Abdikadir Guled v. Michael G. Mukasey, etc. ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1681
___________
Abdikadir Abdillahi Guled, *
also known as Mohamed Ali Jamal, *
also known as Yusuf Abdilahi Guled, *
also known as Mukhtar Fahiyeh, *
also known as Abdi Abuf Guled, *
also known as Guled Abdul Ali, also *
known as Abdisalan Mohamed Gure, *
also known as Jamal Ali Abdul, *
*
Petitioner, *
*
v. *
*
Michael B. Mukasey, *
*
Respondent. *
___________
Petition for Review of an
No. 07-2339 Order of the Board of
___________ Immigration Appeals.
Abdikadir Abdillahi Guled, *
*
Petitioner, *
*
v. *
*
Michael B. Mukasey, *
*
Respondent. *
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Submitted: January 18, 2008
Filed: January 31, 2008 (Corrected 2/7/08)
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Before BYE, BEAM, and GRUENDER, Circuit Judges.
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BYE, Circuit Judge.
Abdikadir Guled seeks review of a final order of removal issued by the Board
of Immigration Appeals (BIA) affirming the Immigration Judge's (IJ) decision finding
him removable and denying his applications for cancellation of removal, asylum and
related relief. He also appeals the denial of his motion to reopen and reconsider.
After careful review, we deny Guled's petition.
I. Background
On or about September 30, 1991, Abdikadir Guled, a native of Somalia and
citizen of Ethiopia,1 entered the United States at the age of eleven as a refugee. He
subsequently adjusted his status to that of a lawful permanent resident on or about
October 20, 1992. Guled, currently twenty-seven years old, entered into a cultural,
but not legal, marriage with Yasmin Mohamed in 1999. Mohamed testified she
received asylum in 1998. The couple have two children together.
1
The IJ found him to be a native and citizen of Somalia. The BIA found him
to be a citizen of Ethiopia, like his mother.
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A. Proceedings Before the IJ
The Department of Homeland Security (DHS) commenced removal proceedings
against Guled on August 28, 2003. DHS charged him as being removable pursuant
to Immigration and Nationality Act (INA) Section 237 (a)(2)(A)(ii), 8 U.S.C. §
1227(a)(2)(A)(ii), which allows the removal of an "alien who at any time after
admission is convicted of two or more crimes involving moral turpitude, not arising
out of a single scheme of criminal misconduct," and INA Section 237(a)(2)(E)(i), 8
U.S.C. § 1227(a)(2)(E)(i), which allows the removal of an "alien who at any time after
admission is convicted of a crime of domestic violence."2 The IJ noted Guled initially
admitted all of the allegations in the Notice to Appear and conceded the second charge
of removability. Upon changing attorneys, he later denied both charges of
removability and also denied allegation six, which alleged he was a citizen of Ethiopia
– the country in which his mother was born and raised.
The IJ did not sustain the first charge of removal, finding a conviction for
resisting a police officer is not a crime of moral turpitude. The IJ did sustain the
second charge of removal, based on Guled's conviction for a crime of domestic
violence. He declined to designate a country for removal, and the IJ designated
Ethiopia, or alternatively Somalia.
Guled originally applied for asylum on March 10, 2005, and submitted a second
application on October 19, 2005. He also applied for withholding of removal under
INA Section 241(b)(3), 8 U.S.C. § 1231(b)(3), for relief under Article III of the
Convention Against Torture, and for cancellation of removal for permanent residents.
2
Guled was convicted on October 20, 2000, of battery against his wife in
California and given three years of probation. He was convicted on April 2, 2001, of
resisting a police officer, also in California.
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Guled claimed he suffered and fears persecution in Somalia because he
allegedly belongs to a despised minority clan, the Madhiban clan. The IJ made an
adverse credibility finding regarding his clan membership because of contradictions
in the record. He claimed to be from the Madhiban clan in Somalia, although the
asylum applications of his parents indicate they are from the Darod clan, and Guled's
original application listed him as a member of the Darod clan. Testimony from police
officer Brudenell, whom DHS called as a witness, revealed relatives of Guled stated
in an unrelated investigation the family was Darod. The IJ concluded the evidence
failed to establish Guled's membership in the Madhiban clan and failed to show
persecution of the Darod clan.
Regarding Brudenell's testimony, Guled points out the local rules required DHS
to file and provide him a witness list no later than ten calendar days prior to the final
hearing. DHS violated this rule, and he properly objected on the ground he had not
been given time and opportunity to prepare for cross-examination of witness
Brudenell. The IJ noted Guled's objection but allowed Brudenell to testify. Witness
Brudenell testified to Guled's membership in the Somali Crips street gang and stated
he is viewed as a leader in the gang. She testified an album of photographs found in
Guled's car depicted individuals throwing gang signs and wearing blue – the Crips'
color. At least one photograph pictured him with a person carrying a very dangerous
firearm. He did not request a continuance.
