HASSAN FARAH v. U.S. ATTORNEY GENERAL; HASSAN MOHAMED FARAH v. MICHAEL W. MEADE, Field Office Director, Miami Field Office, U.S. Immigration and Customs Enforcement, et al.
No. 19-12462; No. 20-12941
United States Court of Appeals, Eleventh Circuit
September 8, 2021
Agency No. A071-704-330; D.C. Docket No. 1:20-cv-22074-RNS; [PUBLISH]
Petitions for Review of a Decision of the Board of Immigration Appeals
Appeals from the United States District Court for the Southern District of Florida
(September 8, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and SELF,* District Judge.
Hassan Farah, a criminal alien facing deportation to Somalia, petitions for review of the order of the Board of Immigration Appeals confirming his removability and denying his applications for withholding of removal, protection under the Convention Against Torture, and a refugee inadmissibility waiver. He also appeals the denial of his petition for a writ of habeas corpus. We previously stayed Farah‘s order of removal. We now dismiss in part and deny in part his petition for review, and we dissolve the stay of removal. In the light of that decision, we also conclude that his habeas petition is moot as to one issue and not ripe as to another. So we vacate and remand with instructions to dismiss his habeas petition.
I. BACKGROUND
According to his account, Hassan Farah was born in Somalia as a member of the Darod tribe. In 1991, when he was a child, men from the Hawiye tribe executed his father, raped his sister, and burned his home. He and his surviving family members fled to Kenya.
In 1996, Farah entered the United States as a refugee. A few years later, he applied for adjustment of status, but the government denied his application because he failed to appear for fingerprinting.
Between 2003 and 2006, Farah was convicted of several crimes in Minnesota. Those crimes included fourth-degree assault and fleeing a police officer in a motor vehicle, for which he was sentenced to a year and a day of imprisonment. Not surprisingly, Farah‘s crimes came to the attention of federal immigration officials.
The United States started removal proceedings against Farah in late 2006. It charged him as an alien without a valid travel document who had been convicted of a crime involving moral turpitude.
Following his release, Farah committed numerous other crimes under Minnesota law, including interfering with a 911 call, fifth-degree possession of a controlled substance, and second-degree assault. For the second-degree assault conviction, he was sentenced to 39 months of imprisonment. After his release from prison, federal officials took custody of him again.
In December 2017, federal officials tried to deport Farah and 91 other Somalis back to Somalia on a chartered flight, but the flight never reached its destination. Instead, it spent two days on the ground and in the air before returning to the United States. Farah alleges that he and the other detainees on the flight were physically abused and prevented from using the bathroom for many hours. Several passengers on this flight later brought a class-action suit against the government. See Ibrahim v. Acosta, No. 17-cv-24574, 2018 WL 582520 (S.D. Fla. Jan. 26, 2018).
In May 2018, Farah moved to reopen his removal proceedings because of changed country circumstances, and the immigration judge granted his motion. Farah then moved to terminate the proceedings. He argued that his notice to appear was defective because it did not provide a date and time for his hearing and it erroneously charged him as an arriving alien instead of as a refugee. The immigration judge denied his motion.
Farah moved to transfer his immigration proceedings from Minnesota to Florida, where he was being held in a detention center. The immigration judge granted his request. Farah then admitted to all the government‘s factual allegations but contested the four charges. He also applied for asylum, withholding of removal, protection under the Convention Against Torture, and a refugee inadmissibility waiver.
The immigration judge conducted a hearing at which Farah and his wife testified. Farah explained that he was afraid to return to Somalia because he was an “Americanized” Somali. He said that two of his cousins who were deported to Somalia were killed because they spoke English instead of Somali. And he alleged that the Somali government would not protect him because it was secretly working with the Islamic militant group al-Shabaab. He also asserted that his wife worked two jobs to support their children, three of whom had serious medical problems. His wife confirmed the statements about her work schedule and their family.
The immigration judge credited the testimony of Farah and his wife but denied the applications for relief. First, the immigration judge found that Farah was ineligible for asylum because the second-degree assault conviction was an aggravated felony. See
In May 2019, the Board of Immigration Appeals affirmed the immigration judge‘s decision and dismissed Farah‘s appeal. First, the Board rejected Farah‘s argument that the immigration judge lacked
Farah petitioned for review of the Board‘s decision and moved for a stay of removal. We denied his first motion. But after he filed a second motion, a divided panel of this Court granted it and ordered the stay.
In May 2020, Farah petitioned for a writ of habeas corpus.
