Ahmed Mohamed v. William P. Barr ( 2020 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 19-3356
    ___________________________
    Ahmed Abdulkadir Mohamed
    Petitioner
    v.
    William P. Barr, Attorney General of the United States
    Respondent
    ____________
    Petition for Review of an Order of the
    Board of Immigration Appeals
    ____________
    Submitted: October 22, 2020
    Filed: December 23, 2020
    ____________
    Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
    ____________
    SHEPHERD, Circuit Judge.
    Ahmed Mohamed, a native and citizen of Somalia, petitions for review of an
    order of the Board of Immigration Appeals (BIA) upholding the decision of an
    immigration judge (IJ), which denied Mohamed’s motion to reopen removal
    proceedings based on changed country conditions. For the following reasons, we
    deny the petition for review.
    I.
    Mohamed was admitted to the United States as a conditional lawful permanent
    resident on December 26, 2001, based on his marriage to a United States citizen.
    That status was terminated on April 6, 2006, because Mohamed failed to appear for
    an interview, which was scheduled for the purpose of removing the conditions on
    his permanent residence. On August 13, 2007, the Department of Homeland
    Security (DHS) initiated removal proceedings against Mohamed based on the
    termination of his lawful status. Mohamed failed to appear for his first scheduled
    hearing, but an IJ found inadequate proof of service and administratively closed the
    proceedings. DHS moved to recalendar the proceedings, and a master calendar
    hearing (a preliminary hearing for removal proceedings) ultimately took place on
    September 21, 2011. At that hearing, the IJ ordered Mohamed removed in absentia
    based on his failure to appear at the prior hearing. On January 10, 2017, Mohamed
    filed a motion to reopen and rescind the in absentia order of removal. The IJ denied
    the motion, and Mohamed did not appeal the decision to the BIA.
    On August 2, 2018, more than seven years after the 2011 final order of
    removal, Mohamed filed a second motion to reopen and sought asylum; withholding
    of removal; and protection under the Convention Against Torture (CAT). Mohamed
    sought this relief based on changed country conditions in Somalia: an expressly
    stated exception to the general 90-day time frame to file a motion to reopen removal
    proceedings. See 8 U.S.C. § 1229a(c)(7)(C). Mohamed alleged that he would be
    targeted by al-Shabaab and ISIS-Somalia because of his opposition to the
    establishment of an authoritarian state based on Sharia law; his religion as a
    moderate Muslim who opposes the extreme views held by both groups; and his
    perceived status as an American or Americanized Somali. He argued that he would
    be readily identified as an Americanized Somali due to his presence on Immigration
    and Customs Enforcement’s (ICE) failed December 2017 repatriation flight in which
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    ICE attempted to remove 92 Somalis from the United States.1 Mohamed further
    alleged that al-Shabaab had more recently infiltrated the Somali government and had
    the increased capacity and power to carry out its threats towards individuals like
    Mohamed.
    On April 24, 2019, the IJ denied Mohamed’s motion to reopen in a written
    decision.2 The IJ first discussed the various bars that Mohamed faced: the departure
    bar, under 
    8 C.F.R. § 1003.23
    (b)(1); and the time and number bars, under 8 U.S.C.
    § 1229a(b)(5)(C), (c)(6), (c)(7), and the accompanying federal regulations.3 The IJ
    found that Mohamed’s motion was barred by each of the provisions. The IJ then
    moved on to Mohamed’s claim of changed country conditions, recognizing that if
    sufficiently established, the time and numerical bars would not apply. The IJ
    determined that the conditions in Somalia had not materially changed from the date
    of Mohamed’s 2011 removal order; that al-Shabaab was participating in the same
    type of violence prior to 2011 as Mohamed had alleged in his motion; that
    al-Shabaab had previously garnered significant governmental power; and that
    1
    We detailed the events of this incident in Shire v. Barr, 
    967 F.3d 722
    , 724 n.1
    (8th Cir. 2020).
