                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0323n.06

                                         No. 19-3859

                          UNITED STATES COURT OF APPEALS                            FILED
                               FOR THE SIXTH CIRCUIT                           Jun 03, 2020
                                                                           DEBORAH S. HUNT, Clerk

ISMAILA BA,                                    )
                                               )          ON PETITION FOR REVIEW
        Petitioner,
                                               )          OF AN ORDER OF THE
                                               )          BOARD OF IMMIGRATION
v.
                                               )          APPEALS
                                               )
WILLIAM P. BARR, Attorney General,
                                               )
        Respondent.                            )                  OPINION
                                               )



Before: SILER, MOORE, and NALBANDIAN, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. Ismaila Ba petitions for review of the

decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his removal

proceedings. Because the BIA erred in concluding that Ba’s motion was foreclosed by his failure

to demonstrate in his removal proceedings that he is Mauritanian and that he was enslaved, we

GRANT the petition for review, VACATE the BIA’s order, and REMAND for proceedings

consistent with this opinion.

                                     I. BACKGROUND

       Ba is a native and citizen of Mauritania. Administrative Record (“A.R.”) at 824 (Notice to

Appear). He entered the United States at or near Miami, Florida on or about July 11, 1998, and

was not admitted or paroled after inspection by an Immigration Officer. Id. On January 15, 1999,

Ba submitted an application for asylum and other relief from removal, claiming that he had been
No. 19-3859, Ba v. Barr


enslaved as a Black Mauritanian by an Arab master and feared returning to Mauritania because he

could be killed by his former master. Id. at 806, 808, 810 (First Asylum Appl. at 4, 6, 8). On

October 1, 1999, the Department of Homeland Security (“DHS”) issued a Notice to Appear in

removal proceedings to Ba, charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i). Id. at

824 (Notice to Appear). Ba submitted an updated application for relief in April 2000. Id. at 787

(Second Asylum Appl. at 8). On May 4, 2000, Ba admitted the allegations in DHS’s Notice to

Appear and conceded the charge. Id. at 692–97 (Initial Hr’g Tr. at 1–6).

A. Ba’s Removal Proceedings

       On October 23, 2000, Ba testified in support of his applications for relief to the following

information.1 He was born into slavery and his entire family was in the service of a master. A.R.

at 705 (Asylum Hr’g Tr. at 13). His family lived in “the regional city of Kaédi,” id. at 726, in a

separate house owned by the master, id. at 706. At the hearing, Ba identified his master by name

and described him as a “shepherd” who also owned a boutique. Id. at 705–06. Ba would lead his

master’s animals to the pasture, and afterwards he would wait on clients in the boutique, id. at 706,

in which he would sell and serve tea, id. at 722. The master provided “nothing” in compensation

for Ba’s labor, and Ba was permitted to eat only after the master had finished eating. Id. at 707.

Ba attended religious school from 1968 to 1970, id. at 723, and high school from 1970 to 1976,

until his master wanted him to stop, id. at 724. Ba’s sister eventually left the family by way of

marriage to the slave of another family, which Ba’s master arranged. Id. at 707.




       1
        Ba testified in French through an official interpreter. A.R. at 698 (Asylum Hr’g Tr.)
(Cover Page).


                                                 2
No. 19-3859, Ba v. Barr


        Ba’s father died in 1990, which marked the beginning of Ba’s sexual abuse by his master.

Id. at 727. Ba stated that his master “performed sodomy on [him].” Id. at 708. The abuse happened

“frequently,” “[s]ometimes . . . twice a week.” Id. at 728. Ba never told his mother about the

abuse, both because “[t]here was nothing [his] mother could have done about it,” and because “[i]t

was shameful.” Id. at 728. After his mother’s death in 1992, id. at 707, “the abuse began to

intensify.” Id. at 708. When asked why he did not struggle against the sexual abuse, Ba responded:

“Resistance would have meant nothing. It wouldn’t have served any purpose. I had no rights. It

was within his.” Id. at 714.

