Ali v. Achim, 05-1194.

• Citation: 468 F.3d 462
• Decision Date: 06 November 2006
• Docket Number: No. 05-3009.,No. 05-2028.,No. 05-1194.,05-1194.,05-2028.,05-3009.
• Parties: Ahmed ALI, Petitioner-Appellant, v. Deborah ACHIM, Michael Chertoff, and Alberto Gonzales, Respondents-Appellees. Ahmed Ali, Petitioner, v. Alberto Gonzales, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 462

468 F.3d 462

Ahmed ALI, Petitioner-Appellant, v. Deborah ACHIM, Michael Chertoff, and Alberto Gonzales, Respondents-Appellees.

Ahmed Ali, Petitioner, v. Alberto Gonzales, Respondent.

No. 05-1194.

No. 05-2028.

No. 05-3009.

United States Court of Appeals, Seventh Circuit.

Argued January 9, 2006.

Decided November 6, 2006.

M.C. Georgina Fabian, Mayer, Brown, Rowe & Maw, Chicago, IL, Charles Roth (argued), Midwest Immigrant and Human Rights Center, Travelers and Immigrants Aid, Chicago, IL, Christine Poulon, Mayer, Brown, Rowe & Maw, Washington, DC, for Petitioner-Appellant.

Sheila M. McNulty, Office of the United States Attorney, Chicago, IL, Leslie M. McKay (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondents-Appellees.

Brian J. Murray, Jones Day, Chicago, IL, Mirna Adjami, Charles Roth (argued), Midwest Immigrant and Human Rights Center, Travelers and Immigrants Aid, Chicago, IL, for Amicus Curiae.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Robbin K. Blaya (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Ahmed Ali petitions for review from the Board of Immigration Appeals' ("BIA") final decision ordering him removed to his native Somalia. He also appeals from an order of the United States District Court for the Northern District of Illinois denying his habeas corpus petition in which he challenged his prolonged preremoval detention. The government released Ali from custody shortly before this case was argued, so the habeas detention challenge is moot and we review only the decision of the BIA ordering his removal to Somalia. For the reasons that follow, we deny the petition for review with respect to the BIA's denial of waiver of inadmissibility, asylum, and withholding of removal. We grant the petition with respect to the BIA's denial of deferral of removal under the Convention Against Torture ("CAT") and remand that claim for further proceedings.

I. Background

Ali was born in 1980 in Baidoa, Somalia, to a family belonging to the minority Rahanweyn clan and the Digil subclan. Since the collapse of its central government in 1991, Somalia has been afflicted by interclan and intraclan warfare. U.S. STATE DEP'T COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES (SOMALIA) 2 (Mar.2006). The State Department Country Report specifically highlights deadly infighting among subfactions of the Rahanweyn Resistance Army in the southern regions of Bay and Bakool. Ali's hometown of Baidoa is located in the Bay region.

According to the uncontradicted testimony of Dr. Said Samatar, a professor of African History at Rutgers University who gave his expert opinion at Ali's immigration hearing, if Ali were returned to the areas of Somalia controlled by his Rahanweyn clan, "he would face immediate and present danger" because the region "is in dispute by two factions of the Rahanweyn." By "immediate and present danger" he meant Ali was likely to be beaten and robbed and, "in many places," would also be targeted for death. Dr. Samatar indicated Ali would likely be singled out to be beaten, robbed, or killed because he would be perceived as wealthy after spending time in the United States and "because of the intricacy of [his] lineage." Regarding this latter point, he described persistent feuds between subfactions of the Rahanweyn based on lineage, and testified that the infighting among the Rahanweyn "depends on . . . your clan lineage." Dr. Samatar testified that Ali would fare no better in another part of Somalia not controlled by the Rahanweyn. In non-Rahanweyn-controlled regions, he said, Ali would be targeted by members of the local dominant clan because of his status as a Rahanweyn.

Shortly after the outbreak of clan-based violence in 1991, two of Ali's brothers were killed—one by a stray bullet, the other by street gangs. In 1994 warlords from the dominant Hawiye clan who were affiliated with the United Somali Congress ("USC") invaded Baidoa. USC soldiers shot at Ali on two or three occasions, and he describes "constantly running from the USC military" as a teenager. Hawiye militiamen subjected him to several beatings. In 1996, when Ali was sixteen years old, USC soldiers raided the Ali family's home in Baidoa and attempted to rape Ali's older sister. When she resisted, they killed her. Both the attempted rape and murder happened in front of Ali.

