967 F.3d 722
8th Cir.2020Background
- Abdulkadir Shire, a Somali national, admitted to the U.S. as a refugee (2001) and became an LPR (2004); convicted in Minnesota (2006) of sale and possession of a controlled substance.
- DHS initiated removal; Shire conceded removability and IJ ordered removal to Somalia in April 2008.
- In July 2018 (over 10 years later) Shire filed a motion to reopen based on changed country conditions in Somalia, citing increased violence by al-Shabaab and the emergence of ISIS-Somalia.
- IJ denied the motion: found al-Shabaab active in 2008 and using similar tactics in 2018 (no material change), and concluded Shire failed to make a prima facie showing for CAT relief.
- BIA affirmed the IJ. Shire challenged the denial; while his petition was pending the court denied a stay and Shire was removed to Somalia in April 2019.
- Shire also pointed to his participation in a class action arising from a failed 2017 deportation flight and argued his visibility made him particularly at risk in Somalia.
Issues
| Issue | Plaintiff's Argument (Shire) | Defendant's Argument (Government/BIA/IJ) | Held |
|---|---|---|---|
| Whether motion to reopen should be granted based on changed country conditions (2008 → 2018) | Al-Shabaab violence increased materially; ISIS emergence also changed conditions warranting reopening outside 90‑day rule | Al-Shabaab was present in 2008 and continued similar tactics in 2018; Somali gov’t resisted group; no material increase in countrywide violence | Denied — substantial evidence supports IJ/BIA that conditions did not materially change; motion to reopen properly denied |
| Whether IJ/BIA committed legal error by failing to consider rise of ISIS in Somalia | IJ/BIA failed to mention ISIS and thus ignored a material changed condition | IJ/BIA addressed Islamic terrorist groups generally; omission of explicit “ISIS” reference is not reversible error because conclusion on groups was supported by evidence | Denied — no legal error; factual conclusion about terrorist-group conditions is supported by substantial evidence |
| Whether Shire’s personal circumstances (class action, ‘‘westernized’’ profile) create particularized risk or show changed conditions | His participation in the class action and visibility make him identifiable and at heightened risk of torture or harm | IJ/BIA found those circumstances do not make him particularly identifiable or at special risk | Denied — substantial evidence supports IJ/BIA finding his personal circumstances do not establish particularized risk |
| Whether IJ/BIA applied an incorrect (heightened) standard for prima facie CAT relief | The IJ/BIA used an overly narrow/strict standard exceeding preponderance of the evidence | The IJ/BIA applied the correct standard; disagreement is over factual sufficiency, not legal standard | Denied — no improper legal standard; factual finding that CAT relief is unlikely is supported by record |
| Jurisdiction: extent of court review given Shire’s drug-conviction removability | Shire contends denial of CAT relief is reviewable on factual and legal grounds | Government: review ordinarily limited to constitutional and legal questions due to drug-conviction removal bar | Court: Nasrallah allows review of both legal and factual claims as to CAT; the court reviews those factual challenges |
Key Cases Cited
- Habchy v. Gonzales, 471 F.3d 858 (8th Cir.) (standard for abuse of discretion in motions to reopen)
- Etenyi v. Lynch, 799 F.3d 1003 (8th Cir.) (reviewing IJ decisions adopted by BIA as part of final agency action)
- Njong v. Whitaker, 911 F.3d 919 (8th Cir.) (substantial-evidence review of BIA factual findings)
- Khalaj v. Cole, 46 F.3d 828 (8th Cir.) (BIA may deny reopening if movant fails to establish prima facie entitlement to relief)
- Nasrallah v. Barr, 140 S. Ct. 1683 (U.S.) (permitting judicial review of BIA CAT determinations despite certain statutory limits)
- Eusebio v. Ashcroft, 361 F.3d 1088 (8th Cir.) (standard for determining whether record supports BIA factual conclusions)
- Hanan v. Mukasey, 519 F.3d 760 (8th Cir.) (jurisdictional limitations on review where alien’s removability is based on certain criminal convictions)