Mohamed v. Ashcroft

• Decision Date: 10 February 2005
• Docket Number: No. 03-2270.,03-2270.
• Citation: 396 F.3d 999
• Parties: Zahra A. MOHAMED; Shukri Salah; Abdulkadir Salah; Hamida Salah; Abdi Salah, Petitioners, v. John ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

396 F.3d 999

Zahra A. MOHAMED; Shukri Salah; Abdulkadir Salah; Hamida Salah; Abdi Salah, Petitioners, v. John ASHCROFT, Attorney General of the United States of America, Respondent.

No. 03-2270.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2004.

Filed: February 10, 2005.

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David L. Wilson, argued, Minneapolis, Minnesota, for petitioners.

Daniel E. Goldman, argued, U.S. Department of Justice, Washington, DC (Peter D. Keisler, Emily Anne Radford, and Blair T. O'Connor, on the brief), for respondent.

Before LOKEN, Chief Judge, MAGILL, and BENTON, Circuit Judges.

MAGILL, Circuit Judge.

Zahra Mohamed and four of her children,¹ natives of Somalia, petition for review of an order of the Board of Immigration Appeals ("BIA") affirming without opinion the Immigration Judge's ("IJ") denial of their applications for asylum and withholding of removal. Mohamed argues that the IJ erred by: (1) concluding that Mohamed did not suffer past persecution on account of her Benadir clan membership; (2) finding her testimony regarding her husband's work for Siad Barre to be incredible; and (3) finding that she did not have a well-founded fear of future persecution on account of clan membership because she could relocate within Somalia. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

I.

After spending several years in a Kenyan refugee camp, Mohamed and her children entered the United States without inspection through Mexico on or about October 7, 1996. On June 23, 1997, Mohamed filed an affirmative asylum application with the asylum office in Chicago, listing five of her children as beneficiaries. An asylum officer conducted an interview with Mohamed and referred the petition to the immigration court. The Immigration and Naturalization Service ("INS")² initiated removal proceedings through a Notice to Appear, which charged that Mohamed was removable from the United States as an alien who entered without inspection. See 8 U.S.C. § 1182(a)(6)(A)(i). Mohamed conceded removability, but she contended that she was eligible for asylum and withholding of removal.

Ten days before the final removal hearing, Mohamed's youngest daughter, Shukri, filed a defensive asylum application on her own behalf, alleging her fear of undergoing female genital mutilation ("FGM") in Somalia. The IJ found that Shukri's asylum application was time barred, but he granted withholding of removal because he found it more likely than not that she would be forced to undergo FGM in Somalia. Mohamed and her other children, however, cannot receive relief as derivatives of Shukri. See 8 C.F.R. § 208.21. Mohamed declined to designate a country of removal, so the IJ designated Somalia, the country of which Mohamed and her children are citizens, pursuant to 8 U.S.C. § 1231(b)(2)(D).

Siad Barre ruled Somalia as a dictator for twenty-one years. A December 1990 uprising was eventually successful in overthrowing his regime, and Siad Barre fled Mogadishu, the Somali capitol, in 1991. In her asylum application, Mohamed stated that in 1978, her husband became a full-time speech writer who would travel with Siad Barre. She stated that her husband "was on TV a lot and in the newspaper," and that "[h]e was with the president all of the time." R. at 360. At the removal hearing, she testified that her husband's job was "[n]ot [a] high position. [He][j]ust used to work in the offices." R. at 112. When asked why her husband would have been on television, she stated, "I don't know, he just used to help him and as a correspondent and writing reports for him and something like that." R. at 113.

Mohamed alleged that on December 29, 1990, members of the United Somali Congress ("USC") entered her home in a Mogadishu neighborhood, looted it, and attacked her. In her asylum application, Mohamed explained that the USC was looking for her husband, Nur Salah. They asked, "[W]here is Nur Salah the blood sucker[?]." R. at 361. When they did not find her husband, "they took some goods like gold and clothing and cash." R. at 361. Mohamed stated that the USC left her house "to go to other areas where there was fighting going on" and that "[t]here was gun shooting going on all over near our area." R. at 361. At the removal hearing, Mohamed testified that the USC attacked anyone in the neighborhood who they thought had money or things they could take. R. at 119. After the USC attacked Mohamed and looted her home, they returned and her killed her oldest son. Mohamed and her family fled Mogadishu for a refugee camp in Kenya where they lived until 1996. Mohamed then left Kenya with five of her children and entered the United States.

