Cisse v. Garland
| Decision Date | 07 December 2022 |
| Docket Number | 21-3739 |
| Parties | OUMAR AMADOU CISSE, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
NOT RECOMMENDED FOR PUBLICATION
ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS
Before: LARSEN, DAVIS, and MATHIS, Circuit Judges.
After an Immigration Judge denied Oumar Amadou Cisse asylum and related relief in 2010 and ordered him removed from the country, he sought to reopen his case eight years later based on changed country conditions. Because the Board of Immigration Appeals did not abuse its discretion in denying Cisse's motion to reopen, we DENY the petition for review.
Cisse was born in Mauritania in 1972 and is of Black African descent from the Soninke minority ethnic group. He entered the United States without proper admission in February 2003 using identification documents that did not belong to him. Cisse applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") claiming that he suffered persecution in Mauritania on account of his race. More specifically, Cisse averred that he was imprisoned because of his status as a member of an ethnic minority group and that members of his family were arrested and killed by the government on that basis as well. Cisse asserted that he feared similar persecution if he were to return to his home country. However, following a hearing in 2010, an Immigration Judge found that Cisse was not a credible witness due to "significant inconsistencies" in his testimony. The Immigration Judge also noted that Cisse's fears of future persecution were "not consistent with known country conditions" in Mauritania at the time of the merits hearing. As a result, the Immigration Judge denied Cisse's application for relief on all grounds and ordered his release to Mauritania. The Board affirmed in 2013. Cisse did not petition this court for review.
In October 2018, Cisse moved the Board to reopen his case due to "changed country conditions" in Mauritania pursuant to 8 U.S.C. § 1229a(c)(7)(C)(ii).[1] He alleged that the Mauritanian government implemented a discriminatory "census registration process" in 2011, which stripped him and other Black Mauritanians of their citizenship. According to Cisse, Mauritanian officials affirmatively "refused to recognize his citizenship." Cisse thus claimed that he was "a stateless individual." He attached fifteen exhibits to his motion to reopen. These included a personal declaration, two expert declarations, the U.S. Department of State's 2017 Human Rights Report on Mauritania (the "2017 Report"), and various other news articles and reports about the conditions in Mauritania. Notably, Cisse filed no evidence objectively showing that the Mauritanian government revoked his citizenship as he claimed. The Board ultimately denied his motion to reopen the removal proceedings in December 2018. It explained that the facts underlying Cisse's motion did not demonstrate the requisite "materially changed circumstances or conditions" in Mauritania, but rather essentially seemed to show a continuation of the sociopolitical strife which gave rise to Cisse's initial asylum claim.
Cisse filed an unopposed emergency motion to stay removal in January 2019, which this court granted. He supported his emergency request with 278 pages of documentation which quietly included a curious, new piece of information: a one-page letter from the Embassy of Mauritania concerning his citizenship. The letter was issued on December 4, 2018, around the same time that the Board denied Cisse's motion to reopen. In its letter, the Embassy informed Immigrations and Customs Enforcement that it could not "verify [Cisse's] Mauritanian citizenship," and thus could not issue a travel document for him. The Embassy explained that it appeared Cisse was in fact a Senegalese or Gambian national who obtained false Mauritanian identity documents to seek asylum in the United States. Cisse brought no particular attention to this letter in his briefing before this court, though it is plainly related to his statelessness claim.
The government then moved to remand the proceedings for the Board to clarify its prior decision and further analyze Cisse's revoked citizenship claim. The motion did not reference the Embassy's letter mentioned above. This court granted the motion, finding that the Board failed to adequately consider whether "denationalization on account of a protected ground that results in statelessness is per se persecution." The court further provided that "the parties may move for leave to file supplemental briefing" on remand, and that "Cisse will be free to argue either that he established per se persecution or that the case should be remanded to the immigration judge to consider new evidence."
The Board next set a schedule for filing of "any submissions," including briefs and "other documents" on remand. The parties timely filed the same. The government's submission included some evidence not previously in the record, including the State Department's 2019 Human Rights Report on Mauritania. Again, however, not so much as a passing reference was made to the Mauritanian Embassy's letter by either party.
