     13-2645
     Jalloh v. Holder
                                                                                  BIA
                                                                             Sichel, IJ
                                                                         A095 841 077
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                             CORRECTED 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
TO 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 United
 3   States Courthouse, 40 Foley Square, in the City of New York,
 4   on the 29th day of April, two thousand fifteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            GUIDO CALABRESI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   CHERNOR SADU JALLOH,
14            Petitioner,
15
16                      v.                                     13-2645
17                                                             NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.1
22   _____________________________________
23
24


              1
            Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
     Attorney General Loretta E. Lynch is automatically substituted
     for former Attorney General Eric H. Holder, Jr.
                                      1
 1   FOR PETITIONER:                 Carmine D. Boccuzi, Jr., Cleary
 2                                   Gottlieb Steen & Hamilton,
 3                                   New York, New York.
 4
 5   FOR RESPONDENT:                 Stuart F. Delery, Assistant
 6                                   Attorney General; Lyle D. Jentzer,
 7                                   Senior Counsel for National
 8                                   Security; Alison Marie Igoe,
 9                                   Senior Counsel for National
10                                   Security, National Security Unit,
11                                   Office of Immigration Litigation,
12                                   United States Department of
13                                   Justice, Washington, D.C.
14
15       UPON DUE CONSIDERATION of this petition for review of a

16   Board of Immigration Appeals (“BIA”) decision, it is hereby

17   ORDERED, ADJUDGED, AND DECREED that the petition for review

18   is DENIED in part, and GRANTED in part.

19       Petitioner Chernor Sadu Jalloh, a native and citizen of

20   Sierra Leone, seeks review of a June 11, 2013, decision of

21   the BIA: (1) affirming a November 30, 2011, decision of an

22   Immigration Judge (“IJ”) denying Jalloh’s application for

23   withholding of removal; and (2) denying his motion to reopen

24   and remand his prior asylum proceedings.                 In re Jalloh, No.

25   A095 841 077 (B.I.A. June 11, 2013), aff’g No. A095 841 077

26   (Immig.    Ct.   N.Y.   City   Nov.       30,   2011).     We   assume   the

27   parties’    familiarity        with       the   underlying      facts    and

28   procedural history in this case.


                                           2
 1          Under the circumstances of this case, we have reviewed

 2   the IJ’s decision as supplemented by the BIA.                      See Yan Chen

 3   v.   Gonzales,      417   F.3d    268,       271   (2d     Cir.    2005).         The

 4   applicable standards of review are well established.                         See 8

 5   U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562

 6   F.3d 510, 513 (2d Cir. 2009); Ali v. Gonzales, 448 F.3d 515,

 7   517 (2d Cir. 2006); Cao v. U.S. Dep’t of Justice, 421 F.3d

 8   149, 157 (2d Cir. 2005).

 9   I.     Change in Conditions

10          An   alien   who   demonstrates         past   persecution          benefits

11   from    a   presumption     that   his       life     or   freedom     would      be

12   threatened in his home country in the future, as required

13   for a grant of withholding of removal.                        See 8 C.F.R. §

14   1208.16(b)(1)(i).         The Government may rebut this presumption

15   if it shows a “fundamental change in circumstances such that

16   the applicant’s life or freedom would not be threatened”

17   upon removal.        8 C.F.R. § 1208.16(b)(1)(i)(A), (ii).                        The

18   Government      must      prove    the       fundamental          change     by     a

19   preponderance of the evidence, and we review the agency’s

20   conclusion for substantial evidence.                  Lecaj v. Holder, 616

21   F.3d 111, 115, 116 (2d Cir. 2010).                  The agency must provide


                                              3
 1   a reasoned basis for finding that changed country conditions

 2   rebut the presumption.        Niang v. Mukasey, 511 F.3d 138, 148-

 3   49 (2d Cir. 2007).

 4          Substantial evidence supports the agency’s finding that

 5   although    Jalloh    suffered      past   persecution,         there    was   a

 6   fundamental change in Sierra Leone, as shown in the U.S.

 7   State Department country conditions reports.                     See Xiao Ji

 8   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.

 9   2006).       The    2002   State       Department      report    shows     that

10   Revolutionary United Front (“RUF”) insurgents disarmed and

11   demobilized after the civil war ended in 2002.                          A more

12   recent report demonstrates that by 2010, the RUF had all but

13   ceased to exist and several of its leaders were tried and

14   incarcerated for their crimes.              The 2010 State Department

15   report     also    recounts   the      aftermath       of   Sierra      Leone’s

16   “devastating” civil war, describing the gradual improvements

17   in Sierra Leone in the following years.                Although the report

18   does mention several human rights violations, none of the

19   abuses    listed    are    tied   to    people    of    Fulani    ethnicity,

20   Jalloh’s home region, or the RUF.                See Lecaj, 616 F.3d at

21   119.     Furthermore, there is no “contrary or countervailing


                                            4
 1   evidence” in the record to suggest that the RUF’s abuses

 2   have continued.        Id. at 115-16.

