DLD-220 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-1116 ___________

SANBUR AGOLE SHIRE, Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A208-676-080) Immigration Judge: Honorable Roxanne C. Hladylowycz ____________________________________

Submitted on Respondent’s Motion to Remand the Matter to the Board of Immigration Appeals, Petitioner’s Motion to Stay Removal and Petitioner’s Motion for Appointment of Counsel May 24, 2018 Before: JORDAN, SHWARTZ and KRAUSE, Circuit Judges

(Opinion filed: May 31, 2018) ___________

OPINION* ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Sanbur Agole Shire petitions for review of a decision by the Board of Immigration

Appeals (BIA). For the reasons below, we will grant the Government’s motion to

remand.

Shire, a citizen of Somalia, applied for admission to the United States in October

2015. In December 2015, he was charged as removable as an immigrant who did not

possess a valid entry document. Proceeding pro se, Shire applied for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT). He

alleged that he had been persecuted as a member of the Yibir tribe and accused of

practicing witchcraft. An Immigration Judge (IJ) denied his applications, and Shire

waived his right to appeal. Shire then retained counsel. He filed a motion to reconsider

with the IJ, asserting that he did not knowingly waive his appeal to the BIA. He also

sought to reopen his proceedings because he had recently learned that his father was

killed by a terrorist group, Al-Shabaab, who believed his father was practicing witchcraft.

Another IJ granted the motion to reconsider and reissued the first IJ’s decision,

which Shire then appealed. The BIA remanded the matter for a written decision because

the IJ had not issued “a separate oral or written decision setting out the reasons for the

decision.” A.R. at 79. After a written decision was issued by the first IJ, Shire appealed

again. He asked the BIA to consider the motion to reopen he had filed before the IJ. The

BIA dismissed the appeal and denied the motion to reopen. Shire filed a pro se petition

for review and a motion to stay removal. He has also filed a motion for counsel.

The Government does not oppose the stay motion and has filed a motion to

remand the matter to the BIA. Disclaiming any error by the BIA, the Government states 2 that a remand will allow the BIA to reconsider whether the harm Shire suffered was on

account of his tribal membership. The Government does not explain why the BIA’s

decision would be any different on remand. But for the reasons below, we agree that the

BIA should reconsider its decision and will grant the motion to remand.

Asylum and Withholding of Removal

To establish eligibility for asylum, Shire needs to demonstrate either past

persecution or a well-founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion. See Wang v.

Gonzales,

(3d Cir. 2005). To establish eligibility for withholding

of removal, he needs to demonstrate that it is more likely than not that his life or freedom

will be threatened in Somalia on account of a protected ground.

;

(b)(3)(A).

Shire’s testimony and affidavit

Shire testified that he had been persecuted in Somalia as a member of a minority

tribe, the Yibir. He stated that members of the Yibir tribe are regarded by many as un-

Islamic and practitioners of evil witchcraft. In an affidavit in support of his application

for relief, Shire asserted that the members of his tribe are of Jewish descent from Ethiopia

and are seen as an inferior and landless group of outsiders. A.R. at 407. He described a

popular Somali myth that the Yibir tribe are wandering scavengers of human carcasses.

Shire stated that Somalis believe that the Yibir possess a “dangerous supernatural evil

entity that can inflict a curse on locals.” For this reason, the Yibir are exposed to extreme

abuse more than other minority tribes.

He stated that members of his tribe are 3 prevented by custom from owning livestock or land and generally work low-paying jobs.

Thus, some Yibir are forced to practice magic to make a living.

Shire’s grandfather was a well-known spiritual leader who helped sick people.

A.R. at 408. He was paid a traditional fee after ceremonies.

After the collapse of the

Somali government in 1991, minority tribes were victims of persecution and harassment,

and Shire’s grandfather was killed by members of the local militia which controlled the

area.

While growing up, Shire heard his father called “witch” and “dirty blood.”

A.R. at 409.

Shire fled Somalia after being accused of practicing witchcraft and being attacked

by local militia men. Shire enjoyed watching movies for entertainment, and after

watching them, would sell them from his barbershop in order to buy more movies. These

movies were from Nigeria and about “Nigerian cultural life and how these individuals

practiced witchcraft, magic, and the ways in which they used both.” A.R. at 410. He and

his brothers watched them during down time between customers.

