         12-32
         Barrie v. Holder
                                                                                       BIA
                                                                                    Burr, IJ
                                                                               A078 714 114
                             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 2nd day of May, two thousand thirteen.
 5
 6       PRESENT:
 7                ROBERT A. KATZMANN,
 8                DEBRA ANN LIVINGSTON,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       MOHAMED BARRIE,
14                Petitioner,
15
16                          v.                                  12-32
17                                                              NAC
18       ERIC H. HOLDER, JR.,
19                Respondent.
20       _____________________________________
21
22       FOR PETITIONER:               Theodore Vialet, New York, New York.
23
24       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
25                                     Attorney General; Terri J. Scadron,
26                                     Assistant Director; Siu P. Wong,
27                                     Trial Attorney, Office of
28                                     Immigration Litigation, United
29                                     States Department of Justice,
30                                     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       Mohamed Barrie, a native and citizen of Sierra Leone,

 6   seeks review of a December 8, 2011, decision of the BIA

 7   affirming the June 11, 2010, decision of Immigration Judge

 8   (“IJ”) Sarah M. Burr, which pretermitted his asylum

 9   application as untimely and denied his application for

10   withholding of removal and for relief under the Convention

11   Against Torture (“CAT”) due to a fundamental change in

12   circumstances in Sierra Leone.   In re Mohamed Barrie, No.

13   A078 714 114 (B.I.A. Dec. 8, 2011), aff’g No. A078 714 114

14   (Immig. Ct. N.Y.C. June 11, 2010).   We assume the parties’

15   familiarity with the underlying facts and procedural history

16   in this case.

17       Under the circumstances of this case, we have reviewed

18   the decision of the IJ as supplemented by the BIA.     See Yan

19   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

20   applicable standards of review are well established.     See

21   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

22   510, 513 (2d Cir. 2009).


                                  2
 1   I.   Asylum

 2        Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to

 3   review the agency’s finding that an asylum application was

 4   untimely under 8 U.S.C. § 1158(a)(2)(B).     Although we retain

 5   jurisdiction to review constitutional claims and questions

 6   of law, 8 U.S.C. § 1252(a)(2)(D), a question of law is not

 7   implicated “when the petition for review essentially

 8   disputes the correctness of an IJ’s fact-finding or the

 9   wisdom of his exercise of discretion,” Xiao Ji Chen v. U.S.

10   Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).

11        Here, Barrie has waived his right to challenge the

12   agency’s pretermission of his asylum application, as he

13   failed to raise the issue in his brief to this Court.        See

14   Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7

15   (2d Cir. 2005).     To the extent that Barrie mentions the one-

16   year bar, he states in one sentence that his testimony and

17   the letter from his witness were sufficient to demonstrate

18   timely filing.     Even construing this single sentence as

19   challenging the pretermission finding, we lack jurisdiction

20   as it does not raise a question of law.     See Xiao Ji Chen,

21   471 F.3d at 329.

22



                                     3
 1       Rather, Barrie argues that he suffered severe harm and

 2   persecution in Sierra Leone to such an extent that he

 3   warrants a grant of asylum, even absent a well-founded fear

 4   of future persecution.    We construe this as a request for

 5   humanitarian asylum, as defined in 8 C.F.R.

 6   § 1208.13(b)(1)(iii)(A),(B). See Tao Jiang v. Gonzales, 500

 7   F.3d 137, 141-43 (2d Cir. 2007).    However, because this form

 8   of relief is available only to persons eligible for asylum,

 9   and Barrie’s asylum application was pretermitted for failure

10   to file in a timely manner, he is not eligible for this form

11   of relief.   See 8 C.F.R. § 1208.13(b)(1)(iii), (c)(1).

12   II. Withholding of Removal and CAT

13       An alien who demonstrates past persecution benefits

14   from a presumption that his life or freedom would be

15   threatened in the future as required for a grant of

16   withholding of removal.    See 8 C.F.R. § 1208.16(b)(1)(I);

17   Baba v. Holder, 569 F.3d 79, 86 (2d Cir. 2009).      This

18   presumption may be rebutted by a showing of a “fundamental

19   change in circumstances such that the applicant’s life or

20   freedom would not be threatened . . . upon the applicant’s

21   removal . . . .”   8 C.F.R. § 1208.16(b)(1)(i)(A).

22



                                    4
 1       In this case, the agency determined that there had been

 2   a fundamental change in circumstances because country

 3   conditions evidence, including a State Department report,

 4   showed that the civil war ended in 2002, the United Nations

 5   peacekeeping troops left in 2005, and their mandate ended in

 6   2008.   Barrie does not address this finding in the context

 7   of the more likely than not standard relevant to withholding

 8   of removal and CAT relief, and thus he has waived any

 9   challenge to the agency’s denial of those forms of relief.

10   See Yueqing Zhang, 426 F.3d at 541 n.1, 545 n.7.

11       Although Barrie cites the asylum standard and

12   acknowledges that conditions in Sierra Leone are less harsh

13   than when he left, he asserts that conditions remain harsh,

14   ethnic animosity against his Fulani ethnic group remains

15   high, and the rebels still live in Sierra Leone and would be

16   a threat to him.   Even construing this statement as an

17   argument that the agency erred in finding a fundamental

18   change in circumstances, Barrie has pointed to no evidence

19   in the record to support his position, nor has he identified

20   any error in the agency’s reliance on the Department of

21   State Country Reports.   Because the agency made specific

22   factual findings which Barrie does not challenge and a

23   review of the evidence relied on by the agency supports the
                                   5
 1   determination that there has been a change of conditions in

 2   Sierra Leone, Barrie’s petition is denied.    Niang v.

 3   Mukasey, 511 F.3d 138, 141 (2d Cir. 2007) (“[W]here an

 4   applicant for withholding of removal establishes past

 5   persecution, but the agency finds a fundamental change in

 6   country conditions, the agency must provide a reasoned

 7   basis, tethered in the record, for its changed country

 8   conditions determination, unless undisputed historical facts

 9   support the conclusion that the applicant will not face

10   persecution on removal.”).

11       For the foregoing reasons, the petition for review is

12   DENIED.   As we have completed our review, any stay of

13   removal that the Court previously granted in this petition

14   is VACATED, and any pending motion for a stay of removal in

15   this petition is DENIED as moot.    Any pending request for

16   oral argument in this petition is DENIED in accordance with

17   Federal Rule of Appellate Procedure 34(a)(2), and Second

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk




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