17-300 Tiemogo v. Barr

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 1 SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY 2 FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN 3 CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE 4 EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION 5 “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON 6 ANY PARTY NOT REPRESENTED BY COUNSEL. 7

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 8 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 9 on the 19 th day of March, two thousand nineteen. 10 11 PRESENT: 12 R OBERT A. K ATZMANN , 13 Chief Judge, 14 R OSEMARY S. P OOLER , 15 S USAN L. C ARNEY , 16 Circuit Judges

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_____________ _______________ _____________ 18 19 A MADOU T IEMOGO , 20 21 Petitioner
, 22 23 v. No. 17-300 24 25 W ILLIAM P. B ARR , 26 United States Attorney General, 27 28 Respondent

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_____________ _______________ _____________ 30 31 FOR PETITIONER: S. Mich ael Musa-Obregon, Esq., White 32 Plains, NY. 33 34 FOR RESPONDENT: Gregory A. Pennington, Jr., Trial 35 Attorney, Office of Immigration 36 Litigation, Chad A. Readler, Acting 372 Assistant Attorney General, Civil Division, 1 Carl McIntyre, Assistant Director, Office 2 of Immigration Litigation, U.S. 3 Department of Justice, Washington, DC. 4 5 UPON DUE CONSIDERATION of this petition for review of a Board of 6 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 7
DECREED that the petition for review is GRANTED

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Petitioner Amadou Tiemogo, a native and citi zen of Niger, seeks review of decision 9 of the BIA affirming a decision of an Immigration Judge (“IJ”) denying Tiemogo’s motion 10 to reopen his removal proceedings. In re Amadou Tiemogo, No. A099 372 631 (B.I.A. Jan. 5, 11 2017), aff’g No. A099 372 631 (Immig. Ct. Hartford Nov. 18, 2015). We assume the parties’ 12 familiarity with the underlying facts and proced ural history in this case, to which we refer 13 only as needed to explain our decision to grant the petition for review. 14