        Ba decided to flee. Id. at 716. Although he did not receive compensation for his labor

from his master, he gradually saved up small amounts of money that he was given by suitors of

his master’s daughters when they would come to court the daughters. Id. at 716–17. “[L]ittle by

little,” Ba benefitted from this keep-the-change routine: A young man would come to the house

to court the master’s daughter and to serve her tea; the man would give Ba money to go next door

and purchase water, sugar, spoons, and other “accoutrements”; and when Ba would return to give

the man the leftover money, the man would not take it, in order to “make a good impression in

front of the woman.” Id. at 716–17. Ba put this money in a satchel, dug a hole, and hid it there.

Id. at 717.

        In March 1998, he left the house when it was empty, took a taxi to the train station, and

then took a car to the city of Nouakchott. Id. at 717–18. After arriving the next day, he took a car




                                                 3
No. 19-3859, Ba v. Barr


with other passengers to Nouadhibou2, arriving the following day. Id. at 718. Ba used the money

he had saved up to pay for these transportation expenses. Id. at 729–30. He decided to go to

Nouadhibou because it was “very far away,” “[s]omewhere where one of [the master’s] relatives

or a friend of his could not recognize [him].” Id. at 719. If he had been recognized, the master

“would have had the right . . . either to . . . kill [him] or to . . . commit even worse atrocities than

he had.” Id. In Nouadhibou, Ba walked to Cansado,3 where he eventually secured a job on a

fishing boat and spent five months working without pay. Id. at 719–20. He “felt liberated” on this

boat. Id. at 744. At the advice of the boat’s captain, Ba thereafter boarded another boat on May

5, 1998 that took him to the United States, and because the prior boat’s captain had “arranged the

affair,” Ba did not have to pay for the transatlantic journey. Id. at 719–20. Ba did not remain in

Nouadhibou because he “wanted to go very, very, very, very far from [his] master[,] [s]o when

[he] had the occasion to get on a . . . fishing boat, [he] took it.” Id. at 731–32; id. at 744

(“Mauritania is large. But the population is not very big. And we can recognize one another very

easily. I could have been recognized by a member of my master’s family, a friend of my master.”).

        With respect to identity documents, Ba was not able to secure a Mauritanian passport. Id.

at 720. When asked why he had submitted a nationality certificate with his asylum application

that indicated that he resided in Nouakchott, despite testifying that he resided in Kaédi for his




        2
        The name of his town is spelled incorrectly in the asylum hearing transcript. See, e.g.,
A.R. at 730 (Asylum Hr’g Tr. at 38) (“Nouadhibon”); Oxford Concise Dictionary of World Place
Names (John Everett-Heath ed., 3d ed.) (“Nouadhibou”).
        3
        The name of his town is spelled incorrectly in the asylum hearing transcript. See A.R. at
719 (Asylum Hr’g Tr. at 27) (“Kasando”); Oxford Concise Dictionary of World Place Names
(John Everett-Heath ed., 3d ed.) (“Cansado”).

                                                   4
No. 19-3859, Ba v. Barr


entire life, he responded that he “received that document [from] [his] father when he was on his

death bed” and “c[ouldn]’t say why it says that [he] lived in Nawacha.” Id. at 726–27.4 The IJ

noted that she “d[id]n’t see any document saying that [he] w[as] a slave.” Id. at 751. Ba stated

that he did not know “why the word slave isn’t indicated on [his] identity card.” Id.

       Ba testified that he did not know that under current Mauritanian law, adults could not be

forced to remain with former masters. Id. at 738. “[W]hat I do know,” he stated, “is that there are

still adults who are slaves.” Id. He testified that he possessed non-notarized documents from

Mauritanian friends in Columbus, Ohio indicating that individuals are forced to return to their

masters in Mauritania. Id. at 738–39.

