Omar Osman Mohamed v. Merrick B. GarlandOmar Osman Mohamed v. Merrick B. Garland
Petition for Review of an Order of the Board of Immigration Appeals
Submitted: March 16, 2022
Filed: August 10, 2022
Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.
In 1996, Omar Osman Mohamed, a native and citizen of Somalia, entered the United States as a refugee in New York City, New York, when he was 16 years old. His status was subsequently adjusted to lawful permanent resident on June 26, 1999. Mohamed‘s parents became naturalized citizens in 2003 and 2006 but Mohamed‘s application was denied due to a returned check for the processing fees. Before being ordered removed from the United States, Mohamed resided in St. Paul, Minnesota, with his brother. Mohamed petitions for review of the order of the Board of Immigration Appeals (“BIA“) dismissing his appeal. Having jurisdiction pursuant to
I. BACKGROUND
This case has a lengthy procedural history that has now spanned more than a decade. Mohamed initially came to the attention of immigration authorities following a conviction in New York federal court for possessing cathinone (“khat“), in violation of
While the reopened removal proceedings were pending, in June 2017, Mohamed was convicted in Minnesota state court on two counts of insurance fraud—employment of runners. DHS submitted these convictions as an additional charge of removability. Mohamed‘s application for asylum and for withholding of removal, which was received by the immigration court in Fort Snelling, Minnesota, on September 18, 2017, checked boxes indicating Mohamed was seeking relief based on religion, nationality, political opinion, membership in a particular social group, and torture convention. R. at 1416. He explained that he was a member of a clan that had been victimized by violence committed by other clans in late March/early April 1991, and he feared the same clans who had previously attacked his family would harm or kill him if he returned to Somalia. Id. He also stated that al-Shabaab terrorists had made it clear they would kill him if he returned to Somalia because, as “a musician
Mohamed conceded removability on the drug conviction but contested removability based on the insurance fraud convictions. The IJ determined that DHS failed to sustain an aggravated felony charge of removability because the loss to the victim did not exceed $10,000. As to the controlled substance conviction, the IJ found in its oral decision that Mohamed met all three statutory eligibility requirements for lawful permanent resident cancellation of removal and exercised favorable discretion by finding Mohamed‘s positive factors outweighed the negative factors. R. at 982 (Dec. 18, 2017, transcript of IJ decision).
In granting cancellation of removal, the IJ found Mohamed would suffer great hardship and harm if removed to Somalia because of his membership in a minority clan and/or because he had received threats to his life due to a music video that he posted on the Internet depicting a partially clothed female. Id. at 993-94. Mohamed had testified that if removed to Somalia, he believed he would be immediately murdered because of the music video. R. at 1161 (Nov. 30, 2017, hearing transcript). According to Mohamed, he received the first threat the day the video was posted. Id. at 1162. Mohamed believed the people threatening him included: “al-Shabaab, all of them, mothers, fathers. My family members. Somali mothers, fathers, al-Shabaab.” Id. Mohamed clarified that his family was not threatening him but the families that know his family were threatening him and telling him, “Why the girl, she‘s naked? It‘s not good for you. We are Muslim.” Id. Mohamed‘s counsel attempted to introduce a printout of a black box from YouTube‘s website that contained the following statement in white letters: “This video is restricted. Try signing in with a Google Apps account.” The IJ granted DHS‘s motion to strike because there was no transcript provided of what was said in the video. Id. at 1090, 1530-31. Over DHS‘s objection, the IJ gave Mohamed an additional opportunity to have the videos transcribed and present that evidence at the next hearing along with the remaining witness testimony. R. at 1206. The IJ advised Mohamed‘s counsel that he should follow the court‘s practice manual regarding the submission of videos, which she understood to require evidence be presented in a written format. Id. at 1205-06.
