Ahmed v. Gonzales

• Decision Date: 02 November 2006
• Docket Number: No. 05-2071.,05-2071.
• Parties: Nuradin AHMED, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.3d 669

Nuradin AHMED, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 05-2071.

United States Court of Appeals, Seventh Circuit.

Argued January 17, 2006.

Decided November 2, 2006.

E. Dennis Muchnicki (argued), Dublin, OH, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Jennifer M. Dixton (argued), Department of Justice Antitrust Division, Appellate Section, Washington, DC, for Respondent.

Before BAUER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Nuradin Ahmed ("Ahmed") is a 33-year-old native of Somalia who entered the United States under false pretenses. When the government placed him in removal proceedings, Ahmed requested political asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). An immigration judge ("IJ") denied his requests, and the Board of Immigration Appeals ("BIA") affirmed without an opinion. Ahmed has petitioned us to review his case.

In his petition for review, Ahmed challenges only the BIA's determination that he is not eligible for asylum. He raises three arguments: that he proved past persecution, was held to an improper burden of proof on his future persecution claim, and proved a well-founded fear of future persecution. The last two involve the same inquiry. Ahmed is not arguing the IJ actually applied the wrong legal burden; rather, he is arguing that he proved his persecution claim and only an improperly harsh view of the burden of proof could have defeated it. Because the IJ's conclusion that Ahmed did not suffer past persecution and has no well-founded fear of future persecution is supported by substantial evidence, we deny Ahmed's petition for review.

I. Background

Somalia is a land of clans and Ahmed is a member of the Midgan, a minority clan considered to be among the lowest social classes. BUREAU OF DEMOCRACY, HUMAN RIGHTS & LABOR, U.S. DEP'T OF STATE, SOMALIA: PROFILE OF ASYLUM CLAIMS AND COUNTRY CONDITIONS 17 (Mar.2000). At least some of the animosity towards the Midgan stems from their status during the rule of Siad Barre (1969-1991). Despite the Midgan's traditionally marginalized status, Barre elevated a number of Midgan to important government posts. When his government was overthrown in 1991 and the country plunged into civil war, Barre's Midgan supporters were targeted for revenge. Id. Ahmed, however, was never specifically targeted or physically harmed — he was not identified as a supporter of Barre — and there is no evidence that any of his family members were physically harmed because they were Midgan.¹

Still, Ahmed has seen his share of the civil unrest that has plagued Somalia since the fall of the Barre government. Once, in the early years of Somalia's civil war, Ahmed was riding on a bus carrying passengers of different clans when the bus was attacked by armed men. Though he could not be sure, Ahmed believed the attackers to be Hawiye clan members. Ahmed escaped unharmed, but he believes some of the passengers on the bus may have been killed. Ahmed also lost his job as a barber's assistant after the collapse of Barre's government. From 1992 to 1999, Ahmed lived what can be described as a nomadic life, traveling between regions of Somalia and Ethiopia picking up odd jobs.

Ahmed married a woman from the Akishu clan in 1997, but because Midgan are not supposed to marry outside their clan, his wife's extended family harassed him and tried to physically attack him. His wife's immediate family defended him, however, intervening whenever the extended family bothered him. Ahmed was never physically harmed by his wife's relatives. He says he had to leave several areas, including Mado Weyne (in the west) and Hargeysa (in the northwest), because of the way Midgan were perceived. Eventually Ahmed concluded that he could find no safe place to live in Somalia and made his way to the U.S., arriving here in 2000 and attempting entry by using false documents.

The United States initiated removal proceedings against Ahmed. He conceded removability, but sought political asylum, withholding of removal, and protection under the CAT. In March 2001, following a hearing, the IJ denied all forms of relief. The IJ concluded Ahmed is not eligible for political asylum because he is not a "refugee" within the meaning of 8 U.S.C. § 1101(a)(42)(A). The IJ also denied Ahmed's request for withholding of removal and protection under the CAT, both of which carry higher burdens of proof. The BIA affirmed without opinion in December 2002.

Ahmed's lawyer then filed a motion to reconsider instead of the petition for review he should have filed. The motion to reconsider did not stop the clock for requesting review in this court. By the time the BIA denied the motion to reconsider, it was too late for Ahmed to seek review on the merits. Instead, he could challenge only the denial of the motion for reconsideration. This court denied his petition to review the denial of his motion for reconsideration. Ahmed then obtained a new lawyer who filed a motion to reopen with the BIA on the ground that Ahmed's first lawyer was ineffective. The BIA granted the motion and reissued its opinion. Ahmed seeks review once again, this time on the merits.