Relying on a footnote from our opinion in Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002), the district court concluded that Farah‘s ongoing detention was governed by a statute,
Farah appealed the denial of his habeas petition. He argues that his detention is governed by a different statute,
II. STANDARDS OF REVIEW
We review the decision of the Board and the decision of the immigration judge to the extent that the Board expressly adopted the immigration judge‘s opinion. Ayala v. U.S. Att‘y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). We review legal questions de novo and administrative findings of fact for substantial evidence. Id. at 948. We review our subject-matter jurisdiction de novo. Indrawati v. U.S. Att‘y Gen., 779 F.3d 1284, 1297 (11th Cir. 2015). Finally, we review the denial of a habeas petition de novo. Singh v. U.S. Att‘y Gen., 945 F.3d 1310, 1313 (11th Cir. 2019).
III. DISCUSSION
We begin with Farah‘s petition for review of the Board‘s decision. Farah contends that he is entitled to a remand because of his defective notice to appear; that his controlled-substance conviction is not a removable offense; that his second-degree assault conviction is also not a removable offense; that the Board erred in denying his inadmissibility waiver; and that the Board erred in denying his applications for withholding of removal and for protection under the Convention Against Torture. We address each argument in turn and explain why each fails. We then turn to Farah‘s appeal from the denial of his habeas petition and explain why that petition should be dismissed.
A. Farah Failed to Preserve Whether His Defective Notice to Appear Violated the Agency‘s Claim-Processing Rules.
Farah argued in his appeal to the Board that the immigration judge lacked jurisdiction over his removal proceedings because his notice to appear was defective. A notice to appear for formal removal proceedings must contain “[t]he time and place at which the proceedings will be held.”
Farah acknowledges that our opinion in Perez-Sanchez forecloses the jurisdictional argument that he made to the Board, and he argues instead that his defective notice to appear violated the agency‘s claim-processing rules. But whether Farah is entitled to a remand because his defective notice to appear violated the agency‘s claim-processing rules is a separate issue from whether the immigration court lacked jurisdiction over his removal proceedings. See id. And Farah failed to exhaust that claim-processing argument because he never raised it before the Board and the Board never considered it. Because we lack jurisdiction to review issues that were not raised before the Board, see Indrawati, 779 F.3d at 1297, we must dismiss Farah‘s petition as to this issue.
B. Farah Is Removable for His Controlled-Substance Conviction.
The Immigration and Nationality Act provides that an alien may be deported if he is convicted of “a violation of ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance,” unless the sole offense is possession of 30 grams or less of marijuana for personal use.
Farah and the government agree that, under the categorical approach, subdivision 2(a)(1) of section 152.025 does not fit within the generic federal offense because the state schedules list controlled substances that are not included in the federal schedules. Compare
The Board did not err in concluding that subdivision 2(a)(1) of section 152.025 is divisible. We are persuaded by the reasoning of the Eighth Circuit in Rendon v. Barr that “the identity of the controlled substance is an element of the possession offense in the Minnesota statute.” 952 F.3d 963, 968 (8th Cir. 2020). The statute makes it a crime to possess “a controlled substance” listed in the Minnesota schedules of controlled substances.
None of the opinions cited by Farah supports his contention that the identity of the controlled substance is not an element of subdivision 2(a)(1) of section
Applying the modified categorical approach to the divisible statute and expanding our inquiry to include Farah‘s conviction record, we conclude that substantial evidence supports the Board‘s determination that Farah was convicted of a removable offense. According to his criminal record, Farah‘s conviction under subdivision 2(a)(1) of section 152.025 was for possession of oxycodone hydrochloride. The Board erroneously stated in its decision that Farah was convicted of possessing marijuana. But that error is harmless because oxycodone hydrochloride is a federally controlled substance. See
The Board correctly determined that subdivision 2(a)(1) of section 152.025 is divisible, and substantial evidence supports its finding that Farah was convicted of possessing a controlled substance included in the federal schedule. So the Board did not err in determining that Farah is removable for having a controlled-substance conviction.
C. Alternatively, Farah Is Removable for His Second-Degree Assault Conviction.
The Immigration and Nationality Act provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.”
Farah contends that the Board erred in finding him removable for an aggravated felony based upon his conviction for second-degree assault.
Subdivision 1 of section 609.222 makes it a crime to “assault[] another with a dangerous weapon.”
