Mohamud Hassan v. William P. Barr

United States Court of Appeals
For the Eighth Circuit
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No. 19-2918
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Mohamud Mohamed Hassan
Petitioner
v.
Jeffrey A. Rosen, Acting Attorney General of United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: October 22, 2020
Filed: January 15, 2021
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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GRUENDER, Circuit Judge.
Petitioner Mohamud Mohamed Hassan asked an Immigration Judge (“IJ”)
and then the Board of Immigration Appeals (“BIA”) to defer his removal to Somalia
under the Convention Against Torture (“CAT”). For the following reasons, we deny
Hassan’s petition for review of the IJ’s and BIA’s decisions denying relief.
Hassan, a Somali native, entered the United States in 2001 under a false
passport. Subsequently, the U.S. Department of Homeland Security sought Hassan’s
removal under 8 U.S.C. § 1227(a)(1)(A). The IJ ordered Hassan removed to
Somalia, the BIA affirmed the IJ’s decision, and we summarily denied Hassan’s
petition for review. Hassan v. Holder, 446 F. App’x 822, 823 (8th Cir. 2012) (per
curiam).
Hassan then moved to reopen his case, which the BIA granted, remanding the
case to the IJ. On remand, Hassan asked the IJ to defer his removal under the CAT,
arguing that he was likely to be tortured if removed to Somalia. The IJ denied
Hassan’s request, and the BIA affirmed the IJ’s decision. Hassan petitions us to
review those decisions.
Where, as here, the BIA issues a separate opinion, rather than summarily
affirming the IJ’s decision, we review the BIA’s decision as the final agency action.
See Alzawed v. Barr, 970 F.3d 997, 1000 (8th Cir. 2020). To the extent the BIA
adopted the IJ’s reasoning, as here, we review the IJ’s decision too. See id. We
review legal conclusions de novo and factual findings for substantial evidence. Id.Substantial-evidence review is highly deferential, and we will unsettle factual
findings only if “any reasonable adjudicator would be compelled to conclude to the
contrary.” Lasu v. Barr, 970 F.3d 960, 964 (8th Cir. 2020).
The CAT prohibits the Government from removing an alien to a country
where he is more likely than not to be tortured. Doe v. Holder, 651 F.3d 824, 828
(8th Cir. 2011). “Torture” is defined as certain acts that cause “severe pain or
suffering, whether physical or mental . . . 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.” 8 C.F.R. § 1208.18(a)(1). In considering
the likelihood of torture, the IJ and BIA must consider “the aggregate risk of torture
from all sources.” Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020).
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Before the IJ and BIA, Hassan argued that the Somali government would
torture him for belonging to a minority clan and that Al-Shabaab (a terrorist
organization) would torture him for minority-clan membership, being
“westernized,” and having been on a failed repatriation flight. The IJ and BIA
concluded that Hassan was unlikely to be tortured for any of these reasons. They
alternatively found that any torture by Al-Shabaab would not trigger CAT relief
because it would not be done with the Somali government’s acquiescence and that
Hassan could avoid any risk of torture from Al-Shabaab by relocating to Mogadishu.
Hassan disputes these conclusions.
First, Hassan challenges the IJ’s and BIA’s conclusions that he is unlikely to
be tortured by the Somali government or Al-Shabaab for minority-clan membership
because Hassan’s clan, the Begadi, is not a minority clan. The record indicates that
the Begadi clan is actually a sub-clan of a “noble” clan with major representation in
the Somali government. Hassan cites only his own testimony (and inapposite
affidavits) to support his contrary argument. Given the lopsided record support for
the IJ’s and BIA’s conclusions, we cannot say that “any reasonable adjudicator
would be compelled to conclude to the contrary.” Lasu, 970 F.3d at 964. Thus,
substantial evidence supported the IJ’s and BIA’s conclusions that Hassan was
unlikely to be tortured for minority-clan membership.
Second, Hassan challenges the IJ’s and BIA’s conclusions that any torture by
Al-Shabaab does not qualify for CAT relief because the Somali government would
not acquiesce in such torture. Our “inquiry into whether a government acquiesces
centers upon the willfulness of a government’s non-intervention.” Ramirez-Peyro v.
