Filed: May 18, 2012
Latest Update: Feb. 12, 2020
Summary: 11-2687-ag BIA Bello v. Holder McManus, IJ A096 262 924 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
Summary: 11-2687-ag BIA Bello v. Holder McManus, IJ A096 262 924 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 ..
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11-2687-ag BIA
Bello v. Holder McManus, IJ
A096 262 924
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 18th day of May, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 RALPH K. WINTER,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 AMADOU BELLO, AKA VIALET FAME,
14 Petitioner,
15
16 v. 11-2687-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Theodore Vialet, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Terri J. Scadron, Assistant
27 Director; Shahrzad Baghai, Trial
28 Attorney, Office of Immigration
29 Litigation, United States Department
30 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review
2 of a Board of Immigration Appeals ("BIA") decision, it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Amadou Bello, a native and citizen of the Central
6 African Republic, seeks review of a June 8, 2011, order of
7 the BIA affirming the May 24, 2005, decision of Immigration
8 Judge ("IJ") Margaret McManus, denying his application for
9 asylum, withholding of removal, and relief under the
10 Convention Against Torture ("CAT"). In re Bello, No. A096
11 262 924 (B.I.A. June 8, 2011), aff’g No. A096 262 924
12 (Immig. Ct. N.Y. City May 24, 2005). We assume the parties'
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we review
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B), (D); Yanqin Weng v. Holder,
20
562 F.3d 510, 513 (2d Cir. 2009); Wu Zheng Huang v. INS, 436
21 F.3d 89, 96 (2d Cir. 2006).
22
23
2
1 I. Well-Founded Fear of Future Persecution
2 The regulations require IJs to exercise the
3 Attorney General's discretion to deny asylum to applicants
4 who establish eligibility based solely on past persecution
5 when the government establishes a fundamental change in
6 circumstances sufficient to rebut the presumption of well-
7 founded fear. See 8 C.F.R. § 1208.13(b)(1). The agency
8 must provide a reasoned basis for finding that changed
9 country conditions rebut the presumption of a well-founded
10 fear of persecution where the petitioner suffered past
11 persecution. Niang v. Mukasey, 511 F.3d 138, 148-49 (2d
12 Cir. 2007).
13 In this case, the record supports the agency's
14 finding that there has been a change in country conditions
15 in the Central African Republic sufficient to rebut the
16 presumption of a well-founded fear of future persecution.
17 The agency found that Bello was persecuted by the military
18 because it suspected him of providing financial support to a
19 group that attempted to overthrow the government. However,
20 in finding that there was a fundamental change in
21 circumstances in the Central African Republic, the agency
22 noted that the former president, who controlled the military
3
1 and ordered reprisals against those who supported the failed
2 coup, had ultimately been overthrown in a military coup, and
3 that there was no evidence of ongoing persecution of
4 supporters of earlier attempted coups. See Passi v.
5 Mukasey, 535 F.3d 98, 103 (2d Cir. 2008). Accordingly,
6 substantial evidence supports the agency's finding that
7 there has been a fundamental change in circumstances in the
8 Central African Republic, rebutting the presumption of
9 Bello's well-founded fear of future persecution.
10 To the extent that Bello contends that he has an
11 independent well-founded fear of future persecution,
12 separate and distinct from the past persecution, substantial
13 evidence supports the agency's finding that Bello has not
14 shown a reasonable possibility of harm on account of a
15 protected ground if he is to return to the Central African
16 Republic. See 8 C.F.R. § 1208.13(b)(2)(i). Bello argues
17 that he has a well-founded fear of persecution in the
18 Central African Republic because reports indicate that the
19 government engages in human rights abuses in its struggle
20 against various armed factions. However, high levels of
21 general crime and violence are insufficient to establish a
22 well-founded fear of persecution. Melgar de Torres v. Reno,
4
1 191 F.3d 307, 314 (2d Cir. 1999). Moreover, Bello does not
2 contend that he would be individually targeted for any
3 particular reason. See Jian Xing Huang v. INS,
421 F.3d
4 125, 129 (2d Cir. 2005) (holding that absent solid support
5 in record, an applicant's fear is "speculative at best").
6 Because Bello was unable to show the objective likelihood of
7 persecution needed to make out an asylum claim, he was
8 necessarily unable to meet the higher standard required to
9 succeed on a claim for withholding of removal. See 8 C.F.R.
10 § 1208.16(b); Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir.
11 2006).
12 II. Humanitarian Asylum
13 In certain circumstances, an IJ may grant asylum
14 to an applicant who has established past persecution but not
15 a well-founded fear of future persecution. See 8 C.F.R.
16 § 1208.13(b)(1)(iii). Humanitarian asylum has been reserved
17 for applicants who have suffered "atrocious forms of
18 persecution," Matter of Chen, 20 I. & N. Dec. 16, 19 (BIA
19 1989), or who may suffer "other serious harm upon their
20 return," 8 C.F.R. § 1208.13(b)(1)(iii); see Matter of L-S-,
21 25 I. & N. Dec. 705, 713-14 (BIA 2012). To merit a grant of
22 humanitarian asylum on the basis of severe past persecution,
23 an applicant must demonstrate "long-lasting physical or
5
1 mental effects of his persecution." Omaro Jalloh v.
2 Gonzales, 498 F.3d 148, 152 (2d Cir. 2007). The IJ noted
3 that Bello was pushed to the ground, kicked, tied-up, and
4 beaten to the point where he lost consciousness; his house
5 and business were destroyed; and he was told to leave the
6 country. On the basis of these findings, the IJ concluded,
7 and the BIA affirmed the conclusion, that while Bello's past
8 persecution was unfortunate, it was not so severe that he
9 should be granted asylum as a matter of discretion,
10 considering the substantial changes in the Central African
11 Republic. The agency did not abuse its discretion in
12 finding that the past persecution suffered by Bello did not
13 merit a grant of humanitarian asylum on the basis of severe
14 past persecution. See 8 C.F.R. § 1208.13(b)(1)(iii)(A); 8
15 U.S.C. § 1252(b)(4)(D); Hoxhallari v. Gonzales,
468 F.3d
16 179, 184 (2d Cir. 2006) (upholding denial of humanitarian
17 asylum to supporter of Albanian Democratic Party who had
18 been beaten and harassed on six occasions).
19 Likewise, the agency did not abuse its discretion
20 in concluding that Bello had not established a reasonable
21 possibility that he would suffer other serious harm if he
22 returned to the Central African Republic. See 8 C.F.R.
23 § 1208.13(b)(1)(iii)(B). While the IJ and BIA did not
6
1 expressly discuss whether Bello would suffer "other serious
2 harm" upon return to the Central African Republic, see id.,
3 the BIA concluded that Bello's fear of future harm was "not
4 sufficiently severe to qualify him for humanitarian relief"
5 (R. 4). In addition, Bello did not raise this point before
6 the agency. Finally, in light of the IJ's otherwise careful
7 findings, here, remand would be futile because it is clear
8 that the same decision would be reached. See Xiao Ji Chen
9 v. U.S. Dep't of Justice,
471 F.3d 315, 388 (2d Cir. 2006).
10 For the foregoing reasons, the petition for review
11 is DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DENIED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O'Hagan Wolfe, Clerk
20
21
7