       The IJ then questioned Ba about his language abilities and his nationality. Ba testified that

his “best language”—and the national language of Mauritania—was French. Id. at 739–40. The

IJ countered that the submitted Country Reports indicated that Arabic was the national language

of Mauritania. Id. at 740. Ba explained that French was “our first language.” Id. The IJ asked,

“[W]hy [are you] speaking in French when you were the slave of an Arabic -- of an Arab -- of an

Arab-speaking Arab?” Id. Ba replied that at his master’s home they spoke Hassaniya, an Arabic

dialect, but once his master took him out of school, Ba “decided that [he] wanted to keep as much

as [he] could from what [he] had been learning in French,” so he spoke French as often as possible.

Id. The IJ then asked, “What’s the national language of Senegal?” to which Ba responded, “I think

it must be French.” Id. at 740–41. The IJ replied, “It is French. Are you from Senegal?” and Ba


       4
        “Nawacha” appears to be a phonetic spelling of the word “Nouakchott.” Compare A.R.
at 727 (Asylum Hr’g Tr. at 35) (referring to “nationality certificate” that states that Ba lived in
“Nawacha”), with id. at 791 (Second Asylum Appl., Translated Nationality Certificate) (issued by
“Nouakchott Court of the First Instance”).


                                                5
No. 19-3859, Ba v. Barr


stated that he was “not Senegalese.” Id. at 741. The IJ stated that, “[t]he Court finds that it is

highly unusual that you would have been enslaved from infancy in an Arabic family and be

speaking French here today in Court.” Id. Ba explained that “after having seen and felt the

atrocities that were committed against my family and myself, I decided to make French my -- a

language.” Id. The following colloquy ensued:

       [IJ]: Well, we have an Arab interpreter this afternoon. If -- would you be able to
       speak to that Arab interpreter?
       [Ba]: But that would be going backwards. I, I couldn’t do it.
       [IJ]: You wouldn’t be able to speak in Arabic to an Arabic interpreter? You
       wouldn’t be able to hold a conversation in Arabic, would you?
       [Ba]: I’m not saying that I’m incapable. But the Hassaniya that we speak is a
       derivative of Arabic. So there, there are words that I could understand. But in
       general, we couldn’t communicate.
       [IJ]: Well, what about if this may be a Hassaniya interpreter. Will you be able to
       carry on a conversation this afternoon?
       [Interpreter]: A little bit. But he’s asking that the Judge not force him to return to
       memories that he would, he would rather not reinvoke.


Id. at 741–42. The IJ later stated that she “believe[d] [that Ba] is Senegalese, quite frankly. Based

on his language here today. French. Education.” Id. at 751.

       The IJ then noted that Ba had fled to Nouakchott and Nouadhibou, “where 60% are

Senegalese.” Id. at 743. She further stated that “[i]t doesn’t sound like [Ba] w[as] a disadvantaged

class” because Ba was “high school educated” and “was able to save up enough money to pay [his]

way to the United States.” Id. at 745. The IJ remarked, “[O]ne principle of slavery is don’t educate

them, I would think. This whole thing is implausible.” Id. at 748. She also remarked that it would

be “really unusual” for Ba to have been enslaved in a city, when the Country Reports stated that




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No. 19-3859, Ba v. Barr


slavery “still exists in rare cases in the countryside,” id. at 749, and that he was “quite a different

kind of slave” given his level of education, id. at 750.

B. IJ’s Decision

       The IJ denied Ba’s application for relief in an oral decision. Id. at 671 (IJ Decision at 1).

The IJ found that Ba “ha[d] not presented a credible claim for relief” for several reasons. Id. at

675; id. (“Court finds respondent not credible because based on the elicited acts cited below, such

claim is implausible.”).     First, Ba spoke French—not Hassaniya Arabic—as his preferred

language, and could “only speak a little” of the latter. Id. at 675–76. It was “therefore . . . totally

implausible that . . . he and his family have been slaves to Arabs.” Id. at 676. The IJ found Ba’s

explanation for speaking French to be “totally incredible.” Id. Second, Ba was “relatively

educated,” based on educational statistics in Mauritania, leading to the IJ to “discount[] [Ba]’s

claim for asylum based on being a slave.” Id. There was also an “inconsistency” in Ba’s testimony

about his menial labor duties versus his master’s decision to send him to school. Id. at 677. Third,