The Board correctly determined that subdivision 1 of section 609.222 is a crime of violence. The statute requires the intentional or attempted infliction of bodily harm, or an act done with the intent to cause fear of immediate bodily harm or death. True, “bodily harm” could mean “illness” or “impairment of physical condition,” which do not necessarily require the use of physical force.
Our interpretation is supported by the decision of the Eighth Circuit in United States v. Lindsey, which held that section 609.222 “requires the use, attempted use, or threatened use of physical force against another.” 827 F.3d 733, 740 (8th Cir. 2016). To be sure, the issue in Lindsey was whether section 609.222 was a violent felony for purposes of the Armed Career Criminal Act, not whether it was a crime of violence under the Immigration and Nationality Act. Id. But the definition of a violent felony under the Armed Career Criminal Act is “virtually identical” to the definition of a crime of violence under the Immigration and Nationality Act. Lukaj v. U.S. Att‘y Gen., 953 F.3d 1305, 1312 (11th Cir. 2020).
Even if Farah were not removable for his controlled-substance conviction, he would be removable for his second-degree assault conviction. The Board did not err in finding that Farah‘s conviction under subdivision 1 of section 609.222 was for an aggravated felony. See
D. The Board Denied the Refugee Inadmissibility Waiver Under the Correct Legal Standard.
The Attorney General and the Secretary of Homeland Security have the discretion to waive a refugee‘s inadmissibility “for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest.”
Farah argues that the Board misapplied the legal guidelines for evaluating refugee inadmissibility waivers that the Attorney General established in In re Jean, 23 I. & N. Dec. 373 (U.S. Att‘y Gen. 2002). “[T]he first step is to determine if the refugee is a violent or dangerous individual.” Makir-Marwil v. U.S. Att‘y Gen., 681 F.3d 1227, 1229 (11th Cir. 2012) (internal quotation marks omitted). At step two, “[i]f the refugee is not violent or dangerous, the general statutory standard for a [section 1159(c)] waiver applies, and the refugee must show that the waiver would serve humanitarian purposes, would assure family unity, or otherwise would be in the public interest.” Id. (internal quotation marks omitted). But if the refugee is violent or dangerous, then he “must satisfy both the statutory standard and [a] heightened, extraordinary circumstances standard,” specifically, “that national security or foreign policy considerations warrant the waiver or that denial of the waiver would result in exceptional and extremely unusual hardship to the refugee.” Id. (internal quotation marks omitted). Finally, even if the refugee satisfies these standards, the Attorney General may still exercise his discretion to deny the waiver. See In re C-A-S-D-, 27 I. & N. Dec. 692, 699 (B.I.A. 2019).
The Board applied the Jean guidelines correctly even if it did not address every conceivable issue. It explained that it was unnecessary to decide whether Farah was a violent or dangerous individual because he had established “extraordinary circumstances” in that he and his family would “suffer exceptional and extremely unusual hardship” if he were deported to Somalia. In other words, it was unnecessary to decide step one of Jean because Farah satisfied both the
general and the heightened standards at step two. The Board ultimately denied Farah‘s inadmissibility waiver, despite the extraordinary circumstances, because of his long criminal history and chronic problems with alcohol. We find no legal error in the Board‘s analysis, so we deny Farah‘s petition as to this issue.
We also find no legal error in the Board‘s decision not to resolve the related jurisdictional question. The immigration judge concluded that he lacked jurisdiction to review the inadmissibility waiver and that, alternatively, the waiver should be denied. The Board declined to decide the jurisdictional question because it agreed that Farah did not deserve a discretionary waiver. Farah contends that skipping the jurisdictional issue was a legal error requiring reversal. It is odd that Farah would make this argument, as the Board‘s decision to consider the merits of his waiver request worked in his favor. Regardless, “[a]s a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.” Immigr. & Naturalization Serv. v. Bagamasbad, 429 U.S. 24, 25 (1976). Because the Board concluded that Farah did not merit an inadmissibility waiver, deciding the jurisdictional question would not have changed the outcome. The Board was not required to make an unnecessary determination.
Farah‘s remaining arguments are merely “garden-variety abuse of discretion argument[s],” not questions of law. Alvarez Acosta, 524 F.3d at 1196. He contends that the Board “fail[ed] to engage in a balancing of all adverse and favorable factors” in its discretionary analysis. And he argues that the Board “failed to follow the legal rule . . . that the demonstration of exceptional and extremely unusual hardship must be employed as a significant favorable factor in the discretionary analysis.” But disagreement with how the Board
E. The Board Did Not Err in Denying Farah‘s Applications for Withholding of Removal and for Protection Under the Convention Against Torture.
