990 F.3d 1109
8th Cir.2021Background
- Abdullahi Jama, Somali native admitted to the U.S. as a refugee in 1998, suffers from physical injuries and diagnosed mental illnesses (anxiety, depression, PTSD).
- Criminal history: convicted of felony motor vehicle theft (aggravated felony) in 2011 and second-degree felony assault in 2013; DHS charged removability on aggravated-felony and crime-of-violence bases.
- IJ initially ordered in-absentia removal (2013); order rescinded and proceedings reopened in 2018; IJ found Jama and his expert witnesses credible but concluded he was removable and ineligible for asylum/withholding because his assault conviction was a "particularly serious crime."
- IJ denied CAT relief (withholding and deferral), finding insufficient evidence that Jama would more likely than not be tortured by or with the acquiescence of the Somali government; relied on documentary and expert evidence about Somali mental-health treatment and government efforts.
- BIA affirmed the IJ: accepted consideration of police/complaint evidence, held the assault conviction a particularly serious crime (foreclosing statutory withholding and CAT withholding), and found Jama failed to show government acquiescence for CAT deferral.
- This court denied Jama’s petition for review; Judge Kelly dissented, arguing the BIA engaged in unauthorized factfinding about Jama’s mental health and that the record compels a finding of likely torture (e.g., chaining) with government acquiescence.
Issues
| Issue | Plaintiff's Argument (Jama) | Defendant's Argument (Wilkinson/Government) | Held |
|---|---|---|---|
| Whether second-degree assault is a "particularly serious crime" barring statutory withholding of removal | Jama: IJ/BIA misapplied the analysis and improperly relied on police reports; mental-health evidence should mitigate culpability | Government: assault is a crime against persons; complaint and surrounding facts support particularly serious-crime finding | Court: Affirmed — assault is a particularly serious crime; IJ/BIA properly analyzed statute and facts; consideration of complaint/police reports permissible for discretionary analysis |
| Whether IJ/BIA could consider police reports and other extra-record facts and how much weight to give Jama’s testimony | Jama: police reports unreliable and inadmissible; IJ gave them undue weight over his testimony | Government: Rules of evidence do not bind immigration proceedings; IJ may consider reliable extra-record information when assessing danger and discretionary relief | Court: Affirmed — IJ/BIA permissibly considered complaint/police reports; factual inferences are not reviewable here under the limited standard for criminal-aliens |
| Whether the particularly serious-crime bar also precludes CAT withholding and whether Jama is entitled to CAT deferral (torture risk and government acquiescence) | Jama: likely to be institutionalized and chained in Somalia; experts show high probability of torture and government acquiescence; aggregate risk (including al-Shabaab) was not properly considered | Government: record shows improvements and insufficient evidence of government acquiescence; incidents too generalized/low-rate; IJ considered aggregate risk | Held: Affirmed — particularly serious-crime bar precludes CAT withholding; substantial evidence supports IJ/BIA that government would not more likely than not acquiesce in torture, and Jama failed to show likelihood of torture by al-Shabaab alone |
| Whether the BIA engaged in unauthorized factfinding by rejecting exclusion of mental-health evidence under Matter of G-G-S- and by making its own factual determination | Jama/Dissent: IJ erred in excluding mental-health evidence; BIA impermissibly made independent factual findings about the effect of mental illness on dangerousness and should have remanded | Government: BIA corrected IJ’s legal error and reasonably concluded Jama’s evidence was insufficient as a matter of law to mitigate dangerousness | Held: Court rejected Jama’s challenge — any IJ error was harmless because BIA independently found evidence insufficient; majority concluded BIA did not impermissibly engage in improper factfinding; dissent would remand/grant relief |
Key Cases Cited
- Marambo v. Barr, 932 F.3d 650 (8th Cir. 2019) (particularly serious-crime framework; extra-record information may be considered)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (substantial-evidence standard for factual findings by IJ/BIA)
- United States v. Lindsey, 827 F.3d 733 (8th Cir. 2016) (categorical analysis for crimes of violence referenced by BIA/IJ)
- Moallin v. Barr, 980 F.3d 1207 (8th Cir. 2020) (government acquiescence standard: willful blindness crosses into acquiescence)
- Waldron v. Holder, 688 F.3d 354 (8th Cir. 2012) (limits on BIA reweighing underlying evidence vs. reviewing IJ factual findings)
- Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (state responsibility for acts of officials; CAT purposes)
- Sharif v. Barr, 965 F.3d 612 (8th Cir. 2020) (deference to BIA on legal questions and review standards)
- Tian v. Holder, 576 F.3d 890 (8th Cir. 2009) (factors relevant to particularly serious-crime inquiry)
- Flores v. Holder, 699 F.3d 998 (8th Cir. 2012) (limitations on BIA making new factual findings on issues the IJ did not decide)
- Abdi Omar v. Barr, 962 F.3d 1061 (8th Cir. 2020) (aggregate-risk consideration under CAT)