Hassan v. Ashcroft

• Citation: 388 F.3d 661
• Decision Date: 16 November 2004
• Docket Number: No. 03-1004.,03-1004.
• Parties: Abdul Rahman HASSAN, Appellant, v. John ASHCROFT, Attorney General, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

388 F.3d 661

Abdul Rahman HASSAN, Appellant, v. John ASHCROFT, Attorney General, Appellee.

No. 03-1004.

United States Court of Appeals, Eighth Circuit.

Submitted: May 12, 2004.

Filed: November 16, 2004.

Petition for review of order of Board of Immigration Appeals.

COPYRIGHT MATERIAL OMITTED

Counsel who presented argument on behalf of the appellant was Nathan O. Krahn of Minneapolis, Minnesota. Also appearing

on the brief were Sridevi S. Anwar and Marty A. Akkerman.

Counsel who presented argument on behalf of the appellee was Blair T. O'Connor of Washington, D.C. Also appearing on the brief were Peter D. Keisler and Emily Anne Radford.

Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and DORR,¹ District Judge.

DORR, District Judge.

Abdul Rahman Hassan is a citizen of Somalia who entered the United States on or about August 2, 1998 without admission or parole. He petitions for review of an adverse decision of the Board of Immigration Appeals (BIA), which affirmed, without opinion, the decision of an Immigration Judge (IJ). The BIA denied Hassan's application for asylum, withholding of removal, and protection under the Convention Against Torture. Because substantial evidence supports the IJ's findings, we affirm.

I. Factual Background

Hassan was born in Mogadishu, Somalia on March 16, 1960. He fled Somalia and lived in Ethiopia and Djibouti before entering the United States in August 1998. On November 20, 1998, the Immigration and Naturalization Service² filed a Notice to Appear in immigration court, wherein he was charged with being an alien present in the United States without being admitted or paroled. See Immigration and Nationality Act (INA) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). Hassan appeared at the hearing, conceded deportability, but sought political asylum, which the immigration judge also considered as a petition for withholding of removal, and protection under the Convention Against Torture. Hassan also requested, in the alternative, voluntary departure.

At the hearing, Hassan testified that he was a member of the Midgan clan in Somalia. Hassan testified that the previous ruler of Somalia, Siad Barre, had elevated the status of the Midgans and provided them patronage. When the Siad Barre government was overthrown, members of other clans began to harass and kill Midgan members, believing them still to be loyal to Siad Barre. Hassan further testified that in January 1991, during the Somali civil war, three men, dressed in military uniforms and members of the ruling Hawiye clan, forcefully entered his home and took him into custody, believing Hassan to be a Midgan supporting Siad Barre. During his three months of captivity, Hassan testified, he was denied food, water, and shelter, threatened, and assaulted. He escaped captivity and fled to a refugee camp in Ethiopia. It was there that he learned that, during his captivity, his wife had been killed back in Somalia. Hassan believed that she was killed because she refused to work in a Hawiye hospital, although he could not be sure of the manner or cause of her death. Hassan's younger brother was also killed in Mogadishu by the ruling clan. Hassan was reunited with his children and his mother in Ethiopia. Hassan testified that the remaining members of his family are in refugee camps in nearby African countries or have sought asylum elsewhere.

Also testifying at the hearing was another Somali who had previously been granted asylum, Mohamed Goran. Goran testified that he knew Hassan from a refugee camp in Ethiopia. Goran further stated that Hassan was of the Midgan clan and that Hassan taught Goran's children in the camp.

The Immigration Judge denied Hassan's application for asylum and withholding of removal and request for relief under the Convention Against Torture. The IJ found little evidence supporting Hassan's claim that he was a Midgan. The IJ discounted Mr. Goran's testimony regarding Hassan's clan membership. Even assuming Hassan's Midgan membership, the IJ found that he did not suffer past persecution as defined for asylum purposes. The IJ characterized the violence inflicted upon Hassan as incidental to a civil war rather than being directed at him because of his clan membership.

