Aden v. Wilkinson

• Decision Date: 04 March 2021
• Docket Number: No. 17-71313,17-71313
• Citation: 989 F.3d 1073
• Parties: Abdi Asis Ali ADEN, Petitioner, v. Robert M. WILKINSON, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

989 F.3d 1073

Abdi Asis Ali ADEN, Petitioner,

v.Robert M. WILKINSON, Acting Attorney General, Respondent.

No. 17-71313

United States Court of Appeals, Ninth Circuit.

Submitted November 6, 2019^* Portland, Oregon

Filed March 4, 2021

OPINION

PAEZ, Circuit Judge:

Abdi Ali Asis Aden petitions for review of the Board of Immigration Appeals’ (the "BIA" or "Board") dismissal of his appeal of an Immigration Judge's ("IJ") denial of his applications for asylum and withholding of removal from Somalia. Aden challenges the Board's determination that he firmly resettled in South Africa and did not experience persecution in Somalia. We have jurisdiction under 8 U.S.C. § 1252. We grant the petition for review and remand.

I. Factual and Procedural Background¹

Aden is a native and citizen of Somalia. He was born in Beledweyne, Somalia, and practices a form of Islamic mysticism known as Sufism. He contends he suffered persecution under Al-Shabaab, a militant terrorist organization affiliated with Al-Qaeda and the Islamic State, which took control of Beledweyne. The group maintained an active presence in the area surrounding Beledweyne and much of southern Somalia.

After graduating high school, Aden began to work in a nearby theater owned by his brother. The theater featured American and Hindi movies and sports. On two occasions in late 2010, members of Al-Shabaab visited the theater and ordered Aden's brother to shut down the theater and stop screening, in their view, "Satanic" movies. Aden was not present during these encounters, but his brother later told him about them.

The brothers did not heed the instructions. A month later, ten armed members of Al-Shabaab raided the theater while Aden and his brother were working. For the next twenty minutes, the armed men beat the theater employees and patrons with sticks. After the patrons fled, the raiders turned their attention to the remaining workers, including Aden and his brother. They struck Aden in the head with the butt of a rifle, causing him to bleed profusely. When they left, they confiscated the equipment used to screen the movies.

Immediately after the incident, Aden and his brother hid in their uncle's house in Beledweyne. Two weeks later, members of Al-Shabaab contacted Aden's brother and warned him that if he reopened the theater, they would kill both him and Aden. Aden and his brother did not reopen the theater, deciding instead to hide at their uncle's house until they gathered enough money to escape Somalia.

In January 2011, Aden fled Somalia and, over the next two months, made his way to South Africa. Upon his arrival, he was granted asylum and given permission to work. He worked and lived in a store owned by his cousin. To maintain legal status, he needed to renew his asylum documentation several times.

Aden spent four difficult years in South Africa. He testified about three incidents in which he was the target of xenophobic attacks directed at Somali immigrants. In December 2012, a group of anti-immigrant protestors entered the store in which he worked, beat him with wooden sticks and other tools, and broke and stole merchandise. Once they finished ransacking, the protestors set fire to the store, requiring it to be rebuilt.

The second incident occurred one night in March 2013. Aden was sleeping inside the store with his cousin. He woke up to a noise and found three to four men had broken into the store. The intruders beat Aden and his cousin with wooden sticks, forced them to lie on the ground, and stole money and phone cards. During the incident, the men accused Aden of being an "illegal alien" and told him he had "no right to this business." Aden reported the incident to South African law enforcement, but they did nothing to follow up or investigate.

The third and final incident took place in December 2014. While Aden was working, two men brandishing guns went to the store and threatened to kill him. Aden gave them money, phones, and phone cards. They told him, "you are Somalis [and] [y]ou do not have rights to ... this country, and you don't have ... rights to enter." Aden reported this incident to the South African police but, again, they did nothing to follow up or investigate.

As a result of these incidents, Aden fled yet again in 2015. He managed to travel to the United States, and upon arriving at the San Ysidro port of entry he applied for asylum, withholding of removal from Somalia and South Africa, and protection under the Convention Against Torture.

