Abdullahi Jamale Jama v. Monty WilkinsonAbdullahi Jamale Jama v. Monty Wilkinson
Petition for Review of an Order of the Board of Immigration Appeals
Abdullahi Jamale Jama, a native and citizen of Somalia, petitions for review of an order of the Board of Immigration Appeals (BIA). This order upheld the decision of an immigration judge (IJ) ordering Jama to be deported and removed to Somalia and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). For the following reasons, we deny the petition for review.
1I.
Jama was born in Mogadishu, Somalia, on January 1, 1988. He and his three sisters fled to Kenya in 1991, after the loss of their father and brothers in the Somali civil conflict and the disappearance of their mother. In October 1998, he arrived in the United States and was admitted as a refugee. Jama suffers from physical and mental disabilities. He has limited mobility in his right arm due to a gunshot wound and difficulty walking due to a fall from a third-floor balcony. He further suffers from anxiety, depression, and post-traumatic stress disorder.
Jama began developing a criminal history in 2006. In February 2011, Jama was convicted of felony motor vehicle theft, in violation of
In April 2018, Jama, through counsel, moved to rescind the February 2013 in absentia removal order, explaining that he had been in state custody at the time of the proceedings and was unable to attend. Alternatively, he sought to reopen the removal proceedings based on changed country conditions to apply for asylum, withholding of removal, and protection under CAT. The IJ granted the motion to rescind and reopened the proceedings. During these proceedings, DHS charged Jama with an additional ground for removability, under
In its written decision, the IJ noted that Jama had conceded removability, under
The IJ then addressed Jama‘s claim for deferral of removal under CAT. Jama claimed that he would be tortured on account of his mental illness if returned to Somalia. Jama claimed that it was more likely than not that he would be institutionalized, where he would likely be chained. Considering the expert testimony and documentary evidence, the IJ found that while the Somali health system was weak and underfunded, significant progress had been made in the area of mental illness treatment. The IJ specifically found that these advancements negated the likelihood of torture and the government‘s alleged acquiescence in such torture. Jama also expressed fear of torture by al-Shabaab, but the IJ determined that these incidents of torture were too generalized and occurred at a relatively low rate. The IJ also determined that the government was actively fighting al-Shabaab, rather than acquiescing to al-Shabaab‘s activities. Therefore, the IJ found that Jama had failed to show that the risk of torture was more likely than not to occur upon Jama‘s return to Somalia and, accordingly, denied relief.
Jama appealed the decision to the BIA. Specifically, Jama argued that the IJ did not adequately consider the expert witnesses’ testimony, erred in concluding that his convictions rendered him ineligible for asylum and withholding of removal, and ignored evidence that he would face torture
II.
Jama argues that the BIA erred in finding (1) that his second-degree felony assault conviction is a particularly serious crime that bars statutory withholding of removal; (2) that his conviction also barred withholding of removal under CAT; and (3) that the evidence was insufficient to grant him deferral of removal under CAT. While “we ordinarily review only the BIA‘s decision, ‘we also review the IJ‘s decision as part of the final agency action’ if ‘the BIA adopted the findings or the reasoning of the IJ.‘” Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (citation omitted).
A.
Jama first challenges the IJ and the BIA‘s denial of statutory withholding of removal. Our jurisdiction to review Jama‘s statutory withholding of removal claim “is limited to constitutional claims and questions of law” because Jama “is removable as a ‘criminal alien.‘” Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam);
Jama first contends that the IJ and the BIA did not consider the elements of his second-degree felony assault conviction before considering the underlying facts in determining whether it was a particularly serious crime. If the conviction is not a per se particularly serious crime under
Jama next argues that the IJ and the BIA impermissibly afforded unreliable evidence—Jama‘s state court amended criminal complaint—greater weight than Jama‘s testimony. Jama specifically contends that the police reports underlying the amended criminal complaint are unproven and would not be admissible under the Federal Rules of Evidence or to determine deportability. While the Federal Rules of Evidence may be instructive to determine “whether [evidence] is probative and its admission is fundamentally fair,” “[i]t is well established that the [Rules] are not binding in immigration proceedings.” Matter of Y-S-L-C-, 26 I. & N. Dec. 688, 690 (BIA 2015). Moreover, the IJ may not consider police reports when initially determining whether a noncitizen is removable under
Jama next contends that the IJ erred in excluding his evidence of struggles with mental health, pursuant to Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), in their § 1231 particularly serious crime analyses. Once the IJ determines that the conviction possibly falls within the category of particularly serious crimes, the IJ must employ a factor-intensive inquiry to determine whether such conviction is a particularly serious crime. Marambo, 932 F.3d at 655. These factors include “the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community.” Tian v. Holder, 576 F.3d 890, 897 (8th Cir. 2009) (quoting In re Frentescu, 18 I. & N. Dec. at 247). In weighing these factors, “all reliable information may be considered . . . , including the conviction records and sentencing information, as
Here, the IJ explicitly excluded the evidence of Jama‘s struggles with mental health, citing Matter of G-G-S-, but this error is of little consequence. On appeal, the BIA alternatively found that Jama had “not submitted sufficient evidence to demonstrate that his mental illness provide[d] an explanation or a basis for mitigating the dangerousness of [his] actions.” Admin. R. 5-6. While Jama contends that this constitutes impermissible fact-finding, the BIA merely determined that the evidence was insufficient as a matter of law to have any effect on the analysis.5
Therefore, the BIA did not engage in impermissible fact-finding but instead corrected the legal error of the IJ‘s analysis. Accordingly, we find that the BIA did not err in finding that Jama‘s second-degree felony assault conviction is a particularly serious crime, barring statutory withholding of removal.
