MINNEAPOLIS PERSONAL INJURY ATTORNEY  
attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
   
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
   
 > Contact Us
   :: Contact Us
 

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

 Saint Paul Lawyer
 
 mdouglas@injurylawtwincities.com

 

Isse v. Mukasey: IMMIGRATION - no abuse denying reopening; adequate explanation regarding credibility determination

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1767
___________
Ahmednur Isse, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board
* of Immigration Appeals.
Michael B. Mukasey, Attorney *
General of the United States, *
*
Respondent. *
___________
Submitted: January 18, 2008
Filed: May 8, 2008
___________
Before LOKEN, Chief Judge, HANSEN and MURPHY, Circuit Judges.
___________
LOKEN, Chief Judge.
Ahmednur Isse, a citizen and national of Somalia, fled Somalia in 1996 and
lived in Kenyan refugee camps for some years until he entered the United States
illegally, leaving his wife and three children in Kenya. He applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
After a hearing, the immigration judge (IJ) denied all relief, finding his claims and
testimony completely not credible. The Board of Immigration Appeals (BIA)
dismissed Isses appeal, agreeing with the IJ that he is ineligible for asylum because
he failed to prove that he applied for asylum within one year of entering this country,
see 8 U.S.C. 1158(a)(2)(B, D), and upholding the IJs adverse credibility finding.
-2-
Isse did not seek judicial review of this final order of removal. Instead, he filed a
timely motion to reconsider with the BIA. He now petitions for review of the BIAs
order denying that motion, a ruling we review for abuse of discretion. Boudaguian v.
Ashcroft, 376 F.3d 825, 828 (8th Cir. 2004). We deny the petition for review.
Like the petitioner in Boudaguian, much of Isses brief on appeal is devoted to
arguing that the BIA erred in its initial order affirming the IJs denial of relief.
However, our jurisdiction is limited to reviewing the denial of the motion to
reconsider. 376 F.3d at 827. The applicable regulation provides that a motion to
reconsider shall state the reasons for the motion by specifying the errors of fact or
law in the prior Board decision and shall be supported by pertinent authority. 8
C.F.R. 1003.2(b)(1). The BIA abuses its discretion if its 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. Esenwah v.
Ashcroft, 378 F.3d 763, 765 (8th Cir. 2004), cert. denied, 544 U.S. 962 (2005). Isse
argues that the BIA abused its discretion in rejecting two reasons that warranted
granting his motion to reconsider.
1. In denying Isses application for asylum, withholding of removal, and CAT
relief, the IJ determined that Isse had filed a frivolous asylum application, a
determination that made him permanently ineligible for any benefits under the
immigration laws. 8 U.S.C. 1158(d)(6). In its initial order, the BIA vacated this
determination on the ground that it was based in large part on Isse presenting
fraudulent birth certificates that were not material to the asylum claim and therefore
were not grounds for a frivolity determination. See 8 C.F.R. 1208.20.
In his motion to reconsider, Issue asserted that the frivolous application
determination infected the IJs adverse credibility finding because both were based
on birth certificates the IJ considered fraudulent. Therefore, the BIA should either
-3-
review the credibility determination de novo or remand to the IJ to re-analyze the
credibility determination. The BIA responded:
[Isse] has failed to show that the frivolous and credibility determinations
were inextricably linked . . . given that each issue involves a different
legal standard . . . . Moreover, our conclusion that the [IJs] adverse
credibility determination was not clearly erroneous was expressly due to
material inconsistencies in [Isses] claim which undermined the heart of
his asylum application, while our discussion on the frivolous finding did
not examine such discrepancies as it was limited to the [IJs] appraisal
of the authenticity of the birth certificates of [Isses] children.
(Citations omitted.)
Isses petition for review argues at length that the BIA abused its discretion by
ignoring the relevant fact that the fraudulent birth certificates seeped into almost
every part of the [IJs] adverse credibility finding. We are not persuaded. After
careful review of the administrative record, we conclude that it fully supports the
BIAs rational explanation of why this contention failed to specify an error of fact or
law in the BIAs prior decision. Accordingly, there was no abuse of discretion.
2. At the asylum hearing, Isse testified that members of a more powerful Somali
clan came to his family home in 1996, broke Isses leg, killed his father, raped his
wife and sister, and threatened further violence. The IJs adverse credibility finding
was based in part on the fact that he did not mention the rapes in his asylum
application or during his initial asylum interview. In upholding the credibility finding,
the BIAs initial order referred to this omission as one of the material inconsistencies
related to the heart of [Isses] asylum application.
In his motion to reconsider, Isse argued that the BIAs initial order erred in
upholding the IJs adverse credibility finding because the BIA mislabeled mere
-4-
omissions -- Isses failure to recount the rapes of his wife and sister in his initial
asylum application and interview -- as material inconsistencies that undermined the
credibility of his asylum claim. The BIA responded:
[Isse] failed to show that the inconsistencies and omissions that were
addressed in our prior decision were improperly considered in our
credibility analysis. Specifically, to the extent that [Isse] indicates that
the omission of his wifes and sisters rape in his asylum application
should not have bearing on his credibility . . . he has failed to
substantiate this argument with any reasoned analysis given that such
abuse is clearly material to his eligibility for relief. See Zheng v.
Gonzales, 415 F.3d 955, 960 (8th Cir. 2005) . . . . Thus, we find that
[Isse] has not demonstrated any error in our decision finding no clear
error in the [IJs] negative credibility finding. (Footnote omitted.)
On appeal, Isse reargues the merits of the IJs credibility analysis and then
asserts that the BIA erred in determining that his wifes and sisters rapes were
material inconsistencies because those rapes did not form the crux of [his] original
claim for asylum. We reject this circular reasoning. Isse did not mention the rapes
in his application and initial interview, yet he brought them to the agencys attention
at the hearing in support of his asylum claim. As the BIA noted -- indeed, as Isse
argued in another section of his brief -- such violent physical abuse of a petitioners
immediate family on account of a protected ground (here, membership in a particular
social group) is directly relevant to whether he suffered past persecution and has a
well-founded fear of future persecution in that country. Therefore, the BIA gave a
rational explanation for denying the motion to reconsider this aspect of its initial
order. Again, there was no abuse of discretion.
We deny the petition for review.
______________________________
 

 
 
 

  What day were you injured?

  / /


  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall
Other:


  How have your injuries affected

  your life?

 


  What kinds of medical care
  professionals have you seen?

 


  What has your treatment cost?

 

  Is Insurance Involved?
My insurance may cover
        this.

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement
        offer.

I accepted a settlement
        offer.

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
 
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.