16-3869 Niang v. Barr BIA Hom, IJ A073 048 664

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.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of July, two thousand nineteen.

PRESENT: ROSEMARY S. POOLER, BARRINGTON D. PARKER, RICHARD C. WESLEY, Circuit Judges. _____________________________________

FODE NIANG, Petitioner,

v. 16-3869 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Edward J. Cuccia, Cuccia & Campise, PLLC, New York, NY.

FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Alison Marie Igoe, Daniel I. Smulow, Senior Counsel for National Security, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

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

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Fode Niang, a native and citizen of Senegal,

seeks review of an October 18, 2016, decision of the BIA

affirming a November 18, 2015, decision of an Immigration

Judge (“IJ”) denying both Niang’s application for asylum and

withholding of removal and his request for administrative

closure based on his material support for a terrorist

organization. In re Fode Niang, No. A 073 048 664 (B.I.A. Oct.

18, 2016), aff’g No. A073 048 664 (Immig. Ct. N.Y.C. Nov. 18,

2015). We assume the parties’ familiarity with the underlying

facts and procedural history in this case.

We have reviewed the IJ’s decision as modified by the

BIA. See Xue Hong Yang v. U.S. Dep’t of Justice,

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

2 are well established. See

(b)(4)(B); Yanqin

Weng v. Holder,

(2d Cir. 2009).

An alien who has engaged in a terrorist activity is

statutorily ineligible for asylum, withholding of removal,

and adjustment of status. See

(b)(2)(A)(v),

1255(a), 1231(b)(3)(B)(iv). “Terrorist activity” includes,

among other things:

any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves . . . [t]he use of any . . . firearm . . . (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.

§ 1182(a)(3)(B)(iii)(V)(b). Engaging in terrorist

activity includes, inter alia, committing an act that “the

actor knows, or reasonably should know, affords material

support” to a terrorist organization, where the actor cannot

demonstrate by clear and convincing evidence that he “did not

know, and should not reasonably have known, that the

organization was a terrorist organization.” Id.

§ 1182(a)(3)(B)(iv)(VI)(dd). A “terrorist organization” is

3 defined, in relevant part, as an organization “that is a group

of two or more individuals, whether organized or not, which

engages in, or has a subgroup which engages in [terrorist

activity].” Id. § 1182(a)(3)(B)(vi)(III). The Government

bears the initial burden of establishing that “the evidence

indicates” that the material support bar may apply, and the

alien must then prove by a preponderance of the evidence that

the material support bar does not apply. See

(d); see also In re R-S-H,

, 640-

41 (B.I.A. 2003).

We find no error in the agency’s conclusions that

Niang’s participation in armed conflict in Senegal as a member

of the Movement of Democratic Forces of Casamance (“MFDC”)

barred asylum, withholding of removal, and adjustment of

status. First, the Government established that the MFDC is a

terrorist organization through reports detailing the MFDC’s

insurgent activities during the years of Niang’s membership

(1990 to 1992). Niang does not challenge this determination.

Second, Niang’s statements in his 1993 asylum application

and 1997 asylum interview were sufficient to establish that

Niang provided material support to the MFDC. Namely, Niang 4 stated that while a member of the MFDC, he was a “notorious

fighter” and “avid proponent against the government” who shot

at Senegalese troops. Certified Administrative Record at 500.

Although Niang contends that the 1993 application was a

complete fabrication, he has not provided compelling evidence

to support his allegation that he was not in Senegal between

1990 and 1992. That allegation conflicts with his initial

statements, and the documentary evidence does not place him,

as he claims, in Gabon for that period. Given Niang’s

conflicting accounts of his whereabouts and activities, the

agency was not required to accept his disavowal. See Siewe v.

Gonzales,

(2d Cir. 2007) (“[A] single false

document or a single instance of false testimony may (if

attributable to the petitioner) infect the balance of the

alien's uncorroborated or unauthenticated evidence.”).

Given the evidence that the MFDC is a terrorist

organization, that Niang was an active member of the MFDC

from 1990 to 1992, and Niang’s failure to challenge the

designation or argue that he was unaware of the nature of the

MFDC’s activities, the record does not compel reversal of the

IJ’s determination that Niang provided material support to a 5 terrorist organization. See Yanqin Weng,

(“[W]e uphold the IJ’s factual findings if they are supported

by ‘reasonable, substantial and probative evidence in the

record.’” (citation omitted)).

To the extent Niang separately argues that the agency

should have granted administrative closure, there was no

basis for closure because Niang is barred from adjustment of

status. See

(a)(3)(B)(iv)(VI)(dd) (alien who

provided material support to terrorist organization is

inadmissible to the United States);

§ 1255(a) (alien must

be admissible to the United States in order to adjust status);

Am. Acad. of Religion v. Napolitano,

(2d

Cir. 2009) (“The INA renders inadmissible, and therefore

ineligible for a visa, . . . an alien who has ‘engaged in a

terrorist activity.’”). Moreover, the Attorney General’s

decision in Matter of Castro-Tum,

, 275-

78, 283-84, 290–92 (A.G. 2018), now precludes the IJ or BIA

from granting administrative closure except in specific

circumstances not relevant here.

6 For the foregoing reasons, Niang’s petition for review

is DENIED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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