Abdullahi Jamale Jama v. Monty Wilkinson ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2250
___________________________
Abdullahi Jamale Jama
Petitioner
v.
Monty Wilkinson, Acting Attorney General of the United States
Respondent1
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: October 23, 2020
Filed: March 11, 2021
____________
Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
____________
SHEPHERD, Circuit Judge.
Abdullahi Jamale Jama, a native and citizen of Somalia, petitions for review
of an order of the Board of Immigration Appeals (BIA). This order upheld the
decision of an immigration judge (IJ) ordering Jama to be deported and removed to
1
Respondent Wilkinson is automatically substituted for his predecessor under
Federal Rule of Appellate Procedure 43(c)(2).
Somalia and denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). For the following reasons,
we deny the petition for review.
I.
Jama was born in Mogadishu, Somalia, on January 1, 1988. He and his three
sisters fled to Kenya in 1991, after the loss of their father and brothers in the Somali
civil conflict and the disappearance of their mother. In October 1998, he arrived in
the United States and was admitted as a refugee. Jama suffers from physical and
mental disabilities. He has limited mobility in his right arm due to a gunshot wound
and difficulty walking due to a fall from a third-floor balcony. He further suffers
from anxiety, depression, and post-traumatic stress disorder.
Jama began developing a criminal history in 2006. In February 2011, Jama
was convicted of felony motor vehicle theft, in violation of Minn. Stat. § 609.52,
subdiv. 2, cl. (17). As a result, the Department of Homeland Security (DHS) charged
Jama with removability, under 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G), as a
noncitizen 2 convicted of an aggravated felony. The IJ ordered Jama removed in
absentia on February 4, 2013, after he failed to appear at multiple hearings. Jama
subsequently sustained additional criminal convictions. Most significantly, he was
convicted of second-degree felony assault, in violation of Minn. Stat. § 609.222,
subdiv. 1, in April 2013.
In April 2018, Jama, through counsel, moved to rescind the February 2013 in
absentia removal order, explaining that he had been in state custody at the time of
the proceedings and was unable to attend. Alternatively, he sought to reopen the
removal proceedings based on changed country conditions to apply for asylum,
withholding of removal, and protection under CAT. The IJ granted the motion to
2
The United States Code and the accompanying federal regulations use the
term “alien.” This opinion maintains that nomenclature when quoting directly from
the text or case law; otherwise it replaces “alien” with “noncitizen.”
-2-
rescind and reopened the proceedings. During these proceedings, DHS charged
Jama with an additional ground for removability, under 8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1101(a)(43)(F), based on Jama’s second-degree felony assault
conviction. On July 26, 2018, the IJ held a hearing on the merits of Jama’s case.
The IJ considered a voluminous amount of documentary evidence, including an
affidavit by Dr. Massimiliano Reggi, and heard testimony from Jama and Dr. Abas
Mohamed Jama (no relation), an expert in mental health treatment in Somalia. The
IJ found both Jama and Dr. Jama to be credible.
In its written decision, the IJ noted that Jama had conceded removability,
under § 1227(a)(2)(A)(iii), as a noncitizen convicted of a theft-offense aggravated
felony, as defined at § 1101(a)(43)(G), based on his felony motor vehicle theft
conviction.3 The IJ then determined that Jama was further removable, under
§ 1227(a)(2)(A)(iii), as a noncitizen convicted of a crime of violence, as defined at
§ 1101(a)(43)(F), based on his second-degree felony assault conviction. The IJ
found that these aggravated felony offenses subjected Jama to the asylum
“particularly serious crime” bar, under § 1158(b)(2)(A)(ii), (B)(i), making him
ineligible for relief. The IJ next considered whether Jama’s second-degree felony
assault conviction was a “particularly serious crime,” under § 1231(b)(3)(B)(ii),
barring withholding of removal status.4 The IJ found that, as a crime against persons,
3
Jama contends that he did not concede removability; however, the BIA noted
that Jama did not contest removability on appeal. Admin. R. 3.
4
For clarification, 8 U.S.C. §§ 1158 and 1231 establish distinct “particularly
serious crime” bars for asylum and withholding of removal, respectively, and each
apply a slightly different standard. Section 1158 bars noncitizens who have been
convicted of “an aggravated felony” or an offense designated as a particularly
serious crime by the Attorney General from receiving asylum. Id.§ 1158(b)(2)(A)(ii), (B). Section 1231 bars noncitizens from receiving statutory
withholding of removal who have been convicted of “an aggravated felony (or
felonies) for which the noncitizen has been sentenced to an aggregate term of
imprisonment of at least 5 years,” id. § 1231(b)(3)(B)(ii), or an offense that
otherwise qualifies based on “the individual facts and circumstances,” Marambo v.