Farah challenges the Board‘s denial of his applications for withholding of removal under the
We begin by inquiring into our jurisdiction to review Farah‘s challenges to these decisions. We do not have jurisdiction to review factual challenges to a final removal order against an alien who is removable for having committed certain crimes, including aggravated felonies and controlled-substance offenses. See
Farah argues that the Board committed an error of law by failing to give reasoned consideration to his applications for withholding of removal and for protection under the Convention Against Torture. “To determine whether the Board gave reasoned consideration to a petition, we inquire only whether the Board considered the issues raised and announced its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Perez-Guerrero v. U.S. Att‘y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013) (alterations adopted) (internal quotation marks omitted). “Although the Board must consider all of the relevant evidence, the Board need not address specifically each claim the petitioner made or each piece of evidence the petitioner presented.” Id. (internal quotation marks omitted). The Board “does not give reasoned consideration to a claim when it misstates the contents of the record, fails to adequately explain its rejection of logical conclusions, or provides justifications for its decision which are unreasonable and which do not respond to any arguments in the record.” Jeune v. U.S. Att‘y Gen., 810 F.3d 792, 803 (11th Cir. 2016).
We conclude that the Board gave reasoned consideration to Farah‘s applications for relief. It cited evidence from the record showing that Somalia is “a country experiencing a high level of violence, including killings and human rights abuses” by al-Shabaab.
Farah argues that the Board “ignored the mountain of evidence supporting [his] claims,” including two sworn declarations by experts on Somalia. But the Board is not required to address specifically each piece of evidence that Farah presented. Perez-Guerrero, 717 F.3d at 1232. And “we lack jurisdiction to review petitions that contest the weight and significance given by the Board to various pieces of evidence.” Id. (alteration adopted) (internal quotation marks omitted).
Farah contends that his petition is similar to the one we granted in Gaksakuman v. United States Attorney General, 767 F.3d 1164 (11th Cir. 2014). In Gaksakuman, an immigration judge concluded that the absence of evidence in State Department country reports rebutted an asylum-seeker‘s evidence that he would be persecuted or tortured upon his return to his home country. Id. at 1170. We held that the immigration judge applied flawed logic when he relied on silence in the State Department reports without discrediting the asylum-seeker‘s evidence or giving more weight to contrary evidence. Id. So we vacated the Board‘s order for failure to give reasoned consideration. Id. at 1171. Farah argues that the Board and the immigration judge who considered his application likewise relied on silence in the record to conclude that “Americanized” Somalis are not subject to persecution. And he contends that they improperly relied on reports that the Somali government is fighting al-Shabaab to rebut his evidence that the government is secretly working with the militant group.
We are not persuaded by Farah‘s comparisons of his petition to Gaksakuman. The immigration judge did not rely on silence in country reports to rebut Farah‘s assertion that “Americanized” Somalis suffer persecution. Indeed, he agreed that the evidence established that Somali returnees suffer harassment and discrimination, but he found that the harm they suffered did not rise to the level of persecution. Farah‘s argument about whether the Somali government is fighting al-Shabaab also misunderstands our holding in Gaksakuman. The immigration judge and the Board relied on evidence in the record—not silence—to discredit Farah‘s assertion that the government is working with al-Shabaab. The flawed logic that we rejected in Gaksakuman is not present here.
The dissent contends that the Board failed to give reasoned consideration to Farah‘s application for withholding of removal because it “ignored highly relevant evidence” that westernized Somali returnees are persecuted and that al-Shabaab exercises influence throughout Somalia. Dissenting Op. at 48. Although we have repeatedly emphasized that “the Board does not need to discuss all record evidence” “to write a reviewable decision,” we
Highly relevant evidence is necessarily a subset of evidence. If it were otherwise, a reviewing court could abuse the reasoned-consideration requirement by characterizing any evidence not discussed by the Board as highly relevant. “To generate grounds for reviewability in this Court, the Board does not need to do much. We just need to be left with the conviction that the Board has heard and thought about the case and not merely reacted.” Id. at 1333 (alteration adopted) (internal quotation marks omitted).
