         12-4635
         Fofana v. Holder
                                                                                         BIA
                                                                                    Videla, IJ
                                                                                 A098 642 305
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 3rd day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                     Chief Judge,
 9                DEBRA ANN LIVINGSTON,
10                RAYMOND J. LOHIER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       AMADOU FOFANA, AKA MOUSSA BASSIROU,
15                Petitioner,
16
17                          v.                                     12-4635
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:                Theodore Vialet, New York, NY.
25
26       FOR RESPONDENT:                Stuart F. Delery, Assistant Attorney
27                                      General; Jennifer L. Lightbody,
28                                      Senior Litigation Counsel; Matthew
29                                      A. Connelly, Trial Attorney, Office
 1                          of Immigration Litigation, United
 2                          States Department of Justice,
 3                          Washington, D.C.
 4
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   is GRANTED.

10       Petitioner Amadou Fofana, a native and citizen of Cote

11   d’Ivoire, seeks review of the October 25, 2012, decision of

12   the BIA affirming the September 13, 2011, decision of an

13   immigration judge (“IJ”) denying his motion to reopen.     In

14   re Amadou Fofana, No. A098 642 305 (B.I.A. Oct. 25, 2012),

15   aff’g No. A098 642 305 (Immig. Ct. N.Y.C. Sept. 13, 2011).

16   We assume the parties’ familiarity with the underlying facts

17   and procedural history in this case.

18       The agency’s determination that Fofana did not show a

19   change in country conditions is not supported by substantial

20   evidence and, accordingly, the agency abused its discretion

21   in denying his motion to reopen as untimely.   See Jian Hui

22   Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008); Kaur v.

23   BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).   An

24   alien may file one motion to reopen no later than 90 days

25   after the date on which the final administrative decision

                                  2
 1   has been rendered in the proceedings sought to be reopened.

 2   8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.23(b)(1).

 3   There is no dispute that Fofana’s July 2011 motion was

 4   untimely and number-barred, as it was his second motion to

 5   reopen, and the final administrative decision was issued in

 6   April 2010.   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

 7   § 1003.23(b)(1).

 8       The time limitation does not apply to a motion to

 9   reopen if it is “based on changed country conditions arising

10   in the country of nationality or in the country to which

11   removal has been ordered, if such evidence is material and

12   was not available and could not have been discovered or

13   presented at the previous proceeding.”   8 C.F.R.

14   § 1003.23(b)(4)(i); see 8 U.S.C. § 1229a(c)(7)(C)(ii).

15   While the agency concluded that conditions in Cote d’Ivoire

16   remained adverse, and had not worsened, the country

17   conditions evidence Fofana submitted shows that there was a

18   material worsening of conditions for individuals, like him,

19   who were members of the political party Rally for

20   Republicans (“RDR”).

21       The 2010 U.S. State Department Human Rights Report on

22   Cote d’Ivoire explains that in November 2010, the RDR


                                   3
 1   candidate for president, Alassane Ouattara, won the runoff

 2   election against the incumbent, Laurent Gbagbo; Gbagbo

 3   refused to relinquish control; and the two men established

 4   separate governments.   The Report further provides that,

 5   although forces loyal to Gbagbo had engaged in human rights

 6   abuses prior to the election, following the election, they

 7   began targeting RDR members and Ouattara supporters

 8   specifically, raiding campaign offices and individual homes,

 9   killing, injuring, and detaining RDR supporters, and, in one

10   instance, firing on RDR supporters during a demonstration,

11   killing at least twenty people and arresting hundreds.

12   Accordingly, the agency’s conclusion that Fofana did not

13   show changed country conditions is not supported by

14   substantial evidence.   See Jian Hui Shao, 546 F.3d at 169;

15   Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir. 2007) (the

16   substantial evidence standard “requires a certain minimum

17   level of analysis from the IJ and BIA, as well as some

18   indication that the IJ considered material evidence

19   supporting a petitioner’s claim.” (internal quotation marks

20   and alteration omitted)).




                                   4
1       For the foregoing reasons, the petition for review is

2   GRANTED and the case is REMANDED for further proceedings

3   consistent with this decision.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6




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