                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-2004

Aden v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1864




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 03-1864
                                     ___________

                                 ABDIRIZAK ADEN,
                                             Petitioner
                                         v.

                         JOHN ASHCROFT, Attorney General
                               of the United States,
                                                 Respondent
                                   ___________

                  On Appeal from the Board of Immigration Appeals
                                (No. A76-142-495)
                                   ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 25, 2004

       Before: NYGAARD, AM BRO, and VAN ANTWERPEN, Circuit Judges.


                              (Filed: November 2, 2004)

                                     ___________

                              OPINION OF THE COURT
                                   ___________


NYGAARD, Circuit Judge.

             Abdirizak Aden (“Petitioner”) petitions for review of a final order by the

Board of Immigration Appeals (“Board”). The Board affirmed the decision of an
Immigration Judge (“IJ”) denying Petitioner asylum but granting him withholding of

removal. We will deny the petition.

                                             I.

              Petitioner is a native and citizen of Somalia, and a member of the minority

sub-clan Musa Said. In January 1991, he and his family were attacked in their home by

members of a rival clan, the Hawiye. Several men walked into Petitioner’s home, shot

him in the head, and killed two of his children. After recovering, Petitioner fled with his

family to the city of Kismayu, where they stayed for several days before fleeing again,

this time to a region near the Somali-Kenyan border. By March 1991, Petitioner and his

family moved to a refugee camp in Kenya. In 1996 Petitioner left the camp for South

Africa, hoping to find a better life and then send for his family, who remained behind.

Petitioner was granted asylum in South Africa on August 12, 1998. Nevertheless, he

found South Africa inhospitable and in 1999 he left. Petitioner eventually arrived in the

United States at Newark International Airport on July 3, 1999.

              Upon arrival, Petitioner was questioned by immigration officials. During

that questioning he failed to disclose that he had been granted asylum in South Africa.

On August 20, 1999, the Immigration and Naturalization Service charged Petitioner with

removability, claiming that he sought to enter the United States by fraud or wilful

misrepresentation and that he lacked valid entry documents. Petitioner conceded

removability for lack of valid entry documents but filed for asylum, withholding of



                                             2
removal, and protection under the Convention Against Torture (“CAT”). On his asylum

application, Petitioner stated under oath that he did not have asylum status in any other

country. (App. at 938).

              The IJ found that Petitioner had firmly resettled in South Africa and was

thus ineligible for asylum. The IJ also found Petitioner’s claims for withholding of

removal and CAT protection to be not credible. Specifically, the IJ noted that in sworn

statements Petitioner repeatedly failed to disclose that he had been granted asylum in

South Africa to immigration officials, on his asylum application, or to the IJ at several

previous hearings. (App. at 57–59). Thus the IJ denied those claims as well.

              On appeal, the Board found that Petitioner had established a credible claim

of past persecution and a well-founded fear of future persecution based on the January

1991 attack. The Board therefore found him eligible for asylum. However, in light of a

then-recent case from this Court, the Board remanded for a finding on whether Petitioner

was precluded from receiving asylum by firm resettlement in South Africa.

              On remand, the government did not pursue the firm resettlement issue and,

despite Petitioner’s eligibility for asylum, instead asked the IJ to deny asylum as a matter

of discretion. Finding that Petitioner knowingly submitted an asylum application

containing a false statement and that he failed to testify truthfully concerning his asylum

status in South Africa, the IJ denied Petitioner’s request for asylum as a matter of

discretion. (App. at 38). The IJ did, however, grant Petitioner’s request for withholding



                                              3
of removal to Somalia. (App. at 39). The Board summarily affirmed the decision of the

IJ and this appeal followed.

                                              II.

              This Court has jurisdiction to review a final order by the Board pursuant to

8 U.S.C. § 1252. Although we ordinarily review the decision of the Board, when the

Board defers to the IJ we review the IJ’s decision instead. Abdulai v. Ashcroft, 239 F.3d

542, 549 n. 2 (3rd Cir. 2001). We must uphold a discretionary grant or denial of asylum

unless it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. §

1252(b)(4)(D). As for the IJ’s findings of fact, we will uphold them if they are

“supported by reasonable, substantial, and probative evidence on the record considered as

a whole.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1 (1992) (quotation omitted).

                                              A.

              The Attorney General has the discretionary power to grant asylum to an

alien who qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1); Dia v. Ashcroft, 353 F.3d 228,

234 n. 1 (3rd Cir. 2003). A refugee is an individual unable or unwilling to return to his or

her home country “because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42)(A). Qualification as a “refugee,” however, does not

automatically entitle an alien to a grant of asylum. Instead, it is within the discretion of

the Attorney General (and by proxy the Board) to determine whether an alien merits that



                                               4
grant. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5 (1987); see Dia, 334 F.3d at

234 n. 1. In making this determination, the Board must examine the totality of the

circumstances. In re H-, 21 I. & N. Dec. 337, 347 (1996). It must give heed to any

compelling humanitarian considerations that would arise should the applicant be returned

to a country where he or she has been persecuted in the past. Id. In fact, “the danger of

persecution should generally outweigh all but the most egregious of adverse factors.”

Matter of Pula, 19 I. & N. Dec. 467, 474 (1987) (superseded by statute on other grounds).

The burden of establishing that a favorable exercise of discretion is warranted falls on the

asylum applicant. Id.; In re H-, 21 I. & N. Dec. at 347.

                                             B.

              The IJ found that Petitioner misled the court by repeatedly failing to

disclose his asylum status in South Africa at several immigration hearings. (App. at 38).

In addition, the IJ found that Petitioner knowingly submitted an asylum application

containing a false statement: that he had not received asylum in any other country. (App.

at 38). Petitioner challenges these findings of fact, apparently arguing that they are not

supported by substantial evidence. To the extent that is Petitioner’s argument, we

disagree. The record demonstrates that on several occasions, while under oath, Petitioner

failed to disclose that he had been granted asylum in South Africa. (See App. at 461).

Moreover, Petitioner admits that he made a false statement on his asylum application,




                                              5
stating “[i]t was a big mistake to lie.” (App. at 941). These findings are supported by

substantial evidence and we will uphold them.

              Based on the finding that Petitioner failed to disclose his asylum status in

South Africa, the IJ, as a matter of discretion, denied Petitioner asylum in the United

States. Petitioner challenges this holding as well. He stresses that if sent back to Somalia

he would face persecution. And since “the danger of persecution should generally

outweigh all but the most egregious of adverse factors,” Matter of Pula, 19 I. & N. Dec.

at 474, Petitioner contends that the IJ’s denial of asylum was an abuse of discretion.

Again, we disagree. Because he has been granted withholding of removal as to Somalia,

Petitioner’s argument is wholly irrelevant. By statute he cannot be sent back to that

country. See 8 U.S.C. § 1231(b)(3)(A). Thus, the “danger of persecution” is not a factor

in this case. Absent this danger, and given Petitioner’s repeated failure to disclose his

grant of asylum in South Africa, the IJ’s decision was not an abuse of discretion.

                                             III.

              Petitioner has not demonstrated that the IJ’s discretionary denial of asylum

was an abuse of discretion. We therefore deny the petition for review.
