Filed: Jan. 14, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 17-13849 Date Filed: 01/14/2020 Page: 1 of 36 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 17-13849 _ Agency No. A208-919-884 ABDIRAHMAN SALAD WARSAME, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (January 14, 2020) Before JORDAN, GRANT, and SILER,* Circuit Judges. JORDAN, Circuit Judge: Abdirahman Salad Warsame seeks review of a final order by the Board of *The Honor
Summary: Case: 17-13849 Date Filed: 01/14/2020 Page: 1 of 36 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 17-13849 _ Agency No. A208-919-884 ABDIRAHMAN SALAD WARSAME, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (January 14, 2020) Before JORDAN, GRANT, and SILER,* Circuit Judges. JORDAN, Circuit Judge: Abdirahman Salad Warsame seeks review of a final order by the Board of *The Honora..
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Case: 17-13849 Date Filed: 01/14/2020 Page: 1 of 36
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13849
________________________
Agency No. A208-919-884
ABDIRAHMAN SALAD WARSAME,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 14, 2020)
Before JORDAN, GRANT, and SILER,∗ Circuit Judges.
JORDAN, Circuit Judge:
Abdirahman Salad Warsame seeks review of a final order by the Board of
∗The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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Immigration Appeals affirming the denial of his application for asylum and
withholding of removal. Mr. Warsame asserts that the immigration judge and the
BIA erred by (1) holding that he had not suffered past persecution at the hands of
the terrorist organization al-Shabaab; (2) finding that he had not shown that political
opinion was a central reason for his persecution; (3) failing to consider whether he
was persecuted as a result of his membership in a particular social group—his
family; (4) concluding that he could reasonably be expected to relocate within
Somalia; and (5) denying him due process during the hearing before the IJ. Because
we conclude that the BIA did not consider some of Mr. Warsame’s claims, we vacate
and remand for further proceedings, while dismissing the unexhausted due process
claims.
I
A
Mr. Warsame is a native of Somalia. On January 7, 2016, he arrived in the
United States and was detained. On January 29, 2016, during a credible fear
interview with an asylum officer, Mr. Warsame explained that al-Shabaab killed his
daughter and sister in a bombing in Somalia that was directed at his father for his
work as a police chief for the Somali government. Following the bombing, al-
Shabaab called Mr. Warsame and threatened to kill him, in part, because of his
father.
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Mr. Warsame then explained that he left Somalia to study in Turkey and
Malaysia and that, upon his return, al-Shabaab renewed their death threats because
of his work as a teacher. [When the asylum officer asked whether he thought that
al-Shabaab believed he was opposed to them, he replied: “I believe so [because]
every time I did a seminar that is when they would contact me, so I would assume
so.” He stated that al-Shabaab killed other teachers at his college for using western
forms of education. He also explained that al-Shabaab killed his brother-in-law
because he was “helping [Mr. Warsame’s] father.”
When the asylum officer asked if he had ever been threatened or harmed on
account of his political opinion or opposition to political activity, Mr. Warsame
answered that he “didn’t have any particular opinions or political beliefs that [he]
was attacked for personally, but [he] was attacked for [his] father’s position.” When
the asylum officer inquired as to what Mr. Warsame believed was the “main reason
that [al-Shabaab] would still want to kill you if you go back,” he gave two reasons:
“One is related to my father and the other is the education that they told me to stop.”
Nearly one month later, Mr. Warsame appeared before the IJ and stated that
he was “afraid of returning to Somalia because of the political affiliation of” his
father and because he was a teacher and “there is a group in Somalia that attack[s]
the teachers[.]” The IJ provided Mr. Warsame with an I-589 asylum application.
In his application, Mr. Warsame stated that he feared persecution because al-
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Shabaab “does not want Somali people to be educated and as a teacher . . . they felt
I was educating and liberating the people through Western education so if I return I
would be killed.” He explained that he was afraid of being killed because he was
“educating my people in Somalia not to follow or believe in wrong religious[ ]
beliefs of [al-Shabaab] and that they should be educated so that they can make better
decisions that would help them in life.” He also described how al-Shabaab killed
his sister and daughter, and his fear that he would also be killed like his family
members and colleagues.
In a contemporaneous declaration, Mr. Warsame elaborated on his
experiences with al-Shabaab in Somalia. He explained that his father was appointed
as a police chief under the transitional federal government and became a target
because “[al-Shabaab was] targeting everyone against them, specially [sic] their
families[,] so” his father took his family to a safehouse. Al-Shabaab bombed that
safehouse on June 30, 2007. Mr. Warsame survived uninjured, but his daughter and
sister were killed, and his father was seriously injured. His father was initially
unable to obtain medical treatment because of his clan membership. His father was
eventually taken out of the country for treatment but, after he returned, Mr.
Warsame’s mother insisted they leave the city to escape al-Shabaab. Because Mr.
Warsame belongs to a minority clan in Somalia, his father-in-law (a member of a
larger, more powerful clan) gave him money and urged him to leave the country to
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obtain an education and for his safety.
In 2014, Mr. Warsame returned to Somalia to conduct a survey in connection
with his post-graduate studies in Turkey. While in Somalia, he received death threats
from al-Shabaab. They later kidnapped and tortured him, burning his genitals. They
released him only after his mother’s friend—an elder from a different clan—
interceded on his behalf. He returned to Turkey to finish his studies, after which he
was obligated to return to Somalia in 2015.
Al-Shabaab later opened gunfire at the university in Somalia where Mr.
Warsame was teaching, killing his best friend. Mr. Warsame survived by chance.
In his declaration, Mr. Warsame explained that there was nowhere in Somalia he
could live because his clan membership precluded him from moving safely to other
regions within the country. On May 30, 2015, Mr. Warsame left Somalia. He later
learned that al-Shabaab killed his brother-in-law for helping Mr. Warsame’s father
in October 2015.
