Summary
The Eleventh Circuit dismissed in part and denied in part Hassan Farah’s petition for review of a BIA order confirming his removability as a criminal alien from Somalia. The court held that his Minnesota controlled-substance conviction was a removable offense because the statute is divisible and the modified categorical approach showed possession of a federally controlled substance; alternatively, his second-degree assault conviction was a crime of violence constituting an aggravated felony. The court also found no legal error in the BIA’s denial of a refugee inadmissibility waiver and its reasoned consideration of Farah’s applications for withholding of removal and protection under the Convention Against Torture. On the habeas appeal, the court held that detention during a stay of removal is governed by 8 U.S.C. § 1226(c), not § 1231(a), but because the stay was dissolved, the habeas petition was moot as to § 1226(c) and not ripe as to § 1231(a), so the district court’s denial was vacated and remanded with instructions to dismiss.
Topics
Questions Presented
- Whether Farah's defective notice to appear violated the agency's claim-processing rules.
- Whether Farah is removable for his controlled-substance conviction.
- Whether Farah is removable for his second-degree assault conviction as an aggravated felony.
- Whether the Board erred in denying the refugee inadmissibility waiver.
- Whether the Board erred in denying withholding of removal and protection under the Convention Against Torture.
- Whether the habeas petition should be granted.
Holdings
- Farah failed to exhaust the claim-processing argument before the Board, so the court lacks jurisdiction to review the issue.
- The Minnesota controlled-substance statute is divisible, and the modified categorical approach shows Farah was convicted of a removable offense.
- Second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1, is a crime of violence under 18 U.S.C. § 16(a), making Farah removable as an aggravated felon.
- The Board applied the correct legal standard from In re Jean and did not err in its discretionary denial.
- The Board gave reasoned consideration and substantial evidence supports its decision.
- The habeas petition is moot as to detention under section 1226(c) and not ripe as to detention under section 1231(a) because the removal period has not begun due to the stay of removal.
Key quotations
“We hold that section 1231(a) does not govern the detention of an alien whose removal has been stayed pending a final order from the reviewing court.” (at 35)
“If evidence is highly relevant, the Board must at least acknowledge that evidence, either implicitly or explicitly, in its decision.” (at 28)
Factual background
Hassan Farah was born in Somalia and entered the United States as a refugee. He was convicted of several crimes in Minnesota, including fourth-degree assault, second-degree assault, and controlled-substance offenses. The government initiated removal proceedings, and Farah conceded removability but later sought to reopen proceedings. He applied for withholding of removal and relief under the Convention Against Torture, claiming fear of persecution as an Americanized Somali moderate Muslim. The immigration judge denied relief, the BIA affirmed, and Farah petitioned for review. He also filed a habeas petition challenging his prolonged detention, which the district court denied.
Procedural history
The Board of Immigration Appeals affirmed the immigration judge's decision ordering Farah's removal and denying his applications for withholding of removal, protection under the Convention Against Torture, and a refugee inadmissibility waiver. The district court denied Farah's habeas petition challenging his detention. Farah appealed both decisions, and the appeals were consolidated.
Remand instructions
The district court is instructed to dismiss Farah's habeas petition as moot in part and not ripe in part.