Hassan Mohamed Farah v. Michael W. Meade ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12462
________________________
Agency No. A071-704-330
HASSAN FARAH,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_______________________
No. 20-12941
________________________
D.C. Docket No. 1:20-cv-22074-RNS
HASSAN MOHAMED FARAH,
Petitioner-Appellant,
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versus
MICHAEL W. MEADE,
Field Office Director, Miami Field Office,
U.S. Immigration and Customs Enforcement, et al,
Respondents-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_______________________
(September 8, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and SELF, *
District Judge.
WILLIAM PRYOR, Chief Judge:
Hassan Farah, a criminal alien facing deportation to Somalia, petitions for
review of the order of the Board of Immigration Appeals confirming his
removability and denying his applications for withholding of removal, protection
under the Convention Against Torture, and a refugee inadmissibility waiver. He
also appeals the denial of his petition for a writ of habeas corpus. We previously
stayed Farah’s order of removal. We now dismiss in part and deny in part his
petition for review, and we dissolve the stay of removal. In the light of that
*
Honorable Tilman Eugene Self III, United States District Judge for the Middle District
of Georgia, sitting by designation.
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decision, we also conclude that his habeas petition is moot as to one issue and not
ripe as to another. So we vacate and remand with instructions to dismiss his habeas
petition.
I. BACKGROUND
According to his account, Hassan Farah was born in Somalia as a member of
the Darod tribe. In 1991, when he was a child, men from the Hawiye tribe executed
his father, raped his sister, and burned his home. He and his surviving family
members fled to Kenya.
In 1996, Farah entered the United States as a refugee. A few years later, he
applied for adjustment of status, but the government denied his application because
he failed to appear for fingerprinting.
Between 2003 and 2006, Farah was convicted of several crimes in
Minnesota. Those crimes included fourth-degree assault and fleeing a police
officer in a motor vehicle, for which he was sentenced to a year and a day of
imprisonment. Not surprisingly, Farah’s crimes came to the attention of federal
immigration officials.
The United States started removal proceedings against Farah in late 2006. It
charged him as an alien without a valid travel document who had been convicted
of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I),
(a)(7)(A)(i)(I). Farah’s notice to appear did not include a date or a time for his
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removal hearing, but he received a follow-up notification with that information a
week later. At his hearing, Farah conceded that he was removable and did not seek
any form of relief, so the immigration judge ordered his removal. The government
kept Farah in custody at a detention center but released him after six months
pending his removal from the United States.
Following his release, Farah committed numerous other crimes under
Minnesota law, including interfering with a 911 call, fifth-degree possession of a
controlled substance, and second-degree assault. For the second-degree assault
conviction, he was sentenced to 39 months of imprisonment. After his release from
prison, federal officials took custody of him again.
In December 2017, federal officials tried to deport Farah and 91 other
Somalis back to Somalia on a chartered flight, but the flight never reached its
destination. Instead, it spent two days on the ground and in the air before returning
to the United States. Farah alleges that he and the other detainees on the flight were
physically abused and prevented from using the bathroom for many hours. Several
passengers on this flight later brought a class-action suit against the government.
See Ibrahim v. Acosta, No. 17-cv-24574, 2018 WL 582520 (S.D. Fla. Jan. 26,
2018).
In May 2018, Farah moved to reopen his removal proceedings because of
changed country circumstances, and the immigration judge granted his motion.
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Farah then moved to terminate the proceedings. He argued that his notice to appear
was defective because it did not provide a date and time for his hearing and it
erroneously charged him as an arriving alien instead of as a refugee. The
immigration judge denied his motion.
The government then filed additional charges against Farah and replaced the
allegations in the original charging document with a new list. It alleged that Farah
had been convicted in Minnesota of fourth-degree assault, Minn. Stat. § 609.2231,
subd. 1; interfering with a 911 call, id. § 609.78, subd. 2; second-degree assault
involving domestic violence, id. § 609.222, subd. 1; and fifth-degree possession of
a controlled substance, id. § 152.025, subd. 2(a)(1) (2010) (current version at
Minn. Stat. § 152.025, subd. 2(1)). And it alleged that Farah received sentences of
a year and a day of imprisonment for the fourth-degree assault conviction and 39
months of imprisonment for the second-degree assault conviction. It charged Farah
as removable for having been convicted of two or more crimes involving moral
turpitude not arising out of a single incident, 8 U.S.C. § 1227(a)(2)(A)(ii); an
aggravated felony, id. § 1227(a)(2)(A)(iii); a controlled-substance offense, id.
§ 1227(a)(2)(B)(i); and a crime of domestic violence, id. § 1227(a)(2)(E)(i).
Farah moved to transfer his immigration proceedings from Minnesota to
Florida, where he was being held in a detention center. The immigration judge
granted his request. Farah then admitted to all the government’s factual allegations
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but contested the four charges. He also applied for asylum, withholding of
removal, protection under the Convention Against Torture, and a refugee
inadmissibility waiver.
The immigration judge conducted a hearing at which Farah and his wife
testified. Farah explained that he was afraid to return to Somalia because he was an
“Americanized” Somali. He said that two of his cousins who were deported to
Somalia were killed because they spoke English instead of Somali. And he alleged
that the Somali government would not protect him because it was secretly working
with the Islamic militant group al-Shabaab. He also asserted that his wife worked
two jobs to support their children, three of whom had serious medical problems.
His wife confirmed the statements about her work schedule and their family.
The immigration judge credited the testimony of Farah and his wife but
denied the applications for relief. First, the immigration judge found that Farah was
ineligible for asylum because the second-degree assault conviction was an
aggravated felony. See 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i). He then found
that Farah was still statutorily eligible for withholding of removal and for
protection under the Convention Against Torture because the assault convictions
were not “particularly serious crime[s].” But the immigration judge nevertheless
denied the application for withholding of removal because Farah failed to establish
that he had suffered any past harm rising to the level of persecution, he failed to
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demonstrate a likelihood of future persecution, and he failed to establish a nexus
between the anticipated persecution and the proffered grounds of being an
“Americanized” Somali and a moderate Muslim. The immigration judge also
denied the application for protection under the Convention Against Torture
because Farah failed to establish that he would likely be tortured by or at the
instigation or acquiescence of a public official acting in an official capacity. Next,
the immigration judge determined that he lacked jurisdiction to adjudicate Farah’s
refugee inadmissibility waiver. In the alternative, he considered the merits of
Farah’s application and decided that he would not grant the inadmissibility waiver
even if he had jurisdiction.
In May 2019, the Board of Immigration Appeals affirmed the immigration
judge’s decision and dismissed Farah’s appeal. First, the Board rejected Farah’s
argument that the immigration judge lacked jurisdiction over the removal
proceedings because of the defective notice to appear. Second, it concluded that
Farah was removable for his controlled-substance conviction. It explained that
although the Minnesota controlled-substances statute under which Farah was
convicted was broader than the federal statute, the Minnesota statute was divisible
because the identity of the controlled substance is an element of the offense. And it
asserted that Farah’s conviction record “clearly reflects that he was convicted of
possessing marijuana, which is a federally controlled substance.” Third, it
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concluded that Farah’s conviction for second-degree assault was a crime of
violence, which made him removable as an aggravated felon. Fourth, the Board
decided that even if it had jurisdiction to adjudicate Farah’s inadmissibility waiver,
it would decline to grant the waiver. Without deciding whether Farah was a violent
or dangerous individual, it determined that Farah and his family would suffer
exceptional and extremely unusual hardship if he was deported. But based on
Farah’s many criminal convictions and long history of alcohol abuse and relapses,
it nonetheless concluded that Farah did not merit a discretionary waiver. Finally, it
concluded that the immigration judge’s findings concerning the applications for
withholding of removal and for protection under the Convention Against Torture
were not clearly erroneous.
Farah petitioned for review of the Board’s decision and moved for a stay of
removal. We denied his first motion. But after he filed a second motion, a divided
panel of this Court granted it and ordered the stay.
In May 2020, Farah petitioned for a writ of habeas corpus. 28 U.S.C. § 2241.
He alleged that his prolonged detention without a hearing since late 2017 was
unconstitutional. The district court denied the petition.
Relying on a footnote from our opinion in Akinwale v. Ashcroft, 287 F.3d
1050, 1052 n.4 (11th Cir. 2002), the district court concluded that Farah’s ongoing
detention was governed by a statute, 8 U.S.C. § 1231(a), that regulates the
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detention of aliens subject to a final order of removal. Under Supreme Court
precedent, detention under section 1231(a) is presumptively reasonable for six
months, after which an alien may challenge his ongoing detention by showing that
“there is no significant likelihood of removal in the reasonably foreseeable future.”
