         08-0325-ag
         Barry v. Holder
                                                                                       BIA
                                                                                Schoppert, IJ
                                                                                A79 069 624
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                      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 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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 1 st day of February, two thousand ten.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                ROSEMARY S. POOLER,
 9                ROBERT A. KATZMANN,
10                              Circuit Judges.
11       _____________________________________
12
13       BOUBACAR BARRY,
14                Petitioner,
15
16                         v.                                   08-0325-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., ATTORNEY GENERAL, *
19                Respondent.
20       _____________________________________
21       FOR PETITIONER:        Ronald S. Salomon, Brooklyn, New
22                              York.
23
24


                       *
                  Pursuant to Federal Rule of Appellate Procedure
             43(c)(2), Attorney General Eric H. Holder Jr., is
             automatically substituted for former Acting Attorney
             General Peter D. Keisler as respondent in this case.
1    FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
2                           Attorney General; Linda S. Wernery,
3                           Assistant Director; Sarah Maloney,
4                           Attorney, Office of Immigration
5                           Litigation, Civil Division, United
6                           States Department of Justice,
                            Washington, D.C.
1            UPON DUE CONSIDERATION of this petition for review

2    of a decision of the Board of Immigration Appeals (“BIA”),

3    it is hereby ORDERED, ADJUDGED, AND DECREED, that the

4    petition for review is DENIED, in part, and DISMISSED, in

5    part.

6      Petitioner Boubacar Barry, allegedly a native and citizen

7    of Sierra Leone, seeks review of a December 19, 2007 order

8    of the BIA affirming the March 9, 2006 decision of

9    Immigration Judge (“IJ”) Douglas B. Schoppert, denying his

10   applications for asylum, withholding of removal, and relief

11   under the Convention Against Torture (“CAT”).     In re

12   Boubacar Barry, No. A79 069 624 (B.I.A. Dec. 19, 2007),

13   aff’g No. A79 069 624 (Immig. Ct. N.Y. City Mar. 9, 2006).

14   We assume the parties’ familiarity with the underlying facts

15   and procedural history of the case.

16     As an initial matter, because Barry does not challenge

17   the IJ’s pretermission of his untimely asylum application,

18   we deem any such challenge to have been waived.     See Yueqing


                                   2
1    Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir.

2    2005).   In any event, we generally lack jurisdiction to

3    review such findings.   See 8 U.S.C. § 1158(a)(3).   Moreover,

4    because Barry failed to meaningfully challenge the IJ’s

5    denial of his CAT claim before the BIA, we dismiss his

6    petition for review to the extent that he now challenges the

7    IJ’s denial of that relief.   See 8 U.S.C. § 1252(d)(1);

8    Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

9      When the BIA issues an opinion that fully adopts the IJ’s

10   decision, we review the IJ’s decision.   See Mei Chai Ye v.

11   U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007).

12   However, when the BIA affirms the IJ’s decision in some

13   respects but not others, we review the IJ’s decision as

14   modified by the BIA’s decision, i.e. minus the arguments for

15   denying relief that were rejected by the BIA.    See Xue Hong

16   Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

17   2005).   Here, the BIA agreed with the IJ’s finding that

18   country conditions in Sierra Leone had changed such that any

19   presumption of a well-founded fear of future persecution was

20   rebutted.   It is unclear, however, whether the BIA agreed

21   with the IJ’s finding that Barry failed to demonstrate past

22   persecution based on the death of his parents.    Thus, for


                                   3
1    purposes of our decision, we assume that Barry suffered past

2    persecution.   See Yan Chen v. Gonzales, 417 F.3d 268, 271

3    (2d Cir. 2005).

4      We review the agency’s factual findings under the

5    substantial evidence standard.    See 8 U.S.C.

6    § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland

7    Sec., 494 F.3d 281, 289 (2d Cir. 2007).    We review de novo

8    questions of law and the application of law to undisputed

9    fact.   See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110

10   (2d Cir. 2008).

11     Substantial evidence supports the agency’s finding that

12   Barry failed to demonstrate a well-founded fear of future

13   persecution.   The IJ did not err in concluding that country

14   conditions in Sierra Leone had changed when “the 11-year

15   civil conflict officially ended in January of 2002, . . .

16   the government, backed by a large U.N. peace-keeping force,

17   had subsequently asserted control over the whole country,

18   and the R.U.F., or Revolutionary United Front, insurgence

19   has completed disarmament and demobilization in 2002.”     In

20   upholding a similar finding, we have noted that the civil

21   war ending in Sierra Leone, inter alia, demonstrated changed

22   country conditions. See Jalloh v. Gonzales, 498 F.3d 148,


                                   4
1    151 n.2 (2d Cir. 2007).    While Barry argues that the IJ’s

2    holding in this case was erroneous, we are unpersuaded by

3    his argument.   See 8 U.S.C. § 1252(b)(4)(B); see also

4    Manzur, 494 F.3d at 289.    Accordingly, we find no error in

5    the agency’s denial of Barry’s application for withholding

6    of removal.

7      For the foregoing reasons, the petition for review is

8    DENIED, in part, and DISMISSED, in part.

9

10                             FOR THE COURT:
11                             Catherine O’Hagan Wolfe, Clerk
12
13
14




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