Ali v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEQA AHMAD HAJI ALI; MADAAR  No. 03-71731
A. OSMAN; ISACK A. OSMAN, Agency Nos.
Petitioners,
v.  A75-261-421
A75-261-420
JOHN ASHCROFT, Attorney General, A75-261-419
Respondent.
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
October 7, 2004—Seattle, Washington
Filed January 19, 2005
Before: Dorothy W. Nelson, Sidney R. Thomas,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge D.W. Nelson
*The Honorable David A. Ezra, Chief Judge for the United States Dis-
trict Court, District of Hawaii, sitting by designation.
797
800 ALI v. ASHCROFT
COUNSEL
Richard L. Baum (on the briefs) and Christopher L. Garrett
(argued), Perkins Coie, LLP, Portland, Oregon, for the peti-
tioners.
ALI v. ASHCROFT 801
Frances McLaughlin (argued) and Blair T. O’Connor (on the
brief), United States Department of Justice, Civil Division,
Office of Immigration Litigation, Washington, D.C., for the
respondent.
OPINION
D.W. NELSON, Circuit Judge:
Deqa Ahmad Haji Ali petitions on behalf of herself and her
two sons, Madaar Osman and Isack Osman, for review of the
Board of Immigration Appeals’ (“BIA”) denial of their
requests for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).1 Ali, Madaar,
and Isack are all natives of Somalia. The Immigration Judge
(“IJ”) dismissed Ali’s asylum claim based on findings that:
(1) she had failed to establish that her past persecution was on
account of an enumerated ground; and (2) that Ali and her
sons had firmly resettled in Ethiopia prior to entering the
United States. The IJ granted Ali and her two sons voluntary
departure to Somalia in lieu of removal. The BIA affirmed the
decision of the IJ without opinion. We find Ali statutorily eli-
gible for asylum and remand for an exercise of discretion on
the asylum claim and for further consideration of the with-
holding of removal claims.
1
Madaar’s and Isack’s asylum applications are derivative of their moth-
er’s application because they were both under age 21 at the time of appli-
cation. The sons, however, have applied for withholding of removal and
relief under the CAT in their own right because such relief may not be
derivative. Compare 8 U.S.C. § 1158(b)(3) (allowing derivative asylum
for spouses and children as defined in 8 U.S.C. § 1101(b)(1)(A), (B), (C),
(D), or (E)), and 8 C.F.R. § 1208.21, with 8 U.S.C. § 1231(b)(3) (failing
to provide derivative withholding of removal).
802 ALI v. ASHCROFT
I. Factual and Procedural History
A. Ali’s Experiences in Somalia
Ali, the lead petitioner, was born in Berbera, a northern
Somali city, and is a member of the Muuse Diriiye clan,
which is referred to pejoratively as the Midgan clan. Muuse
Diriiye clan members are bound in servitude to noble Somali
families and are considered low-caste and subhuman by other
Somali clans. As a result, higher-status clans will not marry
members of the Muuse Diriiye clan. See 1996 Bureau of
Democracy, Human Rights and Labor, U.S. Dep’t. of State,
Somalia: Profile of Asylum and Country Conditions 13,
reprinted in Administrative Record (AR) at 637 (hereinafter
State Dep’t Report). Traditionally, the Muuse Diriiye had no
rights to engage in political activities or undertake political
work, but under the presidency of Mohammed Siad Barre
they were allowed to assume political positions for the first
time. See id. at 13-14, reprinted in AR at 637-38. This open-
ing of civil service positions to a non-noble clan angered
higher-status clans, including members of the United Somali
Congress (“USC”) militia that ousted Siad Barre in a civil war
in 1991. Id. at 14, reprinted in AR at 638. The civil war
between Siad Barre’s forces and the USC spread to Mogadi-
shu in January 1991 and Siad Barre fled Somalia, causing a
period of clan warfare that has raged for over 13 years.