Ba’s keep-the-change anecdote was “implausible with the whole concept of being a slave and

providing free labor.” Id. Fourth, Ba was “unable to explain why he could not have adopted safe

haven in Nouadhibon and Nouakchott . . . since he testified that he was unharmed there and he felt

liberated.” Id. Fifth, the combination of Ba’s “unreliable identity records” (which did not indicate

that he was a slave), “his fluent French” (the national language of Senegal), and the Country

Reports statistic that 60% of Mauritanian small boat fishermen were Senegalese (when Ba had

acknowledged that other individuals on his fishing boat were Senegalese) “strongly suggest[ed] to

the Court that [Ba] is, in fact, Senegalese.” Id. Sixth, his certificate of nationality stated that he

resided in Nouakchott, but his testimony was “that he had always lived in Kaédi.” Id. at 677–78.


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No. 19-3859, Ba v. Barr


Seventh, it was unlikely that Ba was a slave because Kaédi was not in the countryside, which is

where “one would reasonably expect a slave to be.” Id. at 678. Eighth, slavery had been outlawed

in Mauritania since 1980, and contrary to Ba’s testimony, adults could not be forced to remain

with their masters or to return if they left. Id. Alternatively, the IJ noted that even if Ba were

credible, “changed conditions in his country show that he has no reasonable fear of being recovered

by his master.” Id. at 678–79.

       Having denied Ba’s application for relief, the IJ ordered Ba removed to Mauritania. Id. at

679 (IJ Order). Ba timely filed a notice of appeal. Id. at 662 (Notice of Appeal).

C. Appeal and Present Motion to Reopen

       The Board of Immigration Appeals (“BIA”) summarily affirmed the IJ’s decision without

opinion. Id. at 366 (BIA Summary Order). Ba thereafter filed multiple motions to reopen, based

on an approved I-130 visa petition, which were denied and are not relevant to this case. See id. at

281–82 (First Mot. to Reopen); id. at 276 (First BIA Order Denying Mot. to Reopen); id. at 255

(Mot. to Reconsider and Second Mot. to Reopen); id. at 250–51 (Second BIA Order Denying Mot.

to Reopen).

       On October 22, 2018, Ba filed the motion to reopen that is at issue in this case. A.R. at 33

(Third Mot. to Reopen at 10). In it, he explained that since the time he had been ordered removed,

“[d]ue to the unavailability of travel documents from Mauritania; the fact that his country has

stripped him of his citizenship; DHS’s priority scheme for deportations; and the unsafe conditions

in Mauritania, [he] was allowed to remain in the U.S. for almost two decades.” Id. at 26. Ba stated

that “he complied with DHS’s requests for regular check-ins with ICE, and continued to live his

life in the United States,” including raising two children who are United States citizens. Id. The


                                                8
No. 19-3859, Ba v. Barr


motion asserts that Ba’s removal proceedings should be reopened because conditions in Mauritania

have worsened, “particularly for a Christian of Afro-Mauritanian descent like [him],” and that

Mauritania’s “recent actions to jail political opponents” and to subject activists to detention and

torture threaten his safety. Id. at 28. Ba appended to his motion a proposed application for relief,

in which he stated, inter alia, that “the government would detain and torture me for my political

beliefs in opposition to slavery,” and that “you will be put to death if you denounce the religion of

Islam: I am Christian.” Id. at 241 (Proposed Asylum Appl. at 5).