Soon after his sister's murder, Ali and the rest of his family fled to a town near the Somali-Kenyan border. There they again experienced clan-based persecution, this time at the hands of the Darod clan. The Rahanweyn were easily identified by the Darods because they spoke a different dialect. In one incident, a member of the Darod militia demanded that Ali put his penis into an exhaust pipe; Ali refused and was beaten. He understood this kind of abuse as an attempt to humiliate the members of minority clans like the Rahanweyn.

In 1998 Ali and his family fled to Kenya, and in 1999 the United States admitted them as refugees. Ali settled in Madison, Wisconsin, with one of his sisters; his parents moved to Minnesota. He worked a variety of jobs in Madison and attended the Madison Area Technical College. Even after moving to Madison, however, Ali suffered nightmares about the atrocities he witnessed and experienced in Somalia, especially his sister's murder. He says the nightmares caused him to develop a drinking problem and to struggle with depression and insomnia.

Ali was involved in a string of altercations in Madison, starting with an incident in April 2000 where he accepted a ride in a car from three men and a woman. They drove him to a park in Madison, beat him up, and hit him with a beer bottle. His lip was cut and he received medical treatment at a hospital. Two months later Ali crossed paths with one of the men from the April 2000 incident. They started to fight, the police responded, and both Ali and the other man were cited for disorderly conduct.

Then, on June 30, 2000, Ali got into yet another fight with the same man when he spotted him on State Street in downtown Madison. Ali gave the following statement to police officers investigating the incident: "If someone does something to you, you don't forget. I knew it was a mistake and I went after him and I punched him first and he put me on the ground and that's when I got the knot on my head and it was an eye for an eye yesterday." During this altercation, Ali produced a box-cutting instrument and cut the other man about the face, chest, hand, shoulder, and back, saying, "I'm gonna kill you all."

Ali was arrested and charged in Dane County Circuit Court with substantial battery with intent to cause substantial bodily harm by using a dangerous weapon in violation of sections 940.19(3) and 939.63 of the Wisconsin Statutes. He was released on his own recognizance on condition that he not return to the vicinity of State Street where the June 30 fight occurred. Ali violated this condition by going to State Street—he says he was there to catch a bus to school—and he was again arrested and released. During this period of release, Ali was diagnosed with posttraumatic stress disorder caused by his experiences in Somalia.

Ali pleaded no contest to the felony charge of substantial battery with a dangerous weapon and was placed on probation for seven years and ordered to serve an eleven-month term of incarceration in the local work release facility. Ali completed his eleven-month term in June 2002 and was turned over to federal immigration authorities who initiated removal proceedings against him because of his felony battery conviction.

Ali conceded removability on account of his conviction, but sought relief from removal in the form of a waiver of inadmissibility, asylum, withholding of removal, and deferral of removal under the CAT. After two-and-a-half years of administrative proceedings, the BIA ultimately denied all of Ali's claims for relief. The BIA applied the standard set forth in Matter of Jean, 23 I. & N. Dec. 373, 2002 WL 968631 (2002), to deny Ali a waiver of inadmissibility because he committed a violent crime and had not shown an "exceptional and extremely unusual hardship." Citing Ali's conviction for substantial battery with a dangerous weapon, the BIA also found him ineligible for asylum and withholding of removal because he had committed a "particularly serious crime." Finally, the BIA refused to grant Ali deferral of removal under the CAT because it concluded he had not shown he would more likely than not suffer torture if returned to Somalia. Ali petitioned this court for review.

II. Discussion

A. Jurisdiction to review discretionary decisions

The government first challenges our jurisdiction to consider the BIA's discretionary decisions denying waiver of inadmissibility and finding Ali ineligible for asylum and withholding of removal. Section 1252(a)(2)(B) generally deprives courts of jurisdiction to review discretionary denials of immigration relief, and § 1252(a)(2)(C) strips courts of jurisdiction to review final removal orders against aliens who are removable by reason of having committed certain crimes. 8 U.S.C. § 1252(a)(2)(B), (C). But there is an exception for constitutional claims and questions of law: the statute provides that neither subparagraph (B) or (C) of § 1252(a)(2) precludes judicial "review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals." 8 U.S.C. § 1252(a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569 (7th Cir.2006).

So while we lack jurisdiction to review the Attorney General's exercise of discretion to grant or deny relief to an alien (or, more commonly, the discretionary decision of the BIA acting on the Attorney General's behalf), we retain jurisdiction to examine...