At the end of his declaration, Mr. Warsame included a section entitled “The
Reason Why I Am Seeking Asylum . . . .” He explained that he was seeking asylum
because he is a “professional lecture [sic], trainer, and . . . gave seminar to provide
education[.]” He stated that he could not continue to teach, as al-Shabaab opposes
western and formal forms of education. He went on to say that al-Shabaab’s
extremism “energized” him to continue teaching and “disseminate vital information
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to the students and private sectors” to “liberate[ ] them from the erroneous belief of
[al-Shabaab].” He stated that he had condemned al-Shabaab in public speeches. He
listed, among the risks he would face if forced to return to Somalia, renewed
persecution and abuse as a result of his membership in clan shancaleemod, or death
at the hands of al-Shabaab related to his father’s work as a police chief or his own
position as an educator. Finally, he explained that he was “actually fleeing from
persecution on account of his political opinion and membership in a social group.”
In addition to his declaration, Mr. Warsame submitted various articles and
reports from non-governmental organizations recounting the ongoing violence in
Somalia brought about by al-Shabaab, as well as the danger caused by inter-clan
fighting and abuse. Of note, he provided a U.S. State Department travel warning
dated May 24, 2016. That warning noted, among other things, that “al-Shabaab has
demonstrated the capability to carry out attacks in government-controlled
territories,” and that “[i]nter-clan and [i]nter-factional fighting [could] flare up with
little or no warning.”
He also submitted the British Home Office’s Country Information and
Guidance report on Somalia, which noted that “[p]olitical violence in Somalia is
dominated by the activity of Al Shabaab and its conflict with the Federal
Government and allied forces.” That British report noted that al-Shabaab was
involved in more than 20% of all conflict events in Somalia in 2013, and over 30%
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of all reported fatalities, “making it the single most active non-state force.” And it
pointed out that “[t]he group’s declining capacity and control over territory is evident
in the data, however, as this rate represents a decline from over 26% of activity
attributed to the group in the preceding two years.” Related to government-led
efforts to recapture land from al-Shabaab, the British report explained that “any
improvement is limited to specific towns which the government—with heavy
reliance on AMISOM or aligned forces—hold. Their control and influence is weak
. . . [meaning] that . . . they provide very limited protection and security for
civilians.” 1 It went on: “Though the government continues to hold key towns, their
reliance on AMISOM and Ethiopian forces means that the gains are extremely
fragile, and can neither be considered substantial, fundamental, durable or
sustainable.”
At his asylum hearing before the IJ, Mr. Warsame—appearing pro se—
recounted the same details described in his declaration. He stated that he was fleeing
from al-Shabaab and, when asked what al-Shabaab “did to [him],” he said “[f]irst of
all, they have attacked my father and the family after that because my father was a
policeman.” He also discussed his 2014 kidnapping and torture. He explained that
his kidnapping was due to al-Shabaab’s “following” his father and that the 2014
incident was “the first time they” saw him back in Somalia.
1
AMISOM is the African Union Mission in Somalia, which acts as a peacekeeping force.
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During a colloquy with Mr. Warsame, the IJ explained: “I am afraid that an
event against your father by criminals in 2007 does not give you asylum in 2017.
And since al-Shabab is not in control of many areas of Somalia because of the joint
efforts of the international community, then there are places for you to relocate.”
In response, Mr. Warsame said:
The problem why I’m here, Your Honor, is not because of
my father only. I know what al-Shabab has done to my
father, but I have been victimized by these people because
I was a teacher. I was helping the country. And they knew
that whoever is teaching people and helping people—
At that point, the IJ cut him off and said:
Sir, you cannot have asylum in the United States. The
government has done you no harm and your government
is trying very hard to get control of the country . . . . You
have a brand new president[.]
***
al-Shabab does not want to harm you because you are a
teacher, they just don’t want you teaching. And you
weren’t a teacher that long anyway. Sir, I believe you
came to the United States because you want to be here.
You have admitted to the Court that you knew you could
not get a visa. So, you came the way you came. So, you
have to return to your country, sir.
Mr. Warsame pointed out that the IJ had not asked him about the 20 articles that he
submitted about violence in Somalia. The IJ responded that her decision was
unrelated to his articles. Rather, the Somali government was “trying” to improve,
and the IJ expected Mr. Warsame to relocate.
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Mr. Warsame attempted to explain that he did not know where his family was,
because they were constantly fleeing violence. The IJ was not persuaded: “Sir, you
cannot have asylum in the United States under United States law.” 2
B
In her decision, the IJ found Mr. Warsame to be credible “in spite of numerous
inconsistencies or confusion.” The IJ concluded, however, that the “harsh
conditions” Mr. Warsame endured did not constitute past persecution. Though the
IJ “would grant that being burned in a private area . . . is definitely unforgiveable
and a dastardly deed,” the act was not committed by a government actor. The
“onetime event [ ] was done by a criminal element in Somalia.” And the 2007 al-
Shabaab bombing that killed his daughter and sister, and maimed his father, could
not establish past persecution because “harm to others[,] even an applicant’s family
members[,] does not necessarily serve to establish persecution of the applicant
personally.”
Because the bombing occurred at a police station, it seemed to the IJ that “al-
Shabab was targeting a person whose job was to stop them from their terrorist
activities.” Moreover, “general conditions of strife and anarchy are not necessarily
past persecution.” The IJ denied the asylum application because Mr. Warsame could
safely relocate within Somalia, had shown neither a past persecution nor a well-
2
The government did not cross-examine Mr. Warsame during the hearing.
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founded fear of future persecution, making him ineligible for asylum.
