Ahmed, Nuradin v. Gonzales, Alberto , 467 F.3d 669 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2071
NURADIN AHMED,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-654-519
____________
ARGUED JANUARY 17, 2006—DECIDED NOVEMBER 2, 2006
____________
Before BAUER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Nuradin Ahmed (“Ahmed”) is a 33-
year-old native of Somalia who entered the United States
under false pretenses. When the government placed him in
removal proceedings, Ahmed requested political asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). An immigration judge (“IJ”)
denied his requests, and the Board of Immigration Appeals
(“BIA”) affirmed without an opinion. Ahmed has petitioned
us to review his case.
In his petition for review, Ahmed challenges only the
BIA’s determination that he is not eligible for asylum. He
2 No. 05-2071
raises three arguments: that he proved past persecution,
was held to an improper burden of proof on his future
persecution claim, and proved a well-founded fear of future
persecution. The last two involve the same inquiry. Ahmed
is not arguing the IJ actually applied the wrong legal
burden; rather, he is arguing that he proved his persecution
claim and only an improperly harsh view of the burden of
proof could have defeated it. Because the IJ’s conclusion
that Ahmed did not suffer past persecution and has no well-
founded fear of future persecution is supported by substan-
tial evidence, we deny Ahmed’s petition for review.
I. Background
Somalia is a land of clans and Ahmed is a member of the
Midgan, a minority clan considered to be among the lowest
social classes. BUREAU OF DEMOCRACY, HUMAN RIGHTS &
LABOR, U.S. DEP’T OF STATE, SOMALIA: PROFILE OF ASYLUM
CLAIMS AND COUNTRY CONDITIONS 17 (Mar. 2000). At least
some of the animosity towards the Midgan stems from their
status during the rule of Siad Barre (1969-1991). Despite
the Midgan’s traditionally marginalized status, Barre
elevated a number of Midgan to important government
posts. When his government was overthrown in 1991 and
the country plunged into civil war, Barre’s Midgan support-
ers were targeted for revenge. Id. Ahmed, however, was
never specifically targeted or physically harmed—he was
not identified as a supporter of Barre—and there is no
evidence that any of his family members were physically
harmed because they were Midgan.1
1
In his application for asylum, Ahmed stated that he was beaten
in Mado Weyne, a border town between Somalia and Ethiopia,
because he is Midgan. At his hearing, however, Ahmed withdrew
this assertion, testifying that he was discriminated against but
never physically mistreated in Mado Weyne.
No. 05-2071 3
Still, Ahmed has seen his share of the civil unrest that
has plagued Somalia since the fall of the Barre government.
Once, in the early years of Somalia’s civil war, Ahmed was
riding on a bus carrying passengers of different clans when
the bus was attacked by armed men. Though he could not
be sure, Ahmed believed the attackers to be Hawiye clan
members. Ahmed escaped unharmed, but he believes some
of the passengers on the bus may have been killed. Ahmed
also lost his job as a barber’s assistant after the collapse of
Barre’s government. From 1992 to 1999, Ahmed lived what
can be described as a nomadic life, traveling between
regions of Somalia and Ethiopia picking up odd jobs.
Ahmed married a woman from the Akishu clan in 1997,
but because Midgan are not supposed to marry outside their
clan, his wife’s extended family harassed him and tried to
physically attack him. His wife’s immediate family defended
him, however, intervening whenever the extended family
bothered him. Ahmed was never physically harmed by his
wife’s relatives. He says he had to leave several areas,
including Mado Weyne (in the west) and Hargeysa (in the
northwest), because of the way Midgan were perceived.
Eventually Ahmed concluded that he could find no safe
place to live in Somalia and made his way to the U.S.,
arriving here in 2000 and attempting entry by using false
documents.
The United States initiated removal proceedings against
Ahmed. He conceded removability, but sought political
asylum, withholding of removal, and protection under the
CAT. In March 2001, following a hearing, the IJ denied all
forms of relief. The IJ concluded Ahmed is not eligible for
political asylum because he is not a “refugee” within the
meaning of 8 U.S.C. § 1101(a)(42)(A). The IJ also denied
Ahmed’s request for withholding of removal and protection
under the CAT, both of which carry higher burdens of proof.
The BIA affirmed without opinion in December 2002.