 3   II. Material Support Bar

 4         The     agency   also     determined     that    Jalloh’s         claim     for

 5   withholding of removal was barred because he gave “material

 6   support” to the RUF, which is a terrorist organization.

 7   Jalloh contends that if he provided any support to the RUF,

 8   it    was   immaterial     and     provided    under       duress.        We     have

 9   recently       remanded     cases      to     the    BIA     to     clarify        in

10   precedential decisions the meaning of the term “material,”

11   Ayvaz    v.    Holder,    564    F.   App’x    625    (2d   Cir.        2014),    and

12   whether there is an implicit duress exception, Ay v. Holder,

13   743 F.3d 317, 320 (2d Cir. 2014).                    Although the agency’s

14   alternative      determination        of    changed     country         conditions

15   provides a sufficient basis for denying Jalloh withholding

16   of removal, the material support finding may impact Jalloh’s

17   eligibility      for      future      immigration      benefits,          such     as

18   adjustment of status.           See, e.g., 8 U.S.C.

19   §    1182(a)(3)(B)(iv)(VI).           Furthermore,         the    Department      of

20   Homeland      Security    designated        Sierra    Leone       for    Temporary

21   Protected Status (“TPS”) in November 2014.                   Jalloh may apply


                                             5
 1   for TPS relief until the May 20, 2015 deadline, but will be

 2   ineligible if subject to the material support bar.

 3           Consequently, the petition is granted with respect to

 4   the agency’s material support ruling, and this issue is

 5   remanded for further proceedings consistent with this order.

 6   The agency may, if it chooses, vacate the material support

 7   finding as unnecessary to the resolution of the present

 8   matter, leaving the question of whether Jalloh is barred

 9   from     future     immigration        benefits         on   that      basis    for

10   determination if and when he should apply for such benefits.

11   III. Motion to Reopen and Remand

12          Jalloh moved the BIA to reopen and remand proceedings,

13   arguing that but for the ineffective assistance of his prior

14   counsel, he would have proved that he timely applied for

15   asylum and was eligible for humanitarian asylum.                        We review

16   the    BIA’s    denial     of   a     motion     to     reopen   for    abuse   of

17   discretion.        See Ali, 448 F.3d at 517.                 The agency denied

18   Jalloh’s motion because even if his counsel was ineffective,

19   he was ineligible for asylum because he was subject to the

20   material support bar and there had been a fundamental change

21   in     Sierra     Leone.        See    8       U.S.C.    §   1158(b)(2)(A)(v),


                                                6
 1   1182(a)(3)(B)(i)(I); 8 C.F.R. § 1208.13(b)(1)(iii).                    The BIA

 2   did   not   abuse    its     discretion.        However,    if   the   agency

 3   decides     upon    remand    that   Jalloh     is   not   subject     to   the

 4   material support bar, it should then revisit Jalloh’s motion

 5   because he may be eligible for humanitarian asylum, even

 6   though country conditions have changed in Sierra Leone.                      See

 7   8 C.F.R. § 1208.13(b)(1)(iii).

 8         IV. IFP Motion and Reimbursement of Filing Fee

 9         Jalloh also filed a motion to proceed in forma pauperis

10   (“IFP”) and for reimbursement of the filing fee to his pro

11   bono counsel, who paid the fee for him upon filing the

12   petition.      Pursuant to 28 U.S.C. § 1915(a) and (e), we may

13   permit    an   indigent      petitioner    to    proceed    IFP,   but      must

14   dismiss the petition if it is frivolous. Jalloh has clearly

15   raised a non-frivolous challenge to the agency’s decision

16   and demonstrated that he is indigent.                Therefore, the motion

17   for IFP status is granted. As to pro bono counsel’s request

18   for reimbursement of the filing fee, because IFP status is

19   granted and Jalloh was not required to pay the filing fee,

20   that request is granted.

21


                                           7
 1         For the foregoing reasons, the petition for review is

 2   DENIED in part and GRANTED in part and the case is remanded

 3   to the BIA.    The motion for IFP status and reimbursement of

 4   the   filing   fee   is   GRANTED,      and the   Clerk’s     Office   is

 5   directed to make any arrangements necessary to return the

 6   funds.   As we have completed our review, the pending motion

 7   for a stay of removal in this petition is DISMISSED as moot.

 8   The pending request for oral argument in this petition is

 9   DENIED   in    accordance    with       Federal   Rule   of   Appellate

10   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

11                                  FOR THE COURT:
12                                  Catherine O’Hagan Wolfe, Clerk
13
14
15
16
17




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