Mohamed v. Garland

44 F.4th 761

Omar Osman MOHAMED, Petitioner

v.Merrick B. GARLAND, Attorney General of the United States, Respondent

No. 21-2309

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2022

Filed: August 10, 2022

Counsel who presented argument on behalf of the petitioner and appeared on the brief was Andrew D. Bergman, of Houston, TX. The following attorney appeared on the petitioner brief; John Robert Bruning, of Minneapolis, MN.

Counsel who presented argument on behalf of the respondent and appeared on the brief was Marie Vanderbilt Robinson, of USDOJ, Civil Division, of Washington, DC.

Before GRUENDER, BENTON, and ERICKSON, Circuit Judges.

ERICKSON, Circuit Judge.

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 8 U.S.C. § 1252(b)(2), we deny the petition.

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 21 U.S.C. § 844(a). In September 2011, the Department of Homeland Security ("DHS") commenced removal proceedings against Mohamed due to the controlled substance violation. See 8 U.S.C. § 227(a)(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of (or a conspiracy to attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance offense (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 games or less of marijuana, is deportable."). The Immigration Judge ("IJ") entered an in absentia removal order on January 10, 2012. Four and a half years later, Mohamed moved to reopen the removal proceedings, asserting he did not receive notice of the hearing. The IJ reopened the proceedings on July 25, 2016, noting the notice of hearing sent to Mohamed had been returned by the post office as undelivered.

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 who ‘dances with naked women,’ " he did not share their Islamic ideologies. Id. at 1416, 1423. Mohamed later amended his application to correct certain information about himself and his criminal history, but he did not change the substance of his claims for relief. R. at 1356, 1359, 1363, & 1367. Mohamed also applied for cancellation of removal. R. at 1328.

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 and be given a second chance, and, in the alternative, granted Mohamed's asylum application based on potential membership of Somalis in the United States who have produced music videos involving partially clothed women. The IJ explained:

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...