Cheikh Koita v. Eric Holder, Jr.

Filing

Per Curiam OPINION filed : The petition for review is DENIED, decision not for publication pursuant to local rule 28(g). Ralph B. Guy , Jr., Circuit Judge; Richard Allen Griffin, Circuit Judge and Joseph M. Hood, U.S. District Judge, for the Eastern District of Kentucky, sitting by designation.

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N O T RECOMMENDED FOR FULL-TEXT PUBLICATION F ile Name: 10a0486n.06 N o . 09-3772 U N I T E D STATES COURT OF APPEALS F O R THE SIXTH CIRCUIT

FILED
Aug 06, 2010
LEONARD GREEN, Clerk

C H E IK H SEYDI MOHAMED KOITA, P e t i t io n e r , v. E R IC H. HOLDER, JR., Attorney General, R e sp o n d e n t. O n Petition for Review of an O rd e r of the Board of Im m ig ra tio n Appeals

/ B e fo r e : G U Y and GRIFFIN, Circuit Judges; HOOD, District Judge.* P e titio n e r Cheikh Seydi Mohamed Koita, a native and citizen of

P E R CURIAM.

M a u rita n ia , appeals from the decision of the Board of Immigration Appeals (BIA) denying h is motion to reconsider the denial of his motion to reopen removal proceedings. Petitioner's m o tio n to reopen and motion for reconsideration relied on articles reporting a coup d'etat by m ilita ry leaders ousting Mauritania's democratically elected government in August 2008. T h e BIA denied the motion to reopen and the motion for reconsideration on the grounds that p e titio n e r did not demonstrate a material change in conditions bearing on petitioner's claims

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by designation.

*

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f o r relief. After review of the record, we find no abuse of discretion and deny the petition f o r review. I. P e titio n e r entered the United States on a nonimmigrant visa on May 2, 2004, and filed a n affirmative application for asylum, withholding of removal, and relief under the C o n v e n tio n Against Torture (CAT) on September 29, 2004. Petitioner was served with a N o tic e to Appear in removal proceedings on November 8, 2004, charging him with failing to comply with the conditions of the student status under which he was admitted. F o llo w in g a merits hearing on May 25, 2006, the Immigration Judge (IJ) found that petitione r was credible, but concluded that--although a close question--petitioner had failed to establish past persecution. The IJ also concluded, in the alternative, that petitioner failed to demonstrate a well-founded fear of future persecution because conditions in Mauritania h a d improved. On appeal, the BIA agreed that petitioner testified credibly that he was m istre a te d in Mauritania, but found that even if the mistreatment amounted to past p e r s e c u t io n , the government proved changed country conditions such that petitioner no lo n g e r had a reasonable well-founded fear of future persecution or more likely than not faced to rtu re upon return to Mauritania. T h is court denied the petition for review of the BIA's decision denying his a p p lic a tio n s for asylum, withholding of removal, and relief under the CAT. Koita v. M u k a se y , 314 F. App'x 839 (6th Cir. 2009). Significantly, in doing so, we observed that

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b e c au s e the BIA's decision did not adopt or address the IJ's finding that petitioner had failed to demonstrate past persecution, remand would be required if it were necessary to reach that is s u e . Id. at 843. 1 Remand was not necessary, however, because "[s]ubstantial evidence s u p p o rt[ e d ] the IJ's and BIA's conclusion that even if petitioner experienced past persecution in Mauritania, he [did] not have a well-founded fear of future persecution because the g o v e rn m e n t successfully demonstrated sufficient evidence of a fundamental change in c o u n try conditions in Mauritania." Id. S p ec ifica lly, the record included evidence from the State Department's 2005 Country R ep o rt on Human Rights Practices in Mauritania, which reported the August 2005 military c o u p deposing former President Maaouiya Ould Sid'Ahmed Taya and establishment of a tr a n s itio n a l government based on "`National Consultations' with over 500 political parties, N G O s , and public figures" that committed to a timeline for democratic elections no later than M a rc h 2007. Id. at 844. Indeed, we noted that the most relevant information in the 2005 C o u n try Report was that "the transitional government had released, through a general a m n e s ty, those convicted of `coup plotting and related crimes' and that there were `no reports o f political prisoners.'" Id. This court also rejected petitioner's claim that the BIA had erred b y taking administrative notice of the fact that parliamentary elections were actually held in

The opinion summarized petitioner's testimony regarding four incidents of mistreatment at the hands of police and his membership in the Action for Change (AC), which advocated for black students, and the Rally of Forces Democratic (RFD) political party. Koita, 314 F. App'x at 840-41.