The IJ denied Aden's applications for relief and found him removable as charged. Although the IJ found Aden credible, he concluded that Aden was ineligible for asylum because he had "firmly resettled" in South Africa. In reaching this conclusion, the IJ first determined that Aden had been offered permanent resettlement because he had no difficulty finding work or a place to reside, received refugee status and, after a certain amount of time, could have sought a permanent immigration permit. Further, the IJ determined Aden did not qualify for an exception to the firm-resettlement bar because, in part, he did not show that the conditions of his residence were too restricted for him to be firmly resettled. In determining that Aden had firmly resettled, the IJ did not discuss or consider Aden's claims of persecution as a Somali refugee by native South Africans.²

The IJ alternatively determined that Aden was ineligible for asylum in the United States because he did not establish that, while in Somalia, he experienced past persecution or that he had a well-founded fear of future persecution on account of a protected ground. In reaching this determination, the IJ reasoned that the "one-time" beating at the theater did not amount to persecution, and, even if it did, Aden failed to show it was on account of his religion or political opinion. Further, the IJ concluded that because the movie theater no longer existed in Somalia, Aden failed to establish he had a well-founded fear of future persecution. The IJ also found that Al-Shabaab remained a major force in Somalia and a danger to many, including in the region Aden is from, but ultimately concluded it was insufficient to demonstrate Aden had a well-founded fear of persecution because it amounted only to "general strife and violence in Somalia." Accordingly, the IJ denied Aden's request for withholding of removal from Somalia.

The IJ did, however, conclude that Aden was eligible for withholding of removal from South Africa because the harm Aden faced rose to the level of persecution. In making this determination, the IJ pointed to the three xenophobic incidents about which Aden testified, found that the incidents occurred on account of his nationality as a Somali immigrant, and determined that the South African government was unable or unwilling to control such violence. Last, the IJ determined that the government failed to rebut the presumption of Aden's well-founded fear of persecution in South Africa by showing that he could relocate internally or that the conditions there had changed.

Aden appealed the IJ's decision to the BIA. The Board agreed that Aden presented "ample evidence" that he suffered persecution in South Africa, but nonetheless upheld the IJ's conclusion that Aden firmly resettled there. The Board stated that Aden did not qualify for a firm-resettlement exception because he was persecuted by nongovernment actors. The Board also upheld the IJ's ruling that Aden was ineligible for asylum from Somalia because he did not demonstrate past persecution or a well-founded fear of future persecution on account of a protected ground. In light of that conclusion, the Board also upheld the IJ's denial of Aden's application for withholding of removal from Somalia.

Aden timely petitioned for review of the Board's determination that he firmly resettled in South Africa and was not persecuted in Somalia.

II. Standard of Review

We examine the Board's "legal conclusions de novo and its factual findings for substantial evidence." Arrey v. Barr , 916 F.3d 1149, 1157 (9th Cir. 2019) (citation omitted). A factual finding is "not supported by substantial evidence when any reasonable adjudicator would be compelled to conclude to the contrary based on the evidence in the record." Bringas-Rodriguez v. Sessions , 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citation and quotation marks omitted).

III. Firm Resettlement

An applicant who is firmly resettled is ineligible for asylum. 8 U.S.C. § 1158(b)(2)(A)(vi). The IJ concluded, and the Board agreed, that Aden did not qualify for asylum because he had firmly resettled in South Africa and did not meet an exception to the firm-resettlement bar. Aden argues the Board erred in concluding he is not eligible for an exception to the firm-resettlement bar. We agree.

To determine whether substantial evidence supports the agency's finding that an applicant has not firmly resettled in a third country, we first determine whether the government presented evidence that the applicant received an offer of permanent resettlement. Arrey , 916 F.3d at 1159 (citing Maharaj v. Gonzales , 450 F.3d 961, 976–77 (9th Cir. 2006) (en banc)); 8 C.F.R. § 208.15. If the government establishes that an applicant has firmly resettled, we then look to whether the applicant qualifies for either of two exceptions to the firm-resettlement bar. Arrey , 916 F.3d at 1159. One such exception—what we refer to as the "restricted-residence exception"—applies when the applicant "show[s] that ... the conditions of [the applicant's] residence [were] too restricted[ ] for [the applicant] to be firmly resettled." Id. (quoting Maharaj , 450 F.3d at 976–77 ); 8 C.F.R. § 208.15(b).³ The regulation provides that the restricted-residence exception applies when the applicant shows that the living restriction was (1) "substantial[ ]," (2) "conscious[ ]," and (3) "by" the country's authorities. 8 C.F.R. § 208.15(b). In making this determination, courts consider the conditions under which...