Dieng v. Barr

• Decision Date: 22 January 2020
• Docket Number: No. 19-3010,19-3010
• Citation: 947 F.3d 956
• Parties: Aminata DIENG; Ousseynou Ndiaye Lo, Petitioners, v. William P. BARR, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

947 F.3d 956

Aminata DIENG; Ousseynou Ndiaye Lo, Petitioners,

v.William P. BARR, Attorney General, Respondent.

No. 19-3010

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 22, 2020

ALICE M. BATCHELDER, Circuit Judge.

Aminata Dieng and her husband, Ousseynou Ndiaye Lo, petition for review of the order of the Board of Immigration Appeals (Board or BIA) denying their motion to reopen their application for asylum. We hold that the Board did not abuse its discretion when it found that petitioners failed to provide material evidence of changed country conditions in Senegal and therefore DENY the petition.

I.

Aminata Dieng and Ousseynou Ndiaye Lo are citizens and natives of Senegal. Lo entered the United States in 1997 and although he entered the country on a non-immigrant student visa to enroll at the University of Tennessee, he never attended the university. Dieng used a false passport to join Lo in the United States in 2003. They married in 2005 and Dieng gave birth to a daughter a year later.

A.

In 2007, Dieng applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), claiming her husband as a derivative applicant.¹ Dieng alleged she was a member of the Fulani tribe and that she escaped Senegal because certain relatives attempted to subject her to female genital mutilation (FGM). She asserted that if she were removed to Senegal, she and her daughters² would be subjected to FGM by her relatives.

An Immigration Judge (IJ) held a removal hearing in 2008. Dieng and Lo both testified that Lo is a member of the Wolof tribe, an ethnic group that does not regularly practice FGM. Dieng stated that Senegalese nationals would therefore consider their daughter a member of the Wolof tribe, governed by Wolof traditions. Dieng conceded that if she returned to Senegal, it would be "too late for [her relatives] to have [her] circumcised" because she was married and had two children. AR 501. But Dieng and Lo feared that their daughter might be circumcised if she accompanied her parents to Senegal. Lo testified that if he and his wife returned to Senegal, his brother, an American citizen, could take care of their daughter. The IJ denied petitioners’ request for asylum, withholding of removal, and protection under the CAT.

The BIA denied Dieng and Lo’s subsequent appeal. The BIA found that Dieng established past persecution. AR 384; see 8 C.F.R. § 208.13(b)(1) (providing that an applicant will establish refugee status if she establishes persecution "on account of ... membership in a particular social group"). But because Dieng testified that she no longer feared FGM, the BIA found that a "fundamental change in circumstances" rebutted the presumption of a "well-founded fear of future persecution." AR 384; see 8 C.F.R. § 208.13(b)(1)(i)(A).

The BIA also held that it was reasonable for Dieng and Lo to internally relocate to another area of Senegal to avoid FGM. AR 384; see 8 C.F.R. § 208.13(b)(1)(i)(B) (providing that an IJ may deny the asylum application if the applicant "could avoid future persecution by relocating to another part of the applicant’s country of nationality"). To support this conclusion, the BIA cited:

(1) Lo’s testimony that he was a member of the Wolof tribe, which does not practice FGM; (2) the dearth of evidence showing that Dieng’s Fulani relatives (if still alive) would learn of her whereabouts in Senegal and seek her out to attempt FGM; and (3) the State Department’s reports indicating that while the outlawed practice of FGM is common in Senegal, it is not universal.

Dieng v. Holder , 698 F.3d 866, 871 (6th Cir. 2012).

Finally, the BIA held that Dieng failed to establish a well-founded fear of persecution based on her claim that her daughter would be subjected to FGM if they returned to Senegal. AR 385. The BIA "reiterated the reasonable option of relocation to a safe area" within Senegal and noted that their daughter, as a member of the Wolof tribe, would not be subject to FGM. Dieng , 698 F.3d at 871. In an order dated March 25, 2010, the BIA dismissed petitioners’ appeal but granted Dieng and Lo sixty days’ voluntary departure. AR 383–87. We denied Dieng and Lo’s petition for review. See id . at 866.³

B.

Dieng and Lo nevertheless remained in the United States and their second daughter was born here in 2013. In early 2018, the Department of Homeland Security (DHS) began the process of enforcing the BIA’s 2010 order and directed Dieng and Lo to renew their Senegalese passports. Only then did the petitioners file a motion to reopen their asylum application, alleging that changed conditions in Senegal warranted reopening. See 8 C.F.R. § 1003.2(c)(3)(ii).