Zadvydas v. Davis, 533 U.S. 678, 682, 701 (2001). But the district court concluded
that Farah had “interrupted” his six-month clock by moving for and obtaining a
stay of removal, so his continued detention did not violate due process.
Farah appealed the denial of his habeas petition. He argues that his detention
is governed by a different statute, 8 U.S.C. § 1226(c), and he asks us to instruct the
district court to consider his as-applied constitutional challenge. We consolidated
Farah’s habeas appeal with his immigration petition. After the government released
Farah on his own recognizance to comply with a nationwide injunction concerning
detainees at heightened risk from the COVID-19 virus, it moved to dismiss Farah’s
appeal as moot.
II. STANDARDS OF REVIEW
We review the decision of the Board and the decision of the immigration
judge to the extent that the Board expressly adopted the immigration judge’s
opinion. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir. 2010). We
review legal questions de novo and administrative findings of fact for substantial
evidence. Id. at 948. We review our subject-matter jurisdiction de novo. Indrawati
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v. U.S. Att’y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Finally, we review the
denial of a habeas petition de novo. Singh v. U.S. Att’y Gen., 945 F.3d 1310, 1313
(11th Cir. 2019).
III. DISCUSSION
We begin with Farah’s petition for review of the Board’s decision. Farah
contends that he is entitled to a remand because of his defective notice to appear;
that his controlled-substance conviction is not a removable offense; that his
second-degree assault conviction is also not a removable offense; that the Board
erred in denying his inadmissibility waiver; and that the Board erred in denying his
applications for withholding of removal and for protection under the Convention
Against Torture. We address each argument in turn and explain why each fails. We
then turn to Farah’s appeal from the denial of his habeas petition and explain why
that petition should be dismissed.
A. Farah Failed to Preserve Whether His Defective Notice to Appear
Violated the Agency’s Claim-Processing Rules.
Farah argued in his appeal to the Board that the immigration judge lacked
jurisdiction over his removal proceedings because his notice to appear was
defective. A notice to appear for formal removal proceedings must contain “[t]he
time and place at which the proceedings will be held.” 8 U.S.C. § 1229(a)(1)(G)(i).
Any notice that does not contain this information is deficient. Pereira v. Sessions,
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138 S. Ct. 2105, 2110 (2018). But we held in Perez-Sanchez v. United States
Attorney General that the time-and-place requirement “sets forth only a claim-
processing rule,” not “a jurisdictional rule.” 935 F.3d 1148, 1154–55 (11th Cir.
2019). So the immigration court retains jurisdiction over an alien’s removal
proceedings even if the alien’s notice to appear does not contain the time or place
of the proceedings. Id. at 1157.
Farah acknowledges that our opinion in Perez-Sanchez forecloses the
jurisdictional argument that he made to the Board, and he argues instead that his
defective notice to appear violated the agency’s claim-processing rules. But
whether Farah is entitled to a remand because his defective notice to appear
violated the agency’s claim-processing rules is a separate issue from whether the
immigration court lacked jurisdiction over his removal proceedings. See id. And
Farah failed to exhaust that claim-processing argument because he never raised it
before the Board and the Board never considered it. Because we lack jurisdiction
to review issues that were not raised before the Board, see Indrawati, 779 F.3d at
1297, we must dismiss Farah’s petition as to this issue.
B. Farah Is Removable for His Controlled-Substance Conviction.
The Immigration and Nationality Act provides that an alien may be deported
if he is convicted of “a violation of . . . any law or regulation of a State, the United
States, or a foreign country relating to a controlled substance,” unless the sole
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offense is possession of 30 grams or less of marijuana for personal use. 8 U.S.C.
§ 1227(a)(2)(B)(i). Farah was convicted under a Minnesota statute that makes it a
crime to “possess[] one or more mixtures containing a controlled substance
classified in [Minnesota] Schedule I, II, III, or IV, except a small amount of
marijuana.” Minn. Stat. § 152.025, subd. 2(a)(1) (2010) (current version at Minn.
Stat. § 152.025, subd. 2(1)). The Board determined that Farah’s conviction
qualified as a removable offense under the Act. Farah challenges that decision in
his petition for review.
To determine whether a state offense makes an individual eligible for
removal, we apply either the categorical approach or the modified categorical
approach, depending on whether the state statute is divisible—“that is, [whether] it
lists a number of alternative elements that effectively create several different
crimes.” Guillen v. U.S. Att’y Gen., 910 F.3d 1174, 1180 (11th Cir. 2018) (internal
quotation marks omitted). If the state statute is not divisible, we apply the
categorical approach and “consider only the fact of conviction and the statutory
definition of the offense.” Id. (internal quotation marks omitted). “We do not
consider the facts of the case, and instead ask only whether the state statute
defining the crime of conviction categorically fits within the generic federal
definition of a corresponding [offense].” Donawa v. U.S. Att’y Gen., 735 F.3d
1275, 1280 (11th Cir. 2013) (internal quotation marks omitted). If the state statute
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is divisible, then we apply the modified categorical approach, under which we
“expand our inquiry beyond the fact of conviction and also look to the record of
conviction.” Id. (internal quotation marks omitted).
Farah and the government agree that, under the categorical approach,
subdivision 2(a)(1) of section 152.025 does not fit within the generic federal
offense because the state schedules list controlled substances that are not included
in the federal schedules. Compare 21 U.S.C. § 812, with Minn. Stat. § 152.02.
They disagree about whether the Board erred in applying the modified categorical
approach. So we must decide whether the state statute is divisible.
The Board did not err in concluding that subdivision 2(a)(1) of section
152.025 is divisible. We are persuaded by the reasoning of the Eighth Circuit in
Rendon v. Barr that “the identity of the controlled substance is an element of the
possession offense in the Minnesota statute.” 952 F.3d 963, 968 (8th Cir. 2020).
The statute makes it a crime to possess “a controlled substance” listed in the
Minnesota schedules of controlled substances. Minn. Stat. § 152.025, subd. 2(a)(1)
(2010) (emphasis added). “[T]he use of the singular shows that the statute
authorizes separate prosecutions for trafficking each of the various controlled
substances listed in the schedules,” which is possible only if “the identity of a
controlled substance is an element of the offense.” Martinez v. Sessions, 893 F.3d
1067, 1071 (8th Cir. 2018).
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This interpretation is supported by Minnesota caselaw. In State v.
Papadakis, the Minnesota Court of Appeals affirmed a conviction of seven counts
of fifth-degree drug possession where the defendant possessed many different
controlled substances at the time of his arrest. 643 N.W.2d 349, 352–53, 357–58
(Minn. Ct. App. 2002). It explained that the possession of multiple controlled
substances “at the same time and place, for personal use,” is not “a single criminal
act.” Id. at 357–58. And in State v. Vail, the Minnesota Supreme Court asserted
that “Minnesota law requires proof of the actual identity of the substance.” 274
N.W.2d 127, 134 (Minn. 1979). Farah argues that this statement is dicta. But even
if it is dicta, it provides us “with insight into [the Minnesota Supreme Court’s]
thinking.” Caradigm USA LLC v. PruittHealth, Inc., 964 F.3d 1259, 1283 (11th
Cir. 2020) (alterations adopted) (internal quotations marks omitted). And dicta on a
matter of state law from a state’s highest court is undoubtedly entitled to our
respect. See Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 69
(2016) (“[N]ot all dicta are created equal.”).
None of the opinions cited by Farah supports his contention that the identity
of the controlled substance is not an element of subdivision 2(a)(1) of section
152.025. Contrary to Farah’s argument, State v. Heck does not stand for a general
principle that anything listed after the words “to wit” in a charging document is not
an element of a crime, regardless of the criminal statute. 23 Minn. 549, 549–50
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(1877). And State v. King involves an unrelated question of state constitutional
law: whether the Minnesota legislature can, consistent with the Minnesota
Constitution, delegate its power to schedule controlled substances. 257 N.W.2d
693, 697 (Minn. 1977). Finally, State v. Ali concerns a defendant’s mens rea and
does not change the requirement that the government must prove the identity of a
controlled substance to obtain a conviction. 775 N.W.2d 914, 918–19 (Minn. Ct.
App. 2009).
