Zahra A. Mohamed Shukri Salah Abdulkadir Salah Hamida Salah Abdi Salah v. John Ashcroft, Attorney General of the United States of America

Citations: 396 F.3d 999; 2005 U.S. App. LEXIS 2132; 2005 WL 310037Docket: 03-2270

Court: Court of Appeals for the Eighth Circuit; February 10, 2005; Federal Appellate Court

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Zahra Mohamed and her four children, all natives of Somalia, petitioned for review of a Board of Immigration Appeals (BIA) order that upheld an Immigration Judge's (IJ) denial of their asylum and withholding of removal applications. Mohamed contended that the IJ made several errors: 1) incorrectly determining that she did not experience past persecution due to her Benadir clan membership; 2) deeming her testimony about her husband's work for former President Siad Barre as not credible; and 3) concluding that she lacked a well-founded fear of future persecution, as relocation within Somalia was deemed an option. The appeal was submitted on October 21, 2004, and filed on February 10, 2005, with jurisdiction established under 8 U.S.C. § 1252, ultimately resulting in the denial of the petition.

After residing in a Kenyan refugee camp, Mohamed and her children entered the U.S. illegally on October 7, 1996. She filed for asylum with the Chicago office in June 1997, including her children as beneficiaries. The Immigration and Naturalization Service (INS) later initiated removal proceedings against her for entering without inspection, which Mohamed conceded while asserting her eligibility for asylum.

Ten days before her final removal hearing, Mohamed's youngest daughter, Shukri, submitted her own asylum application, expressing fear of female genital mutilation (FGM) in Somalia. Although Shukri's application was deemed time-barred, the IJ granted her withholding of removal due to the likelihood of FGM. However, Mohamed and her other children were not eligible for derivative relief based on Shukri's status.

During the proceedings, the IJ designated Somalia as the country of removal after Mohamed declined to specify an alternative. Mohamed’s asylum application referenced her husband's role as a speechwriter for Siad Barre, who ruled Somalia for 21 years until being overthrown in 1991, but inconsistencies arose regarding the nature and significance of her husband's position.

On December 29, 1990, Mohamed reported that members of the United Somali Congress (USC) invaded her home in Mogadishu, searched for her husband Nur Salah, looted valuables, and assaulted her. Following the attack, the USC subsequently killed her oldest son, prompting Mohamed and her family to flee to a refugee camp in Kenya, where they remained until 1996. She later immigrated to the United States with five children. 

The Immigration Judge (IJ) found insufficient credible evidence of Mohamed's clan membership with the Benadir clan but acknowledged the difficulty of obtaining evidence from a war-torn country. The IJ categorized the Benadir clan as a "particular social group" under U.S. law but concluded that the attack on Mohamed's home was part of broader looting rather than targeted persecution due to her clan. The IJ deemed Mohamed's claims regarding her husband's government role as incredible, lacking supporting documentation, and found no evidence of persecution based on her clan membership in a stable part of Somalia, undermining her assertion of a well-founded fear of future persecution.

The Board of Immigration Appeals (BIA) affirmed the IJ's decision without opinion, leading to judicial review of the IJ's findings as the final agency action. The standard for affirmation requires substantial evidence to support the IJ's conclusions regarding past and future persecution. The IJ's determinations must be upheld unless the evidence is compelling enough that no reasonable factfinder could reach a different conclusion. The Attorney General can grant asylum to individuals who meet the definition of a refugee under U.S. law, which includes those unable or unwilling to return to their home country due to persecution based on specified grounds. The burden of proof lies with the asylum applicant to demonstrate past persecution or a well-founded fear of future persecution.

Mohamed contends that the Immigration Judge (IJ) incorrectly determined she did not experience past persecution due to her Benadir clan membership. For asylum eligibility, the harm must be specific to the individual rather than a general condition affecting the entire population, as established in precedent cases. General violence, such as that stemming from civil war or mob activity, typically does not constitute persecution. Although direct evidence of a persecutor's motive is not required, the individual must present some evidence, either direct or circumstantial.

