Bashir Sharif v. William P. Barr, 965 F.3d 612

Background

Sharif, a Somali native admitted as a refugee in 2000 and an LPR in 2002, was convicted (2005–06) of multiple crimes including felony drug possession; DHS initiated removal in 2007.
At his 2008 proceedings Sharif conceded removability, declined relief, the IJ ordered removal to Somalia, and Sharif waived BIA appeal.
Deportation resumed in 2012; a 2017 ICE charter flight to Somalia was diverted to Senegal and returned to the U.S.
In June 2018 Sharif moved to reopen to seek asylum, withholding, and CAT relief based on changed country conditions in Somalia; the IJ denied the motion and the BIA affirmed and also denied a motion to remand based on new evidence.
Sharif petitioned the Eighth Circuit for review; the Government argued many claims are barred by the criminal-alien jurisdictional limit (8 U.S.C. § 1252(a)(2)(C)).
The court denied the petition in part and dismissed the remainder for lack of jurisdiction, affirming the BIA’s disposition of the CAT claim on the merits.

Issues

Issue	Sharif's Argument	Government's Argument	Held
Jurisdiction over asylum/withholding factual challenges	BIA abused discretion; mischaracterized and ignored evidence showing changed country conditions	Criminal-alien bar limits appellate review to legal/constitutional questions; factual findings are unreviewable	Court lacks jurisdiction to review factual challenges to BIA findings on asylum/withholding; those claims dismissed
Reviewability of CAT claim	BIA erred in denying reopening; FGS infiltration by Al-Shabaab increases likelihood of torture/acquiescence	CAT orders reviewable; but BIA did not abuse discretion because Sharif failed to show a material change or prior-state acquiescence comparison	Court reviews CAT claim for abuse of discretion and affirms BIA denial (no material change shown)
Motion to remand based on new affidavit	New affidavit from sister provides new evidence that would change result and warrants remand to IJ	Remand effectively a reopening; evidence does not meet heavy burden to show material change or severe torture	Denied: affidavit did not show changed conditions material to CAT or severe torture; remand not warranted
Administrative notice / use of State Department report	BIA improperly relied on a report unavailable at 2008 merits hearing	BIA permissibly took notice and applied regulatory precedent	Court rejects challenge; BIA’s use of report consistent with law
Due process / failure to consider evidence	BIA failed to consider evidence and similarly situated decisions, producing constitutional error	Due-process claim was raised late, unexhausted, and the record shows BIA considered the submissions	Court will not consider the untimely/unexhausted due-process claim; no reversible due-process violation shown

Key Cases Cited

Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) (clarifies reviewability of mixed questions of law and fact)
Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (CAT orders are not final removal orders; factual review of CAT claims preserved)
Martinez v. Lynch, 785 F.3d 1262 (8th Cir. 2015) (timeliness rule for motions to reopen)
Zeah v. Lynch, 828 F.3d 699 (8th Cir. 2016) (BIA compares new evidence to conditions at original merits hearing for material-change inquiry)
Hanan v. Mukasey, 519 F.3d 760 (8th Cir. 2008) (criminal-alien bar limits review to legal and constitutional issues)
Caballero-Martinez v. Barr, 920 F.3d 543 (8th Cir. 2019) (standard of abuse-of-discretion review for motions to reopen/remand)
Quinteros v. Holder, 707 F.3d 1006 (8th Cir. 2013) (BIA abuses discretion when decision lacks rational explanation or distorts record)
Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) (CAT burden: more likely than not to be tortured)
Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (definition of torture: severe pain or suffering with state acquiescence)
Barajas-Salinas v. Holder, 760 F.3d 905 (8th Cir. 2014) (disagreement with BIA factfinding does not present a question of law)