At the next hearing, Mohamed‘s counsel informed the IJ that he was unable to have the videos transcribed and requested permission for a witness, who was the former head of the Somali Justice Center and a Somali leader, testify about what he saw on the videos. R. at 1217 (Dec. 18, 2017, hearing transcript). Mohamed‘s request was denied, although the IJ did allow the remaining witnesses who had seen the videos to testify. Id. at 1221. Although Mohamed testified that he had copied the video threats onto a DVD (R. at 1163), no video or transcription of the video threats was ever submitted to the court. Outside of the testimony from Mohamed and his witnesses, there was no objective evidence corroborating the nature or source of the threats. DHS argued in closing that the IJ should deny Mohamed‘s applications for relief because there was no evidence in the record to substantiate Mohamed‘s claims of threats made in response to the video he posted on social media. R. at 1259.
The IJ concluded that Mohamed should keep his lawful permanent resident status
The Court finds that [Mohamed] has a well-founded fear of future persecution by the government or by someone that the government is unwilling or unable to control, namely, al-Shabaab, should he return to Somalia. [Mohamed] has already been receiving threats by YouTube or by Internet. [Mohamed‘s] family has testified about the threats and substantiated the music video. [Mohamed], though his counsel, has requested that the Court watch the video and the Court has declined to do so. However, the Court will believe that there was or is a video and also that there are other videos by people threatening [Mohamed] as a result of his music video. Accordingly, that type of music video would not be acceptable in Somalia and the Muslim culture there and the Court believes that [Mohamed] has a well-founded fear that he would be persecuted either by the government or by al-Shabaab, who is an entity who the government is unwilling or unable to control.
R. at 998 (Dec. 18, 2017, transcript of IJ decision).
As another alternative, the IJ found that if asylum were to be denied, she would have granted withholding of removal because Mohamed established it was more likely than not that he would be persecuted based on his race, religion, nationality, membership in a particular social group, or political opinion should he return to Somalia. The IJ explained:
[T]he basis would be on [Mohamed‘s] clan membership in a minority clan, which would be membership in a particular social group. Furthermore, the other group would be the fact that he had created this music video, which would be unacceptable in the Muslim culture of Somalia. There potentially also could be a religious aspect too of the creation of such a video being unacceptable in the Muslim faith. And that would be another basis for both asylum and withholding of removal. The Court believes that it is more likely than not that al-Shabaab would harm [Mohamed] based on one or any or all of those reasons and that the government of Somalia is unable or unwilling to control al-Shabaab. Furthermore, the government could also easily be aware of this video and also be the alleged persecutor.
Id. at 998-99.
DHS appealed to the BIA, identifying four purported errors: (1) Mohamed failed to demonstrate that he warranted a favorable exercise of discretion in light of his criminal history and other negative factors; (2) the IJ formulated a social group—persons in music videos depicting a scantily clad woman—that was not socially distinct; (3) the IJ improperly found Mohamed to be a minority clan member, despite no evidence that Mohamed suffered past persecution because of his clan membership and no evidence that any fears of future harm were based on membership in his clan (the Benadiri clan); and (4) the IJ erred in granting withholding of removal because Mohamed did not demonstrate that it was more likely than not he would be persecuted on account of a protected ground if returned to Somalia. R. at 970.
The BIA reversed the IJ‘s grant of cancellation of removal, finding the IJ incorrectly weighed the adverse nature of Mohamed‘s lengthy criminal history and gave too much weight to his equities. R. at 935-36 (May 2018, BIA decision). In addition to
On remand, the IJ denied Mohamed‘s applications for asylum and CAT relief and granted withholding of removal. No new evidence or testimony was presented. In her decision, the IJ found that Mohamed‘s positive equities and the danger of his persecution in Somalia do not outweigh his criminal history to merit a favorable exercise of discretion for asylum. R. at 310-11 (September 28, 2018, IJ decision). She also noted the Somali government‘s substantial military efforts to fight al-Shabaab rebutted Mohamed‘s claim for CAT relief. Id. at 319-20.
