Nbaye v. Attorney General of United States
665 F.3d 57
3rd Cir.2011Background
- Nbaye entered the U.S. with a stolen French passport on February 22, 2005 and was intercepted; removal proceedings ensued thereafter.
- Nbaye sought asylum, withholding of removal, and relief under the Convention Against Torture based on alleged persecution for political opinion linked to RPG membership.
- An administratively final removal order has existed since December 12, 2005, yet Nbaye remains in the United States.
- The BIA on October 29, 2010 denied Nbaye's motion—treating it as either a motion to reconsider or a reopening—finding it barred by 8 C.F.R. § 1003.2 and 8 U.S.C. § 1229a(c)(7).
- Nbaye urged that Guinea’s changed conditions after a 2009 massacre and subsequent RPG rise could affect relief; the panel considered remand to allow BIA to address changed country conditions.
- The court vacated the BIA decision and granted review to the limited extent of remanding for consideration of the change in Guinea's government, without prejudging merits, and without imposing costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to remand for changed country conditions in Guinea | Nbaye argues changed conditions post-2009 massacre affect his claim | AG contends remand is futile and not required by record-based review | Remand appropriate to consider change in power and its effect on relief |
| Whether to grant relief on current record or remand | Nbaye seeks relief on current record or remand for new evidence | Agency decision should be left intact absent remand | Court can grant review limitedly by remanding to BIA for consideration of change in Guinea |
| Whether vacatur of BIA decision is warranted pending remand | Vacate without prejudice to BIA reinstating on remand |
Key Cases Cited
- Wong v. Att’y Gen., 539 F.3d 225 (3d Cir. 2008) (court may take judicial notice of matters not in the record in removal cases (limited))
- Borishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004) (remand to consider post-order country conditions admissible)
- Hoxhallari v. Gonzalez, 468 F.3d 179 (2d Cir. 2006) (discusses judicial notice of post-order changes)