Ali, Ahmed v. Achim, Deborah

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1194

AHMED ALI,

Petitioner-Appellant,

v.

DEBORAH ACHIM, MICHAEL CHERTOFF,

and ALBERTO GONZALES,

Respondents-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 2772—Amy J. St. Eve, Judge.

____________

Nos. 05-2028 & 05-3009

AHMED ALI,

Petitioner,

v.

ALBERTO GONZALES,

Respondent.

____________

Petitions for Review of Orders of the

Board of Immigration Appeals.

No. A77-607-113.

____________

ARGUED JANUARY 9, 2006—DECIDED NOVEMBER 6, 2006

____________

2 Nos. 05-1194, 05-2028 & 05-3009

Before POSNER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Ahmed Ali petitions for review

from the Board of Immigration Appeals’ (“BIA”) final

decision ordering him removed to his native Somalia. He

also appeals from an order of the United States District

Court for the Northern District of Illinois denying his

habeas corpus petition in which he challenged his prolonged

preremoval detention. The government released Ali from

custody shortly before this case was argued, so the habeas

detention challenge is moot and we review only the decision

of the BIA ordering his removal to Somalia. For the reasons

that follow, we deny the petition for review with respect to

the BIA’s denial of waiver of inadmissibility, asylum, and

withholding of removal. We grant the petition with respect

to the BIA’s denial of deferral of removal under the Conven-

tion Against Torture (“CAT”) and remand that claim for

further proceedings.

I. Background

Ali was born in 1980 in Baidoa, Somalia, to a family

belonging to the minority Rahanweyn clan and the Digil

subclan. Since the collapse of its central government in

1991, Somalia has been afflicted by interclan and intraclan

warfare. U.S. STATE DEP’T COUNTRY REPORTS ON HUMAN

RIGHTS PRACTICES (SOMALIA) 2 (Mar. 2006). The State

Department Country Report specifically highlights deadly

infighting among subfactions of the Rahanweyn Resistance

Army in the southern regions of Bay and Bakool. Ali’s

hometown of Baidoa is located in the Bay region.

According to the uncontradicted testimony of Dr. Said

Samatar, a professor of African History at Rutgers Univer-

sity who gave his expert opinion at Ali’s immigration

hearing, if Ali were returned to the areas of Somalia

controlled by his Rahanweyn clan, “he would face immedi-

ate and present danger” because the region “is in dispute by

Nos. 05-1194, 05-2028 & 05-3009 3

two factions of the Rahanweyn.” By “immediate and present

danger” he meant Ali was likely to be beaten and robbed

and, “in many places,” would also be targeted for death. Dr.

Samatar indicated Ali would likely be singled out to be

beaten, robbed, or killed because he would be perceived as

wealthy after spending time in the United States and

“because of the intricacy of [his] lineage.” Regarding this

latter point, he described persistent feuds between

subfactions of the Rahanweyn based on lineage, and

testified that the infighting among the Rahanweyn “de-

pends on . . . your clan lineage.” Dr. Samatar testified that

Ali would fare no better in another part of Somalia not

controlled by the Rahanweyn. In non-Rahanweyn-controlled

regions, he said, Ali would be targeted by members of the

local dominant clan because of his status as a Rahanweyn.

Shortly after the outbreak of clan-based violence in 1991,

two of Ali’s brothers were killed—one by a stray bullet, the

other by street gangs. In 1994 warlords from the dominant

Hawiye clan who were affiliated with the United Somali

Congress (“USC”) invaded Baidoa. USC soldiers shot at

Ali on two or three occasions, and he describes “constantly

running from the USC military” as a teenager. Hawiye

militiamen subjected him to several beatings. In 1996,

when Ali was sixteen years old, USC soldiers raided the Ali

family’s home in Baidoa and attempted to rape Ali’s older

sister. When she resisted, they killed her. Both the at-

tempted rape and murder happened in front of Ali.

Soon after his sister’s murder, Ali and the rest of his

family fled to a town near the Somali-Kenyan border. There

they again experienced clan-based persecution, this time at

the hands of the Darod clan. The Rahanweyn were easily

identified by the Darods because they spoke a different

dialect. In one incident, a member of the Darod militia

demanded that Ali put his penis into an exhaust pipe; Ali

refused and was beaten. He understood this kind of abuse

4 Nos. 05-1194, 05-2028 & 05-3009

as an attempt to humiliate the members of minority clans

like the Rahanweyn.