The IJ also found that Mr. Warsame had not established a nexus between the
persecution he fears and any statutorily protected ground. The IJ, unable to discern
to which social group Mr. Warsame claimed membership, sua sponte ruled that he
was “more likely than not . . . claiming a social group of persons with Master’s
degrees who return to Somalia to teach and whom al-Shaba[a]b targets, because al-
Shaba[a]b does not want them teaching the subjects they are teaching.” Having
defined the social group in this way, the IJ then concluded that “this social group
does not have sufficiently well[-]defined boundaries to narrow it to a group with a
recognized level of social visibility sufficient to allow members of society to readily
identify or perceive those as members of that particular social group.”
Turning to political opinion, the IJ first described Mr. Warsame’s claim as an
inability to return to Somalia “because of . . . an imputed political opinion based on
the bombing of the police station and the harm to his father in 2007.” She concluded
that Mr. Warsame had “fatally failed to express a political opinion that . . . someone
the government” could not or would not control “is motivated to harm the respondent
based on that political opinion that they know of and disagree with.”
In the IJ’s view, there was “no indication that [Mr. Warsame] was singled out
by al-Shaba[a]b on account of his moral or political opposition to terrorist activity.
Instead, [he] was harmed because al-Shaba[a]b wanted him to stop teaching.”
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Because Mr. Warsame was a victim of “societal violence, terrorism, and revenge
rather than” persecution based on political opinion, his application could not
succeed.
Furthermore, the IJ rejected the 2007 bombing as a basis for a past persecution
finding because of Mr. Warsame’s “attempt to claim the harm to his father must in
some way be tied to him personally, meaning that the harm to his father in the
bombing of the police station connects with al-Shaba[a]b not wanting him to teach
imputes the harm to his father with the objective to attack or harm him.” “This,” the
IJ explained, “he is not able to accomplish.”
For many of the same reasons that the IJ concluded Mr. Warsame could not
show a nexus to his past persecution, she also determined that he could not show a
well-founded fear of future persecution. And she concluded that Mr. Warsame could
relocate to Somalia based on the government’s efforts to curtail violence in the
country.
C
In his notice of appeal to the BIA, Mr. Warsame stated that the IJ erred in
concluding that he had failed to establish a likelihood of persecution upon return
based on his membership in a particular social group. He also asserted that the IJ
erred in not letting him fully present his case at the hearing, denying him due process.
The BIA affirmed the IJ’s decision in a two-page orderQuoting Mr.
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Warsame’s brief on appeal, the BIA defined his proposed social group as “Somali
teachers who teach the Western Education [and] are targeted by [a]l-Shabaab.”
According to the BIA, this did not satisfy the requirements of a protected social
group because Mr. Warsame “did not establish that al-Shabaab members targeted
him to punish him because he is a teacher[;] rather the defining attribute of [his]
proposed particular social group is persecution by al-Shabaab for teaching ‘Western
Education’ and the defining attribute of a particular social group cannot be
persecution.” Furthermore, the proposed social group lacked any “immutable
characteristic” because Mr. Warsame had not demonstrated that his occupation was
“fundamental to his identity.”
The BIA also concluded that the IJ did not clearly err in deciding that Mr.
Warsame’s injuries were not connected to any implied political opinion, but rather
to his relationship with his father. It also agreed, without analysis, that Mr. Warsame
could safely relocate to Somalia and avoid al-Shabaab.
II
We review the BIA’s decision alone, “except to the extent that it expressly
adopts the IJ’s opinion.” Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
In such cases, we review the IJ’s decision and analysis, as well. See
id. Because the
BIA here expressly agreed with several of the IJ’s findings, we review the relevant
portions of her decision.
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We review the BIA’s legal conclusions de novo. See Mohammed v. Ashcroft,
261 F.3d 1244, 1247 (11th Cir. 2001). We review factual determinations about
statutory eligibility for asylum or withholding under the substantial evidence test.
See Perlera-Escobar v. Exec. Office for Immigration,
894 F.2d 1292, 1296 (11th Cir.
1990). These findings of fact “are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Stated
differently, we will affirm the BIA’s findings of fact if they are “supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
D-Muhumed v. U.S. Att’y Gen.,
388 F.3d 814, 818 (11th Cir. 2004) (internal
quotation marks and citation omitted). Accordingly, we will not reverse the BIA’s
decision just because the record might support a contrary conclusion. See Adefemi
v. Ashcroft,
386 F.3d 1022, 1027 (11th Cir. 2004).
It is not our prerogative to re-weigh the evidence at this stage. See id. Nor
may we “find, or consider, facts not raised in the administrative forum[.]”
Id.
Credibility determinations similarly benefit from this very deferential standard of
review. See
D-Muhumed, 388 F.3d at 818.
III
Asylum applications are governed by 8 U.S.C. § 1158. Any alien who is
physically present in the United States may apply for asylum, regardless of his or
her immigration status. See § 1158(a)(1). The “Attorney General may grant asylum
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to an alien who has applied for asylum in accordance with the requirements and
procedures established . . . if . . . the Attorney General determines that such alien is
a refugee” as defined by statute. See § 1158(b)(1)(A).
The term “refugee,” in turn, is defined as
any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or herself of the
protection of, that country because of persecution or a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion[.]
8 U.S.C. § 1101(a)(42).
“To establish asylum eligibility, the petitioner must, with specific and credible
evidence, demonstrate (1) past persecution on account of a statutorily listed factor,
or (2) a well-founded fear that the statutorily listed factor will cause future
persecution.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (internal
quotation marks omitted) (quoting 8 C.F.R. § 208.13). A showing of past
persecution creates a rebuttable presumption that the petitioner has a well-founded
fear of future persecution. See 8 C.F.R. § 208.13. In the absence of such a showing,
the petitioner must “demonstrate a well-founded fear of future persecution that is
both subjectively genuine and objectively reasonable.”
