Ali v. Ashcroft

• Decision Date: 19 January 2005
• Docket Number: No. 03-71731.,03-71731.
• Citation: 394 F.3d 780
• Parties: Deqa Ahmad Haji ALI; Madaar A. Osman; Isack A. Osman, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

394 F.3d 780

Deqa Ahmad Haji ALI; Madaar A. Osman; Isack A. Osman, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 03-71731.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2004.

Filed January 19, 2005.

Richard L. Baum (on the briefs) and Christopher L. Garrett (argued), Perkins Coie, LLP, Portland, OR, for the petitioners.

Frances McLaughlin (argued) and Blair T. O'Connor (on the brief), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A75-261-419 to A75-261-421.

Before: D.W. NELSON, THOMAS, Circuit Judges, and EZRA,^* District Judge.

D.W. NELSON, Circuit Judge.

Deqa Ahmad Haji Ali petitions on behalf of herself and her two sons, Madaar Osman and Isack Osman, for review of the Board of Immigration Appeals' ("BIA") denial of their requests for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").¹ Ali, Madaar, and Isack are all natives of Somalia. The Immigration Judge ("IJ") dismissed Ali's asylum claim based on findings that: (1) she had failed to establish that her past persecution was on account of an enumerated ground; and (2) that Ali and her sons had firmly resettled in Ethiopia prior to entering the United States. The IJ granted Ali and her two sons voluntary departure to Somalia in lieu of removal. The BIA affirmed the decision of the IJ without opinion. We find Ali statutorily eligible for asylum and remand for an exercise of discretion on the asylum claim and for further consideration of the with-holding of removal claims.

I. Factual and Procedural History

A. Ali's Experiences in Somalia

Ali, the lead petitioner, was born in Berbera, a northern Somali city, and is a member of the Muuse Diriiye clan, which is referred to pejoratively as the Midgan clan. Muuse Diriiye clan members are bound in servitude to noble Somali families and are considered low-caste and subhuman by other Somali clans. As a result, higher-status clans will not marry members of the Muuse Diriiye clan. See 1996 Bureau of Democracy, Human Rights and Labor, U.S. Dep't. of State, Somalia: Profile of Asylum and Country Conditions 13, reprinted in Administrative Record (AR) at 637 (hereinafter State Dep't Report). Traditionally, the Muuse Diriiye had no rights to engage in political activities or undertake political work, but under the presidency of Mohammed Siad Barre they were allowed to assume political positions for the first time. See id. at 13-14, reprinted in AR at 637-38. This opening of civil service positions to a non-noble clan angered higher-status clans, including members of the United Somali Congress ("USC") militia that ousted Siad Barre in a civil war in 1991. Id. at 14, reprinted in AR at 638. The civil war between Siad Barre's forces and the USC spread to Mogadishu in January 1991 and Siad Barre fled Somalia, causing a period of clan warfare that has raged for over 13 years.

At the time of her flight from Somalia, Ali lived with her husband, Ahmed Omar Osman, in the capital city of Mogadishu. Osman, also a member of the Muuse Diriiye clan, worked for the Ministry of Education under the administration of President Mohammed Siad Barre. In early January 1991, six armed members of the USC militia broke into Ali's home around sunrise. Ali recognized one of the intruders as a neighbor who knew that Ali's husband worked for Siad Barre. Ali was brutally gang-raped by three of these armed men while her husband and brother-in-law were bound and forced to watch. While they were raping Ali, the persecutors called Ali and her family "Midgans [sic] traitor" and told her she was "getting what [she] deserved" because she and her family were Muuse Diriiye, who were not supposed to advance in society, while the militia, members of higher-class clans, "were supposed to have everything." One of the men held Ali down with his shoes while raping her, which Ali testified was a sign of disrespect for her low-caste clan status. When Ali's brother-in-law cursed and spit on the militia for raping her, he was shot dead in front of her.

The militia also looted Ali's home, taking everything of value and destroying her household decorations. After raping Ali, the militia took her husband with them and said "let Siad Barre save you now.... We came back to our country, you Midgan you have everything, but now we are in power and Siad Barre is gone." Ali's two sons, age eight and nine at the time, were in another room of the family home during these brutal rapes and murder. Afterwards, Ali and her sons fled to a neighbor's home.

