     14-500
     Diallo v. Lynch
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A088 380 384
                            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 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   1st day of July, two thousand fifteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            PIERRE N. LEVAL,
 9            DEBRA ANN LIVINGSTON,
10                 Circuit Judges
11   _____________________________________
12
13   THIERNO FADJA DIALLO,
14            Petitioner,
15
16                     v.                                            14-500
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.1
21   _____________________________________
22
23
24   FOR PETITIONER:                     Andy Wong, New York, New York.
25

     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:            Joyce R. Branda, Acting Assistant
2                               Attorney General; Anthony C. Payne,
3                               Senior Litigation Counsel; Colette
4                               J. Wilson, 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   GRANTED, in part, and DENIED, in part.

13       Petitioner Thierno Fadja Diallo, a native and citizen of

14   Guinea, seeks review of a January 30, 2014, decision of the BIA

15   affirming an April 7, 2011, decision of an Immigration Judge

16   (“IJ”) denying Diallo’s application for asylum, withholding of

17   removal, and relief under the Convention Against Torture

18   (“CAT”).   In re Thierno Fadja Diallo, No. A088 380 384 (B.I.A.

19   Jan. 30, 2014), aff’g No. A088 380 384 (Immig. Ct. N.Y. City

20   Apr. 7, 2011).    We assume the parties’ familiarity with the

21   underlying facts and procedural history in this case.

22       Under the circumstances of this case, we have reviewed the

23   IJ’s decision as supplemented and modified by the BIA.   See Xue

24   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.

25   2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
                                    2
1    Therefore, we assume that Diallo established past persecution

2    based on his political opinion, and only consider the agency’s

3    findings that the Government rebutted the presumption of future

4    persecution in Guinea on that basis and that Diallo failed to

5    establish a well-founded fear of persecution on account of his

6    Fulani   ethnicity.     We     additionally       review     the     BIA’s

7    consideration   of    the    country   conditions    evidence      Diallo

8    submitted with his BIA appeal brief.          The applicable standards

9    of review are well established.        See 8 U.S.C. § 1252(b)(4)(B);

10   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

11   I.   Political Opinion

12         The regulations require IJs to exercise the Attorney

13   General’s discretion to deny asylum to applicants who establish

14   eligibility   based    solely    on    past    persecution    when    the

15   Government establishes a fundamental change in circumstances

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

17   C.F.R. § 1208.13(b)(1).       While it is the Government’s burden

18   to show the fundamental change, the weight of that burden

19   “depends at least in part on the degree to which the past and

20   future persecutions are of the same sort.”         Islami v. Gonzales,

21   412 F.3d 391, 397 (2d Cir. 2005).       A fundamental change may be
                                        3
1    shown by a preponderance of the evidence, and we review the

2    agency’s   conclusion    for   substantial   evidence.     Lecaj    v.

3    Holder, 616 F.3d 111, 115, 116 (2d Cir. 2010).     The agency must

4    provide a reasoned basis for finding that changed country

5    conditions rebut the presumption of persecution.           Niang v.

6    Mukasey, 511 F.3d 138, 148-49 (2d Cir. 2007).     Accordingly, the

7    agency cannot ignore significant information favorable to the

8    applicant or rely on general changes in country conditions

9    without conducting an individualized analysis.           Tambadou v.

10   Gonzales, 446 F.3d 298, 303-04 (2d Cir. 2006).

11       Diallo claimed that he would be persecuted in Guinea based

12   on his affiliation with two political parties that opposed

13   Guinea’s ruling party, the Party for Unity and Progress.           The

14   IJ based his decision solely on Diallo’s testimony that another

15   political party, the Rally for the Guinean People (“RPG”), was

16   now in power in Guinea.    Although Diallo testified that the RPG

17   participated in the same political demonstration as Diallo,

18   which might suggest that they would have little interest in

19   persecuting him,   id,    Diallo did not assert a claim based on

20   membership in the RPG; so the agency’s reasoning is based on

21   evidence that may not be directly relevant to his claim (i.e.,
                                       4
1    that the RPG is now in power).         Furthermore, the IJ did not

2    consider any of the documentary record evidence.       Although the

3    country conditions evidence Diallo submitted before the IJ was

4    outdated at the time of his 2011 decision, the IJ did not address

5    the evidence at all, nor did he consider the other corroborating

6    evidence Diallo submitted.       Because the agency should have made

7    findings as to how the change in the ruling political party would

8    affect Diallo as a member of a different political party, we

9    grant his petition with respect to that finding.

