Abdifatah Gaas Qorane v. William Barr, U. S. Atty
Opinion
The federal government denied Abdifatah Gaas Qorane various forms of immigration relief after concluding he would not be persecuted or tortured in his home *908 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. ----,
II.
Qorane argues the BIA erred in its initial decision by denying him asylum, withholding
*909
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."
The BIA denied all three forms of relief. We review its decision
1
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
,
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
,
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
,
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.
,
We have previously treated death threats as a question of future-not past-persecution.
See
Bernal-Garcia v. INS
,
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
,
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
,
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
*911
likely than not government actors would torture him in Somalia. Qorane presents only general evidence about conditions there. Generalized country evidence tells us little about the likelihood state actors will torture any particular person, including Qorane.
Chen v. Gonzales
,
Even if that weren't true, Qorane has an independent problem. Torture includes only "pain or suffering ... inflicted by or ... with the consent or acquiescence of a public official or other person acting in an official capacity."
In any case, Qorane offered no evidence supporting his bald assertion there "was not really a government at the time." Nor did he offer evidence public officials would become "aware[ ]" of, and then "acquiesce[ ]" in, Ayr members' violence.
III.
Qorane also argues the BIA abused its discretion by denying his motion to reopen his removal proceedings. Again, no.
The Immigration and Nationality Act carefully limits an alien's ability to bring motions to reopen. Generally, an alien may file only one motion to reopen and must do so "within 90 days of the date of entry of a final administrative order of removal." 8 U.S.C. § 1229a(c)(7)(A), (c)(7)(C)(i) ;
accord
There are two potential exceptions. First, the BIA may "reopen or reconsider on its own motion any case in which it has rendered a decision" at any time.
A.
The BIA refused to reopen the proceedings
sua sponte
. We lack jurisdiction to review that decision.
See
*912
Enriquez-Alvarado v. Ashcroft
,
B.
But we can review the BIA's decision not to reopen based on changed country conditions.
Mata v. Lynch
, --- U.S. ----,
First, Qorane argues the BIA applied the wrong legal standard to his motion to reopen. The BIA required him to "demonstrat[e] that the new evidence offered would likely change the result in the case." But we previously have used the exact same standard (albeit in unpublished opinions) when considering BIA denials of motions to reopen.
See, e.g.
,
Htwe v. Holder
,
We're in good company. Our sister circuits routinely require the same thing. The First Circuit, for example, says "[e]vidence is not material unless it has some impact on the outcome of a petitioner's underlying case."
Perez v. Holder
,
Second, Qorane argues conditions have materially changed for the Ashraf in Somalia because of the rise of the jihadist terrorist group, al-Shabaab. He relies principally on an affidavit he solicited from a PhD student at George Mason University. It details how al-Shabaab sometimes targets the Ashraf (but not on account of their clan status) and recently detonated a massive car bomb (but targeting no one in particular). The BIA properly concluded this was evidence of much of the same ongoing "civil strife" in Somalia that Qorane had shown originally.
Hallman v. INS
,
IV.
Last of all, Qorane argues the BIA abused its discretion by denying his motion to reconsider its decision denying his motion to reopen. To prevail, Qorane needed to "identify a change in the law, a misapplication of the law, or an aspect of
*913
the case that the BIA overlooked."
Zhao
,
* * *
The petition for review is DENIED.
In some instances, Qorane complains about what the
IJ
did. But we have authority to review only the
BIA's
decision because only that decision constitutes final agency action.
Castillo-Rodriguez v. INS
,
Qorane insists the Supreme Court established a 10% test for demonstrating such a fear in asylum cases when it stated an alien may qualify if there is "a 10% chance of being shot, tortured, or otherwise persecuted."
INS v. Cardoza-Fonseca
,
Reference
- Full Case Name
- Abdifatah Gaas QORANE, Also Known as Qorane Abdifatah Gaas, Petitioner, v. William P. BARR, U.S. Attorney General, Respondent.
- Cited By
- 144 cases
- Status
- Published