Osman Hagi-Salad v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3437
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Osman Farah Hagi-Salad, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
John Ashcroft, *
*
Respondent. *
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Submitted: October 23, 2003
Filed: March 9, 2004
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Before LOKEN, Chief Judge, LAY and BOWMAN, Circuit Judges.
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LOKEN, Chief Judge.
Osman Hagi-Salad is a twenty-six year old citizen of strife-torn Somalia. He
entered the United States without inspection in 1994 and applied for asylum in March
1995. Following a hearing, the immigration judge (IJ) denied the application,
granting Hagi-Salad voluntary departure, and the Board of Immigration Appeals
(BIA) dismissed his administrative appeal, with an opinion. Hagi-Salad petitions for
judicial review. We conclude that the BIA erred by failing to apply 8 C.F.R.
§ 208.13(b)(3), a recently promulgated regulation defining when the ability to
relocate within an applicant’s country of origin causes him to be ineligible for
asylum. Accordingly, we remand to the BIA for further administrative proceedings.1
The Attorney General has discretion to grant asylum to a “refugee.” 8 U.S.C.
§ 1158(b)(1). A refugee is defined as an alien who is unable or unwilling to return
to his country of origin “because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution is the infliction or threat
of death, torture, or injury to one’s person or freedom” on account of one of the five
statutory grounds. Regalado-Garcia v. I.N.S., 305 F.3d 784, 787 (8th Cir. 2002).
An alien who establishes past persecution may be eligible for asylum on that
ground alone; at a minimum, he is entitled to a presumption that he has a well-
founded fear of future persecution if removed to his country of origin. See 8 C.F.R.
§ 208.13(b)(1); Fisher v. I.N.S., 291 F.3d 491, 497 (8th Cir. 2002). Under the current
regulations, the INS may rebut this presumption by proving either “a fundamental
change in circumstances such that the applicant no longer has a well-founded fear of
persecution,” or that “[t]he applicant could avoid future persecution by relocating to
another part of [his] country of nationality . . . and under all the circumstances, it
would be reasonable to expect [him] to do so.” § 208.13(b)(1)(i)(A) & (B). If the
INS satisfies its burden of proof on either of these issues, the applicant is not eligible
for a discretionary grant of asylum. § 208.13(b)(1)(i) & (ii).
1
Hagi-Salad also appeals the denial of withholding of deportation, now called
withholding of removal. See 8 U.S.C. § 1253(h) (1994) (current version at 8 U.S.C.
§ 1231(b)(3)). The standard for this distinct statutory relief is similar to but “more
rigorous than that of well-founded fear required for a grant of asylum.” Regalado-
Garcia, 305 F.3d at 788. Given our disposition of the asylum appeal, we remand the
denial of withholding of removal without additional discussion.
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Though the people of Somalia consist of one major ethnic group who speak a
common language and practice the Sunni Islam religion, the administrative record
establishes that Somalis have segmented themselves into patrilineal clans that
dominate political and social life. A December 1996 State Department report entitled,
“Somalia: Profile of Asylum Claims and Country Conditions,” stated:
Clans are the key social group for virtually all Somalis.
Reflecting the widespread inter-clan and sub-clan strife in the country,
most asylum claims from Somalis are based on fears of retaliation of
some kind from members of other clans or sub-clans -- based primarily
on the applicant’s own clan or sub-clan membership.
In considering asylum applications under 8 U.S.C. § 1158, the BIA has acknowledged
that a Somali clan or sub-clan may be “a particular social group” for purposes of
determining whether persecution or fear of persecution is “on account of” that
protected ground. In re H-, 21 I. & N. Dec. 337, 342-43 (BIA 1996).
Hagi-Salad claims that he is entitled to asylum because he has suffered past
persecution and has a well-founded fear of future persecution on account of his
membership in the Darood clan.2 Hagi-Salad’s father is a member of the Majerteynia
sub-clan of the large Darood clan. The Majerteynia sub-clan is prevalent in the
northeast part of Somalia. But Hagi-Salad and his immediate family lived further
south, in the capital city of Mogadishu, located in a region dominated by the Hawiye
clan. In the 1970’s, Hagi-Salad’s father was a colonel in the Somali air force. The
country was then run by a dictator, Mohammed Siad Barre, a member of the Marehan
sub-clan of the Darood clan. In 1977, Hagi-Salad’s uncle and other Majerteynia sub-
clansmen formed the Somalia Salvation Democratic Front (SSDF) and mounted an
2
The names of many Somali clans and sub-clans are inconsistently spelled in
various parts of the voluminous administrative record. This opinion will use the
spellings found in the hearing transcript.
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unsuccessful coup against the Siad Barre government. As a result, Hagi-Salad’s
uncle was executed and his father was imprisoned for nine years. When released
from prison, Hagi-Salad’s father did not rejoin the military, and he has now lived
outside Somalia for many years.
