Barany v. Gonzales, (2nd Cir. 2007)

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06-3321-ag

Barany v. Gonzales

BIA

Rocco, IJ

A76 283 037/038

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 ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

( S U M M A R Y ORDER). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER 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 N e w York, on the 14th day of August, two thousand seven. PRESENT: H O N . ROGER J. MINER, H O N . PIERRE N. LEVAL, H O N . CHESTER J. STRAUB, C i r c u i t Judges. J U M A A BARANY, KHANY BARANY, Petitioners, 0 6 - 3 3 2 1 - a g (L); v. 06-3323-ag (con) NAC A L B E R T O R. GONZALES, ATTORNEY GENERAL O F THE UNITED STATES, DEPARTMENT OF H O M E L A N D SECURITY, IMMIGRATION AND C U S T O M S ENFORCEMENT, Respondents. F O R PETITIONERS: W i l l i a m H. Oltarsh, New York, New York.

F O R RESPONDENTS: R . Alexander Acosta, United States A t t o r n e y , Southern District of F l o r i d a , Anne R. Schultz, Chief, A p p e l l a t e Division, Lisette M. Reid, L a u r a Thomas Rivero, Assistant U n i t e d States Attorneys, Miami, Florida.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is GRANTED.

P e t i t i o n e r s Jumaa and Khany Barany, natives and c i t i z e n s of Iraq, seek review of the separate June 19, 2006 o r d e r s of the BIA affirming the February 28, 2005 decision o f Immigration Judge ("IJ") Michael Rocco denying p e t i t i o n e r s ' application for asylum, withholding of removal, a n d relief under the Convention Against Torture ("CAT"). In r e Jumaa Barany, No. A76 283 037 (B.I.A. June 19, 2006), a f f ' g Nos. A76 283 037/038 (Immig. Ct. Buffalo, Feb. 28, 2 0 0 5 ) ; In re Khany Barany, No. A76 283 038 (B.I.A. June 19, 2 0 0 6 ) , aff'g Nos. A76 283 037/038 (Immig. Ct. Buffalo, Feb.

2 8 , 2005). We assume the parties' familiarity with the u n d e r l y i n g facts and procedural history of the case.

W h e n , as here, the BIA summarily affirms the decision o f the IJ without issuing an opinion, we review the IJ's d e c i s i o n as the final agency determination. See Twum v. I N S , 411 F.3d 54, 58 (2d Cir. 2005). We review the agency's f a c t u a l findings under the substantial evidence standard, t r e a t i n g 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 Zhou Yun Zhang v. INS, 386 F . 3 d 66, 73 & n.7 (2d Cir. 2004); see also Tambadou v. G o n z a l e s , 446 F.3d 298, 304 (2d Cir. 2006) (reviewing the B I A ' s changed country conditions finding for substantial evidence). However, we will vacate and remand for new f i n d i n g s if the agency's reasoning or its fact-finding p r o c e s s was sufficiently flawed. See Cao He Lin v. U.S.

D e p ' t of Justice, 428 F.3d 391, 406 (2d Cir. 2005).

T h e IJ found that the Baranys had no well-founded fear o f future persecution because the conditions in Iraq had u n d e r g o n e a fundamental change since their departure. In r e a c h i n g this conclusion, the IJ "[took] administrative n o t i c e that the former [Hussein] regime is no longer in p o w e r in Iraq and that an interim government system has been established." The IJ further found that "[w]hile conditions i n Iraq clearly remain unsettled, [Barany's] situation will b e no different than that faced by other citizens of [Iraq]." T h e IJ did not err in taking administrative notice of t h e fall of the Hussein regime because this fact is " c o m m o n l y known, not subject to reasonable dispute, and e a s i l y verifiable." Chhetry v. U.S. Dep't of Justice, - F . 3 d --, 2007 WL 1759472, at *2 (2d Cir. June 20, 2007) (per c u r i a m ) (internal quotation marks and alterations omitted).