       The BIA denied Ba’s motion, A.R. at 3 (Third BIA Order Denying Mot. to Reopen)

(hereinafter “BIA Decision”), providing the following reasoning for its denial:

               The respondent avers that conditions in Mauritania have harshened for
       Christians of “Afro-Mauritanian descent” like himself, rendering him likely to
       return to the “slave caste” in that country (Motion at 6-10). However, the
       respondent has not addressed the adverse credibility findings of the Immigration
       Judge, which this Board summarily affirmed (IJ at 5).[] In rendering this finding,
       the Immigration Judge found the respondent’s claim that he had been a slave in
       Mauritania was implausible, citing various reasons (IJ at 5-9). The Immigration
       Judge also cited the fact that French was the respondent’s preferred language, and
       the lack of reliable identity documents, in finding that the respondent is actually
       Senegalese, rather than a native and citizen of Mauritania, as he claims (IJ at 7-8).[5]
               Therefore, the respondent has not shown that his proffered evidence,
       relating to conditions in Mauritania, reflects any materially changed country
       conditions showing that he is now eligible for relief from removal. The respondent
       also has not demonstrated any material change in Senegal. Accordingly, the
       respondent’s motion is not exempt from the above-noted statutory bars on motions
       to reopen, and reopening is not warranted.




       5
         Here, footnote 3 of the BIA’s decision reads: “The respondent has not submitted any
evidence with his motion showing that he is a national and/or citizen of Mauritania. Absent such
basic, yet significant, evidence, he has not demonstrated the materiality of any of the evidence
relating to conditions in Mauritania.” Id. at 4 n.3.


                                                  9
No. 19-3859, Ba v. Barr


Id. at 3–4 (citation omitted). Ba timely petitioned this court for review. We have jurisdiction to

review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1).

                                 II. STANDARD OF REVIEW

       “This Court reviews the BIA’s denial of a motion to reopen for abuse of discretion.” Alizoti

v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007). “The BIA abuses its discretion when it acts

arbitrarily, irrationally, or contrary to law.” Id.; Balani v. I.N.S., 669 F.2d 1157, 1161 (6th Cir.

1982) (“In determining whether the Board abused its discretion, this Court must decide whether

the denial of Petitioner’s motion to reopen deportation proceedings was made without a rational

explanation, inexplicably departed from established policies, or rested on an impermissible basis

such as invidious discrimination against a particular race or group.”). “The Supreme Court has

made clear that reopening is discretionary with the BIA and that the BIA retains broad discretion

to grant or deny such motions.” Alizoti, 477 F.3d at 451.

                                       III. DISCUSSION

A. Limited Scope of Review

       Before assessing whether Ba’s petition has merit, we must clarify the limited scope of our

review, which requires some background on the statutory framework for motions to reopen.

Generally, “a party may file only one motion to reopen [removal] proceedings (whether before the

Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date

on which the final administrative decision was rendered in the proceeding sought to be reopened.”

8 C.F.R. § 1003.2(c)(2). But when an applicant applies or reapplies for asylum “based on changed

circumstances arising in the country of nationality or in the country to which deportation has been

ordered, if such evidence is material and was not available and could not have been discovered or


                                                10
No. 19-3859, Ba v. Barr


presented at the previous hearing,” these time and numerical limitations do not apply. 8 C.F.R.

§ 1003.2(c)(3)(ii). The question here is whether these limitations apply.

       In concluding that these limitations did apply to—and thus precluded—Ba’s motion to

reopen, the BIA reasoned that he had failed to “address[] the adverse credibility findings of the

Immigration Judge,” specifically with respect to his claims that he was Mauritanian and that he

was a slave. A.R. at 3–4 (BIA Decision at 1–2). Because “the Board’s denial of relief may be

affirmed only on the basis articulated in the decision and this Court may not assume that the Board

considered factors that it failed to mention in its opinion,” Daneshvar v. Ashcroft, 355 F.3d 615,

626 (6th Cir. 2004), we review only what the BIA actually said in its order. See Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168–69 (1962) (“The courts may not accept appellate

counsel’s post hoc rationalizations for agency action; [we] require[] that an agency’s discretionary

order be upheld, if at all, on the same basis articulated in the order by the agency itself.”). The

“basis articulated in the [BIA] decision,” in this case, was Ba’s failure to submit evidence “showing

that he is a national and/or citizen of Mauritania,” A.R. at 4 (BIA Decision at 2 n.3), or otherwise

rebutting the credibility finding of the IJ with respect to his prior asylum claims, id. at 1–2.