The IJ also found that Hassan did not have a well-founded fear of future persecution. In the IJ's opinion, Hassan could return to an area of Somalia of relative peace and where Hassan would not suffer persecution. The IJ also cited to the State Department's Asylum Profile, which indicated that there was no evidence of systematic retaliation against Midgan members, although there might be retaliation against members of the Siad Barre government. The IJ therefore held that Hassan failed to establish the clear probability of persecution or torture if returned to Somalia necessary for withholding of removal. Finally, the ALJ held that, because Hassan had not been continuously physically present in the United States for one year prior to the issuance of the Notice to Appear, he could not be granted voluntary departure. See INA § 240B(b)(1)(A), 8 U.S.C. § 1229c(b)(1)(A).

The Bureau of Immigration Affairs affirmed the decision of the IJ without opinion. Hassan now challenges that decision, arguing that he does have a well-founded fear of future persecution based on his membership in the Midgan clan requiring a grant of asylum, that he qualifies for withholding of deportation because he has shown a clear probability that he will face persecution if returned to Somalia, and that he will more likely than not be tortured if removed and so should not be removed pursuant to the Convention Against Torture.

II. Standard of Review

This Court will affirm the decision of the IJ and the BIA if it is supported by substantial evidence on the administrative record as a whole. Rife v. Ashcroft, 374 F.3d 606, 610 (8th Cir.2004). The petition for review must be denied "if the BIA's finding is supported by `reasonable, substantial, and probative evidence of the record considered as a whole.'" Regalado-Garcia v. INS, 305 F.3d 784, 787 (8th Cir.2002) (quoting Menjivar v. INS, 259 F.3d 940, 941 (8th Cir.2001) (further quotations and citations omitted)). The BIA's legal determinations are subject to de novo review, "`according substantial deference to the [BIA's] interpretation of the statutes and regulations it administers."' Regalado-Garcia, 305 F.3d at 787 (quoting Tang v. INS, 223 F.3d 713, 718-19 (8th Cir.2000)). However, this Court must affirm if substantial evidence supports the decision as a whole, even if substantial evidence may support other alternative holdings. See Arkansas v. Oklahoma, 503 U.S. 91, 113, 112 S.Ct. 1046, 1060, 117 L.Ed.2d 239 (1992) (discussing a court's deference to agency determinations generally). We may not reverse merely because we would have decided the case differently. Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998).

III. Analysis

A. Asylum

Section 208 of the Immigration and Nationality Act gives the Attorney General discretion to grant asylum to an alien who is a "refugee." INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). "A `refugee' is an alien who is unable or unwilling to return to his country of origin `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.'" Rife, 374 F.3d at 610 (quoting INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)). If an alien establishes past persecution, he is entitled to a presumption of a well-founded fear of persecution, which the Attorney General may rebut by proving either a fundamental change in circumstances in the petitioner's country of nationality or that the petitioner could reasonably relocate to another part of his country of nationality under all of the circumstances. Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1045 (8th Cir.2004) (quoting 8 C.F.R. § 280.13(b)(1)(i)(A) & (B)). Without proof of past persecution, the petitioner must demonstrate that fear of future persecution is subjectively and objectively reasonable; that is, a petitioner must establish with credible evidence that he genuinely fears persecution and show through credible, direct, and specific evidence that a reasonable person in his position would fear persecution. Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997).

"An asylum applicant is not obliged to show conclusively why persecution has occurred or may occur." In Re S-P-, 21 I. & N. Dec. 486, 489 (BIA 1996). However, there must be some showing that past persecution was on account of one of the five protected grounds. See id. at 490 "[A]n asylum applicant `bear[s] the burden of establishing facts on which a reasonable person would fear that the danger arises on account of' [one of the five protected grounds]." (quoting Matter of Fuentes, 19 I & N Dec. 658, 662 (BIA 1988)); Fisher v. INS, 291 F.3d 491, 497 (8th Cir.2002) (noting that "persecution" under the Act only includes persecution "on account of" one of the categories delineated by the Act). The fear of harm "`arising from civil strife or anarchy'" does not constitute "persecution" for purposes of the Act. Miranda v. INS, 139 F.3d 624, 627 (8th Cir.1998) (quoting In re Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985)).

To overturn the IJ's adverse finding that Hassan does not qualify for asylum, Hassan "bears the heavy burden of showing that his evidence `was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.'" Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th Cir.2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). In this case, the IJ discounted both that Hassan was a member of the Midgan clan and that he had a well-founded fear of persecution.

Regarding the first issue, the IJ discounted the testimony of Mohamed Hassan Goran, who testified at the hearing regarding Hassan's clan membership. Mr. Goran testified that he...