nature of the crime and does not involve unrelated factors or offender characteristics that do not bear upon ‘the gravity of a crime.‘” (citation omitted)); see also In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999) (“This inquiry does not involve an examination of the respondent‘s family or community ties, or the risk of persecution in the alien‘s native county.“). Instead, the BIA found that evidence solely of Jama‘s history of mental illness—irrespective of its veracity—was itself legally insufficient to demonstrate that Jama‘s mental illness had any effect on the actions at issue. In doing so, the BIA did not attempt to determine “what happened” and thus avoided impermissibly “reweighing the underlying evidence.” Waldron v. Holder, 688 F.3d 354, 361 (8th Cir. 2012).
B.
Jama next challenges the IJ and the BIA‘s denial of withholding of removal under CAT.6 A noncitizen may separately obtain withholding of removal under CAT by “establish[ing] that it is more likely than not that he . . . would be tortured if removed to the proposed country of removal.”
rejected Jama‘s legal claims, our jurisdiction extends to the IJ and the BIA‘s factual
C.
Finally, Jama challenges the IJ and the BIA‘s denial of deferral of removal under CAT, arguing that he sufficiently demonstrated that he would more likely than not be tortured upon his return to Somalia. A noncitizen may still be granted relief in the form of deferral of removal under CAT, even if a particularly serious crime bar applies.
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
Jama frames most of his arguments as legal in nature, arguing that the IJ failed to adequately consider certain evidence. However, as the BIA noted, the IJ did consider all the relevant evidence as indicated by the references to the record within the IJ‘s decision. See Mayorga-Rosa v. Sessions, 888 F.3d 379, 384 (8th Cir. 2018) (“[A]n immigration judge has ‘no duty to write an exegesis on every contention, [but must] consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and merely reacted.‘” (alterations in original) (citation omitted)). Therefore, we find that the IJ and the BIA did not commit any legal error. See Sharif, 965 F.3d at 618-19 (“We review the BIA‘s legal determinations ‘de novo, according substantial deference to the BIA‘s interpretation of the statutes and regulations it administers.‘” (citation omitted)).
