     13-3241
     Bakayoko v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A088 186 018
                               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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   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   FOULHEL SIDIKI BAKAYOKO,
14            Petitioner,
15
16                        v.                                         13-3241
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21            Respondent.1
22   _____________________________________
23
24   FOR PETITIONER:                      Andy Wong, New York, New York.
25
26

     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    FOR RESPONDENT:              Stuart F. Delery, Assistant Attorney
2                                 General; Holly M. Smith, Senior
3                                 Litigation Counsel; Juria L. Jones,
4                                 Trial Attorney; Office of
5                                 Immigration Litigation, United
6                                 States Department of Justice,
7                                 Washington, D.C.
8
9           UPON DUE CONSIDERATION of this petition for review of a

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

11   ORDERED, ADJUDGED, AND DECREED that the petition for review is

12   DISMISSED in part and DENIED in part.

13          Petitioner Foulhel Sidiki Bakayoko, a native and citizen

14   of the Ivory Coast, seeks review of an August 7, 2013 decision

15   of the BIA, which affirmed a February 9, 2012 decision of an

16   Immigration Judge (“IJ”) denying Bakayoko’s application for

17   asylum, withholding of removal, and relief under the Convention

18   Against Torture (“CAT”).     In re Foulhel Sidiki Bakayoko, No.

19   A088 186 018 (B.I.A. Aug. 7, 2013), aff’g No. A088 186 018

20   (Immig. Ct. N.Y. City Feb. 9, 2012).      We assume the parties’

21   familiarity with the underlying facts and procedural history

22   in this case.

23          We have reviewed the IJ’s decision as supplemented by the

24   BIA.    See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

25   The applicable standards of review are well established.       See

                                      2
1    8 U.S.C. § 1252(b)(4); see also Yanqin Weng v. Holder, 562 F.3d

2    510, 513 (2d Cir. 2009).           Bakayoko does not challenge the

3    agency’s denial of CAT relief, so we review only his asylum and

4    withholding of removal claims.

5    I.     Timeliness of the Asylum Application

6           An   asylum   applicant    must   demonstrate   “by    clear   and

7    convincing evidence that the application has been filed within

8    1 year after the date of the alien’s arrival in the United

9    States,” or must demonstrate “either the existence of changed

10   circumstances        which    materially   affect   the      applicant’s

11   eligibility or extraordinary circumstances relating to the

12   delay in filing an application.”           8 U.S.C. § 1158(a)(2)(B),

13   (D).    We lack jurisdiction to review the agency’s finding that

14   an applicant did not meet his burden to show timely filing, or

15   its finding of neither changed nor extraordinary circumstances

16   excusing the untimeliness.           Id. § 1158(a)(3).        We retain

17   jurisdiction, however, to review constitutional claims and

18   “questions of law.”          8 U.S.C. § 1252(a)(2)(D).

19          It is undisputed that Bakayoko entered the United States

20   in 2001 and applied for asylum in 2008, well beyond the one-year

21   filing deadline.       Because Bakayoko challenges only the IJ’s

                                          3
1    finding that there were no extraordinary circumstances excusing

2    the untimely filing of his asylum application, we are without

3    jurisdiction to review the IJ’s pretermission of his asylum

4    application.   See 8 U.S.C. § 1158(a)(3).

5    II. Withholding of Removal

6        The agency also reasonably determined that Bakayoko failed

7    to meet his burden to establish eligibility for withholding of

8    removal.   Withholding of removal under 8 U.S.C. § 1231(b)(3)

9    is a mandatory form of relief that requires an applicant like

10   Bakayoko, who does not allege past persecution, to show that

11   it is more likely than not that his “life or freedom would be

12   threatened in the proposed country of removal on account of

13   race, religion, nationality, membership in a particular social

14   group, or political opinion.”       8 C.F.R. § 1208.16(b).

15       The agency reasonably found that despite his credible

16   testimony, Bakayoko did not establish a “clear probability” of

17   persecution by either the Popular Ivorian Front (“FPI”) or the

18   Ivory Coast government.    Hongsheng Leng v. Mukasey, 528 F.3d

19   135, 143 (2d Cir. 2008).    Bakayoko has never been harmed or

20   threatened in the Ivory Coast; the harm to Bakayoko’s mother

21   and brother occurred over 10 years ago; and there is no evidence

                                     4
1    that anyone in his family has been harmed since then.          Indeed,

2    Bakayoko asserts in his personal statement that his parents fled

3    to Burkina Faso several years ago, which suggests that they are

4    no longer a political threat and are unlikely to be targeted

5    again.   Furthermore, although Bakayoko claims that he will be

6    persecuted   because   of   his   Rally   for   Republicans    (“RDR”)

7    membership, he was never an RDR member in the Ivory Coast, and

8    he does not point to any evidence that anyone in the Ivory Coast

9    is aware that he is a member of RDR’s New York chapter.

10       Even if he were known to be an RDR member, the background

11   evidence also shows that a regime change has occurred since

12   Bakayoko left the Ivory Coast and that Alassane Ouattara, the

13   head of Bakayoko’s political party, is now in power.          Although

14   the evidence reveals continuing and uncertain political

15   turmoil, that turmoil does not demonstrate that Bakayoko will

16   be targeted for harm on account of a protected ground.            See

17   Melgar de Torres v. Reno, 191 F.3d 307, 314 n.3 (2d Cir. 1999).

18       The IJ also found that Bakayoko failed to corroborate his

19   testimony, specifying several items that he could have

20   submitted but did not.      For the first time on appeal, Bakayoko

21   objects that the agency violated his right to due process by

                                       5
1    not telling him what corroborating evidence was required prior

2    to the IJ’s oral decision.   But because the lack of

3    corroborating evidence was only an additional ground, and

4    because the IJ’s decision was adequately supported by the

5    finding that Bakayoko had not demonstrated a clear probability

6    of persecution in light of the changed political situation in

7    the Ivory Coast and the remoteness of the past actions against

8    relatives, we need not reach the merits of this objection on

9    appeal.

10       For the foregoing reasons, the petition for review is

11   DISMISSED in part and DENIED in part.   As we have completed our

12   review, any stay of removal that the Court previously granted

13   in this petition is VACATED, and any pending motion for a stay

14   of removal in this petition is DISMISSED as moot.   Any pending

15   request for oral argument in this petition is DENIED in

16   accordance with Federal Rule of Appellate Procedure 34(a)(2),

17   and Second Circuit Local Rule 34.1(b).

18                                FOR THE COURT:
19                                Catherine O’Hagan Wolfe, Clerk




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