Our previous opinions offer some direction as to what evidence qualifies as highly relevant. In Min Yong Huang v. Holder, we held that the Board did not give reasoned consideration to an application for relief based on religious persecution because the Board discussed only the record evidence relating to “physical abuse” and failed to mention “the types of religious abuse” that are “highly relevant” to a claim of religious persecution, such as breaking up religious services, destroying churches, and confiscating religious materials. 774 F.3d at 1347-49. In other words, the Board cited only evidence that was minimally probative to the application for relief and ignored evidence that was much more probative. And in Ali v. United States Attorney General, we held that the Board failed to give reasoned consideration to another application for relief based on religious persecution because it did not acknowledge numerous pieces of evidence that “seem[ed] to compel a contrary conclusion.” 931 F.3d at 1334, 1337 (alteration adopted) (internal quotation marks omitted). We clarified that, on remand, the Board was free to “accord[] [this] highly relevant evidence less weight than other evidence,” to “discredit[] [it] altogether,” or to “explain why [it did] not meet the legal standard of religious persecution.” Id. at 1336-37. But, as written, the failure to discuss the highly relevant evidence “l[ed] to illogical conclusions—ones that cast doubt on whether the Board considered that evidence in the first place.” Id. at 1336.
If evidence is highly relevant, the Board must at least acknowledge that evidence, either implicitly or explicitly, in its decision. To be clear, the Board need not “write an exegesis” on the highly relevant evidence. Min Yong Huang, 774 F.3d at 1349 (internal quotation marks omitted). But its decision must leave us with the conviction that it “considered and reasoned through” the highly relevant evidence. Ali, 931 F.3d at 1331.
Applying this standard, none of the evidence cited by the dissent is highly relevant to Farah‘s application for relief. There is no logical contradiction between the finding that westernized Somali returnees are subject to harassment not rising to the level of persecution and the record evidence showing that al-Shabaab commits human rights abuses against its opponents. See Dissenting Op. at 48-50. The former is a description of how those returnees are treated by Somali society in general; the latter involves the activities of an armed guerrilla group operating in some but not all areas of Somalia. Nor is there a logical contradiction between the finding that Farah failed to show that he could not relocate to an area of Somalia not controlled by al-Shabaab and the record evidence of
Farah argues that the Board committed another error of law in finding that he suffered no past persecution, but any such error is irrelevant to his petition. The Board determined that the execution of Farah‘s father, the rape of his sister, and the burning of his home by a rival tribe did not amount to persecution of Farah because those actions were not directed against him personally. That determination might have been erroneous because “threats or harm to a person other than the alien may constitute evidence that the alien suffered past persecution where that act concomitantly threatens the petitioner.” Rodriguez v. U.S. Att‘y Gen., 735 F.3d 1302, 1308 (11th Cir. 2013) (emphasis added) (internal quotation marks omitted). But even if the Board misapplied the law by failing to find that Farah suffered past persecution, that past persecution would have been on the basis of Farah‘s tribal membership, not the grounds listed in his application for relief. So any finding of past persecution because of tribal membership would not help Farah satisfy his burden of establishing a likelihood of future persecution on the grounds that he alleged in his application for relief. See
Farah‘s argument that the Board failed to apply the correct test for whether internal relocation in Somalia was reasonable is also unavailing. When the applicant does not establish past persecution, he “bear[s] the burden of establishing that it would not be reasonable for him . . . to relocate, unless the persecutor is a government or is government-sponsored.”
So the Board correctly presumed that internal relocation in Somalia was reasonable, and Farah had the burden of proving otherwise, which he did not do.
Finally, to the extent that Farah challenges the Board‘s factual finding that he is not entitled to protection under the Convention Against Torture, we deny his petition because substantial evidence supports the Board‘s decision. Farah does not assert that he has ever been tortured in the past, nor does he allege that he is likely to be tortured in the future, by a Somali government official. He does allege that the Somali government is working with al-Shabaab, so he presumably fears being tortured by al-Shabaab “at the instigation of, or with the consent or acquiescence of,” a government official.
We deny Farah‘s petition for review as to his challenge against the denial of withholding of removal and of protection under the Convention Against Torture. And, having reviewed Farah‘s petition for review and found no meritorious argument, we also dissolve the stay of his removal order. We now turn to his appeal from the denial of his habeas petition.
Farah‘s petition for a writ of habeas corpus involves two separate provisions of the
When an alien receives a removal order, the Attorney General has 90 days to remove him from the United States.
Subsection (a)(2) requires the Attorney General to detain an alien “[d]uring” his removal period.
