2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-19-2011

Mamadou Nbaye v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3399

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IMG-027 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3399

___________

MAMADOU NBAYE,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A097-520-789)

Immigration Judge: Honorable Grace A. Sease

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 4, 2011

Before: AMBRO, GREENAWAY, JR. AND GREENBERG, Circuit Judges

(Opinion filed: January 19, 2011) 

___________

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. For the 

following reasons, we will deny the petition.
2

I.

Mamadou Nbaye, a native and citizen of Guinea, attempted to enter the United 

States in 2005 using a stolen French passport. He was detained and subsequently pled 

guilty to use of a fraudulent passport, in violation of 18 U.S.C. § 3551. While detained, 

he applied for asylum and related relief. He claimed he would be persecuted on account 

of his political opinion if returned to Guinea. In support of this claim, Nbaye stated that 

he, his father, and his sister were members of the Rally of the Guinean People Party 

(“RPG”), which opposed the party of the then-president of Guinea. JA at 346. Nbaye

claimed that he worked as a driver for the RPG, but quit after his father and sister were 

killed by members of the ruling party. Id. at 351. Shortly thereafter, he and his mother 

were beaten and he was imprisoned for ten months, until a friend paid a bribe for his 

release. Id. at 352-53. He went to France several months later and then traveled to the 

United States. Id. at 353-54.

In his hearing before the Immigration Judge (“IJ”), Nbaye offered his testimony, 

his identification card and passport from Guinea, a map of Guinea, and a few reports and 

articles about conditions in the country. JA at 311-40. The IJ found Nbaye “simply not 

credible” based on inconsistencies she perceived in his testimony and a “less than 

candid” demeanor. JA at 177-78. The IJ also faulted the lack of corroborating evidence 

and did not accept Nbaye’s explanation that he had been unable to contact anyone to 

obtain corroboration. Id. The IJ denied relief, and the BIA affirmed in 2005. Nbaye did 

not petition for review of the BIA’s final order of removal.
3

Several years later, in May 2009, Nbaye filed a counseled motion to reopen, 

contending that changed circumstances in Guinea warranted reopening of his removal 

proceedings. Nbaye cited a December 2008 military coup that overthrew the previous 

government and reports of abuses by security forces. JA at 51. He argued that there 

would be “escalated fighting among political groups” in Guinea and that his affiliation 

with the RPG was now an even greater reason to fear persecution, torture, and death. Id. 

In support of his motion, Nbaye submitted a 2008 State Department Report on Human 

Rights Practices in Guinea, as well as several articles about the coup. He also offered an 

undated letter from a friend stating that many of Nbaye’s friends had been killed and that

his mother had fled to Senegal. The friend warned him never to return to Guinea because 

“they” would torture and kill him. JA at 82. In addition to this evidence regarding 

country conditions, Nbaye also offered evidence to corroborate his previous testimony, 

including birth certificates for himself and his sister, death certificates for his sister and 

father, and a newspaper article describing their deaths and his imprisonment. JA at 59-

80.

The BIA denied Nbaye’s motion, finding that he had “not demonstrated changed 

country conditions satisfying the exception” for untimely motions to reopen. JA at 25. 

In pertinent part, the BIA concluded that the undated letter from Nbaye’s friend was

insufficient to demonstrate worsening conditions in Guinea material to Nbaye’s claim. 

Id. at 24-25. Acknowledging that the articles and State Department report showed a 

change in the Government of Guinea, the BIA concluded that the documents did not 
4

show how the change in government would affect Nbaye “differently from the general 

population of Guinea.” Id. at 25. In other words, the documents did not show that 

“conditions have specifically worsened for supporters of the [RPG].” Id. Nbaye filed a 

timely petition for review.

II.

We have jurisdiction under 8 U.S.C. § 1252 to review the order denying Nbaye’s 

motion to reopen. In his brief, Nbaye also seeks review of an order from the BIA 

denying his motion to reconsider the denial of his motion to reopen. His petition for 

review, however, concerns only the BIA’s order denying his motion to reopen. Nbaye 

has not moved to amend his petition to include the order denying reconsideration. We 

therefore lack jurisdiction to review the BIA’s order denying reconsideration because 

Nbaye has not filed a petition for review of that order. See 8 U.S.C. § 1252(b)(1).

The Government contends that Nbaye has waived any challenge to the BIA’s

order denying his motion to reopen by failing to address the order in his brief. See Resp. 

