Filed: Apr. 29, 2015
Latest Update: Mar. 02, 2020
Summary: 13-3241 Bakayoko v. Holder BIA Vomacka, IJ A088 186 018 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
Summary: 13-3241 Bakayoko v. Holder BIA Vomacka, IJ A088 186 018 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 ..
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13-3241
Bakayoko v. Holder
BIA
Vomacka, IJ
A088 186 018
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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 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 FOULHEL SIDIKI BAKAYOKO,
14 Petitioner,
15
16 v. 13-3241
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.1
22 _____________________________________
23
24 FOR PETITIONER: Andy Wong, New York, New York.
25
26
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 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
2 General; Holly M. Smith, Senior
3 Litigation Counsel; Juria L. Jones,
4 Trial Attorney; Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review is
12 DISMISSED in part and DENIED in part.
13 Petitioner Foulhel Sidiki Bakayoko, a native and citizen
14 of the Ivory Coast, seeks review of an August 7, 2013 decision
15 of the BIA, which affirmed a February 9, 2012 decision of an
16 Immigration Judge (“IJ”) denying Bakayoko’s application for
17 asylum, withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Foulhel Sidiki Bakayoko, No.
19 A088 186 018 (B.I.A. Aug. 7, 2013), aff’g No. A088 186 018
20 (Immig. Ct. N.Y. City Feb. 9, 2012). We assume the parties’
21 familiarity with the underlying facts and procedural history
22 in this case.
23 We have reviewed the IJ’s decision as supplemented by the
24 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
25 The applicable standards of review are well established. See
2
1 8 U.S.C. § 1252(b)(4); see also Yanqin Weng v. Holder, 562 F.3d
2 510, 513 (2d Cir. 2009). Bakayoko does not challenge the
3 agency’s denial of CAT relief, so we review only his asylum and
4 withholding of removal claims.
5 I. Timeliness of the Asylum Application
6 An asylum applicant must demonstrate “by clear and
7 convincing evidence that the application has been filed within
8 1 year after the date of the alien’s arrival in the United
9 States,” or must demonstrate “either the existence of changed
10 circumstances which materially affect the applicant’s
11 eligibility or extraordinary circumstances relating to the
12 delay in filing an application.” 8 U.S.C. § 1158(a)(2)(B),
13 (D). We lack jurisdiction to review the agency’s finding that
14 an applicant did not meet his burden to show timely filing, or
15 its finding of neither changed nor extraordinary circumstances
16 excusing the untimeliness.
Id. § 1158(a)(3). We retain
17 jurisdiction, however, to review constitutional claims and
18 “questions of law.” 8 U.S.C. § 1252(a)(2)(D).
19 It is undisputed that Bakayoko entered the United States
20 in 2001 and applied for asylum in 2008, well beyond the one-year
21 filing deadline. Because Bakayoko challenges only the IJ’s
3
1 finding that there were no extraordinary circumstances excusing
2 the untimely filing of his asylum application, we are without
3 jurisdiction to review the IJ’s pretermission of his asylum
4 application. See 8 U.S.C. § 1158(a)(3).
5 II. Withholding of Removal
6 The agency also reasonably determined that Bakayoko failed
7 to meet his burden to establish eligibility for withholding of
8 removal. Withholding of removal under 8 U.S.C. § 1231(b)(3)
9 is a mandatory form of relief that requires an applicant like
10 Bakayoko, who does not allege past persecution, to show that
11 it is more likely than not that his “life or freedom would be
12 threatened in the proposed country of removal on account of
13 race, religion, nationality, membership in a particular social
14 group, or political opinion.” 8 C.F.R. § 1208.16(b).
15 The agency reasonably found that despite his credible
16 testimony, Bakayoko did not establish a “clear probability” of
17 persecution by either the Popular Ivorian Front (“FPI”) or the
18 Ivory Coast government. Hongsheng Leng v. Mukasey, 528 F.3d
19 135, 143 (2d Cir. 2008). Bakayoko has never been harmed or
20 threatened in the Ivory Coast; the harm to Bakayoko’s mother
21 and brother occurred over 10 years ago; and there is no evidence
4
1 that anyone in his family has been harmed since then. Indeed,
2 Bakayoko asserts in his personal statement that his parents fled
3 to Burkina Faso several years ago, which suggests that they are
4 no longer a political threat and are unlikely to be targeted
5 again. Furthermore, although Bakayoko claims that he will be
6 persecuted because of his Rally for Republicans (“RDR”)
7 membership, he was never an RDR member in the Ivory Coast, and
8 he does not point to any evidence that anyone in the Ivory Coast
9 is aware that he is a member of RDR’s New York chapter.
10 Even if he were known to be an RDR member, the background
11 evidence also shows that a regime change has occurred since
12 Bakayoko left the Ivory Coast and that Alassane Ouattara, the
13 head of Bakayoko’s political party, is now in power. Although
14 the evidence reveals continuing and uncertain political
15 turmoil, that turmoil does not demonstrate that Bakayoko will
16 be targeted for harm on account of a protected ground. See
17 Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999).
18 The IJ also found that Bakayoko failed to corroborate his
19 testimony, specifying several items that he could have
20 submitted but did not. For the first time on appeal, Bakayoko
21 objects that the agency violated his right to due process by
5
1 not telling him what corroborating evidence was required prior
2 to the IJ’s oral decision. But because the lack of
3 corroborating evidence was only an additional ground, and
4 because the IJ’s decision was adequately supported by the
5 finding that Bakayoko had not demonstrated a clear probability
6 of persecution in light of the changed political situation in
7 the Ivory Coast and the remoteness of the past actions against
8 relatives, we need not reach the merits of this objection on
9 appeal.
10 For the foregoing reasons, the petition for review is
11 DISMISSED in part and DENIED in part. As we have completed our
12 review, any stay of removal that the Court previously granted
13 in this petition is VACATED, and any pending motion for a stay
14 of removal in this petition is DISMISSED as moot. Any pending
15 request for oral argument in this petition is DENIED in
16 accordance with Federal Rule of Appellate Procedure 34(a)(2),
17 and Second Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
6