At the time of her flight from Somalia, Ali lived with her
husband, Ahmed Omar Osman, in the capital city of Mogadi-
shu. Osman, also a member of the Muuse Diriiye clan,
worked for the Ministry of Education under the administration
of President Mohammed Siad Barre. In early January 1991,
six armed members of the USC militia broke into Ali’s home
around sunrise. Ali recognized one of the intruders as a neigh-
bor who knew that Ali’s husband worked for Siad Barre. Ali
was brutally gang-raped by three of these armed men while
her husband and brother-in-law were bound and forced to
watch. While they were raping Ali, the persecutors called Ali
ALI v. ASHCROFT 803
and her family “Midgans traitor” [sic] and told her she was
“getting what [she] deserved” because she and her family
were Muuse Diriiye, who were not supposed to advance in
society, while the militia, members of higher-class clans,
“were supposed to have everything.” One of the men held Ali
down with his shoes while raping her, which Ali testified was
a sign of disrespect for her low-caste clan status. When Ali’s
brother-in-law cursed and spit on the militia for raping her, he
was shot dead in front of her.
The militia also looted Ali’s home, taking everything of
value and destroying her household decorations. After raping
Ali, the militia took her husband with them and said “let Siad
Barre save you now . . . We came back to our country, you
Midgan you have everything, but now we are in power and
Siad Barre is gone.” Ali’s two sons, age eight and nine at the
time, were in another room of the family home during these
brutal rapes and murder. Afterwards, Ali and her sons fled to
a neighbor’s home.
Osman was released from detention by the militia after two
weeks but came home with broken ribs and wrists. Upon his
release, Ali, Osman, and their sons immediately fled to Ethio-
pia. Once in Ethiopia, Ali testified that Osman divorced her
as a result of the rapes and the fact that afterwards he no lon-
ger saw her as a wife.
Ali’s life in Ethiopia remained difficult. Although Ethiopia
ran refugee camps for Somalis, Ali feared her family would
be killed if they sought refuge in those camps either because
of their clan membership or her husband’s political affiliation
with Siad Barre. The refugee camps near Ali’s family were
controlled by the Issaq clan, which engaged in warfare with
Ali’s clan and helped overthrow Siad Barre’s administration.
Her fear of death or persecution in the refugee camps also
kept Ali from applying for any type of legal status in Ethiopia,
which she feared would trigger being forcibly sent to a camp.
804 ALI v. ASHCROFT
Ali testified that, although certain Somali refugees in Ethio-
pia could obtain permanent residence in Ethiopia because
their clans were higher caste and had an established presence
in Ethiopia, her clan, the Muuse Diriiye, could not. Ali also
testified that the Ethiopian government never offered her any
assistance or legal status. During the five-plus years Ali and
her sons spent in Ethiopia as undocumented aliens, Ali testi-
fied that they “were trying to get out from there anytime, as
soon as possible . . . [because] we didn’t have any legal status,
we couldn’t work there, we couldn’t go to school in there.
And we couldn’t plan—we didn’t have a home in there so it
was transition.”
Despite her lack of work authorization, Ali was able to find
under-the-table work as a “housemaid.” Her first two employ-
ers, however, exploited Ali’s lack of status by refusing to pay
for her contracted services and threatening to report her to
Ethiopian authorities when she protested. Eventually Ali
found work as a maid for a family that paid her and worked
for this family for nearly four years. However, during this
time, Ali often discussed her desire to leave Ethiopia with her
employer, created strategies to depart, and saved money for
this purpose. Ali never moved freely about her city of resi-
dence in Ethiopia because she “was afraid that . . . someday
the villa or the police of the government might arrest me and
send me to the refugee camp.”
When her employer decided to move to France, Ali and her
sons arranged to come to the United States because they could
not get the documents necessary to enter France with her
employer’s family. Although Ali’s sons had lived only with
their father and Ali’s former husband, Osman, in Ethiopia, Ali
and Osman agreed that the sons should accompany Ali to the
United States. Osman believed his sons “live[d] a prison life”
in Ethiopia and told Ali that he “support[ed] [Ali] to take
them wherever they can get safe, they can be safe.” After Ali
and her sons left Ethiopia, Ali testified that Osman was
arrested and jailed “[b]ecause he didn’t have documents,” but
ALI v. ASHCROFT 805
was later released because an Ethiopian woman, whom he
subsequently married, intervened on his behalf.
Ali and her sons entered the United States without inspec-
tion on November 21, 1996. On January 22, 1997, Ali applied
for asylum. Her asylum application was denied and the Immi-
gration and Naturalization Service (“INS”) issued Ali a
Notice to Appear on October 1, 1998.
