Aden v. Atty Gen USA , 112 F. App'x 852 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-2-2004
Aden v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1864
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1864
___________
ABDIRIZAK ADEN,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
___________
On Appeal from the Board of Immigration Appeals
(No. A76-142-495)
___________
Submitted Under Third Circuit LAR 34.1(a)
October 25, 2004
Before: NYGAARD, AM BRO, and VAN ANTWERPEN, Circuit Judges.
(Filed: November 2, 2004)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Abdirizak Aden (“Petitioner”) petitions for review of a final order by the
Board of Immigration Appeals (“Board”). The Board affirmed the decision of an
Immigration Judge (“IJ”) denying Petitioner asylum but granting him withholding of
removal. We will deny the petition.
I.
Petitioner is a native and citizen of Somalia, and a member of the minority
sub-clan Musa Said. In January 1991, he and his family were attacked in their home by
members of a rival clan, the Hawiye. Several men walked into Petitioner’s home, shot
him in the head, and killed two of his children. After recovering, Petitioner fled with his
family to the city of Kismayu, where they stayed for several days before fleeing again,
this time to a region near the Somali-Kenyan border. By March 1991, Petitioner and his
family moved to a refugee camp in Kenya. In 1996 Petitioner left the camp for South
Africa, hoping to find a better life and then send for his family, who remained behind.
Petitioner was granted asylum in South Africa on August 12, 1998. Nevertheless, he
found South Africa inhospitable and in 1999 he left. Petitioner eventually arrived in the
United States at Newark International Airport on July 3, 1999.
Upon arrival, Petitioner was questioned by immigration officials. During
that questioning he failed to disclose that he had been granted asylum in South Africa.
On August 20, 1999, the Immigration and Naturalization Service charged Petitioner with
removability, claiming that he sought to enter the United States by fraud or wilful
misrepresentation and that he lacked valid entry documents. Petitioner conceded
removability for lack of valid entry documents but filed for asylum, withholding of
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removal, and protection under the Convention Against Torture (“CAT”). On his asylum
application, Petitioner stated under oath that he did not have asylum status in any other
country. (App. at 938).
The IJ found that Petitioner had firmly resettled in South Africa and was
thus ineligible for asylum. The IJ also found Petitioner’s claims for withholding of
removal and CAT protection to be not credible. Specifically, the IJ noted that in sworn
statements Petitioner repeatedly failed to disclose that he had been granted asylum in
South Africa to immigration officials, on his asylum application, or to the IJ at several
previous hearings. (App. at 57–59). Thus the IJ denied those claims as well.
On appeal, the Board found that Petitioner had established a credible claim
of past persecution and a well-founded fear of future persecution based on the January
1991 attack. The Board therefore found him eligible for asylum. However, in light of a
then-recent case from this Court, the Board remanded for a finding on whether Petitioner
was precluded from receiving asylum by firm resettlement in South Africa.
On remand, the government did not pursue the firm resettlement issue and,
despite Petitioner’s eligibility for asylum, instead asked the IJ to deny asylum as a matter
of discretion. Finding that Petitioner knowingly submitted an asylum application
containing a false statement and that he failed to testify truthfully concerning his asylum
status in South Africa, the IJ denied Petitioner’s request for asylum as a matter of
discretion. (App. at 38). The IJ did, however, grant Petitioner’s request for withholding
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of removal to Somalia. (App. at 39). The Board summarily affirmed the decision of the
IJ and this appeal followed.
II.
This Court has jurisdiction to review a final order by the Board pursuant to
8 U.S.C. § 1252. Although we ordinarily review the decision of the Board, when the
Board defers to the IJ we review the IJ’s decision instead. Abdulai v. Ashcroft, 239 F.3d
542, 549 n. 2 (3rd Cir. 2001). We must uphold a discretionary grant or denial of asylum
unless it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. §
1252(b)(4)(D). As for the IJ’s findings of fact, we will uphold them if they are
“supported by reasonable, substantial, and probative evidence on the record considered as
a whole.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992) (quotation omitted).
A.
The Attorney General has the discretionary power to grant asylum to an
alien who qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1); Dia v. Ashcroft, 353 F.3d 228,
234 n. 1 (3rd Cir. 2003). A refugee is an individual unable or unwilling to return to his or
her home country “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). Qualification as a “refugee,” however, does not
automatically entitle an alien to a grant of asylum. Instead, it is within the discretion of
the Attorney General (and by proxy the Board) to determine whether an alien merits that
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grant. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5 (1987); see Dia, 334 F.3d at
234 n. 1. In making this determination, the Board must examine the totality of the
circumstances. In re H-, 21 I. & N. Dec. 337, 347 (1996). It must give heed to any
compelling humanitarian considerations that would arise should the applicant be returned
to a country where he or she has been persecuted in the past. Id. In fact, “the danger of
persecution should generally outweigh all but the most egregious of adverse factors.”
Matter of Pula, 19 I. & N. Dec. 467, 474 (1987) (superseded by statute on other grounds).
The burden of establishing that a favorable exercise of discretion is warranted falls on the
asylum applicant. Id.; In re H-, 21 I. & N. Dec. at 347.
B.
The IJ found that Petitioner misled the court by repeatedly failing to
disclose his asylum status in South Africa at several immigration hearings. (App. at 38).
In addition, the IJ found that Petitioner knowingly submitted an asylum application
containing a false statement: that he had not received asylum in any other country. (App.
at 38). Petitioner challenges these findings of fact, apparently arguing that they are not
supported by substantial evidence. To the extent that is Petitioner’s argument, we
disagree. The record demonstrates that on several occasions, while under oath, Petitioner
failed to disclose that he had been granted asylum in South Africa. (See App. at 461).
Moreover, Petitioner admits that he made a false statement on his asylum application,
5
stating “[i]t was a big mistake to lie.” (App. at 941). These findings are supported by
substantial evidence and we will uphold them.
Based on the finding that Petitioner failed to disclose his asylum status in
South Africa, the IJ, as a matter of discretion, denied Petitioner asylum in the United
States. Petitioner challenges this holding as well. He stresses that if sent back to Somalia
he would face persecution. And since “the danger of persecution should generally
outweigh all but the most egregious of adverse factors,” Matter of Pula, 19 I. & N. Dec.
at 474, Petitioner contends that the IJ’s denial of asylum was an abuse of discretion.
Again, we disagree. Because he has been granted withholding of removal as to Somalia,
Petitioner’s argument is wholly irrelevant. By statute he cannot be sent back to that
country. See 8 U.S.C. § 1231(b)(3)(A). Thus, the “danger of persecution” is not a factor
in this case. Absent this danger, and given Petitioner’s repeated failure to disclose his
grant of asylum in South Africa, the IJ’s decision was not an abuse of discretion.
III.
Petitioner has not demonstrated that the IJ’s discretionary denial of asylum
was an abuse of discretion. We therefore deny the petition for review.