Fallou Ndiaye v. William P. Barr
931 F.3d 656
| 8th Cir. | 2019Background
- Fallou N’Diaye, a Senegalese national, overstayed a nonimmigrant visa and was placed in removal proceedings after applying for asylum, withholding, and CAT protection.
- At first IJ, N’Diaye testified he joined the MFDC in 1998, recruited ~50 people, and sent roughly $700–$1,000 and supplies to the group; he claimed to belong to a "peaceful/political" wing distinct from a militant wing.
- The first IJ found credibility problems on his fear claims but accepted that the MFDC had multiple factions and concluded N’Diaye had supported only the peaceful faction; the BIA affirmed denial of relief but did not decide the material-support bar.
- The BIA later reopened the case after N’Diaye married a U.S. citizen and remanded for adjustment-of-status proceedings; a second IJ found the MFDC was a Tier‑III terrorist organization and that N’Diaye’s recruitment and payments constituted material support.
- The second IJ (and the BIA on review) found N’Diaye failed to prove by clear and convincing evidence that he did not know, and should not reasonably have known, the MFDC engaged in terrorist activity, and ordered removal.
- N’Diaye petitioned for review challenging the Tier‑III classification, the knowledge/notice finding, and whether the issue could be relitigated on remand; the Eighth Circuit denied the petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the MFDC qualified as a Tier‑III terrorist organization when N’Diaye supported it | N’Diaye: He supported only a separate, peaceful political wing distinct from the militant subgroup | Government: Record and documentary evidence show MFDC (including subgroups) committed violent terrorist acts, making it Tier‑III | Court: MFDC met Tier‑III definition; evidence supports treating the group (and subgroups) as a terrorist organization |
| Whether N’Diaye knew or reasonably should have known MFDC was a terrorist organization | N’Diaye: He did not know and should not reasonably have known the MFDC engaged in terrorist activity | Government: His recruitment, financial support, and documentary record show he knew or should have known | Court: N’Diaye failed to prove by clear and convincing evidence lack of knowledge; credibility findings supported |
| Whether collateral estoppel or law‑of‑the‑case prevented reexamination of the material‑support issue on remand | N’Diaye: Issue already resolved; estoppel/LOTC should bar reconsideration | Government: Reopening/remand allows reconsideration; no final judgment on the issue | Court: Collateral estoppel and law‑of‑the‑case inapplicable; remand permitted reconsideration |
| Whether IJ/BIA erred in credibility or factual findings supporting material‑support bar | N’Diaye: Credibility findings and documentary treatment of factions were erroneous | Government: IJ/BIA credibility findings and reliance on documentary record were sound | Court: Substantial evidence supports the BIA/IJ credibility and factual findings; no reversible error |
Key Cases Cited
- Godfrey v. Lynch, 811 F.3d 1013 (8th Cir. 2016) (standard of review for BIA legal and factual findings)
- Juarez‑Coronado v. Barr, 919 F.3d 1085 (8th Cir. 2019) (substantial‑evidence standard for BIA factual findings)
- Eusebio v. Ashcroft, 361 F.3d 1088 (8th Cir. 2004) (review of BIA factfinding)
- Uddin v. Attorney Gen. United States, 870 F.3d 282 (3d Cir. 2017) (discussing need for particularized subgroup findings)
- Khan v. Holder, 766 F.3d 689 (7th Cir. 2014) (analyzing subgroup/Tier‑III issues)
- Estrada‑Rodriguez v. Lynch, 825 F.3d 397 (8th Cir. 2016) (remand and reconsideration principles)
- Arizona v. California, 460 U.S. 605 (1983) (res judicata/collateral estoppel limits when judgment is modified or reopened)