The district court reviewing Farah‘s habeas petition concluded that his ongoing detention was governed by
The text of
We hold that
Until we issue our final order as to his petition for review, Farah‘s detention is governed by
In the light of our decision to dismiss in part and to deny in part Farah‘s petition for review and to dissolve the stay of removal, Farah‘s habeas petition is moot insofar as it challenges his detention under section 1226(c), and it is not ripe for review insofar as it challenges his detention under section 1231(a). Both Farah and the government agreed with this analysis at oral argument. As soon as we issue our final order resolving his immigration petition, Farah‘s removal period will commence, and his detention will be governed by section 1231(a). So he will no longer have a
IV. CONCLUSION
We DISMISS IN PART and DENY IN PART the petition for review. We also DISSOLVE the stay of removal. We VACATE and REMAND with instructions to dismiss Farah‘s habeas petition. And we DENY the government‘s motion to dismiss the appeal.
JILL PRYOR, Circuit Judge, concurring in part and dissenting in part:
I join the majority opinion except for part III.E, in which it holds that the Board of Immigration Appeals (“BIA“) gave reasoned consideration to Hassan Farah‘s challenge to the denial of withholding of removal. Although our standard of review is deferential, “we must be left with the conviction, based on the record before us, that the [BIA] has considered and reasoned through the most relevant evidence of the case.” Ali v. U.S. Att‘y Gen., 931 F.3d 1327, 1331 (11th Cir. 2019). When we are reviewing the denial of withholding of removal, this requirement means we must assure ourselves that the agency has adequately considered the evidence supporting a noncitizen‘s application for humanitarian protection before ordering him removed him to a country where he fears persecution. In this case, I find that assurance lacking. In my view, the BIA and the Immigration Judge, whose findings the BIA approved, mischaracterized the record and ignored “highly relevant” evidence in denying Farah‘s application for withholding of removal and thus failed to give his application reasoned consideration. Id. at 1336 (internal quotation marks omitted). I would grant Farah‘s petition for review on the denial of withholding of removal, vacate the BIA‘s decision, and remand for further proceedings.
I. BACKGROUND
A. Farah‘s Application for Withholding of Removal
Farah applied for withholding of removal under
In support of his application for withholding of removal, Farah submitted evidence including the declarations of two experts on conditions in Somalia, numerous news articles, and at least two country condition reports, all indicating that al-Shabaab (1) targets for violence westernized returnees and (2) wields control over large swaths of the country with impunity, making relocation to a safe area very difficult or impossible. I discuss the record evidence on these two points in turn.
Bolstering Anzalone‘s and Harper‘s accounts, a newspaper article Farah submitted reported on an al-Shabaab execution in which the terrorist group killed five people, including a 16-year-old boy, accused of spying for United States, as well as Kenyan, and Somali, government forces. According to relatives of one of the victims, he was “innocent” of spying. AR 1161.
Two more newspaper articles profiled westernized returnees who feared execution at the hands of al-Shabaab because of the terrorist group‘s well-known practice of killing returnees from the West—either because they are suspected of being spies or because they are considered infidels. An Amnesty International Report noted that westernized returnees and those suspected of having links to foreign governments are at “increased risk of being unlawfully, killed, tortured[, ] and otherwise ill-treated or threatened” by al-Shabaab. AR 1693. And a State Department Report observed that the terrorist group targets areas and commercial establishments “frequented by government officials, foreign nationals, merchants, and the Somali diaspora.” AR 1237.
Second, Farah‘s evidence detailed al-Shabaab‘s insurgency against the FGS and the terrorist group‘s control over much of the territory in Somalia, which makes it difficult for al-Shabaab‘s targets to find a safe location. As the Trump Administration‘s 2018 extension of Temporary Protected Status for Somalia found, “Somalia‘s security situation remains fragile and volatile . . . . Al-Shabaab continues to wage an armed insurgency against the [FGS]. The group has reasserted its territorial reach across substantial territory in southern Somalia from which it continues to launch coordinated mass attacks on Somali and [the African Union Mission in Somalia] military bases.” AR 550 (citing Extension of the Designation of Somalia for TPS (“TPS Extension“),
The evidence further indicated that the FGS‘s attempts to curb al-Shabaab‘s control
B. The Decisions of the Immigration Judge and the BIA
The Immigration Judge denied Farah‘s application for withholding of removal. First, the Immigration Judge ruled that Farah failed to establish that, upon removal to Somalia, it is more likely than not that his life or freedom would be threatened on account of a protected ground, stating in conclusory fashion that the “evidence of record shows that Somalian returnees are marginalized[] or discriminated against,” but “harassment does not amount to persecution.” AR 124-25. To support this conclusion, the Immigration Judge cited a 2017 State Department Human Rights Report noting that Somali returnees often suffer discrimination and a 2018 BBC article quoting a recent Americanized returnee who stated that there is “mistrust” for returnees because they are seen as “outsiders.” AR 618. Second, the Immigration Judge ruled that Farah failed to carry his burden of establishing he could not relocate to other parts of Somalia “where the extremist groups he claims to fear have less control.” AR 125. For support, the Immigration Judge cited only the 2017 Human Rights Report which mentions that there are some, unspecified, areas in Somalia outside of al-Shabaab‘s control.
