Mohamed v. Gonzales , 139 F. App'x 600 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2260
ABDINASIR MOHAMED,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals (A79-470-524)
Submitted: April 15, 2005 Decided: July 28, 2005
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Petition granted; remanded by unpublished per curiam opinion.
Bruce J. Godzina, Houston, Texas, for Petitioner. Peter D. Keisler,
Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant
Director, John S. Davis, Associate Deputy Attorney General,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Abdinasir Mohamed, a native and citizen of Somalia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s denial of his requests for asylum, withholding of removal,
and protection under the Convention Against Torture. For the
reasons discussed below, we grant the petition for review.
Because the immigration judge found that Mohamed suffered
past persecution in Somalia due to his clan membership, he was
entitled to a presumption that he has a well-founded fear of future
persecution. See 8 C.F.R. § 1208.13(b)(1) (2005). The regulations
provide that the Government may rebut this presumption by showing
by a preponderance of the evidence either that: (1) “[t]here has
been a fundamental change in circumstances such that the applicant
no longer has a well-founded fear of persecution in the applicant’s
country of nationality,” or (2) “[t]he applicant could avoid future
persecution by relocating to another part of the applicant’s
country of nationality . . . and under all the circumstances, it
would be reasonable to expect the applicant to do so.”
§ 1208.13(b)(1)(i)(A), (B). In determining whether it would be
reasonable to expect an applicant to relocate to another part of
his country of nationality, an adjudicator should consider whether
he would face other serious harm in the area of suggested
relocation such as “any ongoing civil strife within the country;
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administrative, economic, or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age,
gender, health, and social and familial ties.” 8 C.F.R.
§ 1208.13(b)(3) (2005). The regulations provide that these factors
“are not necessarily determinative of whether it would be
reasonable for the applicant to relocate.” (Id.).
Here, although the immigration judge’s opinion stated
that the burden shifted to the Government to prove that “it would
be more likely than not that . . . the political situation is so
changed that [Mohamed] would not fear persecution if returned to
Somalia,” indicating that the judge intended to analyze whether the
Government had met its burden of proof pursuant to 8 C.F.R.
§ 1208.13(b)(1)(i)(A), we find that the immigration judge actually
analyzed whether the Government met its burden of proof under
§ 1208.13(b)(1)(i)(B). Specifically, the immigration judge found
that the Government met its burden of showing that Mohamed could
avoid future persecution by relocating to Puntland, a portion of
northeastern Somalia that is controlled by Mohamed’s own clan.
As clearly provided by the regulations, however, the
Government must do more than show that Mohamed can avoid
persecution by returning to Puntland; it must also demonstrate that
it is reasonable to expect him to do so. See 8 C.F.R.
§ 1208.13(b)(1)(i)(B), (b)(1)(ii). We find that consideration of
the factors set forth in 8 C.F.R. § 1208.13(b)(3) is particularly
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important in Mohamed’s case, given the instability in Somalia and
the fact that Mohamed’s family now resides in the United States and
he has not lived in Somalia since the age of ten. As noted by the
Eighth Circuit, “[t]he relocation inquiry is inherently complex in
Somali asylum cases because there is no central government and
local conditions reportedly depend on the effectiveness of regional
clan-based authorities.” Awale v. Ashcroft, 384 F.3d 527, 531 (8th
Cir. 2004). As in Awale, “[n]either the IJ nor the BIA opinion
acknowledged this complexity.” Id.Accordingly, we grant the petition for review and remand
the case to the Board for a determination of whether the Government
met its burden of establishing that, under all the circumstances,
it is reasonable to expect Mohamed to relocate to Puntland. In
making such a determination, the Board should take into
consideration the factors set forth in 8 C.F.R. § 1208.13(b)(3).1
Because the immigration judge denied Mohamed’s request for
withholding of removal on the ground that, as he failed to qualify
for asylum, he could not meet the higher standard necessary for
withholding of removal, we also remand the request for withholding
1
Although Mohamed contends in his brief that the immigration
judge erred in finding that he had a safe haven in Kenya and
Ethiopia, we cannot consider this alternate ground as the Board
specifically declined to address it in its order. See INS v.
Ventura, 537 U.S. 12, 17-18 (2002). We note that the Board is free
to consider this alternate finding on remand, which may obviate the
need for a determination as to whether it is reasonable to expect
Mohamed to relocate. We express no opinion as to the merits of
this alternate ground.
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of removal to the Board for further consideration.2 We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
PETITION GRANTED;
REMANDED
2
Mohamed’s brief merely asserts, without supporting argument,
that the immigration judge erred in denying him protection under
the Convention Against Torture. He has therefore waived appellate
review of this claim. See Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999).
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