Applying the modified categorical approach to the divisible statute and
expanding our inquiry to include Farah’s conviction record, we conclude that
substantial evidence supports the Board’s determination that Farah was convicted
of a removable offense. According to his criminal record, Farah’s conviction under
subdivision 2(a)(1) of section 152.025 was for possession of oxycodone
hydrochloride. The Board erroneously stated in its decision that Farah was
convicted of possessing marijuana. But that error is harmless because oxycodone
hydrochloride is a federally controlled substance. See 21 C.F.R.
§ 1308.12(b)(1)(xiv), (b)(2); Edelen v. Astrue, 711 F. Supp. 2d 1330, 1336 n.8
(N.D. Fla. 2010). In his reply brief, Farah argues that we should grant his petition
so that the Board can conduct an evidentiary hearing about his oxycodone
hydrochloride conviction, but he forfeited this argument by failing to raise it in his
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opening brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir.
2014).
The Board correctly determined that subdivision 2(a)(1) of section 152.025
is divisible, and substantial evidence supports its finding that Farah was convicted
of possessing a controlled substance included in the federal schedule. So the Board
did not err in determining that Farah is removable for having a controlled-
substance conviction. 8 U.S.C. § 1227(a)(2)(B)(i). We deny the petition for review
as to this issue.
C. Alternatively, Farah Is Removable for His Second-Degree Assault
Conviction.
The Immigration and Nationality Act provides that “[a]ny alien who is
convicted of an aggravated felony at any time after admission is deportable.” 8
U.S.C. § 1227(a)(2)(A)(iii). One kind of “aggravated felony” is “a crime of
violence . . . for which the term of imprisonment [is] at least one year.” Id.§ 1101(a)(43)(F). And a “crime of violence” is “an offense that has as an element
the use, attempted use, or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a).
Farah contends that the Board erred in finding him removable for an
aggravated felony based upon his conviction for second-degree assault. Minn. Stat.
§ 609.222, subd. 1. It is undisputed that Farah was sentenced to at least a year of
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imprisonment for his conviction under subdivision 1 of section 609.222. The
question we must decide is whether subdivision 1 fits within the federal definition
of a crime of violence under the categorical approach. See Jaggernauth v. U.S.
Att’y Gen., 432 F.3d 1346, 1353 (11th Cir. 2005).
Subdivision 1 of section 609.222 makes it a crime to “assault[] another with
a dangerous weapon.” Minn. Stat. § 609.222, subd. 1. “Assault” means either “an
act done with intent to cause fear in another of immediate bodily harm or death” or
“the intentional infliction of or attempt to inflict bodily harm upon another.” Id.§ 609.02, subd. 10. “Bodily harm” is “physical pain or injury, illness, or any
impairment of physical condition.” Id. § 609.02, subd. 7. And a “dangerous
weapon” is “any firearm, whether loaded or unloaded,” “any device designed as a
weapon and capable of producing death or great bodily harm,” “any combustible or
flammable liquid or other device or instrumentality that, in the manner it is used or
intended to be used, is calculated or likely to produce death or great bodily harm,”
or “any fire that is used to produce death or great bodily harm.” Id. § 609.02, subd.
6.
The Board correctly determined that subdivision 1 of section 609.222 is a
crime of violence. The statute requires the intentional or attempted infliction of
bodily harm, or an act done with the intent to cause fear of immediate bodily harm
or death. True, “bodily harm” could mean “illness” or “impairment of physical
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condition,” which do not necessarily require the use of physical force. Id. § 609.02,
subd. 7. In State v. Kelley, for example, the Minnesota Court of Appeals held, in
the context of a fourth-degree assault conviction, that spitting on or throwing feces
at another person satisfied the “bodily harm” requirement. 734 N.W.2d 689, 693
(Minn. Ct. App. 2007). But unlike a fourth-degree assault conviction, a second-
degree assault conviction also requires the use of a dangerous weapon, such as a
firearm. And an act committed with a dangerous weapon that either physically
harms someone or intentionally puts him in immediate fear of bodily harm or death
inherently requires the use, attempted use, or threatened use of physical force.
Our interpretation is supported by the decision of the Eighth Circuit in
United States v. Lindsey, which held that section 609.222 “requires the use,
attempted use, or threatened use of physical force against another.” 827 F.3d 733,
740 (8th Cir. 2016). To be sure, the issue in Lindsey was whether section 609.222
was a violent felony for purposes of the Armed Career Criminal Act, not whether it
was a crime of violence under the Immigration and Nationality Act. Id. But the
definition of a violent felony under the Armed Career Criminal Act is “virtually
identical” to the definition of a crime of violence under the Immigration and
Nationality Act. Lukaj v. U.S. Att’y Gen., 953 F.3d 1305, 1312 (11th Cir. 2020).
Even if Farah were not removable for his controlled-substance conviction,
he would be removable for his second-degree assault conviction. The Board did
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not err in finding that Farah’s conviction under subdivision 1 of section 609.222
was for an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). We deny Farah’s
petition for review as to this issue.
D. The Board Denied the Refugee Inadmissibility Waiver Under the Correct
Legal Standard.
The Attorney General and the Secretary of Homeland Security have the
discretion to waive a refugee’s inadmissibility “for humanitarian purposes, to
assure family unity, or when it is otherwise in the public interest.” Id. § 1159(c).
We generally lack jurisdiction to review discretionary decisions of the Attorney
General, including denials of inadmissibility waivers. Id. § 1252(a)(2)(B)(ii). We
retain jurisdiction over constitutional claims and questions of law. Id.
§ 1252(a)(2)(D). And whether the Board applied the correct legal standard is a
question of law. Frech v. U.S. Att’y Gen., 491 F.3d 1277, 1281 (11th Cir. 2007).
But a petitioner may not disguise a “garden-variety abuse of discretion
argument”—for example, that an immigration judge failed to properly weigh
certain facts—as a question of law. Alvarez Acosta v. U.S. Att’y Gen., 524 F.3d
1191, 1196–97 (11th Cir. 2008). Otherwise, the jurisdictional bar in section
1252(a)(2) “would be meaningless.” Id. at 1197.
Farah argues that the Board misapplied the legal guidelines for evaluating
refugee inadmissibility waivers that the Attorney General established in In re Jean,
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23 I. & N. Dec. 373 (U.S. Att’y Gen. 2002). “[T]he first step is to determine if the
refugee is a violent or dangerous individual.” Makir-Marwil v. U.S. Att’y Gen., 681
F.3d 1227, 1229 (11th Cir. 2012) (internal quotation marks omitted). At step two,
“[i]f the refugee is not violent or dangerous, the general statutory standard for a
[section 1159(c)] waiver applies, and the refugee must show that the waiver would
serve humanitarian purposes, would assure family unity, or otherwise would be in
the public interest.” Id. (internal quotation marks omitted). But if the refugee is
violent or dangerous, then he “must satisfy both the statutory standard and [a]
heightened, extraordinary circumstances standard,” specifically, “that national
security or foreign policy considerations warrant the waiver or that denial of the
waiver would result in exceptional and extremely unusual hardship to the refugee.”
Id. (internal quotation marks omitted). Finally, even if the refugee satisfies these
standards, the Attorney General may still exercise his discretion to deny the
waiver. See In re C-A-S-D-, 27 I. & N. Dec. 692, 699 (B.I.A. 2019).
The Board applied the Jean guidelines correctly even if it did not address
every conceivable issue. It explained that it was unnecessary to decide whether
Farah was a violent or dangerous individual because he had established
“extraordinary circumstances” in that he and his family would “suffer exceptional
and extremely unusual hardship” if he were deported to Somalia. In other words, it
was unnecessary to decide step one of Jean because Farah satisfied both the
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general and the heightened standards at step two. The Board ultimately denied
Farah’s inadmissibility waiver, despite the extraordinary circumstances, because of
his long criminal history and chronic problems with alcohol. We find no legal error
in the Board’s analysis, so we deny Farah’s petition as to this issue.
We also find no legal error in the Board’s decision not to resolve the related
jurisdictional question. The immigration judge concluded that he lacked
jurisdiction to review the inadmissibility waiver and that, alternatively, the waiver
should be denied. The Board declined to decide the jurisdictional question because
it agreed that Farah did not deserve a discretionary waiver. Farah contends that
skipping the jurisdictional issue was a legal error requiring reversal. It is odd that
Farah would make this argument, as the Board’s decision to consider the merits of
his waiver request worked in his favor. Regardless, “[a]s a general rule courts and
agencies are not required to make findings on issues the decision of which is
unnecessary to the results they reach.” Immigr. & Naturalization Serv. v.