-3-
Jama’s conviction was within the ambit of particularly serious crimes, requiring the
IJ to look at the nature of the conviction and the underlying facts, pursuant to In re
N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). The amended criminal complaint
underlying his conviction reported, inter alia, that Jama had threated a female
victim’s life by waiving a knife at her on two occasions. In response, Jama testified
about his struggles with mental health and also claimed that he was attempting to
help the victim by preventing her from taking Vicodin. The IJ found that struggles
with mental health were not to be considered under Matter of G-G-S-, 26 I. & N.
Dec. 339 (BIA 2014), and determined that Jama’s second-degree felony assault was
a particularly serious crime, barring him from withholding of removal.
The IJ then addressed Jama’s claim for deferral of removal under CAT. Jama
claimed that he would be tortured on account of his mental illness if returned to
Somalia. Jama claimed that it was more likely than not that he would be
institutionalized, where he would likely be chained. Considering the expert
testimony and documentary evidence, the IJ found that while the Somali health
system was weak and underfunded, significant progress had been made in the area
of mental illness treatment. The IJ specifically found that these advancements
negated the likelihood of torture and the government’s alleged acquiescence in such
torture. Jama also expressed fear of torture by al-Shabaab, but the IJ determined that
these incidents of torture were too generalized and occurred at a relatively low rate.
The IJ also determined that the government was actively fighting al-Shabaab, rather
than acquiescing to al-Shabaab’s activities. Therefore, the IJ found that Jama had
failed to show that the risk of torture was more likely than not to occur upon Jama’s
return to Somalia and, accordingly, denied relief.
Jama appealed the decision to the BIA. Specifically, Jama argued that the IJ
did not adequately consider the expert witnesses’ testimony, erred in concluding that
his convictions rendered him ineligible for asylum and withholding of removal, and
Barr, 932 F.3d 650, 655 (8th Cir. 2019) (citation omitted). The § 1231 bar also
applies to CAT withholding of removal. 8 C.F.R. § 1208.16(d)(2).
-4-
ignored evidence that he would face torture in Somalia. The BIA found that while
the IJ did not specifically adopt all the expert testimony, the IJ expressed its
consideration of that evidence by referring to it throughout the opinion. The BIA
next found that the IJ did not err in characterizing Jama’s second-degree felony
assault conviction as a particularly serious crime in either the asylum or the
withholding of removal contexts. First, the BIA determined that the aggravated
felony was a categorical match to the generic definition of a crime of violence, as
previously determined by this Court in United States v. Lindsey, 827 F.3d 733 (8th
Cir. 2016), barring asylum relief. The BIA further affirmed the IJ’s determination
that the crime was a particularly serious crime for withholding of removal purposes.
The BIA noted that Matter of G-G-S- foreclosed the consideration of mental health
evidence in its determination but nonetheless concluded that Jama had not submitted
sufficient evidence to show that his mental illness mitigated the dangerousness of
his actions. Finally, the BIA found that the IJ did not clearly err in determining that
Jama would not more likely than not be tortured with the acquiescence of the Somali
government upon his return. Accordingly, the BIA affirmed the IJ on all claims and
dismissed Jama’s appeal.
II.
Jama argues that the BIA erred in finding (1) that his second-degree felony
assault conviction is a particularly serious crime that bars statutory withholding of
removal; (2) that his conviction also barred withholding of removal under CAT; and
(3) that the evidence was insufficient to grant him deferral of removal under CAT.
While “we ordinarily review only the BIA’s decision, ‘we also review the IJ’s
decision as part of the final agency action’ if ‘the BIA adopted the findings or the
reasoning of the IJ.’” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (citation
omitted).
-5-
A.
Jama first challenges the IJ and the BIA’s denial of statutory withholding of
removal. Our jurisdiction to review Jama’s statutory withholding of removal claim
“is limited to constitutional claims and questions of law” because Jama “is
removable as a ‘criminal alien.’” Constanza v. Holder, 647 F.3d 749, 753 (8th Cir.
2011) (per curiam); 8 U.S.C. § 1252(a)(2)(C)-(D). “We review the BIA’s legal
determinations ‘de novo, according substantial deference to the BIA’s interpretation
of the statutes and regulations it administers.’” Sharif v. Barr, 965 F.3d 612, 618-19
(8th Cir. 2020) (citation omitted). A noncitizen is entitled to statutory withholding
of removal if “the Attorney general decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). However, a noncitizen is barred from such relief “if the Attorney
General decides that the alien, having been convicted by a final judgment of a
particularly serious crime is a danger to the community of the United States.” Id.§ 1231(b)(3)(B)(ii).