Substantively, Jama‘s arguments attack the IJ‘s findings of fact, which we grant substantial deference. See Nasrallah, 140 S. Ct. at 1692. To succeed on his CAT claim, Jama must have shown that it was more likely than not that he would be tortured in Somalia,
Jama presented two experts on mental health care in Somalia. Dr. Jama testified
Jama could nonetheless obtain relief if the Somali government acquiesces in torture by third parties. “A government does not acquiesce in the torture of its citizens merely because it is aware of torture but powerless to stop it, but it does cross the line into acquiescence when it shows willful blindness toward the torture of citizens by third parties.” Moallin v. Barr, 980 F.3d 1207, 1210 (8th Cir. 2020) (citation omitted). Jama contends that the government has been willfully blind to such torture by wholly ignoring the regulation of the mental health facilities. However, the IJ illuminated the Somali government‘s slow but continual improvement in this sector. Many developments, as Jama points out, are by the hands of nongovernment organizations and external actors, but we do not equate the government‘s reliance on external support as willful blindness, especially given Somalia‘s weak infrastructure eroded by years of civil conflict. Admin. R. 881. In fact, Dr. Jama indicated that Somalia‘s current infrastructure, or lack thereof, makes such healthcare reform impossible. See Admin R. 325-26 (“[The government] cannot regulate [mental health facilities] . . . . They don‘t have [the] ability to force any law.“). Even so, the IJ highlighted multiple ways the government itself has participated in the development of mental health care systems. For example, the government has established three mental health departments, converted a prison to a mental health facility with the help of a nongovernment organization, partnered with international educators to provide mental health training in Somalia‘s main universities, and approved the country‘s first mental health policy. Admin. R. 881-82. Therefore, we do not find that the record evidence compels a finding that the Somali government has acquiesced in the torture, if any, that Jama would more likely than not face.7
Jama also contends that he would be tortured by al-Shabaab on the basis “that he is a Westernized Somali or that he possesses a pro-government political opinion.” Admin. R. 160-61. On appeal, Jama has only challenged the IJ and the BIA‘s decision as it relates to the Somali government‘s acquiescence in such alleged torture. See Pet‘r‘s Br. 32. However, the IJ also found that the violence perpetrated by al-Shabaab in Somalia is “indiscriminate” and the reports of torture of “perceived government collaborators” were of such “relatively low rate of incidence” that Jama had failed to establish that he would more likely than not face torture upon his return. Admin. R. 161. Because Jama must show that there is (1) a likelihood of torture and (2) that such torture would occur at the hands of the Somali government, see
Finally, Jama contends that the IJ and the BIA legally erred by failing to consider the aggregate risk of all the alleged methods of torture by all the alleged actors. “The [BIA] has recognized that claims under CAT must be considered in terms of the aggregate risk of torture from all sources.” Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020). However, we have explained that “address[ing] risk factors individually . . . is not inconsistent with analyzing risk in the aggregate as long as the [IJ and BIA] ultimately consider[] all factors together.” Moallin, 980 F.3d at 1210 (alterations in original) (quoting Abdi Omar, 962 F.3d at 1065)); Abdi Omar, 962 F.3d at 1065 (“If individual findings about particular risks are flawed, then of course it may follow that the aggregate finding is flawed as well.“). On appeal, the BIA recognized each alleged basis of torture and adopted the IJ‘s reasoning. The IJ expressly noted that Jama had “failed to show individually, or cumulatively, that he will be more likely than not to experience torture for any reason.” Admin. R. 161. Therefore, we do not find that the IJ and the BIA erred in considering the aggregate risk of torture.
III.
Accordingly, we deny the petition for review.
KELLY, Circuit Judge, dissenting.
Abdullahi Jama, a 33-year-old resident of Minnesota, is at risk of deportation to Somalia, though he has not lived there for 30 years. Because I believe the BIA engaged in unauthorized factfinding in affirming the dismissal of his claims for withholding of removal, and because the record contains substantial evidence showing that he would likely be tortured by or with the consent of the Somali government, I respectfully dissent from the court‘s denial of Jama‘s petition for review.
A.
“A noncitizen has two vehicles by which he can obtain withholding of removal—
The court reasons that the IJ‘s error was harmless because the BIA alternatively concluded that Jama had “not submitted sufficient evidence to demonstrate that his mental illness provide[d] an explanation or a basis for mitigating the dangerousness of [his] actions.” In my view, though, the BIA exceeded the scope of its review in arriving at this conclusion. “[T]he BIA is limited to determining ‘whether the [factual] findings of the immigration judge are clearly erroneous.‘” Flores v. Holder, 699 F.3d 998, 1003 (8th Cir. 2012) (quoting
Though the IJ and BIA both concluded that Jama had committed a “particularly serious crime,” the BIA‘s determination rested in part on a new factual inquiry regarding the effect of Jama‘s mental illness on the likelihood that he would be a danger to the community. The IJ‘s factual findings regarding Jama‘s mental health were limited. The IJ noted, for instance, that Jama has been diagnosed with depression, anxiety, and PTSD; that he attempted suicide or was hospitalized due to suicidal ideations three times between 2009 and 2015; and that he has a history of alcohol and drug abuse. Citing Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), however, the IJ did not make a factual finding as to the impact of these mental health issues on the circumstances underlying Jama‘s assault conviction (and whether they indicate a risk of danger). Cf. Matter of Z-Z-O-, 26 I. & N. Dec. 586, 590 (BIA 2015) (explaining that an IJ‘s “finding that a future event will occur is a finding of fact that the [BIA] must review under the clearly erroneous standard“). And because the IJ‘s findings on the factors relevant to the particularly serious crime inquiry did not incorporate evidence
B.
