Mohamed Sheikh Ibrahim v. Attorney General United States , 708 F. App'x 740 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1599
___________
MOHAMED HASSAN SHEIKH IBRAHIM, AKA Mohamed Hassan Ibrahim,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A072-377-286)
Immigration Judge: Honorable Walter A. Durling
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 27, 2017
Before: Ambro and Krause, Circuit Judges, and Conti, District Judge.*
(Opinion filed: September 28, 2017)
___________
OPINION**
___________
KRAUSE, Circuit Judge
*
Honorable Joy Flowers Conti, Chief District Judge for the United States District
Court for the Western District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Petitioner Mohamed Hassan Sheikh Ibrahim, a.k.a. Mohamed Hassan Ibrahim,1
petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming
an order of an Immigration Judge (“IJ”) denying his motion to reopen his removal
proceedings. Because the BIA did not abuse its discretion, we will deny the petition.
I. Background
Sheikh, a native and citizen of Somalia, entered the United States as a teenager in
1990 and was granted asylum in 1995. In 1996, his status was adjusted, and he became a
lawful permanent resident. In 2011, the Government charged him as removable.
The Government issued a notice to appear, which alleged that Sheikh had incurred
two convictions, a December 2000 Virginia conviction for uttering and delivering a
forged check, and a March 2011 federal conviction for falsely representing himself as a
U.S. citizen, using a false passport, and using a false naturalization certificate. On the
basis of these convictions, the Government charged Sheikh as removable on three
grounds: (1) Immigration & Nationality Act (“INA”) § 237(a)(2)(A)(ii) for having been
convicted of two crimes involving moral turpitude not arising out of a single scheme of
criminal misconduct; (2) INA § 237(a)(3)(D) for having falsely represented himself as a
United States citizen; and (3) INA § 237(a)(2)(A)(iii) for having been convicted of an
1
We will refer to the petitioner as Sheikh, as he uses this surname in his brief.
2
aggravated felony as defined in § 101(a)(43)(R) of the INA.2 In October 2011 the IJ
ordered Sheikh removed.3 He waived his right to appeal to the BIA.
In 2016, Sheikh returned to the agency. He filed a motion to reopen before the IJ4
asserting changed country conditions and seeking to apply for withholding of removal
under INA § 241(b)(3) and protection under the Convention Against Torture (“CAT”).
In particular, he argued that, after he was ordered removed, “ISIS obtained a foothold in
Somalia and declared a worldwide caliphate,” and the Federal Government of Somalia,
established in 2012, had engaged in significant human rights abuses. J.A. 24. In
comparison, he noted that at the time of his earlier proceedings Somalia was ruled by the
Transitional Federal Government (“TFG”). J.A. 25. Sheikh cited the State Department
Report for 2011, which indicated that, while TFG “did not have a perfect human rights
record” and had “committed abuses,” it also detained fewer people and “usually released
detainees quickly.” J.A. 25. He further stated that TFG made a commitment to helping
people with disabilities but that people with disabilities nevertheless reported cases of
2
INA § 101(a)(43)(R) defines an aggravated felony as “an offense relating to
commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification
numbers of which have been altered for which the term of imprisonment is at least one
year.” See 8 U.S.C § 1101(a)(43)(R).
3
The summary of the IJ’s oral decision does not provide the basis for the removal
order; it merely states that Sheikh was ordered removed. The decision itself was never
transcribed. Sheikh notes that, before the IJ, he waived any right to contest removability.
4
With his motion to reopen, in addition to information about his personal
circumstances, Sheikh included a variety of documentation describing the current state of
Somalia, with particular focus on the violence and extremism of Al-Shabaab.
3
discrimination. Additionally, he acknowledged that the 2011 State Department Report
did not contain a section on the internally displaced in Somalia.
