Ahmednur Isse v. Michael B. Mukasey ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-1767
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Ahmednur Isse, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
*
Respondent. *
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Submitted: January 18, 2008
Filed: May 8, 2008
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Before LOKEN, Chief Judge, HANSEN and MURPHY, Circuit Judges.
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LOKEN, Chief Judge.
Ahmednur Isse, a citizen and national of Somalia, fled Somalia in 1996 and
lived in Kenyan refugee camps for some years until he entered the United States
illegally, leaving his wife and three children in Kenya. He applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
After a hearing, the immigration judge (IJ) denied all relief, finding his claims and
testimony “completely not credible.” The Board of Immigration Appeals (BIA)
dismissed Isse’s appeal, agreeing with the IJ that he is ineligible for asylum because
he failed to prove that he applied for asylum within one year of entering this country,
see 8 U.S.C. § 1158(a)(2)(B, D), and upholding the IJ’s adverse credibility finding.
Isse did not seek judicial review of this final order of removal. Instead, he filed a
timely motion to reconsider with the BIA. He now petitions for review of the BIA’s
order denying that motion, a ruling we review for abuse of discretion. Boudaguian v.
Ashcroft, 376 F.3d 825, 828 (8th Cir. 2004). We deny the petition for review.
Like the petitioner in Boudaguian, much of Isse’s brief on appeal is devoted to
arguing that the BIA erred in its initial order affirming the IJ’s denial of relief.
However, our jurisdiction is limited to reviewing the denial of the motion to
reconsider. 376 F.3d at 827. The applicable regulation provides that a motion to
reconsider “shall state the reasons for the motion by specifying the errors of fact or
law in the prior Board decision and shall be supported by pertinent authority.” 8
C.F.R. § 1003.2(b)(1). The BIA abuses its discretion if its decision “is without
rational explanation, departs from established policies, invidiously discriminates
against a particular race or group, or where the agency fails to consider all factors
presented by the alien or distorts important aspects of the claim.” Esenwah v.
Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004), cert. denied, 544 U.S. 962 (2005). Isse
argues that the BIA abused its discretion in rejecting two reasons that warranted
granting his motion to reconsider.
1. In denying Isse’s application for asylum, withholding of removal, and CAT
relief, the IJ determined that Isse had filed a frivolous asylum application, a
determination that made him “permanently ineligible for any benefits” under the
immigration laws. 8 U.S.C. § 1158(d)(6). In its initial order, the BIA vacated this
determination on the ground that it was based in large part on Isse presenting
fraudulent birth certificates that were not material to the asylum claim and therefore
were not grounds for a frivolity determination. See 8 C.F.R. § 1208.20.
In his motion to reconsider, Issue asserted that the frivolous application
determination “infected” the IJ’s adverse credibility finding because both were based
on birth certificates the IJ considered fraudulent. Therefore, the BIA should either
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review the credibility determination de novo or remand to the IJ to re-analyze the
credibility determination. The BIA responded:
[Isse] has failed to show that the frivolous and credibility determinations
were inextricably linked . . . given that each issue involves a different
legal standard . . . . Moreover, our conclusion that the [IJ’s] adverse
credibility determination was not clearly erroneous was expressly due to
material inconsistencies in [Isse’s] claim which undermined the heart of
his asylum application, while our discussion on the frivolous finding did
not examine such discrepancies as it was limited to the [IJ’s] appraisal
of the authenticity of the birth certificates of [Isse’s] children.
(Citations omitted.)
Isse’s petition for review argues at length that the BIA abused its discretion by
ignoring “the relevant fact” that the fraudulent birth certificates “seeped into almost
every part of the [IJ’s] adverse credibility finding.” We are not persuaded. After
careful review of the administrative record, we conclude that it fully supports the
BIA’s rational explanation of why this contention failed to specify an error of fact or
law in the BIA’s prior decision. Accordingly, there was no abuse of discretion.
2. At the asylum hearing, Isse testified that members of a more powerful Somali
clan came to his family home in 1996, broke Isse’s leg, killed his father, raped his
wife and sister, and threatened further violence. The IJ’s adverse credibility finding
was based in part on the fact that he did not mention the rapes in his asylum
application or during his initial asylum interview. In upholding the credibility finding,
the BIA’s initial order referred to this omission as one of the “material inconsistencies
related to the heart of [Isse’s] asylum application.”
In his motion to reconsider, Isse argued that the BIA’s initial order erred in
upholding the IJ’s adverse credibility finding because the BIA mislabeled mere
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omissions -- Isse’s failure to recount the rapes of his wife and sister in his initial
asylum application and interview -- as “material inconsistencies” that undermined the
credibility of his asylum claim. The BIA responded:
[Isse] failed to show that the inconsistencies and omissions that were
addressed in our prior decision were improperly considered in our
credibility analysis. Specifically, to the extent that [Isse] indicates that
the omission of his wife’s and sister’s rape in his asylum application
should not have bearing on his credibility . . . he has failed to
substantiate this argument with any reasoned analysis given that such
abuse is clearly material to his eligibility for relief. See Zheng v.
Gonzales, 415 F.3d 955, 960 (8th Cir. 2005) . . . . Thus, we find that
[Isse] has not demonstrated any error in our decision finding no clear
error in the [IJ’s] negative credibility finding. (Footnote omitted.)
On appeal, Isse reargues the merits of the IJ’s credibility analysis and then
asserts that the BIA erred in determining that his wife’s and sister’s rapes were
material inconsistencies because those rapes “did not form the crux of [his] original
claim for asylum.” We reject this circular reasoning. Isse did not mention the rapes
in his application and initial interview, yet he brought them to the agency’s attention
at the hearing in support of his asylum claim. As the BIA noted -- indeed, as Isse
argued in another section of his brief -- such violent physical abuse of a petitioner’s
immediate family on account of a protected ground (here, membership in a particular
social group) is directly relevant to whether he suffered past persecution and has a
well-founded fear of future persecution in that country. Therefore, the BIA gave a
rational explanation for denying the motion to reconsider this aspect of its initial
order. Again, there was no abuse of discretion.
We deny the petition for review.
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