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To determine whether substantial evidence supports the agency's finding that an asylum applicant has not firmly resettled in a third country, a court of appeals first determines whether the government presented evidence that the applicant received an offer of permanent resettlement. 8 C.F.R. § 208.15. If the government establishes that an applicant has firmly resettled, the court then looks to whether the applicant qualifies for either of two exceptions to the firm-resettlement bar. One such exception—what is referred to as the restricted-residence exception—applies when the applicant shows that the conditions of the applicant's residence were too restricted for the applicant to be firmly resettled. 8 C.F.R. § 208.15(b). The regulation provides that the restricted-residence exception applies when the applicant shows that the living restriction was (1) substantial, (2) conscious, and (3) by the country's authorities. 8 C.F.R. § 208.15(b). In making this determination, courts consider the conditions under which other residents of the country live, the type of housing offered to the applicant, and the extent to which the applicant enjoyed privileges like employment or education.
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 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 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 wrote that the only logical explanation for Al-Shabaab's treatment of Aden 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.
Did the Board err in concluding Aden is not eligible for an exception to the firm-resettlement bar?
The court held that the restricted-residence exception under 8 C.F.R. § 208.15(b) to the firm-resettlement asylum bar applied to persecution an applicant faced in South Africa at the hands of private individuals as long as the applicant could show that the country's authorities were unable or unwilling to stop the persecution. Aden presented sufficient evidence to compel the conclusion that he suffered persecution by a terrorist organization in Somalia. The evidence showed that the organization intended to coerce Aden to submit to its political and religious order and used beatings, destruction of property, and death threats to achieve its goal.