Ruiz, 440 F.3d at 1257.
An applicant may also establish withholding of removal by showing that his
“life or freedom would be threatened in that country because of [his] race, religion,
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nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The burden of proof for such a claim is “more likely than not,”
and therefore more stringent than the standard for asylum relief. See Ruiz, 440 F.3d
at 1257.
On appeal, Mr. Warsame challenges the BIA’s determination that he had not
established a nexus between any past persecution and a protected ground. He argues
that al-Shabaab targeted him both because of his actual political opinion, and the
political opinion imputed to him by al-Shabaab on account of his father’s position
as a police officer. Relatedly, he asserts that the same kinship tie forms the basis for
a “particular social group.” He also challenges the BIA’s findings on the feasibility
of relocation within Somalia and argues that he was denied due process during his
asylum hearing.
The government asserts that Mr. Warsame did not properly exhaust his
kinship ties and actual political opinion arguments. It further argues that kinship ties
do not satisfy the particular social group definition, and that his proposed social
group involving instructors teaching western education who are targeted by al-
Shabaab is circular and does not constitute a protected ground. The government
contends that Mr. Warsame did not suffer past persecution, nor is he likely to suffer
future persecution, and that substantial evidence supports the BIA’s conclusion that
Mr. Warsame could safely relocate within Somalia. Finally, the government argues
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that Mr. Warsame did not sufficiently exhaust his due process claims and that, even
if he had, they should fail on the merits.
We begin our discussion by addressing exhaustion, and then turn to the merits
of Mr. Warsame’s past persecution, well-founded fear, and relocation arguments.
A
A petitioner’s failure to exhaust all administrative remedies available deprives
us of jurisdiction to review any unexhausted claims. See Amaya-Artunduaga v. U.S.
Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); 8 U.S.C. § 1252(d)(1). “And
when a petitioner has neglected to assert an error before the BIA that he later
attempts to raise before us, the petitioner has failed to exhaust his administrative
remedies.” Jeune v. U.S. Att’y Gen.,
810 F.3d 792, 800 (11th Cir. 2016).
To properly exhaust a claim, a petitioner must do more than “merely identif[y]
an issue to” the BIA. Id. Instead, he must raise the “core issue,” and “also set out
any discrete arguments he relies on in support of that claim.”
Id. (internal quotation
marks and citations omitted). A pro se petitioner is not expected to “use precise
legal terminology or provide well-developed arguments to support his claim,” but
he must “provide information sufficient to enable the BIA to review and correct any
errors below.”
Id. (internal quotation marks and citations omitted). An “unadorned,
conclusory statement[ ]” will not suffice under this standard.
Id. The ultimate
question is whether the BIA has had a full opportunity to consider the claim and
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develop the record necessary to enable judicial review. See id.
Where a petitioner appears pro se, we construe his pleadings liberally.
Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.”). We have alluded to this
liberal treatment of pro se filings in addressing exhaustion in the immigration
context. See Ali v. U.S. Att’y Gen.,
931 F.3d 1327, 1331 n.2 (11th Cir. 2019) (citing
Tannenbaum).
1
Mr. Warsame, we conclude, adequately exhausted his actual political opinion
arguments.
In his declaration accompanying his asylum application, Mr. Warsame
explicitly stated that he “fled Somalia to the United States owing to the fact that he
was being persecuted on account of his political opinion and membership in a
particular social group.” R. at 680. In his I-589 form, he explained that al-Shabaab
targeted him because he was “providing education and liberating the Somali people
from wrong . . . beliefs propagated by [a]l-Shabaab . . .” and because he was
“educating . . . people in Somalia not to follow or believe in wrong religio[u]s
belief[]s of [a]l-Shabaab[.]” And his teaching went beyond purely debunking al-
Shabaab’s beliefs; he said that he had “vehemently condemned it in various public
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speaking [events] to the youth, people [in] both formal and informal sectors back
home in Somalia.” R. at 674. He also stated that he planned seminars in opposition
to al-Shabaab. Id. at 676. Further, he declared that he “was an executive member
of the Somalia researcher development center that was endorsed as a political outfit
by country policies.”
Id. at 666.
Indeed, the declaration makes clear that Mr. Warsame’s political opinion was
a crucial element his asylum application. For example, he declared that “[he] is a
member[ ] of a particular social group and a political opinion who experienced past
persecution for a reason of his political view and his family.” Id. At the end of his
declaration, he stated that “he fled Somalia to the United States owing to the fact
that he was being persecuted on account of his political opinion and membership in
a particular social group,” and “[he] was actually fleeing from persecution on
account of his political opinion and membership in a social group.”
Id. at 680–81.
The government asserts that, in his brief on appeal to the BIA, Mr. Warsame
only mentioned his social group and imputed political opinion. See Gov’t Br. at 22–
23. Mr. Warsame expressly stated in his brief that “he was persecuted in the past by
the member of [a]l-Shabaab in Somalia on account of his imputed anti-[a]l-Shabaab
political opinion.” R. at 15. But the sentence immediately following that one reads
as follows: “[a]l-Shabaab threatened [Mr. Warsame] and his colleagues for teaching
the secular education throughout Mogadishu and spreading the anti-[a]l-Shabaab
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opinion through his teachings[.]” R. at 16. Furthermore, in his brief, Mr. Warsame
described his work as an educator and followed that immediately with “[t]his
sufficiently alleged that he was targeted by reason of imputed political opinion.” Id.
at 28. He went on to describe receiving threatening phone calls from al-Shabaab in
response to seminars he conducted.