Bagamasbad, 429 U.S. 24, 25 (1976). Because the Board concluded that Farah did
not merit an inadmissibility waiver, deciding the jurisdictional question would not
have changed the outcome. The Board was not required to make an unnecessary
determination.
Farah’s remaining arguments are merely “garden-variety abuse of discretion
argument[s],” not questions of law. Alvarez Acosta, 524 F.3d at 1196. He contends
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that the Board “fail[ed] to engage in a balancing of all adverse and favorable
factors” in its discretionary analysis. And he argues that the Board “failed to follow
the legal rule . . . that the demonstration of exceptional and extremely unusual
hardship must be employed as a significant favorable factor in the discretionary
analysis.” But disagreement with how the Board weighed a set of issues is not a
legal argument. Id. So we must dismiss Farah’s petition as to these issues.
E. The Board Did Not Err in Denying Farah’s Applications for Withholding
of Removal and for Protection Under the Convention Against Torture.
Farah challenges the Board’s denial of his applications for withholding of
removal under the Immigration and Nationality Act and for protection under the
Convention Against Torture. To qualify for withholding of removal under the Act,
an alien must show that, if returned to his country, his life or freedom would be
threatened on account of his race, religion, nationality, membership in a particular
social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). To qualify for
protection under the Convention Against Torture, an alien must establish that he
will more likely than not be tortured if removed to his country. 8 C.F.R.
§ 208.16(c)(2); Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.
2004). Torture must be “inflicted by, or at the instigation of, or with the consent or
acquiescence of, a public official acting in an official capacity or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).
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We begin by inquiring into our jurisdiction to review Farah’s challenges to
these decisions. We do not have jurisdiction to review factual challenges to a final
removal order against an alien who is removable for having committed certain
crimes, including aggravated felonies and controlled-substance offenses. See 8
U.S.C. § 1252(a)(2)(C). But we have jurisdiction to review factual challenges to an
order denying protection under the Convention Against Torture to that same alien.
Nasrallah v. Barr, 140 S. Ct. 1683, 1694 (2020). We also have jurisdiction to
review all “constitutional claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D).
Because Farah is removable for an aggravated felony and a controlled-substance
offense, we cannot review any factual challenges to the denial of his application
for withholding of removal. But we can review factual challenges to the denial of
his application for protection under the Convention Against Torture. And we can
review any questions of law that Farah raises about either decision.
Farah argues that the Board committed an error of law by failing to give
reasoned consideration to his applications for withholding of removal and for
protection under the Convention Against Torture. “To determine whether the
Board gave reasoned consideration to a petition, we inquire only whether the
Board considered the issues raised and announced its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013)
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(alterations adopted) (internal quotation marks omitted). “Although the Board must
consider all of the relevant evidence, the Board need not address specifically each
claim the petitioner made or each piece of evidence the petitioner presented.” Id.(internal quotation marks omitted). The Board “does not give reasoned
consideration to a claim when it misstates the contents of the record, fails to
adequately explain its rejection of logical conclusions, or provides justifications for
its decision which are unreasonable and which do not respond to any arguments in
the record.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016).
We conclude that the Board gave reasoned consideration to Farah’s
applications for relief. It cited evidence from the record showing that Somalia is “a
country experiencing a high level of violence, including killings and human rights
abuses” by al-Shabaab. It also referred to evidence establishing that al-Shabaab
does not control certain areas of the country. And it cited reports that the Somali
government was fighting against al-Shabaab and other extremist groups. Based on
that evidence, the Board found that Farah failed to establish that he would likely be
targeted for persecution or that he could not relocate to a part of the country where
he would not be persecuted. See 8 C.F.R. § 1208.16(b)(2). And it found that Farah
had failed to establish that he would more likely than not be tortured “at the
instigation of, or with the consent or acquiescence of, a public official acting in an
official capacity or other person acting in an official capacity” in Somalia. Id.24
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§ 1208.18(a)(1). In making these findings, the Board did not misstate the contents
of the record, fail to adequately explain its conclusions, or provide justifications
that were unreasonable or unresponsive to any arguments. See Jeune, 810 F.3d at
803.
Farah argues that the Board “ignored the mountain of evidence supporting
[his] claims,” including two sworn declarations by experts on Somalia. But the
Board is not required to address specifically each piece of evidence that Farah
presented. Perez-Guerrero, 717 F.3d at 1232. And “we lack jurisdiction to review
petitions that contest the weight and significance given by the Board to various
pieces of evidence.” Id. (alteration adopted) (internal quotation marks omitted).
Farah contends that his petition is similar to the one we granted in
Gaksakuman v. United States Attorney General, 767 F.3d 1164 (11th Cir. 2014). In
Gaksakuman, an immigration judge concluded that the absence of evidence in
State Department country reports rebutted an asylum-seeker’s evidence that he
would be persecuted or tortured upon his return to his home country. Id. at 1170.
We held that the immigration judge applied flawed logic when he relied on silence
in the State Department reports without discrediting the asylum-seeker’s evidence
or giving more weight to contrary evidence. Id. So we vacated the Board’s order
for failure to give reasoned consideration. Id. at 1171. Farah argues that the Board
and the immigration judge who considered his application likewise relied on
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silence in the record to conclude that “Americanized” Somalis are not subject to
persecution. And he contends that they improperly relied on reports that the Somali
government is fighting al-Shabaab to rebut his evidence that the government is
secretly working with the militant group.
We are not persuaded by Farah’s comparisons of his petition to
Gaksakuman. The immigration judge did not rely on silence in country reports to
rebut Farah’s assertion that “Americanized” Somalis suffer persecution. Indeed, he
agreed that the evidence established that Somali returnees suffer harassment and
discrimination, but he found that the harm they suffered did not rise to the level of
persecution. Farah’s argument about whether the Somali government is fighting al-
Shabaab also misunderstands our holding in Gaksakuman. The immigration judge
and the Board relied on evidence in the record—not silence—to discredit Farah’s
assertion that the government is working with al-Shabaab. The flawed logic that
we rejected in Gaksakuman is not present here.
The dissent contends that the Board failed to give reasoned consideration to
Farah’s application for withholding of removal because it “ignored highly relevant
evidence” that westernized Somali returnees are persecuted and that al-Shabaab
exercises influence throughout Somalia. Dissenting Op. at 48. Although we have
repeatedly emphasized that “the Board does not need to discuss all record
evidence” “to write a reviewable decision,” we have acknowledged that, “[i]n
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some cases, . . . it is practically impossible for the Board to write a reviewable
decision without discussing ‘highly relevant’ evidence.” Ali v. U.S. Att’y Gen., 931
F.3d 1327, 1334 (11th Cir. 2019) (quoting Min Yong Huang v. Holder, 774 F.3d
1342, 1349 (11th Cir. 2014)). But we have so far provided little guidance about the
kind of “highly relevant” evidence that the Board must acknowledge for its
decision to be reviewable.
Highly relevant evidence is necessarily a subset of evidence. If it were
otherwise, a reviewing court could abuse the reasoned-consideration requirement
by characterizing any evidence not discussed by the Board as highly relevant. “To
generate grounds for reviewability in this Court, the Board does not need to do
much. We just need to be left with the conviction that the Board has heard and
thought about the case and not merely reacted.” Id. at 1333 (alteration adopted)
(internal quotation marks omitted).
Our previous opinions offer some direction as to what evidence qualifies as
highly relevant. In Min Yong Huang v. Holder, we held that the Board did not give
reasoned consideration to an application for relief based on religious persecution
because the Board discussed only the record evidence relating to “physical abuse”
and failed to mention “the types of religious abuse” that are “highly relevant” to a
claim of religious persecution, such as breaking up religious services, destroying
churches, and confiscating religious materials. 774 F.3d at 1347–49. In other
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words, the Board cited only evidence that was minimally probative to the
application for relief and ignored evidence that was much more probative. And in
Ali v. United States Attorney General, we held that the Board failed to give
reasoned consideration to another application for relief based on religious
persecution because it did not acknowledge numerous pieces of evidence that
“seem[ed] to compel a contrary conclusion.” 931 F.3d at 1334, 1337 (alteration
adopted) (internal quotation marks omitted). We clarified that, on remand, the
Board was free to “accord[] [this] highly relevant evidence less weight than other
evidence,” to “discredit[] [it] altogether,” or to “explain why [it did] not meet the
legal standard of religious persecution.” Id. at 1336–37. But, as written, the failure
to discuss the highly relevant evidence “l[ed] to illogical conclusions—ones that
cast doubt on whether the Board considered that evidence in the first place.” Id. at
1336.