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la te 2006 and early 2007 and that a free and fair presidential election resulted in the in s ta lla tio n of Sidi Ould Cheikh Abdallahi as President of Mauritania in April 2007. Id. O n September 8, 2008, while the petition for review was still pending in this court, p etitio n er filed his motion to reopen removal proceedings. On February 27, 2009, the BIA d e n ie d the motion to reopen because petitioner had not demonstrated the materiality of the 2 0 0 8 coup to his claims for relief. Petitioner submitted a timely motion for reconsideration a lle g in g that the coup leaders had also been in charge of the military prior to the overthrow o f President Taya in 2005. On May 28, 2009, the BIA denied reconsideration because p e titio n e r failed to identify any factual or legal error in the prior decision. See 8 C.F.R. § 1 0 0 3 .2 (c )(2 ). Also, treated as a motion to reopen, the BIA found that the evidence petitioner s u b m itte d failed to demonstrate materially changed conditions warranting reopening of the re m o v a l proceedings. This appeal followed. II. T h is court reviews the BIA's decision to deny a motion to reopen or for re c o n s id e ra tio n for abuse of discretion. See 8 C.F.R. § 1003.2(b)-(c); Kucana v. Holder, 130 S . Ct. 827, 834 (2010); INS v. Doherty, 502 U.S. 314, 323 (1992). We will "find an abuse o f discretion if the denial of the motion to reopen `was made without a rational explanation, in e x p lic a b ly departed from established policies, or rested on an impermissible basis such as in v id io u s discrimination against a particular race or group.'" Bi Feng Liu v. Holder, 560 F .3 d 485, 490 (6th Cir. 2009) (quoting Allabani v. Gonzales, 402 F.3d 668, 675 (6th Cir.

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2 0 0 5 )). Legal issues are reviewed de novo. Harchenko v. INS, 379 F.3d 405, 409 (6th Cir. 2 0 0 4 ). S u b je c t to several exceptions, a motion to reopen generally must be filed "within 90 d a ys of the date of entry of a final administrative order of removal." 8 U.S.C. §

1 2 2 9 a (c)(7 )(C )(i). Having filed the motions well outside the 90-day period, petitioner sought re lie f under the exception for motions to reopen applications for asylum or withholding " b a se d on changed country conditions . . . if such evidence is material and was not available a n d would not have been discovered or presented at the previous proceeding." 8 U.S.C. § 1 2 2 9 a (c )(7 )(C )(ii); see also 8 C.F.R. § 1003.2(c)(ii). There is no dispute that the evidence w a s not available because the BIA's final decision preceded the 2008 coup d'etat. P e titio n e r essentially argues that the coup "undid" the earlier change in conditions that th e BIA concluded would be sufficient to rebut the presumption of a well-founded fear of f u tu re persecution that would arise if petitioner had established past persecution on account o f political opinion.2 The evidence petitioner submitted with the motion to reopen, however, d id little more than report the fact of the military coup led by General Mohamed Ould Abdel A z iz ; international condemnation of the overthrow of President Abdallahi; and concern that th e coup could affect foreign aid and efforts to combat slavery in Mauritania. However, "a m o tio n to reopen based on changed country conditions `cannot rely on speculative

We note that, as the government points out, petitioner misstates the record by claiming that the IJ and the BIA concluded that he had established past persecution. This court specifically found that the BIA had not made a determination on that issue.

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c o n c lu s io n s or mere assertions of fear of possible persecution, but instead must offer rea so n ab ly specific information showing a real threat of individual persecution.'" H a r c h e n ko , 379 F.3d at 410 (citation omitted). The BIA did not abuse its discretion in f in d in g that the petitioner had not shown the coup presented a threat of future harm to p e titio n e r individually. In an attempt to cure this deficiency, petitioner's motion to reconsider asserted that th e changed conditions--the military coup in 2008--caused him to fear future persecution b e c au s e the same leaders had allegedly been in control of the military before the 2005 m ilita ry coup that ousted former President Taya. This allegation was neither proved nor sh o w n to represent a threat of future harm to petitioner. The additional articles added only th a t the coup followed President Abdallahi's attempt to remove several top military officers, a n d that sanctions were imposed on the military government by the African Union in F e b ru a ry 2009. Nor was there evidence that the coup resulted in the targeting of individuals s im ila rly situated to petitioner. The BIA did not abuse its discretion in concluding that p e titio n e r failed to present specific information showing a threat of future persecution to him in d iv id u a lly so as to warrant reopening the removal proceedings on the grounds of materially c h a n g ed conditions in Mauritania. T h e petition for review is DENIED.