Jama first contends that the IJ and the BIA did not consider the elements of
his second-degree felony assault conviction before considering the underlying facts
in determining whether it was a particularly serious crime. If the conviction is not a
per se particularly serious crime under § 1231(b)(3)(B), the IJ must determine
whether “the elements of the offense . . . potentially bring the crime into a category
of particularly serious crimes.” In re N-A-M-, 24 I. & N. Dec. at 342; see also
Marambo v. Barr, 932 F.3d 650, 655 (8th Cir. 2019). If so, the IJ further considers
“a variety of factors and . . . the individual facts and circumstances [of the
conviction].” Marambo, 932 F.3d at 655 (second alteration in original) (citation
omitted). Here, the IJ did not err in its analysis. The IJ recited the aforementioned
legal framework and noted that “[c]rimes against persons are more likely to be
categorized as ‘particularly serious crimes.’” Admin. R. 157 (alteration in original)
(quoting Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)). After having
already conducted a detailed analysis of the relevant Minnesota statute for the
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purposes of removability, the IJ found that “[t]he statutory language . . . explicitly
and unequivocally reflects that such offenses punishable under the statute inherently
involve crimes against persons.” Admin. R. 157. Therefore, the IJ and the BIA did
not err in conducting the particularly serious crime analysis.
Jama next argues that the IJ and the BIA impermissibly afforded unreliable
evidence—Jama’s state court amended criminal complaint—greater weight than
Jama’s testimony. Jama specifically contends that the police reports underlying the
amended criminal complaint are unproven and would not be admissible under the
Federal Rules of Evidence or to determine deportability. While the Federal Rules
of Evidence may be instructive to determine “whether [evidence] is probative and
its admission is fundamentally fair,” “[i]t is well established that the [Rules] are not
binding in immigration proceedings.” Matter of Y-S-L-C-, 26 I. & N. Dec. 688, 690
(BIA 2015). Moreover, the IJ may not consider police reports when initially
determining whether a noncitizen is removable under § 1227(a)(2) because the
“focus [is] on a criminal conviction, rather than on an alien’s conduct.” Matter of
Teixeira, 21 I. & N. Dec. 316, 321 (BIA 1996). However, when determining whether
to grant a noncitizen discretionary relief, such as here, the IJ “may consider police
reports” where “evidence of criminal activity should be considered.” Id. Other than
this attack on police reports generally, Jama offers no specific reason why the facts
of the at-issue police report should be deemed “unreliable.” We have recognized
that “all reliable information may be considered in making a particularly serious
crime determination,” including “information outside the confines of a record of
conviction.” Marambo, 932 F.3d at 655 (citation omitted). In Marambo v. Barr, we
determined that the IJ did not err in considering law enforcement officers’
observation set forth in the criminal complaint when conducting its particularly
serious crime analysis. Id. at 656. We see no reason in Jama’s case to now decide
otherwise. To the extent that Jama challenges the inferences the IJ drew from
specific evidence, we are precluded from reviewing such factual determinations in
the statutory-withholding-of-removal context. See id. Accordingly, the IJ and the
BIA did not err in considering the police reports underlying Jama’s complaint.
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Jama next contends that the IJ erred in excluding his evidence of struggles
with mental health, pursuant to Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014),
in their § 1231 particularly serious crime analyses. Once the IJ determines that the
conviction possibly falls within the category of particularly serious crimes, the IJ
must employ a factor-intensive inquiry to determine whether such conviction is a
particularly serious crime. Marambo, 932 F.3d at 655. These factors include “the
nature of the conviction, the circumstances and underlying facts of the conviction,
the type of sentence imposed, and, most importantly, whether the type and
circumstances of the crime indicate that the alien will be a danger to the community.”
Tian, 576 F.3d at 897 (quoting In re Frentescu, 18 I. & N. Dec. at 247). In weighing
these factors, “all reliable information may be considered . . . , including the
conviction records and sentencing information, as well as other information outside
the confines of a record of conviction.” Marambo, 932 F.3d at 655 (quoting In re
N-A-M-, 24 I. & N. Dec. at 342). As such, we recently rejected the categorical bar
to mental health evidence as articulated under Matter of G-G-S-. See Shazi v.
Wilkinson, No. 19-2842 (Feb. 11, 2021).
Here, the IJ explicitly excluded the evidence of Jama’s struggles with mental
health, citing Matter of G-G-S-, but this error is of little consequence. On appeal,
the BIA alternatively found that Jama had “not submitted sufficient evidence to
demonstrate that his mental illness provide[d] an explanation or a basis for
mitigating the dangerousness of [his] actions.” Admin. R. 5-6. While Jama contends
that this constitutes impermissible fact-finding, the BIA merely determined that the
evidence was insufficient as a matter of law to have any effect on the analysis.5
5
The dissent likewise construes the BIA’s review as invading the IJ’s fact-
finding province, but a precise demarcation of what constitutes a factual finding
proves otherwise. Questions of fact are confined to “the ‘what happened’ of the
case,” see Upatcha v. Sessions, 849 F.3d 181, 185 (4th Cir. 2017), or, as so often
occurs in immigration cases, the “what will happen” of the case. Here, the BIA did
not determine whether or to what extent Jama’s mental illness influenced his actions,
nor could it as Jama only proffered evidence of his general struggle with mental
health and how such conditions are treated in Somalia. See Shazi, No. 19-2842, at
10 (“We recognize that the focus of a particularly serious crime analysis is on the
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Therefore, the BIA did not engage in impermissible fact-finding but instead
corrected the legal error of the IJ’s analysis. Accordingly, we find that the BIA did
not err in finding that Jama’s second-degree felony assault conviction is a
particularly serious crime, barring statutory withholding of removal.
