21-6083 Ouattara v. Garland BIA
Sponzo, IJ
A206 298 274
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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of August, two thousand twenty- 5 three. 6 7 PRESENT: 8 DEBRA ANN LIVINGSTON, 9 Chief Judge, 10 RICHARD C. WESLEY, 11 EUNICE C. LEE, 12 Circuit Judges. 13 _____________________________________ 14 15 DAOUDA OUATTARA, 16 Petitioner, 17 18 v. 21-6083 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Gary J. Yerman, Esq., New York, 27 NY.
1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Paul Fiorino, 3 Senior Litigation Counsel; Kevin 4 J. Conway, Trial Attorney, Office 5 of Immigration Litigation, United 6 States Department of Justice, 7 Washington, DC.
8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 10 ORDERED, ADJUDGED, AND DECREED that the petition for review 11 is GRANTED in part and DENIED in part. 12 Petitioner Daouda Ouattara, a native and citizen of the 13 Cote d’Ivoire, seeks review of a January 28, 2021 decision of 14 the BIA affirming a September 4, 2018 decision of an 15 Immigration Judge (“IJ”) denying his application for asylum, 16 withholding of removal, and relief under the Convention 17 Against Torture (“CAT”). In re Daouda Ouattara, No. A 206 18 298 274 (B.I.A. Jan. 28, 2021), aff’g No. A 206 298 274 19 (Immigr. Ct. N.Y.C. Sept. 4, 2018). We assume the parties’ 20 familiarity with the underlying facts, procedural history, 21 and arguments on appeal. 22 We have reviewed the IJ’s decision as modified by the 23 BIA——i.e., minus the firm resettlement finding that the BIA 24 did not rely on. See Xue Hong Yang v. U.S. Dep’t of Just., 25 426 F.3d 520, 522 (2d Cir. 2005) (“[W]e review the judgment
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1 of the IJ as modified by the BIA’s decision——that is, minus 2 the single argument for denying relief that was rejected by 3 the BIA.”). We review factual findings for substantial 4 evidence and questions of law de novo. See 8 U.S.C. 5 § 1252(b)(4)(B); Lecaj v. Holder, 616 F.3d 111, 114 (2d Cir. 6 2010). 7 I. Asylum and Withholding of Removal Claims 8 An asylum applicant must establish past persecution or a 9 well-founded fear of future persecution on account of race, 10 religion, nationality, membership in a particular social 11 group, or political opinion. See 8 U.S.C. §§ 1101(a)(42), 12 1158(b)(1)(B)(i). “Claims for withholding of removal under 13 the INA are closely related to asylum,” Ramsameachire v. 14 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004), but the Attorney 15 General must grant withholding of removal if the applicant 16 establishes that it is more likely than not that his “life or 17 freedom would be threatened in [the] country because of [his] 18 race, religion, nationality, membership in a particular 19 social group, or political opinion,” 8 U.S.C. 20 § 1231(b)(3)(A). Here, the agency determined that Ouattara
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1 had established past persecution based on his membership in 2 “the Dyula ethnic tribe.” CAR at 34, 54. 3 Ouattara testified at his removal hearing and submitted 4 letters from his mother and sister, as well as country 5 conditions evidence. Ouattara’s evidence indicated that in 6 2002 a group of armed civilians and uniformed men broke into 7 his home, beat him unconscious, and raped his sister and 8 sister-in-law. The men abducted Ouattara, along with his 9 brothers and father, to a camp where they suffered repeated 10 beatings, shocking with electric batons, and other forms of 11 violence. Shortly after being released from the camp, 12 Ouattara’s father died from the abuse. Following his 13 father’s death, a group of military personnel and civilians 14 attacked and burned Ouattara’s home, took him to the camp 15 again, and subjected him to further abuse for three days. 16 The IJ credited Ouattara’s testimony and other evidence, 17 finding that he had established past persecution and was 18 therefore entitled to a presumption of a well-founded fear of 19 future persecution. See 8 C.F.R. § 1208.13(b)(1). The 20 government could rebut that presumption by establishing by a 21 preponderance of the evidence that “[t]here has been a
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1 fundamental change in circumstances such that the applicant 2 no longer has a well-founded fear of 3 persecution.” Id. § 1208.13(b)(1)(i), (ii); see also Cao He 4 Lin v. U.S. Dep’t of Just., 428 F.3d 391, 399 (2d Cir. 2005). 5 In determining whether the government has met its burden, the 6 IJ must conduct “an individualized analysis of whether the 7 changes in conditions in the relevant country were so 8 fundamental that they are sufficient to rebut the 9 presumption.” Lecaj, 616 F.3d at 115 (alterations adopted; 10 internal quotation marks omitted). And the IJ should 11 consider “how [the] changed conditions would affect the 12 specific petitioner’s situation.” Id. (internal quotation 13 marks omitted). Notably, DHS submitted no evidence before 14 the IJ. 15 Nevertheless, the IJ denied all relief. See CAR at 30. 16 The BIA, in affirming, described the IJ as holding “that the 17 DHS carried its burden to rebut the presumption of a well- 18 founded fear . . . . Specifically, the Immigration Judge found 19 that the DHS established that there has been a fundamental 20 change in circumstances . . . .” CAR at 3. We conclude that 21 the BIA erred in affirming because the IJ improperly shifted