On appeal, the BIA agreed with the Immigration Judge that Farah failed to establish a “likelihood of being persecuted if he is returned to Somalia . . . or that he could not relocate to an area of the country where he is not likely to be persecuted.” AR 7 (citing AR 124-26). The BIA acknowledged that “voluminous evidence” indicates Somalia experiences “a high level of violence, including killings and human rights abuses by members of [a]l[-]Shabaab against those who oppose them or are perceived to oppose them.” Id. However, the BIA failed to address the record evidence demonstrating that al-Shabaab targets westernized returnees, operates across the country with impunity, and has infiltrated the Somali government.
II. STANDARD OF REVIEW
We review only the BIA‘s decision, except to the extent that it expressly adopted the Immigration Judge‘s opinion. Ayala v. U.S. Att‘y Gen., 605 F.3d 941, 947-48 (11th Cir. 2010). Because the BIA expressly agreed with the Immigration Judge‘s findings that Farah failed to establish a well-founded fear of persecution and that he could not relocate within Somalia, we review both the Immigration Judge‘s and the BIA‘s decisions on withholding of removal. See id.
Whether the agency has afforded reasoned consideration is a question of law we review de novo. Ali, 931 F.3d at 1333. The Immigration Judge and the BIA “must consider all evidence introduced by the
III. DISCUSSION
To obtain withholding of removal, a noncitizen applicant must show that if returned to the proposed country of removal, his life or freedom would be threatened because of his race, religion, nationality, membership in a particular social group, or political opinion.
An applicant cannot demonstrate entitlement to withholding of removal if he “could avoid a future threat to his . . . life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.” Id. The regulation identifies several considerations relevant to the “[r]easonableness of internal relocation” determination, including: the totality of the relevant circumstances regarding an applicant‘s prospects for relocation, including the size of the country or last habitual residence; the geographic locus of the alleged persecution; the size, reach, or numerosity of the alleged persecutor; and the applicant‘s demonstrated ability to relocate to the United States in order to apply for withholding of removal. Id.
Farah contends that the BIA and the Immigration Judge failed to give reasoned consideration to his application for withholding of removal, and so we cannot meaningfully review their decisions. Specifically, he argues that they ignored evidence in the record establishing: (1) a pattern
First, the Immigration Judge mischaracterized the evidence that westernized Somali returnees are harassed but not persecuted, ignoring considerable evidence of persecution. The Immigration Judge determined, “[t]he evidence of record shows that Somalian returnees are marginalized, or discriminated against . . . . However, harassment does not amount to persecution.” AR 124-25. Although the evidence the Immigration Judge cited supported marginalization and discrimination that could be characterized as harassment, neither source indicated that westernized Somali returnees are merely harassed. No evidence in the record supported the Immigration Judge‘s determination; instead, voluminous evidence demonstrated the very opposite, that al-Shabaab does not merely harass but rather targets with violence—including execution—westernized returnees because they are suspected of being informants or enemies of al-Shabaab‘s cause. In making its finding that Farah had not shown a likelihood of persecution based on his status as a westernized Somali returnee, the Immigration Judge did not mention, much less engage with, two expert declarations, newspaper articles, and an Amnesty International report, all of which detailed al-Shabaab‘s practice of targeting and persecuting, not merely discriminating against or harassing, westernized returnees like Farah.
