2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-29-2010

Chernoh Barrie v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2137

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-2137

___________

CHERNOH TAHA BARRIE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A097 536 691)

Immigration Judge: Honorable Mirlande Tadal

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 16, 2010

Before: AMBRO, HARDIMAN AND STAPLETON, Circuit Judges

(filed: November 29, 2010 )

___________

OPINION

___________

PER CURIAM

Before us is a petition for review of an order of the Board of Immigration Appeals

(“BIA”), denying the Petitioner‟s motion to reopen his removal proceedings. We will 

grant the petition and remand for further proceedings.
2

Mohamadou Bilo Barry, a native and citizen of Guinea, attempted to enter the 

United States in 2007 using a passport with the name Chernoh Taha Barrie.1 He was 

placed in removal proceedings because he lacked valid travel documents, and because he 

sought admission by fraud or willful misrepresentation. He applied for asylum and 

related relief. Barrie‟s written claim for relief was based on his allegation that he had 

been and would be persecuted and/or tortured because he supported an anti-government 

strike and supported the UPR, a party made up of people of Fula2origin. A.R. 283. The 

application stated that he was detained and beaten, that he was released because a friend 

bribed one of the officers, but that he then had to go into hiding until he was able to leave 

the country. Id

In his hearing before the Immigration Judge (“IJ”), Barrie testified that he was not 

just a supporter of the UPR, but a member. The IJ made an adverse credibility finding on 

that basis, which the BIA affirmed. This Court denied Barrie‟s petition for review, with 

one judge dissenting. Barrie v. Att‟y Gen., C.A. No. 08-2988, 2009 WL 2186521 (3d 

Cir. July 23, 2009).

In January 2010, Barrie filed a counseled motion to reopen, contending that 

changed circumstances in Guinea warranted reopening of the removal proceedings. 

Barrie‟s motion cited five changed circumstances: (1) a new military government in 

Guinea, which took power in December 2008; (2) a September 28, 2009 event during 

 

1 We will refer to him as “Barrie,” the name used in the Administrative Record.
3

which members of the military regime massacred over 150 political opposition party 

members and supporters; (3) evidence that members of the Fulani ethnic group had been 

persecuted by the military and their supporters; (4) additional evidence that Fulani 

merchants like Barrie had been targeted by the Guinean military; and (5) evidence from 

his wife that she had been attacked by men in uniform at home and feared for her life. 

Exhibits included an affidavit by Barrie‟s attorney, an affidavit from Barrie, a letter and a 

medical certificate from his wife, a letter from a friend recounting recent attacks against 

Fulanis, and several news articles. 

The BIA found that Barrie‟s motion to reopen was untimely, as it was not filed 

within 90 days of the final administrative decision, as required by statute and regulation. 

A.R. 2, citing Immigration and Nationality Act (“INA”) § 240(c)(7)(i) [8 U.S.C. 

§ 1229a(c)(7)(i)]; 8 C.F.R. § 1003.2(c). The BIA recognized that the time requirements 

do not apply “to a motion to reopen based on changed circumstances arising in the 

country of nationality if such evidence is material and was not available and could not 

have been discovered or presented at the previous hearing,” but found that Barrie‟s 

motion did not qualify under that exception. A.R. 2, citing INA 240(c)(7)(C)(ii) [8 

U.S.C. § 1229a(c)(7)(C)(ii)]; 8 C.F.R. § 1003.2(c)(3)(ii). The BIA concluded that Barrie 

did “not establish his prima facie eligibility for the relief he seeks, so as to warrant 

 

2

The Fula people are apparently interchangeably known as “Fulani” or “Peuhl.”
4

untimely reopening of these proceedings.” A.R.2. Proceeding pro se, Barrie filed a 

timely petition for review.

Where the BIA denies a motion to reopen for failure to establish a prima facie

case, this Court reviews the BIA‟s ultimate decision to deny a motion to reopen for abuse 

of discretion, and reviews underlying findings of fact for substantial evidence.