Accordingly, we do not address whether Ba has made a prima facie showing of eligibility for relief,

as is required in motions to reopen, because the BIA did not address this requirement. Alizoti, 477

F.3d at 451–52 (citing 8 C.F.R. § 1003.2(c)). Nor do we assess whether the voluminous evidence

that Ba appended to his motion to reopen does, in fact, demonstrate a relevant change in country

conditions and whether it was “not available and could not have been discovered or presented at

the previous hearing,” 8 C.F.R. § 1003.2(c)(3)(ii), because the BIA has not yet had the opportunity

to engage in this analysis.


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No. 19-3859, Ba v. Barr


B. Ba’s Nationality and Past Enslavement

       The BIA concluded that Ba’s motion was not exempt from the statutory bars on motions

to reopen because (1) he did not address the IJ’s findings that he was neither Mauritanian nor a

slave, and “therefore” (2) he had failed to show that his now-proffered evidence about Mauritania

“reflects any materially changed country conditions showing that he is now eligible for relief from

removal.” A.R. at 4 (BIA Decision at 2). We address the first link in this syllogism. Assuming

that the IJ did, in fact, find that Ba was Senegalese and not Mauritanian, and that he was not a

slave,6 it is unclear how Ba’s failure to rebut these findings would foreclose his present motion to

reopen, which is based on changed circumstances that have to do with his religion and political

beliefs, not his nationality or past enslavement. The BIA’s decision denying Ba’s motion to reopen

faulted him for failing to “demonstrate[] the materiality of any of the evidence relating to

conditions in Mauritania,” id. (BIA Decision at 2 n.3), but did not acknowledge that regardless of

his nationality, the country to which Ba—who is allegedly a Christian and an opponent of



       6
         Ba makes the additional argument in Part IV of his brief that “the IJ did not ‘find’ [that]
Mr. Ba was from Senegal.” Pet. Br. at 22. The government does not directly contest this assertion,
but responds that “the record makes clear that the agency did not believe Ba credibly showed that
he is Mauritanian.” Resp. Br. at 17. It is true that in order to discredit testimony, the BIA or IJ
“must make the determination that a declaration is ‘inherently unbelievable,’” and neither entity
did so explicitly here. Trujillo Diaz v. Sessions, 880 F.3d 244, 253 (6th Cir. 2018) (quoting
Haftlang v. INS, 790 F.2d 140, 144 n.2 (D.C. Cir. 1986)); see A.R. at 751 (Asylum Hr’g Tr. at 59)
(“I believe respondent is Senegalese, quite frankly. Based on his language here today. French.
Education.”); id. at 49 (A.R. at 741) (“The Court finds that it is highly unusual that you would
have been enslaved from infancy in an Arabic family and be speaking French here today in
Court.”); IJ Decision at 7 (A.R. at 677) (finding that statistic about percentage of Mauritanian
small-boat fisherman who were Senegalese, Ba’s “unreliable identity records,” and his French
fluency “strongly suggest to the Court that he is, in fact, Senegalese”). But see IJ Decision at 6
(A.R. at 686) (“Respondent’s explanation for speaking French . . . is totally incredible.”). But
because we resolve Ba’s petition on other grounds, we do not address this argument.


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No. 19-3859, Ba v. Barr


slavery—will be removed is Mauritania, see A.R. at 664 (IJ Order) (“Respondent’s application for

voluntary departure was denied and respondent was ordered removed to Mauritania.”), which

apparently persecutes Christians and opponents of slavery, see id. at 68–235 (evidence of changed

country conditions). Although Ba specifies that he is a “Christian of Afro-Mauritanian descent,”

nowhere in his motion to reopen or in his proposed asylum application does he allege that he will

be targeted on the basis of his nationality. A.R. at 28 (Third Mot. to Reopen at 5). Put simply, the

IJ’s suspicions that Ba was not Mauritanian and had not been enslaved need not be revisited on a

motion to reopen in order to assess whether he will be persecuted if removed to Mauritania.