In 1998 Ali and his family fled to Kenya, and in 1999 the

United States admitted them as refugees. Ali settled in

Madison, Wisconsin, with one of his sisters; his parents

moved to Minnesota. He worked a variety of jobs in Madi-

son and attended the Madison Area Technical College. Even

after moving to Madison, however, Ali suffered nightmares

about the atrocities he witnessed and experienced in

Somalia, especially his sister’s murder. He says the night-

mares caused him to develop a drinking problem and to

struggle with depression and insomnia.

Ali was involved in a string of altercations in Madison,

starting with an incident in April 2000 where he accepted

a ride in a car from three men and a woman. They drove

him to a park in Madison, beat him up, and hit him with a

beer bottle. His lip was cut and he received medical treat-

ment at a hospital. Two months later Ali crossed paths with

one of the men from the April 2000 incident. They started

to fight, the police responded, and both Ali and the other

man were cited for disorderly conduct.

Then, on June 30, 2000, Ali got into yet another fight with

the same man when he spotted him on State Street in

downtown Madison. Ali gave the following statement to

police officers investigating the incident: “If someone

does something to you, you don’t forget. I knew it was a

mistake and I went after him and I punched him first

and he put me on the ground and that’s when I got the knot

on my head and it was an eye for an eye yesterday.” During

this altercation, Ali produced a box-cutting instrument and

cut the other man about the face, chest, hand, shoulder, and

back, saying, “I’m gonna kill you all.”

Ali was arrested and charged in Dane County Circuit

Court with substantial battery with intent to cause sub-

Nos. 05-1194, 05-2028 & 05-3009 5

stantial bodily harm by using a dangerous weapon in

violation of sections 940.19(3) and 939.63 of the Wisconsin

Statutes. He was released on his own recognizance on

condition that he not return to the vicinity of State Street

where the June 30 fight occurred. Ali violated this condition

by going to State Street—he says he was there to catch a

bus to school—and he was again arrested and released.

During this period of release, Ali was diagnosed with

posttraumatic stress disorder caused by his experiences in

Somalia.

Ali pleaded no contest to the felony charge of substantial

battery with a dangerous weapon and was placed on

probation for seven years and ordered to serve an eleven-

month term of incarceration in the local work release

facility. Ali completed his eleven-month term in June 2002

and was turned over to federal immigration authorities who

initiated removal proceedings against him because of his

felony battery conviction.

Ali conceded removability on account of his conviction, but

sought relief from removal in the form of a waiver of

inadmissibility, asylum, withholding of removal, and

deferral of removal under the CAT. After two-and-a-half

years of administrative proceedings, the BIA ultimately

denied all of Ali’s claims for relief. The BIA applied the

standard set forth in Matter of Jean, 23 I. & N. Dec. 373

(A.G. 2002), to deny Ali a waiver of inadmissibility because

he committed a violent crime and had not shown an

“exceptional and extremely unusual hardship.” Citing Ali’s

conviction for substantial battery with a dangerous weapon,

the BIA also found him ineligible for asylum and withhold-

ing of removal because he had committed a “particularly

serious crime.” Finally, the BIA refused to grant Ali

deferral of removal under the CAT because it concluded he

had not shown he would more likely than not suffer torture

if returned to Somalia. Ali petitioned this court for review.

6 Nos. 05-1194, 05-2028 & 05-3009

II. Discussion

A. Jurisdiction to review discretionary decisions

The government first challenges our jurisdiction to

consider the BIA’s discretionary decisions denying waiver

of inadmissibility and finding Ali ineligible for asylum

and withholding of removal. Section 1252(a)(2)(B) generally

deprives courts of jurisdiction to review discretionary

denials of immigration relief, and § 1252(a)(2)(C) strips

courts of jurisdiction to review final removal orders

against aliens who are removable by reason of having

committed certain crimes. 8 U.S.C. § 1252(a)(2)(B), (C). But

there is an exception for constitutional claims and questions

of law: the statute provides that neither subparagraph (B)

or (C) of § 1252(a)(2) precludes judicial “review of constitu-

tional claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals.” 8 U.S.C.

§ 1252(a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569 (7th

Cir. 2006).

So while we lack jurisdiction to review the Attorney

General’s exercise of discretion to grant or deny relief to

an alien (or, more commonly, the discretionary decision of

the BIA acting on the Attorney General’s behalf ), we retain

jurisdiction to examine whether the correct legal standard

was applied to the alien’s claim for relief. See Jean v.

Gonzales, 452 F.3d 392, 396 (5th Cir. 2006). Accordingly, we

proceed to Ali’s argument that the BIA evaluated his claims

using improper legal standards.

B. Matter of Jean standard

An alien who commits a “crime of moral turpitude”

generally may not be admitted to the United States.1

1

Ali concedes that his conviction for substantial battery with a

dangerous weapon was a crime of moral turpitude.

Nos. 05-1194, 05-2028 & 05-3009 7

8 U.S.C. § 1182(a)(2)(A)(i)(I). But Congress has given the

Attorney General and the Secretary of Homeland Secur-

ity permissive discretion to waive a refugee’s inadmissi-

bility “for humanitarian purposes, to assure family unity, or

when it is otherwise in the public interest.” 8 U.S.C.

§ 1159(c). In Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002),

the Attorney General declined to waive inadmissibility for

a Haitian refugee who pleaded guilty to second-degree

manslaughter after beating and shaking a nineteen-month-

old child to death. Matter of Jean, 23 I. & N. Dec. at 374-75.

The Attorney General articulated a heightened standard for

waiving the inadmissibility of refugees who have been

convicted of violent or dangerous crimes. Under the Matter

of Jean standard, aliens convicted of “violent or dangerous”

criminal acts will not be allowed to adjust their status

under § 1159(c) “except in extraordinary circumstances,

such as those involving national security or foreign policy

considerations, or cases in which an alien clearly demon-

strates that the denial of status adjustment would result in

exceptional and extremely unusual hardship.” Matter of

Jean, 23 I. & N. Dec. at 383.

Ali argues that the heightened standard established in

Matter of Jean for waiving the inadmissibility of refugees

who commit violent crimes is inconsistent with and unau-

thorized by § 1159(c). He contends the BIA should have

evaluated his request for a waiver of inadmissibility by

looking at the totality of the circumstances in his case,

including his family’s experiences in Somalia, his

posttraumatic stress disorder, his victim’s previous attack

against him, and his ties to family in the United States. He

asserts that § 1159(c) spells out a “three-part test” for

inadmissibility waivers that the BIA was required to follow.

We think Ali reads too much into the statute and over-

states the scope of the Matter of Jean standard. First,

§ 1159(c) does not contain a “three-part test,” nor does it

direct the Attorney General to conduct a “totality of the

8 Nos. 05-1194, 05-2028 & 05-3009

circumstances” analysis when deciding whether to grant an

inadmissibility waiver. The statute says the Attorney

General or Secretary of Homeland Security “may waive” a

refugee’s inadmissibility for “humanitarian purposes, to

assure family unity, or when it is otherwise in the public

interest.” 8 U.S.C. § 1159(c) (emphasis added). Nowhere

does the statute require the Attorney General to waive

any refugee’s inadmissibility; the language is completely

permissive, giving the Attorney General the discretion to

decide on a case-by-case basis whether to grant relief

for any of the three listed reasons.

After we heard oral argument in this case, two other

federal courts of appeals considered similar challenges to

the Matter of Jean standard and rejected them in published

opinions. In the first of these decisions, Rivas-Gomez v.

Gonzales, 441 F.3d 1072 (9th Cir. 2006), the Ninth Circuit

observed that the Attorney General possesses “broad

discretion to grant or deny waivers and may establish

general standards governing the exercise of such discretion

‘as long as these standards are rationally related to the

statutory scheme.’ ” Id. at 1078 (quoting Ayala-Chavez v.

INS, 944 F.2d 638, 641 (9th Cir. 1991)). The court approved

Matter of Jean’s heightened waiver standard for refugees

who commit violent crimes because it found the standard

was rationally related to the “national immigration policy

of not admitting aliens who would be a danger to society.”

Rivas-Gomez, 441 F.3d at 1078.

The Fifth Circuit reached the same conclusion in Jean v.

Gonzales, 452 F.3d at 396-98. This was petitioner Jean’s

appeal from the Attorney General’s decision in Matter

of Jean. Jean argued, as Ali does here, that the Attorney

General’s heightened standard for refugees who commit

violent crimes was not authorized by 8 U.S.C. § 1159(c). The

Fifth Circuit disagreed because “the Attorney General did

not add a class of aliens to those who are statutorily

inadmissible for waiver, nor did he instruct the BIA

Nos. 05-1194, 05-2028 & 05-3009 9

to ignore statutory considerations of family unity, humani-

tarian concerns, and public interest.” Jean, 452 F.3d at

397 (citing Togbah v. Ashcroft, 104 Fed. Appx. 788, 794 (3d

Cir. 2004) (unpublished)). Because Matter of Jean’s height-

ened waiver standard for violent criminal refugees was

“rational and connected to the statutory scheme,” the Fifth

Circuit held the Attorney General permissibly exercised the

broad discretion conferred upon him by § 1159(c). Id.

We agree with our sister circuits that the Attorney

General did not exceed his statutory authority when he

articulated the heightened waiver standard in Matter of

Jean. The Matter of Jean standard is not like the regulation

successfully challenged in Succar v. Ashcroft, 394 F.3d 8

(1st Cir. 2005), a case on which Ali relies. Succar held that

where 8 U.S.C. § 1255(a) lists categories of aliens who may

apply to the Attorney General for a discretionary adjust-

ment of immigration status, the Attorney General—in the

exercise of that discretion—may not promulgate a regula-

tion that effectively amends the statute by completely

barring subcategories of aliens from applying for adjust-

ment. Succar, 394 F.3d at 21. The court found such a

regulation would contradict the statute because § 1255(a)

did not give the Attorney General the discretion to decide

who could apply for adjustment, it only gave him the

discretion to decide who should be granted adjustment. Id.

at 28.

But in Matter of Jean the Attorney General did not

categorically exclude violent or dangerous criminal refugees

from applying for an inadmissibility waiver, nor from being

granted such a waiver. Matter of Jean simply says the

Attorney General will, in the exercise of his statutorily

conferred discretion, require a more compelling showing of

hardship from refugees who make themselves inadmissible

by committing violent crimes. Jean, 23 I. & N. Dec. at 383.

Succar itself spells out this distinction: “Congress’s eligibil-

ity determinations do not limit the considerations that may

10 Nos. 05-1194, 05-2028 & 05-3009

guide the Attorney General in exercising his discretion to

determine who, among those eligible, will be accorded

grace.” Succar, 394 F.3d at 29 n.28 (quotation marks and

citations omitted). See also Jean, 452 F.3d at 397 (“[T]he

Attorney General did not add a class of aliens to those who

are statutorily inadmissible for waiver . . . . He left open the

possibility that even the most violent and dangerous

immigrants could be granted relief in an appropriate

case.”). The Attorney General acted within the discretion

conferred by § 1159(c) when he established the heightened

waiver standard for violent or dangerous criminal refugees

in Matter of Jean.

C. A “particularly serious crime”

Ali next argues that the BIA erred when it found he

committed a “particularly serious crime,” a finding that

made him ineligible for asylum and withholding of removal.

The immigration statutes give the Attorney General—by

extension, the BIA—discretion to determine whether aliens

are eligible to receive asylum and withholding of removal.

8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3) (B)(ii).2 As we

have noted, courts generally lack jurisdiction to review the

Attorney General’s discretionary immigration decisions, but

§ 1252(a)(2)(D) authorizes us to address the questions of

law raised by Ali’s challenge to the BIA’s finding that he

committed a particularly serious crime.

Ali’s appeal presents questions of law because he chal-

lenges the BIA’s interpretation of the term “particularly

serious crime” in the asylum and withholding statutes. He

2

Withholding of removal is a mandatory form of relief to which

eligible applicants are entitled, 8 U.S.C. § 1231(b)(3)(A), but

the Attorney General has discretion to determine who is eligible.

8 U.S.C. § 1231(b)(3)(B).

Nos. 05-1194, 05-2028 & 05-3009 11

argues that the plain language of those statutes should

have precluded the BIA from holding that his conviction for

substantial battery with a dangerous weapon constituted a

“particularly serious crime.” Where, as here, we are asked

to review “ ‘an agency’s construction of the statute which it

administers,’ ” we apply “the principles of deference de-

scribed in Chevron U.S.A. v. Natural Resources, Defense

Council, Inc., 467 U.S. 837, 842 (1984).” INS v. Aguirre-

Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, 467

U.S. at 842).

If the statute at issue speaks clearly and directly to the

question at hand, “that is the end of the matter; for the

court, as well as the agency, must give effect to the unam-

biguously expressed intent of Congress.” Chevron, 467 U.S.

at 842-43. But when “the statute is silent or ambiguous

with respect to the specific issue, the question for the court

is whether the agency’s answer is based on a permissible

construction of the statute.” Id. at 843. An agency’s inter-

pretation of an ambiguous statute may be permissible even

if it differs from the construction the reviewing court would

have given the statute “if the question initially had arisen

in a judicial proceeding.” Id. at 843 n.11. We give “consider-

able weight . . . to an executive department’s construction

of a statutory scheme it is entrusted to administer,” id. at

844, and deference to the executive “is especially appropri-

ate in the immigration context where officials ‘exercise

especially sensitive political functions that implicate

questions of foreign relations.’ ” Aguirre-Aguirre, 526 U.S.

at 425 (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).

Ali urges us to hold that the asylum and withholding

statutes are unambiguous, that his crime of conviction

is not a “particularly serious crime” within the meaning

of §§ 1158(b)(2) and 1231(b)(3), and that the BIA’s interpre-

tation of these statutes is not entitled to judicial deference.

The asylum statute says that an alien is ineligible for

asylum “if the Attorney General determines that . . . (ii) the

12 Nos. 05-1194, 05-2028 & 05-3009

alien, having been convicted by a final judgment of a

particularly serious crime, constitutes a danger to the

community of the United States.” 8 U.S.C.

§ 1158(b)(2)(A)(ii). Neither § 1158 nor any other section of

the immigration code offers a definition of the statutory

phrase “particularly serious crime,” but § 1158 does list two

categories of crimes that are per se “particularly serious”:

(1) “aggravated felon[ies]” and (2) other crimes that the

Attorney General “designate[s] by regulation.” 8 U.S.C.

§§ 1158(b)(2)(B). Ali would have us read subparagraph

(b)(2)(B) to mean that only aggravated felonies and other

crimes specifically designated by regulation may be con-

sidered “particularly serious.”3

We do not think § 1158 so cabins the Attorney General’s

discretion to determine whether an alien has been convicted

of a “particularly serious crime” for purposes of ineligibility

for asylum. Congress named two categories of per se

“particularly serious” crimes, but it did not say these were

the only categories of crimes that would bring an alien’s

case within the statutory bar. Nowhere does § 1158 purport

to prohibit the Attorney General from determining in a

given case that an alien’s nonaggravated felony is “particu-

larly serious” unless he had the foresight to explicitly

itemize that particular crime by regulation. The statutory

language simply is not susceptible to such a limited inter-

pretation. We therefore reject Ali’s argument that the BIA

misinterpreted an unambiguous statute. Alternatively, to

the extent there is any ambiguity, the BIA’s interpretation

is entitled to considerable deference. Chevron, 467 U.S.

at 844.

3

The parties agree that Ali’s crime of conviction was neither an

aggravated felony (as that term is defined for immigration

purposes) nor a crime the Attorney General has by regulation

designated as “particularly serious.”

Nos. 05-1194, 05-2028 & 05-3009 13

In this regard, the BIA’s construction of § 1158(b)(2) is

entirely permissible, particularly considering the vast array

of crimes defined by each of the fifty states’ criminal codes.

An interpretation that requires the Attorney General and

his agents to sift through each state’s code and prospec-

tively identify by regulation every single crime that would

qualify as “particularly serious” would impose an onerous

burden. Nothing in the statute’s text suggests a require-

ment that the Attorney General must engage in such an

anticipatory task. Section 1158(b)(2) does not prohibit the

Attorney General from determining on a case-by-case basis

that an asylum applicant has committed a “particularly

serious” crime, even though the crime is neither an aggra-

vated felony nor a crime expressly designated by regulation

as “particularly serious.”

We reach the same conclusion with respect to the with-

holding of removal statute, 8 U.S.C. § 1231(b)(3)(B). That

statute says an alien is ineligible for withholding of removal

if “the Attorney General decides that . . . (ii) the alien,

having been convicted by a final judgment of a particularly

serious crime is a danger to the community of the United

States.” Subparagraph (b)(3)(B) adds the following about

the “particularly serious crime” exclusion:

For purposes of clause (ii), an alien who has been

convicted of an aggravated felony (or felonies) for which

the alien has been sentenced to an aggregate term of

imprisonment of at least 5 years shall be considered to

have committed a particularly serious crime. The

previous sentence shall not preclude the Attorney

General from determining that, notwithstanding the

length of sentence imposed, an alien has been convicted

of a particularly serious crime.

8 U.S.C. § 1231(b)(3)(B).

Ali reads this language to mean that only aggravated

felonies count as particularly serious crimes for purposes of

14 Nos. 05-1194, 05-2028 & 05-3009

withholding of removal ineligibility. He notes that the

statute makes aggravated felonies resulting in prison terms

of at least five years per se “particularly serious.” The next

sentence gives the Attorney General discretion to decide

that a crime is particularly serious even if the alien was not

sentenced to at least five years in prison. But, Ali observes,

that same sentence says nothing about giving the Attorney

General discretion to call a crime particularly serious when

it is not an “aggravated felony.” Ali invokes the canon of

construction that says the expression of one thing is the

exclusion of the other. See, e.g., Dersch Energies, Inc. v.

Shell Oil Co., 314 F.3d 846, 861 n.15 (expressio unius est

exclusio alterius). He reasons that because the statute

expressly grants the Attorney General discretion to find

aggravated felonies “particularly serious” regardless of the

length of an alien’s sentence but does not explicitly provide

any similar discretion for crimes that are not aggravated

felonies, § 1231(b)(3)(B) precludes the Attorney General

from finding any crimes “particularly serious” other than

aggravated felonies.

The problem with this argument is that § 1231 does not

state a general rule that only aggravated felonies can be

considered “particularly serious” crimes. The designation of

aggravated felonies producing sentences of at least five

years’ imprisonment as per se “particularly serious” creates

no presumption that the Attorney General may not exercise

discretion on a case-by-case basis to decide that other

nonaggravated-felony crimes are also “particularly serious.”

Congress specified that the Attorney General may extend

the “particularly serious” designation to aggravated felonies

producing prison terms of less than five years. But the

absence of a similar provision for nonaggravated-felony

crimes does not imply that only aggravated felonies can

qualify as “particularly serious” crimes. Again, to the extent

that § 1231(b)(3)(B) is ambiguous on this point, the BIA’s

reasonable interpretation is entitled to deference. Chevron,

467 U.S. at 844.

Nos. 05-1194, 05-2028 & 05-3009 15

The BIA acted in accordance with §§ 1158 and 1231 and

did not apply an incorrect legal standard when it deter-

mined that Ali committed a “particularly serious” crime

for purposes of ineligibility for asylum and withholding

of removal. We lack jurisdiction to review the BIA’s exercise

of discretion when the agency operates under the proper

legal standard. 8 U.S.C. § 1252(a)(2)(B) and (C). We there-

fore do not address Ali’s argument that the BIA misapplied

its own precedent—Matter of Frentescu, 18 I. & N. Dec. 244

(1982)4—in its analysis of Ali’s offense of conviction.

Reviewing the BIA’s determination in this regard would

require an improper assertion of jurisdiction over the BIA’s

exercise of its statutorily conferred discretion. But see Afridi

v. Gonzales, 442 F.3d 1212, 1218-20 (9th Cir. 2006) (assert-

ing jurisdiction then granting petition for review and

remanding alien’s withholding of removal claim because

BIA did not fully engage the Frentescu factors when

deciding alien’s crime was “particularly serious”).

D. International law

Ali spends two sentences in his opening brief arguing that

the BIA’s decision violates international standards

for denying relief to criminal refugees, but his cursory

argument provides no basis for granting his petition. The

only authority he cites is the Office of the High Commis-

4

“While there are crimes which, on their face, are ‘particularly

serious crimes’ or clearly are not ‘particularly serious crimes,’ the

record in most proceedings will have to be analyzed on a case-by-

case basis. In judging the seriousness of a crime, we look to

such factors as the nature of the conviction, the circumstances and

underlying facts of the conviction, the type of sentence imposed,

and, most importantly, whether the type and circumstances of the

crime indicate that the alien will be a danger to the community.”

Matter of Frentescu, 18 I. & N. Dec. 244, 247 (1982).

16 Nos. 05-1194, 05-2028 & 05-3009

sioner for Human Refugees, Handbook on Procedures and

Criteria for Determining Refugee Status, ¶ 154, which “is

not binding on the Attorney General, the BIA, or United

States courts.” Aguirre-Aguirre, 526 U.S. at 427.

E. Deferral of removal under the Convention

Against Torture

Finally, we address Ali’s contention that the BIA should

have granted him deferral of removal under the CAT,

implemented at 8 C.F.R. §§ 1208.16-18.5 The BIA denied Ali

relief under the CAT because it determined that he had not

shown he would more likely than not face torture if re-

moved to Somalia. We review the BIA’s factual findings for

substantial evidence; this means we will reverse the BIA’s

decision only if the evidence in the record compels a

contrary conclusion. Jun Ying Wang v. Gonzales, 445 F.3d

993, 997 (7th Cir. 2006).

Ali is entitled to deferral of removal—the relief is manda-

tory, not discretionary—if he can prove that it is more likely

than not he would be tortured if removed to Somalia. 8

C.F.R. § 1208.16(c)(2) and (4). The BIA was required to

consider “all evidence relevant to the possibility of future

torture . . . including, but not limited to” evidence that Ali

suffered past torture, evidence that he could relocate to a

5

Deferral of removal under the CAT is a limited form of protec-

tion available only to aliens who are barred from receiving

withholding of removal. 8 C.F.R. § 1208.17(a). Deferral of removal

does not confer permanent immigration status on an alien, and an

alien who has been granted this form of relief may be removed to

another country where there is no likelihood of torture. 8 C.F.R.

§ 1208.17(b)(2). Also, deferral of removal is subject to termination

if an immigration judge determines that there is no longer a

likelihood of torture in the country to which removal has been

deferred. 8 C.F.R. § 1208.17(b)(1).

Nos. 05-1194, 05-2028 & 05-3009 17

part of Somalia where he is not likely to be tortured,

evidence of “gross, flagrant or mass violations of human

rights” in Somalia, and other relevant information about

Somalia’s country conditions. 8 C.F.R. § 1208.16(c)(3). For

purposes of the CAT, torture has the following definition:

[A]ny act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person

for such purposes as obtaining from him or her or a

third person information or a confession, punishing him

or her for an act he or she or a third person has commit-

ted or is suspected of having committed, or intimidating

or coercing him or her or a third person, or for any

reason based on discrimination of any kind, 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). Mental pain or suffering consti-

tutes torture if it results from, among other things, the

“intentional infliction or threatened infliction of severe

physical pain or suffering,” the “threat of imminent death,”

and the “threat that another person will imminently be

subjected to death, severe physical pain or suffering.” 8

C.F.R. § 1208.18(a)(4). The requirement that torture be

inflicted by or with the acquiescence of a public official

is met if “prior to the activity constituting torture,” a public

official is aware of the activity and then “breach[es] his or

her legal responsibility to intervene to prevent

such activity.” 8 C.F.R. § 1208.18(a)(7).

The BIA acknowledged that Ali “would probably face

[clan-based] harm and possibly torture if returned to live

for prolonged periods in certain areas” of Somalia that are

not controlled by the Rahanweyn. But the Board con-

cluded the only risks to which Ali would be exposed in

the Rahanweyn-controlled areas would be based on his

perceived wealth for having lived in the United States or

18 Nos. 05-1194, 05-2028 & 05-3009

because of the random violence and looting that plagues the

Bay and Bakool regions. In the BIA’s view, violence would

not be inflicted for the purpose of causing severe mental or

physical pain or suffering, and would not be motivated by

the desire to obtain from Ali a confession or information, to

punish or coerce him, or to discriminate against him. See 8

C.F.R. § 1208.18(a)(1) (requiring “torture” to be attributable

to these motives). Accordingly, the BIA found Ali had not

shown he was more likely than not to face torture if re-

moved to Somalia and denied relief under the CAT.

The BIA reached these conclusions by ignoring key

evidence, overlooking Dr. Samatar’s testimony that Ali

would be targeted for violence in the Rahanweyn-controlled

areas because of his particular lineage within his clan, not

just for being perceived as wealthy for having lived in the

United States. The BIA failed to take into account

Dr. Samatar’s testimony that the Rahanweyn infighting

“depends on . . . your clan lineage” and that violence and

torture are perpetrated with the intent to punish clan

members.

We also find remarkable the BIA’s overall conclusion that

Ali did “not present[ ] evidence of past harm which

is necessarily linked to his clan membership and which

bolsters the belief he will be tortured in the future.” The

BIA reached this conclusion only by omitting any men-

tion of the attempted rape and murder of Ali’s sister and

the violence Ali endured personally. Soldiers from the

invading Hawiye clan attempted to rape Ali’s sister, then

killed her when she resisted. This atrocity took place in the

context of the interclan warfare between the dominant

Hawiye and the Rayanweyn, and it was carried out in the

Ali family home with Ali—who was then sixteen years

old—looking on. Ali himself was shot at and beaten by

militiamen affiliated with the Hawiye. The BIA also made

no mention of the clan-based violence Ali suffered at the

Nos. 05-1194, 05-2028 & 05-3009 19

hands of the Darod militia on the Somali-Kenyan border

after fleeing from the Hawiye. The record reflects that

the violence Ali witnessed and experienced had a pro-

found psychological effect on him, precipitating post-

traumatic stress disorder.

By focusing narrowly on the deaths of Ali’s two broth-

ers—both of which could plausibly be attributed to the

generally unsafe, lawless conditions in Somalia—the BIA

sidestepped critical evidence it was required to consider.

8 C.F.R. § 1208.16(c)(3). When all the relevant evidence

is properly considered, the record compels the conclusion

that Ali would more likely than not face torture if re-

moved to Somalia.6

Because the BIA found Ali was not likely to face torture

in Somalia, it left open the question whether he would face

torture “at the instigation of or with the consent or acquies-

cence of a public official or other person acting in an official

capacity.” 8 C.F.R. § 1208.18(a)(1). The parties have not

fully briefed this issue on appeal—each only briefly men-

6

Ali’s case is not like Pelinkovic v. Ashcroft, 366 F.3d 532 (7th

Cir. 2004), a case on which the government relies. Pelinkovic

upheld the denial of a claim for relief under the CAT because

the petitioners failed “to make a particularized showing that

any of them would more likely than not be subject to torture upon

their return, as differentiated from the general risk shared by all

ethnic Albanians in Montenegro.” We explained it was impossible

for the petitioners to show a likelihood of torture because “the

events they feared were prospective—possible civil war with

Serbia, possibly resulting in the same ethnic cleansing directed at

ethnic Albanians as in other Milosevic campaigns. Thankfully,

those possibilities did not come to pass.” Id. at 542. Here, Ali’s

fears are not premised on merely prospective possibilities; they

are rooted in the reality of Somalian interclan and intraclan

warfare that devastated his own family and continues to plague

much of his homeland.

20 Nos. 05-1194, 05-2028 & 05-3009

tioning the matter—so the prudent course is to remand the

case for the BIA to consider whether Ali established the

official capacity element of his CAT claim.

III. Conclusion

Ali’s petition for review is DENIED with respect to his

claims for waiver of inadmissibility, asylum, and withhold-

ing of removal. His petition is GRANTED as to his claim for

deferral of removal under the CAT, and that claim is

REMANDED to the BIA for further proceedings consistent

with this opinion.

AFFIRMED IN PART AND REVERSED AND

REMANDED IN PART.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-6-06