Ali v. Garland

• Decision Date: 05 May 2022
• Docket Number: 21-1296
• Citation: 33 F.4th 47
• Parties: Liban Abdi ALI, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

33 F.4th 47

Liban Abdi ALI, Petitioner,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 21-1296

United States Court of Appeals, First Circuit.

May 5, 2022

Edgar L. Fankbonner, with whom Susan B. Church, Goldberger & Dubin, PC, and Demissie & Church were on brief, for petitioner Ali.

Michele Y. F. Sarko, Trial Attorney, Office of Immigration Litigation, U.S. Department of Justice, with whom Brian Boynton, Acting Assistant Attorney General, Civil Division, and Andrew N. O'Malley, Senior Litigation Counsel, were on brief, for respondent Garland.

Before Barron, Chief Judge, Gelpí, Circuit Judge, and Katzmann,^* Judge.

BARRON, Chief Judge.

Before us is a petition for review from Liban Abdi Ali ("Ali"), in which he challenges a ruling by the Board of Immigration Appeals ("BIA") that affirmed the denial of his request for deferral of removal pursuant to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). We grant the petition in part, vacate the decision of the BIA in part, and remand to the BIA for further proceedings consistent with this opinion.

I.

Ali is a noncitizen who arrived in the United States in 2000. He was then approximately nine years old. Ali was granted asylum in 2002.

Almost two decades later, on March 3, 2020, the U.S. Department of Homeland Security served Ali with a Notice to Appear ("NTA") for removal proceedings pursuant to 8 U.S.C. § 1229a. The NTA charged that Ali was a noncitizen from Somalia who had not been "admitted or paroled" in the United States.¹ It alleged that although Ali had been granted asylum on February 23, 2002, he was subject to removal from the United States pursuant to 8 U.S.C. §§ 1182(a)(2)(A)(i)(II) and 1182(a)(2)(C) based on his prior Massachusetts state law convictions for drug-related crimes and purported activities in relation to the trafficking of cocaine.²

At a master calendar hearing on April 1, 2020, Ali, through his counsel, denied "the two charges of removability." The Immigration Judge ("IJ") at the hearing "sustain[ed]" the allegations in the NTA and "sustain[ed] the charges of removability." Ali, through his counsel, indicated his intent to apply for various forms of relief from removal.

A removal hearing was scheduled first for April 14, 2020. Ali submitted to the IJ an Application for Asylum and for Withholding of Removal ("Form I-589"), to which he attached a declaration in support of his application for withholding of removal and protection under the CAT. Ali specified on the Form I-589 and in the declaration that he sought withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) based on the persecution that he contended that he would be subject to in Somalia and pursuant to the CAT based on the torture that he contended that he would be subject to there, see 8 U.S.C. § 1231 note; 8 C.F.R. § 1208.16. In support of these contentions, Ali submitted to the IJ amended versions of both his Form I-589 and declaration as well as various supplemental exhibits.³

Ali's removal hearing was held on June 18, 2020. Following the removal hearing, the IJ "sustain[ed] the charges in the [NTA] by clear, convincing, and unequivocal evidence."

The IJ explained that in 2017, Ali was convicted of one charge of trafficking in more than eighteen and less than thirty-six grams of cocaine, see Mass. Gen. Laws ch. 94C, § 32E(b), two charges of possession of a large capacity firearm, id. ch. 269, § 10(m), eight charges of carrying a licensed firearm while under the influence, id. ch. 269, § 10H, one charge of receiving stolen property over $250, id. ch. 266, § 60, one charge of conspiracy to violate provisions of the Massachusetts Controlled Substances Act, id. ch. 94C, § 40, and one charge of possession of a firearm while committing a felony, id. ch. 265, § 18B. The IJ further found that Ali had been sentenced in state court to serve concurrently terms of imprisonment of three years and six months for each of the first three convictions, and that he had been "sentenced to probation for two years" for the remaining convictions, although it was "unclear whether or not it was served during the sentence or after the sentence."

The IJ then turned to Ali's request for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3) based on his claimed fear of persecution in Somalia. The IJ denied the request on the ground that Ali had been convicted of a "particularly serious crime" and so was statutorily ineligible for such protection. See 8 U.S.C. § 1231(b)(3)(B)(ii) (making ineligible for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A) any noncitizen who "the Attorney General decides" is, "having been convicted by a final judgment of a particularly serious crime," a "danger to the community of the United States"). The IJ also denied the request on the merits of the claim that he would be subject to persecution in Somalia.