Id. at 17, 29. He noted that:
Al-Shabaab specifically referenced the Respondent’s past
refusal to stop the teaching of the western education when
they telephonically threatened him, attempted to kill him,
and threatened with death for his refusal to stop the
teachings and the seminars. Thus, the Respondent’s
refusal to stop the teaching and the seminars to the [a]l-
Shabaab was an expression of his anti-[a]l-Shabaab
political opinion.
Id. at 32 (emphasis added).
Mr. Warsame explained in his brief to the BIA that he was “addressing people
to get education and rebuild Somalia for a better future, also to discuss how [a]l-
Shabaab is destroying the younger generations [sic] future and not educating them
about the goodness of education. This sufficiently alleged that he was targeted by
reason of imputed political opinion.” Id. at 28. Though he used the term “imputed,”
we think Mr. Warsame’s briefings show—fairly clearly—that he considered his
teaching a political, as much as a professional, act.
We conclude that Mr. Warsame’s repeated references to his activities, his
political motivations for engaging in them, and al-Shabaab’s hostile responses, are
sufficient to have exhausted these claims before the BIA. Indeed, in her decision,
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the IJ appeared to tacitly acknowledge the underlying political opinion argument,
though her analysis was framed as addressing an implied/imputed political opinion
claim. For example, in explaining why Mr. Warsame had failed to satisfy the nexus
requirement, the IJ stated that “[he] also claims that he cannot return to his native
country because of, it would appear to the Court, an imputed political opinion based
on the bombing of the police station and the harm to his father in 2007.” Id. at 240.
But, two paragraphs later, she said that, “[t]here is no indication that the respondent
was singled out by al-Shabab on account of his moral or political opposition to
terrorist activity.”
Id. And, on the following page, she noted that the “evidence in
the record indicates that [Mr. Warsame] was a victim of societal violence, terrorism,
and revenge rather than that he was singled out by al-Shabab on account of his
political opinion.”
Id. at 241.
The BIA expressly adopted the IJ’s analysis:
The Immigration Judge also properly found, without clear
error, that the respondent was not harmed due to an
implied political opinion but rather due to his relationship
with his police officer father, and that the respondent could
reasonably relocate within Somalia to avoid al-Shabaab[.]
R. at 3. Ostensibly, the BIA decided only the question of whether Mr. Warsame was
targeted because of an imputed political opinion. But a close reading of the IJ’s
opinion suggests that she performed a more expansive analysis. As noted, we
generally review only the BIA’s decision, except to the extent the BIA has expressly
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adopted the IJ’s decision. See Jeune, 810 F.3d at 799. But “[w]hen the BIA
explicitly agrees with the findings of the [IJ], we review the decision of both the BIA
and [IJ] as to those issues.”
Id.
This somewhat confusing procedural posture leads us to exercise caution. The
Supreme Court has made clear that “[a] court of appeals is not generally empowered
to conduct a de novo inquiry into the matter being reviewed and to reach its own
conclusions based on such an inquiry.” Gonzales v. Thomas,
547 U.S. 183, 186
(2006) (per curiam) (internal quotation marks and citations omitted) (reversing
appellate court which, after properly determining that the BIA had not adequately
considered a kinship-ties-social-group claim, decided the merits of that issue rather
than remanding to the BIA). Instead, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.”
Id. (internal quotation marks and citations omitted).
The government, at oral argument, urged us to remand the case for the BIA
and the IJ to make the determination on actual political opinion in the first instance.
We agree that this is the appropriate course. Indeed, it is the one mandated by the
Supreme Court. Cf. I.N.S. v. Orlando Ventura, 537 U.S. 12, 16–17 (2002) (per
curiam) (concluding that the court of appeals exceeded its legal authority in ruling
on an alternative argument that the BIA had not addressed, although the IJ had
considered it).
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Here, as in Ventura and Thomas, “every consideration that classically
supports the law’s ordinary remand requirement does so here.” Ventura, 537 U.S.
at 17. “The agency can bring its expertise to bear upon the matter; it can evaluate
the evidence; it can make an initial determination; and, in doing so, it can, through
informed discussion and analysis, help a court later determine whether its decision
exceeds the leeway that the law provides.”
Id.
2
We similarly conclude that Mr. Warsame exhausted his kinship-ties-as-a-
social-group arguments, and that remand is appropriate as to this issue as well.
In his declaration filed with his asylum application, Mr. Warsame explained
that he and his family members “suffered harm that arises to the level persecution
[sic] and torture because of their membership of a particular social group[.]” R. at
666. He described having to move to a safe house at a police station because his
father, a police officer, was actively working against al-Shabaab and al-Shabaab “are
targeting everyone against them, [e]specially their families.” Id. at 667. He
described the attack on the police station, which killed his daughter and sister and
severely injured his father.
Id. at 668. He noted that his capture and torture in
2014—which took place before he began teaching—was “because of” his father.
Id.
at 670.
At his asylum hearing, Mr. Warsame reiterated that al-Shabaab attacked his
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father and his family because his father was a police chief. Id. at 398. And, when
the IJ asked him what al-Shabaab wanted from him in 2014 when they captured and
tortured him, he stated that “they were following my father and this was the first
time they seen [sic] me back.”
Id. at 402. He described earlier assassination attempts
on his father, explaining that “al-Shabaab targets the person who works for the
government and if they can’t find him, they will target his family to harm him.”
Id.
at 403–04.
In his brief on appeal to the BIA, Mr. Warsame explained that his daughter
and sister were killed “[b]ecause [his] father was a chief police officer in year 2006–
2007 and [a]l-Shabaab have been targeting members of the police and their
families.” Id. at 16. He described receiving death threats in connection with his
teaching and being told that he would be killed like his daughter and sister.