If evidence is highly relevant, the Board must at least acknowledge that
evidence, either implicitly or explicitly, in its decision. To be clear, the Board need
not “write an exegesis” on the highly relevant evidence. Min Yong Huang, 774
F.3d at 1349 (internal quotation marks omitted). But its decision must leave us
with the conviction that it “considered and reasoned through” the highly relevant
evidence. Ali, 931 F.3d at 1331.
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Applying this standard, none of the evidence cited by the dissent is highly
relevant to Farah’s application for relief. There is no logical contradiction between
the finding that westernized Somali returnees are subject to harassment not rising
to the level of persecution and the record evidence showing that al-Shabaab
commits human rights abuses against its opponents. See Dissenting Op. at 48–50.
The former is a description of how those returnees are treated by Somali society in
general; the latter involves the activities of an armed guerrilla group operating in
some but not all areas of Somalia. Nor is there a logical contradiction between the
finding that Farah failed to show that he could not relocate to an area of Somalia
not controlled by al-Shabaab and the record evidence of al-Shabaab’s influence.
See id. at 51–53. That an armed guerilla group exercises considerable influence
does not mean that there is nowhere a returnee could safely relocate, let alone that
the returnee met his burden of showing in an administrative hearing that internal
relocation would be unreasonable.
Farah argues that the Board committed another error of law in finding that
he suffered no past persecution, but any such error is irrelevant to his petition. The
Board determined that the execution of Farah’s father, the rape of his sister, and
the burning of his home by a rival tribe did not amount to persecution of Farah
because those actions were not directed against him personally. That determination
might have been erroneous because “threats or harm to a person other than the
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alien may constitute evidence that the alien suffered past persecution where that act
concomitantly threatens the petitioner.” Rodriguez v. U.S. Att’y Gen., 735 F.3d
1302, 1308 (11th Cir. 2013) (emphasis added) (internal quotation marks omitted).
But even if the Board misapplied the law by failing to find that Farah suffered past
persecution, that past persecution would have been on the basis of Farah’s tribal
membership, not the grounds listed in his application for relief. So any finding of
past persecution because of tribal membership would not help Farah satisfy his
burden of establishing a likelihood of future persecution on the grounds that he
alleged in his application for relief. See 8 C.F.R. § 1208.16(b)(1)(iii).
Farah’s argument that the Board failed to apply the correct test for whether
internal relocation in Somalia was reasonable is also unavailing. When the
applicant does not establish past persecution, he “bear[s] the burden of establishing
that it would not be reasonable for him . . . to relocate, unless the persecutor is a
government or is government-sponsored.” Id. § 1208.16(b)(3)(i). Moreover, when
the persecutor is not a government or government-sponsored, regardless of whether
the applicant established past persecution, we presume that internal relocation
would be reasonable, unless the applicant establishes otherwise by a preponderance
of the evidence. Id. § 1208.16(b)(3)(iii). Here, Farah did not establish past
persecution on the basis of being an “Americanized Somali” and a moderate
Muslim, and al-Shabaab is neither a government nor sponsored by a government.
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So the Board correctly presumed that internal relocation in Somalia was
reasonable, and Farah had the burden of proving otherwise, which he did not do.
Finally, to the extent that Farah challenges the Board’s factual finding that
he is not entitled to protection under the Convention Against Torture, we deny his
petition because substantial evidence supports the Board’s decision. Farah does not
assert that he has ever been tortured in the past, nor does he allege that he is likely
to be tortured in the future, by a Somali government official. He does allege that
the Somali government is working with al-Shabaab, so he presumably fears being
tortured by al-Shabaab “at the instigation of, or with the consent or acquiescence
of,” a government official. Id. § 1208.18(a)(1). But the record includes evidence
that the Somali government is fighting al-Shabaab. So the Board was entitled to
find that it is unlikely that a government official would instigate or acquiesce to
Farah’s torture by al-Shabaab.
We deny Farah’s petition for review as to his challenge against the denial of
withholding of removal and of protection under the Convention Against Torture.
And, having reviewed Farah’s petition for review and found no meritorious
argument, we also dissolve the stay of his removal order. We now turn to his
appeal from the denial of his habeas petition.
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F. Farah’s Habeas Petition Is Moot as to Detention Under Section 1226(c),
and It Is Not Ripe as to Detention Under Section 1231(a).
Farah’s petition for a writ of habeas corpus involves two separate provisions
of the Immigration and Nationality Act. The first is section 1226(c), which
provides that “[t]he Attorney General shall take into custody any alien who” is
removable for having committed certain crimes, including an aggravated felony
and a controlled-substance offense. 8 U.S.C. § 1226(c)(1). Detention under this
provision is mandatory for any alien falling within its scope and “may end prior to
the conclusion of removal proceedings only if the alien is released for witness-
protection purposes.” Jennings v. Rodriguez, 138 S. Ct. 830, 847 (2018) (internal
quotation marks omitted); see 8 U.S.C. § 1226(c)(2). The second provision is
section 1231(a), which governs the detention of aliens who have been ordered
removed. 8 U.S.C. § 1231(a).
When an alien receives a removal order, the Attorney General has 90 days to
remove him from the United States. Id. § 1231(a)(1)(A). This “removal period”
begins on the latest of three dates: “[t]he date the order of removal becomes
administratively final”; “[i]f the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the court’s final order”; and
“[i]f the alien is detained or confined (except under an immigration process), the
date the alien is released from detention or confinement.” Id. § 1231(a)(1)(B). The
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removal period is extended beyond 90 days if the alien fails to make good-faith
efforts to obtain necessary travel documents or otherwise “acts to prevent [his]
removal.” Id. § 1231(a)(1)(C).
Subsection (a)(2) requires the Attorney General to detain an alien “[d]uring”
his removal period. Id. § 1231(a)(2). And subsection (a)(6) provides that the
Attorney General may detain a qualifying criminal alien “beyond” his removal
period. Id. § 1231(a)(6). Although subsection (a)(6) does not contain an explicit
time limit on detention, the Supreme Court recognized in Zadvydas v. Davis that
the Attorney General may not detain an alien under section 1231(a) beyond his
removal period “once removal is no longer reasonably foreseeable.” 533 U.S. at
699. The Court held that six months is a presumptively constitutional period of
detention, after which the alien can challenge his ongoing detention on the ground
that “there is no significant likelihood of removal in the reasonably foreseeable
future.” Id. at 701.
The district court reviewing Farah’s habeas petition concluded that his
ongoing detention was governed by section 1231(a). Farah’s removal order became
administratively final when the Board dismissed his appeal in May 2019, and his
removal period began at that time. 8 U.S.C. § 1231(a)(1)(B)(i). His detention was
then governed by section 1231(a) because it was “[d]uring [his] removal period.”
Id. § 1231(a)(2). Several months later, Farah moved for and obtained a stay of
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removal from our Court. The district court determined that even after the stay,
Farah’s detention was still governed by section 1231(a). It relied on a footnote
from our opinion in Akinwale v. Ashcroft, where we said that an alien who moved
for and obtained a stay of removal “act[ed] to prevent [his] removal” under section
1231(a)(1)(C) and “interrupted the running of time under Zadvydas.” 287 F.3d at
1052 n.4 (internal quotation marks omitted).
The text of section 1231(a) does not support the interpretation of the statute
by the district court. “The removal period begins on the latest of” three possible
dates, the second of which is the date of a reviewing court’s final order “[i]f the
removal order is judicially reviewed and if a court orders a stay of the removal of
the alien.” 8 U.S.C. § 1231(a)(1)(B)(ii). Farah’s removal order is subject to judicial
review, and we ordered a stay of his removal. But we have not yet issued our final
order. So under the plain terms of the statute, Farah’s removal period has not yet
begun. And because section 1231(a) authorizes the government to detain an alien
“[d]uring” and “beyond” but not before the removal period, Farah’s ongoing
detention cannot be governed by section 1231(a). Id. § 1231(a)(2), (a)(6). To be
sure, Farah’s detention was governed by section 1231(a) for the brief period
between when the Board issued its decision and when we stayed Farah’s removal.
But once we ordered the stay, the removal period reset, and it will not begin again
until we issue our final order with respect to his immigration petition.