Mohamed argues she was unfairly held to a higher standard of proving her persecutor’s intent, claiming the IJ's language of "some degree of intent" is stricter than the "at least in part" standard used by other courts. Despite her concerns, the IJ acknowledged that mixed motives could exist and that persecution can occur amidst civil unrest. The IJ found no substantive difference between the two standards, both of which align with the Supreme Court's requirement for demonstrating motive.

The only evidence Mohamed provided was her assertion that her attackers, who lived nearby, were aware of her clan affiliation. The IJ deemed this insufficient, noting that the attacks occurred during a civil war characterized by widespread looting and banditry, indicating a lack of motivation specifically related to clan membership. Additionally, the Country Report corroborated that banditry was rampant in Somalia post-revolt, and Mohamed's neighborhood was diverse, leading to attacks based primarily on perceived wealth rather than clan identity.

The BIA distinguished the current case from Matter of H, where a Somali alien was found persecuted due to clan membership, noting that the alien in that case was a Marehan subclan member and benefitted from this affiliation. State Department reports indicated that the USC targeted identifiable members of the Darood clan and Marehan subclan, leading to significant casualties among Darood individuals in Mogadishu. However, the IJ determined Mohamed, not being part of Siad Barre's subclan, did not demonstrate sufficient evidence of persecution based on her Benadir clan membership. The evidence did not compel a reasonable factfinder to conclude that she was targeted for her clan affiliation, leading to deference to the IJ's ruling.

Mohamed's assertion that she suffered past persecution due to an imputed political opinion based on her husband's alleged role as Siad Barre's speechwriter was also dismissed. The IJ found inconsistencies in her testimony regarding her husband's position, noting her asylum application claimed he was a speechwriter, while her subsequent testimony suggested uncertainty about his job and described it as low-level. Mohamed failed to provide corroborative evidence or a convincing explanation for these discrepancies, and witness testimonies were vague. Despite the USC's claim during a home invasion regarding her husband, the IJ concluded that Mohamed's inconsistent and vague testimony did not establish a link to her husband's political affiliations. Thus, the IJ's findings were upheld.

Mohamed contends that the Immigration Judge (IJ) incorrectly determined that she did not have a well-founded fear of future persecution based on her clan membership, asserting she could safely relocate within Somalia. Under 8 C.F.R. § 208.13(b)(2)(ii), an alien who fails to show past persecution may still qualify for asylum by demonstrating a credible, well-founded fear of future persecution country-wide. Since Mohamed did not establish past persecution, the burden rests on her to prove a future fear of persecution or that relocation would be unreasonable. 

While she presented some evidence, including newspaper articles suggesting that members of the Benadir clan face difficulties relocating, the IJ found this evidence unpersuasive compared to the State Department's reports indicating improved conditions in Somalia. The IJ concluded that substantial evidence supported the finding that Mohamed could safely resettle in a non-hostile region. 

Relocation must be both possible and reasonable, as outlined in 8 C.F.R. § 208.13(b)(2)(ii). Mohamed argued for a remand to the Board of Immigration Appeals (BIA) for a reasonableness determination, citing a precedent case (Hagi-Salad v. Ashcroft) where the IJ failed to assess all relevant factors regarding the reasonableness of relocation. However, the IJ in Mohamed's case definitively stated she did not suffer past persecution, placing the burden on her to prove relocation was unreasonable, which she did not substantiate. Thus, the court declined to remand for a reasonableness determination under 8 C.F.R. § 208.13(b)(3).

The Immigration Judge (IJ) found substantial evidence supporting Mohamed's ineligibility for asylum, which also led to the conclusion that she did not meet the stricter criteria for withholding of removal. The petition was therefore denied. Notably, while Mohamed initially included five children in her application, only four are involved in the appeal, as her second-oldest daughter, Idil Salah, has since received adjustment of status from the Department of Homeland Security. Additionally, any concerns about future persecution based on an imputed political opinion linked to her husband's past work with Siad Barre were deemed not objectively reasonable, as the State Department indicated that only close relatives of Barre and senior officials from his regime would face significant risk. The document also references Section 208.13(b)(3), which outlines considerations for evaluating the potential for serious harm in the applicant’s country, acknowledging that various factors, including civil strife and personal circumstances, may influence the reasonableness of relocation but are not determinative.