B. The Asylum Hearing
After two merits hearings, the IJ issued an oral decision on
August 2, 2000 denying Ali’s petitions for asylum, withhold-
ing of removal, and relief under the CAT. Despite his positive
credibility determination of Ali’s testimony, the IJ found that
Ali failed to establish asylum eligibility because she failed to
establish past persecution on account of a protected basis.
Instead, the IJ found that the sole motivation for the murder,
detention, and robbery that Ali and her family suffered “was
shown to clearly be simply to steal, and in the case of the rape
to take gratification from the helpless condition of the respon-
dent.” In the alternative, the IJ denied asylum for Ali and her
sons based on a finding that they were firmly resettled in Ethi-
opia before entering the United States because Ali “chose not
to live in refugee camps” and “was never bothered by the
authorities.” The IJ also denied withholding of removal and
relief under the CAT for Ali and her sons. The IJ did grant Ali
and her sons’ request for voluntary departure in lieu of
removal, designating Somalia as the country of removal.
On September 1, 2000, Ali timely appealed these denials to
the BIA on behalf of herself and her two sons. The BIA
affirmed the IJ without opinion on March 27, 2003. Ali then
timely filed this petition for review.
II. Standard of Review
We review the BIA’s decision on whether the petitioner has
established eligibility for asylum under the substantial evi-
806 ALI v. ASHCROFT
dence standard. Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th
Cir. 2004). This standard limits reversals of BIA decisions to
situations where the “Petitioner presented evidence ‘so com-
pelling that no reasonable factfinder could [fail to] find’ that
Petitioner has not established eligibility for asylum.” Singh v.
INS, 134 F.3d 962, 966 (9th Cir. 1998) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 483-84 (1992)). As the BIA affirmed
without opinion under 8 C.F.R. § 1003.1(e)(a), we review the
IJ’s decision as the final agency determination. Lopez-
Alvarado v. Ashcroft, 371 F.3d 1111, 1114 (9th Cir. 2004).
“We accept the Petitioner[’s] testimony as true when, as here,
the IJ found [her] to be credible.” Halaim v. INS, 358 F.3d
1128, 1131 (9th Cir. 2004).
III. Discussion
A. The Asylum Claim
To establish eligibility for asylum, the applicant must first
show that she qualifies as a refugee. Immigration and Nation-
ality Act (“INA”) § 208(b), 8 U.S.C. § 1158(b) (giving the
Attorney General discretion to grant asylum to any alien
deemed a “refugee”). A refugee is one “who is unable or
unwilling to return to . . . [her native] country because of per-
secution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” INA § 101(a)(42)(A), 8 U.S.C.
§ 1101(a)(42)(A). We hold that Ali has met the statutory eli-
gibility for asylum.
1. Ali Suffered Past Persecution on Account of Political
Opinion and Membership in a Particular Social Group
[1] Although the USC militia was not the ruling govern-
ment in Somalia, its actions against Ali can appropriately be
considered persecution. “Persecution need not be directly at
the hands of the government; private individuals that the gov-
ernment is unable or unwilling to control can persecute some-
ALI v. ASHCROFT 807
one.” See Singh, 134 F.3d at 967 n.9. We have also held that
groups seeking to overthrow a government can be non-state
agents of persecution for asylum purposes. Arteaga v. INS,
836 F.2d 1227, 1231 (9th Cir. 1988). The USC was involved
in the overthrow of the Siad Barre administration, and there-
fore, can be considered a non-state actor capable of persecu-
tion.
[2] The IJ found that Ali was not persecuted on account of
one of the five statutory grounds. We disagree. The persecu-
tion Ali suffered was clearly on account of the political opin-
ion her persecutors believed she held and on account of her
membership in a particular social group, her clan. We have
repeatedly held that asylum applicants bear neither the unrea-
sonable burden of establishing the exact motives of their per-
secutors nor the burden of showing that their persecutors were
motivated solely “on account of” one of the protected
grounds. See, e.g., Borja v. INS, 175 F.3d 732, 735 (9th Cir.
1999) (en banc) (citing a second circuit holding that “the plain
meaning of the phrase ‘persecution on account of [a protected
ground]’ does not mean persecution solely on account of [that
ground]”). Instead, we find that the necessary nexus exists
“even when the persecutor acts out of mixed motives.” See,
Mihalev v. Ashcroft, 388 F.3d 722, 727 (9th Cir. 2004) (citing
Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000)).
