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Third Cir. Predicts Denial, Grants Withholding of Removal Remand

By Robyn Hagan Cain on November 23, 2011 | Last updated on March 21, 2019

The Third Circuit Court of Appeals granted a petition for rehearing this week before the Board of Immigration Appeals (BIA), but tempered the ruling noting that the petitioner had never won in an immigration hearing, and would be unlikely to win a BIA rehearing.

So what gives?

Mamadou Nbaye entered the U.S. on a stolen French passport in 2005. He was intercepted.

Nbaye sought asylum, withholding of removal, and relief under the Convention Against Torture based on changed country conditions in Guinea, his country of origin. In the proceedings, he claimed to fear returning to Guinea because he would be persecuted for his political opinion attributable to his membership in the Rally of Guinean People Party (RPG). The courts denied his requests.

Nbaye has been subject to an administratively final order of removal since December 2005. His most recent appeal challenged a BIA finding for abuse of discretion because the BIA determined that conditions in Guinea for RPG members had not changed in a way to warrant reconsideration of Nbaye's requests.

The Third Circuit Court of Appeals noted that conditions have, in fact, changed: In December 2010, the RPG became the governing party of Guinea.

While the RPG's rise to power undercuts Nbaye's pleas for asylum and stated fear of persecution, the Third Circuit found that it reflected new facts that justified a fresh BIA review.

The Third Circuit's review of an immigration appeal is restricted to the existing administrative record, so the court could not simply consider the shift in Guinea political dynamics to reject Nbaye's appeal. While the court remanded the matter to the BIA, it did so without prejudice. In other words, the Third Circuit expects the BIA to come to the same conclusion: Nbaye does not qualify for asylum or withholding of removal.

Immigration lawyers: Are further appeals in this case futile when the Third Circuit Court of Appeals and the BIA clearly will deny Nbaye's request? How would you advise a client in a similar situation?

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