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Guled v. Mukasey: IMMIGRATION - no jurisdiction regarding removal question; no error regarding refugee, fear questionsUnited States Court of AppealsFOR THE EIGHTH CIRCUIT ___________ No. 07-1681 ___________ Abdikadir Abdillahi Guled, * also known as Mohamed Ali Jamal, * also known as Yusuf Abdilahi Guled, * also known as Mukhtar Fahiyeh, * also known as Abdi Abuf Guled, * also known as Guled Abdul Ali, also * known as Abdisalan Mohamed Gure, * also known as Jamal Ali Abdul, * * Petitioner, * * v. ** Michael B. Mukasey, ** Respondent. * ___________ Petition for Review of an No. 07-2339 Order of the Board of ___________ Immigration Appeals. Abdikadir Abdillahi Guled, * * Petitioner, * * v. ** Michael B. Mukasey, ** Respondent. * 2Guled was convicted on October 20, 2000, of battery against his wife in California and given three years of probation. He was convicted on April 2, 2001, of resisting a police officer, also in California. -3- A. Proceedings Before the IJ The Department of Homeland Security (DHS) commenced removal proceedings against Guled on August 28, 2003. DHS charged him as being removable pursuant to Immigration and Nationality Act (INA) Section 237 (a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), which allows the removal of an "alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct," and INA Section 237(a)(2)(E)(i), 8 U.S.C. § 1227(a)(2)(E)(i), which allows the removal of an "alien who at any time after admission is convicted of a crime of domestic violence."2 The IJ noted Guled initially admitted all of the allegations in the Notice to Appear and conceded the second charge of removability. Upon changing attorneys, he later denied both charges of removability and also denied allegation six, which alleged he was a citizen of Ethiopia – the country in which his mother was born and raised. The IJ did not sustain the first charge of removal, finding a conviction for resisting a police officer is not a crime of moral turpitude. The IJ did sustain the second charge of removal, based on Guled's conviction for a crime of domestic violence. He declined to designate a country for removal, and the IJ designated Ethiopia, or alternatively Somalia. Guled originally applied for asylum on March 10, 2005, and submitted a second application on October 19, 2005. He also applied for withholding of removal under INA Section 241(b)(3), 8 U.S.C. § 1231(b)(3), for relief under Article III of the Convention Against Torture, and for cancellation of removal for permanent residents. -4- Guled claimed he suffered and fears persecution in Somalia because he allegedly belongs to a despised minority clan, the Madhiban clan. The IJ made an adverse credibility finding regarding his clan membership because of contradictions in the record. He claimed to be from the Madhiban clan in Somalia, although the asylum applications of his parents indicate they are from the Darod clan, and Guled's original application listed him as a member of the Darod clan. Testimony from police officer Brudenell, whom DHS called as a witness, revealed relatives of Guled stated in an unrelated investigation the family was Darod. The IJ concluded the evidence failed to establish Guled's membership in the Madhiban clan and failed to show persecution of the Darod clan. Regarding Brudenell's testimony, Guled points out the local rules required DHS to file and provide him a witness list no later than ten calendar days prior to the final hearing. DHS violated this rule, and he properly objected on the ground he had not been given time and opportunity to prepare for cross-examination of witness Brudenell. The IJ noted Guled's objection but allowed Brudenell to testify. Witness Brudenell testified to Guled's membership in the Somali Crips street gang and stated he is viewed as a leader in the gang. She testified an album of photographs found in Guled's car depicted individuals throwing gang signs and wearing blue – the Crips' color. At least one photograph pictured him with a person carrying a very dangerous firearm. He did not request a continuance. The IJ also found implausible Guled and Mohamed's account of his domestic violence arrests and convictions. Guled claimed he had never hit his wife and only pled guilty to assault in California because of advice from his public defender. He explained Mohamed had him arrested for domestic violence because she thought he was cheating. He also testified Mohamed was beaten badly by two women in February 2006, but told the police he was responsible because she was mad at him. -11- v. Gonzales, 427 F.3d 1077, 1080-81 (8th Cir. 2005); Jalloh v. Gonzales, 423 F.3d 894, 898-99 (8th Cir. 2005). "[A]n IJ making a credibility determination must give reasons that are specific enough that a reviewing court can appreciate the reasoning behind the decision and cogent enough that a reasonable adjudicator would not be compelled to reach the contrary conclusion." Chen v. Mukasey, ___ F.3d ___, 2007 WL 4482184, at *3 (8th Cir. Dec. 26, 2007) (internal quotation omitted) (citing Singh v. Gonzales, 495 F.3d 553, 557-58 (8th Cir. 2007)). Our review of the record confirms the discrepancies described by the IJ are actually present and provide cogent reasons to conclude his testimony was not credible. As the IJ noted, he did not provide a "convincing explanation for the discrepancies" in the record regarding his clan membership. The evidence was not so strong that any reasonable factfinder would be compelled to conclude he belonged to the Madhiban clan and had a well-founded fear of persecution. We see no reason to disturb the IJ's adverse credibility determination. Guled next argues the IJ erroneously concluded he was ineligible for asylum, withholding of removal, and relief under the Convention Against Torture. We disagree. The IJ found he did not qualify for asylum because he could not credibly demonstrate as to being a refugee within the meaning of Section 101(a)(42)(A) of the INA. Since substantial evidence on the record as a whole supports the IJ's findings he could not prove being a refugee and could not prove a well-founded fear of persecution, we cannot say the IJ's decision to deny his application for asylum was manifestly contrary to law or an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D). D. Withholding of Removal An application for asylum automatically includes a request for withholding of removal. 8 C.F.R. § 1208.3(b); see INS v. Stevic, 467 U.S. 407, 420 n.13 (1984). An alien may not be removed if the alien shows there is a clear probability his “life or -15- For the foregoing reasons, we deny Guled's petition for review. ______________________________ |
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