985 F.3d 587
8th Cir.2021Background
- Mohamud Mohamed Hassan, a Somali national who entered the U.S. in 2001 on a false passport, was ordered removed; the BIA initially affirmed and this court summarily denied review before the BIA later granted reopening and remanded.
- On remand Hassan sought deferral of removal under the Convention Against Torture (CAT), claiming he would likely be tortured if returned to Somalia.
- Hassan alleged risk from (1) the Somali government and (2) Al-Shabaab based on Begadi clan membership (which he contends is a minority), being “westernized,” and participation on a failed repatriation flight.
- The IJ found (and the BIA affirmed) that Hassan’s Begadi clan is a sub-clan of a "noble" clan with substantial government representation, not a persecuted minority, and thus he was unlikely to be tortured for clan membership.
- The IJ/BIA also found the Somali government was actively fighting Al-Shabaab, used an amnesty program to encourage defections, and had not willfully acquiesced in Al-Shabaab’s violence; thus any Al-Shabaab torture would not be with government acquiescence.
- The IJ/BIA stated they considered all evidence relevant to future torture (aggregate risk); the court deferred to these factual findings under the substantial-evidence standard and denied Hassan’s petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Begadi clan membership places Hassan at likelihood of torture | Begadi is a minority clan; clan membership makes him likely to be targeted | Begadi is a sub-clan of a "noble" clan with government representation; no evidence of targeting | Substantial evidence supports finding Begadi is not a persecuted minority; no likelihood of torture on that ground |
| Whether Al-Shabaab torture would be with Somali government acquiescence | Government is willfully blind or complicit (amnesty, infiltration); acquiescence likely | Somali government actively fights Al-Shabaab, reduced its capacity, amnesty encourages defections; no willful blindness shown | Substantial evidence the government would not acquiesce; petitioner failed to show acquiescence |
| Whether the IJ/BIA properly assessed the aggregate risk of torture | IJ/BIA failed to aggregate risk and addressed factors only individually | IJ/BIA expressly considered all evidence and may address factors individually so long as they aggregate them overall | IJ/BIA satisfied aggregate-risk requirement; no legal error in their analysis |
| Whether internal relocation or Al-Shabaab control of areas affects CAT relief | Hassan cannot safely relocate; Al-Shabaab controls territory and acts as de facto government | IJ/BIA found relocation (e.g., Mogadishu) would avoid risk; Al-Shabaab control does not equate to government acquiescence here | Court relied on lack of acquiescence and did not need to resolve de facto-government claim; alternative IJ/BIA findings addressed relocation but were not dispositive |
Key Cases Cited
- Alzawed v. Barr, 970 F.3d 997 (8th Cir. 2020) (treat BIA’s separate opinion as final agency action)
- Lasu v. Barr, 970 F.3d 960 (8th Cir. 2020) (substantial-evidence review; "any reasonable adjudicator" standard)
- Doe v. Holder, 651 F.3d 824 (8th Cir. 2011) (CAT bars removal where alien more likely than not to be tortured)
- Abdi Omar v. Barr, 962 F.3d 1061 (8th Cir. 2020) (BIA must consider aggregate risk of torture from all sources)
- Ramirez-Peyro v. Holder, 574 F.3d 893 (8th Cir. 2009) (government acquiescence inquiry centers on willful non-intervention)
- Moallin v. Barr, 980 F.3d 1207 (8th Cir. 2020) (failure to control non-state actors insufficient to show acquiescence; aggregate analysis guidance)
- Menjivar v. Gonzales, 416 F.3d 918 (8th Cir. 2005) (denial of CAT relief where acquiescence not shown)
- Heuton v. Ford Motor Co., 930 F.3d 1015 (8th Cir. 2019) (courts decline cursory, unsupported arguments)
- Perez v. Holder, [citation="430 F. App'x 548"] (8th Cir. 2011) (CAT claim may be waived where brief makes no meaningful argument)