3

 Sevoian 

v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). The BIA abuses its discretion where the 

denial of the motion to reopen is arbitrary, irrational, or contrary to law. Id. Where the 

motion to reopen is based on changed country conditions, we consider whether the 

movant presented evidence of changed country conditions and whether the movant 

presented a prima facie case for asylum. Shardar v. Att‟y Gen., 503 F.3d 308, 311 (3d 

Cir. 2007). “To establish a prima facie case for asylum, the alien must produce objective 

evidence that, when considered together with the evidence of record, shows a reasonable 

likelihood that he is entitled to relief.” Huang, 2010 WL 3489543, at *13.

It is not clear whether the BIA believed that Barrie failed to show changed country 

conditions, or whether it simply determined that, regardless of whether conditions had 

changed, Barrie had not presented a prima facie case that he is eligible for asylum. To 

 

3

 We recently enforced the BIA‟s own regulation that forbids it from reviewing an

Immigration Judge‟s findings of facts de novo. Huang v. Att‟y Gen., C.A. No. 

09-2437, ___ F.3d ___, 2010 WL 3489543, *8 (3d Cir. Sept. 8, 2010); 8 C.F.R. 

§ 1003.1(d)(3)(i). When reviewing an Immigration Judge‟s decision, the BIA is

precluded from finding facts. However, when considering a motion to reopen, the 

BIA has the responsibility of considering the facts in the first instance. 8 C.F.R. § 

1003.2(c)(3)(ii).
5

the extent that the BIA found that conditions had not materially changed in Guinea, that 

finding is not supported by substantial evidence. Barrie presented evidence that since the 

time of his hearing, there had been a military coup, that the military was hostile to people 

of his ethnic group, and specifically, that members of the military and the gendarmes had 

massacred and raped scores of people in an incident that a Human Rights Watch report 

found was at least in part ethnically motivated.

We further hold that the BIA abused its discretion in concluding that Barrie failed 

to establish a prima facie case for asylum. The BIA rejected much of Barrie‟s evidence 

by characterizing it as “vague and generalized.” We do not agree with that 

characterization. The Human Rights Watch report Barrie submitted recounts in detail the 

killings and brutal rapes instigated by the military at a peaceful opposition rally on 

September 28, 2009. The article indicates “many of the killers and rapists made 

ethnically biased comments during the attacks, insulting and appearing to target the 

Peuhl, the majority ethnicity of the opposition supporters, and claiming that the Peuhl 

wanted to seize power and needed to be „taught a lesson.‟” A.R. 48. The letter from 

Barrie‟s wife states that “the calm did not return at all here since the killings of 

September 28, 2009 . . . .” A.R. 32. She indicated that she was seriously beaten by men 

in uniform on the following night, she required medical treatment,4and that she and the 

 

4

 Barrie submitted a medical certificate indicating that his wife had been treated

and released for “Wounds [and] Bruises at the Abdomen, the Back and at the 

Lumbar Region due to beating.” A.R. 37.
6

children left home to stay with her cousin, because she “fear[ed] being killed by security 

forces which attack people nightly.” Id. Barrie‟s wife also indicated that Barrie‟s cousin 

had been missing since September 28, 2009. Id. We find that this evidence, together 

with other evidence in the record,5shows a reasonable likelihood that Barrie is entitled to 

relief. We express no opinion as to whether Barrie ultimately will be successful, but we 

hold that the evidence he presented makes out a prima facie case sufficient to warrant 

reopening of the removal proceedings.

For the foregoing reasons, we will grant the petition for review and remand for 

further proceedings.

 

5

 The BIA discounted the evidentiary value of a letter Barrie submitted from a 

friend that stated in part that opposition party members and supporters “like you 

have became (sic) the principle (sic) target of the military.” A.R. 3, 40. The BIA

found that the reliability of the letter was “undermined by its references to [Barrie‟s] 

past experiences in Guinea, which we have already deemed not credible.” The BIA 

may properly discount evidence that is related to an alien‟s previously discredited 

testimony, if not rehabilitated. However, we believe that Barrie nonetheless 

submitted sufficient independent evidence to support reopening of proceedings.