     13-2645
     Jalloh v. Holder
                                                                                  BIA
                                                                             Sichel, IJ
                                                                         A095 841 077
                             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
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 28th 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   ERIC H. HOLDER, JR., UNITED
20   STATES
21   ATTORNEY GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                    Carmine D. Boccuzi, Jr., Cleary
26                                      Gottlieb Steen & Hamilton,
27                                      New York, New York.
28

                                           1
 1   FOR RESPONDENT:                 Stuart F. Delery, Assistant
 2                                   Attorney General; Lyle D. Jentzer,
 3                                   Senior Counsel for National
 4                                   Security; Alison Marie Igoe,
 5                                   Senior Counsel for National
 6                                   Security, National Security Unit,
 7                                   Office of Immigration Litigation,
 8                                   United States Department of
 9                                   Justice, Washington, D.C.
10
11        UPON DUE CONSIDERATION of this petition for review of a

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

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

14   is DENIED in part, and GRANTED in part.

15        Petitioner Chernor Sadu Jalloh, a native and citizen of

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

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

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

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

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

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

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

23   parties’    familiarity        with        the   underlying         facts    and

24   procedural history in this case.

25        Under the circumstances of this case, we have reviewed

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

27   v.   Gonzales,    417   F.3d    268,       271   (2d   Cir.    2005).        The
                                            2
 1   applicable standards of review are well established.                See 8

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

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

 4   517 (2d Cir. 2006); Cao v. U.S. Dep’t of Justice, 421 F.3d

 5   149, 157 (2d Cir. 2005).

 6   I.     Change in Conditions

 7          An   alien   who   demonstrates    past    persecution     benefits

 8   from    a   presumption     that   his   life    or   freedom   would     be

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

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

11   1208.16(b)(1)(i).         The Government may rebut this presumption

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

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

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

15   Government      must      prove    the   fundamental     change     by     a

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

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

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

19   a reasoned basis for finding that changed country conditions

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

21   49 (2d Cir. 2007).


                                          3
 1          Substantial evidence supports the agency’s finding that

 2   although    Jalloh    suffered      past    persecution,         there    was   a

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

 4   State Department country conditions reports.                      See Xiao Ji

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

 6   2006).       The    2002   State        Department      report    shows     that

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

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

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

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

11   incarcerated for their crimes.               The 2010 State Department

12   report     also    recounts   the       aftermath       of   Sierra      Leone’s

13   “devastating” civil war, describing the gradual improvements

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

15   does mention several human rights violations, none of the

16   abuses    listed    are    tied    to    people    of    Fulani    ethnicity,

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

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

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

20   have continued.      Id. at 115-16.

21


                                             4
 1   II. Material Support Bar

 2         The     agency   also     determined     that    Jalloh’s         claim     for

 3   withholding of removal was barred because he gave “material

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

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

 6   it    was   immaterial     and     provided    under       duress.        We     have

 7   recently       remanded     cases      to     the    BIA     to     clarify        in

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

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

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

11   743 F.3d 317, 320 (2d Cir. 2014).                    Although the agency’s

12   alternative      determination         of   changed     country         conditions

13   provides a sufficient basis for denying Jalloh withholding

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

15   eligibility      for      future      immigration      benefits,          such     as

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

17   §    1182(a)(3)(B)(iv)(VI).           Furthermore,         the    Department      of

18   Homeland      Security     designated       Sierra    Leone       for    Temporary

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

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

21   ineligible if subject to the material support bar.


                                             5
 1           Consequently, the petition is granted with respect to

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

 3   remanded for further proceedings consistent with this order.

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

 5   finding as unnecessary to the resolution of the present

 6   matter, leaving the question of whether Jalloh is barred

 7   from     future      immigration        benefits         on   that      basis     for

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

 9   III. Motion to Reopen and Remand

10          Jalloh moved the BIA to reopen and remand proceedings,

11   arguing that but for the ineffective assistance of his prior

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

13   asylum and was eligible for humanitarian asylum.                         We review

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

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

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

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

18   material support bar and there had been a fundamental change

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

20   1182(a)(3)(B)(i)(I); 8 C.F.R. § 1208.13(b)(1)(iii).                           The BIA

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


                                                 6
 1   decides    upon    remand    that   Jalloh    is   not   subject   to    the

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

 3   because he may be eligible for humanitarian asylum, even

 4   though country conditions have changed in Sierra Leone.                  See

 5   8 C.F.R. § 1208.13(b)(1)(iii).

 6       IV. IFP Motion and Reimbursement of Filing Fee

 7       Jalloh also filed a motion to proceed in forma pauperis

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

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

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

11   permit    an   indigent     petitioner   to   proceed     IFP,   but    must

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

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

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

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

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

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

18   that request is granted.

19       For the foregoing reasons, the petition for review is

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

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


                                          7
 1   the   filing   fee   is   GRANTED,      and the   Clerk’s     Office   is

 2   directed to make any arrangements necessary to return the

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

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

 5   The pending request for oral argument in this petition is

 6   DENIED   in    accordance    with       Federal   Rule   of   Appellate

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

 8                                  FOR THE COURT:
 9                                  Catherine O’Hagan Wolfe, Clerk
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