B.
Jama next challenges the IJ and the BIA’s denial of withholding of removal
under CAT. 6 A noncitizen may separately obtain withholding of removal under
CAT by “establish[ing] that it is more likely than not that he . . . would be tortured
if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
However, this form of relief is likewise foreclosed by the particularly serious crime
bar. Id. § 1208.16(d)(2); 8 U.S.C. § 1231(b)(3)(B)(ii). While we have already
nature of the crime and does not involve unrelated factors or offender characteristics
that do not bear upon “the gravity of a crime.” (citation omitted)); see also In re L-S-,
22 I. & N. Dec. 645, 651 (BIA 1999) (“This inquiry does not involve an examination
of the respondent’s family or community ties, or the risk of persecution in the alien’s
native county.”). Instead, the BIA found that evidence solely of Jama’s history of
mental illness—irrespective of its veracity—was itself legally insufficient to
demonstrate that Jama’s mental illness had any effect on the actions at issue. In
doing so, the BIA did not attempt to determine “what happened” and thus avoided
impermissibly “reweighing the underlying evidence.” Waldron v. Holder, 688 F.3d
354, 361 (8th Cir. 2012).
6
CAT encapsulates two forms of relief for noncitizens: withholding of
removal and deferral of removal. If the applicant meets their burden under CAT,
withholding of removal is the mandated form of relief. See 8 C.F.R. § 1208.16(c)(4).
However, if an applicant is barred from such relief, e.g., for committing a
particularly serious crime under § 1208.16(d)(2), the applicant is still entitled to
deferral of removal after meeting their burden. See id. § 1208.16(c)(4). The only
notable difference between the two forms of relief is the method by which such relief
is terminated. While DHS must generally move to reopen a case in compliance with
§§ 1003.2, 1003.23 to terminate CAT withholding of removal, see id. § 1208.24(f),
DHS need only comply with the lower standard established by § 1208.17(d) to
terminate deferral of removal.
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rejected Jama’s legal claims, our jurisdiction extends to the IJ and the BIA’s factual
findings as they relate to Jama’s avenues for relief under CAT. See Nasrallah v.
Barr, 140 S. Ct. 1683, 1692 (2020). We review the IJ and the BIA’s findings of fact
under the substantial evidence standard, whereunder the IJ and the BIA’s findings
“are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” Id. (citation omitted). Having found that the IJ permissibly relied
on the police reports underlying Jama’s amended criminal complaint and with no
evidence compelling a contrary conclusion, we refuse to disturb the IJ and the BIA’s
determination that Jama committed a particularly serious crime. Id. Accordingly,
the IJ and the BIA did not err in finding that the particularly serious crime bar
foreclosed Jama’s relief for withholding of removal under CAT.
C.
Finally, Jama challenges the IJ and the BIA’s denial of deferral of removal
under CAT, arguing that he sufficiently demonstrated that he would more likely than
not be tortured upon his return to Somalia. A noncitizen may still be granted relief
in the form of deferral of removal under CAT, even if a particularly serious crime
bar applies. 8 C.F.R. § 1208.16(c)(4); id. § 1208.17. Again, the applicant must
“establish that it is more likely than not that he . . . would be tortured if removed to
the proposed country of removal.” Id. § 1208.16(c)(2); id. § 1208.17(a). Torture
includes:
any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining
from him or her or a third person information or a confession, punishing
him or her for an act he or she or a third person has committed or is
suspected of having committed, or intimidating or coercing him or her
or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person
acting in an official capacity.
Id. § 1208.18(a)(1).
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Jama frames most of his arguments as legal in nature, arguing that the IJ failed
to adequately consider certain evidence. However, as the BIA noted, the IJ did
consider all the relevant evidence as indicated by the references to the record within
the IJ’s decision. See Mayorga-Rosa v. Sessions, 888 F.3d 379, 384 (8th Cir. 2018)
(“[A]n immigration judge has ‘no duty to write an exegesis on every contention, [but
must] consider the issues raised, and announce its decision in terms sufficient to
enable a reviewing court to perceive that it has heard and thought and merely
reacted.’” (alterations in original) (citation omitted)). Therefore, we find that the IJ
and the BIA did not commit any legal error. See Sharif, 965 F.3d at 618-19 (“We
review the BIA’s legal determinations ‘de novo, according substantial deference to
the BIA’s interpretation of the statutes and regulations it administers.’” (citation
omitted)).