4 No. 05-2071
Ahmed’s lawyer then filed a motion to reconsider instead
of the petition for review he should have filed. The motion
to reconsider did not stop the clock for requesting review in
this court. By the time the BIA denied the motion to
reconsider, it was too late for Ahmed to seek review on the
merits. Instead, he could challenge only the denial of the
motion for reconsideration. This court denied his petition to
review the denial of his motion for reconsideration. Ahmed
then obtained a new lawyer who filed a motion to reopen
with the BIA on the ground that Ahmed’s first lawyer was
ineffective. The BIA granted the motion and reissued its
opinion. Ahmed seeks review once again, this time on the
merits.
II. Discussion
Political asylum is a two-step process: first, the IJ must
make the factual determination that the alien is a refugee
as defined by 8 U.S.C. § 1101 (a)(42)(A), and then the IJ
makes a discretionary determination whether to grant
asylum to that refugee. 8 U.S.C. § 1158(b)(1); see also, e.g.,
Ali v. Ashcroft, 394 F.3d 780, 784-85, 791 (9th Cir. 2005). A
refugee is defined as one who is either unable or unwilling
to return to his native 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); 8 C.F.R.
§ 208.13(b)(1).
The persecution ground asserted here is Ahmed’s mem-
bership in a particular social group, the Midgan. The
government does not dispute that Ahmed is a Midgan and
that his clan membership is membership in a social group
for asylum purposes. See In re H, 21 I & N Dec. 337, 342-43
(BIA 1996) (recognizing that membership in a Somali clan
is membership in a particular social group for asylum
purposes). The IJ concluded Ahmed was not a refugee—he
had not been persecuted in the past nor had a well-founded
No. 05-2071 5
fear of persecution if returned to Somalia—and so was not
eligible for asylum. The BIA summarily affirmed the ruling,
which makes the IJ’s ruling the final agency decision.
8 C.F.R. § 1003.1(e)(4)(ii); Feto v. Gonzales, 433 F.3d 907,
911 (7th Cir. 2006).
Ahmed is now battling uphill. We review his asylum
claim for substantial evidence, which is to say that if, after
considering the whole record, we find “reasonable, substan-
tial, and probative evidence” supporting the BIA’s decision,
we must affirm. Feto, 433 F.3d at 911 (quotations omitted).
Only if the record compels the conclusion that Ahmed
established his persecution claim will we overturn the
agency’s decision. 8 U.S.C. § 1252(b)(4)(B); Feto, 433 F.3d at
911. A simple difference of opinion will not suffice. Capric
v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir. 2004).
A. Past Persecution
One way for Ahmed to establish that he is a refugee and
thus is eligible for asylum is to show that he is the victim of
past persecution because of his membership in the Midgan
clan. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1).
Persecution is not so broad a concept as to encompass all
that we regard as “unfair, unjust, or even unlawful or
unconstitutional.” Sharif v. INS, 87 F.3d 932, 935 (7th Cir.
1996) (quotations omitted). Persecution involves harms that
go beyond mere harassment; it results from more than
simply “unpleasant or even dangerous conditions in [the
applicant’s] home country.” Nakibuka v. Gonzales, 421 F.3d
473, 476 (7th Cir. 2005). Persecution inflicts substantial
harm or suffering, Sharif, 87 F.3d at 935, but it need not be
life-threatening or freedom-threatening, Koval v. Gonzales,
418 F.3d 798, 805-06 (7th Cir. 2005).
Included within the contours of persecution are “deten-
tion, arrest, interrogation, prosecution, imprisonment,
illegal searches, confiscation of property, surveillance,
beatings, torture,” or conduct that threatens any of these
6 No. 05-2071
harms. Capric, 355 F.3d at 1084 (quotations omitted).
Economic harm, too, may be persecution if it is deliberately
imposed as a form of punishment and it results in suffi-
ciently severe deprivations. Id.; Borca v. INS, 77 F.3d 210,
216 (7th Cir. 1996); Sharif, 87 F.3d at 935. General condi-
tions of hardship that affect entire populations, however,
are not persecution. Capric, 355 F.3d at 1084. Instead, to
show past persecution Ahmed must show he was personally
persecuted on account of his Midgan clan membership.
8 C.F.R. § 208.13(b)(1).
The record does not compel the conclusion that Ahmed
suffered past persecution. Ahmed points to three incidents,
but none rises to the level of persecution. First, Ahmed
claims the bus attack threatened his life. This attack,
however, did not occur because of Ahmed’s membership in
the Midgan clan. Indeed, Ahmed conceded that members of
various clans were riding the bus at the time it was am-
bushed and that the attack was an incident of the general
Somalian civil war. The bus attack was violent and threat-
ened Ahmed’s safety, but it had nothing directly to do with
his being Midgan.
