Bah v. DHS, (2nd Cir. 2007)

Docket Number: 07-0788

Parts: 09-13-2007

Reporting Judge: NOTFECHA2

Linked as:

Text

07-0788-ag

Bah v. DHS

BIA

IJ, Chew

A 95-474-246

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY

O R D E R S FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S

L O C A L RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER

P A P E R IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A

C I T A T I O N APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR

B E ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER

M U S T SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE

S U M M A R Y ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY

O R D E R IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT P A Y M E N T OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/). I F NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A D A T A B A S E , THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET N U M B E R OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of New Y o r k , on the 13 t h day of September, two thousand seven. PRESENT: H O N . JON O. NEWMAN, H O N . BARRINGTON D. PARKER, H O N . REENA RAGGI, C i r c u i t Judges. A L H A S S A N BAH, Petitioner, v. 07-0788-ag NAC D E P A R T M E N T OF HOMELAND SECURITY, Respondent. FOR PETITIONER: T h e o d o r e Vialet, New York, New York. F O R RESPONDENT: P e t e r D. Keisler, Asst. U.S. Atty.

G e n e r a l , Civil Division, Linda S.

Wendtland, Asst. Director, Justin Constantine, Atty., Office of I m m i g r a t i o n Litigation, United States D e p a r t m e n t of Justice, Washington, D.C.

U P O N DUE CONSIDERATION of this petition for review of a B o a r d of Immigration Appeals ("BIA") decision, it is hereby O R D E R E D , ADJUDGED, AND DECREED that the petition for review is DENIED.

A l h a s s a n Bah, a native and citizen of Sierra Leone, seeks r e v i e w of a February 5, 2007 order of the BIA affirming the J u n e 20, 2005 decision of Immigration Judge ("IJ") George T.

C h e w denying Bah's applications for asylum, withholding of r e m o v a l , and relief under the Convention Against Torture ( " C A T " ) . In re Bah, No. A 95 474 246 (B.I.A. Feb. 5, 2007), a f f ' g No. A 95 474 246 (Immig. Ct. N.Y. City June 20, 2005).

W e assume the parties' familiarity with the underlying facts a n d procedural history in this case.

When the BIA adopts the decision of the IJ and s u p p l e m e n t s the IJ's decision, this Court reviews the decision o f the IJ as supplemented by the BIA. See Yu Yin Yang v. G o n z a l e s , 431 F.3d 84, 85 (2d Cir. 2005). This Court reviews t h e agency's factual findings under the substantial evidence s t a n d a r d , treating them as "conclusive unless any reasonable a d j u d i c a t o r would be compelled to conclude to the contrary." 8U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 3 8 6 F.3d 66, 73 & n.7 (2d Cir. 2004), overruled in part on o t h e r grounds by Shi Liang Lin v. U.S. Dept. of Justice, No.

0 2 - 4 6 1 1 , -- F.3d --, 2007 WL 2032066, at *6 (2d Cir. July 16, 2 0 0 7 ) . However, we will vacate and remand for new findings if t h e agency's reasoning or its fact-finding process was s u f f i c i e n t l y flawed. Cao He Lin v. U.S. Dep't of Justice, 428 F . 3 d 391, 406 (2d Cir. 2005). The Court reviews de novo q u e s t i o n s of law and the application of law to undisputed f a c t . See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d C i r . 2003).

S u b s t a n t i a l evidence supports the agency's determination t h a t country conditions in Sierra Leone have fundamentally c h a n g e d such that Bah no longer has a well-founded fear of p e r s e c u t i o n , even assuming his credibility. See 8 C.F.R. § 1208.13(b)(1)(i). The agency appropriately observed that t h e 2004 Department of State country report indicated that the c i v i l war in Sierra Leone had ended and that the Sierra Leone P e o p l e ' s Party (the "SLPP"), of which Bah is a member, had g a i n e d control of the country. Bah did not contest that f i n d i n g and admitted that the situation has improved. As a w h o l e , the record does not compel us to conclude, contrary to t h e agency, that Bah has an objectively reasonable, wellf o u n d e d fear of persecution upon return. See Zhou Yun Zhang, 3 8 6 F.3d at 73 & n.7; Jalloh v. Gonzales, No. 06-3235, -- F.3d - - , 2007 WL 2331938, at *3 n.2 (2d Cir. Aug. 17, 2007) ( f i n d i n g that substantial evidence supported the BIA's finding t h a t country conditions in Sierra Leone had changed because t h e civil war ended and the SLPP gained control).

B e c a u s e Bah was unable to show the objective likelihood o f persecution needed to make out an asylum claim, he was n e c e s s a r i l y unable to meet the higher standard required to s u c c e e d on a claim for withholding of removal or relief under t h e CAT 1 where all three claims were based upon the same f a c t u a l predicate. See Paul v. Gonzales, 444 F.3d 148, 156 ( 2 d Cir. 2006).

F o r the foregoing reasons, the petition for review is D E N I E D . As we have completed our review, any pending motion f o r a stay of removal in this petition is DISMISSED as moot.

A n y pending request for oral argument in this petition is D E N I E D in accordance with Federal Rule of Appellate Procedure 3 4 ( a ) ( 2 ) , and Second Circuit Local Rule 34(d)(1).

F O R THE COURT: Catherine O'Hagan Wolfe, Clerk By: O l i v a M. George, Deputy Clerk 1 The government's argument that this Court does not have jurisdiction to address Bah's CAT claim is unavailing. Because the BIA addressed Bah's CAT claim, that claim is considered exhausted and may be reviewed by this Court despite any failure by Bah to challenge the IJ's denial before the BIA. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006).