Substantively, Jama’s arguments attack the IJ’s findings of fact, which we
grant substantial deference. See Nasrallah, 140 S. Ct. at 1692. To succeed on his
CAT claim, Jama must have shown that it was more likely than not that he would be
tortured in Somalia, 8 C.F.R. § 1208.16(c)(2), and that such torture would be at the
hands of or acquiescence of the Somali government, see id. § 1208.18(a)(1). We
need not address the likelihood that Jama will be tortured because substantial
evidence supports the IJ and the BIA’s finding that his torture would not be directed
by or acquiesced to by the Somali government.
Jama presented two experts on mental health care in Somalia. Dr. Jama
testified in the proceedings that there was an 80% or greater chance that Jama would
be institutionalized and an 80%-90% chance that Jama would be chained in a mental
health facility. Admin. R. 309. However, Dr. Jama also testified that the
government does not regulate the mental health facilities, and he is not aware of
Somali police or government officials placing mentally ill individuals in these
facilities. Admin. R. 325-26. Dr. Reggi likewise declared that there was a 75%
probability that Jama would be chained for a prolonged time, but he acknowledged
that some public facilities have improved patient conditions, including one
establishing a “chain-free environment,” and that chaining is more prominent in
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private facilities. Admin. R. 427. He further declared that the distinction between
public and private facilities is illusory, noting for example that one “public” facility
operated through “private fundraising and fees from the patient’s families” and was
more akin to “an overcrowded private facility.” Admin. R. 426. The record
evidence also supports the proposition that institutionalization and chaining largely
occurs at the hands or direction of family members. See, e.g., Admin. R. 323, 905.
Under our highly deferential review, we do not find that the record compels a
conclusion contrary to the IJ and the BIA’s findings.
Jama could nonetheless obtain relief if the Somali government acquiesces in
torture by third parties. “A government does not acquiesce in the torture of its
citizens merely because it is aware of torture but powerless to stop it, but it does
cross the line into acquiescence when it shows willful blindness toward the torture
of citizens by third parties.” Moallin v. Barr, 980 F.3d 1207, 1210 (8th Cir. 2020)
(citation omitted). Jama contends that the government has been willfully blind to
such torture by wholly ignoring the regulation of the mental health facilities.
However, the IJ illuminated the Somali government’s slow but continual
improvement in this sector. Many developments, as Jama points out, are by the
hands of nongovernment organizations and external actors, but we do not equate the
government’s reliance on external support as willful blindness, especially given
Somalia’s weak infrastructure eroded by years of civil conflict. Admin. R. 881. In
fact, Dr. Jama indicated that Somalia’s current infrastructure, or lack thereof, makes
such healthcare reform impossible. See Admin R. 325-26 (“[The government]
cannot regulate [mental health facilities] . . . . They don’t have [the] ability to force
any law.”). Even so, the IJ highlighted multiple ways the government itself has
participated in the development of mental health care systems. For example, the
government has established three mental health departments, converted a prison to
a mental health facility with the help of a nongovernment organization, partnered
with international educators to provide mental health training in Somalia’s main
universities, and approved the country’s first mental health policy. Admin. R. 881-
82. Therefore, we do not find that the record evidence compels a finding that the
Somali government has acquiesced in the torture, if any, that Jama would more likely
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than not face.7 Accordingly, we refuse to disturb the IJ and the BIA’s factual
findings.
Jama also contends that he would be tortured by al-Shabaab on the basis “that
he is a Westernized Somali or that he possesses a pro-government political opinion.”
Admin. R. 160-61. On appeal, Jama has only challenged the IJ and the BIA’s
decision as it relates to the Somali government’s acquiescence in such alleged
torture. See Pet’r’s Br. 32. However, the IJ also found that the violence perpetrated
by al-Shabaab in Somalia is “indiscriminate” and the reports of torture of “perceived
government collaborators” were of such “relatively low rate of incidence” that Jama
had failed to establish that he would more likely than not face torture upon his return.
Admin. R. 161. Because Jama must show that there is (1) a likelihood of torture and
(2) that such torture would occur at the hands of the Somali government, see 8 C.F.R.
§ 1208.18(a)(1), his failure to challenge the IJ’s finding as it relates to the likelihood
of the torture is fatal to his claim. Therefore, we will not disturb the IJ and the BIA’s
findings.
Finally, Jama contends that the IJ and the BIA legally erred by failing to
consider the aggregate risk of all the alleged methods of torture by all the alleged
actors. “The [BIA] has recognized that claims under CAT must be considered in
7
That is not to say that we approve of Somalia’s seemingly dismal healthcare
system or are ignorant of the significant number of facts in the record, most of which
the dissent highlights, detailing the incidents of chaining and the Somali
government’s alleged failure to modernize its approach to medicine. While, before
the IJ, Jama had to show that his torture and the government’s consent or
acquiescence was more likely than not to occur, his burden on appeal is significantly
higher. It is not enough for us to disagree with the BIA and find that such outcomes
are likely, but instead “we must find that it would not be possible for any reasonable
fact-finder to come to the conclusion reached by the [BIA].” Menendez-Donis v.
Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004) (“[U]nder the substantial evidence
standard we cannot substitute our determination for that of the administrative fact-
finder just because we believe that the fact-finder is clearly wrong.”). At least with
regard to the government’s consent or acquiescence in such alleged torture, we are
not so compelled.
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terms of the aggregate risk of torture from all sources.” Abdi Omar v. Barr, 962
F.3d 1061, 1065 (8th Cir. 2020). However, we have explained that “address[ing]
risk factors individually . . . is not inconsistent with analyzing risk in the aggregate
as long as the [IJ and BIA] ultimately consider[] all factors together.” Moallin, 980
F.3d at 1210 (alterations in original) (quoting Abdi Omar, 962 F.3d at 1065)); Abdi
Omar, 962 F.3d at 1065 (“If individual findings about particular risks are flawed,
then of course it may follow that the aggregate finding is flawed as well.”). On
appeal, the BIA recognized each alleged basis of torture and adopted the IJ’s
reasoning. The IJ expressly noted that Jama had “failed to show individually, or
cumulatively, that he will be more likely than not to experience torture for any
reason.” Admin. R. 161. Therefore, we do not find that the IJ and the BIA erred in
considering the aggregate risk of torture.
III.
Accordingly, we deny the petition for review.
KELLY, Circuit Judge, dissenting.
Abdullahi Jama, a 33-year-old resident of Minnesota, is at risk of deportation
to Somalia, though he has not lived there for 30 years. Because I believe the BIA
engaged in unauthorized factfinding in affirming the dismissal of his claims for
withholding of removal, and because the record contains substantial evidence
showing that he would likely be tortured by or with the consent of the Somali
government, I respectfully dissent from the court’s denial of Jama’s petition for
review.
A.
“A noncitizen has two vehicles by which he can obtain withholding of
removal—8 U.S.C. § 1231 (statutory withholding of removal) and CAT [Convention
Against Torture]—and the particularly serious crime bar prohibits both.” Shazi v.
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Wilkinson, — F.3d —, No. 19-2842, 2021 WL 503288, at *2 (8th Cir. 2021) (citing
8 U.S.C. § 1231(b)(3)(B)(ii) and 8 C.F.R. § 1208.16(d)). The particularly serious
crime inquiry is the same under either mechanism. “After determining that the
elements of the offense potentially state a particularly serious crime, ‘all reliable
information may be considered in making a particularly serious crime determination,
including the conviction records and sentencing information, as well as other
information outside the confines of a record of conviction.’” Marambo v. Barr, 932
F.3d 650, 655 (8th Cir. 2019) (quoting Matter of N-A-M, 24 I. & N. Dec. 336, 342
(BIA 2007)). Though I agree that the IJ and BIA properly considered the elements
of Jama’s second-degree felony assault conviction and the underlying police reports,
I would grant the petition for review because the IJ excluded evidence of Jama’s
mental health history. See Shazi, — F.3d at —, 2021 WL 503288, at *5 (rejecting
a categorical bar to considering mental health evidence in particularly serious crime
inquiry).
The court reasons that the IJ’s error was harmless because the BIA
alternatively concluded that Jama had “not submitted sufficient evidence to
demonstrate that his mental illness provide[d] an explanation or a basis for
mitigating the dangerousness of [his] actions.” In my view, though, the BIA
exceeded the scope of its review in arriving at this conclusion. “[T]he BIA is limited
to determining ‘whether the [factual] findings of the immigration judge are clearly
erroneous.’” Flores v. Holder, 699 F.3d 998, 1003 (8th Cir. 2012) (quoting 8 C.F.R.
§ 1003.1(d)(3)(i)). Although the ultimate determination of whether a conviction
constitutes a “particularly serious crime” is a question of law, the underlying inquiry
is fact-intensive, requiring the IJ to consider “the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of sentence imposed,
and most importantly, whether the type and circumstances of the crime indicate that
the [noncitizen] will be a danger to the community.” Tian v. Holder, 576 F.3d 890,
897 (8th Cir. 2009) (cleaned up); cf. Shazi, — F.3d at —, 2021 WL 503288, at *2
n.2 (noting that “the factual findings as they relate to a noncitizen’s CAT claim”
include those “underpinning the BIA’s particularly serious crime determination”).
Of course, the BIA has the discretion to reweigh the IJ’s factual findings when
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determining whether the noncitizen has been convicted of a “particularly serious
crime.” See Waldron v. Holder, 688 F.3d 354, 361 (8th Cir. 2012). “[B]ut there is
a difference between weighing the factual findings of the IJ and reweighing the
underlying evidence and testimony behind those factual findings to reach new factual
conclusions.” Id. (emphasis added). In this case, the BIA did the latter.
