Jama v. Wilkinson

• Decision Date: 11 March 2021
• Docket Number: No. 19-2250,19-2250
• Citation: 990 F.3d 1109
• Parties: Abdullahi Jamale JAMA, Petitioner v. Monty WILKINSON, Acting Attorney General of the United States, Respondent
• Court: U.S. Court of Appeals — Eighth Circuit

990 F.3d 1109

Abdullahi Jamale JAMA, Petitioner

v.Monty WILKINSON, Acting Attorney General of the United States, Respondent¹

No. 19-2250

United States Court of Appeals, Eighth Circuit.

Submitted: October 23, 2020

Filed: March 11, 2021

Benjamin Richard Casper Sanchez, Catalina-Anne Hotung, Mengying Yao, University of Minnesota, Law School, Minneapolis, MN, Fatma Essam Marouf, Texas A&M University School of Law, Immigrant Rights Clinic, Fort Worth, TX, Allison J. Mitchell, Fredrikson & Byron Professor of Law, University of Minnesota Law School, Minneapolis, MN, for Petitioner.

Abdullahi Jamale Jama, Albert Lea, MN, Pro Se.

Peter B. Berg, U.S. Immigration & Naturalization Service, Bloomington, MN, Andrew C. MacLachlan, Carl H. McIntyre, Jane Tracey Schaffner, Patricia A. Smith, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Respondent.

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.

SHEPHERD, Circuit Judge.

Abdullahi Jamale Jama, a native and citizen of Somalia, petitions for review of an order of the Board of Immigration Appeals (BIA). This order upheld the decision of an immigration judge (IJ) ordering Jama to be deported and removed to Somalia and denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). For the following reasons, we deny the petition for review.

I.

Jama was born in Mogadishu, Somalia, on January 1, 1988. He and his three sisters fled to Kenya in 1991, after the loss of their father and brothers in the Somali civil conflict and the disappearance of their mother. In October 1998, he arrived in the United States and was admitted as a refugee. Jama suffers from physical and mental disabilities. He has limited mobility in his right arm due to a gunshot wound and difficulty walking due to a fall from a third-floor balcony. He further suffers from anxiety, depression, and post-traumatic stress disorder.

Jama began developing a criminal history in 2006. In February 2011, Jama was convicted of felony motor vehicle theft, in violation of Minn. Stat. § 609.52, subdiv. 2, cl. (17). As a result, the Department of Homeland Security (DHS) charged Jama with removability, under 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(G), as a noncitizen² convicted of an aggravated felony. The IJ ordered Jama removed in absentia on February 4, 2013, after he failed to appear at multiple hearings. Jama subsequently sustained additional criminal convictions. Most significantly, he was convicted of second-degree felony assault, in violation of Minn. Stat. § 609.222, subdiv. 1, in April 2013.

In April 2018, Jama, through counsel, moved to rescind the February 2013 in absentia removal order, explaining that he had been in state custody at the time of the proceedings and was unable to attend. Alternatively, he sought to reopen the removal proceedings based on changed country conditions to apply for asylum, withholding of removal, and protection under CAT. The IJ granted the motion to rescind and reopened the proceedings. During these proceedings, DHS charged Jama with an additional ground for removability, under 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1101(a)(43)(F), based on Jama's second-degree felony assault conviction. On July 26, 2018, the IJ held a hearing on the merits of Jama's case. The IJ considered a voluminous amount of documentary evidence, including an affidavit by Dr. Massimiliano Reggi, and heard testimony from Jama and Dr. Abas Mohamed Jama (no relation), an expert in mental health treatment in Somalia. The IJ found both Jama and Dr. Jama to be credible.

In its written decision, the IJ noted that Jama had conceded removability, under § 1227(a)(2)(A)(iii), as a noncitizen convicted of a theft-offense aggravated felony, as defined at § 1101(a)(43)(G), based on his felony motor vehicle theft conviction.³ The IJ then determined that Jama was further removable, under § 1227(a)(2)(A)(iii), as a noncitizen convicted of a crime of violence, as defined at § 1101(a)(43)(F), based on his second-degree felony assault conviction. The IJ found that these aggravated felony offenses subjected Jama to the asylum "particularly serious crime" bar, under § 1158(b)(2)(A)(ii), (B)(i), making him ineligible for relief. The IJ next considered whether Jama's second-degree felony assault conviction was a "particularly serious crime," under § 1231(b)(3)(B)(ii), barring withholding of removal status.⁴ The IJ found that, as a crime against persons, Jama's conviction was within the ambit of particularly serious crimes, requiring the IJ to look at the nature of the conviction and the underlying facts, pursuant to In re N-A-M-, 24 I. & N. Dec. 336, 342 (BIA 2007). The amended criminal complaint underlying his conviction reported, inter alia , that Jama had threated a female victim's life by waiving a knife at her on two occasions. In response, Jama testified about his struggles with mental health and also claimed that he was attempting to help the victim by preventing her from taking Vicodin. The IJ found that struggles with mental health were not to be considered under Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014), and determined that Jama's second-degree felony assault was a particularly serious crime, barring him from withholding of removal.

