Qorane v. Barr

• Decision Date: 26 March 2019
• Docket Number: No. 17-60394,17-60394
• Citation: 919 F.3d 904
• Parties: Abdifatah Gaas QORANE, also known as Qorane Abdifatah Gaas, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

919 F.3d 904

Abdifatah Gaas QORANE, also known as Qorane Abdifatah Gaas, Petitioner,

v.William P. BARR, U.S. Attorney General, Respondent.

No. 17-60394

United States Court of Appeals, Fifth Circuit.

FILED March 26, 2019

Matthew Paul Nickson, Houston, TX, for Petitioner.

Jeffery R. Leist, Senior Litigation Counsel, Office of Immigration Litigation, Anthony Cardozo Payne, Assistant Director, Colette Jabes Winston, Esq., U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

ANDREW S. OLDHAM, Circuit Judge:

The federal government denied Abdifatah Gaas Qorane various forms of immigration relief after concluding he would not be persecuted or tortured in his home country of Somalia. Despite Qorane’s requests, the government chose not to revisit that conclusion. He filed a petition for review asking us to revisit it instead. We deny the petition.

I.

On January 14, 2016, Qorane attempted to enter the United States at Brownsville, Texas. The Department of Homeland Security ("DHS") commenced removal proceedings because Qorane did not have valid entry documents. Before an Immigration Judge ("IJ"), Qorane conceded removability. But he applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He argued he would suffer persecution in Somalia because he belonged to a minority clan, the Ashraf.

Qorane testified before the IJ that he was born in Mogadishu in 1988, but his family moved to Qoryoley in 1991. There he later developed a water delivery business. Not every customer paid. When a customer didn’t pay, Qorane would simply cease delivering to his home. One day, a delinquent customer—and member of the dominant Ayr clan—ordered Qorane to continue selling him water. The delinquent customer told Qorane "[i]t’s in your own interests," and "[y]ou know who I am and what I own." When Qorane refused, the customer pulled Qorane from his donkey cart, causing him to bump his hip on a rock. The man then threatened Qorane, saying "if you don’t listen to my orders, I will kill you," and "you will never survive in this city because you are a minority person." Qorane’s mother confronted the customer, but he insisted Qorane "has to take my orders."

"[N]othing else" happened after this incident, and neither Qorane nor his mother reported it to the police. Qorane did not seek medical attention for his hip. Qorane also testified that on prior occasions Ayr customers verbally abused and slapped him. And he said Ayr members of the local militia previously threatened to jail him if he did not pay taxes.

In January 2011, a few weeks after being pulled from his donkey cart, Qorane moved to Uganda. He lived there for four years. During that time, he found a job and got engaged; his fiancée currently lives in Somalia. Then he moved to Angola, where he lived for a little over six months. By his own admission, Qorane made the decision to come to the United States only in late 2015—and apparently after being repeatedly arrested in Angola. He paid a smuggler $3,000 to fly him to Brazil and then to bring him to the United States border.

Based on this testimony, the IJ denied Qorane’s application, and the Board of Immigration Appeals ("BIA") affirmed. Qorane filed a petition for review, followed by a flurry of other motions. First, Qorane moved the BIA to reopen the removal proceedings, but it refused. He filed a second petition for review and moved for a stay of removal. This Court, Circuit Justice Alito, and the Supreme Court all denied a stay. See Qorane v. Sessions , No. 17A980, ––– U.S. ––––, 138 S.Ct. 1584, 200 L.Ed.2d 738 (Apr. 16, 2018). Qorane then moved the BIA to reconsider its denial of his motion to reopen, but it refused. Again Qorane filed a petition for review (his third). Again he moved for a stay. And again this Court, Circuit Justice Alito, and the Supreme Court all denied the stay. See Qorane v. Sessions , No. 17A1425, ––– U.S. ––––, 139 S.Ct. 38, 201 L.Ed.2d 1112 (Aug. 6, 2018). On September 11, 2018, DHS removed Qorane to Somalia. See Gaas v. Joyce , No. 3:18-cv-118, ECF No. 49 (W.D. Tex. Sept. 17, 2018).

II.

Qorane argues the BIA erred in its initial decision by denying him asylum, withholding of removal, and relief under the CAT. To be eligible for the discretionary relief of asylum, Qorane must prove "specific facts sufficient to demonstrate that [he] is a refugee." 8 U.S.C. § 1158(b)(1)(B)(ii). That means showing he was previously persecuted, or has a well-founded fear of future persecution, "on account of ... membership in a particular social group." Id. § 1101(a)(42)(A). To obtain the mandatory relief of withholding of removal, Qorane bears a heavier burden—showing "a clear probability" his "life or freedom would be threatened" in Somalia because of his membership in a particular social group. Id. § 1231(b)(3)(A), (b)(3)(C); INS v. Stevic , 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) ; see 8 C.F.R. § 1208.16. Finally, to obtain relief under the CAT, Qorane’s burden is heavier still. He needs to prove it is "more likely than not" he will be tortured in Somalia. 8 C.F.R. § 208.16(c)(2) ; see 8 U.S.C. § 1231 note (United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture).

