Abdi Ali Aden v. Robert Wilkinson
989 F.3d 1073
| 9th Cir. | 2021Background
- Aden, a Somali Sufi, operated a movie theater in Beledweyne; in 2010 Al-Shabaab raided the theater, physically beat Aden, seized equipment, and later threatened to kill him and his brother if they reopened the theater.\
- Aden hid, then fled Somalia in 2011 and obtained asylum/permission to work in South Africa, where he lived/ worked with relatives.\
- In South Africa Aden suffered repeated xenophobic attacks (store ransacked and burned, beatings, armed robbery and death threats); police failed to investigate.\
- Aden fled to the U.S. in 2015 and applied for asylum, withholding, and CAT protection; the IJ found him credible but denied asylum from Somalia (holding he had firmly resettled in South Africa and had not shown persecution in Somalia) while granting withholding from South Africa.\
- The BIA affirmed that Aden had firmly resettled and rejected his Somalia-asylum claim (but agreed he suffered persecution in South Africa). The Ninth Circuit granted review, held the BIA erred on firm-resettlement and that Aden suffered persecution and nexus in Somalia, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Firm resettlement in South Africa / applicability of restricted-residence exception | Aden: not firmly resettled because he suffered persecution in South Africa and authorities were unable/unwilling to protect him, satisfying the restricted-residence exception. | Government/BIA: Aden received refugee status, worked, lived normally, and any persecution was by private actors, so the exception does not apply. | Court: Board erred; a government’s failure/unwillingness to prevent private persecution can be a restriction "by" authorities under the exception; remand for proper analysis. |
| Past persecution in Somalia | Aden: Al-Shabaab’s raid, severe beating, confiscation, and explicit death threats to him and his brother amount to past persecution. | IJ/BIA: Only a one-time beating; threats applied only to brother; not persecution or not on account of protected ground. | Court: Substantial evidence compels finding of past persecution by Al-Shabaab (beating + targeted threats + context of turmoil); reversed on this issue. |
| Nexus to protected ground (religion/political opinion) | Aden: Al-Shabaab attacked because the theater showed "Satanic" films—a religious/political motive or imputed beliefs—so persecution was on account of religion/political opinion. | IJ/BIA: Persecutor’s own motives do not establish persecution on account of victim’s beliefs; relied on Elias‑Zacarias. | Court: Nexus established—persecutor statements and circumstances show motive or imputed opinion; Elias‑Zacarias inapplicable here. |
| Withholding of removal / clear probability and rebuttal of presumption | Aden: Past persecution creates presumption of future persecution; eligible for withholding unless government rebuts with changed country conditions. | IJ/BIA: Denied because they found no past persecution; did not evaluate rebuttal. | Court: Because past persecution is established, remand for the agency to consider withholding and allow government chance to rebut presumption with country‑conditions evidence. |
Key Cases Cited
- Arrey v. Barr, 916 F.3d 1149 (9th Cir. 2019) (firm‑resettlement framework and exception analysis)
- Maharaj v. Gonzales, 450 F.3d 961 (9th Cir. 2006) (standards for firm resettlement)
- Siong v. INS, 376 F.3d 1030 (9th Cir. 2004) (failure to protect by authorities can defeat resettlement)
- E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832 (9th Cir. 2020) (policy rationale against denying asylum to those who remain subject to persecution)
- Yang v. INS, 79 F.3d 932 (9th Cir. 1996) (firmly resettled aliens typically not subject to persecution)
- Chand v. INS, 222 F.3d 1066 (9th Cir. 2000) (elements for past persecution claim)
- Elias‑Zacarias v. INS, 502 U.S. 478 (1992) (narrow discussion of nexus in forcible conscription context)
- Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998) (definition and cumulative‑effects test for persecution)
- Parussimova v. Mukasey, 555 F.3d 734 (9th Cir. 2009) (nexus: "at least one central reason")
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (remand to allow agency to assess changed country conditions)
- Smolniakova v. Gonzales, 422 F.3d 1037 (9th Cir. 2005) (death threats with other abuse can establish persecution)
- Kaiser v. Ashcroft, 390 F.3d 653 (9th Cir. 2004) (seriousness of threats assessed by persecutor's will/ability to carry them out)
- Navas v. INS, 217 F.3d 646 (9th Cir. 2000) (nexus may be inferred from circumstances)