At his hearing, Shire testified that in February 2015, six men from a tribal militia,

Reer Hassan, kidnapped him and took him to a house. A young girl was there who

appeared to Shire to be mentally ill. Her father was the leader of the Reer Hassan tribe.

The militia men had found some movies that Shire had sold. They believed that the

movies had “witched” the girl and accused him of “creating an evil substance” on the girl

and causing her mental illness. The men accused Shire and his family of causing the

sickness because they are Yibir and possess supernatural powers that harm people and

make them sick. Shire testified that the men, like most Somalis, believe that members of 4 the Yibir tribe can create evil and mental illness. The militia men believed that Shire

could cure the girl and threatened him if she did not get better within seven days. A.R. at

151-56, 410.

A week later, the men came to Shire’s barbershop asking for the cure. They beat

him and stabbed him in his eye, causing some vision loss. They threatened to return in

seven days and damage his other eye if the girl was not cured. After going to a hospital

for treatment, Shire then hid at a friend’s house for a month. Meanwhile, the militia

spread rumors that Shire’s family could create “sickness and ill mind” which turned the

neighborhood against them. A.R. at 156-61. In his affidavit, Shire stated that people

would shout obscenities at his family, call them witches, and refuse to sell them food.

A.R. at 412.

A month later, Shire stopped by his barbershop to pick up some money. Three

militia men grabbed him and shouted that they had caught “the evil hand.” A crowd

gathered and threw stones at Shire. The militia men beat him badly and shot him in the

leg. They let him go when he stated he had the cure for the girl and would go get it.

Hospital workers refused to treat him for his injuries because they were afraid of the

militia. After treatment by a pharmacist who came to his home, Shire went back into

hiding. A few months later, he left Somalia. A.R. at 161-68.

During his travels to the United States, Shire called his family to discover that they

had fled their hometown after being attacked by the militia. The militia raped his sisters,

tortured his father, and killed his brother. Shire stated this happened because his family

were all considered guilty of making the young girl sick. The militia threatened to kill 5 his family one by one until the sick girl was cured. His family fled to a camp for

internally displaced persons (IDP). A.R. at 174-77, 415. As noted earlier, Shire’s father

was later killed by Al-Shabaab after being accused of practicing witchcraft.

The IJ dismissed Shire’s assertion that the mistreatment he endured was on

account of his race or tribal membership because Shire had never before been accused of

witchcraft. Rather, she concluded that Shire was viewed as a practitioner of magic

because he traded in movies.1 Assuming arguendo that Shire testified credibly, see A.R.

at 4, the BIA upheld the IJ’s determination that the militia did not attack Shire on account

of his tribal affiliation but rather because of its opposition to the movies he sold out of his

barbershop:

However, where, as here, the respondent did not identify any persuasive evidence suggesting that the tribal militia was motivated by his tribal identity, rather than his distribution of movies, and in light of the limited background evidence only suggesting a historical link between the tribe and the practice of witchcraft, we cannot discern clear error in the Immigration Judge’s motive finding.

A.R. at 4-5.2 The BIA did not reach the issue of whether the harm Shire suffered—being

stabbed in the eye, badly beaten, and shot in the leg—amounted to past persecution or

whether Shire had a well-founded fear of future persecution, in light of the harm that

1 At his hearing before the IJ, she explained her reasons for denying Shire’s application off the record. Shire stated in an affidavit that the IJ told him that she was denying his case because he did not move to another part of Somalia before coming to the United States. The question of whether an alien can relocate internally to avoid persecution is usually reached only after the alien has been determined to have suffered past persecution.

(b)(1)(i)(B) (asylum);

(b)(1)(i)(B) (withholding of removal). When the matter was remanded to the IJ for a written decision, she did not mention internal relocation.

2 The IJ made an adverse credibility finding but also addressed Shire’s claims on the merits. Because the BIA did not rely on it, we will not discuss the weaknesses in the adverse credibility finding.

6 befell his family after he escaped: rape, torture, and murder.

Background Material

The background material in the record paints a bleak picture for those who belong

to a minority tribe in Somalia. The United States Department of State Country Report on

Human Rights Practices in Somalia for 2014 included the Yibir in a list of minority clans

and noted that “[m]inority groups, often lacking armed militias, continued to be

disproportionately subjected to killings, torture, rape, kidnapping for ransom, and looting

of land and property with impunity by faction militias and majority clan members. Many

minority communities continued to live in deep poverty and to suffer from numerous

forms of discrimination and exclusion.” A.R. at 576.