Id. at
17. He also stated that al-Shabaab killed his brother-in-law because he was
“helping” Mr. Warsame’s father in the refugee camp.
Id. at 18. The BIA appeared
to have recognized the connection between at least some of Mr. Warsame’s injuries
and his family when it held that the IJ “properly found . . . that the respondent was
not harmed due to an implied political opinion but rather due to his relationship with
his police officer father[.]”
Id. at 3.
Mr. Warsame, in defining his social group membership, did borrow the IJ’s
sua sponte formulated definition. But we conclude that, based on the procedural
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history set out above, Mr. Warsame “present[ed] enough to flag the issue [of his
kinship ties] and enable the BIA to address the matter.” Bing Quan Lin v. U.S. Att’y
Gen., 881 F.3d 860, 869 (11th Cir. 2018). Mr. Warsame has effectively and
repeatedly argued the core of the issue he now appeals; that al-Shabaab targeted him
and others in his family because of his father’s work as a police officer. This is
sufficient. Cf. Montano Cisneros v. U.S. Att’y Gen.,
514 F.3d 1224, 1228 n.3 (11th
Cir. 2008) (“Petitioners have always argued the core issue now on appeal: their
entitlement to reopening because [their attorney]’s behavior constituted ineffective
assistance of counsel. Our review of the record demonstrates Petitioners’ preserved
arguments have provided us sufficient jurisdiction to decide this case.”).
Mr. Warsame asserts that we should remand this issue to the BIA for a
determination. See Mr. Warsame’s Br. at 34. For the same reasons noted earlier,
we agree. We also note that, after oral argument, the Attorney General issued Matter
of L-E-A, 27 I. & N. Dec. 581 (A.G. 2019). In that case, the Attorney General
concluded that “an alien’s family-based group will not constitute a particular social
group unless it has been shown to be socially distinct in the eyes of its society, not
just those of its alleged persecutor.” Id. at 582. Mr. Warsame, in a supplemental
filing, asserts that his family was “known in society for its ties to the government
and vocal opposition to al-Shabaab,” and therefore satisfies this requirement. On
remand, the BIA should review Mr. Warsame’s social group claim considering the
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Attorney General’s recent opinion in Matter of L-E-A.
3
Based on the record before us, we conclude that Mr. Warsame did not
adequately exhaust his due process claims.
Because the BIA does not have the power to decide constitutional claims—
like the validity of a federal statute—some courts have suggested that certain due
process claims need not be administratively exhausted. See Amaya-Artunduaga, 463
F.3d at 1251. But where the claim “is within the purview of the BIA which can
provide a remedy, the exhaustion requirement applies with full force.” Bing Quan
Lin, 881 F.3d at 868 (citation omitted). We have previously held that a due process
claim “regarding the fairness of the Immigration Judge as a neutral factfinder, [is]
precisely the kind of procedural error which requires exhaustion.”
Id. (internal
quotation marks and citation omitted).
Mr. Warsame’s notice of appeal contained three brief statements regarding
the IJ’s conduct at the hearing and her decision:
4. IJ erred in denied [sic] the respondent application for
[a]sylum, and withholding of removal and protection
against torture without specific and [cogent] reasons.
5. IJ erred when she didn’t hear my case at all and she
didn’t let me present my case.
6. IJ also erred in[ ] not allowing the Respondent the
opportunity to explain himself during his removal
proceed[ings] just rushed to her questions but she not
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allow him to elaborate any answer which she violated his
Due Process.
R. at 225.
Nowhere, however, did Mr. Warsame develop these arguments. Nor did he
explain how the IJ’s actions prejudiced him. He did not point to any exchange in
the record to support his claim, nor did he explain what process was due, or what
legal standard applied. To make a due process claim, a petitioner “must show that
he was deprived of liberty without due process of law . . . and that the asserted error
caused him substantial prejudice.” Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d
1331, 1333 (11th Cir. 2003) (citations omitted). Though his brief on appeal does
articulate how he was allegedly prejudiced by the IJ’s conduct at the hearing, none
of those details was before the BIA. We accordingly do not have jurisdiction to
decide the unexhausted due process claims.
B
As we explained, the record is unclear as to what grounds supported the BIA’s
decision on past persecution based on an imputed political opinion. In any event,
the BIA erred in not considering actual political opinion or mixed motives. The BIA
also did not address the question of whether, regardless of past persecution, Mr.
Warsame had a well-founded fear of future persecution. We remand that question
to the BIA. And we vacate the IJ’s and the BIA’s findings on the reasonableness of
relocation.
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1
We conclude, on this record, that it was error for the BIA to adopt the portion
of the IJ’s decision discussing imputed political opinion.
“An asylum applicant may prevail on a theory of imputed political opinion if
he shows that the persecutor falsely attributed an opinion to him, and then persecuted
him because of that mistaken belief about his views.” Najjar, 257 F.3d at 1289
(quotation marks and citation omitted). But it is unclear whether, in the section of
her decision labeled “POLITICAL OPINION,” the IJ was deciding actual or imputed
political opinion because both terms are used throughout. See R. at 240. We are
therefore not sure what portions of this section the BIA intended to adopt when it
said that “[t]he Immigration Judge also properly found, without clear error, that the
respondent was not harmed due to an implied political opinion but rather due to his
relationship with his police officer father[.]”
Id. at 3.
Moreover, we conclude that the IJ’s political opinion analysis is flawed. In
this section, the IJ denied his claim because “the harm to his father must in some
way be tied to him personally, meaning that the harm to his father in the bombing of
the police station connects with al-Shaba[a]b not wanting him to teach imputes the
harm to his father with the objective to attack or harm him.” R. at 241. In her view,
Mr. Warsame was “merely string[ing] together a series of suppositions to carry his
burden of proof on past persecution[.]” Id. The meaning of these statements is, to
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us, unclear.
