Zahra A. Mohamed v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2270
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Zahra A. Mohamed; Shukri Salah; *
Abdulkadir Salah; Hamida Salah; *
Abdi Salah, *
*
Petitioners, *
* Petition for Review of an Order
v. * of the Board of Immigration Appeals.
*
John Ashcroft, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: October 21, 2004
Filed: February 10, 2005
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Before LOKEN, Chief Judge, MAGILL, and BENTON, Circuit Judges.
___________
MAGILL, Circuit Judge.
Zahra Mohamed and four of her children,1 natives of Somalia, petition for
review of an order of the Board of Immigration Appeals (“BIA”) affirming without
1
Mohamed initially listed five children, but only four children are parties to this
appeal. Mohamed’s second-oldest daughter, Idil Salah, is no longer a party because
the Department of Homeland Security (“DHS”) has granted her application for
adjustment of status.
opinion the Immigration Judge’s (“IJ”) denial of their applications for asylum and
withholding of removal. Mohamed argues that the IJ erred by: (1) concluding that
Mohamed did not suffer past persecution on account of her Benadir clan membership;
(2) finding her testimony regarding her husband’s work for Siad Barre to be
incredible; and (3) finding that she did not have a well-founded fear of future
persecution on account of clan membership because she could relocate within
Somalia. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
I.
After spending several years in a Kenyan refugee camp, Mohamed and her
children entered the United States without inspection through Mexico on or about
October 7, 1996. On June 23, 1997, Mohamed filed an affirmative asylum
application with the asylum office in Chicago, listing five of her children as
beneficiaries. An asylum officer conducted an interview with Mohamed and referred
the petition to the immigration court. The Immigration and Naturalization Service
(“INS”)2 initiated removal proceedings through a Notice to Appear, which charged
that Mohamed was removable from the United States as an alien who entered without
inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). Mohamed conceded removability, but
she contended that she was eligible for asylum and withholding of removal.
Ten days before the final removal hearing, Mohamed’s youngest daughter,
Shukri, filed a defensive asylum application on her own behalf, alleging her fear of
undergoing female genital mutilation (“FGM”) in Somalia. The IJ found that
Shukri’s asylum application was time barred, but he granted withholding of removal
because he found it more likely than not that she would be forced to undergo FGM
2
On March 1, 2003, the functions of the former INS were transferred from the
Department of Justice to three bureaus in the DHS. See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002).
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in Somalia. Mohamed and her other children, however, cannot receive relief as
derivatives of Shukri. See 8 C.F.R. § 208.21. Mohamed declined to designate a
country of removal, so the IJ designated Somalia, the country of which Mohamed and
her children are citizens, pursuant to 8 U.S.C. § 1231(b)(2)(D).
Siad Barre ruled Somalia as a dictator for twenty-one years. A December 1990
uprising was eventually successful in overthrowing his regime, and Siad Barre fled
Mogadishu, the Somali capitol, in 1991. In her asylum application, Mohamed stated
that in 1978, her husband became a full-time speech writer who would travel with
Siad Barre. She stated that her husband “was on TV a lot and in the newspaper,” and
that “[h]e was with the president all of the time.” R. at 360. At the removal hearing,
she testified that her husband’s job was “[n]ot [a] high position. [He] [j]ust used to
work in the offices.” R. at 112. When asked why her husband would have been on
television, she stated, “I don’t know, he just used to help him and as a correspondent
and writing reports for him and something like that.” R. at 113.
Mohamed alleged that on December 29, 1990, members of the United Somali
Congress (“USC”) entered her home in a Mogadishu neighborhood, looted it, and
attacked her. In her asylum application, Mohamed explained that the USC was
looking for her husband, Nur Salah. They asked, “[W]here is Nur Salah the blood
sucker[?].” R. at 361. When they did not find her husband, “they took some goods
like gold and clothing and cash.” R. at 361. Mohamed stated that the USC left her
house “to go to other areas where there was fighting going on” and that “[t]here was
gun shooting going on all over near our area.” R. at 361. At the removal hearing,
Mohamed testified that the USC attacked anyone in the neighborhood who they
thought had money or things they could take. R. at 119. After the USC attacked
Mohamed and looted her home, they returned and killed her oldest son. Mohamed
and her family fled Mogadishu for a refugee camp in Kenya where they lived until
1996. Mohamed then left Kenya with five of her children and entered the United
States.
