Oumar Thiam v. William P. Barr

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0507n.06 Case No. 18-4248 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Oct 10, 2019 OUMAR DJIBI THIAM, ) DEBORAH S. HUNT, Clerk ) Petitioner, ) v. ) ON PETITION FOR REVIEW ) FROM THE UNITED STATES WILLIAM P. BARR, Attorney General, ) BOARD OF IMMIGRATION ) APPEALS Respondent. ) ) BEFORE: SUTTON, KETHLEDGE, and STRANCH, Circuit Judges. SUTTON, Circuit Judge. Oumar Djibi Thiam was denied asylum in the United States in 2012. Six years later, he asked the Board of Immigration Appeals to reopen his case. The Board declined, and we deny Thiam’s petition for review. Born in Mauritania, Thiam illegally entered the United States in 2001 using fake documents. He applied for asylum and related relief, and the government initiated removal proceedings against him. As a Black Mauritanian of African rather than Arab descent, Thiam feared race-based persecution if he returned to his country. An immigration judge denied his application, concluding that he lacked credibility given material inconsistencies between his written application and testimony. The Board affirmed, and Thiam did not petition this court for review. Case No. 18-4248, Thiam v. Barr Six years later, Thiam tried to reopen his case. That’s usually too late. Motions to reopen must be filed within 90 days of the final removal order. See 8 U.S.C. § 1229a(c)(7)(C). But exceptions exist. The time bar does not apply, for example, to noncitizens who seek to reopen their cases based on previously unavailable and material evidence of “changed country conditions.” Id. § 1229a(c)(7)(C)(ii). Thiam sought refuge in this exception on the ground that conditions for Black Mauritanians had worsened. The Board disagreed. It found that, while this ethnic group “continue[d] to experience governmental discrimination,” that was just as true when the Board denied Thiam’s first asylum application, and nothing since then had made conditions materially worse. AR 4. The Board also found that Thiam was not eligible for relief under the Convention Against Torture, meaning that this claim could not serve as a basis to reopen his case either. Thiam petitioned this court for review. Only if the Board abused its discretion may we grant a petition to reopen. INS v. Abudu, 485 U.S. 94, 105 (1988); Gafurova v. Whitaker, 911 F.3d 321, 325 (6th Cir. 2018). That requires us to find that the Board’s decision lacked a “rational explanation,” “inexplicably departed from established policies,” or “rested on an impermissible basis such as invidious discrimination[.]” Gafurova, 911 F.3d at 325. It is not enough by itself that we “would have decided the case differently.” Id. Asylum claim. Asylum applicants who wish to avoid the 90-day bar for motions to reopen, to repeat, must introduce previously unavailable and “material” evidence of “changed country conditions.” 8 U.S.C. § 1229a(c)(7)(C)(ii). The new evidence must make a difference to the asylum claim to be material. Gafurova, 911 F.3d at 326; see also Moosa v. Holder, 644 F.3d 380, 385 (7th Cir. 2011). To that end, the applicant must show ...

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