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We hold that section 1231(a) does not govern the detention of an alien
whose removal has been stayed pending a final order from the reviewing court. In
so holding, we join several of our sister circuits that have considered this issue. See
Hechavarria v. Sessions, 891 F.3d 49, 56 (2d Cir. 2018); Leslie v. Att’y Gen. of the
United States, 678 F.3d 265, 270 (3d Cir. 2012), abrogated in part on other
grounds by Jennings, 138 S. Ct. 830; Prieto-Romero v. Clark, 534 F.3d 1053,
1061–62 (9th Cir. 2008); Bejjani v. Immigr. & Naturalization Serv., 271 F.3d 670,
689 (6th Cir. 2001), abrogated on other grounds by Fernandez-Vargas v.
Gonzales, 548 U.S. 30 (2006). And our holding does not violate the prior-panel-
precedent rule. In Akinwale, we affirmed the dismissal of a criminal alien’s habeas
petition because he had not been in custody for a prolonged period when he filed
his petition and because he failed to show that his detention would be indefinite.
287 F.3d at 1051–52. In a footnote at the end of our opinion, we identified a third
deficiency with his habeas petition: he made deportation impossible by moving for
and obtaining a stay of removal. Id. at 1052 n.4. Farah argues that this footnote was
dicta. But even if it was an alternative holding, it does not compel the conclusion
that the government’s detention authority continues to be governed by section
1231(a) after a reviewing court orders a stay of removal. We never addressed in
Akinwale whether an alien continues to be detained “[d]uring the removal period”
after the reviewing court orders a stay of removal.
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Until we issue our final order as to his petition for review, Farah’s detention
is governed by section 1226(c). Because he is removable for committing an
aggravated felony and a controlled-substance offense, his detention is mandated by
the statute. 8 U.S.C. § 1226(c)(1); Jennings, 138 S. Ct. at 847. If we were deciding
Farah’s habeas appeal standing alone, we would vacate the denial of his petition
and remand with instructions to consider his as-applied constitutional challenge to
his detention under section 1226(c). But, as it happens, we have considered Farah’s
petition for review of the Board’s decision, and we have concluded that he presents
no meritorious argument.
In the light of our decision to dismiss in part and to deny in part Farah’s
petition for review and to dissolve the stay of removal, Farah’s habeas petition is
moot insofar as it challenges his detention under section 1226(c), and it is not ripe
for review insofar as it challenges his detention under section 1231(a). Both Farah
and the government agreed with this analysis at oral argument. As soon as we issue
our final order resolving his immigration petition, Farah’s removal period will
commence, and his detention will be governed by section 1231(a). So he will no
longer have a basis to challenge his detention under section 1226(c). If after six
months he is still in custody and has not been removed from the United States, then
he can challenge his detention under section 1231(a). But until then, his detention
is presumptively reasonable under Zadvydas. We vacate and remand with
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instructions to dismiss Farah’s habeas petition as moot in part and not ripe for
review in part. We also deny as moot the motion to dismiss Farah’s appeal.
IV. CONCLUSION
We DISMISS IN PART and DENY IN PART the petition for review. We
also DISSOLVE the stay of removal. We VACATE and REMAND with
instructions to dismiss Farah’s habeas petition. And we DENY the government’s
motion to dismiss the appeal.
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JILL PRYOR, Circuit Judge, concurring in part and dissenting in part:
I join the majority opinion except for part III.E, in which it holds that the
Board of Immigration Appeals (“BIA”) gave reasoned consideration to Hassan
Farah’s challenge to the denial of withholding of removal. Although our standard
of review is deferential, “we must be left with the conviction, based on the record
before us, that the [BIA] has considered and reasoned through the most relevant
evidence of the case.” Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1331 (11th Cir.
2019). When we are reviewing the denial of withholding of removal, this
requirement means we must assure ourselves that the agency has adequately
considered the evidence supporting a noncitizen’s application for humanitarian
protection before ordering him removed him to a country where he fears
persecution. In this case, I find that assurance lacking. In my view, the BIA and
the Immigration Judge, whose findings the BIA approved, mischaracterized the
record and ignored “highly relevant” evidence in denying Farah’s application for
withholding of removal and thus failed to give his application reasoned
consideration. Id. at 1336 (internal quotation marks omitted). I would grant
Farah’s petition for review on the denial of withholding of removal, vacate the
BIA’s decision, and remand for further proceedings.
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I. BACKGROUND
A. Farah’s Application for Withholding of Removal
Farah applied for withholding of removal under 8 U.S.C. § 1231(b)(3),
among other forms of relief, asserting that, if returned to Somalia, he feared
persecution in the form of being “attacked, tortured[,] and killed” by the Somali
terrorist organization al-Shabaab as an Americanized or westernized returnee to
Somalia. AR 658. 1 Al-Shabaab, an established Islamist militant group affiliated
with al-Qaeda, fights to overthrow the western-backed Federal Government of
Somalia (“FGS”) and turn Somalia into a fundamentalist Islamic state.
Consequently, individuals in Somalia with known connections to the United States
and the West are at risk of being persecuted by al-Shabaab.
In support of his application for withholding of removal, Farah submitted
evidence including the declarations of two experts on conditions in Somalia,
numerous news articles, and at least two country condition reports, all indicating
that al-Shabaab (1) targets for violence westernized returnees and (2) wields
control over large swaths of the country with impunity, making relocation to a safe
area very difficult or impossible. I discuss the record evidence on these two points
in turn.
1
“AR” refers to the administrative record.
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First, Farah provided extensive evidence establishing al-Shabaab’s practice
of targeting for violence westernized returnees to Somalia. The evidence included
the declaration of Christopher Anzalone, an expert on al-Shabaab and Islamic
extremism, who stated that “[i]ndividuals with known connections to the United
States are at heightened risk that [al-Shabaab] will view them as enemies of their
cause and target them on this basis.” AR 923. He noted that Somali returnees
from the United States, among other western countries, are at risk because of
suspicions—based on nothing more than their having spent time in the West—that
they have been “cultivated by hostile intelligence agencies.” AR 928. Anzalone’s
account was buttressed by the declaration of Mary Harper, a BBC journalist,
author of multiple publications on Somalia and al-Shabaab, and research consultant
on Somalia for the United Nations and United States Agency for International
Development, among other organizations. In her declaration, she stated that al-
Shabaab “suspects as possible spies anyone returning from the West, and executes
those it finds guilty of spying.” AR 951. And merely being suspected of spying
equates to guilt: Harper explained that she spoke with a journalist in Mogadishu
who said he receives “regular reports” of al-Shabaab “executing suspected spies in
many different parts of Somalia,” and that there is “no sign” the practice is
diminishing as “[t]hese executions continue.” AR 951–52 (emphasis added).
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Bolstering Anzalone’s and Harper’s accounts, a newspaper article Farah
submitted reported on an al-Shabaab execution in which the terrorist group killed
five people, including a 16-year-old boy, accused of spying for United States, as
well as Kenyan, and Somali, government forces. According to relatives of one of
the victims, he was “innocent” of spying. AR 1161.
Two more newspaper articles profiled westernized returnees who feared
execution at the hands of al-Shabaab because of the terrorist group’s well-known
practice of killing returnees from the West—either because they are suspected of
being spies or because they are considered infidels. An Amnesty International
Report noted that westernized returnees and those suspected of having links to
foreign governments are at “increased risk of being unlawfully, killed, tortured[,]
and otherwise ill-treated or threatened” by al-Shabaab. AR 1693. And a State
Department Report observed that the terrorist group targets areas and commercial
establishments “frequented by government officials, foreign nationals, merchants,
and the Somali diaspora.” AR 1237.
Second, Farah’s evidence detailed al-Shabaab’s insurgency against the FGS
and the terrorist group’s control over much of the territory in Somalia, which
makes it difficult for al-Shabaab’s targets to find a safe location. As the Trump
Administration’s 2018 extension of Temporary Protected Status for Somalia found,
“Somalia’s security situation remains fragile and volatile . . . . Al-Shabaab
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continues to wage an armed insurgency against the [FGS]. The group has
reasserted its territorial reach across substantial territory in southern Somalia from
which it continues to launch coordinated mass attacks on Somali and [the African
Union Mission in Somalia] military bases.” AR 550 (citing Extension of the
Designation of Somalia for TPS (“TPS Extension”), 83 Fed. Reg. 43695, 43696
(Aug. 27, 2018)). The TPS Extension concluded that because of the ongoing
armed conflict, “requiring the return of Somali nationals . . . to Somalia would
pose a serious threat to their personal safety.” Id. (citing TPS Extension).