In his opinion, the IJ acknowledges mixed motive theory as
the circuit law, but then holds Ali to a higher standard by con-
cluding that “[d]uring a period of rampant thievery and law-
lessness minority groups had no one to protect them. But this
does not mean that the attackers wished to harm Ali’s family
simply because they belong to a minority group.” The law,
however, only requires Ali to show that the militia was
motived in part by her clan status or political opinion.2
2
The IJ considers, but ultimately rejects, Ali’s claim that her persecution
was on account of her clan membership. In contrast, the IJ does not dis-
cuss whether Ali proved past persecution on account of her political opin-
ion because he wrongly reasons that membership in a particular social
group is “the only protected ground that the Court can conclude applies.”
808 ALI v. ASHCROFT
To conclude that the persecution Ali and her family suf-
fered was not on account of a protected ground, the IJ takes
two conceptual steps. First, the IJ focuses nearly singularly,
and inappropriately, on the burglary that occurred and de-
emphasizes the contemporaneous rapes of Ali, the murder of
her brother-in-law, and the arbitrary detention and abuse in
custody of her husband. Second, the IJ views any connection
between the persecution Ali suffered and her clan member-
ship as limited to the fact that her clan status made her family
a wise target for burglary. In his opinion, the IJ concludes:
that the motivation [of the militia] was to steal any
and all valuables from anyone that they could, and
the minority clans were not able to defend them-
selves. Thus, [Ali’s family was] not being attacked
because they were members of minority clans, they
were being attacked because the attackers wanted to
steal all of their valuables, and the fact that they
were minority members made the attackers feel that
they could get away with the attacks without fear of
reprisal.
The IJ also provides the following separate explanation for
the militia’s motivations to gang-rape Ali: “to take gratifica-
tion from the helpless condition of the respondent.”3
[3] Contrary to the IJ’s characterization of the rapes and
burglary, the attackers’ words themselves evidence that they
were motivated, at least in part, by Ali’s clan status and politi-
cal opinion, and not solely by criminal opportunism. While
gang-raping Ali, the militia members contemporaneously
declared that Ali was “getting what [she] deserve[d]” because
she was a Midgan. During the attack, rapes, and murder the
3
The IJ mistakenly stated that Ali was subjected to only one rape. Ali
testified, however, that she suffered brutal gang-rapes by three militia
members. Compare AR at 17 (IJ discussing only “the case of the rape”)
with id. at 168-69 (Ali’s testimony of the gang-rapes.).
ALI v. ASHCROFT 809
militia also taunted the family as “Midgans traitors.” The
attackers’ tormenting last words to Ali and her family were
“let Siad Barre save you now,” and they proclaimed “now we
are in power” as they took Ali’s husband away. Combined,
these statements make evident that at least part of the motiva-
tion for the rapes, murder, and arbitrary detention was the clan
membership of the Ali family and the political opinion that
the militia attributed to them based on Osman’s employment
by the Siad Barre administration.4 See Mihalev, 388 F.3d at
727 (holding that “police officers’ contemporaneous declara-
tions that Gypsies did not deserve to live” while arresting
petitioner and beating individuals present at the time of his
arrest established past persecution on account of a protected
ground); Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir.
2004) (holding that soldiers’ statement that rape was because
of petitioner’s family’s position in prior Ethiopian govern-
ment was sufficient to establish proof of motivation).
In addition, at least one militia member was Ali’s neighbor
and knew Ali’s family well enough to be aware that her hus-
band worked for Siad Barre. This fact further supports the
conclusion that the persecutors were motivated by Ali’s politi-
cal opinion. The IJ, however, fails to mention this evidence,
which is relevant to our analysis of the underlying motivation
for the persecution. See Ochave v. INS, 254 F.3d 859, 866
(9th Cir. 2001) (noting “in cases in which this court has found
that rapes occurred ‘on account of’ an imputed political opin-
ion, the evidence was clear that the rapists (1) knew the spe-
cific identity of their victims; and (2) imputed political
opinions to those victims”).
[4] Lastly, the IJ reasons that the persecution Ali’s family
suffered amounted to nothing more than “acts of random vio-
4
This circuit has held that persecution of a political figure’s employees
and their families is persecution on account of political opinion even when
the nature of the work is itself not political. Cordon-Garcia v. INS, 204
F.3d 985, 991-92 (9th Cir. 2000).
