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Stephen W. Yale-Loehr, Professor of Immigration Law Practice, Cornell Law School, and Co-Author, Immigration Law & Procedure Treatise, writes: "My colleague Estelle McKee and two students (Jamie Long and Melvin Wu) just won a remand from the BIA in an appeal by a Somali (Mr. D-) who had suffered past persecution from clan violence. Although the IJ found Mr. D- credible, he lost his asylum claim because the IJ decided that circumstances had changed so that his fear was not well-founded, and Mr. D- could relocate to a place like Mogadishu because of its "vast economic opportunities.” The Cornell asylum clinic took on the appeal through the Catholic Legal Immigration Network's BIA pro bono appeal project.
The students and Estelle argued that the IJ erred when she concluded that, despite finding that Mr. D- suffered past persecution, DHS had carried its burden to show that Mr. D- could reasonably relocate to Mogadishu. The IJ failed to correctly apply the reasonableness standard. There continues to be ongoing civil strife throughout Somalia due to attacks from Al-Shabaab. The Somali government lacks the infrastructure to protect its citizens from Al-Shabaab and to provide adequate resources to feed its citizens let alone to facilitate a healthy economy. Travel throughout Somalia is perilous and Mr. D- would not have adequate protection from his clan and he lacks familial ties given his prolonged absence from Somalia. Mr. D- is also likely to suffer other serious harm if forced to return because he is likely to become one of many internally displaced persons in Somalia.
The students and Estelle also argued that the IJ erred by failing to consider whether Mr. D- was eligible for humanitarian asylum. If the IJ had considered Mr. D-’s eligibility for humanitarian asylum she would have found that there was ample evidence that there is a reasonable possibility that Mr. D- will suffer other serious harm if forced to return to Somalia. There is ongoing civil strife at the hands of Al-Shabaab. Moreover, economic opportunities in Somalia remain bleak, which has only been exacerbated by the recent drought. Mr. D- is particularly likely to suffer other serious harm because he lacks any personal ties after being away from Somalia for nearly fifteen years.
The BIA remanded and ordered the IJ to determine: (1) whether persecution similar to what Mr. D- suffered still exists in Somalia (which would make Mr. D-'s fear well-founded in the Ninth Circuit); (2) whether Mogadishu is safe and accessible, and if so, whether relocating there is reasonable; and (3) if Mr. D-'s fear is not well-founded, whether he qualifies for humanitarian asylum. In doing so, the IJ must consider the evidence Mr. D submitted on appeal." [Hats off to Estelle McKee, Jamie Long and Melvin Wu!]