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The IJ noted a lack of credible evidence that Mohamed was a member of the
Benadir clan. However, he found clan membership to be sufficiently established in
light of the difficulty of obtaining evidence from a country that was in a state of
anarchy when she fled, and he found that the Benadir clan was a “particular social
group” within the meaning of 8 U.S.C. § 1101(a)(42). Even so, the IJ found that, at
best, Mohamed’s house was attacked as part of the generalized looting and banditry
that swept Mogadishu in early 1991 and not on account of her membership in the
Benadir clan.
The IJ found Mohamed’s testimony about her husband’s position in the Siad
Barre government to be incredible, and she provided no documentary evidence to
compensate for the lack of credibility. Thus, the IJ found that Mohamed failed to
prove she was persecuted on account of a political opinion imputed from her
husband’s employment.
The IJ also found that Mohamed failed to proffer any evidence that she would
be persecuted on account of her clan membership in a nonhostile location within
Somalia. Thus, she did not have a well-founded fear of future persecution on a
country-wide basis.
II.
Where, as here, the BIA affirms the IJ’s decision without opinion, we review
the IJ’s decision as the final agency action. Dominguez v. Ashcroft, 336 F.3d 678,
679 n.1 (8th Cir. 2003). We will affirm the IJ’s findings regarding past persecution
and fear of future persecution if they are supported by substantial evidence in the
record. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Francois v. INS, 283 F.3d
926, 931 (8th Cir. 2002). Under this standard, an IJ’s determination that an alien is
not eligible for asylum must be upheld unless “the evidence presented was so
compelling that no reasonable factfinder could fail to find the requisite fear of
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persecution.” Elias-Zacarias, 502 U.S. at 483-84. We will defer to an IJ’s credibility
finding when it is supported by a specific, cogent reason for disbelief. Perinpanathan
v. INS, 310 F.3d 594, 597 (8th Cir. 2002).
The Attorney General may grant asylum to an alien who is physically present
in the United States if the alien meets the statutory definition of a refugee. 8 U.S.C.
§ 1158(a). A refugee is an individual who is unable or unwilling to return to his or
her 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.” Id. § 1101(a)(42)(A).
To establish eligibility for asylum, the alien carries the burden of proving past
persecution or a well-founded fear of future persecution. 8 C.F.R. § 208.13(a). An
asylum applicant can establish a well-founded fear by showing that a reasonable
person in his or her circumstances would fear persecution for one of the five specified
grounds. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987).
A.
Mohamed first argues that the IJ erred in finding she did not suffer past
persecution on account of her Benadir clan membership. To be eligible for asylum,
the harm suffered must be particularized to the individual rather than suffered by the
entire population. See Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir. 1992). Harm
arising from general conditions such as anarchy, civil war, or mob violence will not
ordinarily support a claim of persecution. See Velasquez v. Ashcroft, 342 F.3d 55,
58 (1st Cir. 2003); Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001); Rostomian v.
INS, 210 F.3d 1088, 1089 (9th Cir. 2000); M.A. v. INS, 899 F.2d 304, 314-15 (4th
Cir. 1990) (en banc). Although an alien cannot be expected to provide direct proof
of his persecutor’s motive, “since the statute makes motive critical, he must provide
some evidence of it, direct or circumstantial.” Elias-Zacarias, 502 U.S. at 483.
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Mohamed believes that she was unfairly required to prove that the USC had
“some degree of intent” to harm her on account of a protected ground. See Matter of
Rodriguez-Majano, 19 I. & N. Dec. 811, 815 (BIA 1988). Mohamed argues that the
“some degree of intent” standard is more vigorous than the “at least in part” standard
used by other courts. See Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003) (“A
persecutor may have multiple motivations for his or her conduct, but the persecutor
must be motivated, at least in part, by one of the enumerated grounds.”); Girma v.
INS, 283 F.3d 664, 667 (5th Cir. 2002); Borja v. INS, 175 F.3d 732, 736 (9th Cir.
1999).
Mohamed feels that the IJ’s use of the language “some degree of intent” rather
than “at least in part” requires her to prove that the persecutor’s “primary purpose”
was to persecute her on account of a protected ground. Contrary to Mohamed’s
argument, the IJ recognized that a persecutor can have mixed motives and that
persecution can occur in the context of civil strife. R. at 56 (citing Matter of Villalta,
20 I. & N. Dec. 142 (BIA 1990)). We see no difference between the “some degree
of intent” standard and the “at least in part” standard. Neither standard requires the
alien to show her persecutor’s primary motive, and both standards are consistent with
the Supreme Court’s requirement that an alien provide some evidence of motive,
direct or circumstantial. Elias-Zacarias, 502 U.S. at 483.
