Nbaye v. Attorney General of United States
665 F.3d 57
3rd Cir.
2011
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Mamadou NBAYE, (a/k/a Amadou Korka Diallo), Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10-4468

United States Court of Appeals, Third Circuit.

Ordered Published Nov. 21, 2011.

custody entails. See id. at 2274. A United States Sentencing Commission report cited in , reveals that from 2006 to 2007, 15.6 percent of the 64 reported federal escapes from secure custody involved force; 31.3 percent involved a dangerous weapon; and 10.9 percent involved injury. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, at 7 (2008) (“Commission Report“); see also (citing “comprehensive” study on the characteristics of prison escapes, which concluded that “8% of escapees commit violence against guards in the process of getting away“). By comparison, the Commission Report identified no instances of injury or use of force in 42 cases of failure to report and in 118 cases of failure to return. Commission Report, at 7.3 These statistics confirm our conclusion that escape from a secure correctional facility or local lock-up, unlike escape by failure to report, presents a serious risk of physical injury. See (“The behavior that likely underlies a failure to report would seem less likely to involve a risk of physical harm than the less passive, more aggressive behavior underlying an escape from custody.“).

We therefore hold that escape from custody in violation of section 1501(a)(1) presents a serious potential risk of injury to another, and that this offense therefore qualifies as a predicate under ACCA‘s residual clause. See 18 U.S.C. § 924(e)(2)(B). Because Baker‘s two escapes and two burglaries qualify as ACCA predicates, triggering the 15-year minimum sentence requirement, we do not reach the question of whether aiding an escape also qualifies. See Vt. Stat. Ann. tit. 13, § 1502(a)(3).

CONCLUSION

For the foregoing reasons, we hold that Baker‘s convictions for escape from custody in violation of section 1501(a)(1) qualify as violent felonies under ACCA. The district court did not err in imposing ACCA‘s mandatory minimum sentence. The judgment of the district court is AFFIRMED.

Submitted under Third Circuit LAR 34.1(a) Oct. 6, 2011.

Filed: Oct. 20, 2011.

Randall L. Johnson, Johnson & Associates, Arlington, VA, for petitioner.

Eric H. Holder, Attorney General, Thomas W. Hussey, Tony West, Assistant Attorney General, Civil Division, Ada E. Bosque, Senior Litigation Counsel, Puneet Cheema, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, D.C., for respondent.

BEFORE: McKEE, Chief Judge, and FUENTES and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

This matter comes on before this Court on a petition for review of a decision and order of the Board of Immigration Appeals (“BIA“) dated October 29, 2010, denying petitioner Mamadou Nbaye‘s motion to reopen his proceedings seeking asylum, withholding of removal, and relief under the Convention Against Torture based on changed country conditions in Guinea, his country of origin. He filed that motion seeking reconsideration of the BIA‘s denial of his earlier motion to reopen and reconsideration of the earlier orders denying him relief. This case has a long history which we need not set forth in detail. Rather, it is sufficient for us to point out that Nbaye sought to enter this country with a stolen French passport on February 22, 2005, but was intercepted at that time. Subsequently, numerous proceedings ensued arising from the Department of Homeland Security initiating removal proceedings against him. In these proceedings, Nbaye sought the three types of relief we listed above, as he claims to fear returning to Guinea because he believes that if he returns he will be persecuted on account of his political opinion attributable to his membership in the Rally of Guinean People Party (“RPG“).

Nbaye consistently has been unsuccessful in the numerous proceedings that followed his unlawful entry into this country, and has been subject to an administratively final order of removal since December 12, 2005. Nevertheless, he remains in this country. In its October 29, 2010 decision and order the BIA held that to the extent Nbaye‘s filing then before it was a motion for reconsideration of a decision denying a prior motion for reconsideration, 8 C.F.R. § 1003.2 barred the motion. To the extent that Nbaye was seeking a reopening of the proceedings, the BIA denied Nbaye‘s motion because: (1) he had not shown that there was a change in country conditions in Guinea that was material to his claim, and (2) the motion was both time and number barred. See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c). Nbaye then filed the petition for review now before us.