Contrary logic would have doomed many of history’s most desperate asylum applicants. For

example, a Jewish asylum applicant fleeing Nazi persecution in the 1930s who both (a) claimed

German nationality and (b) failed to convince the Board that he was German would have been

removed to Germany, even if it was undisputed that he was Jewish and that the Nazi regime

persecuted members of the Jewish faith. Such a result—focusing on disbelieved nationality when

nationality itself was irrelevant—would have been “without a rational explanation.” Balani,

669 F.2d at 1161. For Ba, it is his religion and political beliefs, not his nationality—be it

Senegalese or Mauritanian—or his past enslavement that allegedly expose him to persecution.

       The irrelevance of Ba’s alleged nationality and past enslavement to his present motion is

even clearer when considering why these things were relevant to his past asylum application. For

Ba’s 2000 asylum claim, he was obligated to present a coherent, credible claim of past persecution.

The fact that he spoke better French than Arabic “suggest[ed] to the Court that he is, in fact,

Senegalese,” IJ Decision at 7, which in turn meant that his claim of past persecution in Mauritania

was not credible. See id. at 8 (discussing the “plausibility of his being an educated French-speaking


                                                 13
No. 19-3859, Ba v. Barr


slave to an Arab master in Kaédi”). In other words, if Ba was lying about being Mauritanian, it

was less likely that his claim about being enslaved in Mauritania was true. The same is not true

for his present claim. Whereas Ba’s application for relief in 2000 hinged on the plausibility of his

backward-looking claim that he had been enslaved in Mauritania, Ba’s present asylum claim

hinges on the plausibility of the forward-looking possibility that he will be persecuted in

Mauritania.7 Only for the former claim was Ba’s credibility in describing his Mauritanian roots

relevant.

       This is unlike, for example, the scenario we addressed in Ahmed v. Holder, 495 F. App’x

605 (6th Cir. 2012). In Ahmed, the petitioner first failed to testify credibly that he had been targeted

for political persecution in Mauritania. Id. at 606–07. Several years later, he filed a motion to

reopen his removal proceedings based on new evidence supporting his initial claim of political

persecution. Id. at 608. When the BIA denied his motion to reopen, it relied on the prior adverse

credibility determination. Id. at 612. We found no error in this reliance, explaining: “While

Ahmed’s appeal does not directly challenge the agency’s adverse credibility determination, his

motion to reopen is, essentially, a motion to reconsider his credibility: he relies on the same story



       7
         A change in personal circumstances alone, such as a conversion to Christianity, does not
constitute changed country conditions for purposes of 8 C.F.R. § 1003.2(c)(3)(ii). See Haddad v.
Gonzales, 437 F.3d 515, 517 (6th Cir. 2006); see also 8 U.S.C. § 1229a(c)(7)(C)(ii). But if the
petitioner can demonstrate that a change in country conditions would lead to his persecution based
on a corresponding change in his own personal circumstances, this is permissible. See Chandra v.
Holder, 751 F.3d 1034, 1039 (9th Cir. 2014). “Personal conversion to a group does not foreclose
the possibility that a country can ‘for its own reasons, become[ ] more hostile towards an alien or
his group’ at the same time.” Yu Yun Zhang v. Holder, 702 F.3d 878, 880 (6th Cir. 2012) (alteration
in original) (quoting Tan Wu Zhang v. Holder, 385 F. App’x 546, 547 (6th Cir. 2010)). For reasons
discussed above, supra Part III.A, we leave it to the BIA to determine whether Ba has demonstrated
either a change in country conditions or a corresponding change in his personal circumstances.