The IJ also found implausible Guled and Mohamed's account of his domestic
violence arrests and convictions. Guled claimed he had never hit his wife and only
pled guilty to assault in California because of advice from his public defender. He
explained Mohamed had him arrested for domestic violence because she thought he
was cheating. He also testified Mohamed was beaten badly by two women in
February 2006, but told the police he was responsible because she was mad at him.
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Mohamed first claimed Guled had never been arrested, the police had never
come to their home, and he was never charged with domestic assault. After being
shown a page from Guled's chronological criminal history, she admitted to calling the
police in October of 2000, and had him arrested because she was feeling jealous and
also because of problems with his brother. On cross-examination, she stated again
Guled had never been arrested and had never been to jail. In fact, he does have a
voluminous arrest and conviction record. Mohamed later submitted a statement
explaining she was on medication at the hearing and was confused about her
testimony. The IJ found Mohamed and Guled's explanations of the various domestic
assault charges brought against him to be implausible.
Addressing Guled's application for cancellation of removal, the IJ applied the
factors set out in Matter of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978). The judge
considered his criminal record, describing it as "about the largest laundry list of arrests
this Court has seen for an individual in a long time." He considered evidence
indicating Guled had been involved in the Rough Tough Somali Crips gang. The IJ
also considered the limited evidence of his good character, acknowledging the
supportive testimony of his wife and mother, his significant family ties in the United
States, and the hardship to he and his family should he be deported. The IJ found no
other documented evidence of Guled's value and service to the community, no record
of military service, a spotty employment history, and no proof of rehabilitation with
his arrests continuing up through that year. The IJ concluded he was a danger and it
was not in the best interests of the United States to allow him to remain in this country
as a permanent resident. His application for cancellation of removal was denied.
Turning to Guled's application for asylum, the IJ determined he did not qualify
as he could not credibly demonstrate being a refugee within the meaning of INA
Section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A), i.e. he could not demonstrate any
past persecution or well-founded fear of future persecution on account of his race,
religion, nationality, membership in a particular social group, or political opinion.
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The judge found Guled's testimony as to his tribal affiliation incredible because it was
inconsistent and concluded there was no clear evidence of his membership in the
Madhiban clan or reason to fear persecution.3
Next, the IJ concluded Guled failed to meet the burden of proof for a grant of
withholding of removal because he failed to meet the lower burden of proof for a grant
of asylum. He could not prove it was more likely than not he would be persecuted
upon return to Ethiopia or Somalia. As for the claim for protection pursuant to the
Convention Against Torture, the IJ found the evidence did not establish any
government of Ethiopia or Somalia would have reason to want to torture him. The IJ
denied his applications for cancellation of removal, asylum and withholding of
removal pursuant to sections 240A, 208(b), and 241(b)(3) of the INA, 8 U.S.C. §§
1229b, 1158(b) and 1231(b)(3), respectively, and protection pursuant to Article III of
the Convention Against Torture. The IJ ordered him removed to Ethiopia, or in the
alternative, to Somalia.
B. Proceedings Before the BIA
Guled appealed the decision to the BIA. He challenged the IJ's adverse
credibility findings, challenged the propriety of allowing the testimony of witness
Brudenell because DHS did not submit her name on a witness list, challenged the IJ's
determination it was not in the interest of the United States to allow him to remain a
permanent resident, and not having met his burden of proof with respect to claims for
asylum and related relief.
On February 3, 2007, the BIA dismissed his appeal. It rejected Guled's
challenge to witness Brudenell's testimony, noting he could have requested a
3
We note the evidence presented by Guled regarding his fears of persecution
and torture pertained to Somalia. There is no evidence of any fear of persecution or
torture in Ethiopia, the proposed country of removal.
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continuance and his failures to show prejudice. The BIA reviewed the IJ's findings
of fact, including its credibility determinations, under a clearly erroneous standard.
See 8 C.F.R. § 1003.1(d)(3). First, the BIA affirmed the IJ's denial of Guled's
application for cancellation of removal as within the IJ's sound discretion. See Matter
of Marin, 16 I&N Dec. 581, 584-85 (BIA 1978) (stating standard for discretion). It
found the IJ properly considered Guled's criminal history, long arrest record, gang
connections, lack of evidence of rehabilitation, and spotty employment history, as
compared to his family ties in the United States, length of residence, and potential
hardship to his family if he were removed and did not err in denying his application
for cancellation of removal. Second, the BIA affirmed the IJ's denial of his asylum
claim, finding the IJ's credibility finding on his clan membership and other reasoning
was not erroneous. Third, the BIA affirmed the IJ's decision as to not qualifying for
withholding of removal under section 241(b)(3) of the INA or under the Convention
Against Torture because of failure to show a clear probability of persecution in
Somalia or Ethiopia.