    2
    Mohamed’s motion was originally considered by a separate IJ. That IJ
    summarily dismissed the motion, but the BIA remanded the proceedings for a fully
    developed and reasoned decision. The same IJ issued a second summary decision
    denying Mohamed’s motion, which the IJ vacated shortly after discovering a conflict
    of interest. The motion was reassigned to a second IJ whose decision is now at issue.
    3
    The so-called “departure bar” prevents petitioners from reopening their
    removal proceedings when they have, subsequent to filing, departed from the United
    States either voluntarily or involuntarily. The IJ found that this bar applied to
    Mohamed because he sought asylum in Canada subsequent to filing his first motion
    to reopen. The “time bar” requires that petitioners file a motion for reconsideration
    or a motion to reopen within 30 and 90 days, respectively, of a final administrative
    order. If the petitioner was removed in absentia and can demonstrate “exceptional
    circumstances,” the petitioner can file a motion to reopen up to 180 days after such
    order. Finally, the “numerical bar” limits petitioners to only one motion to
    reconsider and one motion to reopen.
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    Mohamed had no particular notoriety due to his presence in ICE’s December 2017
    repatriation attempt. Accordingly, the IJ denied Mohamed’s motion to reopen.
    Mohamed appealed the decision to the BIA, which issued a decision on
    October 4, 2019. The BIA agreed that Mohamed’s motion was both time- and
    number-barred but refrained from making any determinations concerning the
    application of a departure bar. The BIA found that the IJ did not clearly err in its
    determinations concerning Somalia’s changed country conditions and upheld the
    IJ’s decision, denying Mohamed’s motion to reopen. Mohamed then filed a petition
    for review in this Court on October 31, 2019. He subsequently filed a motion for
    emergency stay of removal, which this Court denied, and he was deported to Somalia
    on December 5, 2019.
    II.
    Mohamed asserts that the BIA erroneously affirmed the IJ’s denial of the
    motion to reopen removal proceedings based on changed country conditions
    pursuant to 8 U.S.C. § 1229a(c)(7)(C) and 
    8 C.F.R. § 1003.23
    (b)(1), (4)(i).
    Specifically, Mohamed asserts that the BIA failed to consider (1) al-Shabaab’s
    increase in power from 2011 to 2018; (2) ISIS-Somalia’s emergence and growing
    violence from 2011 to 2018; and (3) the impact of Mohamed’s personal
    characteristics on changed country conditions.
    Generally, “[a]n alien may file one motion to reopen proceedings under [8
    U.S.C. § 1229a],” 8 U.S.C. § 1229a(c)(7)(A) (emphasis added), and such motion
    must be filed “within 90 days of the date of entry of a final administrative order of
    removal,” id. § 1229a(c)(7)(C)(i) (emphasis added). Accordingly, Mohamed’s
    motion to reopen is number- and time-barred, as it was his second motion and filed
    more than seven years after the final administrative order. However, these bars do
    not apply when the motion to reopen is “based on changed country conditions arising
    in the country of nationality or the country to which removal has been ordered, if
    [the] evidence [of such changed country conditions] is material and was not available
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    and would not have been discovered or presented at the previous proceeding.” Id.
    § 1229a(c)(7)(C)(ii); 
    8 C.F.R. § 1003.23
    (b)(1), (4)(i). The petitioner bears the
    burden of making a prima facia case that demonstrates “a change in country
    conditions since his initial hearing that materially affects his claim to relief.” Sharif
    v. Barr, 
    965 F.3d 612
    , 618 (8th Cir. 2020) (citing Zeah v. Lynch, 
    828 F.3d 699
    , 704
    (8th Cir. 2016)).
    “We review decisions of the [BIA] denying motions to reopen or reconsider
    for abuse of discretion.” Shire v. Barr, 
    967 F.3d 722
    , 725 (8th Cir. 2020) (quoting
    Habchy v. Gonzales, 
    471 F.3d 858
    , 861 (8th Cir. 2006)). The BIA abuses its
    discretion “where a decision is without rational explanation, departs from
    established policies, invidiously discriminates against a particular race or group, or
    where the agency fails to consider all factors presented by the alien or distorts
    important aspects of the claim.” 
    Id.