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1 the burden of proof to Ouattara and failed to analyze whether 2 the government had met its burden to rebut the presumption of 3 a well-founded fear of future persecution. 4 Here, the agency first erred by incorrectly shifting the 5 burden of proof to Ouattara to show a fundamental change in 6 circumstances. Contrary to the description by the BIA, the 7 IJ’s decision did not hold “that DHS carried its burden,” but 8 instead held only that “respondent’s otherwise presumed well- 9 founded fear of future persecution is rebutted,” without ever 10 mentioning DHS. CAR at 28. That the IJ in fact incorrectly 11 placed the burden of proof squarely on Ouattara is indicated 12 by the IJ’s repeated references to the absence of affirmative 13 proof from Ouattara that he faced a future threat, rather 14 than to evidence from the government rebutting the 15 presumption that he did. See CAR at 29–30 (reasoning that 16 the record “is devoid of sufficient evidence of a threat to 17 respondent since his departure from Cote d’Ivoire in 2002,” 18 and “lacks sufficient evidence establishing the objective 19 reasonableness of a fear of future persecution”). 20 Because Ouattara was entitled to a presumption of a well- 21 founded fear of future persecution, the appropriate inquiry
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1 was not whether he had made an affirmative showing of 2 fundamentally unchanged country conditions. See id. 3 Rather, at this stage, “[t]he burden rest[ed] firmly with the 4 government,” Kone v. Holder, 596 F.3d 141, 147 (2d Cir. 2010), 5 to show by a preponderance of the evidence that “[t]here has 6 been a fundamental change in circumstances such that the 7 applicant no longer has a well-founded fear of persecution,” 8 8 C.F.R. § 1208.13(b)(1)(i), (ii) (emphasis added). 9 While DHS was not necessarily required to present 10 evidence to meet its burden of showing a fundamental change, 11 the IJ’s sua sponte finding of changed circumstances was not 12 otherwise “supported by reasonable, substantial and probative 13 evidence in the record when considered as a whole.” Iouri 14 v. Ashcroft, 487 F.3d 76, 81 (2d Cir. 2007) (internal 15 quotation marks and citation omitted). “[W]here facts 16 important to an ultimate agency conclusion have been totally 17 overlooked and others have been seriously mischaracterized, 18 we conclude that an error of law has occurred.” Acharya v. 19 Holder, 761 F.3d 289, 300 (2d Cir. 2014) (internal quotation 20 marks and citation omitted). As to at least three material 21 aspects of the record, the IJ seriously mischaracterized or
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1 overlooked Ouattara’s evidence——the only evidence in the 2 record——in concluding that the presumption of future 3 persecution had been rebutted. 4 First, in noting that Ouattara “testified that conditions 5 are ‘a little bit better in Cote d’Ivoire’ today,” CAR at 29, 6 the IJ mischaracterized Ouattara’s testimony as suggesting he 7 did not fear future persecution. In fact, when asked whether 8 the 2011 election made things better for his tribal group, 9 Ouattara responded ”[t]here is still the xenophobia problem. 10 Even though Alassane is in power . . . . It got a little 11 better but it continued. Because they are still the arms 12 that are circulating in the hands of the young people.” CAR 13 at 86–87 (emphasis added). At most, Ouattara’s testimony, 14 which noted a continuing threat, suggested a reduction of 15 abuse, but “[t]he [agency] apparently did not fully perceive 16 the significant distinction between a drop in abuses and an 17 end to abuses.” Tambadou v. Gonzales, 446 F.3d 298, 304 (2d 18 Cir. 2006) (emphases added). 19 The IJ compounded this specific error by overlooking 20 other aspects of Ouattara’s testimony. For example, Ouattara 21 testified that he fears persecution on account of his
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1 ethnicity by armed civilians and uniformed men——similar to 2 the mobs that beat him unconscious, raped his family members, 3 and burned down his farm——who continue to operate with 4 impunity despite the change in government. 1 CAR at 57–58, 5 61, 68, 214–15. The IJ utterly failed to address these facts, 6 stating simply that the “[c]urrent president is supportive of 7 respondent’s particular ethnic group.” CAR at 29. 8 Second, the IJ mischaracterized Ouattara’s family 9 letters, inaccurately asserting that neither letter makes any 10 mention of a present threat of persecution. But Ouattara’s 11 mother wrote that Cote d’Ivoire had many areas that remained 12 dangerous and outside government protection, which she 13 described as a “precarious peace.” CAR at 29, 137 (emphasis 14 added). His sister’s letter likewise noted that the people 15 of Cote d’Ivoire suffer from “arbitrary arrests” and 16 highlighted that the government lacks “total control” over 17 public security. CAR at 146. Contrary to the IJ’s 18 characterization, a reasonable factfinder would be compelled 19 to view these letters——which, after detailing past
1 This was not a newly identified fear: Ouattara made a similar statement in his written application for asylum. See CAR at 215.