C. Motion to Reopen and Reconsider
Guled filed a motion to reopen and reconsider, renewing his argument that the
officer was improperly allowed to testify and also the BIA erred in holding he failed
to demonstrate prejudice. The BIA rejected his claim about witness Brudenell's
testimony, reiterating he elected not to file a motion for a continuance. The BIA
concluded his explanation for the discrepancy as to his clan affiliation was not
convincing. It noted the only support for his claim to be a member of the Madhiban
clan was the testimony of his wife, his mother and himself and a letter from a Somali
organization, which did not explain the basis for its belief he was Madhiban.
The BIA found Guled had not cited to any mistake of fact or law to support his
motion and merely reiterated arguments from his previous appeal. It further
concluded he had not provided any new or previously unavailable evidence in support
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of his motion to reopen and reconsider. Since he did not meet the heavy burden
required to warrant reopening proceedings before the IJ, the BIA denied his motion.
II. Appeal of Final Order of Removal
Guled petitions this court for review of the BIA's final order of removal, which
affirmed the IJ's decision finding him removable and denying his applications for
cancellation of removal, asylum, withholding of removal, and relief under the
Convention Against Torture. He argues: (1) legal errors committed by the IJ and BIA
violated his due process rights; (2) the IJ misapplied the balancing test used to
determine whether cancellation of removal is appropriate; (3) the IJ abused its
discretion in denying his claim for asylum and in "failing to consider" his claims for
withholding of removal and relief under Article III of the Convention Against Torture.
A. Standard of Review
When the Court reviews a BIA determination regarding eligibility for asylum,
withholding of removal, or relief under the Convention Against Torture, the
substantial evidence standard is utilized. See Diallo v. Mukasey, 508 F.3d 451, 454
(8th Cir. 2007). Such is an "extremely deferential standard of review." Id. (citing
Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir. 2005)). The INA, as amended by the
Illegal Immigration Reform and Immigration Responsibility Act, states the court of
appeals is to decide the petition for review of a final order of removal "only on the
administrative record on which the order of removal is based." 8 U.S.C.
§ 1252(b)(4)(A). It also provides “the administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). The Attorney General's discretionary decision not to grant
asylum – delegated to the IJ, 8 C.F.R. § 1208.14(a) – is conclusive unless “manifestly
contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). The
burden of proof is on the applicant to establish eligibility for relief, and the alien may
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sustain this burden by his own testimony, if credible. 8 C.F.R. §§ 1208.13(a),
1208.16(b) & 1208.16(c)(2).
B. Cancellation of Removal
Guled appeals the BIA's order denying his application for cancellation of
removal, arguing misapplication of law and a violation of his due process rights. An
alien may apply for relief in the form of cancellation of removal if he meets the
requirements set out in 8 U.S.C. § 1229b(b). Once an alien has cleared the non-
discretionary legal requirements for eligibility, the IJ makes a discretionary
determination whether the alien merits the relief of cancellation of removal. 8 U.S.C.
§ 1229b(b). The decision to grant cancellation of removal is a discretionary act by the
Attorney General which this Court may not review. 8 U.S.C. § 1252(a)(2)(B). We
may review the non-discretionary determinations underlying such a decision, such as
the predicate legal question whether the IJ properly applied the law to the facts in
determining an individual's eligibility. Reyes-Vasquez v. Ashcroft, 395 F.3d 903, 906
(8th Cir. 2005). We may also review constitutional claims or questions of law. 8
U.S.C. § 1252(a)(2)(D).
It is undisputed Guled met the eligibility requirements set out in 8 U.S.C.
§ 1229b(b). He appeals the IJ's non-reviewable discretionary determination he did not
merit relief. He argues his appeal of the denial of cancellation of removal is properly
before this Court because he brings a constitutional claim, arguing the IJ deprived him
of his Fifth Amendment right to due process by allowing a witness to testify without
giving him proper notice. We do not have jurisdiction to review the denial of
cancellation of removal on this basis.
Cancellation of removal is a discretionary remedy, roughly equivalent to
executive clemency, over which the executive branch has unfettered discretion. INS
v. Yang, 519 U.S. 26, 30 (1996). Because adjustment of status amounts to a power
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to dispense mercy, an alien can have no constitutionally protected liberty interest in
such speculative relief and cannot state a claim for a violation of due process rights.
