Hayad Ahmed Guure v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2258
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Hayad Ahmed Guure; Salma Ciise *
Liban; Yahia Ciise Liban; *
Zubeer Ciise Liban, *
* Petition for Review of
Petitioners, * an Order of the Board of
* Immigration Appeals.
v. *
* [UNPUBLISHED]
1
Alberto Gonzales, Attorney General, *
*
Respondent. *
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Submitted: April 7, 2005
Filed: April 12, 2005
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Before WOLLMAN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
Hayad Ahmed Guure (Hayad) and her children (collectively, the Guures),
petition for review of an order of the Board of Immigration Appeals (BIA) affirming
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c).
an Immigration Judge’s (IJ’s) denial of their application for asylum and withholding
of removal.2 Having carefully reviewed the record, we deny the petition.
The Guures, who represent that they are natives of Somalia, entered the United
States without inspection and, in September 2001, they applied for asylum. In
January 2002 the former Immigration and Naturalization Service (INS) charged the
Guures with being removable for not possessing valid entry documents; the Guures
conceded removability and renewed their asylum application.
In support of the asylum application, Hayad testified to the following. She was
a member of the Tumal clan, who were outcasts in Somalia; however, there was no
way for other Somalis to discern Hayad’s tribal membership because Tumals spoke
the same language and practiced the same religion as other tribes. Her family lived
in Mogadishu, Somalia, where her father served in the Somali military as a palace
security guard. On January 25, 1991, members of the United Somali Congress (USC)
came to her family’s home demanding money and to know the whereabouts of “those
outcasts” who “were working for Faqash.” The USC entered Hayad’s home and
killed her brother, raped Hayad and her pregnant sister, and told her family to leave
the city or they would be killed. The next day her father was killed and Hayad, her
sister, and her mother fled to Kenya. Hayad lived at refugee camps in Mombasa,
Kenya, and then went to live in Nairobi, Kenya, where her children were born. On
August 31, 2001, Hayad and the children came to the United States with the help of
a smuggler. Hayad was afraid that she would be killed if she returned to Somalia; she
did not believe she would be targeted, but rather she was afraid because of her clan
membership and because her father had belonged to the military of the previous
government.
2
The Guures are not challenging the IJ’s decisions to deny them voluntary
departure or relief under the Convention Against Torture. See Chay-Velasquez v.
Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
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According to the 2000 Profile of Asylum Claims and Country Conditions,
Somalia has lacked a central government since 1991 and has been subject to serious
civil unrest. Political violence and banditry have been endemic and many persons
have been injured or killed as a result of interfactional and interclan fighting. The
report concluded that, although the Tumal may have been targeted during the civil
strife, there was no automatic correlation between clan affiliation and danger of
persecution.
The IJ denied asylum, finding that the Guures had failed to show, by clear and
convincing evidence, that they applied for asylum within the one-year deadline
imposed by 8 U.S.C. § 1158(a)(2)(B). The IJ also denied asylum as a matter of
discretion, because Hayad had failed to apply for resettlement and she was not fleeing
persecution when she left Kenya; denied all removal relief, concluding that Hayad
was not credible; and denied asylum and withholding of removal on the merits as
well, because Hayad’s testimony was general and meager, she failed to present
objective documentary evidence, and the harm she suffered appeared to have occurred
because of the civil strife in Somalia and not on account of a protected ground. The
BIA affirmed the IJ’s decision without opinion.3
We cannot review the IJ’s conclusion that the Guures’ asylum application was
untimely. See 8 U.S.C. § 1158(a)(3) (no court shall have jurisdiction to review any
determination with respect to whether asylum applicant timely filed asylum
application); Ngure v. Ashcroft, 367 F.3d 975, 989 (8th Cir. 2004) (courts lack
jurisdiction under § 1158(a)(3) to consider alien’s challenge to IJ’s timeliness
determination).
3
The IJ’s decision, therefore, constitutes the final agency determination for
purposes of judicial review. See Dominguez v. Ashcroft, 336 F.3d 678, 679 n.1 (8th
Cir. 2003).
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For purposes of reviewing the denial of withholding of removal, however, we
review the IJ’s additional finding that the Guures did not show they suffered past
persecution or had a well-founded fear of future persecution, and we conclude
substantial evidence supports the IJ’s finding. See Ngure, 367 F.3d at 989-92
(standard of review; reviewing IJ’s alternate finding of no well-founded fear of
persecution for purposes of reviewing denial of withholding of removal); Mohamed
v. Ashcroft, 396 F.3d 999, 1004-1005 (8th Cir. 2005) (Somali national whose home
had been looted and whose son had been killed in 1990 failed to satisfy burden of
proving that such conduct was on account of clan membership where conduct
occurred during period of civil unrest and generalized looting, and country report
indicated such banditry was endemic in Somalia at time); Hassan v. Ashcroft, 388
F.3d 661, 666-67 (8th Cir. 2004) (IJ’s decision to discount Somali national’s claim
that he was member of persecuted clan was supported by substantial evidence where
he admitted that one could not determine clan membership by physical appearance,
dialect, or area in which person lived in Mogadishu; and in any event country report
indicated there was no automatic correlation between clan affiliation and danger of
persecution); Miranda v. INS, 139 F.3d 624, 627 (8th Cir. 1998) (persecution does
not embrace harm arising out of civil strife or anarchy). Thus, the Guures’ claim for
withholding of removal fails. See Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th
Cir. 2002) (withholding-of-removal standard is more rigorous than asylum standard).
Accordingly, we deny the petition for review.
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