The BIA denied all three forms of relief. We review its decision¹ for substantial evidence and reverse only if the evidence is "so compelling that no reasonable fact finder could fail to find the petitioner statutorily eligible for relief." Roy v. Ashcroft , 389 F.3d 132, 138 (5th Cir. 2004) (per curiam) (quotation omitted). Under this standard, all three of Qorane’s arguments—regarding past persecution, future persecution, and torture—fail.

A.

The BIA denied asylum (and therefore withholding) because Qorane failed to establish his previous mistreatment rose to the level of persecution. The record does not compel a different conclusion. Persecution "is an extreme concept that does not include every sort of treatment our society regards as offensive." Arif v. Mukasey , 509 F.3d 677, 680 (5th Cir. 2007) (per curiam) (quotation omitted). Slapping and harassment by majority clan members do not suffice. Nor do mere threats of incarceration. See Mikhael v. INS , 115 F.3d 299, 304 (5th Cir. 1997) (affirming BIA order finding actual detention and beating for three hours was not persecution). It is not even clear these incidents were caused by his clan status or his water-delivery job.

That leaves a single incident over Qorane’s twenty-three years in Somalia—the interaction with the delinquent customer. The shove from the donkey cart and consequent injury to Qorane’s hip don’t suffice. See Eduard v. Ashcroft , 379 F.3d 182, 187–88 (5th Cir. 2004) (being struck on the head with a rock does not qualify as persecution). Qorane didn’t even think the injury was serious enough to seek medical attention.

So he focuses on the customer’s threat to kill him. Qorane relies on one out-of-circuit case holding "[a] credible death threat by a person who has the immediate ability to act on it constitutes persecution." Diallo v. U.S. Attorney Gen. , 596 F.3d 1329, 1333–34 (11th Cir. 2010) (per curiam). But the threat there—that Diallo "would be executed the following day"—was credible because Diallo was "threatened with death by the same soldiers who had already killed his brother." Id. at 1331, 1333. And Qorane’s own testimony distinguishes his case from Diallo . He admitted "it didn’t get to the point that somebody point[ed a] gun at me and said I’m going to kill you."

We have previously treated death threats as a question of future—not past—persecution. See Bernal-Garcia v. INS , 852 F.2d 144, 146–47 (5th Cir. 1988). But even assuming threats can constitute past persecution, threats that are "exaggerated, non-specific, or lacking in immediacy" should not suffice. Corado v. Ashcroft , 384 F.3d 945, 947 (8th Cir. 2004) (per curiam). That’s all we have here. In the short time Qorane was in Somalia after the incident, he had no further conflict with the customer—not even after his mother intervened. And in the context of a business dispute over water delivery, the threat looks even less like a statement of concrete plans to murder Qorane.

B.

The BIA also denied asylum (and therefore withholding) because Qorane failed to prove he had a well-founded fear of future persecution.² Qorane could establish that fear in two ways—by showing others would target him for persecution or by showing a pattern or practice of targeting people like him. Zhao v. Gonzales , 404 F.3d 295, 307 (5th Cir. 2005). He did neither.

First, he rehashes the death threat to suggest he will be targeted. But he offered no evidence to the BIA suggesting the customer—or any other Ayr clan member for that matter—sought him out to make good on the threat in the years since he left the country. That’s the type of evidence we have required for a similar claim before. See Abdel-Masieh v. INS , 73 F.3d 579, 584–85 (5th Cir. 1996).

Second, he argues the 2015 State Department Country Report DHS filed at his hearing shows a pattern or practice of majority clans persecuting the Ashraf. The Report states majority clans frequently attack and harass minority clans. But in a long list of persecuted minority clans, the Report omits any reference to the Ashraf. Qorane also points to a two-page excerpt from an article that does briefly reference the Ashraf. But it’s not clear when Qorane first provided the article to the BIA. The agency never discussed it, perhaps because it’s not properly in the record. In any case, it hardly establishes a present-day pattern or practice of persecution. It says the Ashraf became "targets for human rights abuses" after "the civil conflicts of the 1990s," but that they since "have achieved political influence and success."

C.

Finally, the BIA denied CAT relief because Qorane failed to prove it was more likely than not...