In his motion, Sheikh argued that he could make a prima facie showing of
entitlement to withholding because he would face a clear probability of persecution on
the basis of his political opinion (his opposition to ISIS), his religion (his unwillingness
“to conform to ISIS’s radical version of Islam”), and his social group (he is a former
United States Army contractor). J.A. 28. He also asserted that he would suffer
persecution and torture in Somalia because he has a disability (epilepsy) and because he
is a member of a minority clan that has been internally displaced.
The IJ denied Sheikh’s motion, concluding, as to the “new” evidence of ISIS’s
operation in Somalia, that Sheikh had failed to present sufficient evidence to warrant
reopening, and, as to the other alleged changed conditions, that he had not presented
evidence that was “new” and unavailable at the time of his October 2011 removal
hearing. More specifically, the IJ stated that Sheikh’s evidence fell “far short” of
establishing a likelihood that he would face persecution or torture from ISIS, and that Al-
Shabaab had existed at the time of Sheikh’s last hearing. J.A. 5. Similarly, the IJ
concluded that evidence of persecution and torture of minority clans was not new.
Lastly, while acknowledging that persons with disabilities “suffer disproportionately” in
Somalia, the IJ observed that this was a longstanding concern and that Sheikh already
suffered seizures dating back to 1997, and therefore questioned why Sheikh had not
sought relief on this ground at his last hearing. J.A. 5. In considering that issue, the IJ
4
noted that he accessed a 2011 report by the Swedish International Development
Cooperation Agency entitled “Disability Rights in Somalia,” which discussed the plight
of the disabled in Somalia, and which the IJ acknowledged was outside the record.
Sheikh appealed to the BIA, arguing, inter alia, that reopening was warranted
based on changed country conditions and that the IJ erred by relying on the report outside
the record, “Disability Rights in Somalia.” In further support of reopening, he submitted
the State Department’s Somalia Country Reports on Human Rights Practices for 2010
and 2015. Sheikh also presented a motion to remand with additional evidence related to
ISIS’s incursion into Somalia since the IJ denied reopening.
The BIA dismissed Sheikh’s appeal. It concluded that the motion to reopen was
untimely and Sheikh had not overcome that time bar with evidence of a material change
in country conditions since October 2011 regarding any of his claims. Rejecting Sheikh’s
challenge to the IJ’s consideration of evidence outside the record, the BIA pointed out
that Sheikh had not offered evidence of conditions in October 2011 for persons with
disabilities and that “the way to determine whether there has been a material change in
country conditions is by comparing evidence of country conditions at the time of the
motion to reopen with those that existed at the time of the merits hearing below.” J.A. 11
(citing Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)). The BIA further noted
that Sheikh had failed to submit evidence of country conditions in October 2011 for
members of minority clans and the internally displaced. Addressing Sheikh’s claims
based on ISIS’s influence in Somalia, the BIA held that, even if he had shown changed
5
country conditions, he did not establish prima facie eligibility for asylum, withholding of
removal, or CAT protection. The BIA also denied the motion to remand.
II. Discussion
Sheikh presents a timely petition for review. We have jurisdiction pursuant to 8
U.S.C. § 1252(a). We review the denial of a motion to reopen for abuse of discretion and
will not disturb the decision “unless [it is] found to be arbitrary, irrational, or contrary to
law.” 5 Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (citation omitted). Upon
review, we find that the BIA did not abuse its discretion in concluding that Sheikh’s
motion, filed years after the entry of a final order of removal, was untimely in the absence
of new and material evidence of changed country conditions.
Generally, an alien may file one motion to reopen “within 90 days of the date of
entry of a final administrative order of removal.” 8 C.F.R. § 1003.23(b)(1); see also 8
U.S.C. § 1229a(c)(7)(C)(i). However, the time limitation does not apply if the basis of
the motion is for asylum, withholding, or CAT relief, and the motion “is based on
changed country conditions arising in the country of nationality or the country to which
removal has been ordered, if such evidence is material and was not available and could
not have been discovered or presented at the previous proceeding.” 8 C.F.R. §
1003.23(b)(4)(i); see also Pllumi v. Att’y Gen., 642 F.3d 155, 161 (3d Cir. 2011). “The
5
Although Sheikh discusses remand as an appropriate way to allow consideration
of the report titled “Disability Rights in Somalia,” he does not present any argument as to
the BIA’s denial of his motion to remand. Accordingly, we do not consider that ruling.