Mohamed’s only evidence that she was persecuted on account of her clan
membership is her testimony that her attackers lived in her neighborhood and
therefore were aware of her clan membership. R. at 119. The IJ found this testimony,
without more, to be insufficient proof that her attackers were at all motivated by her
clan membership. The IJ noted that the attacks took place during “the peak of a civil
war that tore Mogadishu apart” and appeared to be part of “the generalized looting
and banditry that swept through Mogadishu” in early 1991. R. at 56, 58. The
Country Report, which states that banditry was endemic in Somalia after the revolt
against Siad Barre, further supports the IJ’s conclusion. R. at 221. Mohamed lived
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in a neighborhood comprised of people from different clans, and her testimony shows
that the USC attacked anyone in the neighborhood who they thought had money and
valuables to take.
Although the BIA previously found a Somali alien to have been persecuted on
account of clan membership in Matter of H-, 21 I. & N. Dec. 337 (BIA 1996), the IJ
adequately distinguished that decision. The alien in Matter of H- was a member of
the Marehan subclan (Siad Barre’s subclan), and his father greatly benefitted from
Marehan subclan membership. Id. at 340-46. In finding evidence of clan-based
motivation, the BIA relied heavily on State Department reports that indicated the
USC targeted “identifiable members of the Darood clan and the Marehan subclan.”
Id. at 344. These reports also noted that the USC attacked Darood neighborhoods in
Mogadishu, resulting in the death or disappearance of hundreds of mostly Darood
victims. Id. Mohamed is not a member of Siad Barre’s subclan, and while we
recognize that persecution can occur in the context of clan-based civil warfare, an
asylum applicant must show some evidence of clan-based motivation, direct or
circumstantial. Elias-Zacarias, 502 U.S. at 483.
The attack on Mohamed and her son’s death are tragic, but the record provides
substantial evidence for the IJ’s finding that Mohamed was not persecuted on account
of her Benadir clan membership. Because the evidence is not so compelling that a
reasonable factfinder would have to conclude that Mohamed was targeted because of
her clan membership, we defer to the IJ’s finding.
B.
Mohamed’s second argument is that the IJ erred in finding her testimony
regarding her husband’s work for Siad Barre to be incredible and that she therefore
did not suffer past persecution on account of an imputed political opinion. The IJ
stated a specific, cogent reason for not believing Mohamed’s testimony that her
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husband was Siad Barre’s speech writer. In her asylum application, Mohamed stated
that her husband was a speech writer for Siad Barre; at the removal proceedings, she
testified that she did not know what job her husband held and that it was a low-level
position. Mohamed also did not provide any corroborative evidence or a convincing
explanation for the discrepancies in her testimony. See In re Y-B-, 21 I. & N. Dec.
1136, 1139 (BIA 1998) (“[T]he weaker an alien’s testimony, the greater the need for
corroborative evidence.”). Mohamed, despite having lived with her husband in
Kenya for several years before entering the United States, made no attempt to verify
her husband’s job. Testimony from other witnesses is also extremely vague and
provides little information other than that Mohamed’s husband worked “with
education” and “for the government.” R. at 156, 169. Mohamed testified that as a
housewife, she was unsure of her husband’s job, but the record indicates that
Mohamed did, while completing her asylum application, claim to know what her
husband did for employment. As the IJ noted, “[I]f the lead respondent’s husband
was truly Siad Barre’s speech-writer, she would not forget it.” R. at 58.
We recognize that when the USC looted Mohamed’s house, they stated that
they were looking for “Nur Salah the blood sucker.” R. at 360. However, because
Mohamed’s testimony regarding her husband’s work for Siad Barre is vague and
inconsistent and she has provided no corroborative evidence of her husband’s
employment, a reasonable factfinder would not be compelled to conclude that the
term “blood sucker” had anything to do with Mohamed’s husband’s political
affiliations or those imputed to Mohamed herself. We again defer to the IJ’s finding.
C.
Mohamed’s third argument is that the IJ incorrectly found that she did not have
a well-founded fear of future persecution on account of her clan membership because
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she could safely relocate within Somalia.3 When an alien has failed to demonstrate
past persecution, she may still be eligible for asylum if she can show a well-founded
fear of future persecution on a country-wide basis. See 8 C.F.R. § 208.13(b)(2)(ii).
She must both genuinely fear persecution and must provide credible, specific
evidence that a reasonable person in her position would fear persecution if returned.