Etchu-Njang v. Gonzales, 403 F.3d 577, 585 (8th Cir. 2005) (citing Nativi-Gomez v.
Ashcroft, 344 F.3d 805, 808 (8th Cir. 2003)). "The failure to receive discretionary
adjustment-of-status relief does not constitute the deprivation of a
constitutionally-protected liberty interest." Nativi-Gomez, 344 F.3d at 808. For this
reason, Guled cannot state a claim for a violation of due process rights.
Guled further argues his appeal of the denial of cancellation of removal is
properly before this Court because the IJ misapplied the legal standard when making
its discretionary determination; he argues this is a reviewable question of law. He
agrees the IJ and BIA each applied the appropriate standard, as outlined in Matter of
Marin, 16 I&N Dec. at 584-85, but argues the IJ improperly weighed the factors in the
proper balancing test. Despite his characterization of the appeal as a question of law,
what he challenges is the discretionary conclusion of not meriting a favorable exercise
of discretion. This Court does not have jurisdiction to review the denial of
cancellation of removal on such a basis. 8 U.S.C. § 1252(a)(2)(B).
C. Asylum
Guled also appeals the denial of his application for asylum. He first argues the
IJ erred by discounting several critical parts of his testimony and asks this Court to
determine the IJ did not have valid grounds on which to conclude he was not credible.
The IJ found the testimony relating to Guled's clan membership, which is the
heart of his asylum claim, to be substantively inconsistent. Substantive
inconsistencies on key issues of an asylum claim can support an adverse credibility
finding. See Hong Zhang Cao v. Gonzales, 442 F.3d 657, 661 (8th Cir. 2006). Where
an adverse credibility finding is at the heart of an alien's asylum claim, such credibility
determination can be dispositive as to whether the alien merits asylum. See Sheikh
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v. Gonzales, 427 F.3d 1077, 1080-81 (8th Cir. 2005); Jalloh v. Gonzales, 423 F.3d
894, 898-99 (8th Cir. 2005).
"[A]n IJ making a credibility determination must give reasons that are specific
enough that a reviewing court can appreciate the reasoning behind the decision and
cogent enough that a reasonable adjudicator would not be compelled to reach the
contrary conclusion." Chen v. Mukasey, ___ F.3d ___, 2007 WL 4482184, at *3 (8th
Cir. Dec. 26, 2007) (internal quotation omitted) (citing Singh v. Gonzales, 495 F.3d
553, 557-58 (8th Cir. 2007)). Our review of the record confirms the discrepancies
described by the IJ are actually present and provide cogent reasons to conclude his
testimony was not credible. As the IJ noted, he did not provide a "convincing
explanation for the discrepancies" in the record regarding his clan membership. The
evidence was not so strong that any reasonable factfinder would be compelled to
conclude he belonged to the Madhiban clan and had a well-founded fear of
persecution. We see no reason to disturb the IJ's adverse credibility determination.
Guled next argues the IJ erroneously concluded he was ineligible for asylum,
withholding of removal, and relief under the Convention Against Torture. We
disagree. The IJ found he did not qualify for asylum because he could not credibly
demonstrate as to being a refugee within the meaning of Section 101(a)(42)(A) of the
INA. Since substantial evidence on the record as a whole supports the IJ's findings
he could not prove being a refugee and could not prove a well-founded fear of
persecution, we cannot say the IJ's decision to deny his application for asylum was
manifestly contrary to law or an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D).
D. Withholding of Removal
An application for asylum automatically includes a request for withholding of
removal. 8 C.F.R. § 1208.3(b); see INS v. Stevic, 467 U.S. 407, 420 n.13 (1984). An
alien may not be removed if the alien shows there is a clear probability his “life or
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freedom would be threatened in [the alien's] country because of the alien's race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A). The standard for withholding of removal is a clear
probability of persecution, which is more rigorous than the well-founded fear standard
for asylum. Rife v. Ashcroft, 374 F.3d 606, 613 (8th Cir. 2004); Wondmneh v.
Ashcroft, 361 F.3d 1096, 1099 (8th Cir. 2004). Therefore, an alien who cannot meet
the standard for asylum cannot meet the standard for establishing withholding of
removal. Ngure, 367 F.3d at 992. Accordingly, having found Guled failed to meet
the well-founded fear of persecution standard for asylum, we conclude the BIA did
not err in concluding he could not meet the standard for withholding of removal.
