Farah v. U.S. Attorney Gen.

• Decision Date: 08 September 2021
• Docket Number: No. 19-12462, No. 20-12941,19-12462
• Parties: Hassan FARAH, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. Hassan Mohamed Farah, Petitioner-Appellant, v. Michael W. Meade, Field Office Director, Miami Field Office, U.S. Immigration and Customs Enforcement, et al, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

12 F.4th 1312

Hassan FARAH, Petitioner,

v.U.S. ATTORNEY GENERAL, Respondent.

Hassan Mohamed Farah, Petitioner-Appellant,

v.Michael W. Meade, Field Office Director, Miami Field Office, U.S. Immigration and Customs Enforcement, et al, Respondents-Appellees.

No. 19-12462

No. 20-12941

United States Court of Appeals, Eleventh Circuit.

September 8, 2021

Andrea Montavon-McKillip, Maney Gordon Zeller, PA, TAMPA, FL, Mark Andrew Prada, Prada Urizar, PLLC, MIAMI, FL, for HASSAN FARAH.

Corey Leigh Farrell, U.S. Department of Justice, Office of Immigration Litigation, WASHINGTON, DC, Virginia Lee Gordon, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, WASHINGTON, DC, Michelle M. Ressler, District Counsel's Office, MIAMI, FL, for Respondent U.S. ATTORNEY GENERAL.

Virginia Lee Gordon, U.S. Department of Justice, Appellate Section, Office of Immigration Litigation, WASHINGTON, DC, Emily M. Smachetti, U.S. Attorney's Office, MIAMI, FL, for Respondents - Appellees.

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and SELF,^* District Judge.

WILLIAM PRYOR, Chief Judge:

Hassan Farah, a criminal alien facing deportation to Somalia, petitions for review of the order of the Board of Immigration Appeals confirming his removability and denying his applications for withholding of removal, protection under the Convention Against Torture, and a refugee inadmissibility waiver. He also appeals the denial of his petition for a writ of habeas corpus. We previously stayed Farah's order of removal. We now dismiss in part and deny in part his petition for review, and we dissolve the stay of removal. In the light of that decision, we also conclude that his habeas petition is moot as to one issue and not ripe as to another. So we vacate and remand with instructions to dismiss his habeas petition.

I. BACKGROUND

According to his account, Hassan Farah was born in Somalia as a member of the Darod tribe. In 1991, when he was a child, men from the Hawiye tribe executed his father, raped his sister, and burned his home. He and his surviving family members fled to Kenya.

In 1996, Farah entered the United States as a refugee. A few years later, he applied for adjustment of status, but the government denied his application because he failed to appear for fingerprinting.

Between 2003 and 2006, Farah was convicted of several crimes in Minnesota. Those crimes included fourth-degree assault and fleeing a police officer in a motor vehicle, for which he was sentenced to a year and a day of imprisonment. Not surprisingly, Farah's crimes came to the attention of federal immigration officials.

The United States started removal proceedings against Farah in late 2006. It charged him as an alien without a valid travel document who had been convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I), (a)(7)(A)(i)(I). Farah's notice to appear did not include a date or a time for his removal hearing, but he received a follow-up notification with that information a week later. At his hearing, Farah conceded that he was removable and did not seek any form of relief, so the immigration judge ordered his removal. The government kept Farah in custody at a detention center but released him after six months pending his removal from the United States.

Following his release, Farah committed numerous other crimes under Minnesota law, including interfering with a 911 call, fifth-degree possession of a controlled substance, and second-degree assault. For the second-degree assault conviction, he was sentenced to 39 months of imprisonment. After his release from prison, federal officials took custody of him again.

In December 2017, federal officials tried to deport Farah and 91 other Somalis back to Somalia on a chartered flight, but the flight never reached its destination. Instead, it spent two days on the ground and in the air before returning to the United States. Farah alleges that he and the other detainees on the flight were physically abused and prevented from using the bathroom for many hours. Several passengers on this flight later brought a class-action suit against the government. See Ibrahim v. Acosta , No. 17-cv-24574, 2018 WL 582520 (S.D. Fla. Jan. 26, 2018).

In May 2018, Farah moved to reopen his removal proceedings because of changed country circumstances, and the immigration judge granted his motion. Farah then moved to terminate the proceedings. He argued that his notice to appear was defective because it did not provide a date and time for his hearing and it erroneously charged him as an arriving alien instead of as a refugee. The immigration judge denied his motion.