As to withholding of removal, the IJ found that Mohamed will more likely than not be persecuted based on his religion or imputed religion as a Muslim who does not conform to the strict version of Islam that the Islamist extremist al-Shabab requires. Id. at 313-14. The IJ pointed to the testimony from Mohamed and several witnesses regarding Mohamed‘s music video posted on the Internet, showing Mohamed dancing with a woman not fully clothed, which “drew sharp criticism” and online threats. The IJ recounted Mohamed‘s testimony regarding the threats he purportedly received in the video comments section and via social media from who he believed was al-Shabaab as well has the testimony from Mohamed‘s wife and father who believe Mohamed will be killed if returned to Somalia because of the video depicting him engaging in “Westernized” behavior. The IJ further noted that Mohamed‘s
DHS again appealed, asserting: (1) the IJ provided a ground for withholding of removal (religion-based protection) that was not developed by Mohamed and in so doing improperly conflated Mohamed‘s religion with his prior activities as a musician,2 and (2) Mohamed failed to present objective evidence that the alleged Internet threats were made by al-Shabaab or that al-Shabaab was aware of Mohamed‘s music videos. R. at 287. The BIA found DHS had not been given a full and fair opportunity to rebut the IJ‘s findings regarding a religion-based claim. R. at 240 (July 2, 2019, BIA decision). It explained that while Mohamed‘s asylum application listed religion as a possible protected ground, during the remanded proceedings Mohamed only addressed his clan membership as a basis for relief. Id. at 241. The BIA put both parties on notice that DHS “should have an opportunity to explore the source of the YouTube threats because, although [Mohamed] expressed his belief that the threats were made by al-Shabaab in Somalia, he was unable to corroborate his opinion with objective evidence identifying the source of the threats.” Id. The BIA affirmed the IJ‘s decision regarding clan membership, remanded for consideration of the religion-based claim, and requested clarification on the IJ‘s discretionary determination pertaining to the asylum claim. Id. at 240-41.
On remand, the case was assigned to a different IJ because the initial IJ had retired. At the hearing, DHS‘s counsel initially informed the IJ that she wanted to conduct additional cross-examination of Mohamed but, after counsel for both parties engaged in an off-the-record conversation, DHS elected not to ask any questions. R. at 152-55 (Sept. 12, 2019, transcript). No additional testimony was presented by either party. Both parties, relying on the evidence submitted and prior findings made by the BIA and IJ, presented thorough arguments to the IJ. Mohamed argued that the initial IJ‘s credibility findings regarding the threats he received because of the music video had been upheld by the BIA, and the evidence showed a sufficient nexus of fear of religious persecution by al-Shabaab, an organization seeking to implement “an Islamic ethnostate” in Somalia, directed at Mohamed based on the music
In October 2019, the IJ issued her decision denying Mohamed‘s application for asylum on the grounds that he failed to demonstrate a well-founded fear of persecution based on religion or clan membership. R. at 112-16 (Oct. 15, 2019, IJ decision). The IJ reasoned that while Mohamed had expressed a subjectively genuine fear of persecution based on the posting of the music video, he had failed to demonstrate his fear was objectively reasonable. Id. at 112. The IJ noted Mohamed‘s claim was based on a single music video he posted online in 2013, which was subsequently removed shortly after it was posted and has remained inaccessible since that time. The IJ also noted no evidence of any recent or immediate threats against Mohamed had been presented. Id. at 113. While crediting the testimony of Mohamed and his witnesses, who believed the online threats in response to the music video came from members of al-Shabaab, the IJ found the record contained no objective, corroborating evidence to support a conclusion that the persons who made the threats were affiliated with al-Shabaab. Id. The IJ further found that Mohamed failed to show a reasonable possibility of persecution by al-Shabaab on account of his clan membership.
Because the video was insufficient to demonstrate Mohamed is a public figure in Somalia, as Mohamed had argued, the IJ found that it was possible and reasonable for Mohamed, an average Muslim citizen, to internally relocate to an urban area, such as the capital city of Mogadishu, where he would not be targeted. Id. at 114, 116. Based on these findings, Mohamed‘s application for withholding of removal failed and the IJ declined to review the previous IJ‘s CAT analysis because neither party challenged that ruling on appeal. Id. at 117.