The evidence further indicated that the FGS’s attempts to curb al-Shabaab’s
control have been unsuccessful. In a Presidential Proclamation, then-President
Trump declared that “Somalia stands apart from other countries in the degree to
which its government lacks command and control of its territory. . . [and does not]
provide the governance needed to limit terrorists’ freedom of movement, access to
resources, and capacity to operate.” AR 923 (quoting Presidential Proclamation
Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into
the United States by Terrorists or Other Public-Safety Threats (“Presidential
Proclamation”), 82 Fed. Reg. 45161, 45167 (Sept. 27, 2017)). Anzalone’s
declaration similarly explained that the FGS was “incapable and unwilling” to
protect people from al-Shabaab. AR 924. State Department reports and numerous
news articles in the record confirmed that the FGS is unable to quash al-Shabaab—
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either because al-Shabaab’s control is too great or because it has infiltrated the
Somali government.
B. The Decisions of the Immigration Judge and the BIA
The Immigration Judge denied Farah’s application for withholding of
removal. First, the Immigration Judge ruled that Farah failed to establish that,
upon removal to Somalia, it is more likely than not that his life or freedom would
be threatened on account of a protected ground, stating in conclusory fashion that
the “evidence of record shows that Somalian returnees are marginalized[] or
discriminated against,” but “harassment does not amount to persecution.” AR
124–25. To support this conclusion, the Immigration Judge cited a 2017 State
Department Human Rights Report noting that Somali returnees often suffer
discrimination and a 2018 BBC article quoting a recent Americanized returnee
who stated that there is “mistrust” for returnees because they are seen as
“outsiders.” AR 618. Second, the Immigration Judge ruled that Farah failed to
carry his burden of establishing he could not relocate to other parts of Somalia
“where the extremist groups he claims to fear have less control.” AR 125. For
support, the Immigration Judge cited only the 2017 Human Rights Report which
mentions that there are some, unspecified, areas in Somalia outside of al-Shabaab’s
control.
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On appeal, the BIA agreed with the Immigration Judge that Farah failed to
establish a “likelihood of being persecuted if he is returned to Somalia . . . or that
he could not relocate to an area of the country where he is not likely to be
persecuted.” AR 7 (citing AR 124–26). The BIA acknowledged that “voluminous
evidence” indicates Somalia experiences “a high level of violence, including
killings and human rights abuses by members of [a]l[-]Shabaab against those who
oppose them or are perceived to oppose them.” Id. However, the BIA failed to
address the record evidence demonstrating that al-Shabaab targets westernized
returnees, operates across the country with impunity, and has infiltrated the Somali
government.
II. STANDARD OF REVIEW
We review only the BIA’s decision, except to the extent that it expressly
adopted the Immigration Judge’s opinion. Ayala v. U.S. Att’y Gen., 605 F.3d 941,
947–48 (11th Cir. 2010). Because the BIA expressly agreed with the Immigration
Judge’s findings that Farah failed to establish a well-founded fear of persecution
and that he could not relocate within Somalia, we review both the Immigration
Judge’s and the BIA’s decisions on withholding of removal. See id.Whether the agency has afforded reasoned consideration is a question of law
we review de novo. Ali, 931 F.3d at 1333. The Immigration Judge and the BIA
“must consider all evidence introduced by the applicant.” Seck v. U.S. Att’y Gen.,
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663 F.3d 1356, 1364 (11th Cir. 2011) (internal quotation marks omitted); see also
8 C.F.R. § 1240.1(c) (“The immigration judge shall receive and consider material
and relevant evidence . . . .”). Where the agency “has given reasoned consideration
to the petition, and made adequate findings, we will not require that it address
specifically each claim the petitioner made or each piece of evidence the petitioner
presented.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (internal
quotation marks omitted). In determining whether the agency gave reasoned
consideration, we must ensure that it “consider[ed] the issues raised and
announce[d] its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted” to the issues raised and the
evidence presented. Id. (internal quotation marks omitted). Some indications that
the agency fails to give reasoned consideration include “when it misstates the
contents of the record, fails to adequately explain its rejection of logical
conclusions, or provides justifications for its decision which are unreasonable and
which do not respond to any arguments in the record.” Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 803 (11th Cir. 2016).
III. DISCUSSION
To obtain withholding of removal, a noncitizen applicant must show that if
returned to the proposed country of removal, his life or freedom would be
threatened because of his race, religion, nationality, membership in a particular
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social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A). A noncitizen who
has not shown past persecution on account of a protected ground may be entitled to
withholding of removal “if he can demonstrate a future threat to his life or freedom
on a protected ground in his country.” Sanchez v. U.S. Att’y Gen., 392 F.3d 434,
437 (11th Cir. 2004) (internal quotation marks omitted). The Immigration Judge
cannot require the applicant to provide evidence that he would be “singled out
individually for persecution” if the applicant establishes “there is a pattern or
practice of persecution” of those similarly situated to him, and his inclusion or
identification with the group makes it “more likely than not” that his life or
freedom would be threatened upon removal. 8 C.F.R. § 1208.16(b)(2).
An applicant cannot demonstrate entitlement to withholding of removal if he
“could avoid a future threat to his . . . life or freedom by relocating to another part
of the proposed country of removal and, under all the circumstances, it would be
reasonable to expect the applicant to do so.” Id. The regulation identifies several
considerations relevant to the “[r]easonableness of internal relocation”
determination, including: the totality of the relevant circumstances regarding an
applicant’s prospects for relocation, including the size of the country or last
habitual residence; the geographic locus of the alleged persecution; the size, reach,
or numerosity of the alleged persecutor; and the applicant’s demonstrated ability to
relocate to the United States in order to apply for withholding of removal. Id.46
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§ 1208.16(b)(3). In cases, like this one, where the persecutor is not the
government or a government-sponsored actor, “there shall be a presumption that
internal relocation would be reasonable unless the applicant establishes, by a
preponderance of the evidence, that it would be unreasonable to relocate.” Id.
§ 1208.16(b)(3)(iii).
Farah contends that the BIA and the Immigration Judge failed to give
reasoned consideration to his application for withholding of removal, and so we
cannot meaningfully review their decisions. Specifically, he argues that they
ignored evidence in the record establishing: (1) a pattern and practice of
persecution against similarly situated Somalis who returned from the United States
or the West and (2) that al-Shabaab has “infiltrated many branches of the Somali
government” and “control[s] the majority of the territory in Somalia,” such that he
could not reasonably relocate to avoid persecution. Petitioner’s Br. at 45. The
majority opinion rejects Farah’s argument, concluding that the BIA gave his
application reasoned consideration because it “cited evidence from the record
showing that Somalia is ‘a country experiencing a high level of violence, including
killings and human rights abuses’” by the terrorist group al-Shabaab; the group
“does not control certain areas of the country”; and the “Somali government was
fighting against al-Shabaab.” Maj. Op. at 24 (quoting AR 7). I agree with Farah.
The BIA’s recognition that Somalia experiences a high level of violence because
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of al-Shabaab does not mean it grappled with Farah’s evidence that he is likely to
be a victim of that violence as a westernized returnee. And noting that al-Shabaab
does not control some areas of the country and that the FGS is fighting the group
do not show that the BIA considered Farah’s evidence that the FGS is unable to
control al-Shabaab and that the terrorist group’s reach is nationwide. I would hold
that the Immigration Judge and BIA failed to give reasoned consideration to
Farah’s application for withholding of removal because their decisions
mischaracterized the record and ignored highly relevant evidence, rendering the
decisions incapable of meaningful review. See Jeune, 810 F.3d at 803; Ali, 931
F.3d at 1334–35.
First, the Immigration Judge mischaracterized the evidence that westernized
Somali returnees are harassed but not persecuted, ignoring considerable evidence
of persecution. The Immigration Judge determined, “[t]he evidence of record
shows that Somalian returnees are marginalized, or discriminated against . . . .
However, harassment does not amount to persecution.” AR 124–25. Although the
evidence the Immigration Judge cited supported marginalization and
discrimination that could be characterized as harassment, neither source indicated
that westernized Somali returnees are merely harassed. No evidence in the record
supported the Immigration Judge’s determination; instead, voluminous evidence
demonstrated the very opposite, that al-Shabaab does not merely harass but rather
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targets with violence—including execution—westernized returnees because they
are suspected of being informants or enemies of al-Shabaab’s cause. In making its
finding that Farah had not shown a likelihood of persecution based on his status as
a westernized Somali returnee, the Immigration Judge did not mention, much less
engage with, two expert declarations, newspaper articles, and an Amnesty
International report, all of which detailed al-Shabaab’s practice of targeting and
persecuting, not merely discriminating against or harassing, westernized returnees
like Farah.
