IMMIGRATION JUDGE GRANTS CONVENTION AGAINST TORTURE RELIEF TO A MAN WHO DEPARTED FROM SOMALIA THIRTEEN YEARS EARLIER

by David L. Cleveland

Immigration Judge Rodger C. Harris granted CAT relief to a 24-year-old man from Somalia, who feared his government, in a 12-page Decision dated July 31, 2013. [Arlington VA Immigration Court]; a redacted Decision is available at:

https://dl.dropboxusercontent.com/u/45272881/ij-7-31-13.pdf

Facts

Respondent, a Muslim, was born in Somalia, in 1989. His father, also a Muslim, worked for Church World Service, a Christian organization. Extremist Muslims threatened the father, accusing him of attempting to convert people to the Christian religion. Respondent and his entire family fled, and were given refugee status upon their arrival in the United States in December 2000.

Respondent became a lawful permanent resident in 2005. He was convicted of kidnapping conspiracy in 2009, and sentenced to prison for 66 months. He applied for asylum in June 2013.

Respondent testified he speaks better English than Somali, that his entire family lives in Virginia, and that he is Muslim. He was harassed in Somalia, and called a “Christian lover.” Extremists killed a man with the same name as his father, by mistake.

Respondent testified he will be killed by “al-Shabaab,” an extremist group, whichcontrols large portions of Somalia.

He also fears being tortured by the government of Somalia. He testified that “it is common upon first meeting in Somalia to ask about clan and family connections.” [Opinion at 3]. So, soon after arrival, al-Shabaab and the government would find out about him. He stated that the “government conducts neighborhood sweeps in Mogadishu, rounding up young men to determine if they are al-Shabaaboperatives. Men who have no family to pay a bribe for release or to vouch for their non-affiliation with al-Shabaab commonly remain detained indefinitely.”

Id.

Mr. Jama qualified as an expert despite not having been in Somalia for 23 years

The DHS argued that Mr. Abdullahi Jama was not an expert on country conditions, in part because he had not returned to Somalia since 1990, and because he apparently gained some or much of his “expertise” from talking to friends. The opinion does not state if Mr. Jama had ever qualified before as an expert, or if he had any employment in the United States.

Judge Harris, nonetheless found Mr. Abdullahi Jama to be an expert. Furthermore, Jama was allowed to testify via telephone.

Mr. Jama grew up in Somalia, getting a bachelor’s degree in law. He worked at the Department of Corrections and at a university there. He departed from Somalia in 1990, and has not been back since. He was awarded a master’s degree in public administration from a university in the United States. He has acquired knowledge of conditions in Somalia from talking to friends, people who formerly lived there, members of Parliament, and from academics. He also reads “various human rights reports.” [Opinion at 5]. “He has written several articles and spoken on television about al-Shabaab.Id. [He apparently wrote no articles about the government.]

Jama testified that al-Shabaabis a powerful group which controls large portions of the country; and it recruits in the United States. It “conducts a suicide bombing in Mogadishu every few days.” So, to combat this, the government of Somalia conducts “sweeps” every 3 or 4 days. The government arrests about 100 young men, and then interrogates and tortures them in an effort to find supporters of al-Shabaab.

Jama said “all prison officials use torture during interrogations in Somalia. The young men are not released until a family member vouches for them and/or pays a bribe for their release.” Id. If Respondent were detained, the government would suspect that he has come to Somalia “to become an al-Shabaabsuicide bomber because he is from the U.S.” Id. at 6.

Jamal opined that it will be “apparent that the Respondent has spent time in the U.S. based on his manner of speaking and his western mindset.” Id. Eventually, respondent would be detected. “Somali culture dictates that everyone asks the family and clan background of individuals they meet.” Id. So, it is “likely that Somali citizens would hand the Respondent over to the government after discovering his background. He will then be detained indefinitely and tortured during interrogation.” Id.

Jama testified “that Somali culture is one in which oral history plays a large role. He indicated that the Respondent will be required to reveal his family affiliation upon meeting people in Somalia….” Id. at 11.

Mr. Jama testified there was a “high likelihood” that Respondent would be arrested, and that the government “would suspect him of being an al-Shabaab operative given his age, gender, and lack of family ties in Somalia.” Furthermore, he stated that he “believes that every prison official uses torture during interrogation.” Id. at 10.

Jama testified that Respondent “is vulnerable to accusations that he is an al-Shabaab operative due to his age, gender, accent, western habits, and lack of family ties in Somalia.” Pg 10

The Department of State reports that the government conducts sweeps and detains young men.

The DOS “does not record any incidents in which prison officials were disciplined for using torture.” Id. at 10.

The Fourth Circuit has declared that even a non-credible applicant can be granted relief if there is sufficient independent evidence which establishes his claims.

Even if there are “adverse credibility findings, the Immigration Court will evaluate the record as a whole to determine whether independent evidence establishes the applicant’s claims. See Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004).” Id.at 7.

The court finds Respondent to be credible.

An applicant is barred from asylum if he has been convicted of a “particularly serious crime.” INA § 208(b)(2)(A)(ii). All aggravated felonies are “particularly serious crimes.” INA § 208(b)(2)(B)(i). Respondent’s conviction is an aggravated felony; therefore, he is not eligible for asylum. Furthermore, he is not eligible for withholding of removal under INA § 241(b)(3).

“Respondent’s criminal history is irrelevant in examining his entitlement to deferral of removal under the Convention.” Id. at 9.

It is more likely than not, that respondent will be arrested in a mass round-up, detained indefinitely because he has no money or family, and then be tortured during interrogation.

The DHS argues in this case that Respondent “has not shown that each link in this chain of events is more likely than not as required by case law. See J-F-F-, 23 I&N Dec. 912.” Id. at 9.

However, Respondent’s expert witness, Mr. Jama, testified that these events have a “high likelihood” of occurring. Id. at 9.

= = =

Comments of the author

  1. Who can qualify as an “expert” witness? An expert may be qualified “by knowledge,

skill, experience, training, or education.” Federal Rule of Evidence 702. His evidence must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id.

Most judges prefer the expert to be a university professor, with a Ph.D, who has published in peer-reviewed articles, and who has previously qualified in court as an expert. Judge Harris was lenient, in allowing Mr. Jama to qualify as an expert. Your Immigration Judge might be stricter. Evidence Rule 702(a) refers to “specialized knowledge” that “will help the trier of fact to understand the evidence…” Even if Mr. Jama is not an “expert” in some sense of that word, he certainly has knowledge not possessed by the Immigration Judge.

  1. IJs at times reject the testimony of experts. Kalaj v. United States AG, 2103 U.S. App.

LEXIS 15513 (11th Cir. 2013) (IJ rejected testimony of expert that Department of State report on Albania was unreliable).

3. How reasonable is internal relocation? Is your client from a country similar to Somalia, in that people will immediately quiz a newcomer about his heritage?

4. Perhaps the respondent in this case is a member of a particular social group: “westernized young men, without family ties.” Many courts, however, have rejected “former inhabitants of the United States” as a particular social group. See Jutus v. Holder, 723 F.3d 105 (1st Cir. 2013) (applicant who lived in the United States for 19 years, fearing gangs in Guatemala, was denied relief.).

5. The House Foreign Affairs Committee heard testimony about al-Shabaab on October 3, 2013. See 2013 Congressional Quarterly, Inc [testimony by Seth G. Jones, Associate Director of the Rand Corporation].

About the author

David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 43 countries.


About The Author

David L. Cleveland , a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 41 countries.


The opinions expressed in this article are those of the author(s) alone and should not be imputed to ILW.COM.