Finally, the IJ addressed Ali's claim for protection from removal pursuant to the CAT. A noncitizen who has been convicted of a "particularly serious crime" and is therefore not eligible for withholding of removal based on a claim of persecution pursuant to 8 U.S.C. § 1231(b)(3) may still be entitled to what is known as "deferral of removal" if the noncitizen can show that he is "entitled to protection under the [CAT]." 8 C.F.R. § 1208.16(c)(4) ; see also Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, 112 Stat. 2681, 2681-822. To make that showing, the noncitizen must demonstrate that he "is more likely than not to be tortured in the country of removal." 8 C.F.R. § 1208.16(c)(4).

The IJ determined that Ali was not entitled to deferral of removal pursuant to the CAT because Ali had not met his burden to "show[ ] it is more likely than not based on the evidence before the [c]ourt that he would be tortured in the proposed country of removal." The IJ then ordered Ali "removed to Somalia." (capitalization altered).

Ali appealed the IJ's rulings to the BIA, which affirmed the IJ. Ali then filed on April 14, 2021 this petition for review of the BIA's decision.⁴

The next day, Ali filed a motion to stay his removal pending resolution of his petition, which this Court denied on June 7, 2021. This Court did so on the ground that Ali's motion to stay had failed to make the "strong showing that he is likely to succeed on the merits" of his petition. Nken v. Holder, 556 U.S. 418, 426, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). The government then notified this Court that it did not intend to remove Ali prior to September 15, 2021. Ali represented in a brief filed with this Court on August 9, 2021, that he was at that time detained by U.S. Immigrations and Customs Enforcement.

II.

Ali focuses his briefing to us on the BIA's ruling affirming the IJ's ruling denying Ali deferral of removal pursuant to the CAT. Ali contends that the BIA erred in that ruling by affirming the IJ's rejection of each of the three distinct grounds for granting CAT-based deferral of removal that Ali had advanced.⁵

The first ground is that Ali will be tortured by members of al-Shabaab -- which the BIA described as an "armed terrorist organization" -- and that the government of Somalia will be willfully "blind" to such abuse. The second ground is that he will be tortured by "private militias" and "armed criminals" in Somalia and that the government of Somalia will be "willfully blind" to that abuse as well. The final ground is that he will be tortured "at the hands of Somali security forces."

Ali contends that the BIA erred in affirming the IJ's ruling as to each of these three grounds because the IJ violated 8 C.F.R. § 1208.16(c)(3). That regulation provides that "[i]n assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal," 8 C.F.R. § 1208.16(c)(3) -- a determination the IJ "shall first" make in its consideration of a claim of protection under the CAT, id. § 1208.16(c)(4) -- "all evidence relevant to the possibility of future torture shall be considered," id. § 1208.16(c)(3). Ali also contends that the agency's denial of his various grounds for CAT-based protection is not supported by substantial evidence once the evidence that he argues that the IJ failed to consider is taken into account. See DeCarvalho v. Garland, 18 F.4th 66, 74 (1st Cir. 2021) ("We will uphold the BIA's findings 'if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole."' A BIA decision lacks the support of substantial evidence when the record compels a conclusion contrary to the one reached by the agency." (quoting Agustin v. Whitaker, 914 F.3d 43, 45 (1st Cir. 2019) )).

The government responds by contending that both the IJ and the BIA considered the evidence in question and that substantial evidence supports the BIA's affirmance of the IJ's denial of Ali's request for CAT-based relief. As we will explain, we deny Ali's petition for review of the BIA's ruling insofar as the petition challenges the BIA's affirmance of the IJ's denial of Ali's al-Shabaab-related ground for obtaining CAT-based deferral of removal. However, we grant Ali's petition for review with respect to his challenges to the BIA's affirmance of the IJ's ruling denying him CAT-based deferral of removal on the other two grounds at issue -- that Ali will be subject to torture in Somalia at the hands of private militias and armed criminals (which he refers collectively in his briefing to us as "other private actors") and that he will be subject to torture at the hands of the security forces of the government of Somalia.

A.

An applicant for deferral of removal pursuant to the CAT must establish "that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 1208.16(c)(2) ; see also Ramírez-Pérez v. Barr, 934 F.3d 47, 52 (1st Cir. 2019). To make a showing that meets the definition of torture in 8 C.F.R. § 1208.18(a), a noncitizen...