E. Convention Against Torture
An applicant seeking relief under the Convention Against Torture bears the
burden of establishing "it is more likely than not that he or she would be tortured if
removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2); Ngure, 367
F.3d at 992. Although the IJ's adverse credibility determination and adverse decisions
on asylum and withholding of removal are not determinative of a Convention Against
Torture claim, Guled has not met his burden. The record contains no evidence that
would establish any government would have reason to torture him. For the reasons
he failed to carry his burden for asylum and withholding of removal, he likewise fails
to carry his burden for relief under the Convention Against Torture.
Guled argues the IJ erred by not independently analyzing his claim for relief
under Article III of the Convention Against Torture. A separate analysis, however,
is required only when there is evidence the alien may be tortured for reasons unrelated
to his claims for asylum and withholding of removal. Alemu v. Gonzales, 403 F.3d
572, 576 (8th Cir. 2005). Guled does not point to any evidence in the record, nor have
we found any, which indicates he may be tortured for reasons unrelated to his claims
for asylum and withholding of removal. Thus, we conclude the BIA did not err.
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III. Appeal of Motion to Reopen and Reconsider
Guled also appeals the BIA's denial of his motion to reopen and reconsider.
A. Standard of Review
We review the BIA's decision denying a motion to reopen and reconsider for
an abuse of discretion. Habchy v. Gonzales, 471 F.3d 858, 861 (8th Cir. 2006). The
BIA's discretion in deciding such motions is “broad,” since motions to reopen are
disfavored because they undermine the government's legitimate interest in finality,
which is heightened in removal proceedings “where, as a general matter, every delay
works to the advantage of the deportable alien who wishes merely to remain in the
United States.” INS v. Doherty, 502 U.S. 314, 323 (1992). The BIA abuses its
discretion where it gives no rational explanation for its decision, departs from its
established policies without explanation, relies on impermissible factors or legal error,
or ignores or distorts the record evidence. See Habchy, 471 F.3d at 861-62; Miranda
v. INS, 51 F.3d 767, 768-69 (8th Cir. 1995) (per curiam) (holding no abuse of
discretion where findings were a “reasonable interpretation” of record and did not
ignore or distort evidence).
B. Discussion
Guled argues it was an error of law for the BIA to rule he did not meet his
burden to show the proceedings should be reopened. He submitted additional
documentary evidence, which offered new material facts which were not available at
the prior hearing, to show he was a member of the Madhiban clan. This evidence
included affidavits from his family and a letter from a Somali organization supporting
his claims. He explains this evidence was not previously available because he was not
afforded an opportunity to supplement the record after the IJ and BIA determined the
evidence he first offered was insufficient.
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A motion to reopen must present “new facts that are material to the outcome of
the proceeding and were neither available nor discoverable at the prior hearing.”
Fongwo v. Gonzales, 430 F.3d 944, 947 (citing 8 C.F.R. § 1003.23(b)(3)). Motions
to reopen should only be granted if the new evidence presented "could not by the
exercise of due diligence have been discovered earlier." Fongwo, 430 F.3d at 947(quoting Krougliak v. INS, 289 F.3d 457, 460 (7th Cir. 2002)) (finding petitioner's
failure to provide certain evidence at the prior hearing because of his attorney's advice
did not render the evidence new, unavailable, and undiscoverable). The law expects
the applicant will present the strongest evidence at the outset and does not give him
another chance to bolster the record with evidence available earlier, but which he
decided to hold back. See Hailemichael v. Gonzales, 454 F.3d 878, 883-84 (8th Cir.
2006) (stating "evidence that could have been gathered before the initial hearing does
not meet the regulation's requirement that a motion to reopen be supported with
evidence that was 'not available and could not have been discovered or presented at
the former hearing.'") (quoting 8 C.F.R. § 1003.23(b)(3)); Eta-Ndu v. Gonzales, 411
F.3d 977, 987 (8th Cir. 2005) (affirming BIA's denial of motion to reopen because
petitioner did not present new evidence and rejecting petitioner's explanation that he
did not present the "new" evidence earlier because he did not realize the current
evidence was insufficient until the IJ issued his decision). Guled's additional evidence
did not meet the regulation's requirement because it was available to him earlier and
could have been presented at the initial hearing. The BIA did not abuse its discretion
when it ruled he had not presented any new material evidence to warrant reopening
the proceedings.
IV. Conclusion
We find the BIA's explanation for its decision to be rational and in accordance
with established policy. We find its interpretation of the record to be reasonable and
find no legal error in its reasoning or conclusions. We therefore conclude the BIA did
not abuse its discretion in denying Guled's motion to reopen and reconsider.
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For the foregoing reasons, we deny Guled's petition for review.
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