Francois, 283 F.3d at 930. Because she has not established past persecution,
Mohamed has the burden to prove that a fear of future persecution exists on a
country-wide basis or that it would be unreasonable to expect her to relocate.
Compare 8 C.F.R. § 208.13(a) (alien has the burden to prove that she is a refugee),
with id. § 208.13(b)(1)(ii) (if alien establishes past persecution, government has the
burden to prove that the alien could avoid future persecution by relocating).
Mohamed did provide some evidence in the form of newspaper articles that as
a member of the Benadir clan, she could not safely resettle in Somalia. The IJ,
however, was persuaded by the State Department’s Profile of Asylum Claims, which
states that “[d]espite . . . bandits, conditions in the countryside are more stable than
they have been in past years. Thousands of refugees have returned to the southern
part of the country—presumably because they thought it safe to do so.” R. at 208.
The IJ also relied on the Country Report, which shows that the Somalian economy
has been improving since 1997 as a result of relative peace in much of the country.
R. at 220.
3
Mohamed also makes a reference to future persecution on account of an
imputed political opinion in her statement of the issues. We find that any fear of
future persecution on account of an imputed political opinion from her husband’s
work for Siad Barre is not objectively reasonable. The State Department’s Profile of
Asylum Claims states that only “close relatives of former President Barre” and
“senior security or military officials of his regime would be at some risk . . . from
those bent on revenge.” R. at 203.
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The IJ did not ignore Mohamed’s evidence regarding relocation. Instead, he
found Mohamed’s newspaper articles indicating that it would be difficult for Benadir
clan members to relocate within Somalia to be self-serving and unreliable.
Mohamed’s evidence, in comparison with the State Department records, is not so
compelling that a factfinder could only conclude that Mohamed could not safely
relocate within Somalia. Because substantial evidence supports the IJ’s conclusion
that Mohamed could safely resettle in a nonhostile region of Somalia, we defer to the
IJ’s finding that she has not demonstrated a well-founded fear of future persecution
based on Benadir clan membership.
Relocation must not only be possible, it must also be reasonable. 8 C.F.R. §
208.13(b)(2)(ii). Mohamed argues we should remand this case to the BIA for a
reasonableness determination because the IJ did not assess all of the factors in 8
C.F.R. § 208.13(b)(3).4 See Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1045 (8th Cir.
2004). In Hagi-Salad, the IJ avoided the question of whether Hagi-Salad suffered
past persecution in Somalia by finding that even if he did suffer past persecution, the
government sufficiently rebutted the presumption that he would suffer future
persecution because he could relocate within Somalia. However, the IJ did not
evaluate whether it would be reasonable to expect Hagi-Salad to relocate based on the
4
Section 208.13(b)(3) provides:
For the purposes of determinations under paragraphs (b)(1)(i), (b)(1)(ii),
and (b)(2) of this section, adjudicators should consider, but are not
limited to considering, whether the applicant would face other serious
harm in the place of suggested relocation; any ongoing civil strife within
the country; administrative, economic, or judicial infrastructure;
geographical limitations; and social and cultural constraints, such as age,
gender, health, and social and familial ties. Those factors may, or may
not, be relevant, depending on all the circumstances of the case, and are
not necessarily determinative of whether it would be reasonable for the
applicant to relocate.
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factors in 8 C.F.R. § 208.13(b)(3). This court remanded to the BIA for a
reasonableness determination based on these factors. Id. at 1048; see also 8 C.F.R.
§ 208.13(b)(2)(ii).
In Mohamed’s case, the IJ did not evaluate all of the regulation’s
reasonableness factors when determining whether she could relocate within Somalia.
However, unlike in Hagi-Salad, the IJ conclusively found that Mohamed did not
suffer past persecution. Therefore, Mohamed had the burden to prove that relocation
would be unreasonable, see 8 C.F.R. § 208.13(a); Melecio-Saquil v. Ashcroft, 337
F.3d 983, 987-88 (8th Cir. 2003), and the IJ noted that Mohamed failed to proffer any
evidence to that effect. As such, we will not remand this case for a reasonableness
determination under 8 C.F.R. § 208.13(b)(3).
III.
Because we find the IJ’s decision that Mohamed is ineligible for asylum to be
supported by substantial evidence in the record, we also find that she fails to meet the
more rigorous standard for withholding of removal. INS v. Cardoza-Fonseca, 480
U.S. 421, 429 (1987); Al Tawm v. Ashcroft, 363 F.3d 740, 744 (8th Cir. 2004).
Accordingly, we deny the petition.
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