Abdifatah Gaas Qorane v. William Barr, U. S. Atty

Case: 17-60394 Document: 00514888763 Page: 1 Date Filed: 03/26/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 26, 2019

No. 17-60394

Lyle W. Cayce

Clerk

ABDIFATAH GAAS QORANE, also known as Qorane Abdifatah Gaas,

Petitioner,

v.

WILLIAM P. BARR, U.S. Attorney General,

Respondent.

Petitions for Review of an Order of the

Board of Immigration Appeals

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

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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.

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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 (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 (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 (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).

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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, 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.

1 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, 929 F.2d 181, 183 (5th Cir. 1991). When the BIA incorporates an

IJ’s reasoning by reference, the IJ’s reasoning is relevant only because it explains the BIA’s

decision. See, e.g., Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (per curiam). Here, the BIA

issued its own decision, so that is what we review.

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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

2 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, 480 U.S. 421, 440 (1987).

The statutory test is whether an alien has a “well-founded fear” of persecution. 8 U.S.C.

§ 1101(a)(42)(A). Cardoza-Fonseca simply tells us we may gauge the well-foundedness by

looking to the likelihood an alien will suffer harm. And that likelihood need not be “more

likely than not” (as in the withholding and CAT contexts); a “reasonable possibility” suffices.

480 U.S. at 431, 440. We doubt the Court was attempting to quantify the precise level of risk

(and the precise degree of severity) necessary to demonstrate what is reasonably possible in

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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 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

every case. But the important thing is Qorane has not met even Cardoza-Fonseca’s standard.

The difficulty of gauging the likelihood of some type of violence makes it all the wiser to

respect the BIA’s factual determinations on substantial-evidence review.

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particular person, including Qorane. Chen v. Gonzales, 470 F.3d 1131, 1140–

41 (5th Cir. 2006). And the incidents specific to him discussed above do not

even rise to the level of persecution. It follows a fortiori they do not constitute

torture. See Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002) (The “CAT does

not require persecution, but the higher bar of torture.”).

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.”

8 C.F.R. § 208.18(a)(1); see Negusie v. Holder, 555 U.S. 511, 536 n.6 (2009)

(Stevens, J., concurring in part and dissenting in part). Qorane says Ayr clan

members qualify as such “public official[s]” because the Ayr militia was the

only authority (and hence the de facto government) at the time of the donkey

incident. He cites no case cloaking private actors in government garb under

such circumstances. To the contrary, a power vacuum does not make private

conduct public because warring clans do not exercise “official power.” D-

Muhumed v. U.S. Attorney Gen., 388 F.3d 814, 820 (11th Cir. 2004).

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. 8 C.F.R. § 208.18(a)(7); see Iruegas-Valdez v. Yates, 846

F.3d 806, 812 (5th Cir. 2017). He suggests the Somali government may be

unable to protect him. But a government’s inability to protect its citizens does

not amount to acquiescence. See Zaldana Menijar v. Lynch, 812 F.3d 491, 501–

02 (6th Cir. 2015).

III.

Qorane also argues the BIA abused its discretion by denying his motion

to reopen his removal proceedings. Again, no.

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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

8 C.F.R. § 1003.2(c)(2). Qorane’s motion to reopen was late.

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. 8 C.F.R. § 1003.2(a). An IJ may do the same thing. Id.

§ 1003.23(b)(1). To justify exercising this “sua sponte” authority to reopen, the

BIA generally requires an alien to point to exceptional circumstances. In re J-

J-, 21 I. & N. Dec. 976, 984–85 (B.I.A. 1997); see Chehazeh v. Attorney Gen.,

666 F.3d 118, 128–29 (3d Cir. 2012). Second, the time and number limitations

do not apply to motions to reopen to seek asylum or withholding “based on

[evidence of ] changed country conditions” if that evidence “is material and was

not available and would not have been discovered or presented at the previous

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). As

explained below, neither exception helps Qorane.

A.

The BIA refused to reopen the proceedings sua sponte. We lack

jurisdiction to review that decision. See Enriquez-Alvarado v. Ashcroft, 371

F.3d 246, 249–50 (5th Cir. 2004). Because the federal regulations governing

sua sponte authority provide “no meaningful standard against which to judge

the agency’s exercise of discretion,” Heckler v. Chaney, 470 U.S. 821, 830

(1985), the decision to refrain from exercising that authority is “committed to

agency discretion by law,” 5 U.S.C. § 701(a)(2); see Tamenut v. Mukasey, 521

F.3d 1000, 1004 (8th Cir. 2008) (en banc) (per curiam) (noting ten circuits

agree). We cannot entertain Qorane’s complaint insofar as he believes the BIA

should have reopened on this basis.

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B.

But we can review the BIA’s decision not to reopen based on changed

country conditions. Mata v. Lynch, 135 S. Ct. 2150, 2154–55 (2015). We review

that decision through a “highly deferential abuse-of-discretion” lens. Zhao, 404

F.3d at 303. We may not grant the petition—even if the BIA erred in denying

reopening—unless the BIA’s decision was “capricious, racially invidious,

utterly without foundation in the evidence, or otherwise so irrational that it is

arbitrary.” Id. at 304 (quotation omitted).

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, 355 F.

App’x 812, 815 (5th Cir. 2009) (per curiam); Jasani v. Reno, 248 F.3d 1138 (5th

Cir. 2001) (per curiam) (unpublished table decision). Today we reiterate that

standard: An alien seeking to reopen must show the “evidence [of changed

country conditions] is material.” 8 U.S.C. § 1229a(c)(7)(C)(ii). That means the

evidence must be likely to change the result of the alien’s underlying claim for

relief.

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, 740 F.3d 57, 62 (1st Cir. 2014); see also Hernandez-Perez v. Whitaker,

911 F.3d 305, 321 (6th Cir. 2018); Mendoza-Ordonez v. Attorney Gen., 869 F.3d

164, 169 (3d Cir. 2017); Wanrong Lin v. Holder, 771 F.3d 177, 182–83 (4th Cir.

2014); Maatougi v. Holder, 738 F.3d 1230, 1240 (10th Cir. 2013); Jiang v. U.S.

Attorney Gen., 568 F.3d 1252, 1256–57 (11th Cir. 2009); Vargas v. Holder, 567

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F.3d 387, 391 (8th Cir. 2009); Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025

(9th Cir. 2008). Therefore, the BIA applied the correct legal standard.

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, 879 F.2d 1244,

1247 (5th Cir. 1989) (per curiam).

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 the case that the BIA overlooked.” Zhao, 404 F.3d at 301. He

arguably did one of those things. Qorane complained—then and now—the BIA

overlooked his CAT claim in its decision denying his motion to reopen. But the

BIA duly corrected that oversight in response to his motion to reconsider:

“While our order mistakenly neglected to specifically mention this claim, the

respondent’s failure to establish material changed conditions requires us to

deny this aspect of his claim as well.” Exactly right. Qorane did not point to

new facts suggesting his fear of persecution was more realistic than it had been

a year before. He certainly did not point to new facts suggesting the Somali

government would single him out for torture.

* * *

The petition for review is DENIED.

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