Guled v. Mukasey, 07-1681.

Citation515 F.3d 872
Decision Date31 January 2008
Docket NumberNo. 07-2339.,No. 07-1681.,07-1681.,07-2339.
PartiesAbdikadir 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. Abdikadir Abdillahi Guled, Petitioner, v. Michael B. Mukasey, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Herbert A. Igbanugo and Katie A. DeGrio, Minneapolis, MN, for Appellant.

Andrew Oliveira, USDOJ, OIL, Washington, DC, for Appellee.

Before BYE, BEAM, and GRUENDER, Circuit Judges.

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.

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.

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.

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 domes tic 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. 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 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 (BM 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...

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