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N'Diaye v. Barr

United States Court of Appeals, Eighth Circuit

July 24, 2019

Fallou N'Diaye Petitioner
William P. Barr, Attorney General of the United States[1] Respondent

          Submitted: January 15, 2019

          Petition for Review of an Order of the Board of Immigration Appeals

          Before BENTON, MELLOY, and KELLY, Circuit Judges.

          MELLOY, Circuit Judge.

         In 2005, Petitioner Fallou N'Diaye was placed in removal proceedings for overstaying his visa. He applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An immigration judge denied his application, finding that he had not met his burden of proof on the merits and ordering him removed. The BIA affirmed. Thereafter, N'Diaye filed a motion to reopen with the BIA because he had married a United States citizen after the immigration judge issued the removal order. The BIA granted the motion, and N'Diaye was placed in another round of removal proceedings.

         In the second round of removal proceedings, a second immigration judge ordered N'Diaye removed. The second immigration judge concluded that N'Diaye was ineligible to adjust his status because he had previously provided material support to a terrorist organization. The BIA ultimately affirmed on the same grounds. N'Diaye filed a petition for review of the BIA's decision with this Court. We deny the petition.

         I. Background

         A. The First Round of Proceedings

         N'Diaye is originally from Tindody, Senegal. He was legally admitted to the United States in September 2003 as a non-immigrant visitor with authorization to remain in the country for no more than six months. He overstayed his visa. In 2005, he was placed in removal proceedings.

         N'Diaye applied for asylum, withholding of removal, and CAT protection. In October 2008, the immigration judge held a hearing on his application. Relevant to this appeal, N'Diaye said that he had been raised in Senegal for most of his childhood years. His mother was dead, but his father was alive. They had both been members of the Movement of Democratic Forces of Casamance ("MFDC"), serving as "representatives of the MFDC in the town where they used to live." N'Diaye explained that "[e]verything [a person] needed to know about the movement MFDC" could be learned from his parents, and "if [the person] wanted to become a member of the MFDC, they were the contacts."

         N'Diaye testified that he joined the MFDC around September 1998. He "belong[ed] to . . . a particular section of the MFDC," the goal of which was "to recruit new members." According to N'Diaye, the goal of the MFDC when he joined was to achieve "independence from Senegal" for the Casamance region. He explained how the MFDC had "started . . . in the political arena, trying to get independent." However, because "the president didn't keep up with his promise," members of the MFDC "started using force" sometime in the 1980s.

         N'Diaye explained that he never advocated the use of force against the government, nor did he ever take any action to harm another person in furtherance of the MFDC's goals. However, on cross-examination, he explained that when he joined the MFDC, he was aware that it was "an armed separatist movement" that fought with the Senegalese government. He claimed that the MFDC only fought soldiers; it did not kill Senegalese civilians. Reports to the contrary, he explained, were fabricated by the Senegalese government to make the MFDC look bad. Nevertheless, N'Diaye knew when he joined the MFDC that its members had weapons and used them against Senegalese soldiers.

         N'Diaye did much to support the MFDC. He claimed that he helped recruit approximately 50 people to the MFDC by "tell[ing] them about the . . . movement, help[ing] them finance wise and giv[ing]them the information about the MFDC." He explained that he had been giving money to the MFDC on a monthly basis since he entered the United States in 2003. He also sent clothes and other supplies to leaders of the MFDC. He estimated that he had given approximately $700 or $800 of his own money to the MFDC.

         N'Diaye's testimony caused the government to argue at closing that he should be statutorily barred from receiving relief because he had materially supported a terrorist organization. See 8 U.S.C. 1182(a)(3)(B)(iv)(VI) (rendering an alien who has "commit[ted] an act that the actor knows, or reasonably should know, affords material support" to a terrorist organization inadmissible). In the interest of fairness, the immigration judge continued the hearing to allow N'Diaye to respond to the government's newly raised argument. The parties submitted supplemental documentation about the MFDC, and the government submitted a brief arguing in favor of applying the bar. The immigration judge then held a final merits hearing.

         At the final hearing, N'Diaye testified about the structure of the MFDC. He explained that the MFDC is comprised of two factions: (1) the armed rebels who fought with the government and (2) the "other wings," led by "Abbe Diamacoune," that negotiated with the government in a peaceful way. N'Diaye later clarified that Abbe was a title that meant priest; Diamacoune's first name was really Augustin. N'Diaye stated that both factions had their own chief and that members of different ethnic backgrounds made up the different factions-the peaceful faction was predominantly composed of people from his and one other background, whereas people from a variety of ethnic groups who spoke different dialects made up the rebel faction. Critically, however, on cross-examination, N'Diaye said that despite having "their own leader[s]," the two factions were "the same organization." N'Diaye further testified that he never possessed or used a weapon while he was a member of the ...

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