Abdifatah Omar v. William P. Barr
962 F.3d 1061
| 8th Cir. | 2020Background
- Abdifatah Abdi Omar, a Somali native and lawful permanent resident, was convicted in Minnesota of drug sale, theft, and first-degree drug possession; DHS initiated removal proceedings on controlled-substance, crimes involving moral turpitude, and aggravated-felony grounds.
- Omar conceded removability on the controlled-substance ground and did not challenge the IJ’s finding that he was convicted of an aggravated felony before the BIA.
- The IJ denied cancellation, asylum, and withholding of removal but granted deferral under the Convention Against Torture (CAT), finding it more likely than not Omar would be tortured in Somalia because he is a member of the minority Begedi clan and is HIV-positive, and that internal relocation was not reasonable.
- The Department appealed; the BIA reversed the IJ, concluding the IJ clearly erred: the testimony lacked adequate foundation, country reports were too general as to the Begedi clan, and evidence about HIV-related abuse did not establish torture more likely than not.
- Omar petitioned for review of the BIA’s CAT denial; the government moved to dismiss for lack of jurisdiction, but the court retained jurisdiction over the CAT claim under Nasrallah and denied the motion.
- The Eighth Circuit denied the petition, holding Omar failed to exhaust challenges to removability, and the BIA adequately explained that the IJ’s CAT finding was clearly erroneous based on the record.
Issues
| Issue | Omar's Argument | Government's Argument | Held |
|---|---|---|---|
| Jurisdiction over petition | Court has jurisdiction to review BIA’s denial of CAT relief (Omar contests CAT denial). | Petition should be dismissed because Omar convicted of offenses listed in 8 U.S.C. §1252(a)(2)(C) and raised no colorable legal claim. | Court retained jurisdiction to review the CAT order under Nasrallah and denied the motion to dismiss. |
| Reviewability of removability and cancellation claims | Omar argued he was not an aggravated felon and thus eligible for cancellation. | He failed to raise these arguments before the BIA; issues are unexhausted. | Claims not exhausted before the agency are not reviewable on judicial review. |
| Whether the BIA improperly applied de novo factfinding / wrong standard | BIA wrongly supplanted IJ’s factual findings and undertook de novo review. | BIA stated and applied the clear-error standard and cited authority on clear error; it explained why IJ’s findings lacked record support. | BIA applied the correct standard and provided adequate, record-grounded reasons showing clear error. |
| Whether the evidence supported CAT relief (individual and aggregate risk) | IJ’s findings that clan membership and HIV status made torture more likely than not were supported; risk should be assessed in aggregate. | Testimony was conclusory, country reports were too generalized about minorities, and HIV-related abuses were insufficiently widespread or severe to show torture likely. | BIA reasonably concluded the IJ’s CAT finding was clearly erroneous and properly considered risks both individually and overall. |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (federal courts may review CAT claims even when other statutory bars apply)
- Ateka v. Ashcroft, 384 F.3d 954 (8th Cir. 2004) (issues not raised before the agency are forfeited on judicial review)
- Ali v. Barr, 924 F.3d 983 (8th Cir. 2019) (NTA lacking time/place does not necessarily deprive agency of jurisdiction)
- Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012) (vacating BIA decisions that effectively engage in de novo factfinding)
- Anderson v. City of Bessemer City, 470 U.S. 564 (1985) (definition and contours of the clear-error standard)
- Ademo v. Lynch, 795 F.3d 823 (8th Cir. 2015) (countrywide patterns of abuse do not substitute for specific evidence of individual risk under CAT)
- Wu Lin v. Lynch, 813 F.3d 122 (2d Cir. 2016) (BIA must explain why it finds IJ’s factual findings clearly erroneous)
- Garcia-Mata v. Sessions, 893 F.3d 1107 (8th Cir. 2018) (standards for reviewing BIA’s legal and factual determinations)
- Ramirez-Peyro v. Gonzales, 477 F.3d 637 (8th Cir. 2007) (vacatur where BIA substitutes its factfinding without adequate explanation)