We review the denial of a motion to re open for abuse of discretion and related 15 country conditions findings for substantial evidence. Jian Hui Shao v. Mukasey , 546 F.3d 138, 16 168-69 (2d Cir. 2008). The BIA abuses its disc retion if it rests its decision on a “clearly 17 erroneous factual finding.” Dedji v. Mukasey , 525 F.3d 187, 191 (2d Cir. 2008). When 18 addressing a motion to reopen, the Board “has an obligation to consider the record as a 19 whole,” and we may remand in cases where the BI A “failed to address all the factors relevant 20 to petitioner’s claim.” Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 97 (2d Cir. 2001). 21
Tiemogo sought to reopen his re moval proceedings under 8 U.S.C. 22 § 1229a(c)(7)(C)(ii). The statute allows for reop ening based on “changed country conditions 23 arising in the country of nationality or the co untry to which removal has been ordered, if 24
such evidence is material and was not availa ble and would not have been discovered or 25 presented at the previous proceeding.” Id. ; see also 8 C.F.R. § 1003.23(b)(4)(i). 26
To be entitled to reopening, Tiemogo must also demonstrate that he is prima facie 27 eligible for asylum—the underlying substantive relief he seeks. See INS v. Abudu , 485 U.S. 94, 28 104–05 (1988); Poradisova v. Gonzales , 420 F.3d 70, 78 (2d Cir. 200 5) (requiring a “realistic 29 chance that [petitioner] will be able to estab lish eligibility”). An in dividual who does not 303 claim past persecution—and Tiemogo does not—may establish asylum eligibility by 1 demonstrating a fear of future persecution th at is well founded—that is, a “subjective fear 2 that is objectively reasonable.” Dong Zhong Zheng v. Mukasey , 552 F.3d 277, 284 (2d Cir. 2009) 3 (internal quotation marks omitted); see also 8 U.S.C. § 1101(a)(42); 8 C.F.R. § 1208.13(b)(2). 4 See generally Y.C. v. Holder , 741 F.3d 324, 332 (2d Cir. 2013) (“For an asylum claim, the 5 applicant must show a reasonable possibility of future persecution.” (internal quotation 6 marks omitted)). One may do so in two ways: “( 1) by demonstrating that he . . . ‘would be 7 singled out individually for persecution’ if re turned, or (2) by proving the existence of a 8 ‘pattern or practice in [the] . . . country of nationality . . . of persecution of a group of 9 persons similarly situated to [him]’ and es tablishing his . . . ‘own inclusion in, and 10 identification with, such group.’” Y.C. , 741 F.3d at 332 (quoting 8 C.F.R. 11 § 1208.13(b)(2)(iii)). 12
The BIA did not distinguish between Tiemog o’s two asserted grounds for asylum: his 13 fear of future persecution based on his religio n (Muslim) and based on his particular social 14 group (culturally Westernized, moderate Muslim ). It simply concluded that Tiemogo did not 15
demonstrate his prima facie eligibility as a moderate or westernized Muslim in Niger, ruling 16 that Tiemogo had “failed to provide any evid ence that ‘moderate’ [Muslims] in Niger are 17 being persecuted,” or any evidence “specificall y discussing the treatment of ‘moderate’ 18 Muslims and pertinent conditions in his home land.” A.R. 3. The BIA also decided that 19 Tiemogo had submitted insufficient evidence of changed country circumstances with respect 20 to persons of his religion and particular soci al group such as would “materially affect his 21 current eligibility for asylum or wi thholding of removal.” A.R. 4. 22
We conclude that, in both of these rulin gs, the BIA erred by not engaging with the 23
record as a whole. See Zhao , 265 F.3d at 97. Tiemogo presented an affidavit from an 24 individual based in the Nigeri en capital Niamey averring that, as of November 2013, “the 25 situation in Niger is characterized by a radica lization of Islam,” and st ating that he let his 26 “[b]eard grow and go[es] to the mosque five times a day, so as to protect [himself] from 27 these[] terrorist[s].” A.R. 394. Tiemogo also su bmitted an affidavit from a female family 28 member in Niger asserting that, because of the “r ise of Islamic fundamentalism . . . in Niger 294 . . . we are witnessing a profound change in [t he] [d]aily life of everyday,” and describing how 1 she “wear[s] the veil all day in the sweltering he at [so as] not to be [the terrorists’] target.” 2 A.R. 397. He additionally placed before the agency country conditions evidence reflecting 3 that, in the period leading up to his filing of his motion to reopen, Islamic fundamentalist 4 group Boko Haram had intensified its attacks in Niger, targeting moderate Muslims and 5
Westerners. See, e.g., A.R. 61 (Department of State trav el warning dated July 17, 2015, 6 advising U.S. nationals to “reduce exposure to locations routinely frequented by Westerners” 7
because such locations “have been targeted in the region by viol ent groups and will likely be 8 targeted in the future”); A.R. 372, 375 (20 12 news report that Boko Haram “is trying to 9 spread its hard-line ideology an d violent aspirations” in severa l Nigerien towns and referring 10 to “several threatening letters [sent by Boko Haram] to Muslim imams who preached against 11 the militia’s ideology”). The BIA made no co mment on this circumstantial evidence. If 12 credited, however, it could tend to show that moderate Muslims are currently under serious 13 threat in Niger—and that this threat is mate rially greater now than in 2007, when Tiemogo 14
was first ordered removed. 15
Accordingly, we GRANT Tiemogo’s petiti on for review and remand the matter to 16
the BIA for determination whether the evidence submitted by Tiemogo in support of his 17 motion to reopen constitutes material evidence of changed country conditions in Niger and 18
whether it is sufficient to demonstrate that Tiemogo is prima facie eligible for asylum. 19 Because Tiemogo’s motion to reopen was filed in 2014, over five years ago, the agency may 20 in its discretion also consider remanding to an immigration judge to allow for the submission 21 of additional evidence reflecting country conditi ons in the present day. The BIA did not rule 22 on the IJ’s conclusion that Tiemogo’s proposed particular social group of “persons with 23 moderate religious beliefs who are seen to be [W]esternized” was not cognizable under 24 Matter of M-E-V-G- , 26 I. & N. Dec. 227 (BIA 2014). Accord ingly, we do not address it here. 25

FOR THE COURT: 26 Catherine O’Hagan Wolfe, Clerk of Court 27