810 ALI v. ASHCROFT
lence” of the sort that any member of the “general population”
may have reason to fear during a period of civil war and,
therefore, was not on account of a protected ground and fell
short of past persecution.5 The record, however, tells a differ-
ent story. The militia members, which included Ali’s neigh-
bor, likely knew where they were going the morning they
broke into Ali’s home. The militia’s own statements show that
they knew not only of Ali’s clan membership, but also of her
relationship to the Siad Barre administration, and were moti-
vated by both facts. We hold that the record compels any rea-
sonable factfinder to find that the militia members were
motivated — at least in part — by Ali’s clan membership and
political opinion. Therefore, Ali suffered past persecution on
account of a protected ground.
[5] The IJ’s ill-informed conception of the crime of rape
and its use as a method of persecution may explain his failure
to find that Ali suffered past persecution. We have repeatedly
held that rape rises to the level of persecution. See, e.g.,
Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996);
Lazo-Majano v. INS, 813 F.2d 1432, 1434-35 (9th Cir. 1987),
overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th
Cir. 1996) (en banc); see also Memorandum from Phyllis
Cover, Office of Int’l Affairs, to All INS Asylum Officers and
HQASM Coordinators, Considerations for Asylum Officers
Adjudicating Asylum Claims from Women 804 (May 26,
1995) (“Serious physical harm consistently has been held to
constitute persecution. Rape and other forms of severe sexual
violence clearly can fall within this rule.”) (citation omitted).
The IJ’s notion that the rapes were motivated merely to sexu-
ally “gratif[y]” the attackers impermissibly relied on the myth
that rape is about sex instead of domination and control. See
5
We have cautioned against such reasoning, noting that “[t]he difficulty
of determining motive in situations of general civil unrest should not . . .
diminish the protections of asylum for persons who have been punished
because of their actual or imputed political views.” Ndom v. Ashcroft, 384
F.3d 743, 752 (9th Cir. 2004) (alteration in original) (citation omitted).
ALI v. ASHCROFT 811
Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1076 (9th Cir.
2004) (noting that “[r]ape is not about sex; it is about power
and control”) (alteration in original) (citation omitted); Lazo-
Majano, 813 F.2d at 1434 (rejecting BIA’s finding that the
repeated rapes of the petitioner by an army sergeant were
“strictly personal actions” not constituting persecution); see
also Note on Certain Aspects of Sexual Violence Against Ref-
ugee Women, U.N. High Comm’r for Refugees (“UNHCR”),
44th Sess., at 7, U.N. Doc. A/AC.96/822 (1993) (stating that
“sexual violence has also been used by armed forces, includ-
ing insurgent groups, . . . as a means of intimidating a civilian
population perceived to be in political opposition to the armed
force in question”). The militia members’ statements that Ali
was “getting what [she] deserved” while they raped her evi-
dences that their motivation for the rape was to send a savage
message to Ali and other members of the Muuse Diriiye clan
that they were no longer in political power.
Accordingly, we reverse the IJ’s finding of no past persecu-
tion because any reasonable factfinder would be compelled to
find that Ali has proved past persecution on account of two
protected grounds: 1) her political opinion; and 2) her mem-
bership in a particular social group.
2. Future Persecution
[6] Ali is presumed to have a well-founded fear of future
persecution based on her credible testimony of past persecu-
tion. 8 C.F.R. § 1208.13(b)(1). Because we hold that Ali has
established past persecution, the burden shifts to the Depart-
ment of Homeland Security (“DHS”) to rebut the presumption
that Ali is eligible for asylum.6 Id. One way the government
may satisfy this burden is by showing by a preponderance of
the evidence that there has been a “fundamental change in cir-
6
On March 1, 2003, the INS was abolished as an agency within the
Department of Justice and its functions were transferred to the newly cre-
ated DHS.
812 ALI v. ASHCROFT
cumstances,” such that Ali and her sons no longer have a
well-founded fear of persecution, or that they could “avoid
future persecution by relocating to another part of [Somalia],
and under all the circumstances, it would be reasonable to
expect [them] to do so.” Id. § 1208.13(b)(1)(i)-(ii); see also
Ochave, 254 F.3d at 868 n.5.