II. Discussion

Political asylum is a two-step process: first, the IJ must make the factual determination that the alien is a refugee as defined by 8 U.S.C. § 1101(a)(42)(A), and then the IJ makes a discretionary determination whether to grant asylum to that refugee. 8 U.S.C. § 1158(b)(1); see also, e.g., Ali v. Ashcroft, 394 F.3d 780, 784-85, 791 (9th Cir.2005). A refugee is defined as one who is either unable or unwilling to return to his native country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1).

The persecution ground asserted here is Ahmed's membership in a particular social group, the Midgan. The government does not dispute that Ahmed is a Midgan and that his clan membership is membership in a social group for asylum purposes. See In re H, 21 I & N Dec. 337, 342-43 (BIA 1996) (recognizing that membership in a Somali clan is membership in a particular social group for asylum purposes). The IJ concluded Ahmed was not a refugee — he had not been persecuted in the past nor had a well-founded fear of persecution if returned to Somalia — and so was not eligible for asylum. The BIA summarily affirmed the ruling, which makes the IJ's ruling the final agency decision. 8 C.F.R. § 1003.1(e)(4)(ii); Feto v. Gonzales, 433 F.3d 907, 911 (7th Cir.2006).

Ahmed is now battling uphill. We review his asylum claim for substantial evidence, which is to say that if, after considering the whole record, we find "reasonable, substantial, and probative evidence" supporting the BIA's decision, we must affirm. Feto, 433 F.3d at 911 (quotations omitted). Only if the record compels the conclusion that Ahmed established his persecution claim will we overturn the agency's decision. 8 U.S.C. § 1252(b)(4)(B); Feto, 433 F.3d at 911. A simple difference of opinion will not suffice. Capric v. Ashcroft, 355 F.3d 1075, 1086 (7th Cir.2004).

A. Past Persecution

One way for Ahmed to establish that he is a refugee and thus is eligible for asylum is to show that he is the victim of past persecution because of his membership in the Midgan clan. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b)(1). Persecution is not so broad a concept as to encompass all that we regard as "unfair, unjust, or even unlawful or unconstitutional." Sharif v. INS, 87 F.3d 932, 935 (7th Cir.1996) (quotations omitted). Persecution involves harms that go beyond mere harassment; it results from more than simply "unpleasant or even dangerous conditions in [the applicant's] home country." Nakibuka v. Gonzales, 421 F.3d 473, 476 (7th Cir.2005). Persecution inflicts substantial harm or suffering, Sharif, 87 F.3d at 935, but it need not be life-threatening or freedom-threatening, Koval v. Gonzales, 418 F.3d 798, 805-06 (7th Cir.2005).

Included within the contours of persecution are "detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, torture," or conduct that threatens any of these harms. Capric, 355 F.3d at 1084 (quotations omitted). Economic harm, too, may be persecution if it is deliberately imposed as a form of punishment and it results in sufficiently severe deprivations. Id.; Borca v. INS, 77 F.3d 210, 216 (7th Cir.1996); Sharif, 87 F.3d at 935. General conditions of hardship that affect entire populations, however, are not persecution. Capric, 355 F.3d at 1084. Instead, to show past persecution Ahmed must show he was personally persecuted on account of his Midgan clan membership. 8 C.F.R. § 208.13(b)(1).

The record does not compel the conclusion that Ahmed suffered past persecution. Ahmed points to three incidents, but none rises to the level of persecution. First, Ahmed claims the bus attack threatened his life. This attack, however, did not occur because of Ahmed's membership in the Midgan clan. Indeed, Ahmed conceded that members of various clans were riding the bus at the time it was ambushed and that the attack was an incident of the general Somalian civil war. The bus attack was violent and threatened Ahmed's safety, but it had nothing directly to do with his being Midgan.

Second, Ahmed claims the threats of physical harm he received from his wife's extended family constitute persecution. But he was never actually harmed, and it is not apparent that any of the threats escalated beyond harassment. Moreover, Ahmed's immediate in-laws protected him from the extended family members who threatened him. In short, there is no indication that Ahmed's wife's relatives did anything but verbally threaten him. See Ahmed v. Ashcroft, 348 F.3d 611, 616 (7th...