Citing the IJ’s opinion, the BIA determined there was only a historical link

between Shire’s tribe and the perceived practice of witchcraft. The IJ had concluded that

there were some vague references in the record that the Yibir were associated with

mysticism before Somalia’s independence in 1960. However, there is evidence in the

record—in addition to Shire’s testimony which was presumed credible—that this link

still exists today. For example, Shire cited to a recent country report on Somalia written

by the European Union’s European Asylum Support Office:

The Yibir are a small group said to have a Jewish background, despite practicing Islam and having no knowledge about Jewish traditions. Supernatural powers are attributed to them, and they live mainly in central and northern Somalia and in some urban places in Southern Somalia. Traditionally, they are ritual specialists.

A.R. at 419; (Full report available at

https://coi.easo.europa.eu/administration/easo/PLib/EASO-COIreport-Somalia_EN.pdf 7 (last visited May 16, 2018)). Shire also quoted from a report by the Austrian Centre for

Country of Origin & Asylum Research and Documentation:

Members of Yibr used to have mythological functions in society (and do not involve themselves in other tasks in traditional Somali society): They collected the Samanyo (a birth gift) from new-born babies and newly- married girls in exchange for giving them a good fortune. Historically, the Yibr enjoyed some protection before independence through this superstitious practice that prevailed about them, and which is now no longer widely practiced. After independence they suffered from the banning of the Samanyo custom and other related traditions by the government. With the presence of radical Islamic groups like Al-Shabaab with strong anti-Jewish attitudes, the Yibr who claim historical descent from the Hebrews have been increasingly suspected by Somalis with a radical Islamic orientation. Therefore members of the Yibr may be targeted in South Central Somalia, despite the fact that they are Muslims today.

A.R. at 420; (Full report available at http://www.refworld.org/docid/4b29f5e82.html (last

visited May 16, 2018). The author of a 2015 article describing the plight of minority

women in Somalia noted that the Yibir clan “to this day hold a low status in relation to

the main Somali population. Despite this, they are believed by many to have special

powers and are sometimes asked to bless the birth of a newborn baby.” A.R. at 487.

While not as recent, two other reports indicate that the supernatural reputation of

the Yibir lasted beyond Somalia’s independence in 1960. In a 1991 report on minority

tribes, the Immigration and Refugee Board of Canada stated that the Yibir are feared for

their perceived sorcery abilities. The Yibir are given gifts when a child is born because

the parents fear that if they do not appease them, the Yibir may cast a spell on the child.

A.R. at 523. In a New York Times article from 2000, the author noted that the Yibir

were forbidden to be educated. A.R. at 526. “Traditionally many earned money through

8 the Somali belief, stretching back perhaps centuries, that it is lucky to give the Yibir a

small amount of money when a son is born or at a marriage.” A.R. at 526-27.

Another article lends support to Shire’s testimony that the militia men believed

that he could cure the mentally ill girl. In the article, published in 2013 by the Genetic

Literacy Project, the author discussed the role of members of the Yibir tribe as providers

of medicine.

Historically, the Yibir have practiced a diversity of peddling trades such as folk medicine, spirituality and magic. Although considered a low caste, and in light of the scarcity of modern medical services in contemporary Somalia, Yibir healers and medicine-men provided the clan communities with indispensable folk medical services. As part of their traditional professional practices, they made and sold varieties of herbal medicines, performed traditional surgery involving circumcision, and specialized in the treatment of bone fractures. Midwifery is a popular Yibir specialization.

By tradition, Somalis believe that the Yibir possess dangerous supernatural powers. Taking advantage of this belief, Yibir spiritualists performed a variety of protection rituals for pay. Although they used Quranic scriptures in their rituals, research has indicated that the rituals encompass a range of seemingly pre-Islamic pagan traditions.

An old cultural tradition entitles Somalis to pay a fee to the Yibir, called samanyo, as retribution for the death of one of the Yibir’s historic leaders. If the fee is not paid, Somalis believed that the Yibir would curse them.

A.R. at 529.

