Mohamed Sheikh Ibrahim v. Attorney General United States
708 F. App'x 740
| 3rd Cir. | 2017Background
- Mohamed Hassan Sheikh Ibrahim, a Somali national and lawful permanent resident, was ordered removed in 2011 after convictions including a 2000 forgery and a 2011 federal false-citizenship-related conviction.
- In 2016 Sheikh filed a motion to reopen to seek withholding of removal and CAT protection, alleging changed country conditions in Somalia (rise of ISIS/ISIS influence, abuses by the 2012 Federal Government, growth of Al-Shabaab), and personal risk due to political opinion, religion, prior U.S. contractor status, disability (epilepsy), and minority clan membership.
- The IJ denied reopening as untimely and found Sheikh failed to show new, material evidence of changed country conditions or a prima facie entitlement to relief; the IJ considered a report (“Disability Rights in Somalia”) that was not formally in the record.
- Sheikh appealed to the BIA, submitted additional State Department country reports, and moved to remand with more evidence about ISIS; the BIA affirmed, holding the motion untimely and that Sheikh failed to show material change because he did not present baseline evidence of country conditions at the time of his 2011 merits hearing.
- The BIA alternatively found Sheikh did not establish prima facie eligibility for asylum/withholding/CAT even assuming changed conditions because evidence showed only that ISIS/Al-Shabaab had some presence, not that Sheikh specifically would be targeted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BIA abused discretion in denying motion to reopen as untimely | Sheikh: motion timely-excused because of changed country conditions (ISIS, gov’t abuses, treatment of disabled and displaced) and he submitted reports showing change | Gov: motion untimely; petitioner failed to present material, new evidence comparing current conditions to baseline in 2011 | Held: No abuse of discretion—motion untimely; Sheikh failed to show material changed conditions because he did not submit comparison evidence |
| Whether IJ/BIA ignored or failed to meaningfully consider favorable evidence | Sheikh: IJ/BIA did not address key evidence (disability reports, ISIS growth, Al-Shabaab allegiance shifts) | Gov: IJ and BIA reviewed and considered record evidence and explained rejections sufficiently | Held: IJ/BIA sufficiently considered record and explained reasons; not arbitrary |
| Whether IJ’s consideration of an extrarecord report without notice prejudiced Sheikh | Sheikh: IJ relied on outside report without giving opportunity to respond | Gov: Any error was harmless because alternative independent basis existed (lack of baseline comparison) | Held: Failure to place report in record and permit response was error, but harmless—no substantial prejudice |
| Whether evidence of ISIS presence established prima facie eligibility for relief | Sheikh: ISIS foothold and his characteristics make him likely target | Gov: Evidence showed only general ISIS presence, not individualized risk to Sheikh | Held: BIA reasonably found evidence insufficient to show reasonable likelihood Sheikh would be targeted; alternative ground supports denial |
Key Cases Cited
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir.) (standard for abuse of discretion review of motion to reopen)
- Pllumi v. Attorney General, 642 F.3d 155 (3d Cir.) (burden on alien to establish eligibility on motion to reopen; changed-country-conditions exception to time limit)
- Fei Yan Zhu v. Attorney General, 744 F.3d 268 (3d Cir.) (BIA must meaningfully consider favorable evidence; need not parse every point)
- Caushi v. Attorney General, 436 F.3d 220 (3d Cir.) (IJ may consider evidence outside record but must make it part of the record and allow response)
- McLeod v. INS, 802 F.2d 89 (3d Cir.) (harmless-error standard applied to IJ/BIA procedural errors)