See United States v. Pellulo, 399 F.3d 197, 222 (3d Cir. 2005).
6
burden of proof on a motion to reopen is on the alien to establish eligibility for the
requested relief.” Pllumi, 642 F.3d at 161 (citation omitted).
Sheikh first contends that the BIA abused its discretion because it was irrational to
base its ruling on the conclusion that Sheikh had not submitted evidence showing country
conditions as they existed at the time of the merits hearing. Sheikh points to the State
Department’s Somalia Country Report on Human Rights Practices for 2010, claiming
that he submitted it with his motion to reopen and that the BIA did not consider that
report because it described conditions in 2010 rather than conditions in 2011 when the
merits hearing occurred. Neither contention is supported by the record.
First, Sheikh submitted the 2010 State Department Report with his appeal to the
BIA, not with his motion to reopen, which was properly before the IJ in the first instance,
see 8 C.F.R. § 1003.23(b)(1). Second, we do not read the BIA’s decision as faulting him
for the year of the report that he submitted with his appeal. Instead, the BIA repeatedly
took issue with Sheikh’s failure to submit evidence to the IJ to establish earlier baseline
conditions as a predicate to showing changed country conditions. The BIA did not err in
reviewing the IJ’s decision based on the record that was then before the IJ. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (explaining that the BIA’s review is generally limited to the record
before the IJ, although the BIA can take administrative notice where appropriate); see
also Enriquez-Gutierrez v. Holder, 612 F.3d 400, 410 (5th Cir. 2010) (finding that the
BIA could take administrative notice of transcripts, even if they first entered the record
on appeal before the BIA and were not a part of the formal record). Furthermore, we
7
cannot say the BIA abused its discretion in concluding that Sheikh, who submitted no
earlier State Department Report to the IJ, did not meet his burden to show a material
change in country conditions when he failed to submit comparison evidence of earlier
country conditions.6 See Moosa v. Holder, 644 F.3d 380, 386 (7th Cir. 2011) (finding the
BIA did not abuse its discretion in rejecting petitioner’s request to reopen, where
petitioner presented “circumstantial,” but “incomplete” evidence of changed country
conditions).
Sheikh also contends that the BIA’s conclusion that he did not show a change in
country conditions is arbitrary because neither the BIA nor the IJ discussed all of the
6
Sheikh maintains that the BIA could have taken administrative notice of the 2011
State Department Report, to which he cited in his motion to reopen. While the BIA may
not be required to take notice of a State Department Report “independently,” see In re S-
M-J-, 21 I. & N. Dec. 722, 728, n.2 (BIA 1997), it is an open question whether citations
to an earlier State Department Report should prompt the BIA to take administrative
notice of the evidence in that report, compare Liu v. Holder, 718 F.3d 706, 710, 712 (7th
Cir. 2013) (approvingly discussing a petitioner’s inclusion of several years’ worth of
State Department Reports, but also noting that the petitioner did not need to include them,
for “it was enough for her to cite them since they are public documents to which the
Board has ready access”), with Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc)
(concluding that where a petitioner never offered a State Department Country Report or
“the facts contained in it” to the BIA, the BIA did not abuse its discretion in not taking
administrative notice of it). Here, however, even if we were to assume that the BIA
should have considered the evidence from the 2011 State Department Report in light of
Sheikh’s citation to it, the evidence he proffered fell short of showing a material change
in country conditions. Instead, it established that both the TFG and the Federal
Government of Somalia committed human rights abuses and detained persons, and that
persons with disabilities faced discrimination under both regimes. Moreover, Sheikh also
conceded that the 2011 State Department Report offered no evidence concerning earlier
conditions for the internally displaced.