Thus, there is evidence in the record that a link still exists between members of the

Yibir tribe and perceived supernatural powers. There is also evidence that Shire’s family

was believed to be associated with witchcraft. As noted above, Shire’s grandfather

allegedly was a well-known spiritual leader who helped sick people. While growing up,

Shire heard his father called “witch” and “dirty blood.” Shire also pointed to an article

9 regarding a man who was executed by Al-Shabaab after being accused of witchcraft.

A.R. at 421. While the man’s tribal membership is not noted, this is evidence that some

Somalis still believe that witchcraft is practiced, and such an accusation can result in

death.

We agree with the Government that a remand is needed for the BIA to reconsider

whether the evidence establishes a nexus between the harm Shire endured and his tribal

membership.

CAT relief

To be eligible for withholding of removal under the CAT, Shire needs to

demonstrate that it is more likely than not that he would be tortured if removed to

Somalia.

(c)(2). The BIA concluded that Shire did not meaningfully

challenge the IJ’s determination that Shire had not shown that any torture would occur

with governmental acquiescence. It also stated that in light of the evidence showing that

the government has taken steps to stop Al-Shabaab and in the absence of evidence that

the government would not stop the tribal militias, it would uphold the IJ’s denial of

Shire’s CAT claim.

However, there is evidence in the record that the government might not stop the

tribal militias. In an affidavit in support of his application for relief, Shire stated that he

had been tortured by the “clan militia, who are allies of the Government and are in

effective control of Luuq [his hometown].” A.R. at 406. When asked by the

Government at his hearing if the militia men were part of the army, Shire responded that

“[t]hey are not part of the government or the African union forces, but they are 10 representing the government in controlling the area that we live.” A.R. at 185. Thus, he

averred that he had no other authorities to go to for protection. A.R. at 411. The United

States Department of State Country Report on Human Rights Practices in Somalia for

2016 noted that:

Impunity generally remained the norm. Governmental authorities took minimal steps to prosecute and punish officials who committed violations, particularly military and police officials accused of committing rape, killings, clan warfare, and extortion of civilians.

Clan militias and al-Shabaab continued to commit grave abuses throughout the country, including extrajudicial and politically motivated killings; disappearances; cruel and unusual punishment; rape; and attacks on employees of nongovernmental organizations (NGOs), the United Nations, and diplomatic missions.

A.R. at 224. The Country Report also noted that “[g]overnment security forces and

allied militias, other persons wearing uniforms, regional security forces, al-Shabaab, and

unknown assailants committed arbitrary or unlawful killings.”

(emphasis added)

While the Government seeks a remand for the BIA to reconsider Shire’s asylum

and withholding claims, given the evidence of ties between Somali government forces

and the militia, the BIA may also wish to reconsider its decision on Shire’s CAT claim.

Motion to Reopen

The BIA treated Shire’s motion to reopen as a motion to remand. A motion to

remand is the functional equivalent of a motion to reopen. Korytnyuk v. Ashcroft,

(3d Cir. 2005). A motion to reopen must establish prima facie eligibility

for asylum or other relief. Sevoian v. Ashcroft,

, 173 n.5 (3d Cir. 2002). In

order to make a prima facie case, the applicant must produce evidence demonstrating a

11 “reasonable likelihood” that he is entitled to relief. Guo v. Ashcroft,

(3d Cir. 2004). Under

(c), the BIA may not grant a motion to reopen

unless the evidence offered is material and was previously unavailable.

Shire alleged in the motion to reopen that his father had been killed by Al-Shabaab

based on accusations of witchcraft. The BIA determined that Shire had not provided

enough evidence to link the killing to the allegations. It is not clear what evidence the

BIA expected a detained pro se litigant to obtain from his family in a refugee camp in the

chaos of Somalia, to the extent that they are even still there. The evidence is new and

strengthens Shire’s application for relief. The BIA may wish to reconsider its decision

with respect to Shire’s motion to reopen.

For the above reasons, we will grant the Government’s motion to remand. Shire’s

motion for the appointment of counsel for the petition for review is denied as moot. As

Shire is not subject to removal while his appeal before the BIA remains pending, see

(a), we will deny the motion to stay removal as moot. If Shire desires

review of any final order of removal entered on remand, then he must file a petition for

review within thirty (30) days of the order. The temporary stay of removal granted by

the Clerk of this Court on January 18, 2018, is lifted.

12