Foulah v. Barr

• Court: Court of Appeals for the Second Circuit
• Decided: March 5, 2020
• Docket: 17-1462
• Status: Unpublished

Opinion

17-1462 Foulah v. Barr BIA Morace, IJ A099 938 822 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 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of March, two thousand twenty.

PRESENT: BARRINGTON D. PARKER, DEBRA ANN LIVINGSTON, WILLIAM J. NARDINI, Circuit Judges. _____________________________________

MATHILDE GENEVIEVE FOULAH, Petitioner,

v. 17-1462

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

For Petitioner: RONALD D. RICHEY, Rockville, MD.

For Respondent: MARGOT P. KNIFFIN, Trial Attorney (Joseph H. Hunt, Assistant Attorney General; Jessica A. Dawgert, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of Immigration

Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the

petition for review is DENIED. Petitioner Mathilde Genevieve Foulah, a native and citizen of Guinea, seeks review of an

April 6, 2017 decision of the BIA affirming an October 8, 2014 decision of an Immigration Judge

(“IJ”) denying Foulah’s motion to reopen. In re Mathilde Genevieve Foulah, No. A 099 938 822

(BIA Apr. 6, 2017), aff’g No. A 099 938 822 (Immig. Ct. N.Y. City Oct. 8, 2014). Foulah applied

for asylum and related relief in 2007 based on the female genital mutilation (“FGM”) she endured.

The IJ deemed her asylum application untimely because she filed it more than one year after her

arrival in the United States in 2004. Nevertheless, the IJ granted Foulah withholding of removal.

Over six years later, in 2014, Foulah moved to reopen to apply for asylum based on changed

country conditions and caselaw. It is from the denial of that motion to reopen that Foulah now

appeals. We assume the parties’ familiarity with the underlying facts and procedural history in

this case.

Under the circumstances of this case, we have reviewed both the IJ’s and BIA’s decisions

“for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d

Cir. 2006). We review the agency’s denial of a motion to reopen for an abuse of discretion but

review any finding regarding changed country conditions for substantial evidence. Jian Hui Shao

v. Mukasey, 546 F.3d 138, 168–69 (2d Cir. 2008).

An alien seeking to reopen proceedings may file only one motion to reopen no later than

ninety days after the date on which the final administrative decision was rendered. 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1). It is undisputed that Foulah’s 2014 motion to

reopen was untimely because she filed it six years after the IJ’s 2008 decision denying asylum and

granting withholding of removal. However, the time limitation for filing a motion to reopen does

not apply if reopening is sought to apply for asylum and the motion is “based on changed country

conditions arising in the country of nationality or the country to which removal has been ordered,

if such evidence [of changed country conditions] is material and was not available and would not 2 have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii);

see also 8 C.F.R. § 1003.23(b)(4)(i).

The agency did not abuse its discretion in denying Foulah’s motion to reopen. Even

assuming that the Attorney General’s and BIA’s decisions in Matter of A-T-, 24 I. & N. Dec. 617

(AG 2008), and Matter of A-T-, 25 I. & N. Dec. 4 (BIA 2009), respectively, materially impact

Foulah’s case, this has no bearing on the motion to reopen. On their face, the relevant statutory

and regulatory provisions do not allow for “changed circumstances” more generally to excuse

untimeliness, only changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.

§ 1003.2(c)(3)(ii); 1003.23(4)(i); see also Yuen Jin v. Mukasey, 538 F.3d 143, 151 (2d Cir. 2008)

(noting that motions to reopen require alien to “establish changed country conditions”); Barry v.

Mukasey, 286 F. App’x 747, 748 (2d Cir. 2008) (“Untimely motions to reopen must satisfy an

exception provided in [8 U.S.C. § 1229a(c)(7)(C)(ii)], which does not include a change in law.”).

Changes in “applicable U.S. law” may qualify as “changed circumstances” that excuse the initial

one-year filing deadline for asylum applications if they “materially affect [an] applicant’s

eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 1208(a)(4)(i)(B). But they do not

excuse the untimely filing of a motion to reopen. Moreover, even where changes in the law do

qualify as “changed circumstances,” an applicant still must file “within a reasonable period given

those ‘changed circumstances.’” 8 C.F.R. § 1208(a)(4)(ii). Thus, even if Foulah were filing an

asylum application in the first instance, the nearly five years that elapsed after the BIA’s decision

in Matter of A-T- before her filing places her firmly outside any “reasonable period.”

