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Qorane v. Barr

United States Court of Appeals, Fifth Circuit

March 26, 2019

ABDIFATAH GAAS QORANE, also known as Qorane Abdifatah Gaas, Petitioner,
v.
WILLIAM P. BARR, U.S. Attorney General, Respondent.

          Petitions for Review of an Order of the Board of Immigration Appeals

          Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

          ANDREW S. OLDHAM, CIRCUIT JUDGE:

         The federal government denied Abdifatah Gaas Qorane various forms of immigration relief after concluding he would not be persecuted or tortured in his home country of Somalia. Despite Qorane's requests, the government chose not to revisit that conclusion. He filed a petition for review asking us to revisit it instead. We deny the petition.

         I.

         On January 14, 2016, Qorane attempted to enter the United States at Brownsville, Texas. The Department of Homeland Security ("DHS") commenced removal proceedings because Qorane did not have valid entry documents. Before an Immigration Judge ("IJ"), Qorane conceded removability. But he applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He argued he would suffer persecution in Somalia because he belonged to a minority clan, the Ashraf.

         Qorane testified before the IJ that he was born in Mogadishu in 1988, but his family moved to Qoryoley in 1991. There he later developed a water delivery business. Not every customer paid. When a customer didn't pay, Qorane would simply cease delivering to his home. One day, a delinquent customer-and member of the dominant Ayr clan-ordered Qorane to continue selling him water. The delinquent customer told Qorane "[i]t's in your own interests," and "[y]ou know who I am and what I own." When Qorane refused, the customer pulled Qorane from his donkey cart, causing him to bump his hip on a rock. The man then threatened Qorane, saying "if you don't listen to my orders, I will kill you," and "you will never survive in this city because you are a minority person." Qorane's mother confronted the customer, but he insisted Qorane "has to take my orders."

         "[N]othing else" happened after this incident, and neither Qorane nor his mother reported it to the police. Qorane did not seek medical attention for his hip. Qorane also testified that on prior occasions Ayr customers verbally abused and slapped him. And he said Ayr members of the local militia previously threatened to jail him if he did not pay taxes.

         In January 2011, a few weeks after being pulled from his donkey cart, Qorane moved to Uganda. He lived there for four years. During that time, he found a job and got engaged; his fiancée currently lives in Somalia. Then he moved to Angola, where he lived for a little over six months. By his own admission, Qorane made the decision to come to the United States only in late 2015-and apparently after being repeatedly arrested in Angola. He paid a smuggler $3, 000 to fly him to Brazil and then to bring him to the United States border.

         Based on this testimony, the IJ denied Qorane's application, and the Board of Immigration Appeals ("BIA") affirmed. Qorane filed a petition for review, followed by a flurry of other motions. First, Qorane moved the BIA to reopen the removal proceedings, but it refused. He filed a second petition for review and moved for a stay of removal. This Court, Circuit Justice Alito, and the Supreme Court all denied a stay. See Qorane v. Sessions, No. 17A980 (Apr. 16, 2018). Qorane then moved the BIA to reconsider its denial of his motion to reopen, but it refused. Again Qorane filed a petition for review (his third). Again he moved for a stay. And again this Court, Circuit Justice Alito, and the Supreme Court all denied the stay. See Qorane v. Sessions, No. 17A1425 (Aug. 6, 2018). On September 11, 2018, DHS removed Qorane to Somalia. See Gaas v. Joyce, No. 3:18-cv-118, ECF No. 49 (W.D. Tex. Sept. 17, 2018).

         II.

         Qorane argues the BIA erred in its initial decision by denying him asylum, withholding of removal, and relief under the CAT. To be eligible for the discretionary relief of asylum, Qorane must prove "specific facts sufficient to demonstrate that [he] is a refugee." 8 U.S.C. § 1158(b)(1)(B)(ii). That means showing he was previously persecuted, or has a well-founded fear of future persecution, "on account of . . . membership in a particular social group." Id. § 1101(a)(42)(A). To obtain the mandatory relief of withholding of removal, Qorane bears a heavier burden-showing "a clear probability" his "life or freedom would be threatened" in Somalia because of his membership in a particular social group. Id. § 1231(b)(3)(A), (b)(3)(C); INS v. Stevic, 467 U.S. 407, 413 (1984); see 8 C.F.R. § 1208.16. Finally, to obtain relief under the CAT, Qorane's burden is heavier still. He needs to prove it is "more likely than not" he will be tortured in Somalia. 8 C.F.R. § 208.16(c)(2); see 8 U.S.C. § 1231 note (United States Policy With Respect to Involuntary Return of Persons in Danger of Subjection to Torture).

         The BIA denied all three forms of relief. We review its decision[1] for substantial evidence and reverse only if the evidence is "so compelling that no reasonable fact finder could fail to find the petitioner statutorily eligible for relief." Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (per curiam) (quotation omitted). Under this standard, all three of ...


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