The IJ noted a lack of credible evidence that Mohamed was a member of the Benadir clan. However, he found clan membership to be sufficiently established in light of the difficulty of obtaining evidence from a country that was in a state of anarchy when she fled, and he found that the Benadir clan was a "particular social group" within the meaning of 8 U.S.C. § 1101(a)(42). Even so, the IJ found that, at best, Mohamed's house was attacked as part of the generalized looting and banditry that swept Mogadishu in early 1991 and not on account of her membership in the Benadir clan.

The IJ found Mohamed's testimony about her husband's position in the Siad Barre government to be incredible, and she provided no documentary evidence to compensate for the lack of credibility. Thus, the IJ found that Mohamed failed to prove she was persecuted on account of a political opinion imputed from her husband's employment.

The IJ also found that Mohamed failed to proffer any evidence that she would be persecuted on account of her clan membership in a nonhostile location within Somalia. Thus, she did not have a well-founded fear of future persecution on a country-wide basis.

II.

Where, as here, the BIA affirms the IJ's decision without opinion, we review the IJ's decision as the final agency action. Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir.2003). We will affirm the IJ's findings regarding past persecution and fear of future persecution if they are supported by substantial evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Francois v. INS, 283 F.3d 926, 931 (8th Cir.2002). Under this standard, an IJ's determination that an alien is not eligible for asylum must be upheld unless "the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. We will defer to an IJ's credibility finding when it is supported by a specific, cogent reason for disbelief. Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002).

The Attorney General may grant asylum to an alien who is physically present in the United States if the alien meets the statutory definition of a refugee. 8 U.S.C. § 1158(a). A refugee is an individual who is unable or unwilling to return to his or her 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." Id. § 1101(a)(42)(A).

To establish eligibility for asylum, the alien carries the burden of proving past persecution or a well-founded fear of future persecution. 8 C.F.R. § 208.13(a). An asylum applicant can establish a well-founded fear by showing that a reasonable person in his or her circumstances would fear persecution for one of the five specified grounds. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

A.

Mohamed first argues that the IJ erred in finding she did not suffer past persecution on account of her Benadir clan membership. To be eligible for asylum, the harm suffered must be particularized to the individual rather than suffered by the entire population. See Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir.1992). Harm arising from general conditions such as anarchy, civil war, or mob violence will not ordinarily support a claim of persecution. See Velasquez v. Ashcroft, 342 F.3d 55, 58 (1st Cir.2003); Ochave v. INS, 254 F.3d 859, 865 (9th Cir.2001); Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.2000); M.A. v. INS, 899 F.2d 304, 314-15 (4th Cir.1990) (en banc). Although an alien cannot be expected to provide direct proof of his persecutor's motive, "since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial." Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. 812.

Mohamed believes that she was unfairly required to prove that the USC had "some degree of intent" to harm her on account of a protected ground. See Matter of Rodriguez-Majano, 19 I. & N. Dec. 811, 815 (BIA 1988). Mohamed argues that the "some degree of intent" standard is more vigorous than the "at least in part" standard used by other courts. See Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.2003) ("A persecutor may have multiple motivations for his or her conduct, but the persecutor must be motivated, at least in part, by one of the enumerated grounds."); Girma v. INS, 283 F.3d 664, 667 (5th Cir.2002); Borja v. INS, 175 F.3d 732, 736 (9th Cir.1999).

Mohamed feels that the IJ's use of the language "some degree of intent" rather than "at least in part" requires her to prove that the persecutor's "primary purpose" was to persecute her on account of a protected ground. Contrary to Mohamed's argument, the IJ recognized that a persecutor can have mixed motives and that persecution can occur in the context of civil strife. R. at 56 (citing Matter of Villalta, 20 I. & N. Dec. 142 (BIA 1990)). We see no difference between the "some degree of intent" standard and the "at least in part" standard. Neither standard requires the alien to show her persecutor's primary motive, and both standards are consistent with the Supreme Court's requirement that an alien...