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No. 19-3859, Ba v. Barr


now that he relied upon then, and that story was deemed incredible.” Id. (emphasis added); see

also Yan Xia Zhang v. Mukasey, 543 F.3d 851, 855 (6th Cir. 2008) (BIA did not abuse its discretion

in declining to credit new evidence of China’s population-policy persecution when the petitioner

made “no attempt . . . to rehabilitate her credibility” after testifying incredibly, in the initial asylum

proceeding, about her persecution under this policy). Here, by contrast, Ba does not rely on the

same story, or even the same bases of persecution.8

        Alternatively, the government appears to argue that the BIA more generally “rejected Ba’s

credibility.” Resp. Br. at 20. It is unclear whether the government means to suggest that apart

from the substance of his incredible testimony in the prior asylum hearing, Ba has been found to

lack credibility in general. Regardless, in this case, the BIA did not deny Ba’s motion to reopen

on the basis that he generally lacked credibility; the BIA’s decision does not regard his motion to

reopen or proposed asylum application as inherently unbelievable because of some history of

fraudulent conduct. Cf. Gafurova v. Sessions, 712 F. App’x 540, 546 (6th Cir. 2017) (upholding

the IJ’s and BIA’s consideration of the petitioner’s prior adverse credibility findings, when “under

the circumstances,” she “had a history of providing false statements under oath and of submitting

fraudulent documents”); Yan Xia Zhang, 543 F.3d at 852 (IJ deemed “fraudulent” a “written

document meant to confirm the forced abortion episode [that] was signed by her father and brother

even though the official Chinese household identity card Zhang provided to the court indicated

both men had been living in the United States for years prior to the incident”).



        8
          There is yet another aspect of illogic to the BIA’s consideration of Ba’s nationality: It
results in the conclusion that Ba should be removed to Mauritania because he has not demonstrated
that he is Mauritanian. See IJ Order (A.R. at 664).


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       The BIA here did not conclude that, for example, Ba had an established lack of credibility,

and that therefore his claim that he converted to Christianity was unbelievable. On this issue,

compare Ba’s case to Gafurova, in which the asylum applicant’s motion to reopen based on

changed circumstances was denied because “[t]he only evidence that the Respondent attached to

her new I-589 to support her contention that she is now Christian is her own affidavit,” and “[d]ue

to her history of fabricating information, the Court will give no weight to the Respondent’s

affidavit as she has no credibility.” Gafurova A.R. at 46 (IJ Decision at 3) (emphasis added); see

also id. at 4–5 (Gafurova BIA Decision at 2–3) (“The respondent also asserts that the Immigration

Judge inappropriately prejudged her credibility. However, the Immigration Judge was fairly

considering the respondent’s lack of credibility as it has been a continuous issue [in] her

proceedings, and the initial adverse credibility finding by the Immigration Judge has been upheld

by this Board and the federal court of appeals.”) (emphasis added). In Gafurova, we affirmed the

IJ and BIA’s decisions, because they relied on the petitioner’s general lack of credibility. 712 F.

App’x at 546. Here, the BIA did not conclude that Ba’s motion to reopen must fail because he

generally lacks credibility. Rather, as discussed above, it held that his failure to rebut the prior

adverse credibility determination was dispositive because it established that he was not

Mauritanian and was not a slave. Absent any indication in the BIA’s decision that it regarded Ba

as generally untrustworthy or fraudulent, its reliance on the past, claim-specific credibility

determination was “without a rational explanation.” Balani, 669 F.2d at 1161.

                                                ***

       As discussed above, supra Part III.A, we will not proceed to analyze whether Ba has

adequately demonstrated a material change in country conditions that he could not have presented


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at his initial asylum hearing or, even further, a prima facie case for relief. See Daneshvar, 355 F.3d

at 626; I.N.S. v. Orlando Ventura, 537 U.S. 12, 16–17, (2002) (“Generally speaking, a court of

appeals should remand a case to an agency for decision of a matter that statutes place primarily in

agency hands. This principle has obvious importance in the immigration context. . . . The agency

can bring its expertise to bear upon the matter; it can evaluate the evidence; it can make an initial

determination; and, in doing so, it can, through informed discussion and analysis, help a court later

determine whether its decision exceeds the leeway that the law provides.”). “[I]t is for the BIA to

address th[is] matter[] in the first instance.” Torres-Vaquerano v. Holder, 529 F. App’x 444, 449

(6th Cir. 2013).

                                       IV. CONCLUSION

       For the foregoing reasons, we GRANT the petition for review, VACATE the BIA’s

decision, and REMAND for further proceedings consistent with this opinion.




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