On January 28, 1991, one day after Siad Barre was driven from Mogadishu by
a successful rebellion, members of the United Somali Congress, a Hawiye-dominated
militia, entered Hagi-Salad’s home, raped his mother and sister, and killed his
maternal uncle3 and paternal grandfather when they tried to protect the women. Hagi-
Salad, then thirteen years old, hid from the intruders. Before escaping through a
bathroom window, he heard the attackers say repeatedly, “you are not belonging to
this country, you must leave here.” Hagi-Salad testified that he recognized the militia
leader as a member of the Hawiye clan and a former military colleague of his father
who knew that the Hagi-Salad family were members of the Darood clan.
After escaping, Hagi-Salad fled Mogadishu and traveled to Kenya through
areas of Somalia controlled by Hawiye militia, avoiding harm by claiming to belong
to the Hawiye clan. He stayed in a Kenyan refugee camp for over three years while
the other members of his immediate family took refuge in Yemen. Hagi-Salad left
Kenya and stayed in Ethiopia for a year, hoping to reunite with his family. But war
broke out in Yemen, preventing him from entering that country. An Ethiopian helped
him travel to the United States, where he settled and resumed his schooling in a large
Somali community in Rochester, Minnesota.
The Department of State Country Reports and other documents in the record
agree that Somalia has not had a functioning central government since January 1991.
After the collapse of Siad Barre’s regime, Mogadishu descended into chaos and
3
Hagi-Salad testified that his mother belonged to the less powerful Rahanweyn
clan, prevalent in regions west of Mogadishu.
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anarchy, with rival Hawiye warlords competing for power, terrorizing the civilian
population, and eventually driving out United States and United Nations
peacekeepers. However, conditions in other parts of the country have improved
under local clan-based political authorities. In the northwest, an area that was
formerly British Somaliland, members of the large Issak clan formed the Somali
National Movement and declared a separate Republic of Somaliland, which the
international community has not recognized as a state. The northeast is controlled by
the Majerteynia-dominated SSDF. Other Darood sub-clans are strong in some
southwest regions. This evidence suggests that the ability-to-relocate issue is
important to Somali asylum claims.
A statement attached to Hagi-Salad’s initial asylum application focused on his
fear of returning to Mogadishu: “If I go back I will be killed by those people who
seized our houses . . . so that I could not lay claim to my families [sic] properties . .
. . [T]o this day there is no body [sic] from my clan living in Mogadishu for the same
reason.” In a later affidavit, he addressed the relocation issue:
If I even were able to get to the area where more Daroods live in the
Northeast, I would . . . still not be safe. This is because in Somalia
people rely very heavily on their immediate family for protection and
welfare. If the Daroods I were living with were fighting with other
clans, I would be one of the first to be exposed to danger even though
I have no experience with guns or fighting. This is because I have no
family members who could ask for me to be spared.
At the evidentiary hearing, Hagi-Salad further addressed the relocation issue,
testifying there is nowhere in the country he could safely live:
On my mother’s side, the area they live, they are not the whole
people there . . . and [it is] now controlled by the Hawiye clan . . . . As
I told you before, my father used to work [for] Siad Barre and [in] that
area where my father’s clan is they are still hostile [to] anybody who
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worked for Siad Barre and if I go over there, they still know[] the name
and they know my father . . . .
Three other witnesses testified that the areas controlled by the Darood clan are
unstable, that Hagi-Salad has never lived in those areas and has no immediate family
or other source of protection there, and that he faces great personal risk if he returns
to Somalia due to his family’s past political affiliations. Based upon this testimony
and documentary evidence of the chaotic conditions in Somalia since January 1991,
Hagi-Salad argued that he proved past persecution with evidence that members of his
immediate family were raped and murdered, in his presence, by members of the rival
Hawiye clan under circumstances establishing that the marauders acted on account
of the Hagi-Salad family’s membership in the Darood clan.4
Neither the IJ nor the BIA resolved the past persecution issue. The IJ found
Hagi-Salad’s testimony credible and the city of Mogadishu an area of continuing
“significant conflict.” However, relying on the State Department Profile of Asylum
Claims and Country Conditions, the IJ also found that “the Darood clan is one of the
main clans in Somalia,” it controls “significant portions of the country” and “makes
up 20% of the population,” and “a person belonging to one clan might well be in
serious danger if found in the territory of a rival clan, but face no problem
what[so]ever if in an area controlled by his own fellow clansmen.” The IJ found
Hagi-Salad ineligible for asylum because “there has been an improvement in the
conditions of the country as a whole, and in particular, [in] that area of Somalia which
is under the control of the [politically active] Darood clan,” so that Hagi-Salad has
“a place in Somalia to which he could go and live in relative safety and where he
4
“Acts of violence against an alien’s family members may demonstrate a well-
founded fear of persecution . . . [but] do not necessarily establish a well-founded fear
of persecution absent a pattern of persecution tied to the petitioner[].” Nyonzele v.
I.N.S., 83 F.3d 975, 983 (8th Cir. 1996) (quotations omitted).
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would not be subject to persecution on account of his membership in the Darood
clan.”
