Yahye Herrow v. ATTORNEY GENERAL UNITED STATES OF AMERICA On Petition for Review of an Order of the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 22-1854
____________
YAHYE HERROW,
Petitioner
v.
ATTORNEY GENERAL
UNITED STATES OF AMERICA
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A075-713-985)
Immigration Judge: David W. Crosland
Argued on March 22, 2023
Before: RESTREPO, PHIPPS and ROTH, Circuit Judges
(Opinion filed: February 13, 2024)

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Christopher M. Casazza
Caitlin J. Costello (ARGUED)
Palladino, Isbell & Casazza
1528 Walnut Street
Suite 1701
Philadelphia, PA 19102
Counsel for Petitioner
Michael Engler
Tracie N. Jones (ARGUED)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878 Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
O P I N I ON
ROTH, Circuit Judge:
Yahye Herrow petitions for review of the Board of
Immigration Appeal’s (BIA) denial of his claims for
withholding of removal and relief under the Convention
Against Torture (CAT). He contends that the BIA erred in
failing to consider evidence favorable to his CAT claim and in

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finding that “Repatriated Minority Somalis” does not
constitute a cognizable particular social group. We agree with
the BIA that “Repatriated Minority Somalis” does not
constitute a cognizable particular social group. Therefore, we
will deny his claim for withholding of removal. However, we
conclude that the BIA, in deciding his CAT claim, failed to
consider evidence favorable to Herrow. For that reason, we
will remand his petition as it applies to that claim.
I. BACKGROUND
A. Factual Background
Yahye Herrow is a member of the Bandabow Tribe,1
which is a sub-clan of the Reer Hamar Benadiri. The Reer
Hamar are ethnic Somali Bantus, a minority in Somalia. He
and his family, who lived in Mogadishu, have been targeted
because of their tribal affiliation. The Darod and Hawiye tribes
burned the homes of his people, who “did not have any
rights.”2 Al Shabaab3 and other terror groups have also
subjected his family to violence. Herrow’s brother, Usman,
died in a 2005 hotel explosion that killed 700 people. A
bombing in Mogadishu also killed Herrow’s sister, Fatima.
In 1992, Herrow and his family fled Mogadishu. Days
1 The record includes varied spellings of Bandabow, including
Bandawow and Bandhowow. Each refers to the same minority
clan to which Herrow belongs.
2 Certified Administrative Record (CAR) 112.
3 Al-Shabaab, Al-Shabbab, Al Shabbab, Al Shabaab, and the
Shabab are used interchangeably throughout the record to refer
to the same group in Somalia.

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later, they arrived in Nairobi, Kenya, where Herrow stayed
until May 2000, when his aunt and clans people arranged for a
smuggler to bring him to the United States.
Herrow arrived in the United States through Mexico
with a Kenyan passport. He immediately applied for asylum.4
In July 2000, Herrow was granted asylum in Los Angeles,
California. He met his wife Munira Mohamed Adan, a U.S.
citizen, in 2001. They are currently married, and she resides in
Minneapolis, Minnesota. One of his brothers still lives in
Somalia, but he does not work and “hides around and lives in
different places.”5 Herrow is not aware of his location.
B. Procedural History
i. Conviction and Notice to Appear
In 2018, a jury in the United States District Court for the
District of Minnesota convicted Herrow of Conspiracy to
Commit Mail Fraud and Wire Fraud, in violation of 18 U.S.C.
§§ 1349 and 1341, for his part in a health-care fraud scheme.6
4 In his 2000 application for asylum, Herrow alleged false facts.
He claimed that the smuggler who brought him to the United
States “told him that he would ‘get farther’ if he adopted the
narrative his smuggler wrote out for him [and the smuggler]
insisted that this was the only way for [Herrow] to obtain
asylum.” CAR 78.
5 CAR 229.
6 As part of a scheme to bill insurance companies for services,
a chiropractic medical office, for which Herrow was already
working as a driver, paid him between $100 to $200 for
bringing in individuals involved in car accidents. Herrow

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The court sentenced Herrow to twelve months and one day
incarceration.
In 2019, the U.S. Department of Homeland Security
issued Herrow a Notice to Appear, charging him with removal
under § 237(a)(2)(A)(iii) of the Immigration and Nationality
Act (INA) due to his conviction.
ii. Herrow’s I-28, I-485, I-605, I-589, and Accompanying
Evidence
To obtain relief from removal, Herrow submitted a
Form I-485 (Application to Register Permanent Residence or
Adjust Status), a Form I-602 (Application by Refugee for
Waiver of Grounds of Excludability), and a Form I-589
(Application for Asylum, Withholding of Removal, and Relief
under CAT).
In his brief in support of his submissions, Herrow
asserted a fear of persecution and torture in Somalia due to his
membership in five separate particular social groups, including
“Repatriated Minority Somalis.”7 He also claimed that the
Somali government and Al Shabaab will subject him to torture
because of his “westernization”; his extended time abroad; the
suspicion that he is a Western spy; his minority status as a
Bantu; his lack of clan ties; the perception that he could pay
ransom; and his refusal to adhere to Al Shabaab’s rigid and
extreme views of Islam.8 In his submissions, he also pointed
referred approximately 19 patients to the clinic, making around
$2,000 in total as a “runner.” CAR 267.
7 CAR 275.
8 CAR 278.

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to the government’s acquiescence in Al Shabaab’s conduct.
With his brief, Herrow submitted a wide range of
evidence: The U.S. Department of State’s 2019 Human Rights
Report on Somalia; Human Rights Watch’s 2020 Somalia
report; Amnesty International’s 2019 Somalia report; and the
Canadian Government Report on Somalia. Herrow also
attached a Georgetown Immigration Law Journal article
surveying the experience of twenty Somali Bantus (the Somali
minority to which Herrow and other Reer Hamar belong) who
were deported and returned to Somalia between 2016 and 2018
(the Georgetown Article). In addition, Herrow included two
declarations from a 2017 case concerning deportees in
Somalia, as well as numerous articles highlighting clan
relationships and status, Al Shabaab and its treatment of
returnees, and acquiescence and instability in the government
and police forces.
iii. May 2020 Merits Hearing
In May 2020, the Immigration Judge (IJ) held a merits
hearing. Herrow withdrew his I-485 and I-602 applications
and proceeded on only his I-589 (Application for Asylum,
Withholding of Removal, and Relief under CAT).
Herrow testified that if he were to go back to Somalia,
Al Shabaab would target him due to his membership in a
particular social group, his life in the United States, and his
status as a repatriated minority Somali. In Herrow’s words, Al
Shabaab has “infiltrated every part of the government. They’re
at the airport. They are, you know, everywhere. And [if] they

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find me, they will kill me.”9 He believes he would be targeted
because he is perceived as a U.S. spy and his culture has
changed. He testified that “it’s not if, it’s when they’ll cut me
into pieces.”10 He explained that people who have previously
returned have been killed or jailed. He testified that Al
Shabaab has infiltrated the police and government, so there is
nowhere to go. Al Shabaab is in the government and works
with the government. They have an agenda and they
“assassinate ministers and anybody they want . . . , put[ting]
bombs on the street and kill[ing] people that way.”11
iv. Decision of the Immigration Judge
The Immigration Judge (IJ) terminated Herrow’s
asylum status and denied his applications for relief, ordering
him removed to Somalia. The IJ found Herrow credible.
However, because of his criminal conviction and because his
original asylum petition recited false facts, the IJ terminated
his asylee status. Due to his conviction, the IJ denied his new
application for asylum.
The IJ also denied Herrow’s application for withholding
of removal under INA § 241(b)(3). First, the IJ found that, of
Herrow’s proposed groups, only the “Reer Hamar or
Bandabow clan/tribe” constitutes a particular social group.12
Second, the IJ found that the record did not support a clear
probability of future persecution of Herrow based on his
9 CAR 213–14.
10 CAR 233.
11 CAR 232.
12 CAR 129.

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membership in this group.13 Finally, the IJ rejected Herrow’s
contention that the government of Somalia is unwilling or
unable to protect him from the persecution he fears upon return
to Somalia.
Turning to CAT, the IJ rejected Herrow’s application
for protection. The IJ concluded that Herrow is not likely to
face torture beyond the risk common to all returnees.
v. Appeal to the Board of Immigration Appeals
Herrow appealed the IJ’s decision. With regard to
withholding of removal, Herrow made three arguments: first,
that the IJ erred in finding that “Minority Somalis,” “Minority
Somalis who lack clan and/or family ties,” and “Repatriated
Minority Somalis” are not cognizable social groups;14 second,
that the IJ erred in finding that the evidence does not show that
he would be subject to a pattern or practice of persecution if he
returned to Somalia; third, that the IJ erred in finding that the
“record does not reflect that the government of Somalia is
unwilling or unable to protect [Herrow] from the persecution
he fears.”15
With regard to CAT, Herrow made several arguments:
first, that the IJ erred in failing to apply the legal standard we
set out in Myrie v. Attorney General;16 second, that the IJ
applied the wrong standard in determining whether Herrow
would be tortured if he returned to Somalia; finally, that the IJ
13 CAR 131.
14 CAR 72.
15 CAR 73.
16 855 F.3d 509 (3d Cir. 2017).

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did not consider all of the evidence in the aggregate in making
its determination.
The BIA dismissed Herrow’s appeal, ordering his
removal to Somalia. As is relevant here, the BIA agreed with
the IJ’s determination that “Repatriated Minority Somalis” is
not a cognizable particular social group because the terms
“minority” and “repatriated minority” are “too amorphous,
overbroad, and diffuse.”17 Further, the BIA, in applying Myrie
and citing to the IJ’s opinion, found that Herrow failed to allege
a sufficient likelihood of harm or to assert whether the harm
amounted to torture and whether the government of Somalia
would acquiesce in that torture.
Herrow now petitions for our review of three issues: (1)
whether the BIA erred in finding that “Repatriated Minority
Somalis” is not a cognizable social group; (2) whether the BIA
erred in finding that Herrow was not likely to face torture in
Somalia; and (3) whether the IJ erred in finding that the Somali
government would not acquiesce in torture.18
II. JURISDICTION AND STANDARD OF
REVIEW
The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction under 8 U.S.C. § 1252(a).19
17 CAR 12–13.
18 Petitioner Br. 1–2.
19 The government submitted a letter pursuant to Federal
Rules of Appellate Procedure Rule 28(j) acknowledging our
jurisdiction under § 1252(a).

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Where the BIA affirms the decision of the IJ and “set[s]
forth somewhat its own rationale and analysis,” we review both
the BIA’s and the IJ’s decisions.20 However, “[i]f the Board
relies only on some of the grounds given for denying relief, we
review only th[ose] grounds.”21 We review the BIA’s
affirmance of an IJ’s factual findings under a substantial
evidence standard.22 In essence, “administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.”23 We review the IJ’s
and BIA’s legal determinations, including mixed questions of
law and fact, de novo.24
III. DISCUSSION
A. Convention Against Torture
Herrow claims that the BIA and IJ erred in denying his
CAT claim and in finding that (1) he is unlikely to face torture
and (2) the Somali government would not acquiesce in such
torture. Because the BIA and IJ ignored evidence favorable to
Herrow, we will grant his petition in part and remand for a
more comprehensive review of the evidence.
20 Leia v. Ashcroft, 393 F.3d 427, 433 n.5 (3d Cir. 2005);
Myrie, 855 F.3d at 515.
21 Myrie, 855 F.3d at 515 (citing Chukwu v. Att’y Gen., 484
F.3d 185, 193 (3d Cir. 2007)).
22 Tarrawally v. Ashcroft, 338 F.3d 180, 184, 186 (3d Cir.
2003); Myrie, 855 F.3d at 516–17.
23 INA § 242(b)(4)(B), codified at 8 U.S.C. § 1252 (b)(4)(b).
24 Arreaga Bravo v. Att’y Gen., 27 F. 4th 182, 185 (3d Cir.
2022); Myrie, 855 F.3d at 516–17; Matter of Cabrera, 24 I. &
N. Dec. 459, 460 (BIA 2008).

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The CAT provides that “[n]o State Party shall expel,
return . . . or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of
being subjected to torture.”25 CAT became binding on the
United States in 1994, at which time it became “the policy of
the United States not to expel . . . or otherwise effect the
involuntary return of any person to a country in which there are
substantial grounds for believing the person would be in danger
of being subjected to torture . . . .”26 The burden of proving the
likelihood of torture is on the applicant.27 If the applicant
satisfies that burden, “withholding of removal or deferring of
removal [under CAT] is mandatory.”28
An act constitutes torture if it is:
(1) an act causing severe physical or mental pain
or suffering; (2) intentionally inflicted; (3) for an
illicit or proscribed purpose; (4) by or at the
instigation of or with the consent or acquiescence
of a public official who has custody or physical
control of the victim; and (5) not arising from
25 Art. 3(1), S. Treaty Doc. No. 100–20, 1465 U.N.T.S. 85.
26 Silva–Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir. 2007)
(quoting Foreign Affairs Reform and Restructuring Act of
1998, Pub. L. No. 105–277, div. G., tit. XXII, § 2242, 112
Stat. 2681–822 (codified at 8 U.S.C. § 1231)); U.N. Doc. 571
Leg/SER.E/13.IV.9 (1995).
27 8 C.F.R. § 208.16(c)(2).
28 Silva–Rengifo, 473 F.3d at 64 (citing 8 C.F.R. §§ 1208.16–
18).

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lawful sanctions.29
Herrow contends that the IJ and BIA erred because they
improperly ignored evidence that would lead a rational
factfinder to conclude that he is likely to face torture and that
the Somali government would acquiesce in that torture. We
agree. As is clear under our existing law, the IJ and the BIA
“may not ignore evidence favorable to the [noncitizen].”30
i. Likelihood of Torture
To establish a likelihood of future torture, the record
must demonstrate an aggregate risk of torture to the noncitizen
that exceeds fifty percent.31 In making this determination, the
IJ must address what is likely to happen to the petitioner if
removed,32 and whether “what is likely to happen amount[s] to
the legal definition of torture.”33 In answering these questions
29 Myrie, 855 F.3d at 515 (quoting Auguste v. Ridge, 395 F.3d
123, 151 (3d Cir. 2005)). Herrow need not, however, “establish
that torture is inflicted ‘on account of’ any protected status.”
Silva-Rengifo, 473 F.3d at 64. In essence, Herrow “must
establish a likelihood of being subjected to torturous acts
inflicted “by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” Id. (quoting 8 C.F.R. § 1208.18(a)(1)).
30 Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010) (citing
Espinosa-Cortez v. Att’y Gen., 607 F.3d 101, 107 (3d Cir.
2010)); Quinteros v. Att’y Gen., 945 F.3d 772, 786 (3d Cir.
2019).
31 Kamara v. Att’y Gen., 420 F.3d 202, 213–14 (3d Cir. 2005).
32 Id.
33 Myrie, 855 F.3d at 515.

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here, the BIA and IJ found that Herrow did not demonstrate a
likelihood of torture. We conclude, however, that this
determination could not have been made if all the evidence
presented by Herrow had been properly considered.
The government contends that we should deny
Herrow’s petition under Hernandez Garmendia v. Attorney
General, 28 F.4th 476, 484 (3d Cir. 2022), which requires that
a petitioner put forth evidence that he is likely to be singled out
and tortured.34 We correctly denied Hernandez Garmendia’s
petition under this standard because there was no evidence in
the record to suggest that Hernandez Garmendia would be
singled out and tortured. Here, however, Herrow provided
ample support for his claim that he will be singled out and
tortured if he returns to Somalia due to his status as a returnee
from the United States and as a member of a minority clan.
For example, the IJ concluded that even though “Al-
Shabaab operatives have condemned returnees from Western
countries as ‘infidels’ and threatened to retaliate, and even to
kill, those suspected of spying,” Herrow “was unable,
especially in light of his twenty-eight-year absence from the
country, to provide any reason for why he would be singled out
for torture.”35 It is exactly that twenty-eight-year absence,
however, that supports his being singled out. The IJ ignored
extensive evidence in the record, including reports and
declarations of experts, that returnees from the United States
are easily identifiable as “American” because of clothing,
learned gestures, weight, lighter skin color, and accent. The IJ
did not engage with this evidence. In fact, the IJ found Herrow
34 Dkt. 33 at 13:21–25.
35 CAR 102.

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credible but ignored his assertions that Al Shabaab would
target him due to his shaved head, size, cultural differences,
and tribe. The evidence demonstrates that returnees like
Herrow are “considered inherently suspect” and “targeted for
violence and death on this basis.”36
The IJ also failed to engage with other evidence in the
administrative record demonstrating a likelihood of torture to
Herrow. For example, the IJ makes no reference to the
Georgetown Article, in which the author surveyed the twenty
Somali Bantus deported and returned to Somalia between 2016
and 2018. Of these, fifty-five percent reported being tortured
upon their return. In fact, of those returned in 2018, 66.7
percent were tortured. Based on Herrow’s identifiable traits
and the statistics garnered in the Georgetown Article, the
evidence does not support the IJ and the BIA’s conclusion that
Herrow “could not articulate why [Al Shabaab] would target
him specifically, aside from happenstance.”37
The IJ asserts that Herrow can mitigate his risk of
torture by relocating to a major urban center, like Mogadishu.
This finding is contrary to the evidence in the record.38 As an
initial matter, the record suggests relocation is difficult, and
36 CAR 312.
37 CAR 135.
38 Herrow rightfully notes that “diminished risk is not the
standard under which we determine the likelihood of torture.”
Dkt. 33 at 25:6–19. Even if Herrow could diminish his risk of
torture by moving to Mogadishu—a claim that finds minimal
support in the record—the BIA and IJ provide no support from
the record to suggest that the risk would diminish to the extent
that Herrow’s risk of torture is less than 50 percent.

