U.S. Department of Justice .:

Executive Office for Immigration Review

Board of Immigration Appeals Office ofthe Clerk 5107 leesburg Pike, Suite 2000 Falls Church. Virginia 22041

SCOTTSDALE, AZ 85251

DHS/ICE Office of Chief Counsel - EAZ P.0. Box 25158 Phoenix, AZ 85002

Name:

A Date of this notice: 5/25/2016

,,

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

DorutL C

WV\)

Donna Carr Chief Clerk Enclosure Panel Members:

Liebowitz, Ellen C Mullane, Hugh G. Geller, Joan B

Userteam:

.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia 22041

File:

- Eloy, AZ

In re:

Date:

MAY 25 2016

a.k.a.

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Estelle McKee, Esquire ON BEHALF OF DHS: Danielle Sigmund Assistant ChiefCounsei ,

CHARGE: Notice: Sec.

212(a)(7)(A)(i)(l), I&N Act [S U.S.C. § 11S2(a)(7)(A)(i)(I)] lmmigrant - no valid immigrant visa or entry document

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Somalia, has appealed from the decision of the Immigration Judge dated November 25, 20 15, denying hi s applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CA1"'). Sections 20S(b)(I)(A) and 241 (b)(3)(A) of the Immigration and Nationality Act, S U.S.C. §§ II SS(b)(l )(A) and 1231(b)(3)(A); S C.F.R. §§ 120S.l6 and 120S. IS. The Department of Homeland Security ("DHS") opposes the appeal. The record will be remanded. We review for clear error the findings of fact, including the detennination of credibility, made by the Immigration Judge. S C.F.R. § 1003.I(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof and issues of discretion. S C.F.R. § 1003. 1(d)(3)(ii ). The Immigration Judge found the respondent credible (U . at II) and further found that the respondent established past persecution on account of his membership in a particular social group, i.e., the Marehan clan (U. at 14-1 7). Therefore, the respondent is presumed to have a well-founded fear of persecution on the basis of the original claim. S C.F.R. § 120S.13(b)(l). The Immigration Judge found that the DHS rebutted the presumption of a well-founded fear of persecution by establishing, by a preponderance of the evidence, that there has been a fundamental change in circumstances such that the respondent no longer has a well-founded fear of persecution in Somalia on the basis of the original claim and that the respondent could avoid future persecution by relocating to another part of Somalia and, under all the circumstances, it would be reasonable to expect him to do so (1.J. at 17-19). S C.F.R. §§ 120S.13(b)( I)(i) and (ii) and 120S.I3(b)(3). With regard to the latter, the Immigration Judge found that "the respondent could relocate to parts of Somalia, such as Mogadishu, to not only avoid clan-based violence and violence inflicted by Al-Shabaab, but also because of the vast economic opportunities in such area"(U.at 17-1S).

The Immigration Judge's factual findings with respect to the respondent's credibility and past persecution suffered on account of his clan affiliation are not clearly erroneous. 8 C.F .R. § 1003.I(dX3)(i). The respondent challenges the Immigration Judge's finding that he could relocate within Somalia in order to avoid persecution and that it would be reasonable to expect him to do so. (I.J. at 17- 18). 8 C.F.R. § J003.I(d)(3)(i). Because the respondent has established past persecution, the DHS has the burden to demonstrate that there is a specific area of Somalia where the risk of persecution to the respondent falls below the well-founded fear level. Matter of M-Z-M-R-, 26 I&N Dec. 28, 34 (BIA 2012). If the evidence indicates that the area may not be practically, safely, and legally accessible, then the DHS also bears the burden to show by a preponderance of the evidence that the area is or could be made accessible to the respondent. Id.; 8 C.F.R. § 1208.I3(b)(I)(ii). If the first step of the internal relocation analysis shows that the respondent is able to relocate · within Somalia, the Immi gration Judge must next detennine whether, "under all the circumstances, it would be reasonable to expeet [him] to do SO. " 8 C.F.R. § 1208. I3(b)( I)(i)(B). , This means conducting a balancing test in which the adjudicator should consider, inter alia, such factors as whether the respondent would face other serious harm in the suggested place of relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cuirural restraints, such as age, gender, health, and social and familial ties. 8 C.F.R. § 1208. I3(b)(3); Maller of M-Z-M-R-, supra, at 3435. "Under the regulation, even if an applicant is able to relocate safely, it may nevertheless be unreasonable to expect the applicant to do so." Jd. at 35. The respondent asserts on appeal that Mogadishu is not a safe area to which he can relocate and is not accessible due to armed checkpoints (Respondent's brief at 11-12, 14-15). Additionally, the respondent contends that the Immigration Judge did not adequately consider his lack of personal ties in Somalia, the declining importance of clans, evidence that he may become an internationally displaced person, and the weakness of Somalia's administrative, economic, and judicial infrastructure (Respondent's brief at 12- 17). Remand is warranted for additional analysis of the issue whether the DHS has shown that the respondent is able to relocate within Somalia and it would be reasonable to expect him to do so, considering the factors set forth in 8 C.F.R. § 1208.13(b)(3), and any other relevant factors. The Immigt:ation Judge also found that the DHS had established by a preponderance of the evidence that there has been a fundamental change in circumstances such that the respondent no longer has a well-founded fear of persecution on the basis of the original claim. 8 C.F.R. §§ 1208.13(b)(I)(i)(A) and 1208.13(b)(I)(ii). The Court of Appeals for the Ninth Circuit has "repeatedly found that the DHS has not rebutted the presumption of a well-founded fear of persecution when evidence in country reports indicates that persecution similar to that experienced by the [respondent] still exists." Ali v. Ashcroft, 394 F.3d 780, 789 (9th Cir. 2005). The respondent herein was persecuted on account of hi s clan affiliation, first due to his membership in the Marehan clan (by the Hawiye in Mogadishu) but then by members of another subclan of the Marehan while in the Gedo region. The Immigration Judge found that changed circumstances were establi shed by evidence that the Hawiye-based USC are no longer in power, that a federal government was formed in 2012, and that there have been political changes in the

2

/ country as a whole and an expansion of business opportunities in Mogadishu (1.1. at 18). However, the Immigration Judge did not make a specific finding whether persecution similar to

that experienced by the respondent still exists in Somalia. Therefore, the Immigration Judge should provide further analysis of the issue whether the DHS has established by a preponderance of the evidence that there has been a fundam ental change in circumstances in Somalia such that the respondent no longer has a well-founded fear of persecution.

,

If the Immigration Judge fi nds that the DHS has rebutted the presumption of a well-founded fear of persecution, she should then detennine whether the respondent has demonstrated compelling reasons for being unwilling or unable to return to Somalia arising out of the severity of the past persecution or whether the respondent has established that there is a reasonable possibility that he may suffer other serious harm upon removal to Somalia (Respondent's brief at 17-20). 8 C.F.R. §§ 1208.13(b)(1)(iii)(A) and (B); see Matter of L-S-, 25 I&N Dec. 705 (BlA 2012). The Immigration Judge should consider the evidence proffered by the respondent on appeal and should afford the parties an opportunity to provide additional evidence and testimony if deemed necessary. By remanding the record to the Immigration Judge, we are not suggesting a particular result.

ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and the entry of a new decision.

3