If the IJ decided that Mr. Warsame’s claim failed because al-Shabaab’s
reasons for their multiple attacks and threats against him lacked the requisite identity
of motive, then the analysis did not consider the possibility of mixed motives. See
infra Section III.B.2. But even viewing the events before Mr. Warsame’s
graduation, standing alone, we conclude that the IJ’s analysis is deficient. First, the
IJ did not consider that the event causing that “harm to the father”—the safehouse
bombing—also killed Mr. Warsame’s daughter and sister or that Mr. Warsame was
present for the attack. Second, it does not acknowledge that Mr. Warsame’s 2014
kidnapping and torture were at least partially related to his father, as he explained.
The IJ’s taking the events out of context, and her incomplete analysis, make it
difficult for us to review the BIA’s decision.
We have previously held that the BIA does not properly consider a claim
where it did not “coherently explain the extent to which it adopt[s] the decision of
the Immigration Judge.” Mezvrishvili v. U.S. Att’y Gen., 467 F.3d 1292, 1295–96
(11th Cir. 2006). Here, not only do we lack a clear underlying decision, but we are
also uncertain as to what portion of that decision the BIA adopted. This failure to
“render a reasoned decision in consideration” of Mr. Warsame’s claim precludes us
from reviewing this claim on appeal.
Id. at 1297. Lacking “the benefit of the BIA’s
review and resolution of [Mr. Warsame’s] central claim,” we cannot “meaningfully
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review” his application, see Jean-Pierre v. U.S. Att’y Gen., 500 F.3d 1315, 1327
(11th Cir. 2007), and we remand for further proceedings.
2
Relatedly, we conclude that the BIA erred in not considering the cumulative
effects of al-Shabaab’s actions, or the role mixed motives might have played in Mr.
Warsame’s persecution.
Our jurisprudence makes clear that persecution can be cumulative. See
Diallo v. U.S. Att’y Gen., 596 F.3d 1329, 1333 (11th Cir. 2010) (collecting cases).
Accordingly, even where “each instance of mistreatment, when considered alone,
may not amount to persecution, the record may still compel a finding of past
persecution when considered as a whole.” De Santamaria v. U.S. Att’y Gen.,
525
F.3d 999, 1008 (11th Cir. 2008). And “[a] credible death threat by a person who has
the immediate ability to act on it constitutes persecution regardless of whether the
threat is successfully carried out.”
Diallo, 596 F.3d at 1333–34.
Mr. Warsame—when he was tortured and was the victim of a bombing—has,
without question, suffered persecution at the hands of al-Shabaab. Consider Mejia
v. U.S. Att’y Gen., 498 F.3d 1253 (11th Cir. 2007), where we found past persecution
after the petitioner suffered “threats and attempted attacks over an eighteen-month
period, which culminated when he . . . [was] stopped on a roadway by three armed
members of the FARC, who threatened [him] at gunpoint, threw him to the ground,
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and smashed him in the face with the butt of a rifle, breaking his nose.” Id. at 1257.
Similarly, in De Santamaria, we concluded that the petitioner had suffered
past persecution where she was repeatedly threatened, yanked by the hair out of her
vehicle, threatened in graffiti writing, traumatized by the murder of her
groundskeeper for refusing to reveal her location, and eventually beaten, kidnapped,
and warned of imminent death. See 525 F.3d at 1009. Much like the petitioners in
De Santamaria and Mejia, Mr. Warsame was tortured, suffered the loss of multiple
family members (including his daughter, sister, and brother-in-law), and was
repeatedly subjected to death threats.
The issue for us is whether Mr. Warsame was persecuted because of a
protected ground. The BIA concluded that he was not.
It is “well-established” in our Circuit that mixed-motive claims may qualify
for asylum as long as the petitioner “can show that the persecution is, at least in part,
motivated by a protected ground.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d
1223, 1232 (11th Cir. 2007) (emphasis in original) (internal quotation marks and
citation omitted). We have made clear that a protected ground “need not be the only
motivation for the persecution.”
Id. (emphasis in original) (collecting cases). See
also 8§ 1158(b)(1)(B)(i) (“To establish that the applicant is a refugee within the
meaning of such section, the applicant must establish that race, religion, nationality,
membership in a particular social group, or political opinion was or will be at least
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one central reason for persecuting the applicant.”).
Without conducting a mixed-motives analysis, the BIA effectively held that
because the 2007 bombing and 2014 torture occurred on the basis of Mr. Warsame’s
“relationship to his father” and were not related to his status as a teacher (which it
nevertheless concluded could not constitute a particular social group), he had not
suffered past persecution on the basis of a protected ground. See R. at 3. The BIA
did not consider that the numerous physical attacks and death threats, though perhaps
prompted by different concerns at different times, were ongoing, performed by the
same group, and were—in the case of the death threats—very much capable of being
carried out.
In many cases, the death threats were directly tied to Mr. Warsame’s work as
a teacher, as in De Santamaria. See 525 F.3d at 1010 (holding that substantial
evidence did not support the BIA’s denial where “the record reflect[ed] that
Santamaria’s attackers made painfully clear that their motivation for their threats and
violence . . . was her support of the Colombian government”). Regardless of whether
every past act of persecution was motivated by identical considerations on al-
Shabaab’s part, the record shows that Mr. Warsame’s political opinions provided “at
least one central reason” for al-Shabaab’s recurrent death threats. 8 U.S.C.
