Justice, Washington, D.C. [14] 15 UPON DUE CONSIDERATION of this petition for review of a 16 Board of Immigration Appeals (“BIA”) decision, it is hereby 17 ORDERED, ADJUDGED, AND DECREED that the petition for review 18 is DENIED in part, and GRANTED in part. 19 Petitioner Chernor Sadu Jalloh, a native and citizen of 20 Sierra Leone, seeks review of a June 11, 2013, decision of 21 the BIA: (1) affirming a November 30, 2011, decision of an 22 Immigration Judge (“IJ”) denying Jalloh’s application for 23 withholding of removal; and (2) denying his motion to reopen 24 and remand his prior asylum proceedings. In re Jalloh, No. 25 A095 841 077 (B.I.A. June 11, 2013), aff’g No. A095 841 077 26 (Immig. Ct. N.Y. City Nov. 30, 2011). We assume the 27 parties’ familiarity with the underlying facts and 28 procedural history in this case. [2] 1 Under the circumstances of this case, we have reviewed 2 the IJ’s decision as supplemented by the BIA. See Yan Chen 3 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 4 applicable standards of review are well established. See 8 5 U.S.C. § 1252 (b)(4)(B); see also Yanqin Weng v. Holder, 562 6 F.3d 510, 513 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515 , 7 517 (2d Cir. 2006); Cao v. U.S. Dep’t of Justice, 421 F.3d 8 149, 157 (2d Cir. 2005). 9 I. Change in Conditions 10 An alien who demonstrates past persecution benefits 11 from a presumption that his life or freedom would be 12 threatened in his home country in the future, as required 13 for a grant of withholding of removal. See 8 C.F.R. § 14 1208.16(b)(1)(i). The Government may rebut this presumption 15 if it shows a “fundamental change in circumstances such that 16 the applicant’s life or freedom would not be threatened” 17 upon removal. 8 C.F.R. § 1208.16 (b)(1)(i)(A), (ii). The 18 Government must prove the fundamental change by a 19 preponderance of the evidence, and we review the agency’s 20 conclusion for substantial evidence. Lecaj v. Holder, 616 21 F.3d 111, 115, 116 (2d Cir. 2010). The agency must provide [3] 1 a reasoned basis for finding that changed country conditions 2 rebut the presumption. Niang v. Mukasey, 511 F.3d 138 , 148- 3 49 (2d Cir. 2007). 4 Substantial evidence supports the agency’s finding that 5 although Jalloh suffered past persecution, there was a 6 fundamental change in Sierra Leone, as shown in the U.S. 7 State Department country conditions reports. See Xiao Ji 8 Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 9 2006). The 2002 State Department report shows that 10 Revolutionary United Front (“RUF”) insurgents disarmed and 11 demobilized after the civil war ended in 2002. A more 12 recent report demonstrates that by 2010, the RUF had all but 13 ceased to exist and several of its leaders were tried and 14 incarcerated for their crimes. The 2010 State Department 15 report also recounts the aftermath of Sierra Leone’s 16 “devastating” civil war, describing the gradual improvements 17 in Sierra Leone in the following years. Although the report 18 does mention several human rights violations, none of the 19 abuses listed are tied to people of Fulani ethnicity, 20 Jalloh’s home region, or the RUF. See Lecaj, 616 F.3d at 21 119. Furthermore, there is no “contrary or countervailing [4] 1 evidence” in the record to suggest that the RUF’s abuses 2 have continued. Id. at 115-16. 3 II. Material Support Bar 4 The agency also determined that Jalloh’s claim for 5 withholding of removal was barred because he gave “material 6 support” to the RUF, which is a terrorist organization. 7 Jalloh contends that if he provided any support to the RUF, 8 it was immaterial and provided under duress. We have 9 recently remanded cases to the BIA to clarify in 10 precedential decisions the meaning of the term “material,” 11 Ayvaz v. Holder, 564 F. App’x 625 (2d Cir. 2014), and 12 whether there is an implicit duress exception, Ay v. Holder, [13] 743 F.3d 317, 320 (2d Cir. 2014). Although the agency’s 14 alternative determination of changed country conditions 15 provides a sufficient basis for denying Jalloh withholding 16 of removal, the material support finding may impact Jalloh’s 17 eligibility for future immigration benefits, such as 18 adjustment of status. See, e.g., 8 U.S.C. 19 § 1182(a)(3)(B)(iv)(VI). Furthermore, the Department of 20 Homeland Security designated Sierra Leone for Temporary 21 Protected Status (“TPS”) in November 2014. Jalloh may apply [5] 1 for TPS relief until the May 20, 2015 deadline, but will be 2 ineligible if subject to the material support bar. 3 Consequently, the petition is granted with respect to 4 the agency’s material support ruling, and this issue is 5 remanded for further proceedings consistent with this order. 6 The agency may, if it chooses, vacate the material support 7 finding as unnecessary to the resolution of the present 8 matter, leaving the question of whether Jalloh is barred 9 from future immigration benefits on that basis for 10 determination if and when he should apply for such benefits. 11 III. Motion to Reopen and Remand 12 Jalloh moved the BIA to reopen and remand proceedings, 13 arguing that but for the ineffective assistance of his prior 14 counsel, he would have proved that he timely applied for 15 asylum and was eligible for humanitarian asylum. We review 16 the BIA’s denial of a motion to reopen for abuse of 17 discretion. See Ali, 448 F.3d at 517 . The agency denied 18 Jalloh’s motion because even if his counsel was ineffective, 19 he was ineligible for asylum because he was subject to the 20 material support bar and there had been a fundamental change 21 in Sierra Leone. See 8 U.S.C. § 1158 (b)(2)(A)(v), [6] 1 1182(a)(3)(B)(i)(I); 8 C.F.R. § 1208.13 (b)(1)(iii). The BIA 2 did not abuse its discretion. However, if the agency 3 decides upon remand that Jalloh is not subject to the 4 material support bar, it should then revisit Jalloh’s motion 5 because he may be eligible for humanitarian asylum, even 6 though country conditions have changed in Sierra Leone. See [7] 8 C.F.R. § 1208.13 (b)(1)(iii). 8 IV. IFP Motion and Reimbursement of Filing Fee 9 Jalloh also filed a motion to proceed in forma pauperis 10 (“IFP”) and for reimbursement of the filing fee to his pro 11 bono counsel, who paid the fee for him upon filing the 12 petition. Pursuant to 28 U.S.C. § 1915 (a) and (e), we may 13 permit an indigent petitioner to proceed IFP, but must 14 dismiss the petition if it is frivolous. Jalloh has clearly 15 raised a non-frivolous challenge to the agency’s decision 16 and demonstrated that he is indigent. Therefore, the motion 17 for IFP status is granted. As to pro bono counsel’s request 18 for reimbursement of the filing fee, because IFP status is 19 granted and Jalloh was not required to pay the filing fee, 20 that request is granted. [7] 1 For the foregoing reasons, the petition for review is 2 DENIED in part and GRANTED in part and the case is remanded 3 to the BIA. The motion for IFP status and reimbursement of 4 the filing fee is GRANTED, and the Clerk’s Office is 5 directed to make any arrangements necessary to return the 6 funds. As we have completed our review, the pending motion 7 for a stay of removal in this petition is DISMISSED as moot. 8 The pending request for oral argument in this petition is 9 DENIED in accordance with Federal Rule of Appellate 10 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 11 FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk