Mohamud Hassan v. Jeffrey A. Rosen, Acting Attorney General of United States

St. Louis, MO -Immigration lawyer represented Petitioner seeking to defer his removal to Somalia under the Convention Against Torture ("CAT”).

Hassan, a Somali native, entered the United States in 2001 under a false

passport. Subsequently, the U.S. Department of Homeland Security sought Hassan's

removal under 8 U.S.C. § 1227(a)(1)(A). The IJ ordered Hassan removed to

Somalia, the BIA affirmed the IJ's decision, and we summarily denied Hassan's

petition for review. Hassan v. Holder, 446 F. App'x 822, 823 (8th Cir. 2012) (per

curiam).

Hassan then moved to reopen his case, which the BIA granted, remanding the

case to the IJ. On remand, Hassan asked the IJ to defer his removal under the CAT,

arguing that he was likely to be tortured if removed to Somalia. The IJ denied

Hassan's request, and the BIA affirmed the IJ's decision. Hassan petitions us to

review those decisions.

Where, as here, the BIA issues a separate opinion, rather than summarily

affirming the IJ's decision, we review the BIA's decision as the final agency action.

See Alzawed v. Barr, 970 F.3d 997, 1000 (8th Cir. 2020). To the extent the BIA

adopted the IJ's reasoning, as here, we review the IJ's decision too. See id. We

review legal conclusions de novo and factual findings for substantial evidence. Id.

Substantial-evidence review is highly deferential, and we will unsettle factual

findings only if "any reasonable adjudicator would be compelled to conclude to the

contrary.” Lasu v. Barr, 970 F.3d 960, 964 (8th Cir. 2020).

The CAT prohibits the Government from removing an alien to a country

where he is more likely than not to be tortured. Doe v. Holder, 651 F.3d 824, 828

(8th Cir. 2011). "Torture” is defined as certain acts that cause "severe pain or

suffering, whether physical or mental . . . when such pain or suffering is inflicted by

or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). In considering

the likelihood of torture, the IJ and BIA must consider "the aggregate risk of torture

from all sources.” Abdi Omar v. Barr, 962 F.3d 1061, 1065 (8th Cir. 2020).

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Before the IJ and BIA, Hassan argued that the Somali government would

torture him for belonging to a minority clan and that Al-Shabaab (a terrorist

organization) would torture him for minority-clan membership, being

"westernized,” and having been on a failed repatriation flight. The IJ and BIA

concluded that Hassan was unlikely to be tortured for any of these reasons. They

alternatively found that any torture by Al-Shabaab would not trigger CAT relief

because it would not be done with the Somali government's acquiescence and that

Hassan could avoid any risk of torture from Al-Shabaab by relocating to Mogadishu.

Hassan disputes these conclusions.

First, Hassan challenges the IJ's and BIA's conclusions that he is unlikely to

be tortured by the Somali government or Al-Shabaab for minority-clan membership

because Hassan's clan, the Begadi, is not a minority clan. The record indicates that

the Begadi clan is actually a sub-clan of a "noble” clan with major representation in

the Somali government. Hassan cites only his own testimony (and inapposite

affidavits) to support his contrary argument. Given the lopsided record support for

the IJ's and BIA's conclusions, we cannot say that "any reasonable adjudicator

would be compelled to conclude to the contrary.” Lasu, 970 F.3d at 964. Thus,

substantial evidence supported the IJ's and BIA's conclusions that Hassan was

unlikely to be tortured for minority-clan membership.

Second, Hassan challenges the IJ's and BIA's conclusions that any torture by

Al-Shabaab does not qualify for CAT relief because the Somali government would

not acquiesce in such torture. Our "inquiry into whether a government acquiesces

centers upon the willfulness of a government's non-intervention.” Ramirez-Peyro v.

Holder, 574 F.3d 893, 899 (8th Cir. 2009) (internal quotation marks omitted). "A

government does not acquiesce in the torture of its citizens merely because it is

aware of torture but powerless to stop it, but it does cross the line into acquiescence

when it shows willful blindness toward the torture of citizens by third parties.” Id.

Here, the record does not show that the Somali government has willfully

turned a blind eye to Al-Shabaab's activities. In fact, it shows the opposite. The

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Somali government is actively fighting to control Al-Shabaab, has considerably

reduced Al-Shabaab's military capacity, and has demonstrated a willingness to fight

terrorism. Hassan counters that the Somali government's amnesty program for

certain Al-Shabaab members shows acquiescence. But the Somali government is

using the amnesty program to encourage defections as part of its fight against AlShabaab. Hassan also argues that Al-Shabaab has managed to infiltrate parts of the

Somali government. Yet Hassan does not explain how general infiltration (or the

amnesty program) makes the Somali government likely to acquiesce in his torture.

See Lasu, 970 F.3d at 966 (explaining that someone seeking CAT relief must show

he "would be personally at risk”). Additionally, Hassan's assertion that the Somali

government and Al-Shabaab act in concert to torture people is wholly without record

support.

Hassan's real grievance is that the Somali government has been unable to

control Al-Shabaab. "But the fact that the Somali government has not

successfully ended the threat posed by Al-Shabaab violence is insufficient to

establish that the torture would be with the consent or acquiescence of a government

official.” Moallin v. Barr, 980 F.3d 1207, 1210-11 (8th Cir. 2020) (internal

quotation marks and brackets omitted). In sum, substantial evidence supported the

IJ's and BIA's conclusions that the Somali government was unlikely to acquiesce in

any torture by Al-Shabaab.1

Accordingly, we need not consider the IJ's and BIA's

separate findings that Hassan was unlikely to be tortured by Al-Shabaab and that

Hassan could safely relocate to Mogadishu to avoid torture by Al-Shabaab. See id.

at 1211 (doing the same); Menjivar v. Gonzales, 416 F.3d 918, 922-23 (8th Cir.

2005) (denying CAT relief for failure to show acquiescence).

1

Hassan also suggests that torture by Al-Shabaab triggers CAT relief because,

in parts of Somalia, Al-Shabaab is the de facto government. We decline to consider

this claim because Hassan has offered no supporting legal authority and only cursory

supporting arguments. See, e.g., Heuton v. Ford Motor Co., 930 F.3d 1015, 1023

(8th Cir. 2019) ("[W]e regularly decline to consider cursory or summary arguments

that are unsupported by citations to legal authorities.”); Perez v. Holder, 430 F.

App'x 548, 550 (8th Cir. 2011) (holding a CAT claim had been waived because the

petitioner's "brief ma[de] no meaningful argument in support”).

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Finally, Hassan argues that the IJ and BIA applied the wrong legal standard

by failing to consider his aggregate risk of torture and, instead, denied him relief

solely because no single risk factor demonstrated a likelihood of torture. See

generally Abdi Omar, 962 F.3d at 1065 (holding that the BIA must consider "the

aggregate risk of torture from all sources”). The IJ and BIA did no such thing. To

the contrary, in both their decisions the IJ and BIA expressly indicated that they were

considering "all evidence relevant to the possibility of future torture.” See Moallin,

980 F.3d at 1210; Abdi Omar, 962 F.3d at 1065. And both found that Hassan had

failed to establish a likelihood of torture only after they considered all of Hassan's

alleged risk factors. True, the IJ and BIA considered each of Hassan's alleged risk

factors individually before concluding Hassan had not established a likelihood of

torture. But, as we have explained, "addressing risk factors individually is not

inconsistent with analyzing risk in the aggregate as long as the IJ and BIA ultimately

consider all factors together.” Moallin, 980 F.3d at 1210 (internal quotation marks

and alterations omitted).

Nonetheless, Hassan insists that the IJ and BIA erred by "not expressly

consider[ing] all risk dynamics together” and not "devot[ing] meaningful space in

[their] final order[s] to aggregating risk.” But our precedent does not require a

separate or lengthy aggregation analysis. Rather, as our prior circuit decisions

demonstrate, it is enough that the record indicates the IJ and BIA considered the risk

of torture in the aggregate. See id. at 1210; Abdi Omar, 962 F.3d at 1065. We are

satisfied the IJ and BIA did so here.

For the foregoing reasons, we deny Hassan’s petition.