                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2008

Bamba v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2111




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2111


                                  MOKTAR BAMBA,
                                        Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent
                          ______________________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                                (BIA No. A97-486-217)
                      Immigration Judge: Honorable R. K. Malloy
                               _____________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 14, 2008

     Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges.

                                 (Filed: May 20, 2008)


                              OPINION OF THE COURT


PER CURIAM

      Moktar Bamba petitions for review of a decision by the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge (“IJ”)’s determination that he failed to

satisfy the “changed circumstances” exception permitting consideration of his otherwise
untimely application for asylum. We will deny his petition.

                                             I.

       Bamba is a citizen and native of the Ivory Coast (Cote D’Ivore), a Muslim, as well

as a member of the Dioula tribe. Since his father died in 1993, he has been raised by his

uncle, Morifere Bamba, a prominent Ivorian political figure and former minister of health.

Bamba and other members of his extended family were politically active in their native

country, and they have accordingly suffered from various forms of mistreatment at the

hands of government forces loyal to successive Ivorian presidents.

       In 1989, Bamba’s father lost his job as a bank director after the then-president of

the Ivory Coast publicly accused him of using bank funds to finance the uncle’s political

party, which resulted in the bank’s closure. In 1991, Bamba organized and participated in

a student anti-government demonstration. During the demonstration, he was beaten by

Ivorian soldiers and then had to flee the scene with the assistance of some friends. He

was then sent to school in Paris, France, eventually returning to the Ivory Coast in 1994 to

live with his uncle. Bamba attended school in London, England, from 1997 to July 2000.

In July 2000, he briefly went back to his uncle’s house but then left for Paris the

following month for “security reasons.” (A10.) His uncle did not send Bamba back to

London because an Ivorian student opposition leader had been stabbed in the city. It

appears that, while he lived with his uncle in the Ivory Coast, his uncle was repeatedly

arrested, their home was frequently searched by government forces, and Ivorian soldiers

fired their weapons in front of the house in order to threaten them.

                                              2
       Bamba entered the United States in May 2001 as a non-immigrant visitor.1 After

consulting with an immigration attorney, Bamba decided not to request asylum because

he wished to return to his home country and hoped for eventual improvements through a

reconciliation process convened by the country’s president. However, an attempted coup,

which was evidently supported by his uncle and other members of his extended family,

occurred in September 2002. The failed coup spawned a rebel insurgency, and

government forces, including death squads, attacked and killed coup supporters as well as

ethnic and religious groups believed to be supporting of the rebels, including Muslims

and members of the Dioula tribe. The name of Bamba’s mother was found on a death

squad hit list, and she was forced to leave the country in October 2002. His uncle had

previously left the country immediately before the coup attempt, and his other relatives

also eventually fled the country in the wake of the failed coup.2

       Bamba failed to depart when his visa expired. On July 28, 2003, he filed an

application for asylum, withholding of removal, and protection under the Convention

Against Torture. Recognizing that his asylum application was not filed within one year

of his date of arrival in the United States as required by 8 U.S.C. § 1158(a)(2)(B), Bamba


 1
   It appears that Bamba first entered the United States in October 2000 but then went
back to Paris in April 2001.
 2
    His uncle had previously left the Ivory Coast in November 2000, following the
country’s elections. In 2001, the uncle returned to participate in an official national
reconciliation effort, but, after his relations with the Ivorian president soured, he went
back to France. He again returned to the Ivory Coast in 2002, only to leave immediately
before the coup attempt.

                                             3
claimed that his untimeliness should be excused because the coup attempt and its

consequences constituted “changed circumstances which materially affect [his] eligibility

for asylum.” 8 U.S.C. § 1158(a)(2)(D). After extensively summarizing Bamba’s

testimony, the IJ concluded that he failed to demonstrate that such events “rise to the level

of extraordinary circumstances or changed country conditions.” (A30-A31.) However,

she further determined that he was entitled to withholding of removal based on his

membership in a particular social group (i.e., his extended family), religion, and ethnicity.

The BIA subsequently dismissed Bamba’s appeal, expressly adopting and affirming the

IJ’s decision regarding the asylum application. Bamba filed a timely petition for review.3

                                           II.

       As the IJ noted, an alien must generally file his or her asylum application within

one year of the date of arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B). It is

undisputed that Bamba’s application, filed more than two years after he last entered the

country, failed to satisfy the one-year requirement. Bamba therefore invoked a statutory

exception providing that an otherwise untimely asylum application “may be considered . .

. if the alien demonstrates to the satisfaction of the Attorney General either the existence

of changed circumstances which materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing an application within the

[specified] period.” 8 U.S.C. § 1158(a)(2)(D) (emphasis added). After summarizing


 3
    Because the BIA adopted the IJ’s ruling, we must review the decision of the IJ. See,
e.g., Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006).

                                                 4
Bamba’s claim of changed circumstances, the IJ expressly concluded that he failed to

satisfy this exception and that he was thereby statutorily ineligible for asylum.

