Abdurahman Kemi v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 10 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ABDURAHMAN OSMAN KEMI, No. 10-71599

Petitioner, Agency No. A074-352-474

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 6, 2014**
Pasadena, California

Before: BYBEE, BEA, and IKUTA, Circuit Judges.

Abdurahman Osman Kemi, a native and citizen of Ethiopia, petitions for

review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from

an Immigration Judge’s (“IJ”) denial of his request for a continuance, as well as his

applications for suspension of deportation, asylum, withholding of deportation, and

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
relief under the Convention Against Torture (“CAT”). We have jurisdiction under

8 U.S.C. § 1252, and we deny the petition for review.

“When the BIA conducts an independent review of the IJ’s findings we

review the BIA’s decision and not that of the IJ. To the extent the BIA incorporates

the IJ’s decision as its own, we treat the IJ’s statements of reasons as the BIA’s and

review the IJ’s decision.” Sinotes-Cruz v. Gonzales, 468 F.3d 1190, 1194 (9th Cir.

2006) (citation omitted).

“[W]e review de novo both purely legal questions and mixed questions of

law and fact.” Mendoza-Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012)

(internal quotation marks and citation omitted). In contrast, factual determinations

are reviewed for substantial evidence. Id. “Under the substantial evidence standard,

a petitioner can obtain reversal only if the evidence compels a contrary

conclusion.” Zarate v. Holder, 671 F.3d 1132, 1134 (9th Cir. 2012).

Substantial evidence supports the BIA’s finding that Kemi was “firmly

resettled” in Germany under 8 C.F.R. § 1208.15. Kemi concedes that he was

granted lawful permanent residency in Germany. The burden was therefore on

Kemi to show that he falls within one of the regulatory exceptions, 8 C.F.R. §

1208.15(a) or (b). Maharaj v. Gonzales, 450 F.3d 961, 964 (9th Cir. 2006). He has

not done so. The record establishes that Kemi lived in Germany for over nine

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years, worked in Germany, married a German citizen, rented a residence in

Germany, paid taxes, received unemployment benefits, and generally enjoyed the

benefits available to other lawful residents of that country. As a result, Kemi is

ineligible for asylum relief from Ethiopia. 8 U.S.C. § 1158(b)(2)(A)(vi).

Substantial evidence supports the BIA’s conclusion that Kemi did not

establish a clear probability of persecution or torture in Ethiopia on the basis of his

Oromo ethnicity. The record supports the BIA’s finding that Oromos are not

targeted on the basis of their ethnicity alone, independent of their known or

suspected political sympathies. Moreover, the record supports the BIA’s finding

that Kemi would not be targeted as a member of a disfavored group. Kemi

testified: (1) he “do[es] not want to get involved in any politics”; (2) his fear of

future persecution is based only on his Oromo ethnicity; (3) he has had no political

involvement for more than three decades; (4) he has successfully resisted Oromo

Liberation Front recruitment in the United States; and (5) though he speaks

Amharic fluently, he “[b]arely” speaks Oromo. Therefore, Kemi has failed to show

that the record compels reversal of the BIA’s conclusion.

Substantial evidence supports the BIA’s conclusion that the abuse Kemi

suffered in Germany did not rise to the level of past persecution. Lanza v. Ashcroft,

389 F.3d 917, 934 (9th Cir. 2004) (cautioning that persecution “is an extreme

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concept that does not include every sort of treatment our society regards as

offensive” (internal quotation marks and citations omitted)). The abuse that Kemi

suffered consisted mostly of racial slurs and bottle throwing. Such discrimination

is reprehensible, but the standard for persecution is more demanding. Like the

petitioner in Nagoulko v. INS, 333 F.3d 1012, 1014–16 (9th Cir. 2003), Kemi was

verbally harassed, suffered relatively minor physical abuse, and struggled to find

work; he did not face specific, violent threats like those received by the petitioner

in Mashiri v. Ashcroft, 383 F.3d 1112, 1119–20 (9th Cir. 2004). Accordingly,

Kemi has failed to show that the record compels the conclusion that he suffered

persecution in Germany.

Substantial evidence supports the BIA’s conclusion that Kemi did not

establish a clear probability of future persecution or torture in Germany on the

basis of his race or foreign status. Although the Country Report acknowledges

governmental and societal discrimination against minority groups, as well as

physical harassment of foreigners and racial minorities, it also indicates that the

German government has devoted significant resources to prevent discrimination

against vulnerable groups and that German law provides substantial protection to

racial and ethnic minorities. As a result, Kemi cannot show that the record compels

reversal of the BIA’s conclusion.

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An IJ has discretionary authority to grant a motion for continuance at her

own convenience, for good cause shown, or upon application by one of the parties.

8 C.F.R. §§ 1003.29, 1240.6. The BIA reviews de novo all matters of discretion,

including whether to grant a motion for continuance. Id. § 1003.1(d)(3)(ii). We

review the agency’s denial of a continuance for abuse of discretion, considering on

a case by case basis “(1) the importance of the evidence, (2) the unreasonableness

of the immigrant’s conduct, (3) the inconvenience to the court, and (4) the number

of continuances previously granted.” Cui v. Mukasey, 538 F.3d 1289, 1292 (9th

Cir. 2008). The BIA did not abuse its discretion in affirming the IJ’s denial of the

continuance for three reasons. First, Kemi had more than two years to prepare all

of his applications. Second, contrary to Kemi’s assertions, his attorney’s decision

to focus on the application for suspension of deportation was tactical in nature, and

Kemi is bound by his attorney’s tactical decisions, even if they prove unwise.

Magallanes-Damian v. INS, 783 F.2d 931, 934 (9th Cir. 1986). Third, the record

does not suggest that Kemi was unprepared to present all of his applications at the

2008 merits hearing. Matter of Sibrun, 18 I. & N. Dec. 354, 356 (BIA 1983) (“[A]n

[IJ’s] decision denying the motion for continuance will not be reversed unless the

alien establishes that [the] denial caused him actual prejudice.”). At that hearing,

Kemi submitted more than fifty pages of evidence relating to conditions in

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Ethiopia and Germany, presented detailed testimony about his experiences and

fears regarding both countries, and had his brother testify in support of his claims

of past persecution and fear of future harm.

DENIED.