In Mohamed‘s notice of appeal to the BIA, he claimed the BIA erred in three ways: (1) by accepting DHS‘s prior appeal on the ground that DHS did not have a full and fair opportunity to rebut the IJ‘s finding on his religion-based claim; (2) by reversing the IJ‘s discretionary grant of cancellation of removal and asylum without first finding the IJ made a clearly erroneous factual finding; and (3) by violating Mohamed‘s due process rights due to the significant delay caused by DHS‘s two prior appeals. R. at 106. In his brief, Mohamed altered his claims, arguing that remand was necessary because the transcript for the September 12, 2019, hearing was not provided to him and he was not given a transcript for a September 25, 2019, hearing that the IJ referenced in her decision. R. at 61. Mohamed also argued the IJ erred by exceeding the scope of the
The BIA denied Mohamed‘s request to remand, finding the IJ made a typographical error as to the date of the hearing referenced in her decision and the other purported missing transcript had been incorporated into the record and issued to Mohamed. R. at 15-16 (May 17, 2021, BIA decision). Finding no factual error, no erroneous application of the law, or no improper exercise of discretion by the IJ, the BIA dismissed Mohamed‘s appeal. More specifically, the BIA determined that Mohamed waived by not meaningfully contesting the IJ‘s findings of fact and legal conclusions relating to his future fears of harm in Somalia on account of his religion or the possibility that he could reasonably relocate to an urban area in Somalia and not be targeted by al-Shabaab. Id. at 12-13. The BIA also determined the IJ acted within her discretion by giving diminished weight to the uncorroborated testimony of Mohamed and his family regarding the purported online threats they had observed in 2013. Id. at 13. Finally, the BIA concluded that the IJ did not exceed the scope of the remand. Id. at 14-15.
Mohamed argues on appeal to this Court that the BIA‘s decisions should be reversed and vacated because the BIA violated the waiver rule and improperly overturned the IJ‘s 2018 decision granting Mohamed withholding of removal based on the protected ground of religion. If the Court reaches the merits, Mohamed contends that the order of removal should be reversed and remanded for two reasons: (1) no additional corroborating evidence of the threats in response to the music video was required, and (2) the BIA failed to apply the correct standard when considering whether Mohamed could reasonably relocate internally under all circumstances, and instead erroneously focused on whether he could reasonably relocate to avoid persecution. In response, DHS contends we lack jurisdiction to review Mohamed‘s claims because he has not raised a colorable constitutional claim or meritorious question of law and, in any event, Mohamed‘s arguments lack merit.
II. DISCUSSION
We first consider the scope of our jurisdiction. If the petitioner is a criminal alien under
Mohamed limited his claims on appeal to his application for withholding of removal. Pet. Br. p. 23 (requesting reinstatement of the IJ‘s 2018 order granting withholding of removal and, in the alternative, remand for further consideration of his claim for withholding of removal). When considering his claims, “we lack jurisdiction to review factual findings and may only review constitutional claims or questions of law.” Id. at 619 (cleaned up).
“In evaluating whether a petition raises a constitutional claim or question of law, we look to the ‘nature of the argument advanced in the petition.‘” Sharif, 965 F.3d at 619 (quoting Purwantono v. Gonzalez, 498 F.3d 822, 824 (8th Cir. 2007)). If a claim “merely constitute[s] a brief in opposition to the BIA‘s factual findings,” we are without jurisdiction to redress it. Id.
Mohamed asserts the BIA legally erred in 2019 when it reversed the IJ‘s 2018 decision that was favorable to him and allowed DHS an opportunity to submit evidence on his religion-based claim. In its decision, the BIA drew two significant legal conclusions: (1) the burden of production on the religion issue never shifted to DHS during the remanded proceedings because Mohamed failed to address religion as a basis for relief, and (2) DHS was entitled to “an opportunity to explore the source of the YouTube threats because, although [Mohamed] expressed his belief that the threats were made by al-Shabaab in Somalia, he was unable to corroborate his opinion with objective evidence identifying the source of the threats.”