The BIA dismissed Hagi-Salad’s appeal, noting that the IJ “allowed for the
possibility that the harm [Hagi-Salad] experienced in Somalia constituted past
persecution,” and tying the IJ’s analysis more closely to the applicable regulations:
Although a finding of past persecution gives rise to a presumed
well-founded fear of future persecution, this does not automatically
require a grant of asylum, as the Immigration Judge recognized (I.J. at
6). See 8 C.F.R. § 208.13(b)(1) (2002). Indeed, this presumption may
be rebutted. See 8 C.F.R. § 208.13(b)(1)(i) (2002). We hold that the
Immigration Judge correctly found that [Hagi-Salad] could relocate
within Somalia and not reasonably fear harm on account of a protected
ground, to wit, clan membership (I.J. at 6). (Emphasis added.)
Our problem with the above analysis is that the emphasized portion is contrary
to the plain meaning of 8 C.F.R. § 208.13(b)(3), the subsection which explains how
to determine whether it would be “reasonable” to expect the asylum applicant to
relocate for purposes of 8 C.F.R.§ 208.13(b)(1)(i)(B):
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraph[] (b)(1)(i) . . . of this section,
adjudicators should consider, but are not limited to considering, whether
the applicant would face other serious harm in the place of suggested
relocation; any ongoing civil strife within the country; administrative,
economic, or judicial infrastructure; geographical limitations; and social
and cultural constraints, such as age, gender, health, and social and
familial ties. Those factors . . . are not necessarily determinative of
whether it would be reasonable for the applicant to relocate.
* * * * *
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(ii) In cases in which . . . the applicant has established persecution
in the past, it shall be presumed that internal relocation would not be
reasonable, unless the Service establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for the
applicant to relocate.
In other words, under § 208.13(b)(3), the internal relocation issue does not turn on
the finding by the IJ and the BIA that Hagi-Salad does not reasonably fear country-
wide clan-based persecution. Rather, the inquiry turns on whether relocation would
be reasonable under a potentially broad range of relevant factors, including whether
Hagi-Salad would face “other serious harm”5 in areas of Somalia where the Darood
clan or his Majerteynia sub-clan are dominant. In a close case, the question of past
persecution avoided by the IJ and the BIA may well be critical, because it determines
whether the INS or the asylum applicant has the burden of proof on the internal
relocation issue. Compare 8 C.F.R. §§ 208.13(a) & (b)(2)(ii), with § 208.13(b)(1)(ii);
Melecio-Saquil v. Ashcroft, 337 F.3d 983, 987-88 (8th Cir. 2003).
Before concluding that the BIA erred by not applying 8 C.F.R. § 208.13(b)(3),
we considered whether the regulation applies even though it was promulgated after
Hagi-Salad’s removal proceedings commenced. In amending the asylum statute in
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress
5
In proposing 8 C.F.R. § 208.13(b), the INS explained:
By “other serious harm,” we mean harm that may not be inflicted on
account of race, religion, nationality, membership in a particular social
group, or political opinion, but such harm would have to be so “serious”
as to equal the severity of persecution. We would not expect, for
example, that mere economic disadvantage or the inability to practice
one’s chosen profession would qualify as “other serious harm.”
63 Fed. Reg. 31945, 31947 (June 11, 1998).
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expressly provided that the prior version of 8 U.S.C. § 1158 governs this appeal
because Hagi-Salad applied for asylum prior to April 1, 1997. See Pub. L. No. 104-
208, § 604(c), 110 Stat. 3009-694 (Sept. 30, 1996); Fisher, 291 F.3d at 496. But the
regulations in 8 C.F.R. Part 208, which were amended after the effective date of
IIRIRA, expressly apply “to all applications for asylum under section 208 of the
[Immigration and Nationality] Act.” 8 C.F.R. § 208.1 (1998). Moreover, the BIA in
this case applied other subsections of 8 C.F.R. § 208.13(b) that were adopted in
December 2000 along with § 208.13(b)(3). See 65 Fed. Reg. 76121, 76133-34 (Dec.
6, 2000). Therefore, we conclude that Hagi-Salad is entitled to have his asylum
application considered under the § 208.13(b)(3) reasonableness standards. Accord
Lukwago v. Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003); Melkonian v. Ashcroft, 320
F.3d 1061, 1070-71 (9th Cir. 2003).
To conclude, as a reviewing court, we are obliged to give deference to the
BIA’s construction of ambiguous provisions of the immigration laws. See I.N.S. v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999). We likewise defer to the agency’s
reasonable interpretation of governing Department of Justice regulations. But here,
the BIA did not interpret 8 C.F.R. § 208.13(b)(3); its opinion altogether overlooked
or disregarded this new regulation. That was an error of law which precludes us from
affirming the agency’s decision. Cf. Manzoor v. U.S. Dep’t of Justice, 254 F.3d 342,
348 (1st Cir. 2001). In these circumstances, our proper disposition is to remand. See
I.N.S. v. Ventura, 537 U.S. 12, 16 (2002).
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