Osman was released from detention by the militia after two weeks, and came home with broken ribs and wrists. Upon his release, Ali, Osman, and their sons immediately fled to Ethiopia. Once in Ethiopia, Ali testified that Osman divorced her as a result of the rapes and the fact that afterwards he no longer saw her as a wife.

Ali's life in Ethiopia remained difficult. Although Ethiopia ran refugee camps for Somalis, Ali feared her family would be killed if they sought refuge in those camps either because of their clan membership or her husband's political affiliation with Siad Barre. The refugee camps near Ali's family were controlled by the Issaq clan, which engaged in warfare with Ali's clan and helped overthrow Siad Barre's administration. Her fear of death or persecution in the refugee camps also kept Ali from applying for any type of legal status in Ethiopia, which she feared would trigger her family's forced resettlement to a camp.

Ali testified that, although certain Somali refugees could obtain permanent residence in Ethiopia because their clans were higher caste and had an established presence in Ethiopia, her clan, the Muuse Diriiye, could not. Ali also testified that the Ethiopian government never offered her any assistance or legal status. During the five-plus years Ali and her sons spent in Ethiopia as undocumented aliens, Ali testified that they "were trying to get out from there anytime, as soon as possible ... [because] we didn't have any legal status, we couldn't work there, we couldn't go to school in there. And we couldn't plan — we didn't have a home in there so it was transition."

Despite her lack of work authorization, Ali was able to find under-the-table work as a "housemaid." Her first two employers, however, exploited Ali's lack of status by refusing to pay for her contracted services and threatening to report her to Ethiopian authorities when she protested. Eventually Ali found work as a maid for a family that paid her and worked for this family for nearly four years. However, during this time, Ali often discussed her desire to leave Ethiopia with her employer, created strategies to depart, and saved money for this purpose. Ali never moved freely about her city of residence in Ethiopia because she "was afraid that ... someday the villa or the police of the government might arrest me and send me to the refugee camp."

When her employer decided to move to France, Ali and her sons arranged to come to the United States because they could not get the documents necessary to enter France with her employer's family. Although Ali's sons had lived only with their father and Ali's former husband, Osman, in Ethiopia, Ali and Osman agreed that the sons should accompany Ali to the United States. Osman believed his sons "live[d] a prison life" in Ethiopia and told Ali that he "support[ed] [Ali] to take them wherever they can get safe, they can be safe." After Ali and her sons left Ethiopia, Ali testified that Osman was arrested and jailed "[b]ecause he didn't have documents," but was later released because an Ethiopian woman, whom he subsequently married, intervened on his behalf.

Ali and her sons entered the United States without inspection on November 21, 1996. On January 22, 1997, Ali applied for asylum. Her asylum application was denied and the Immigration and Naturalization Service ("INS") issued Ali a Notice to Appear on October 1, 1998.

B. The Asylum Hearing

After two merits hearings, the IJ issued an oral decision on August 2, 2000 denying Ali's petitions for asylum, withholding of removal, and relief under the CAT. Despite his positive credibility determination of Ali's testimony, the IJ found that Ali failed to establish asylum eligibility because she failed to establish past persecution on account of a protected basis. Instead, the IJ found that the sole motivation for the murder, detention, and robbery that Ali and her family suffered "was shown to clearly be simply to steal, and in the case of the rape to take gratification from the helpless condition of the respondent." In the alternative, the IJ denied asylum for Ali and her sons based on a finding that they were firmly resettled in Ethiopia before entering the United States because Ali "chose not to live in refugee camps" and "was never bothered by the authorities." The IJ also denied withholding of removal and relief under the CAT for Ali and her sons. The IJ did grant Ali and her sons' request for voluntary departure in lieu of removal, designating Somalia as the country of removal.

On September 1, 2000, Ali timely appealed these denials to the BIA on behalf of herself and her two sons. The BIA affirmed the IJ without opinion on March 27, 2003. Ali then timely filed this petition for review.

II. Standard of Review

We review the BIA's decision on whether the petitioner has established eligibility for asylum under the substantial evidence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir.2004). This standard limits reversals of BIA decisions to situations where the "Petitioner presented evidence' so compelling that no reasonable factfinder could [fail to] find' that Petitioner has not established eligibility for asylum." Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (quoting ...