Though the IJ and BIA both concluded that Jama had committed a
“particularly serious crime,” the BIA’s determination rested in part on a new factual
inquiry regarding the effect of Jama’s mental illness on the likelihood that he would
be a danger to the community. The IJ’s factual findings regarding Jama’s mental
health were limited. The IJ noted, for instance, that Jama has been diagnosed with
depression, anxiety, and PTSD; that he attempted suicide or was hospitalized due to
suicidal ideations three times between 2009 and 2015; and that he has a history of
alcohol and drug abuse. Citing Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014),
however, the IJ did not make a factual finding as to the impact of these mental health
issues on the circumstances underlying Jama’s assault conviction (and whether they
indicate a risk of danger). Cf. Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA
2015) (explaining that an IJ’s “finding that a future event will occur is a finding of
fact that the [BIA] must review under the clearly erroneous standard”). And because
the IJ’s findings on the factors relevant to the particularly serious crime inquiry did
not incorporate evidence of Jama’s history of mental illness, it was not within the
BIA’s province to incorporate that evidence in the first instance. By doing so, the
BIA did not merely reweigh the factors—it redefined them. See Flores, 699 F.3d at
1003-04 (explaining that when the IJ makes “no factual findings” on a particular
issue, “any potential findings by the BIA [on the same issue] would be the result of
an independent, improper factual analysis”); Eweedah v. Barr, 798 F. App’x 172,
174 (9th Cir. 2020) (mem.) (granting petition for review where “IJ did not explicitly
weigh” testimony regarding noncitizen’s mental health “in concluding that [his]
crime was particularly serious,” and BIA “should have remanded . . . to the IJ for an
initial determination of whether [the] crime was particularly serious considering this
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mental health evidence”). For this reason, I would grant the petition for review on
Jama’s withholding-of-removal claims.8
B.
As for Jama’s application for deferral of removal under CAT, I believe he met
his burden of “establish[ing] that it is more likely than not that he . . . would be
tortured if removed” to Somalia, 8 C.F.R. §§ 1208.16(c)(2), 1208.17(a), and that
such torture would be inflicted by the Somali government or with its acquiescence,
id. § 1208.18(a)(1).
1.
First, the record compels the conclusion that Jama would more likely than not
be tortured by chaining if removed to Somalia. For an act to constitute “torture”
under CAT, there must be an underlying “intent to cause severe harm, not simply
intent to carry out an act that ultimately results in harm.” Lasu v. Barr, 970 F.3d
960, 967 (8th Cir. 2020). As discussed further below, the practice of chaining
mentally ill persons—with tight, painful metal restraints, often for months or years—
remains widespread throughout Somalia. See, e.g., Admin R. at 299-300, 720, 738,
740. The same goes for indefinite detention, seclusion, and forced medication. See,
e.g., id. at 301, 338, 379, 425, 906. Importantly, the record shows that “[c]haining
8
The BIA’s decision also includes the following statement: “Considering all
reliable information, . . . including the respondent’s mental health history, upon our
de novo review, we conclude that the respondent’s crime was a particularly serious
one.” Absent any discussion of whether the IJ’s factual findings regarding Jama’s
mental health were clearly erroneous, the reference to “de novo” in the same
sentence as Jama’s mental-health history “raises the question whether the Board
confused or mixed the standards of review.” Garcia-Mata v. Sessions, 893 F.3d
1107, 1110 (8th Cir. 2018). Though the BIA’s impermissible fact-finding is, in my
view, apparent from the face of the decision, a petition for review should be granted
even where, “[w]ithout more explanation, [the court is] unable to resolve whether
the [BIA] conducted impermissible factfinding of its own.” Id.-17-
is . . . commonly used as a form of punishment when patients refuse to follow orders,
exhibit aggressive behavior[,] or try to escape,” id. at 905, evincing an intent by
healthcare practitioners or facility staff to inflict severe harm. This is consistent with
the persistent societal belief in Somalia that mental illness is caused by evil and
merits punishment. See id. at 295, 741.
With respect to Jama specifically, the record contains expert evidence
showing that Jama’s mental illnesses manifest in visibly erratic behavior and
substance abuse, that being in Somalia would exacerbate his illnesses due to the
trauma he experienced there, that his physical impairments limit his ability to work,
and that he lacks the necessary support networks within Somalia to access housing,
treatment, and medication. See id. at 306, 339-41. As a result, and given the
widespread stigma against mental illness in Somalia, Jama would probably be
involuntarily institutionalized. See id. at 339-41, 427-29, 807-08. Once
institutionalized, the likelihood that he would be chained is anywhere from 75-90%.
Id. at 309-10, 428-29, 905. Chaining would also be especially painful to Jama due
to a prior ankle injury that makes it difficult for him to walk. Id. at 309. Taking
these facts together, it is probable that Jama would be institutionalized and chained
if removed to Somalia and that this would constitute torture under CAT. 9
9
I also agree with Jama that the likelihood of torture increases even more when
considering the risk of chaining together with the risk of harm from al-Shabaab.