The IJ then addressed Jama's claim for deferral of removal under CAT. Jama claimed that he would be tortured on account of his mental illness if returned to Somalia. Jama claimed that it was more likely than not that he would be institutionalized, where he would likely be chained. Considering the expert testimony and documentary evidence, the IJ found that while the Somali health system was weak and underfunded, significant progress had been made in the area of mental illness treatment. The IJ specifically found that these advancements negated the likelihood of torture and the government's alleged acquiescence in such torture. Jama also expressed fear of torture by al-Shabaab, but the IJ determined that these incidents of torture were too generalized and occurred at a relatively low rate. The IJ also determined that the government was actively fighting al-Shabaab, rather than acquiescing to al-Shabaab's activities. Therefore, the IJ found that Jama had failed to show that the risk of torture was more likely than not to occur upon Jama's return to Somalia and, accordingly, denied relief.

Jama appealed the decision to the BIA. Specifically, Jama argued that the IJ did not adequately consider the expert witnesses’ testimony, erred in concluding that his convictions rendered him ineligible for asylum and withholding of removal, and ignored evidence that he would face torture in Somalia. The BIA found that while the IJ did not specifically adopt all the expert testimony, the IJ expressed its consideration of that evidence by referring to it throughout the opinion. The BIA next found that the IJ did not err in characterizing Jama's second-degree felony assault conviction as a particularly serious crime in either the asylum or the withholding of removal contexts. First, the BIA determined that the aggravated felony was a categorical match to the generic definition of a crime of violence, as previously determined by this Court in United States v. Lindsey, 827 F.3d 733 (8th Cir. 2016), barring asylum relief. The BIA further affirmed the IJ's determination that the crime was a particularly serious crime for withholding of removal purposes. The BIA noted that Matter of G-G-S- foreclosed the consideration of mental health evidence in its determination but nonetheless concluded that Jama had not submitted sufficient evidence to show that his mental illness mitigated the dangerousness of his actions. Finally, the BIA found that the IJ did not clearly err in determining that Jama would not more likely than not be tortured with the acquiescence of the Somali government upon his return. Accordingly, the BIA affirmed the IJ on all claims and dismissed Jama's appeal.

II.

Jama argues that the BIA erred in finding (1) that his second-degree felony assault conviction is a particularly serious crime that bars statutory withholding of removal; (2) that his conviction also barred withholding of removal under CAT; and (3) that the evidence was insufficient to grant him deferral of removal under CAT. While "we ordinarily review only the BIA's decision, ‘we also review the IJ's decision as part of the final agency action’ if ‘the BIA adopted the findings or the reasoning of the IJ.’ " Etenyi v. Lynch, 799 F.3d 1003, 1006 (8th Cir. 2015) (citation omitted).

A.

Jama first challenges the IJ and the BIA's denial of statutory withholding of removal. Our jurisdiction to review Jama's statutory withholding of removal claim "is limited to constitutional claims and questions of law" because Jama "is removable as a ‘criminal alien.’ " Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam); 8 U.S.C. § 1252(a)(2)(C)-(D). "We review the BIA's legal determinations ‘de novo, according substantial deference to the BIA's interpretation of the statutes and regulations it administers.’ " Sharif v. Barr, 965 F.3d 612, 618-19 (8th Cir. 2020) (citation omitted). A noncitizen is entitled to statutory withholding of removal if "the Attorney general decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). However, a noncitizen is barred from such relief "if the Attorney General decides that the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." Id. § 1231(b)(3)(B)(ii).

Jama first contends that the IJ and the BIA did not consider the elements of his second-degree felony assault conviction before considering the underlying facts in determining whether it was a particularly serious crime. If the...