The Board again denied Cisse's motion to reopen. Among other things, the Board found that Cisse failed to adduce "sufficient reliable, independent and probative evidence" evincing the changed country conditions he alleged. In particular, the Board was unpersuaded by Cisse's unsubstantiated claim that Mauritania revoked his citizenship. There was also no record evidence corroborating Cisse's claim that the Mauritanian government denationalized thousands of Black citizens en masse.
Cisse petitioned this court for review.
"The decision to grant or deny a motion to reopen . . . is within the discretion of the Board." 8 C.F.R. § 1003.2(a); see also I.N.S. v. Doherty, 502 U.S. 314, 323 (1992) (highlighting the Board's "broad discretion" as to such motions). To succeed on appeal, Cisse must show that the Board abused its discretion. Gafurova v. Whitaker, 911 F.3d 321, 325 (6th Cir. 2018); Pregetaj v. Sessions, 907 F.3d 453, 457 (6th Cir. 2018); Zhang v. Mukasey, 543 F.3d 851, 854 (6th Cir. 2008). To find such an abuse of discretion, we must conclude that the Board's decision lacked a "rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Gafurova, 911 F.3d at 325.
To prevail on a motion to reopen, petitioners must "make[] a prima facie showing that the statutory requirements for the underlying relief have been met." Alizoti v. Gonzales, 477 F.3d 448, 451-52 (6th Cir. 2007) (citing Yousif v. I.N.S., 794 F.2d 236, 241 (6th Cir. 1986)). Here, Cisse sought to reopen his asylum proceedings based on "changed country conditions." 8 U.S.C. § 1229a(c)(7)(C)(ii). The changed country condition on which Cisse premises his claim is that Mauritania implemented a discriminatory census registration process in 2011 which rendered him and many other Black Mauritanians stateless. Having reviewed the administrative record, we find that the Board did not abuse its discretion in denying Cisse's motion to reopen.
First, the Board reasonably concluded that no evidence demonstrated that Cisse was targeted for denationalization by his home country. Cisse at times claimed he "believed" Mauritania revoked his citizenship, and at others he appeared certain this was true. For instance, he explained that Mauritania "has refused to recognize his citizenship" and that he "ha[d] no hope of regaining" it. Yet, he provided the Board no corroborating evidence - such as evidence showing when or under what circumstances Mauritania "has refused" to recognize him as a citizen. Nor did he identify "any efforts [he made] to obtain a passport or any other form of identity document from the Mauritanian Embassy and if not, why not." It was not an abuse of discretion for the Board to discredit these unsubstantiated claims.
Next, the Board found that the record lacked any objective evidence showing that Mauritania executed a large-scale operation to denationalize racial and ethnic minorities through the 2011 census registration process. One of Cisse's key pieces of evidence on this point was the State Department's 2017 Report. The Board correctly noted that this court recently analyzed the 2017 Report under closely analogous circumstances in Thiam v. Barr, 787 Fed.Appx. 327 (6th Cir. 2019). In Thiam, a Black Mauritanian man alleged he was denationalized via the country's 2011 census registration process; he filed similar evidence in support of his claims, including the State Department's 2017 Report and declarations from the same experts that are involved in this case; and he appealed the Board's denial of his motion to reopen. See generally Thiam, 787 Fed.Appx. 327.
The court observed that "State Department country reports 'are generally the best source of information on conditions in foreign nations.'" Id. at 329 (quoting Sterkaj v. Gonzales, 439 F.3d 273, 276 (6th Cir. 2006)); see also Dieng v. Holder, 698 F.3d 866, 872 (6th Cir. 2012) (citing Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004)) ( same). That said, the 2017 Report provided no support to the petitioner's claims in Thiam. We explained:
The report says that Mauritanian law confers citizenship on those, like [Petitioner], who were born in the country, and that the Mauritanian Constitution provides a right of repatriation that the government "generally respect[s]" [By contrast,] the report doesn't say anything about the 2011 census, let alone anything about the alleged citizenship stripping that took...
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