H o w e v e r , to the extent that the IJ attempted to take notice o f general conditions in Iraq, this was improper as " c o n d i t i o n s [there] are volatile." de la Llana-Castellon v. I N S , 16 F.3d 1093, 1097 (10th Cir. 1994). Most importantly, t h e IJ utterly failed "to conduct an individualized analysis o f how changed conditions [in Iraq would] affect . . .

[ B a r a n y ' s ] situation." Tambadou, 446 F.3d at 303 (internal q u o t a t i o n marks omitted). The IJ simply likened Barany ­ a K u r d and a former employee of U.S. government contractors w h o had lived in the U.S. for years, first as an asylee and t h e n as a permanent resident ­ to all other Iraqi citizens a n d concluded that the changed country conditions rebutted h i s claim. Such a blanket statement about the situation in I r a q , devoid of any analysis as to whether Barany has a r e a s o n a b l e fear of persecution there, was an inadequate b a s i s for the denial of asylum. See id. at 304. Moreover, t h e IJ's lack of reasoning frustrates any attempt at m e a n i n g f u l review. See Ivanishvili v. U.S. Dep't of J u s t i c e , 433 F.3d 332, 338 (2d Cir. 2006).

I n addition, while the government argues that c o n d i t i o n s in Iraq were well-documented in the record, the o n l y evidence pertaining to Iraq's conditions is largely i r r e l e v a n t to the question of whether Barany's fear of p e r s e c u t i o n is objectively reasonable in post-Hussein Iraq. 1 " [ B ] e c a u s e the administrative record is "silent as to [ I r a q ' s ] contemporary treatment of persons with backgrounds s i m i l a r to [Barany's,]" Qun Yang v. McElroy, 277 F.3d 158, 1 6 3 (2d Cir. 2002) (per curiam), we conclude that remand is appropriate. Moreover, Barany presented some evidence in r e s p o n s e to the apparent changed conditions in Iraq, i.e., t h e testimony of a translator who worked for a U.S. g o v e r n m e n t contractor in Iraq, and the IJ erred by failing t o consider that testimony in his analysis. Cf. Tambadou, 1 T h e record contains only two country reports, the U.S. State D e p a r t m e n t ' s Background Note on Iraq and the 2003 Report on Human Rights P r a c t i c e s in Iraq. The Background Note provides an overview of Iraq's g e o g r a p h y , history, economic structure, etc., but offers little discussion o f current conditions there. The 2003 Report is similarly devoid of current i n f o r m a t i o n because it only "covers the human rights record of the regime of S a d d a m Hussein until its fall on April 9[, 2003]." 4 4 6 F.3d at 303-04.

B e f o r e concluding, it is worth acknowledging that the I J also observed that Barany's mother and siblings remain in I r a q without apparent incident. While such an observation m a y bear on whether Barany has a well-founded fear of future p e r s e c u t i o n on account of his Kurdish ethnicity, it has no b e a r i n g as to whether he faces persecution on account of his i m p u t e d political opinion since there is no indication that h i s mother or siblings have any connection to U.S. g o v e r n m e n t contractors. See Edimo-Doualla v. Gonzales, 464 F . 3 d 276, 286 (2d Cir. 2006) (noting that, where the a p p l i c a n t testified that his relatives were not politically a c t i v e , it was speculative for the IJ to find that the a p p l i c a n t ' s fear of persecution was undercut because members o f his family remained unharmed in his home country); P o r a d i s o v a v. Gonzales, 420 F.3d 70, 80 (2d Cir. 2005) ( n o t i n g that the experiences of similarly-situated family a n d friends are relevant to whether an applicant's fear is well-founded).

F o r the foregoing reasons, the petitions for review are G R A N T E D , the BIA's decisions are VACATED, and the cases are R E M A N D E D for further proceedings consistent with this order.

T h e pending motion for a stay of removal in these petitions i s DENIED as moot.

F O R THE COURT: Catherine O'Hagan Wolfe, Clerk By:

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