Dieng and Lo proffered several documents in support of their motion. Personal affidavits and letters from several family members purported to show that certain relatives in Senegal learned of petitioners’ impending removal from the United States and renewed their demands that Dieng and her daughters undergo FGM.⁴ In his affidavit, Lo alleged: that he received letters from both of his parents asking about his return so that FGM could be performed on Dieng and their daughters; that his mother was a member of the Fulani tribe and had always demanded that Dieng and her daughters be circumcised; and that Lo’s two sisters were circumcised and were making efforts to flee Senegal. The affidavits further alleged that the Senegalese government would not protect Dieng or her daughters from harm. To establish the prevalence of FGM in Senegal, Petitioners included a charitable organization’s 2015 report entitled "Country Profile: FGM in Senegal," as well as the 2016 U.S. Department of State report on Senegal.⁵

The BIA held that the petitioners’ motion was time-barred under 8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(2), which require aliens to file a motion to reopen within 90 days of the BIA’s final order. AR 3. Although an exception exists for those seeking to apply for asylum based on changed country conditions, see 8 C.F.R. § 1003.2(c)(3)(ii), the BIA held that Dieng and Lo failed to "submit [ ] persuasive new evidence of changed country conditions arising in [Senegal] that would affect their asylum claim." AR 4. The BIA explained:

First, we give the statements in the [petitioners’] affidavits minimal weight as they are self-serving and speculative. Second, the statements in their affidavits regarding current country conditions in Senegal are not based on personal knowledge. Third, the multiple statements from the [petitioners’] family members are not persuasive because they are from interested witnesses, speculative, and not corroborated with objective evidence. More importantly, the new evidence presented does not overcome the central basis for our prior denial of their claim - that the [petitioners’] can internally relocate. Moreover, the [petitioners’] assertions that the Senegalese government is powerless to stop the [petitioners’] relatives who allegedly want to FGM [sic] done are not substantiated. Thus, the evidence presented does not demonstrate a change in country conditions or circumstances material to the [petitioners’] claim for relief or meet the [petitioners’] "heavy burden" of showing that if proceedings were reopened, the new evidence offered would likely change the result in the case.

AR 4 (internal citations omitted).

The BIA held that petitioners’ fears that their daughters would be subjected to FGM could not provide a basis for reopening the proceedings and noted that petitioners’ daughters are United States citizens and not required to accompany their parents to Senegal. AR 4. The BIA accordingly denied the motion to reopen and the petitioners appealed.

II.

"We review the BIA’s denial of a motion to reopen for an abuse of discretion." Zhang v. Mukasey , 543 F.3d 851, 854 (6th Cir. 2008) ; see 8 C.F.R. § 1003.2(a) ("The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board ...."). All legal issues are reviewed de novo. Precetaj v. Sessions , 907 F.3d 453, 457 (6th Cir. 2018). We find an abuse of discretion when the BIA’s decision "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group." Alizoti v. Gonzales , 477 F.3d 448, 453 (6th Cir. 2007).

Generally, a petitioner must file a motion to reopen within 90 days of the final order of removal. See 8 U.S.C. § 1229a(c)(7) ; 8 C.F.R. § 1003.2(c). But a motion to reopen based on changed country conditions is excepted from the 90-day limitation if "it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing." 8 C.F.R. § 1003.2(c)(1), (3)(ii). Reopening motions must "state the new facts that will be proven at a hearing to be held if the motion is granted" and "supported by affidavits or other evidentiary material." 8 U.S.C. § 1229a(c)(7)(B).

A.

Petitioners argue that the Board abused its discretion by failing to give a rational explanation for its decision to deny reopening. In petitioners’ view, the Board did not adequately explain why the new evidence failed to establish changed country conditions. Specifically, petitioners argue that the Board erroneously ignored new evidence that: (1) Dieng and Lo’s relatives renewed their threats to perform FGM, (2) Lo’s sisters recently fled Senegal to protect their future daughters from FGM, and (3) FGM is practiced in Senegal despite the government’s prohibition of the practice.⁶

Contrary to petitioners’ assertion, the Board adequately explained the basis for its denial of the motion to reopen. There are

at least three independent grounds on which the BIA might deny a motion to reopen—failure to establish a prima facie case for the relief sought, failure to introduce previously unavailable, material evidence, and a determination

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