During his convoluted proceedings, Nbaye has contended that he has been subject to persecution because of his involvement with the RPG. In his presentations, Nbaye has included evidence that a military junta rather than the RPG was in power in Guinea on September 28, 2009, and that it massacred its political opponents on that day. In the current proceedings, Nbaye summarizes his argument as follows:

The Board decision dated October 29, 2010, is manifestly contrary to law and an abuse of discretion. The BIA abused its discretion in finding that the conditions in Guinea were substantially the same for RPG members after the September 2009 massacre. The Petitioner‘s evidence submitted in his motion to reopen clearly shows a change in treatment of opposition party members in the wake of the September 2009 massacre. Petitioner‘s br. at 11.

In the course of our review of this case, it came to our attention that since December 2010 when there was a change of government, the RPG has been the governing party in Guinea. Naturally we questioned whether this change in government undercut Nbaye‘s claim for relief, as he clearly attributed his persecution to his involvement with the RPG. Consequently, we had our clerk address a letter to the attorneys on this appeal which in material part reads as follows:

The Guinea People Party (“RPG“) recently came to power in Guinea. The Petitioner, a member of the RPG has repeatedly sought asylum and withholding of removal for fear of persecution based on political opinion. Counsel for the parties are directed to submit letter briefs ... addressing the impact, if any, the changed political circumstances in Guinea have on Nbaye‘s claim for relief and also addressing why the matter should not be remanded to the [BIA] to consider the changed country conditions.

The attorneys have filed the letter briefs as we directed. Nbaye contends that we should grant his petition for review on the current record or, alternatively, should remand the case to the BIA for consideration of the new evidence, since the record has closed on the petition for review now before us. The Attorney General responded that we lack jurisdiction to consider evidence of changed conditions in Guinea that occurred after the BIA‘s decision because our review is limited to consideration of the existing administrative record. See 8 U.S.C. § 1252(b)(4)(A). The Attorney General further contends that Nbaye is not entitled to relief on the current record and thus there is no need to remand the case. Accordingly, the Attorney General argues that it would be futile to remand the matter for further proceedings. Significantly, the parties’ briefs confirm that the RPG has come to power.

We recognize that our precedents demonstrate that we have declined to take judicial notice of materials not in the record on petition for review in removal cases, see ; , and we further recognize that 8 U.S.C. § 1252(b)(4)(A) requires that a court of appeals decide a petition for review of an order of removal only on the record on which the order was entered. On the other hand, we are aware that other courts of appeals have asserted that they have discretion to take judicial notice of changes in political situations that have occurred after the issuance of an order of removal. See (per curiam). It seems to us that it would be myopic to ignore the circumstance that the RPG has come to power in Guinea inasmuch as Nbaye attributes his persecution to membership in that party.

We have concluded that although we cannot decide the case on the basis that there has been a change in power in Guinea, our precedents and 8 U.S.C. § 1252(b)(4)(A) on the one hand and the seemingly appropriate way to proceed in this matter on the other can be accommodated by remanding the case to the BIA so that it can consider the change in power in Guinea. After all, by remanding the matter for BIA‘s consideration of the change in power we neither would be approving nor rejecting the BIA‘s decision and order. See .

We realize that the Attorney General contends that it would be futile to remand the matter because, even without regard for the change in government, Nbaye cannot prevail in his effort to avoid removal. We, however, reject this basis for avoiding remand as it is possible, though we do not express an opinion on this point, that based on the current record we could grant Nbaye substantive relief on his petition for review but that on remand the BIA may determine that the change in government precludes Nbaye from obtaining relief. In that scenario the remand surely would not have been futile. Rather, it would have been outcome determinative.

For the foregoing reasons, we grant the petition for review to the limited extent that we will vacate the October 29, 2010 decision and order denying Nbaye‘s motion but do so without prejudice to the BIA reinstating the decision and order on the remand. Thus, we do not base the vacation of the decision and order on our assessment of the merits of Nbaye‘s petition. On the remand the BIA should consider the possible effect of the change in power in Guinea.

No costs will be taxed in these proceedings.

GREENBERG

Circuit Judge

Notes

3
According to the report cited in Chambers, fewer than two percent of 177 escapes from non-secure custody involved force or injury. United States Sentencing Commission, Report on Federal Escape Offenses in Fiscal Years 2006 and 2007, at 7 (2008). We do not address whether such escapes, in the ordinary case, present a serious potential risk of injury and thereby qualify as ACCA predicates.
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