In INS v. Ventura, the Supreme Court held that we cannot
determine the issue of changed country conditions in the first
instance. 537 U.S. 12, 14 (2002). The holding of Ventura does
not apply here. In Ventura, the BIA reviewed de novo the IJ’s
findings denying petitioner’s asylum claim based on a failure
to show past persecution and, in the alternative, based on
changed country conditions. Id. at 14-15. On review, the BIA
explicitly refused to address the question of changed country
conditions. Id. at 15. Here, the BIA employed its streamlining
procedures to affirm the IJ’s decision without opinion. There-
fore, the IJ’s decision becomes the final agency decision sub-
ject to review, and the BIA forfeits its right to entertain the
question of changed country conditions in the first instance.
See Guo v. Ashcroft, 361 F.3d 1194, 1204 (9th Cir. 2004)
(holding that the IJ’s alternative holding that petitioner failed
to establish past persecution, even if his testimony was credi-
ble, obviated the need for remand when the BIA affirmed
without opinion). Because the IJ considered the issue of
changed circumstances, we need not remand on this issue.
In his decision, the IJ found that “the conditions [in Soma-
lia] have improved vastly since 1991, the civil war is over,
thousands of refugees have returned.” Although he cautioned
that “the country is still somewhat unstable, there is a consid-
erable account [sic] of crime and lawlessness in certain
areas,” he concluded that “there is no indication that the Mid-
gans are being targeted, there is no genocide or imprisonment
of Midgans.” To rebut the presumption of a well-founded
fear, the DHS must show how changed circumstances “will
affect the specific petitioner’s situation. . . . Information about
general changes in the country is not sufficient.” Del Carmen
ALI v. ASHCROFT 813
Molina v. INS, 170 F.3d 1247, 1250 (9th Cir. 1999) (citation
omitted). The only information specific to Ali that the IJ cites
is that there is no evidence of “genocide or imprisonment” of
members of her clan. The IJ fails to discuss both the persecu-
tion that Ali experienced on account of her political opinion,
and whether the circumstances have changed such that she no
longer needs to fear retaliation from the armed political
groups currently struggling for power and opposed to the for-
mer regime.
The IJ seems to find support for his conclusion that the sit-
uation in Somalia has changed in the State Department’s 1996
report on country conditions in Somalia, which was entered
as evidence in this case. In actuality, this report provides more
evidence to support than to rebut Ali’s well-founded fear of
persecution. Notably absent from the IJ’s opinion is the
report’s finding that the Muuse Diriiye and other caste minor-
ities “who had visibly supported the old regime were vulnera-
ble to retaliation,” often by the USC. State Dep’t Report at
14-15.7 The last section of the Report concludes:
[b]ecause of the continuing violent and chaotic situa-
tion in parts of Somalia and the present absence of
any clear governmental authority, the fears
expressed by most . . . Somali applicants of returning
at this time are quite understandable and often credi-
ble. It is clear that a potentially dangerous situation
exists in some parts of Somalia.8
7
The closeness of the Ali family’s ties to the former administration is
also evidenced by the photo submitted into evidence of the former Vice
President, Hussein Kulmia Afra, seated between Ali and Osman at their
wedding.
8
Another report, prepared by the UNHCR and also before the IJ, noted
that serious fighting among rival clans and political groups continued in
Mogadishu. This report also notes that “[m]embers of minority groups,
[which would include Ali’s family,] are subject to harassment, intimida-
tion, and abuse by armed gunmen of all affiliations.”
814 ALI v. ASHCROFT
[7] We have repeatedly found that the DHS has not rebut-
ted the presumption of a well-founded fear of persecution
when evidence in country reports indicates that persecution
similar to that experienced by the petitioner still exists. See,
e.g., Agbuya v. INS, 241 F.3d 1224, 1231 (9th Cir. 2001);
Kataria v. INS, 232 F.3d 1107, 1115 (9th Cir. 2000). This
case is no different: the evidence in the relevant country
report indicates that persecution of members of Siad Barre’s
former government, as well as members of low-caste clans,
continues. Accordingly, the IJ erred when he found that the
INS rebutted the presumption of a well-founded fear of perse-
cution in an individualized manner.