As for Jama‘s application for deferral of removal under CAT, I believe he met his burden of “establish[ing] that it is more likely than not that he . . . would be tortured if removed” to Somalia,
1.
First, the record compels the conclusion that Jama would more likely than not be tortured by chaining if removed to Somalia. For an act to constitute “torture” under CAT, there must be an underlying “intent to cause severe harm, not simply intent to carry out an act that ultimately results in harm.” Lasu v. Barr, 970 F.3d 960, 967 (8th Cir. 2020). As discussed further below, the practice of chaining mentally ill persons—with tight, painful metal restraints, often for months or years—remains widespread throughout Somalia. See, e.g., Admin R. at 299-300, 720, 738, 740. The same goes for indefinite detention, seclusion, and forced medication. See, e.g., id. at 301, 338, 379, 425, 906. Importantly, the record shows that “[c]haining is . . . commonly used as a form of punishment when patients refuse to follow orders, exhibit aggressive behavior[,] or try to escape,” id. at 905, evincing an intent by healthcare practitioners or facility staff to inflict severe harm. This is consistent with the persistent societal belief in Somalia that mental illness is caused by evil and merits punishment. See id. at 295, 741.
With respect to Jama specifically, the record contains expert evidence showing that Jama‘s mental illnesses manifest in visibly erratic behavior and substance abuse, that being in Somalia would exacerbate his illnesses due to the trauma he experienced there, that his physical impairments limit his ability to work, and that he lacks the necessary support networks within Somalia to access housing, treatment, and medication. See id. at 306, 339-41. As a result, and given the widespread stigma against mental illness in
2.
Moving to the government acquiescence prong, the fact that the Somali government has been trying to improve Somalia‘s mental healthcare system does not negate the substantial evidence that officials in public facilities continue to chain mentally ill patients, or that this practice remains pervasive. See, e.g., Admin R. at 339 (“[A]t both public and private mental health facilities in Somalia[,] [p]atients are routinely chained upon admission, and remain chained for months, years, or even indefinitely.“); id. at 427 (“In the majority of private centers and in many public facilities chains are widely used . . . .“); id. at 750 (documenting chaining at the public Berbera General Hospital); id. at 754 (noting that most staff members at public and private facilities resort to isolating, chaining, and sedating aggressive patients). The court emphasizes that chaining is more prevalent in private facilities, but this fact actually cuts both ways. Because there are very few mental health practitioners in Somalia overall, it appears that most work in both public and private facilities. See id. at 378, 721, 732, 798. Considering the government‘s general failure to regulate mental health services together with the high incidence of chaining at private facilities, it seems unlikely that the same workers who perpetrate the practice at one location would decline to do so at another. This inference is consistent with evidence showing that chaining remains widespread in public mental health facilities.
Moreover, though the court highlights the efforts of the Somali government to develop the country‘s mental health care sector, it fails to adequately interrogate the substance and credibility of those efforts. As late as 2015, the Somali Ministry of Health spent $47,500 to build a new mental health ward in Mogadishu with metal hooks in the ground for chaining patients. Id. at 733. This supports the conclusion that the Somali government would likely condone the chaining of Jama should he
narcotics trafficking face particularly severe punishment“; (4) and “security forces and prison personnel continue to torture detainees and prisoners“).
be institutionalized (and the record shows he probably would be). Similarly, the government‘s plan to improve mental health training at Somali universities does not change the fact that public employees
Ultimately, “it is not contrary to the purposes of the CAT . . . to hold [Somalia] responsible for the acts of its officials, including low-level ones, even when [they] act in contravention of the nation‘s will and despite the fact that the actions may take place in circumstances where the officials should be acting on behalf of the state in another, legitimate, way.” Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009). Jama does not have to prove the Somali government‘s participation or acquiescence in his torture with certainty; and on this record, the Somali government is at least more likely than not to do so.11
For the foregoing reasons, I would grant the petition for review.
daytime attacks). Admin R. at 1030, 1038, 1052, 1097, 1169. This suggests government acquiescence or approval wherever al-Shabaab is the de facto government. See Delgado v. Mukasey, 508 F.3d 702, 709 (2d Cir. 2007) (concluding that BIA erred in rejecting claim of government acquiescence in FARC violence where record showed that FARC controlled a “Switzerland-sized area” of Colombia).