       It is well established that we are statutorily barred from reviewing administrative

factual determinations under the changed circumstances exception. The immigration

statute states that “[n]o court shall have jurisdiction to review any determination of the

Attorney General under [§ 1158(a)(2)].” 8 U.S.C. § 1158(a)(3). Although the REAL ID

Act of 2005 authorizes judicial review of constitutional claims and questions of law

notwithstanding this jurisdiction-stripping provision, see 8 U.S.C. § 1252(a)(2)(D), we

have held that this provision nevertheless “continues to divest the court of appeals of

jurisdiction to review a decision regarding whether an alien established changed or

extraordinary circumstances that would excuse his untimely filing.” Sukwanputra v.

Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (citations omitted). Accordingly, we lack

jurisdiction to review the IJ’s factual and discretionary determination regarding whether

Bamba established the requisite changed circumstances. See, e.g., Jarbough v. Attorney

General, 483 F.3d 184, 188-90 (3d Cir. 2007); Sukwanputra, 434 F.3d at 632-35.

       Apparently recognizing our jurisdictional limits, Bamba argues in some detail that,

instead of committing mere factual errors, the IJ actually applied the wrong legal

standard.4 In particular, he contends that, in order to ascertain whether the changed


 4
    To the extent Bamba actually challenges the IJ’s factual and discretionary findings in
rejecting his changed circumstances claim, we would be required to dismiss his petition
for review for lack of jurisdiction. See, e.g., Jarbough, 483 F.3d at 188-90; Sukwanputra,
434 F.3d at 632-35.

                                              5
circumstances were in fact “material” for purposes of the exception, the IJ was required to

assess whether he was actually eligible for asylum before the changes. In other words,

the IJ should have specifically assessed his asylum eligibility before the 2002 coup

attempt and its tragic consequences, which Bamba asserts she failed to do. It is true that

this Court has jurisdiction under the REAL ID Act to review questions of law. See, e.g.,

Jarbough, 483 F.3d at 188-90; Sukwanputra, 434 F.3d at 633-35. However, the 2005 act

created a “narrow” exception to the otherwise applicable jurisdiction-stripping provision.

Jarbough, 483 F.3d at 188, 190. In any case, we conclude that Bamba’s theory fails to

raise “a colorable claim of legal error” in the current circumstances. Sukwanputra, 434

F.3d at 635.

       We need not decide whether Bamba is correct that an IJ (or the BIA) must, as a

general rule, specifically ascertain whether an alien was entitled to asylum before the

alleged changes in circumstances. In this case, it appears that the IJ did implicitly

consider whether Bamba was entitled to asylum prior to the failed coup attempt and then

essentially determined that he was in fact entitled to such relief because of past

persecution or a reasonable fear of persecution in the future. See, e.g., 8 U.S.C. §

1101(a)(42)(A). In denying the changed circumstances claim, she expressly stated that

his family has been actively opposed to “the governments of the Ivory Coast since . . . the

first president of the Ivory Coast” and specifically noted that his now-deceased father lost

his bank position because of his political activities. (A30.) As quoted by the IJ, Bamba’s

own affidavit submitted in support of his changed circumstances claim acknowledged that

                                              6
he was informed by an immigration attorney after his arrival in the United States, “that if

I lost [my asylum request], I would be automatically deported to the Ivory Coast and most

likely be killed by [the Ivorian president’s] men because of my uncle.” (A29.) The IJ

also extensively summarized Bamba’s own testimony regarding past political

involvement and mistreatment, and this past history then played a role in her withholding

of removal determination. For instance, he testified that as early as 1991 he organized

and participated in an anti-government demonstration and that the military attacked and

beat him as a result. He was sent to London for school immediately following that

incident, and he then spent a substantial portion of the next decade outside of the Ivory

Coast, either in France or England. At one point in time, his uncle sent him to Paris and

not London because an Ivorian opposition leader had been the victim of a stabbing in the

British capital. On the other hand, when he did live with his uncle in the Ivory Coast,

their home was often searched by government agents, his uncle was repeatedly arrested,

and soldiers threatened them by shooting off their weapons. Finally, although Bamba

emphasizes that political conditions were improving before the coup attempt as a result of

reconciliation efforts, his uncle actually fled the country during this reconciliation

process.

       Accordingly, especially in light of her entire 39-page oral ruling, the IJ properly

considered Bamba’s claim of changed circumstances. We reiterate the limited scope of

our inquiry. We are precluded from addressing whether the IJ’s discretionary findings of

fact made in rejecting Bamba’s claim of changed circumstances were correct or otherwise

                                              7
supported by the evidence in the record. See, e.g., Jarbough, 483 F.3d at 189

(“Specifically, courts have recognized [that] arguments such as that an Immigration Judge

or the BIA incorrectly weighed evidence, failed to consider evidence or improperly

weighed equitable factors are not questions of law under § 1252(a)(2)(D).” (citations

omitted)); Sukwanputra, 434 F.3d at 635. As Bamba expressly acknowledges, we lack

jurisdiction to review the IJ’s factual findings, even if they were erroneous. Because we

conclude that Bamba’s claim that the IJ applied an incorrect standard of law is without

merit, we must reject his petition.

                                            III.

       For the foregoing reasons, we will deny the petition for review.




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