         11-3550
         Ndiaye v. Holder


                         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 4th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                        Circuit Judges.
11       _______________________________________
12
13       OMAR NDIAYE,
14                Petitioner,
15
16                    v.                                        11-3550-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Theodore Vialet, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Ernesto H. Molina,
27                                     Jr., Assistant Director; Joanna L.
28                                     Watson, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Omar Ndiaye, a native and citizen of

 6   Mauritania, seeks review of an August 15, 2011, decision of

 7   the BIA reversing the March 5, 2009, decision of Immigration

 8   Judge (“IJ”) Helen Sichel, granting his application for

 9   asylum.    In re Omar Ndiaye, No. 078 642 291 (B.I.A. Aug. 15,

10   2011), rev’g No. A078 642 291 (Immig. Ct. N.Y. City Mar. 5,

11   2009).    We assume the parties’ familiarity with the

12   underlying facts and procedural history in this case.

13       Under the circumstances of this case, we have reviewed

14   the BIA’s decision.     See Yan Chen v. Gonzales, 417 F.3d 268,

15   271 (2d Cir. 2005).    The applicable standards of review are

16   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

17   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

18       Ndiaye challenges the BIA’s vacatur of the IJ’s grant

19   of asylum.    Because the IJ found that Ndiaye demonstrated

20   past persecution, and the BIA did not reverse that finding,

21   he benefitted from the presumption of a well-founded fear of

22   future persecution.     See 8 C.F.R. §§ 1208.13(b)(1),

23   1208.16(b)(1)(I); see also Baba v. Holder, 569 F.3d 79, 86

                                     2
 1   (2d Cir. 2009); Li Hua Lin v. U.S. Dep’t of Justice, 453

 2   F.3d 99, 105 (2d Cir. 2006).   However, the regulations

 3   require the agency to exercise the Attorney General’s

 4   discretion to deny asylum to applicants who establish

 5   eligibility based solely on past persecution when the

 6   government establishes a fundamental change in circumstances

 7   sufficient to rebut the presumption of well-founded fear.     8

 8   C.F.R. § 1208.13(b)(1); see also id.   § 1208.16(b)(1)

 9   (setting forth application of presumption for withholding of

10   removal).

11       Here, the BIA reasonably concluded that the government

12   established a fundamental change in circumstances through

13   the U.S. Department of State 2007 Country Report on Human

14   Rights for Mauritania which stated that “[t]he new

15   government acted quickly to address the country’s most

16   serious human rights problems, [including] preparations for

17   the repatriation of thousands of Afro-Mauritanians living as

18   refugees in Senegal and Mali following their expulsion

19   during ethnic tensions and violence in 1989-91.”     Admin. R.

20   at 3, 198; see Ba v. Mukasey, 539 F.3d 1265, 1268-69 (10th

21   Cir. 2008) (2004 and 2005 Country Reports stating that

22   government was cooperating with repatriation of Afro-


                                    3
 1   Mauritanian refugees from Senegal, inter alia, rebutted

 2   presumption of well-founded fear of persecution of Afro-

 3   Mauritanian petitioner who was persecuted by the White Moors

 4   in 1989).   But cf. Niang v. Mukasey, 511 F.3d 138, 149 (2d

 5   Cir. 2007) (finding insufficient the BIA’s conclusion that

 6   “the current situation in Mauritania has improved

 7   dramatically” without reasoning or citation to any

 8   supporting facts).   The BIA also did not err in citing the

 9   more recent 2009 Mauritania Country Report of which it took

10   administrative notice, which indicated that the national

11   reconciliation program for the repatriation of Afro-

12   Mauritanian refugees from Senegal and Mali conducted, in

13   coordination with the Office of the United Nations High

14   Commissioner for Refugees, was successfully concluded.     See

15   Qun Yang v. McElroy, 277 F.3d 158, 163 n.4 (2d Cir. 2002)

16   (“It is well-settled that the BIA has the authority to take

17   administrative notice of current events bearing on an

18   applicant’s well-founded fear of persecution.”).

19       Ndiaye’s argument that the government has not

20   established a fundamental change in circumstances because

21   the Country Reports also indicate ongoing struggles for

22   Afro-Mauritanians related to political participation and


                                   4
 1   civil rights in general, is unpersuasive as political

 2   disenfranchisement and racial discrimination are not

 3   persecution.   Ivanishvilli v. U.S. Dep’t of Justice, 433

 4   F.3d 332, 341 (2d Cir. 2006) (noting that harm must rise

 5   above “mere harassment” to constitute persecution).     Indeed,

 6   all of Ndiaye’s evidence was from 2002 or earlier; thus

 7   there is no objective evidence that he would still be

 8   subject to persecution in Mauritania.   Ba, 539 F.3d at 1266-

 9   67 (a showing of possible future discrimination does not

10   establish a fear of future persecution).   Moreover, the BIA

11   did not err in relying solely on State Department Country

12   Reports for evidence of current country conditions, as there

13   was no other evidence presented.   See Xiao Ji Chen v. U.S.

14   Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006); Tu

15   Lin v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006);     cf.

16   Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004)

17   (noting that remand may be appropriate “where the agency’s

18   determination is based on an inaccurate perception of the

19   record, omitting potentially significant facts”).

20   Accordingly, as the agency reasonably concluded that the

21   government overcame Ndiaye’s presumption of a well-founded

22   fear of future persecution, it did not err in denying his

23   application for asylum and withholding of removal.     8 C.F.R.
                                   5
1   §§ 1208.13(b)(1)(I), 1208.16(b)(1).   We have considered all

2   of Ndiaye’s remaining arguments and find them to be without

3   merit.

4       For the foregoing reasons, the petition for review is

5   DENIED.

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




                                 6