Though Jama has failed to challenge the IJ’s finding on the likelihood of torture by
al-Shabaab alone on appeal, he does argue that the risk of harm from al-Shabaab—
even if it does not amount to torture in and of itself—adds to “the aggregate risk of
torture from all sources,” Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020)
(cleaned up). The record supports this conclusion, too, especially given how
conspicuous Jama’s mental illness, accent, dress, alcohol use, and U.S. ties would
make him to a group like al-Shabaab. See, e.g., Admin R. at 241-46, 340, 459, 1454,
1936, 1956-57; see also In re G-A-, 23 I. & N. Dec. 366, 368-70 (BIA 2002)
(granting CAT relief on the basis of evidence that (1) “Armenian Christians are
subject to harsh and discriminatory treatment in Iran”; (2) “Iranians who have spent
an extensive amount of time in the United States are perceived to be opponents of
the Iranian Government or even pro-American spies”; (3) “persons associated with
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2.
Moving to the government acquiescence prong, the fact that the Somali
government has been trying to improve Somalia’s mental healthcare system does not
negate the substantial evidence that officials in public facilities continue to chain
mentally ill patients, or that this practice remains pervasive. See, e.g., Admin R. at
339 (“[A]t both public and private mental health facilities in Somalia[,] [p]atients
are routinely chained upon admission, and remain chained for months, years, or even
indefinitely.”); id. at 427 (“In the majority of private centers and in many public
facilities chains are widely used . . . .”); id. at 750 (documenting chaining at the
public Berbera General Hospital); id. at 754 (noting that most staff members at
public and private facilities resort to isolating, chaining, and sedating aggressive
patients). The court emphasizes that chaining is more prevalent in private facilities,
but this fact actually cuts both ways. Because there are very few mental health
practitioners in Somalia overall, it appears that most work in both public and private
facilities. See id. at 378, 721, 732, 798. Considering the government’s general
failure to regulate mental health services together with the high incidence of chaining
at private facilities, it seems unlikely that the same workers who perpetrate the
practice at one location would decline to do so at another. This inference is
consistent with evidence showing that chaining remains widespread in public mental
health facilities.
Moreover, though the court highlights the efforts of the Somali government
to develop the country’s mental health care sector, it fails to adequately interrogate
the substance and credibility of those efforts. As late as 2015, the Somali Ministry
of Health spent $47,500 to build a new mental health ward in Mogadishu with metal
hooks in the ground for chaining patients. Id. at 733. This supports the conclusion
that the Somali government would likely condone the chaining of Jama should he
narcotics trafficking face particularly severe punishment”; (4) and “security forces
and prison personnel continue to torture detainees and prisoners”).
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be institutionalized (and the record shows he probably would be). Similarly, the
government’s plan to improve mental health training at Somali universities does not
change the fact that public employees currently do chain mentally ill patients—often
and for prolonged periods of time. 10 See, e.g., id. at 905 (“Chaining is also widely
practiced within both public and private mental health facilities . . . , commonly used
as a form of punishment when patients refuse to follow orders, exhibit aggressive
behavior or try to escape.”); id. at 341 (“Abdullahi Jama would experience
[chaining] at either public or private facilities” because “such treatment is accepted
and employed by healthcare workers, including workers employed by the
government.”). Thus, though the chain-free initiative has been implemented at one
facility, the Somali government’s nod toward expanding that initiative holds little
weight when its employees are simultaneously engaging in the practice and its
officials are building new facilities that accommodate it.
Ultimately, “it is not contrary to the purposes of the CAT . . . to hold [Somalia]
responsible for the acts of its officials, including low-level ones, even when [they]
act in contravention of the nation’s will and despite the fact that the actions may take
place in circumstances where the officials should be acting on behalf of the state in
another, legitimate, way.” Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir.
2009). Jama does not have to prove the Somali government’s participation or
acquiescence in his torture with certainty; and on this record, the Somali government
is at least more likely than not to do so.11
10
There is no evidence that the Somali government has even attempted to
prohibit or otherwise penalize the practice of chaining, whether in public or in
private institutions. In this context, it matters little that Somalia recently approved
its “first mental health policy.” Indeed, according to the former Director General of
the Ministry of Health, this policy is merely “an aspirational document,” Admin R.
at 762—and even there it seems deficient. According to Human Rights Watch, the
policy does not even call “for the development of clear guidelines and protocols on
issues of restraints.” Id.11
With respect to added risk of harm from al-Shabaab, Jama presented
evidence showing that al-Shabaab controls most of south and central Somalia, the
routes to and from Mogadishu, and Mogadishu itself at night (with increasing
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For the foregoing reasons, I would grant the petition for review.
______________________________
daytime attacks). Admin R. at 1030, 1038, 1052, 1097, 1169. This suggests
government acquiescence or approval wherever al-Shabaab is the de facto
government. See Delgado v. Mukasey, 508 F.3d 702, 709 (2d Cir. 2007)
(concluding that BIA erred in rejecting claim of government acquiescence in FARC
violence where record showed that FARC controlled a “Switzerland-sized area” of
Colombia).
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