Br. at 15. We disagree. Although it is “well settled that an appellant’s failure to identify 

or argue an issue in his opening brief constitutes waiver of that issue on appeal,” United 

States v. Pellulo, 399 F.3d 197, 222 (3d Cir. 2002), and Nbaye does frame the issues for 

review in terms of the denial of the motion for reconsideration, he nonetheless refers to 

the “decisions” of the BIA in his argument and makes arguments that pertain to the 

substance of the BIA’s denial of the motion to reopen. See Pet. Br. at 14-16. We 

therefore conclude that Nbaye has not waived review of the BIA’s order denying the
5

motion to reopen.

III.

A motion to reopen “must be filed no later than 90 days after the date on which 

the final administrative decision was rendered in the proceeding sought to be reopened.” 

See 8 C.F.R. § 1003.2(c)(2). Nbaye filed his motion years after the BIA issued its final 

order of removal and he does not contest its untimeliness. Instead, Nbaye sought to 

proceed under the exception for motions based on “changed country conditions arising in 

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

would not have been discovered or presented at the previous proceeding.” 8 U.S.C. 

§ 1229a(c)(7)(C)(ii).

We review the BIA’s denial of Nbaye’s motion to reopen for an abuse of 

discretion and may reverse only if it is “arbitrary, irrational, or contrary to law.” Shardar

v. Att’y Gen., 503 F.3d 308, 311 (3d Cir. 2007). We consider whether Nbaye presented 

both evidence of changed country conditions and a prima facie case for asylum. Id. at 

312. “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 v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 

2010).

To show changed country conditions, Nbaye presented a letter from a friend, news 

articles about the coup, and a State Department Report. The BIA determined that the 

letter is not “sufficient to demonstrate worsening conditions in Guinea that are material” 
6

to Nbaye’s claim. JA at 24-25. The undated letter states “they have killed a lot of your 

friends, for example Mouctar, Moustapha, Kadiatou, etc.” and warns Nbaye not to return 

because “[t]hey will torture you so that you suffer before they kill you.” JA at 82. The 

writer does not elaborate on these dire events in the short letter and does not identify who 

“they” are. The BIA did not abuse its discretion in concluding that the vague or 

unconfirmed claims and warning in the letter are insufficient to constitute evidence of 

changed country conditions. Furthermore, we note that Nbaye attests that he received the 

undated letter in April 2008, many months before the December 2008 coup. JA at 134. 

Therefore, the letter describes events that occurred before the coup and cannot constitute 

evidence of changed conditions due to the coup.

With regard to the news articles and report, the BIA acknowledged that they 

“show that there has been a change in the government of Guinea since [Nbaye’s] hearing, 

but “they do not demonstrate how the December 2008 coup will affect [him] differently 

from the general population of Guinea.” JA at 25. The BIA then held that Nbaye failed 

to show changed country conditions. Id. This holding is somewhat confusing, given the 

BIA’s apparent recognition that the background material showed a change of conditions

in Guinea. It appears to us that the Board’s rationale more aptly supports a conclusion 

that Nbaye failed to make a prima facie case that he is eligible for asylum in light of the 

changed country conditions. See Shardar, 503 F.3d at 312 (explaining that whether a 

movant has presented new evidence of changed country conditions and whether the 

evidence as a whole makes out a prima facie case for asylum are distinct issues).
7

Nonetheless, it is apparent that the BIA did not abuse its discretion by determining 

that the background material Nbaye submitted is insufficient to warrant reopening the

removal proceedings. The BIA concluded that the material does “not demonstrate that 

conditions have specifically worsened for supporters of the [RPG.]” JA at 25. A review 

of the background material supports that conclusion. Although the State Department 

report and news articles describe turbulent conditions in Guinea following the coup, none 

of the material suggests that the new regime is targeting RPG members for persecution. 

Nbaye has thus failed to make the showing of a “a particularized threat of persecution” 

that is required of asylum applicants. Shardar, 503 F.3d at 316.

In his brief, Nbaye argues that he fears the Guinean military because they killed 

his family and imprisoned him and, therefore, the fact that the military now controls 

Guinea provides a “compelling basis” to reopen his removal proceedings. Pet. Br. at 16. 

This attempt to recharacterize his claim for asylum is of no avail. Eligibility for asylum 

must be based on a showing of past persecution or a well-founded fear of future 

persecution on account of race, religion, nationality, membership in a particular social 

group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Nbaye’s asylum claim is clearly 

based on “political opinion,” i.e., his membership in the RPG. JA at 123, 133. And, as 

explained above, the evidence he submitted in support of his motion to reopen does not 

show that the military coup in Guinea represents a particularized threat to RPG members.

For these reasons, we will deny the petition for review.