Second, Ahmed claims the threats of physical harm he
received from his wife’s extended family constitute persecu-
tion. But he was never actually harmed, and it is not
apparent that any of the threats escalated beyond harass-
ment. Moreover, Ahmed’s immediate in-laws protected him
from the extended family members who threatened him. In
short, there is no indication that Ahmed’s wife’s relatives
did anything but verbally threaten him. See Ahmed v.
Ashcroft, 348 F.3d 611, 616 (7th Cir. 2003) (“[U]nfulfilled
threats are generally insufficient to establish past persecu-
tion.”).
Finally, Ahmed says he was persecuted by being subjected
No. 05-2071 7
to substantial economic deprivation.2 Ahmed lost his job as
a barber’s assistant after the civil war broke out, and he
spent the next eight years traveling between Somalia and
Ethiopia picking up odd jobs. Ahmed says he moved from
place to place because he feared for his safety as a result of
his membership in the Midgan clan. But Ahmed returned
to several of the places he claims to have first left in fear,
which led the IJ to question whether he truly feared for his
safety because of his clan membership. There is also no
evidence Ahmed’s economic difficulties were the result of
deliberate punishment because of his status as a Midgan.
Substantial evidence supports the IJ’s conclusion that
Ahmed did not establish past persecution.
B. Well-Founded Fear of Future Persecution
The other way Ahmed can establish refugee status is by
showing that he has a well-founded fear of future persecu-
tion. 8 C.F.R. § 208.13(b). A well-founded fear must be both
subjectively genuine and objectively reasonable. Capric, 355
F.3d at 1093. There are two ways Ahmed can establish
objectively reasonable fear of persecution. First, he may
show that there is a reasonable possibility that he will
suffer persecution if he is returned to Somalia. 8 C.F.R.
§ 208.13(b)(2)(i)(B). Such a showing is not necessarily
demanding—Ahmed need not show that persecution is more
likely than not to occur. INS v. Cardoza-Fonseca, 480 U.S.
2
The government contends Ahmed waived this argument because
he did not press it below. We disagree. Ahmed presented evidence
to the IJ about his economic situation. The fact that the IJ did not
discuss economic hardship as a possible basis for persecution does
not mean Ahmed waived the argument. Moreover, his notice of
appeal, though it stated the issue broadly, is properly read to
encompass a request that the BIA review his claims of persecution
as a whole.
8 No. 05-2071
421, 431 (1987). But he must show that a reasonable person
in his shoes would fear persecution. Borca, 77 F.3d at 214.
In dicta, the Supreme Court’s opinion in Cardoza-Fonseca
suggested that under the right circumstances a one-in-ten
chance of persecution could establish a well-founded fear of
persecution. Cardoza-Fonseca, 480 U.S. at 431; accord
Perez-Alvarez v. INS, 857 F.2d 23, 25 (1st Cir. 1988). This
Court has not approached the question as one of percent-
ages; rather, the inquiry is contextual and the showing is
one of a “reasonable possibility.” Sayaxing v. INS, 179 F.3d
515, 520 (7th Cir. 1999).
But Ahmed may avoid the “reasonable possibility”
showing altogether if he opts to show there is a pattern or
practice of persecuting members of the Midgan clan.
8 C.F.R. § 208.13(b)(2)(iii)(A). This is the second way of
showing an objectively reasonable fear, and it is sometimes
referred to as persecution per se. At oral argument,
Ahmed’s counsel emphatically reminded us that this is a
“pattern or practice”—or persecution per se—case. Persecu-
tion must be “extreme” for an applicant to prevail in a
pattern or practice case. Mitreva v. Gonzales, 417 F.3d 761,
765 (7th Cir. 2005). Ahmed must show a “systematic,
pervasive, or organized effort to kill, imprison, or severely
injure members of the protected group, and this effort must
be perpetrated or tolerated by state actors.” Id. (quotations
omitted). The standard is high because once the court finds
that a group was subject to a pattern or practice of persecu-
tion, every member of the group is eligible for asylum. A
narrow interpretation of this ground for asylum stops an
onslaught of asylum-seekers. Id.