10   II.    Ethnicity

11         The agency reasonably found that Diallo did not satisfy his

12   burden to establish a well-founded fear of persecution based

13   on his ethnicity.       To establish eligibility for asylum, an

14   applicant like Diallo, who did not show past persecution based

15   on his ethnicity, must demonstrate a well-founded fear of future

16   persecution.      See 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A); Kyaw

17   Zwar Tun v. INS, 445 F.3d 554, 564 (2d Cir. 2006).        To do so,

18   he must show that he subjectively fears persecution and that

19   his   fear   is    objectively   reasonable.     Ramsameachire   v.

20   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); see also Jian Hui

21   Shao v. Mukasey, 546 F.3d 138, 162 (2d Cir. 2008).        There are
                                        5
1    two ways for an applicant to show objective fear: (1) offering

2    evidence   that    he    would    be   singled     out   individually   for

3    persecution, or (2) proving that a pattern or practice of

4    persecution of similarly situated persons exists in his home

5    country.   Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007);

6    8 C.F.R. § 1208.13(b)(2).

7        Diallo’s claim that he will be persecuted due to his

8    ethnicity is primarily based on his assertion, during the merits

9    hearing, that the RPG leader in power has made disparaging

10   remarks about the Fulani people and that he fears persecution

11   on that basis.     The agency reasonably found this assertion

12   insufficient to establish that Diallo will be individually

13   targeted in Guinea.           See Hongsheng Leng v. Mukasey, 528 F.3d

14   135, 143 (2d Cir. 2008).

15       Diallo also argues that the Guinean government engages in

16   an ongoing practice of persecuting people of Fulani ethnicity

17   because politics and ethnicity in Guinea are intertwined.               The

18   agency reasonably found that Diallo’s claim was speculative,

19   despite his credible testimony.             Jian Hui Shao, 546 F.3d at 162.

20       The BIA has provided that “a ‘pattern or practice’ of

21   persecution   is        one    that    is    ‘systemic,    pervasive,    or
                                            6
1    organized,’” and we have “deemed that standard ‘a reasonable

2    one’ while at the same time seeking clarification from the BIA

3    as to how the standard might be applied reliably.”           Id. at 150

4    n.6 (citing Mufied, 508 F.3d at 92-93).            When the agency’s

5    determination that an individual did not establish a pattern

6    or   practice   of   persecution       is   supported   by   background

7    materials, the agency has provided a “sufficient basis” for its

8    conclusion.     Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.

9    2009).    Other than Diallo’s assertion that Fulajis made up 40

10   percent of the Guinean population, there is no evidence that

11   the Guinean government or the RPG persecutes Fulanis.               See

12   Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005).

13        Additionally, the BIA reasonably concluded that even if it

14   were to consider the background evidence provided in Diallo’s

15   May 2011 submission, the IJ did not err in finding Diallo’s claim

16   speculative.    The documentary evidence does not establish that

17   Guinea’s government engages in ongoing persecution of Fulani

18   people.    Accordingly, Diallo did not show a pattern or practice

19   of such persecution.    Because Diallo failed to demonstrate a

20   well-founded fear of persecution, he necessarily cannot meet

21   the higher burden required for withholding of removal or CAT
                                        7
1    relief.   See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d Cir.

2    2010).

3         For the foregoing reasons, the petition for review is

4    GRANTED, in part, and DENIED, in part.         As we have completed

5    our review, any stay of removal that the Court previously

6    granted in this petition is VACATED, and any pending motion for

7    a stay of removal in this petition is DISMISSED as moot.        Any

8    pending request for oral argument in this petition is DENIED

9    in   accordance   with   Federal   Rule   of   Appellate   Procedure

10   34(a)(2), and Second Circuit Local Rule 34.1(b).

11                                  FOR THE COURT:
12                                  Catherine O=Hagan Wolfe, Clerk




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