Filed: Sep. 04, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3550 Ndiaye v. Holder 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 P
Summary: 11-3550 Ndiaye v. Holder 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 PA..
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11-3550
Ndiaye v. Holder
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 4th day of September, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _______________________________________
12
13 OMAR NDIAYE,
14 Petitioner,
15
16 v. 11-3550-ag
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; Ernesto H. Molina,
27 Jr., Assistant Director; Joanna L.
28 Watson, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Omar Ndiaye, a native and citizen of
6 Mauritania, seeks review of an August 15, 2011, decision of
7 the BIA reversing the March 5, 2009, decision of Immigration
8 Judge (“IJ”) Helen Sichel, granting his application for
9 asylum. In re Omar Ndiaye, No. 078 642 291 (B.I.A. Aug. 15,
10 2011), rev’g No. A078 642 291 (Immig. Ct. N.Y. City Mar. 5,
11 2009). We assume the parties’ familiarity with the
12 underlying facts and procedural history in this case.
13 Under the circumstances of this case, we have reviewed
14 the BIA’s decision. See Yan Chen v. Gonzales, 417 F.3d 268,
15 271 (2d Cir. 2005). The applicable standards of review are
16 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
17 v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
18 Ndiaye challenges the BIA’s vacatur of the IJ’s grant
19 of asylum. Because the IJ found that Ndiaye demonstrated
20 past persecution, and the BIA did not reverse that finding,
21 he benefitted from the presumption of a well-founded fear of
22 future persecution. See 8 C.F.R. §§ 1208.13(b)(1),
23 1208.16(b)(1)(I); see also Baba v. Holder,
569 F.3d 79, 86
2
1 (2d Cir. 2009); Li Hua Lin v. U.S. Dep’t of Justice, 453
2 F.3d 99, 105 (2d Cir. 2006). However, the regulations
3 require the agency to exercise the Attorney General’s
4 discretion to deny asylum to applicants who establish
5 eligibility based solely on past persecution when the
6 government establishes a fundamental change in circumstances
7 sufficient to rebut the presumption of well-founded fear. 8
8 C.F.R. § 1208.13(b)(1); see also
id. § 1208.16(b)(1)
9 (setting forth application of presumption for withholding of
10 removal).
11 Here, the BIA reasonably concluded that the government
12 established a fundamental change in circumstances through
13 the U.S. Department of State 2007 Country Report on Human
14 Rights for Mauritania which stated that “[t]he new
15 government acted quickly to address the country’s most
16 serious human rights problems, [including] preparations for
17 the repatriation of thousands of Afro-Mauritanians living as
18 refugees in Senegal and Mali following their expulsion
19 during ethnic tensions and violence in 1989-91.” Admin. R.
20 at 3, 198; see Ba v. Mukasey,
539 F.3d 1265, 1268-69 (10th
21 Cir. 2008) (2004 and 2005 Country Reports stating that
22 government was cooperating with repatriation of Afro-
3
1 Mauritanian refugees from Senegal, inter alia, rebutted
2 presumption of well-founded fear of persecution of Afro-
3 Mauritanian petitioner who was persecuted by the White Moors
4 in 1989). But cf. Niang v. Mukasey, 511 F.3d 138, 149 (2d
5 Cir. 2007) (finding insufficient the BIA’s conclusion that
6 “the current situation in Mauritania has improved
7 dramatically” without reasoning or citation to any
8 supporting facts). The BIA also did not err in citing the
9 more recent 2009 Mauritania Country Report of which it took
10 administrative notice, which indicated that the national
11 reconciliation program for the repatriation of Afro-
12 Mauritanian refugees from Senegal and Mali conducted, in
13 coordination with the Office of the United Nations High
14 Commissioner for Refugees, was successfully concluded. See
15 Qun Yang v. McElroy,
277 F.3d 158, 163 n.4 (2d Cir. 2002)
16 (“It is well-settled that the BIA has the authority to take
17 administrative notice of current events bearing on an
18 applicant’s well-founded fear of persecution.”).
19 Ndiaye’s argument that the government has not
20 established a fundamental change in circumstances because
21 the Country Reports also indicate ongoing struggles for
22 Afro-Mauritanians related to political participation and
4
1 civil rights in general, is unpersuasive as political
2 disenfranchisement and racial discrimination are not
3 persecution. Ivanishvilli v. U.S. Dep’t of Justice, 433
4 F.3d 332, 341 (2d Cir. 2006) (noting that harm must rise
5 above “mere harassment” to constitute persecution). Indeed,
6 all of Ndiaye’s evidence was from 2002 or earlier; thus
7 there is no objective evidence that he would still be
8 subject to persecution in Mauritania.
Ba, 539 F.3d at 1266-
9 67 (a showing of possible future discrimination does not
10 establish a fear of future persecution). Moreover, the BIA
11 did not err in relying solely on State Department Country
12 Reports for evidence of current country conditions, as there
13 was no other evidence presented. See Xiao Ji Chen v. U.S.
14 Dep’t of Justice,
471 F.3d 315, 341-42 (2d Cir. 2006); Tu
15 Lin v. Gonzales,
446 F.3d 395, 400 (2d Cir. 2006); cf.
16 Tian-Yong Chen v. INS,
359 F.3d 121, 127 (2d Cir. 2004)
17 (noting that remand may be appropriate “where the agency’s
18 determination is based on an inaccurate perception of the
19 record, omitting potentially significant facts”).
20 Accordingly, as the agency reasonably concluded that the
21 government overcame Ndiaye’s presumption of a well-founded
22 fear of future persecution, it did not err in denying his
23 application for asylum and withholding of removal. 8 C.F.R.
5
1 §§ 1208.13(b)(1)(I), 1208.16(b)(1). We have considered all
2 of Ndiaye’s remaining arguments and find them to be without
3 merit.
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
6