8
pertinent evidence. He points to his evidence of the mistreatment of Somalis with
disabilities, the incursion of ISIS into Somalia, and the growth of Al-Shabaab and its
allegiance to Al-Qaeda. The BIA must “meaningfully consider[] the evidence and
arguments” presented to demonstrate a change in country conditions. Fei Yan Zhu v.
Att’y Gen., 744 F.3d 268, 272 (3d Cir. 2014). “This does not mean that [it] is required to
expressly parse each point or discuss each piece of evidence presented, but it may not
ignore evidence favorable to the alien” and “must provide an indication that it considered
such evidence, and if the evidence is rejected, an explanation as to why it was rejected.”
Id. (citation omitted).
While neither the IJ nor the BIA delved into the details of Sheikh’s claims, they
did include sufficient detail to show that they reviewed the record and considered and
analyzed the relevant arguments. See Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir.
2002) (noting that the BIA “is not required to write an exegesis on every contention”)
(citation omitted). The IJ considered the article entitled “2,000 miles from Syria, ISIS is
trying to lure recruits in Somalia,” which described ISIS’s efforts to insert itself into
Somalia and stated that a “trickle” or “a few dozen” Al-Shabaab fighters have switched
their allegiance to ISIS. J.A. 5. The IJ also acknowledged the evidence about the Somali
government persecuting and torturing members of minority clans and the “unsettling”
evidence that persons with disabilities suffer disproportionately in Somalia. J.A. 5. The
BIA, in affirming the IJ, accurately characterized Sheikh’s claims related to changed
country conditions, evaluated the documents submitted with the motion to reopen
9
carefully enough to find a reference to “Disability Rights in Somalia” within the evidence
that Sheikh had submitted, and identified key missing evidence (about previous country
conditions). The Board’s analysis demonstrates that it sufficiently and meaningfully
considered Sheikh’s claims to sustain its rulings against a challenge of arbitrariness.
Finally, Sheikh maintains that the BIA and IJ erred by considering the document
titled “Disability Rights in Somalia” without providing him an opportunity to respond.
Sheikh is right. He should have been given a chance to respond when the IJ considered
evidence outside of the record, and the IJ should have made it part of the record. See
Caushi v. Att’y Gen., 436 F.3d 220, 231 n.7 (3d Cir. 2006) (explaining that although an IJ
may consider evidence of country conditions not initially in the record, if the IJ does so,
he must make that evidence part of the record); see also In re S-M-J-, 21 I. & N. Dec. at
727-28. However, the BIA relied on an alternative basis for the ruling that Sheikh had
not met his burden to warrant reopening—the absence of comparison evidence to show
that the treatment of persons with disabilities had materially changed. For that reason,
Sheikh was not “substantially prejudiced” by the consideration of the document,
“Disability Rights in Somalia,” and the error is harmless. See McLeod v. INS, 802 F.2d
89, 94 (3d Cir. 1986).
III. Conclusion
Because the BIA did not abuse its discretion in concluding that the motion to
reopen was untimely and that Sheikh had not demonstrated a material change in country
10
conditions, we will deny the petition for review.7
7
Sheikh also challenges the BIA’s alternative ruling that, even if he established
changed country conditions in relation to ISIS’s influence in Somalia, he did not establish
prima facie eligibility for asylum or withholding on the basis that he would be targeted by
ISIS. Specifically, the BIA observed that, even acknowledging the characteristics that
Sheikh argued would make him a more likely target (he is a moderate Muslim, a former
United States Army contractor, a person with a disability, and a member of a minority
clan that has been internally displaced), Sheikh presented evidence only that ISIS was
“gaining strength” and “ha[d] obtained a foothold” in Somalia, which was insufficient to
show a reasonable possibility that he, specifically, would be targeted, and therefore
insufficient to show prima facie eligibility for asylum, withholding, or CAT relief. J.A.
11-12; see also J.A. 258 (article submitted by Sheikh with his motion to reopen,
reflecting that “a trickle of [Al-Shabaab] fighters” have switched sides to ISIS). We
perceive no legal error in the BIA’s denial of his motion to reopen on this alternative
ground.
11