Even assuming Ahmed has shown a subjectively genuine
fear of persecution, he has not satisfied the objectively
reasonable standard applicable in “pattern or practice”
persecution cases. The Midgan are not treated well in
Somalia, but their poor treatment is not a systematic,
pervasive, or organized effort to kill, imprison, or severely
No. 05-2071 9
injure them—at least the evidence in this case does not
compel such a conclusion. Ahmed points to the State
Department’s Somalia Profile that describes the vulnerabil-
ity of the Midgan—among other minority clans—during the
interclan chaos of the Somali civil war, but that report
indicates that Midgans who worked in the Barre regime are
particularly targeted, not that the Midgan as a group are
systematically persecuted. SOMALIA: PROFILE OF ASYLUM
CLAIMS AND COUNTRY CONDITIONS 17, supra, at 17; see also
Hassan v. Ashcroft, 388 F.3d 661, 667 (8th Cir. 2004)
(finding no error where IJ concluded “that there was no
‘automatic correlation between clan affiliation and danger
of persecution’ toward Midgan clan members unless the
individuals had visibly supported the old regime” (quoting
BUREAU OF DEMOCRACY, HUMAN RIGHTS & LABOR, U.S.
DEP’T OF STATE, SOMALIA: PROFILE OF ASYLUM CLAIMS AND
COUNTRY CONDITIONS 10 (Dec. 1996)).
Ahmed contends Ali v. Ashcroft, 394 F.3d at 782-87,
supports his claim that all Midgans face persecution. Quite
the opposite—Ali reinforces the conclusion that visible
supporters of the Barre regime are the real targets, not the
Midgan as a people. Ali v. Ashcroft involved a Midgan
woman whose family members were identified as Barre
supporters because her husband worked in Barre’s govern-
ment. Id. at 782. The Ali court held that the petitioner
proved past persecution by showing that she was raped, her
family wrongfully detained, and her brother-in-law shot
dead in front of her. Id. at 782-87. The court did not
conclude, as Ahmed would like us to, that all Midgan
qualify for refugee status because they face systematic
persecution in Somalia. Past persecution provided one
avenue for Ali to prove his claim, and establishing it would
have entitled him to a presumption of a well-founded fear
of persecution if returned to his native country. 8 C.F.R.
§ 208.13(b)(1). Unlike Ali, Ahmed was never identified as a
Barre supporter, has made no showing of past persecution,
10 No. 05-2071
and is not entitled to the presumption of a well-founded fear
of future persecution. The evidence Ahmed has presented
does not compel the conclusion that the Midgan are system-
atically persecuted.
Moreover, if Ahmed can return to a part of his country
where there is not a reasonable possibility of persecution,
then he does not have a well-founded fear of future persecu-
tion. See 8 C.F.R. § 208.13(b)(2)(ii). The IJ made just such
a finding here. He held that Ahmed could return to Somali-
land, an area in the northwest of Somalia controlled by the
Isaaq clan, and live in relative safety there. The IJ relied on
two reports—the State Department Country Report on
Somalia and a United Kingdom Immigration and National-
ity Directorate Report—both of which note the relative
order established in the Somaliland region of Somalia.
BUREAU OF DEMOCRACY, HUMAN RIGHTS & LABOR, U.S.
DEP’T OF STATE, 1999 COUNTRY REPORTS ON HUMAN RIGHTS
PRACTICES, SOMALIA § 2(d) (Feb. 25, 2000); IMMIGRATION &
NATIONALITY DIRECTORATE, U.K. HOME OFFICE, ASYLUM IN
THE UK: SOMALIA §§ 4.9-4.13, http://www.ind.homeoffice.
gov.uk/default.asp?PageId=564 (last visited Mar. 12, 2001).
A significant number of Somalians who fled the civil war
have been returned there, basic government structures are
in place, non-Isaaq clan members live in relative peace, and
there is no general clan-based persecution in Somaliland.
The record also suggests Ahmed’s wife and Midgan children
have lived in Somaliland without incident.
To be sure, the government reports on which the IJ relied
also state that many parts of Somalia remain chaotic and
dangerous, but Ahmed has not established that the violence
is systematically directed against the Midgan. The evidence
does not compel the conclusion that Ahmed has a well-
founded fear of future persecution.
Ahmed does not press his claims for withholding of
removal or protection under the CAT before this Court, so
No. 05-2071 11
he has waived them. See, e.g., Huang v. Gonzales, 403 F.3d
945, 951 (7th Cir. 2005). In practical effect it makes no
difference. The standard for asylum is the most lenient of
the three, and Ahmed could not clear that hurdle. 8 U.S.C.
§ 1231(b)(3); 8 C.F.R. § 208.16(c)(2); Tabaku v. Gonzales,
425 F.3d 417, 421 (7th Cir. 2005) (showing of clear probabil-
ity of persecution required for withholding of removal);
Margos v. Gonzales, 443 F.3d 593, 600 (7th Cir. 2006)
(showing of likelihood of torture required for relief under
the CAT).
Ahmed’s petition for review of the order of the BIA is
DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-2-06