Turning to Foulah’s claim of changed country conditions, the agency reasonably concluded

that she failed to establish a material change in country conditions as needed to excuse the filing

deadline for her untimely motion to reopen. “In determining whether evidence accompanying a

motion to reopen demonstrates a material change in country conditions that would justify 3 reopening, [the agency] compare[s] the evidence of country conditions submitted with the motion

to those that existed at the time of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247,

253 (BIA 2007).

The precise basis of Foulah’s new asylum claim is unclear. In her motion to reopen and

attached asylum statement and application, she stated that she feared (1) future FGM and (2) abuse

and mistreatment by men and the government because she is a woman. In her BIA appeal, she

stated that she wanted to “reopen her previous case” to pursue her FGM claim but also that she

feared “future violence, forced marriage, rape, severe discrimination and/or other forms of

persecution due, inter alia, to her ethnic group and/or due to her membership in a particular social

group in the male-dominated and male-controlled society and culture in Guinea” and that she was

at heightened risk for Ebola as a woman. In her brief to this Court, she argues that the country

conditions evidence affects her claim of future fear as a vulnerable woman and as someone who

will be vocally against FGM. Regardless of how she frames her claim, however, Foulah did not

present country conditions evidence that established a material change in conditions in Guinea.

During her original proceeding before the IJ, the only country conditions evidence that

Foulah submitted was the 2007 U.S. State Department Human Rights Report (“2007 Report”) for

Guinea. As relevant to her claims based on FGM and gender-based violence or discrimination,

the 2007 Report catalogued violent widespread civil unrest during which security forces raped and

killed women and children, and noted “[v]iolence and societal discrimination against women,

prostitution of young girls, and female genital mutilation (FGM).” The 2007 Report also stated

that prison guards harassed and sexually assaulted female prisoners; traditional judicial systems

discounted evidence provided by women; rapes were rarely prosecuted (if at all); domestic

violence was common; FGM was illegal but widely practiced; and women were legally excluded

from certain occupations. To the extent Foulah raised claims based on her ethnicity, the 2007 4 Report indicated that Foulah’s Soussou ethnic group was one of the three main ethnic groups, and

the president and a disproportionate number of senior military officials and public sector

employees were Soussou. Moreover, Guinean law prohibited ethnic discrimination, and, while

there was “[w]idespread societal ethnic discrimination,” the prior ethnic violence was primarily

directed against a different ethnic group than Foulah’s. See C.A.R. 287–300.

The evidence Foulah submitted with her motion to reopen did not present a material change

in these conditions. According to the 2013 U.S. State Department Human Rights Report for

Guinea (“2013 Report”), societal and state violence persisted, and women continued to face the

same discrimination and violence, including FGM. The 2013 Report addresses ethnic violence

but, again, none specifically against the Soussou. The remainder of Foulah’s submission was

comprised of articles detailing political corruption and election-related violence in Guinea, but

they do not mention any heightened persecution of women, FGM victims or activists, or Soussous.

Accordingly, because Foulah failed to demonstrate a material change in country conditions,

the agency did not abuse its discretion in denying her motion to reopen. See 8 U.S.C.

§ 1229a(c)(7)(C). Further, on this record, Foulah’s argument that the agency overlooked material

evidence is without merit. See Jian Hui Shao, 546 F.3d at 169 (“We do not demand that the

[agency] expressly parse or refute on the record each individual argument or piece of evidence

offered.” (quotation marks omitted)); see also Xiao Ji Chen v. U.S. Dep’t of Justice, 434 F.3d 144,

159 n.13 (2d Cir. 2006) (“[W]e presume that an IJ has taken into account all of the evidence before

him, unless the record compellingly suggests otherwise.”).

For the foregoing reasons, the petition for review is DENIED. All pending motions and

applications are DENIED and stays VACATED.

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