The BIA agreed with the Immigration Judge on this issue, stating in a single
sentence that Farah had not shown he would likely be targeted for harm rising to
the level of persecution. The BIA deemed the Immigration Judge’s finding—that
westernized returnees suffer only discrimination and harassment—not clearly
erroneous despite the BIA’s own acknowledgment that “[t]he voluminous evidence
regarding country conditions in Somalia shows a country experiencing a high level
of violence, including killings and human rights abuses by members of
[a]l[-]Shabaab against those who . . . are perceived to oppose them.” AR 7. The
BIA’s acknowledgement that al-Shabaab targets with violence those who are
perceived to oppose them—a group that includes westernized returnees—flatly
contradicted the Immigration Judge’s finding that westernized Somali returnees
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suffer only discrimination and marginalization, not persecution. Yet the BIA did
not explain or even address this remarkable conflict.
The majority attempts to explain away the conflict by characterizing Farah’s
evidence as describing the “activities of an armed guerrilla group operating in
some but not all areas of Somalia,” which the majority says is distinct from how
westernized returnees are “treated by Somali society in general.” Maj. Op. at 29.
But this is a distinction without a difference. To be eligible for withholding of
removal, a petitioner may establish that he would be persecuted by a group that the
government is “unable or unwilling to control.” Matter of W-G-R-, 26 I. & N. Dec.
208, 224 n.8 (B.I.A. 2014). Farah submitted evidence detailing the FGS’s lack of
control over its territory and inability to curb al-Shabaab’s influence, which the
Immigration Judge and the BIA failed to address. Although there may be an
explanation for this apparent contradiction between the Immigration Judge’s
finding that westernized returnees suffer only harassment and the evidence that
they suffer persecution, it cannot be found in the Immigration Judge’s and BIA’s
decisions.
The Immigration Judge’s “failure to mention any . . . pieces of highly
relevant evidence” contradicting the conclusion that westernized Somali returnees
are merely harassed, not persecuted, “cast[s] doubt on whether the [Immigration
Judge] considered th[is] evidence in the first place.” Ali, 931 F.3d at 1336 (internal
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citation and quotation marks omitted). By not even mentioning the highly relevant
contrary evidence, the Immigration Judge “fail[ed] to adequately explain [his]
rejection of [the] logical conclusion[]” that westernized returnees in Somalia are
persecuted, not simply harassed. Id. at 1334 (internal quotation marks omitted).
And the BIA’s failure to explain its determination that the Immigration Judge’s
finding here was not clearly erroneous despite acknowledging evidence directly
contradicting the conclusion, “undermines [my] belief that [the BIA] has heard and
thought [about the case] and not merely reacted.” Id. at 1336 (internal quotation
marks omitted). Thus, I believe the Immigration Judge’s and BIA’s decisions on
this issue are “incapable of review due to a lack of reasoned consideration.” Id.
Second, the agency failed to afford reasoned consideration to highly relevant
evidence when making its internal relocation determination. The record contains
extensive evidence detailing the FGS’s lack of “command and control of its
territory.” AR 923 (quoting Presidential Proclamation). This source explains that
the Somali government’s lack of control means it is unable to “limit [al-Shabaab’s]
freedom of movement, access to resources, and capacity to operate.” Id. The TPS
Extension concludes that al-Shabaab’s substantial influence across the country
suggests “requiring the return of Somali nationals . . . to Somalia would pose a
serious threat to their personal safety,” AR 550 (citing TPS Extension). The
Immigration Judge did not acknowledge any of this evidence. He determined, in
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one sentence, that Farah failed to demonstrate that he could not relocate to other
parts of Somalia where al-Shabaab has less control. The BIA agreed with the
Immigration Judge’s finding that Farah failed to establish he could not relocate to
an area of the country that is not controlled by al-Shabaab. Here, again, the BIA
did not discuss any evidence.2
It may be that the agency ultimately concludes Farah can reasonably relocate
somewhere in Somalia. But the Immigration Judge’s and BIA’s failure to address
any of the “highly relevant evidence” I have discussed renders their internal
relocation decision incapable of meaningful judicial review. Ali, 931 F.3d at 1336
(internal quotation marks omitted). There can be no doubt that the evidence of al-
Shabaab’s significant influence and control over substantial territory in Somalia
and the FGS’s inability to limit the terrorist group’s reach is highly relevant.
Indeed, we have held that where the evidence of record indicates that a non-
governmental group exercises significant influence throughout a country, the
2
What is more, neither the Immigration Judge nor the BIA addressed whether Farah
could reasonably relocate within Somalia to escape persecution. True, Farah bore the burden of
establishing that it would be unreasonable for him to relocate within Somalia. See 8 C.F.R.
§ 1208.16(b)(3). But even where a petitioner has this burden, we have emphasized the
importance of the BIA “clearly evidenc[ing] its awareness of the[] [§ 1208.16(b)(3)] factors and
of the requirement that relocation had to be reasonable.” Jeune, 810 F.3d at 805 (explaining that,
where the petitioner bore the burden to show that internal relocation would be unreasonable, the
BIA’s citation to our decision in Arboleda v. U.S. Att’y Gen., 434 F.3d 1220 (11th Cir. 2006),
was sufficient to establish that it had appropriately considered the reasonableness of petitioner’s
relocation). The Immigration Judge’s and BIA’s decisions here contain no indication that either
considered, or was even aware of, the § 1208.16(b)(3) factors or the requirement that internal
relocation must be not only possible, but reasonable.
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record “compels the conclusion . . . that [internal] relocation” is “not a viable
option for the petitioners to escape persecution.” Arboleda v. U.S. Att’y Gen., 434
F.3d 1220, 1224–25 (11th Cir. 2006); see also Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1232 n.7 (11th Cir. 2005). And it is no answer that the Somali
government is fighting against al-Shabaab when evidence in the record indicates
the FGS’s attempts to fight or limit al-Shabaab are ineffective. Evidence of a
guerilla group’s widespread influence or infiltration of government institutions
suggests the government is unable or unwilling to control that group. See, e.g.,
Diaz de Gomez v. Wilkinson, 987 F.3d 365, 365–66 (4th Cir. 2021); see also Ruiz
v. U.S. Att’y Gen., 440 F.3d 1247, 1247 (11th Cir. 2006) (“The statutes governing
asylum and withholding of removal protect not only against persecution by
government forces, but also against persecution by non-governmental groups that
the government cannot control.”). It is true that the Immigration Judge and the
BIA are not required to address each piece of evidence presented, see Maj. Op. at
25, but their respective “failure[s] to mention any . . . pieces of highly relevant
evidence” establishing that al-Shabaab exercises control throughout Somalia
“cast[s] doubt on whether the [agency] considered th[is] evidence in the first
place.” Ali, 931 F.3d at 1336 (internal citation and quotation marks omitted).
Our precedent demands that the Immigration Judge and BIA do more than
simply cherry pick a few sentences or phrases from one or two sources and ignore
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voluminous, highly relevant evidence supporting a petitioner’s claim. See id. The
stakes here—a person’s life and freedom from the infliction of serious bodily
injury—are too high. Of course, we cannot review the weight the Immigration
Judge or BIA gives to any piece of evidence, see Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc), but “the evidence must be wrestled with,”
Ali, 931 F.3d at 1336; see also Tan, 446 F.3d at 1376 (“Although the Immigration
Judge is not required to discuss every piece of evidence presented before him, [he]
is required to consider all the evidence submitted by the applicant.”). The
Immigration Judge and BIA failed to confront and wrestle with Farah’s evidence
supporting withholding of removal from Somalia.
IV. CONCLUSION
Because the Immigration Judge’s and BIA’s decisions do not reflect
reasoned consideration of the record evidence supporting Farah’s withholding of
removal claim and, as a result, the decisions are incapable of meaningful review, I
would remand to the BIA for further consideration. See Bing Quan Lin v. U.S.
Att’y Gen., 881 F.3d 860, 874 (11th Cir. 2018) (“Where the BIA has not given
reasoned consideration or made adequate findings, we remand for further
proceedings” (internal quotation marks omitted)). After a closer examination of
the record, the agency may reach the same conclusions and deny Farah’s request
for relief. But I dissent because I cannot tell from the BIA’s decision that it
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considered and reasoned through the most relevant evidence or that it realized its
acknowledgment about the risk of persecution was contrary to the Immigration
Judge’s finding on that issue.
55