Abdurahman Kemi v. Eric Holder, Jr. ( 2014 )

FILED
NOT FOR PUBLICATION MAR 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ABDURAHMAN OSMAN KEMI, No. 10-71599
Petitioner, Agency No. A074-352-474
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2014**
Pasadena, California
Before: BYBEE, BEA, and IKUTA, Circuit Judges.
Abdurahman Osman Kemi, a native and citizen of Ethiopia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from
an Immigration Judge’s (“IJ”) denial of his request for a continuance, as well as his
applications for suspension of deportation, asylum, withholding of deportation, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
8 U.S.C. § 1252, and we deny the petition for review.
“When the BIA conducts an independent review of the IJ’s findings we
review the BIA’s decision and not that of the IJ. To the extent the BIA incorporates
the IJ’s decision as its own, we treat the IJ’s statements of reasons as the BIA’s and
review the IJ’s decision.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.
2006) (citation omitted).
“[W]e review de novo both purely legal questions and mixed questions of
law and fact.” Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012)
(internal quotation marks and citation omitted). In contrast, factual determinations
are reviewed for substantial evidence. Id. “Under the substantial evidence standard,
a petitioner can obtain reversal only if the evidence compels a contrary
conclusion.” Zarate v. Holder, 671 F.3d 1132, 1134 (9th Cir. 2012).
Substantial evidence supports the BIA’s finding that Kemi was “firmly
resettled” in Germany under 8 C.F.R. § 1208.15. Kemi concedes that he was
granted lawful permanent residency in Germany. The burden was therefore on
Kemi to show that he falls within one of the regulatory exceptions, 8 C.F.R. §
1208.15(a) or (b). Maharaj v. Gonzales, 450 F.3d 961, 964 (9th Cir. 2006). He has
not done so. The record establishes that Kemi lived in Germany for over nine
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years, worked in Germany, married a German citizen, rented a residence in
Germany, paid taxes, received unemployment benefits, and generally enjoyed the
benefits available to other lawful residents of that country. As a result, Kemi is
ineligible for asylum relief from Ethiopia. 8 U.S.C. § 1158(b)(2)(A)(vi).
Substantial evidence supports the BIA’s conclusion that Kemi did not
establish a clear probability of persecution or torture in Ethiopia on the basis of his
Oromo ethnicity. The record supports the BIA’s finding that Oromos are not
targeted on the basis of their ethnicity alone, independent of their known or
suspected political sympathies. Moreover, the record supports the BIA’s finding
that Kemi would not be targeted as a member of a disfavored group. Kemi
testified: (1) he “do[es] not want to get involved in any politics”; (2) his fear of
future persecution is based only on his Oromo ethnicity; (3) he has had no political
involvement for more than three decades; (4) he has successfully resisted Oromo
Liberation Front recruitment in the United States; and (5) though he speaks
Amharic fluently, he “[b]arely” speaks Oromo. Therefore, Kemi has failed to show
that the record compels reversal of the BIA’s conclusion.
Substantial evidence supports the BIA’s conclusion that the abuse Kemi
suffered in Germany did not rise to the level of past persecution. Lanza v. Ashcroft,
389 F.3d 917, 934 (9th Cir. 2004) (cautioning that persecution “is an extreme
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concept that does not include every sort of treatment our society regards as
offensive” (internal quotation marks and citations omitted)). The abuse that Kemi
suffered consisted mostly of racial slurs and bottle throwing. Such discrimination
is reprehensible, but the standard for persecution is more demanding. Like the
petitioner in Nagoulko v. INS, 333 F.3d 1012, 1014–16 (9th Cir. 2003), Kemi was
verbally harassed, suffered relatively minor physical abuse, and struggled to find
work; he did not face specific, violent threats like those received by the petitioner
in Mashiri v. Ashcroft, 383 F.3d 1112, 1119–20 (9th Cir. 2004). Accordingly,
Kemi has failed to show that the record compels the conclusion that he suffered
persecution in Germany.
Substantial evidence supports the BIA’s conclusion that Kemi did not
establish a clear probability of future persecution or torture in Germany on the
basis of his race or foreign status. Although the Country Report acknowledges
governmental and societal discrimination against minority groups, as well as
physical harassment of foreigners and racial minorities, it also indicates that the
German government has devoted significant resources to prevent discrimination
against vulnerable groups and that German law provides substantial protection to
racial and ethnic minorities. As a result, Kemi cannot show that the record compels
reversal of the BIA’s conclusion.
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An IJ has discretionary authority to grant a motion for continuance at her
own convenience, for good cause shown, or upon application by one of the parties.
8 C.F.R. §§ 1003.29, 1240.6. The BIA reviews de novo all matters of discretion,
including whether to grant a motion for continuance. Id. § 1003.1(d)(3)(ii). We
review the agency’s denial of a continuance for abuse of discretion, considering on
a case by case basis “(1) the importance of the evidence, (2) the unreasonableness
of the immigrant’s conduct, (3) the inconvenience to the court, and (4) the number
of continuances previously granted.” Cui v. Mukasey, 538 F.3d 1289, 1292 (9th
Cir. 2008). The BIA did not abuse its discretion in affirming the IJ’s denial of the
continuance for three reasons. First, Kemi had more than two years to prepare all
of his applications. Second, contrary to Kemi’s assertions, his attorney’s decision
to focus on the application for suspension of deportation was tactical in nature, and
Kemi is bound by his attorney’s tactical decisions, even if they prove unwise.
Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986). Third, the record
does not suggest that Kemi was unprepared to present all of his applications at the
2008 merits hearing. Matter of Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983) (“[A]n
[IJ’s] decision denying the motion for continuance will not be reversed unless the
alien establishes that [the] denial caused him actual prejudice.”). At that hearing,
Kemi submitted more than fifty pages of evidence relating to conditions in
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Ethiopia and Germany, presented detailed testimony about his experiences and
fears regarding both countries, and had his brother testify in support of his claims
of past persecution and fear of future harm.
DENIED.
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