Mark Tettey Kom Degbe v. Jefferson B. Sessions, III, 899 F.3d 651

Degbe, a Ghanaian national, entered the U.S. in 2002 on a B1/B2 visa, overstayed, and was ordered removed in absentia in 2008; ICE later detained him in 2014, and he successfully moved to reopen the removal order.
He applied for asylum, withholding of removal, and CAT relief, alleging past political persecution in Ghana as an NPP supporter (stone-throwing that cost a tooth; a knife attack leaving keloid scars) and fear of renewed harm after the NDC returned to power in 2008 and again in 2012.
The IJ found his asylum application untimely under the one-year rule, concluded the NDC’s 2012 victory was not a changed circumstance sufficient to excuse delay, and denied asylum; she acknowledged past persecution but found the government rebutted the presumption of future persecution by showing fundamental change in country conditions, denying withholding and CAT relief; voluntary departure was granted then revoked by the BIA for failure to post bond.
The BIA affirmed the IJ’s timeliness conclusion (without expressly addressing Degbe’s 2016-election evidence), agreed that country conditions in Ghana had changed such that withholding and CAT relief were not warranted, and revoked voluntary departure.
Degbe petitioned for review, arguing the agency ignored evidence of pre-2016 election instability that would render his asylum timely or warrant remand, and challenging the agency’s findings on country conditions for withholding and CAT relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of asylum (one-year rule)	Degbe: 2016 pre-election violence and other changed/extraordinary circumstances excuse delay or merit remand to consider new evidence	Government/BIA: IJ correctly found no qualifying changed/extraordinary circumstances; timeliness determination is committed to agency and unreviewable here	Court: Lacks jurisdiction to review agency’s §1158(a)(2)(D) determination; petition denied on asylum timeliness
Motion to remand/reopen (new 2016 evidence)	Degbe: Attached post-IJ articles to BIA showing new instability and requested remand for IJ to consider them	Government/BIA: Evidence would not likely change outcome; motion to remand properly denied	Court: BIA did not abuse discretion; articles were immaterial and insufficient to warrant remand
Withholding of removal (clear probability standard)	Degbe: Past attacks and reports of election violence show a likelihood of future persecution because of political opinion	Government/BIA: Ghana’s democratic progress and consecutive peaceful elections rebut presumption of future persecution; conditions fundamentally changed	Court: Substantial evidence supports BIA/IJ; denial of withholding upheld
CAT relief (more-likely-than-not torture)	Degbe: Country reports show rule-of-law problems and political violence making torture likely	Government/BIA: Same evidence does not meet the higher CAT standard	Court: Petition denied; Degbe failed to meet the more onerous CAT showing

Juarez Chilel v. Holder, 779 F.3d 850 (8th Cir. 2015) (no court jurisdiction to review agency determinations whether exceptions to one-year asylum rule apply)
Mouawad v. Gonzales, 485 F.3d 405 (8th Cir. 2007) (court lacks jurisdiction when IJ finds no exception to asylum timeliness)
Alva-Arellano v. Lynch, 811 F.3d 1064 (8th Cir. 2016) (treating certain BIA filings as motions to reopen/remand)
Fongwo v. Gonzales, 430 F.3d 944 (8th Cir. 2005) (standard for motions to reopen: new, material facts that were unavailable earlier)
Xiu Ling Chen v. Holder, 751 F.3d 876 (8th Cir. 2014) (new evidence is immaterial if it would not likely change the outcome)
Nadeem v. Holder, 599 F.3d 869 (8th Cir. 2010) (standard for withholding of removal; past persecution creates rebuttable presumption)
Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) (CAT relief requires showing it is more likely than not the petitioner would be tortured)