     (citation omitted). “Though we ordinarily
    review only the BIA’s decision, ‘we also review the IJ’s decision as part of the final
    agency action’ if ‘the BIA adopted the findings or the reasoning of the IJ.’” Etenyi
    v. Lynch, 
    799 F.3d 1003
    , 1006 (8th Cir. 2015) (citation omitted).
    While Mohamed frames his assertions as legal errors on the part of the BIA,
    his claims are best described as attacking the BIA’s factual determinations.
    “[E]xamining changed country conditions is a factual issue.” Sharif, 965 F.3d at
    620 n.2 (alteration in original) (citation omitted). As such, in reviewing factual
    determinations, we utilize the substantial evidence standard: “The agency’s ‘findings
    of fact are conclusive unless any reasonable adjudicator would be compelled to
    conclude to the contrary.’” Nasrallah v. Barr, 
    140 S. Ct. 1683
    , 1692 (2020) (citation
    omitted).
    Mohamed first contends that the BIA failed to consider al-Shabaab’s growing
    power and influence in Somalia in its changed-country-conditions analysis.
    Mohamed argues that al-Shabaab has had a “parabolic” presence in Somalia, with
    its heights of power occurring in the late 2000s and now. See Pet’r’s Reply Br. 1-2.
    We have acknowledged the possibility that a petitioner could present evidence of a
    -5-
    material “escalation of violence and tension” such that a finding of changed country
    conditions would be warranted. See Habchy, 
    471 F.3d at 867-68
    . However, the
    standard remains that the petitioner must establish that the country conditions at the
    time of his motion to reopen are materially different from those that existed at the
    time of his initial proceedings. See Sharif, 965 F.3d at 618; see also Zeah, 828 F.3d
    at 704 (“‘[E]vidence [that] reflects conditions substantially similar to those that
    existed at the time of [the first] hearing’ does not show a change in country
    conditions.” (second and third alterations in original) (citation omitted)). Here, the
    IJ recognized al-Shabaab’s recent rise in power but concluded that the evidence
    reflected “country conditions substantially similar to those in place at the time
    [Mohamed] was ordered removed in 2011.” Admin. R. 99, ECF No. 4853065. The
    IJ described in detail al-Shabaab’s acts of violence occurring immediately prior and
    into 2011, while Mohamed presents only one reference that indicates that
    al-Shabaab’s power began to wane in 2011. Therefore, we do not find “any
    reasonable adjudicator would be compelled to conclude” that al-Shabaab’s presence
    in Somalia is materially different than existed in 2011 based on Mohamed’s
    evidence. Nasrallah, 140 S. Ct. at 1692.
    Mohamed next contends that the IJ and BIA failed to account for the
    emergence and growth of ISIS-Somalia in its determination. The IJ did account for
    the presence of ISIS-Somalia but ultimately determined that the “isolated
    references” in the record were insufficient to establish Mohamed’s claims. Admin.
    R. 98, ECF No. 4853065. Upon reviewing the record, we do not find that “any
    reasonable adjudicator could be compelled to conclude the contrary.” Nasrallah,
    140 S. Ct. at 1692.
    Finally, Mohamed contends that the IJ and BIA did not appropriately consider
    his personal circumstances when determining whether the alleged changed country
    conditions were material. Specifically, he argues that he will be more susceptible to
    attack by al-Shabaab because he is “Westernized” and was involved in ICE’s failed
    repatriation flight to Somalia in 2017. However, the IJ concluded that Westernized
    Somalis face no greater threat of harm than existed at the time of Mohamed’s prior
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    proceedings in 2011. The IJ further determined that Mohamed failed to sufficiently
    show how his presence on the 2017 repatriation flight thrust him into “particular
    notoriety” thereby creating a greater risk of persecution. We considered this exact
    proposition in Shire, 967 F.3d at 726, and affirmed the IJ and BIA. After review of
    the record, we do not find that it compels a contrary conclusion in this case.
    Therefore, the IJ and BIA did not err in their determinations.
    III.
    Accordingly, we deny the petition for review.
    ______________________________
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Document Info

Docket Number: 19-3356

Filed Date: 12/23/2020

Precedential Status: Precedential

Modified Date: 12/23/2020