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relocation itself can open individuals up to violence and
torture. The U.S. Department of State’s Somalia report states
that “[c]heckpoints operated by government forces, allied
groups, armed militias, clan factors, and al-Shabaab inhibit[]
movement and expose[] citizens to looting, extortion,
harassment, and violence.”39 The airport provides no better
means of relocating. The Georgetown Article notes that “35
percent [of the surveyed individuals] could not even leave the
Mogadishu International Airport without being detained.”40
Ninety percent of those surveyed experienced some form of
abuse, torture, interrogation, or extortion at the airport.
The IJ suggests that Herrow would be safe in
Mogadishu or another city due to the rise in status of his clan,
the Reer Hamar. However, the IJ cherry picks facts from the
record. While one report notes that some Benadiri and Reer
Hamar have acquired positions in the government, most
positions are in local and regional governments. A different
report posits that this representation is minimal and “token.”41
In fact, there is evidence that only a few thousand Benadiri and
Reer Hamar remain in Somalia at this point, with even fewer
in Mogadishu—to the point where the clan has “almost ceased
to exist.”42 They are forced to pay another clan or private
militia for protection or gain protection through the marriage
39 CAR 398.
40 CAR 512
41 CAR 532.
42 CAR 576 (“The minorities’ areas are ghost towns and it is
unknown how many minority group members remain in
Mogadishu.”); CAR 576 (“90% of the Rer [sic] Hamar
population in Mogadishu have left the city as a consequence of
civil war and lack of security for this group.”).

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of their daughters to stronger clans.43 This level of protection
is not afforded to all clan members; those who lack
marriageable daughters or the funds to afford protection are out
of luck. After a twenty-eight-year absence, Herrow, like all
those “who have been in the United States for years or decades
lack[s] any meaningful clan or social networks that are crucial
to maintain what safety can be had in Somalia.”44
Additional evidence also conflicts with the IJ’s finding
that Herrow can mitigate his risk in Mogadishu due to greater
government and police presence. Al Shabaab “maintains a
presence in Mogadishu and is able to attack . . . buildings . . .
and other targets almost at will. . . . It carried out at least 33 car
bombings in Mogadishu from January to November 2017.”45
Herrow points to a number of other attacks in Mogadishu,
including one by a political aide inside the Mogadishu mayor’s
office that led to the mayor’s death.46 The evidence repeatedly
notes that Al Shabaab has significant technical and intelligence
capabilities and has infiltrated government and securities
institutions throughout Somalia, including Mogadishu.
Finally, in addition to issues within the airport itself, the
43 CAR 192 (“for the [Reer Hamar] ‘protection’ has meant
forced payment of bribes and being subjected to extortion by
majority clans’ armed and lawless militias, as a means of
raising illegal revenue—and is more accurately akin to
‘protection rackets’ . . . it is axiomatic, therefore, that a person
must be from a dominant clan to be able to access this kind of
protection.”).
44 CAR 359.
45 CAR 352.
46 In fact, two of Herrow’s siblings were killed in explosions in
Mogadishu.

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Georgetown Article found that twenty percent of those
surveyed were kidnapped and tortured outside the airport
before being able to enter Mogadishu. Further, all of those
surveyed stated “that they were orally or physically abused,
detained for more than four hours, forced to pay a bribe,
interrogated, kidnapped, tortured, or forced to pay ransom”
while in Mogadishu.47 In the City of Kismayu, 66.7 percent of
those surveyed were treated similarly. The IJ engages with
none of this evidence, which taken as a whole cannot support
the conclusion that Herrow “may be able to mitigate some of
his risk by locating to a major urban center.”48
While the IJ noted that it considered all the evidence,
none of the above is specifically mentioned. The IJ need not
address every piece of evidence in the administrative record,
but it cannot ignore evidence favorable to Herrow.49 Because
the IJ does ignore such evidence, we grant Herrow’s petition
for review and remand this case to the BIA for reconsideration
of all evidence before it.
ii. Acquiescence to Torture
Herrow also challenges the IJ’s conclusion that the
evidence does not support a finding that the Somali
government would acquiesce to torture.50
47 CAR 499.
48 See CAR 102.
49 Huang, 620 F.3d at 388.
50 Because the BIA did not reach the issue of acquiescence, we
review the IJ’s findings. See CAR 5 (“Because we uphold this
finding [that there is no likelihood of torture], we need not
address whether the government would acquiesce in