3. Firm Resettlement
[8] Despite our conclusion that Ali experienced past perse-
cution on account of a protected ground and that the DHS
failed to rebut her presumption of a well-founded fear of per-
secution if returned to Somalia, Ali is mandatorily ineligible
for asylum if she was firmly resettled in Ethiopia prior to
entering the United States. INA § 208(b)(2)(A)(vi), 8 U.S.C.
§ 1158(b)(2)(A)(vi); 8 C.F.R. §§ 208.13(c)(2)(i)(B), 208.15.9
The regulations limit the circumstances in which firm resettle-
ment bars an otherwise meritorious asylum claim. The firm
resettlement bar only operates when the asylum applicant “en-
tered into another country with, or while in that country
received, an offer of permanent resident status, citizenship, or
some other type of permanent resettlement.” 8 C.F.R.
§ 208.15. Even so, the regulations provide two exceptions
when the asylum applicant has already been offered perma-
nent residence in another country. Id.; Andriasian v. INS, 180
F.3d 1033, 1043 (9th Cir. 1999). An asylum applicant who
9
Because Ali filed her application for asylum before April 1, 1997, the
effective date of the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Pub. L. No. 104-28, 110 Stat. 3009-3546 (Sept. 30,
1996), her case is governed by the regulatory firm resettlement bar in 8
C.F.R. § 208.13(c)(2)(i)(B) and defined in 8 C.F.R. § 208.15.
ALI v. ASHCROFT 815
received an offer of permanent resettlement is not subject to
the firm resettlement bar if: (1) settlement in the country of
first asylum “was a necessary consequence of his or her flight
from persecution” and the applicant remained in that country
only long enough to arrange onward travel, and did not “es-
tablish significant ties in that country;” or (2) the conditions
of the applicant’s “residence in that country were so substan-
tially and consciously restricted by the authority of the coun-
try of refuge that he or she was not in fact resettled.” 8 C.F.R.
§ 208.15. We hold, therefore, that the plain language and
structure of the regulation requires that an asylum applicant
be offered permanent resident status or its equivalent by the
country of first asylum to be considered firmly resettled. See
Abdille v. Ashcroft, 242 F.3d 477, 485 (3d Cir. 2001) (holding
similarly that “[i]t is readily evident from the plain language
of § 208.15 that the prime element in the firm resettlement
inquiry is the existence vel non of ‘an offer of permanent resi-
dent status, citizenship, or some other type of permanent
resettlement.’ ”) (citation omitted).
In finding Ali firmly resettled, the IJ misapplied Ninth Cir-
cuit law. The IJ stated that Cheo v. INS, 162 F.3d 1227 (9th
Cir. 1998), stands for the proposition that “where an individ-
ual resides for a number of years in a third country without
being bothered it is appropriate to presume firm resettlement.”
This interpretation is incorrect. In Cheo, we held that “in the
absence of evidence to the contrary” the applicants’ three-
year residence in Malaysia triggered a presumption of firm
resettlement and shifted the burden to the asylum applicant to
show that they received no offer of permanent residence from
Malaysia during that time. Id. at 1229 (emphasis added).
Because the Cheos failed to present such evidence, the court
found them firmly resettled. Id.
At first blush, Ali’s five-year residence in Ethiopia seems
to trigger the Cheo presumption, but this would require us to
discount Ali’s direct testimony, which the IJ found credible,
that she never received an offer of permanent residence. The
816 ALI v. ASHCROFT
IJ did just that when he concluded that “it is appropriate to
presume that [Ali] was firmly resettled.” This finding ignores
Cheo’s critical limit: the presumption only applies when
“there is no direct evidence one way or the other as to whether
the [asylum applicants] have or had the right” of permanent
resettlement in their country of first asylum. Id.; see also
Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 819 (9th Cir.
2004). When, as here, the applicant presented evidence that
she never had a right to remain permanently in Ethiopia, the
presumption never arises.
We have held that an offer of temporary residence does not
compel a finding of firm resettlement. See Camposeco-
Montejo, 384 F.3d at 819-20; Cheo, 162 F.3d at 1230. The
plain language of the regulation requires an offer of perma-
nent residence. Similarly, the fact that Ali fortuitously evaded
detection by the government while living illegally in Ethiopia
does not allow for a finding that Ali was firmly resettled in
Ethiopia. We adopt the reasoning of the Third Circuit in
Abdille when it stated: “Absent some government dispensa-
tion, an immigrant who surreptitiously enters a nation without
its authorization cannot obtain official resident status no mat-
ter his length of stay, his intent, or the extent of the familial
and economic connections he develops. Citizenship or perma-
nent residency cannot be gained through adverse possession.”