§ 1158(b)(1)(B)(i). And Mr. Warsame had every reason to believe that al-Shabaab
could carry them out, especially given that they killed his best friend (a fellow
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educator) and his brother-in-law (a family member). Cf. Sanchez Jimenez, 492 F.3d
at 1233 (holding that the record compelled a finding of past persecution where
petitioner had received repeated death threats, almost had his daughter kidnapped,
and was shot at multiple times while in a moving car). The BIA’s failure to consider
a cumulative and mixed-motive claim, despite Mr. Warsame’s numerous filings and
oral declarations acknowledging that al-Shabaab was after him because of both his
father and his teaching activities, was an error. We therefore remand to the BIA to
conduct a mixed-motives analysis.
For these same reasons, the BIA also erred in not considering whether Mr.
Warsame had a well-founded fear of future persecution. As discussed, a petitioner
must “demonstrate a well-founded fear of persecution that is both subjectively
genuine and objectively reasonable.” Ruiz, 440 F.3d at 1257. A petitioner can
satisfy the subjective component by providing credible testimony that he “genuinely
fears persecution.”
Id. He can satisfy the objective component either by establishing
past persecution or, where that is not possible, by showing that “he . . . has a good
reason to fear future persecution.”
Id. The BIA’s initial determination that Mr.
Warsame could not satisfy the nexus requirement with respect to his past persecution
may, at the end of the day, ultimately stand on remand. But the abuses Mr. Warsame
credibly described at his hearing could constitute a basis upon which he might
reasonably fear future persecution on a protected ground.
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3
We conclude that the BIA’s relocation determination was not supported by
substantial evidence. As the BIA’s decision made explicit reference to, and agreed
with, the IJ’s analysis, we review that underlying decision.
“[T]he [pertinent] regulation envisions a two-part inquiry: whether relocation
would be successful, and whether it would be reasonable.” Arboleda v. U.S. Att’y
Gen., 434 F.3d 1220, 1223 (11th Cir. 2006) (internal quotation marks and citation
omitted). Adjudicators must consider “whether the applicant would face other
serious harm in the place of suggested relocation; any ongoing civil strife within the
country; administrative, economic, or judicial infrastructure; geographical
limitations; and social and cultural constraints, such as age, gender, health, and social
and familial ties.” 8 C.F.R. § 1208.13(b)(3). We have previously held that a failure
to consider these factors is reversible error. See
Arboleda, 434 F.3d at 1226.
The IJ’s opinion characterizes our Eleventh Circuit jurisprudence regarding
relocation as follows:
What is required in the Eleventh Circuit is that the
government of Somalia is attempting to get control of the
country, has gotten control of certain areas of the country,
and therefore the respondent could have and should have
even attempted to firmly relocate instead of his leaving his
wife and daughter behind.
R. at 243. Apart from the unnecessary moralizing, the IJ’s (and therefore the BIA’s)
determination in this regard was substantively flawed.
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First, the entirety of the analysis focused on the Somali government’s efforts,
in conjunction with international assistance, to curb al-Shabaab’s territorial gains.
That focus, although relevant, is not conclusive. Absent from the analysis was any
acknowledgment of Mr. Warsame’s clan membership, which he asserted raised
threats separate from those presented by al-Shabaab.
For example, in his declaration accompanying his asylum application, he
stated that majority clans rule every region of Somalia, and that moving to another
region puts a minority clan member in danger. See R. at 671–72. Indeed, the clan
system is so deeply entrenched that minority clan members risk death if they move
to certain areas of the country. See id. And, because of his clan membership, Mr.
Warsame testified that his life is at risk anywhere he might go within Somalia.
Id.
Moreover, he filed articles supporting these assertions. See R. at 96–97, 107, 112–
19, 129–30. The IJ, however, made clear she did not intend to consider them during
the following exchange:
IJ: . . . Sir, I believe you came to the United States because
you want to be here. You have admitted to the Court that
you knew you could not get a visa. So, you came the way
you came. So, you have to return to your country, sir.
Mr. Warsame: Your Honor, the Court hasn’t asked me
about 20 articles that I have about Somalia that it’s not
safe.
IJ: Sir, it’s not about your articles. Sir, sir, your
government is trying, your government does not have to
be successful. Somalia may not be the most peaceful
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country on the planet, but you don’t get asylum because of
that. Your government is trying and with the help of other
countries they are succeeding in pushing back against the
terrorists. There are areas in Somalia where you can
relocate and you are expected to do so. Clearly you have
admitted that yourself by your father-in-law moving your
wife and your daughter.
Id. at 409. This constitutes, at a minimum, a failure by the IJ to consider “whether
the applicant would face other serious harm in the place of suggested relocation.” 8
C.F.R. § 1208.13(b)(3).
In sum, the IJ does not appear to have considered the relevant § 1208.13(b)(3)
factors, which is reversible error. See Arboleda, 434 F.3d at 1226 (“The BIA in this
case, however, did not mention any of the other factors it should have considered in
making its determination. This is reversible error.”). Neither the IJ nor the BIA
properly considered all of the evidence submitted by Mr. Warsame, and so neither
of them “consider[ed] the issues raised and announce[d] [a] decision in terms
sufficient to enable [us] . . . to perceive that the Judge has heard and thought and not
merely reacted.” Tan v. U.S. Att’y Gen.,
446 F.3d 1369, 1374 (11th Cir. 2006). We
therefore conclude that the BIA’s finding that Mr. Warsame could safely relocate
lacked the requisite reasoned consideration, and remand for further analysis.
IV
Mr. Warsame did not exhaust his due process claims, and we dismiss his
petition as to those claims. We also conclude that the IJ and the BIA did not
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adequately consider Mr. Warsame’s other claims. We therefore vacate the BIA’s
order on these claims and remand for further proceedings consistent with this
opinion.
PETITION GRANTED IN PART, DISMISSED IN PART, AND
REMANDED.
36