Mohamed has presented no cognizable basis that would prohibit the BIA from remanding for development of the record on an issue that the record shows was not plainly argued or developed. While Mohamed asserted generally that he was threatened by al-Shabaab and Muslim families because of the music video, he never explicitly claimed that he was being threatened because he was Muslim. Collateral estoppel is inapplicable because all decisions at issue were made at different stages of the same action. See Estrada-Rodriguez v. Lynch, 825 F.3d 397, 402 (8th Cir. 2016) (noting collateral estoppel does not apply when an issue has not been previously determined by a valid and final judgment in a prior action between petitioner and DHS). Application of the law of the case doctrine is discretionary in immigration proceedings and unless the BIA qualifies or limits the remand to a specific purpose, we will not find an abuse of discretion when an IJ reconsiders a prior determination on an issue. Id. at 402-03; N‘Diaye v. Barr, 931 F.3d 656, 664 (8th Cir. 2019). Mohamed improperly equates the IJ‘s and BIA‘s findings that he offered credible testimony as also establishing he presented sufficient evidence in support of his claim. These are distinct concepts. We can find no constitutional claim or legal error arising from the BIA‘s decision to remand to allow the record to be fully developed regarding the nature and source of the threats Mohamed received while working as a musician and posting a video of him appearing with a partially clothed woman and whether those threats were tied to his religion.
Mohamed next claims that the BIA erred as a matter of law in 2021 when it upheld the IJ‘s decision requiring him to submit corroborating evidence regarding the threats he received because the initial IJ did not require such evidence. The parties dispute whether the evidence was sufficient to establish the objective reasonableness of Mohamed‘s fear—a legal question reviewed de novo by the BIA and this Court, Uzodinma v. Barr, 951 F.3d 960, 964 (8th Cir. 2020). Even if the uncorroborated testimony is deemed credible, the burden remains on the applicant to corroborate an asylum claim. Id. at 965. “An applicant‘s uncorroborated testimony may be sufficient if it satisfies the trier of fact that the testimony
It is indisputable that there is no objective evidence in the record to corroborate the testimony from Mohamed and his family members regarding the music video he posted or the nature or source of the alleged threats. While Mohamed represented that he had copied the information onto DVDs, no video was ever submitted or transcribed, although Mohamed had ample opportunity to do so. While
Contrary to his arguments, Mohamed was placed on notice by the BIA‘s 2019 decision that he had not corroborated his beliefs about the source of the threats with objective evidence. Despite this notice, Mohamed did not submit any objective corroborating evidence. Neither did DHS attempt to refute Mohamed‘s previous testimony. Despite the parties’ lack of diligence, the record supports the final decisions by the IJ and BIA that Mohamed failed to satisfy his burden of showing a particularized threat of persecution, rendering him ineligible for asylum and likewise withholding of removal. See Baltii v. Sessions, 878 F.3d 240, 246 (8th Cir. 2017) (noting that when an applicant fails to meet his burden of proof for asylum, he necessarily cannot meet the higher burden of proof required for withholding of removal, which requires demonstrating a clear probability that he will be persecuted on account of his membership in a particular social group). As noted by the BIA, the music video at issue was created and posted by Mohamed. Mohamed testified that he copied the threats he received onto DVDs but they were never produced or transcribed. Mohamed‘s only explanations were technical difficulties, and the information was inaccessible or had been corrupted. Finding no reasonable explanation for the failure to obtain or produce corroborating evidence, the agency did not err or violate Mohamed‘s constitutional rights by giving the testimony diminished weight and finding Mohamed had failed to satisfy his burden of proof. Cf. El-Sheikh v. Ashcroft, 388 F.3d 643, 647 (8th Cir. 2004) (explaining that the BIA‘s reliance on the absence of corroborating evidence is unsustainable only when there is a failure to rule on the credibility of the applicant‘s testimony, to explain why it was reasonable to expect additional corroboration, or to assess the sufficiency of the applicant‘s explanations for the absence of corroborating evidence). The IJ acted within the scope of the remand and, contrary to Mohamed‘s assertion, we find no basis or authority requiring an IJ on remand to reissue a prior decision merely because the parties elected to rest on the previously submitted evidence.
Lastly, Mohamed contends the BIA erred by ignoring the country conditions evidence in the record and committed reversible error by holding that Mohamed could relocate internally within Somalia to avoid persecution, rather than whether it would be reasonable for Mohamed to relocate under all circumstances. The BIA, however, merely recounted the IJ‘s factual findings and legal conclusion on these issues and found Mohamed had waived these claims by failing to meaningfully contest the findings and conclusions. Nonetheless, because Mohamed is ineligible for withholding of removal because he cannot show future persecution on account of a
III. CONCLUSION
For the foregoing reasons, we deny the petition for review.