The BIA agreed with the Immigration Judge on this issue, stating in a single sentence that Farah had not shown he would likely be targeted for harm rising to the level of persecution. The BIA deemed the Immigration Judge‘s finding—that westernized returnees suffer only discrimination and harassment—not clearly erroneous despite the BIA‘s own acknowledgment that “[t]he voluminous evidence regarding country conditions in Somalia shows a country experiencing a high level of violence, including killings and human rights abuses by members of [a]l[-]Shabaab against those who . . . are perceived to oppose them.” AR 7. The BIA‘s acknowledgement that al-Shabaab targets with violence those who are perceived to oppose them—a group that includes westernized returnees—flatly contradicted the Immigration Judge‘s finding
The majority attempts to explain away the conflict by characterizing Farah‘s evidence as describing the “activities of an armed guerrilla group operating in some but not all areas of Somalia,” which the majority says is distinct from how westernized returnees are “treated by Somali society in general.” Maj. Op. at 29. But this is a distinction without a difference. To be eligible for withholding of removal, a petitioner may establish that he would be persecuted by a group that the government is “unable or unwilling to control.” Matter of W-G-R-, 26 I. & N. Dec. 208, 224 n.8 (B.I.A. 2014). Farah submitted evidence detailing the FGS‘s lack of control over its territory and inability to curb al-Shabaab‘s influence, which the Immigration Judge and the BIA failed to address. Although there may be an explanation for this apparent contradiction between the Immigration Judge‘s finding that westernized returnees suffer only harassment and the evidence that they suffer persecution, it cannot be found in the Immigration Judge‘s and BIA‘s decisions.
The Immigration Judge‘s “failure to mention any . . . pieces of highly relevant evidence” contradicting the conclusion that westernized Somali returnees are merely harassed, not persecuted, “cast[s] doubt on whether the [Immigration Judge] considered th[is] evidence in the first place.” Ali, 931 F.3d at 1336 (internal citation and quotation marks omitted). By not even mentioning the highly relevant contrary evidence, the Immigration Judge “fail[ed] to adequately explain [his] rejection of [the] logical conclusion[]” that westernized returnees in Somalia are persecuted, not simply harassed. Id. at 1334 (internal quotation marks omitted). And the BIA‘s failure to explain its determination that the Immigration Judge‘s finding here was not clearly erroneous despite acknowledging evidence directly contradicting the conclusion, “undermines [my] belief that [the BIA] has heard and thought [about the case] and not merely reacted.” Id. at 1336 (internal quotation marks omitted). Thus, I believe the Immigration Judge‘s and BIA‘s decisions on this issue are “incapable of review due to a lack of reasoned consideration.” Id.
Second, the agency failed to afford reasoned consideration to highly relevant evidence when making its internal relocation determination. The record contains extensive evidence detailing the FGS‘s lack of “command and control of its territory.” AR 923 (quoting Presidential Proclamation). This source explains that the Somali government‘s lack of control means it is unable to “limit [al-Shabaab‘s] freedom of movement, access to resources, and capacity to operate.” Id. The TPS Extension concludes that al-Shabaab‘s substantial influence across the country suggests “requiring the return of Somali nationals . . . to Somalia would pose a serious threat to their personal safety,” AR 550 (citing TPS Extension). The Immigration Judge did not acknowledge any of this evidence. He determined, in one sentence, that Farah failed to demonstrate that he could not relocate to other parts of Somalia where al-Shabaab has less control. The BIA agreed with the Immigration Judge‘s finding that Farah failed to establish he could not relocate to an area of the country that is not controlled by al-Shabaab. Here, again, the BIA did not discuss any evidence.2
Our precedent demands that the Immigration Judge and BIA do more than simply cherry pick a few sentences or phrases from one or two sources and ignore voluminous, highly relevant evidence supporting a petitioner‘s claim. See id. The stakes here—a person‘s life and freedom from the infliction of serious bodily injury—are too high. Of course, we cannot review the weight the Immigration Judge or BIA gives to any piece of evidence, see Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), but “the evidence must be wrestled with,” Ali, 931 F.3d at 1336; see also Tan, 446 F.3d at 1376 (“Although the Immigration Judge is not required to discuss every piece of evidence presented before him, [he] is required to consider all the evidence submitted by the applicant.“). The Immigration Judge and BIA failed to confront and wrestle with Farah‘s evidence supporting withholding of removal from Somalia.
Because the Immigration Judge‘s and BIA‘s decisions do not reflect reasoned consideration of the record evidence supporting Farah‘s withholding of removal claim and, as a result, the decisions are incapable of meaningful review, I would remand to the BIA for further consideration. See Bing Quan Lin v. U.S. Att‘y Gen., 881 F.3d 860, 874 (11th Cir. 2018) (“Where the BIA has not given reasoned consideration or made adequate findings, we remand for further proceedings” (internal quotation marks omitted)). After a closer examination of the record, the agency may reach the same conclusions and deny Farah‘s request for relief. But I dissent because I cannot tell from the BIA‘s decision that it considered and reasoned through the most relevant evidence or that it realized its acknowledgment about the risk of persecution was contrary to the Immigration Judge‘s finding on that issue.