Filed: May 02, 2013
Latest Update: Mar. 28, 2017
Summary: 12-32 Barrie v. Holder BIA Burr, IJ A078 714 114 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 NOTATI
Summary: 12-32 Barrie v. Holder BIA Burr, IJ A078 714 114 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 NOTATIO..
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12-32
Barrie v. Holder
BIA
Burr, IJ
A078 714 114
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of May, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 MOHAMED BARRIE,
14 Petitioner,
15
16 v. 12-32
17 NAC
18 ERIC H. HOLDER, JR.,
19 Respondent.
20 _____________________________________
21
22 FOR PETITIONER: Theodore Vialet, New York, New York.
23
24 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
25 Attorney General; Terri J. Scadron,
26 Assistant Director; Siu P. Wong,
27 Trial Attorney, Office of
28 Immigration Litigation, United
29 States Department of Justice,
30 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 Mohamed Barrie, a native and citizen of Sierra Leone,
6 seeks review of a December 8, 2011, decision of the BIA
7 affirming the June 11, 2010, decision of Immigration Judge
8 (“IJ”) Sarah M. Burr, which pretermitted his asylum
9 application as untimely and denied his application for
10 withholding of removal and for relief under the Convention
11 Against Torture (“CAT”) due to a fundamental change in
12 circumstances in Sierra Leone. In re Mohamed Barrie, No.
13 A078 714 114 (B.I.A. Dec. 8, 2011), aff’g No. A078 714 114
14 (Immig. Ct. N.Y.C. June 11, 2010). We assume the parties’
15 familiarity with the underlying facts and procedural history
16 in this case.
17 Under the circumstances of this case, we have reviewed
18 the decision of the IJ as supplemented by the BIA. See Yan
19 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
20 applicable standards of review are well established. See
21 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d
22 510, 513 (2d Cir. 2009).
2
1 I. Asylum
2 Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to
3 review the agency’s finding that an asylum application was
4 untimely under 8 U.S.C. § 1158(a)(2)(B). Although we retain
5 jurisdiction to review constitutional claims and questions
6 of law, 8 U.S.C. § 1252(a)(2)(D), a question of law is not
7 implicated “when the petition for review essentially
8 disputes the correctness of an IJ’s fact-finding or the
9 wisdom of his exercise of discretion,” Xiao Ji Chen v. U.S.
10 Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
11 Here, Barrie has waived his right to challenge the
12 agency’s pretermission of his asylum application, as he
13 failed to raise the issue in his brief to this Court. See
14 Yueqing Zhang v. Gonzales,
426 F.3d 540, 541 n.1, 545 n.7
15 (2d Cir. 2005). To the extent that Barrie mentions the one-
16 year bar, he states in one sentence that his testimony and
17 the letter from his witness were sufficient to demonstrate
18 timely filing. Even construing this single sentence as
19 challenging the pretermission finding, we lack jurisdiction
20 as it does not raise a question of law. See Xiao Ji Chen,
21 471 F.3d at 329.
22
3
1 Rather, Barrie argues that he suffered severe harm and
2 persecution in Sierra Leone to such an extent that he
3 warrants a grant of asylum, even absent a well-founded fear
4 of future persecution. We construe this as a request for
5 humanitarian asylum, as defined in 8 C.F.R.
6 § 1208.13(b)(1)(iii)(A),(B). See Tao Jiang v. Gonzales, 500
7 F.3d 137, 141-43 (2d Cir. 2007). However, because this form
8 of relief is available only to persons eligible for asylum,
9 and Barrie’s asylum application was pretermitted for failure
10 to file in a timely manner, he is not eligible for this form
11 of relief. See 8 C.F.R. § 1208.13(b)(1)(iii), (c)(1).
12 II. Withholding of Removal and CAT
13 An alien who demonstrates past persecution benefits
14 from a presumption that his life or freedom would be
15 threatened in the future as required for a grant of
16 withholding of removal. See 8 C.F.R. § 1208.16(b)(1)(I);
17 Baba v. Holder,
569 F.3d 79, 86 (2d Cir. 2009). This
18 presumption may be rebutted by a showing of a “fundamental
19 change in circumstances such that the applicant’s life or
20 freedom would not be threatened . . . upon the applicant’s
21 removal . . . .” 8 C.F.R. § 1208.16(b)(1)(i)(A).
22
4
1 In this case, the agency determined that there had been
2 a fundamental change in circumstances because country
3 conditions evidence, including a State Department report,
4 showed that the civil war ended in 2002, the United Nations
5 peacekeeping troops left in 2005, and their mandate ended in
6 2008. Barrie does not address this finding in the context
7 of the more likely than not standard relevant to withholding
8 of removal and CAT relief, and thus he has waived any
9 challenge to the agency’s denial of those forms of relief.
10 See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.
11 Although Barrie cites the asylum standard and
12 acknowledges that conditions in Sierra Leone are less harsh
13 than when he left, he asserts that conditions remain harsh,
14 ethnic animosity against his Fulani ethnic group remains
15 high, and the rebels still live in Sierra Leone and would be
16 a threat to him. Even construing this statement as an
17 argument that the agency erred in finding a fundamental
18 change in circumstances, Barrie has pointed to no evidence
19 in the record to support his position, nor has he identified
20 any error in the agency’s reliance on the Department of
21 State Country Reports. Because the agency made specific
22 factual findings which Barrie does not challenge and a
23 review of the evidence relied on by the agency supports the
5
1 determination that there has been a change of conditions in
2 Sierra Leone, Barrie’s petition is denied. Niang v.
3 Mukasey, 511 F.3d 138, 141 (2d Cir. 2007) (“[W]here an
4 applicant for withholding of removal establishes past
5 persecution, but the agency finds a fundamental change in
6 country conditions, the agency must provide a reasoned
7 basis, tethered in the record, for its changed country
8 conditions determination, unless undisputed historical facts
9 support the conclusion that the applicant will not face
10 persecution on removal.”).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DENIED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
6