The government then filed additional charges against Farah and replaced the allegations in the original charging document with a new list. It alleged that Farah had been convicted in Minnesota of fourth-degree assault, Minn. Stat. § 609.2231, subd. 1 ; interfering with a 911 call, id. § 609.78, subd. 2; second-degree assault involving domestic violence, id. § 609.222, subd. 1 ; and fifth-degree possession of a controlled substance, id. § 152.025, subd. 2(a)(1) (2010) (current version at Minn. Stat. § 152.025, subd. 2(1) ). And it alleged that Farah received sentences of a year and a day of imprisonment for the fourth-degree assault conviction and 39 months of imprisonment for the second-degree assault conviction. It charged Farah as removable for having been convicted of two or more crimes involving moral turpitude not arising out of a single incident, 8 U.S.C. § 1227(a)(2)(A)(ii) ; an aggravated felony, id. § 1227(a)(2)(A)(iii) ; a controlled-substance offense, id. § 1227(a)(2)(B)(i) ; and a crime of domestic violence, id. § 1227(a)(2)(E)(i).

Farah moved to transfer his immigration proceedings from Minnesota to Florida, where he was being held in a detention center. The immigration judge granted his request. Farah then admitted to all the government's factual allegations but contested the four charges. He also applied for asylum, withholding of removal, protection under the Convention Against Torture, and a refugee inadmissibility waiver.

The immigration judge conducted a hearing at which Farah and his wife testified. Farah explained that he was afraid to return to Somalia because he was an "Americanized" Somali. He said that two of his cousins who were deported to Somalia were killed because they spoke English instead of Somali. And he alleged that the Somali government would not protect him because it was secretly working with the Islamic militant group al-Shabaab. He also asserted that his wife worked two jobs to support their children, three of whom had serious medical problems. His wife confirmed the statements about her work schedule and their family.

The immigration judge credited the testimony of Farah and his wife but denied the applications for relief. First, the immigration judge found that Farah was ineligible for asylum because the second-degree assault conviction was an aggravated felony. See 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i). He then found that Farah was still statutorily eligible for withholding of removal and for protection under the Convention Against Torture because the assault convictions were not "particularly serious crime[s]." But the immigration judge nevertheless denied the application for withholding of removal because Farah failed to establish that he had suffered any past harm rising to the level of persecution, he failed to demonstrate a likelihood of future persecution, and he failed to establish a nexus between the anticipated persecution and the proffered grounds of being an "Americanized" Somali and a moderate Muslim. The immigration judge also denied the application for protection under the Convention Against Torture because Farah failed to establish that he would likely be tortured by or at the instigation or acquiescence of a public official acting in an official capacity. Next, the immigration judge determined that he lacked jurisdiction to adjudicate Farah's refugee inadmissibility waiver. In the alternative, he considered the merits of Farah's application and decided that he would not grant the inadmissibility waiver even if he had jurisdiction.

In May 2019, the Board of Immigration Appeals affirmed the immigration judge's decision and dismissed Farah's appeal. First, the Board rejected Farah's argument that the immigration judge lacked jurisdiction over the removal proceedings because of the defective notice to appear. Second, it concluded that Farah was removable for his controlled-substance conviction. It explained that although the Minnesota controlled-substances statute under which Farah was convicted was broader than the federal statute, the Minnesota statute was divisible because the identity of the controlled substance is an element of the offense. And it asserted that Farah's conviction record "clearly reflects that he was convicted of possessing marijuana, which is a federally controlled substance." Third, it concluded that Farah's conviction for second-degree assault was a crime of violence, which made him removable as an aggravated felon. Fourth, the Board decided that even if it had jurisdiction to adjudicate Farah's inadmissibility waiver, it would decline to grant the waiver. Without deciding whether Farah was a violent or dangerous individual, it determined that Farah and his family would suffer exceptional and extremely unusual hardship if he was deported. But based on Farah's many criminal convictions and long history of alcohol abuse and relapses, it nonetheless concluded that Farah did not merit a discretionary waiver. Finally, it concluded that the immigration judge's findings concerning the applications for withholding of removal and for protection under the Convention Against Torture were not clearly erroneous.

Farah petitioned for review of the Board's decision and moved for a stay of removal. We denied his first motion. But after he filed a second motion, a divided panel of this...