Abdille, 242 F.3d at 487. Finally, we have also cautioned that
the Cheo presumption “does not mean that as soon as a person
has come to rest at a country other than the country of danger,
he cannot get asylum in the United States.” Cheo, 162 F.3d
at 1230. Such narrow interpretation of the firm resettlement
bar would limit asylum to refugees from nations contiguous
to the United States or to those wealthy enough to afford to
fly here in search of refuge. The international obligation our
nation agreed to share when we enacted the Refugee Conven-
tion into law knows no such limits. See Refugee Act of 1980,
Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified as amended
in scattered sections of 8 U.S.C.).
ALI v. ASHCROFT 817
[9] For these reasons, we reverse the IJ’s finding that Ali
was firmly resettled in Ethiopia prior to entering the United
States. We hold that Ali never received an offer of permanent
residence as required by federal regulation to establish firm
resettlement. Therefore, we hold that Ali is entitled to asylum.
We remand for the Attorney General to exercise his discretion
as to whether to grant that relief.
B. The Withholding of Removal Claim
[10] The IJ held that Ali had failed to establish eligibility
for asylum and, therefore, assumed that she could not meet
the higher standard of proof needed for relief under withhold-
ing of removal. Because we hold that Ali is statutorily eligible
for asylum, we remand to the IJ to determine in the first
instance whether Ali and her sons have established eligibility
for withholding of removal. See He v. Ashcroft, 328 F.3d 593,
604 (2003) (holding that petitioner established statutory eligi-
bility for asylum, but remanding for consideration of petition-
er’s withholding of removal claim).
While the grant of asylum is discretionary, withholding of
removal is mandatory if the petitioner establishes that upon
removal from the United States her “life or freedom would be
threatened” on account of one of the five protected grounds.
INA § 241(b)(3)(A); 8 U.S.C. § 1231(b)(3)(A). The standard
of proof required to establish eligibility for withholding of
removal is higher than the standard for establishing eligibility
for asylum. Compare INS v. Stevic, 467 U.S. 407 (1984)
(“clear probability” standard under former withholding stat-
ute) with INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (asy-
lum standard).
[11] A finding of past persecution gives rise to a presump-
tion of withholding of removal. 8 C.F.R. § 1208.16(b)(1)(i);
Mihalev, 388 F.3d at 731; Hoque v. Ashcroft, 367 F.3d 1190,
1198 (9th Cir. 2004) (citing Baballah v. Ashcroft, 335 F.3d
981, 991 (9th Cir. 2003). Because we have held that Ali estab-
818 ALI v. ASHCROFT
lished past persecution, we remand this case and instruct the
BIA to consider Ali’s and her sons’ withholding of removal
claims in light of this presumption.
C. The CAT Claim
[12] To obtain relief under the CAT, an applicant 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. § 208.16(c)(2). The IJ concluded that Ali failed to
establish that if returned to Somalia she would be tortured by
the government or someone acting at the instigation or acqui-
escence of the government. See 8 C.F.R. § 1208.18(a)(1)
(defining torture for the purposes of the CAT); Zheng v. Ash-
croft, 332 F.3d 1186, 1194-97 (9th Cir. 2003) (interpreting
this definition). Ali and her sons have not presented evidence
that compels any reasonable fact-finder to determine that the
IJ erred in denying them relief under the CAT. Accordingly,
we affirm the IJ’s determination that they are ineligible for
relief under the CAT.
IV. Conclusion
In conclusion, we find that Ali established statutory eligi-
bility for asylum. Because Ali did not receive an offer of per-
manent residence—or its equivalent—while in Ethiopia, she
was not firmly resettled prior to her entrance into the United
States. Since we find that Ali has established past persecution
even under the higher standard required for withholding of
removal, a presumption operates regarding her ability to show
future threats to her life or freedom. We remand to the IJ to
exercise its discretion on the asylum claim and for further
consideration of Ali’s and her sons’ withholding of removal
claims. We affirm the IJ’s denial of Ali’s application for relief
under the CAT.
PETITION GRANTED in part, REMANDED in part,
and REVERSED in part.