Awale v. Ashcroft

• Citation: 384 F.3d 527
• Decision Date: 13 September 2004
• Docket Number: No. 03-1666.,03-1666.
• Parties: Sacdiyo M. AWALE, Petitioner, v. John ASHCROFT, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

384 F.3d 527

Sacdiyo M. AWALE, Petitioner, v. John ASHCROFT, Respondent.

No. 03-1666.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2004.

Filed: September 13, 2004.

Petition for review from the Board of Immigration Appeals.

H. Allen Blair III, argued, Minneapolis, Minnesota (Pamela L. VanderWiel, on the brief), for petitioner.

Anthony W. Norwood, argued, Washington, D.C. (Peter D. Keisler, Terri J. Scadron, and Leslie McKay, on the brief), for respondent.

Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,^* District Judge.

LOKEN, Chief Judge.

Sacdiyo Awale is a thirty-four year old native of Somalia who entered the United States in January 1996 and applied for asylum and withholding of removal. The immigration judge (IJ) denied the application after an evidentiary hearing. The Board of Immigration Appeals (BIA) dismissed Awale's administrative appeal. The BIA assumed that Awale established past persecution but concluded that the government rebutted the resulting presumption of a well-founded fear of future persecution if she must return to Somalia. Awale petitions for judicial review. We conclude that substantial evidence does not support the BIA's conclusion and therefore remand to the BIA for further proceedings.

The President of Somalia, Siad Barre, fled the capital city of Mogadishu in January 1991, triggering a long period of violence and anarchy as clan-based militias fought for control of Mogadishu and other regions of the country. Awale testified that in February 1991 members of her family were attacked in their Mogadishu home by soldiers of the United Somali Congress (USC), a militia controlled by the Hawiye clan. Though Mogadishu residents include members of many clans, the Hawiye are the dominant clan in the Mogadishu region. The USC marauders ransacked the home, raped Awale and her female cousin, beat her mother, and shot and killed her father, a prominent physician, and her brother. Awale testified that the USC militia knew that her family belonged to the Galgale, a minority clan not affiliated with one of the four or five dominant Somali clans. The attackers accused the Awale family of supporting Siad Barre. USC militia also attacked other homes in Awale's multi-clan neighborhood but did not attack the homes of Hawiye clan members. That same day, USC militia raped Awale's sisters and beat her brother elsewhere in the city. These siblings were interrogated at length as to the whereabouts of their father and other family members. Other Somali witnesses confirmed the attack and that Awale's father was a member of the minority Galgale clan.

Awale and her mother and cousin stayed with a neighbor for a month until the neighbor's house was shelled. On March 19, Awale, her mother, and her surviving siblings left Mogadishu for Baidoa, Somalia. The family stayed in Baidoa without incident for over four years, living with one of the father's former patients and pretending to be members of a Hawiye sub-clan, the Abgal. After a UN peacekeeping force left Baidoa in March 1995, USC troops from Mogadishu attacked the city and overran its defenders. Awale testified that she left in November 1995 because she feared that the USC would discover her true clan affiliation. Awale traveled to Kenya with other relatives, stayed there one month, and then traveled to the United States in January 1996 on a false passport purchased by her uncle. Since fleeing to Kenya, Awale has had no contact with her mother and surviving siblings, who were still in Somalia when she left. Her asylum application states that she has no way to defend herself if forced to return to Somalia.

The Attorney General has discretion to grant asylum to a "refugee," an alien who is unable or unwilling to return to her country of origin "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)(A), 1158(b)(1). Awale seeks asylum on the ground that she suffered past persecution in Somalia and has a well-founded fear of persecution if she returns to Somalia because of her membership in the Galgale clan. Because clans are the key social group for virtually all Somalis, "the BIA has acknowledged that a Somali clan or sub-clan may be `a particular social group' for purposes of determining whether persecution or fear of persecution is `on account of' that protected ground." Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1046 (8th Cir.2004).

A finding of past persecution entitles the asylum applicant to a presumption that she has a well-founded fear of future persecution if she returns to that country. 8 C.F.R. § 208.13(b)(1).¹ However, the government can rebut this presumption by proving that "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution," or that "[t]he applicant could avoid future persecution by relocating to another part of the applicant's country of nationality." 8 C.F.R. § 208.13(b)(1)(i)(A) & (B). "In a close case, the question of past persecution ... may well be critical, because it determines whether the INS or the asylum applicant has the burden of proof" on these two issues. Hagi-Salad, 359 F.3d at 1049; see 8 C.F.R. § 208.13(b)(3)(i) & (ii).

The IJ found Awale's testimony credible. Without question, the violence inflicted on Awale and her family in February 1991 qualifies as past persecution if the USC militia raped and killed family members on account of their membership in the Galgale clan or their support of the Siad Barre regime. See Hagi-Salad, 359 F.3d at 1045. The IJ rejected the claim of past persecution because "I find insufficient evidence in the record to conclude that the harm that befell [Awale's] family was on account of membership in a particular social group [the Galgale clan], or an imputed political opinion [support of the Siad Barre government]." The BIA affirmed on a different ground, without resolving the issue of past persecution:

We do not necessarily agree with the [IJ's] determination that [Awale] failed to establish past persecution. However, even assuming the harm which [Awale] suffered was on account of a protected ground, we find that the country report reflecting decreased inter-clan conflict and [Awale's] demonstrated ability to live in Somalia without further incident for more than 4 years are sufficient to overcome the presumption of future persecution. See 8 C.F.R. § 208.13(b)(1)(i) (2002).

We review the BIA's decision "solely upon the administrative record upon which the deportation order is based." 8 U.S.C. § 1105a(a)(4) (1994).² We must uphold that decision if it is supported by substantial evidence on the administrative record considered as a whole. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The BIA's opinion cited 8 C.F.R. § 208.13(b)(1)(i) but did not clarify whether it found the presumption rebutted by changed country conditions or by Awale's ability to relocate to a different region of Somalia. The BIA seemed to base its decision on the ability-to-relocate ground because it stated that Awale "could avoid persecution through relocation within Somalia," relied on her living in Baidoa without incident for more than four years, and cited a prior decision that turned on the alien's ability to relocate, In re C-A-L-, 21 I & N Dec. 754, 757-58 (BIA 1997). However, the government's brief on appeal defends the BIA's decision primarily on the ground of changed country conditions. Therefore, we will consider both grounds, bearing in mind that the BIA's assumption of past persecution means that the government must rebut a presumption that Awale has the requisite well-founded fear of future persecution if she returns to Somalia.

Changed Country Conditions. On appeal, the government argues that a December 1996 Department of State report entitled, "Somalia: Profile of Asylum Claims and Country Conditions," establishes that conditions in Somalia "have measurably improved." We agree that, in seeking to rebut the presumption, the government may rely on State Department reports assessing country conditions as they relate to the likelihood of future persecution. See Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 (8th Cir.2003). However, to rebut the presumption, "changes in country conditions must be shown to have negated the...