Aden v. Wilkinson, 9th Cir., 03-04-21, published
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/17-71313.pdf
PANEL: Before: Richard A. Paez and Johnnie B. Rawlinson,
Circuit Judges, and George H. Wu,** District Judge. Opinion by Judge Paez;
Concurrence by Judge Rawlinson
* The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
** The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.
SUMMARY BY COURT STAFF:
Immigration
Granting Abdi Ali Asis Aden’s petition for review of the Board of Immigration Appeals’ dismissal of his appeal of an Immigration Judge’s denial of his applications for asylum and withholding of removal from Somalia, and remanding, the panel held that the Board erred in concluding that Aden did not qualify for an exception to the firm resettlement bar, and that the evidence compelled the conclusion that he suffered past persecution in Somalia on account of a protected ground.
Aden asserted that he suffered persecution in Somalia by members of Al-Shabaab, a militant terrorist organization affiliated with Al-Qaeda and the Islamic State, after his brother refused their orders to shut down his theater showing American and Hindi movies and sports, which Al-Shabaab viewed as “Satanic” movies. The Board concluded that Aden was ineligible for asylum because he was firmly resettled in South Africa, and that he failed to establish that he suffered past persecution in Somalia on account of a protected ground.
The Board noted that Aden presented “ample evidence” of persecution in South Africa, but nonetheless determined that he failed to qualify for the restricted-residence exception to the firm resettlement bar because the persecution he faced was at the hands of private individuals, rather than the South
*** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
ADEN V. WILKINSON 3
African government. The panel concluded that the Board erred in doing do, holding that the restricted-residence exception applies when the country’s authorities are unable or unwilling to protect the applicant from persecution by nongovernment actors.
The panel held that the evidence compelled the conclusion that Aden suffered past persecution in Somalia, where in addition to physically beating Aden, members of Al-Shabaab kept tabs on him by contacting his brother and warned they would kill Aden and his brother if they continued to disobey Al-Shabaab’s command to close their theater. The panel wrote that the chain of events revealed that Al-Shabaab intended to coerce Aden to submit to its new political and religious order, and used offensive strategies— beatings, destruction of property, and death threats—to achieve this goal. Further, the panel explained that continuing political and social turmoil caused by Al- Shabaab provided context for the harm and death threats that Aden experienced, which together with the past harm, compelled the conclusion that he suffered past persecution in Somalia.
The panel held that substantial evidence did not support the Board’s determination that Aden failed to establish that he was targeted on account of a protected ground because Al Shabaab was motived by their own political and religious beliefs, rather than Aden’s. The panel explained that Al- Shabaab’s accusation that the brothers were featuring Islamically forbidden, “Satanic” films provided direct evidence of their political and religious motive, and that even if the brothers did not feature the films out of their own political or religious convictions, Al-Shabaab at the very least imputed those beliefs to them. The panel wrote that the only logical explanation for Al-Shabaab’s treatment of Aden
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and his brother was that their actions were subversive to Al- Shabaab’s political and religious doctrine.
The panel remanded for the Board to consider, under the appropriate framework, whether Aden was firmly resettled in South Africa, and to give the government an opportunity to rebut the presumption of future persecution triggered by Aden’s showing of past persecution on account of a protected ground.
Concurring, Judge Rawlinson agreed that the case should be remanded for reconsideration of the firm resettlement issue. Judge Rawlinson noted that despite the fact that the IJ never addressed the issue of whether persecution by private actors may prevent application of the firm resettlement bar, the Board concluded that the firm resettlement bar applied to Aden because he did not introduce any evidence that the South African government imposed any restrictions on his residency such that the restricted-residence exception applied. Judge Rawlinson wrote that the Board’s conclusion was not supported by substantial evidence in the record, as reflected in the IJ’s factual findings. Judge Rawlinson also agreed that the Board erred in concluding that Aden failed to establish a nexus to a protected ground because, based on binding precedent, an applicant such as Aden, who disagrees with Al Shabaab’s view of the proper interpretation of Islam, can establish persecution on account of a protected ground by showing that others in his group persecuted him because they found him insufficiently loyal or authentic to the religious ideal they espouse.
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COUNSEL
Emery El Habiby, El Habiby Law Firm, Sun City, Arizona, for Petitioner.
Stephen J. Flynn, Assistant Director; Lynda A. Do, Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
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This case has been pending six years! Should have been granted by the IJ. No wonder EOIR is running a 1.3 million backlog! Attempts to turn “easy grants” into bogus denials is killing this system, not to mention the asylum seekers suffering the “triple whammy” of EOIR’S lack of expertise, lousy training, and a “denial culture.”
My good friend, colleague, and former NAIJ President Judge Dana Leigh Marks, who actually is an asylum expert, once told The NY Times that asylum cases are like the death penalty in traffic court. But, I suspect that many folks appearing in traffic court get significantly MORE due process than those on trial for their lives in our broken, biased, and dysfunctional Immigration Courts.
Judge Garland needs to fix this! Sooner, rather than later!
🇺🇸⚖️🗽Due Process Forever!
PWS
03-05-21