1 persecution, refer to an ongoing and precarious security 2 situation despite a change in government—as at least making 3 “mention of a present threat [of persecution].” CAR at 29. 4 And, on any fair reading, the letters do not provide 5 affirmative support for the conclusion that “[t]here has been 6 a fundamental change in circumstances such that the applicant 7 no longer has a well-founded fear of persecution.” 8 C.F.R. 8 § 1208.13(b)(1)(i)(A) (emphasis added). 9 The IJ further misconstrued Ouattara’s sister’s letter 10 as supporting changed conditions based on the fact that she 11 “remain[ed] without incident in Cote d’Ivoire” since being 12 “attacked in 2002,” and the letter did not specifically 13 mention further incidents. CAR at 29. An inference of 14 changed conditions based on this silence, however, cannot 15 satisfy the DHS’s burden to overcome the presumption of future 16 persecution. First, not only does the sister’s own suffering 17 since 2002 have little or no bearing in the circumstances of 18 this case on whether Ouattara himself faces a present threat 19 of persecution, the absence of any explicit mention of a 20 present threat in her letter should not have been held against 21 Ouattara without giving him a chance to respond. See Cao He
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1 Lin, 428 F.3d at 394–95 (holding that, even where an applicant 2 is not entitled to the presumption, “if [an IJ] intends to 3 rely on the absence of certain corroborative evidence to hold 4 that an applicant has not satisfied his burden of proof, [the 5 IJ] must give the applicant an opportunity to explain its 6 absence”). 7 Third and finally, the IJ’s decision did not explicitly 8 discuss any of the country conditions reports in the record. 9 These reports uniformly support the existence of a well- 10 founded fear of future persecution. The IJ merely stated 11 that the “[c]urrent president is supportive of respondent’s 12 particular ethnic group.” CAR at 29. But “the mere fact 13 that . . . the former dictator was replaced . . . [is] 14 insufficient to show changed country circumstances” where the 15 election and post-election period have been suffused with 16 violence, impunity, arbitrary detention, and unlawful 17 killings. Baba v. Holder, 569 F.3d 79, 87 (2d Cir. 2009). 18 In denying Ouattara’s asylum and withholding claims, the 19 IJ incorrectly shifted the burden of proof and 20 mischaracterized or overlooked Ouattara’s evidence. For 21 these reasons, we vacate the BIA’s ruling affirming the denial
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1 of Ouattara’s petition for asylum and withholding of removal. 2 See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 3 (2d Cir. 2007). 4 II. CAT Claim 5 The BIA did not err in finding that Ouattara waived his 6 CAT claim because it may deem an issue waived where the 7 applicant fails to assert a meaningful challenge on appeal. 8 See Matter of Y–I–M–, 27 I. & N. Dec. 724, 729 n.2 (B.I.A. 9 2019), vacated on other grounds by Malets v. Garland, 66 F.4th 10 49 (2d Cir. 2023); Matter of R–A–M–, 25 I. & N. Dec. 657, 658 11 n.2 (B.I.A. 2012). A party does not raise a meaningful 12 challenge when it “devotes only a single conclusory sentence 13 to the argument . . . .” Yueqing Zhang v. Gonzales, 426 F.3d 14 540, 545 n.7 (2d Cir. 2005). The BIA did not err in finding 15 that Ouattara waived his CAT claim because his argument 16 consisted of a single sentence challenging an adverse 17 credibility determination that the IJ did not make. 18 19 * * *
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1 For the foregoing reasons, the petition for review is 2 GRANTED in part and DENIED in part. All pending motions and 3 applications are DENIED and stays VACATED.
4 FOR THE COURT: 5 Catherine O’Hagan Wolfe, 6 Clerk of Court