Holder, 574 F.3d 893, 899 (8th Cir. 2009) (internal quotation marks omitted). “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.” Id.Here, the record does not show that the Somali government has willfully
turned a blind eye to Al-Shabaab’s activities. In fact, it shows the opposite. The
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Somali government is actively fighting to control Al-Shabaab, has considerably
reduced Al-Shabaab’s military capacity, and has demonstrated a willingness to fight
terrorism. Hassan counters that the Somali government’s amnesty program for
certain Al-Shabaab members shows acquiescence. But the Somali government is
using the amnesty program to encourage defections as part of its fight against Al-
Shabaab. Hassan also argues that Al-Shabaab has managed to infiltrate parts of the
Somali government. Yet Hassan does not explain how general infiltration (or the
amnesty program) makes the Somali government likely to acquiesce in his torture.
See Lasu, 970 F.3d at 966 (explaining that someone seeking CAT relief must show
he “would be personally at risk”). Additionally, Hassan’s assertion that the Somali
government and Al-Shabaab act in concert to torture people is wholly without record
support.
Hassan’s real grievance is that the Somali government has been unable to
control Al-Shabaab. “But the fact that the Somali government has not
successfully ended the threat posed by Al-Shabaab violence is insufficient to
establish that the torture would be with the consent or acquiescence of a government
official.” Moallin v. Barr, 980 F.3d 1207, 1210-11 (8th Cir. 2020) (internal
quotation marks and brackets omitted). In sum, substantial evidence supported the
IJ’s and BIA’s conclusions that the Somali government was unlikely to acquiesce in
any torture by Al-Shabaab. 1 Accordingly, we need not consider the IJ’s and BIA’s
separate findings that Hassan was unlikely to be tortured by Al-Shabaab and that
Hassan could safely relocate to Mogadishu to avoid torture by Al-Shabaab. See id.
at 1211 (doing the same); Menjivar v. Gonzales, 416 F.3d 918, 922-23 (8th Cir.
2005) (denying CAT relief for failure to show acquiescence).
1
Hassan also suggests that torture by Al-Shabaab triggers CAT relief because,
in parts of Somalia, Al-Shabaab is the de facto government. We decline to consider
this claim because Hassan has offered no supporting legal authority and only cursory
supporting arguments. See, e.g., Heuton v. Ford Motor Co., 930 F.3d 1015, 1023
(8th Cir. 2019) (“[W]e regularly decline to consider cursory or summary arguments
that are unsupported by citations to legal authorities.”); Perez v. Holder, 430 F.
App’x 548, 550 (8th Cir. 2011) (holding a CAT claim had been waived because the
petitioner’s “brief ma[de] no meaningful argument in support”).
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Finally, Hassan argues that the IJ and BIA applied the wrong legal standard
by failing to consider his aggregate risk of torture and, instead, denied him relief
solely because no single risk factor demonstrated a likelihood of torture. See
generally Abdi Omar, 962 F.3d at 1065 (holding that the BIA must consider “the
aggregate risk of torture from all sources”). The IJ and BIA did no such thing. To
the contrary, in both their decisions the IJ and BIA expressly indicated that they were
considering “all evidence relevant to the possibility of future torture.” See Moallin,
980 F.3d at 1210; Abdi Omar, 962 F.3d at 1065. And both found that Hassan had
failed to establish a likelihood of torture only after they considered all of Hassan’s
alleged risk factors. True, the IJ and BIA considered each of Hassan’s alleged risk
factors individually before concluding Hassan had not established a likelihood of
torture. But, as we have explained, “addressing 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 (internal quotation marks
and alterations omitted).
Nonetheless, Hassan insists that the IJ and BIA erred by “not expressly
consider[ing] all risk dynamics together” and not “devot[ing] meaningful space in
[their] final order[s] to aggregating risk.” But our precedent does not require a
separate or lengthy aggregation analysis. Rather, as our prior circuit decisions
demonstrate, it is enough that the record indicates the IJ and BIA considered the risk
of torture in the aggregate. See id. at 1210; Abdi Omar, 962 F.3d at 1065. We are
satisfied the IJ and BIA did so here.
For the foregoing reasons, we deny Hassan’s petition.
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