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“Acquiescence of a public official requires that the
public official, prior to the activity constituting torture, have
awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.”51 In
assessing acquiescence, the IJ must ask “how public officials
will likely act in response to the harm the petitioner fears” and
“whether the likely response from public officials qualifies as
acquiescence.”52 An individual can establish acquiescence by
showing that a public official was actually aware of torture or
willfully blind to the torture.53 “[T]he question of whether
likely government conduct equates to acquiescence is a mixed
question of law and fact . . ..”54
Again the IJ’s conclusion that the government’s conduct
would not amount to acquiescence was based on cherry picked
record evidence. The IJ ignored ample evidence favorable to
Herrow that is contrary to its findings. First, the IJ states that
the government would not acquiesce because Reer Hamar has
gained political status and position in the government. The IJ
explains that because of this gained power, “it is unlikely that
[Herrow’s] torture.”).
51 8 C.F.R. § 1208.18(a)(7).
52 Myrie, 855 F.3d at 516. The first question is reviewed for
clear error, while the second question is reviewed de novo. Id.
at 516–17; Arreaga Bravo, 27 F. 4th at 185.
53 Myrie, 855 F.3d at 516; Silva-Rengifo, 473 F.3d at 65 (“The
CAT does not require an alien to prove that the government in
question approves of torture, or that it consents to it. Rather . .
. an alien can satisfy the burden established for CAT relief by
producing sufficient evidence that the government in question
is willfully blind to such activities.”).
54 Myrie, 855 F.3d at 516.

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the government would condone the targeting of one of its
members.”55 As discussed above, that overstates Reer
Hamar’s status and position in the government. It remains a
small community with limited power. And most security
forces are closely identified with a majority clan that likely has
no incentive to protect Herrow.56 A 2017 U.S. Department of
State Human Rights Report on Somalia aptly describes the
implications of this situation, explaining 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, often
with the acquiescence of federal and local authorities.”57
Second, our case law is contrary to the IJ’s finding that
because the Somali government is engaged in an active internal
conflict against Al Shabaab, it has not acquiesced in their
torture. We have held that such facts do not preclude a
showing that a government was willfully blind because “[a]n
applicant can establish governmental acquiescence even if the
government opposes the [] organization that is engaged in
torturous acts.”58
55 CAR 103.
56 See CAR 564 (“To the extent that the population turns to the
police for assistance, they turn . . . to police officers from the
same clan. Other sources also emphasize that the loyalty of the
police and other members of the government forces normally
rests with their own clan.”).
57 CAR 486, 495, 552 (emphasis added) (quoted throughout
record).
58 Myrie, 855 F.3d at 518 (quoting Pieschacon-Villegas v.
Att’y Gen., 671 F.3d 303, 312 (3d Cir. 2011)) (second

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Third, the IJ ignores evidence suggesting the Somali
government’s own participation and acquiescence in the
torture of minority returnees. For example, the IJ never
engages with the fact that “[m]ost instances of detention,
kidnapping, and torture [of the Bantu deportees surveyed in the
Georgetown Article] were carried out by one or more
uniformed Somali government security personnel.”59 In fact,
ninety percent of those surveyed “experienced oral or physical
abuse, detention for more than one hour, forcible payment of a
alteration in original); see also id. at 516 (“Circumstantial
evidence may establish acquiescence to targeted acts of
violence even when the government has an official policy or is
engaged in a campaign of opposition against the entity the
applicant fears.”).
59 CAR 518; see also CAR 486 (“Survey results from the
Somali Bantu deportees reveal that most were kidnaped and
tortured for ransom by uniformed Somali police or armed
groups that the Somali Government was unwilling or unable to
control. Some were kidnapped and tortured for ransom upon
arrival at the Mogadishu International Airport (MIA) by
Somali government security personnel . . . .”); CAR 518 (“Of
the seven instances at MIA, uniformed Somali government
security personnel were responsible for 57.1 percent of
abductions. Of the 4 instances in Mogadishu, uniformed
Somali government security personnel were responsible for 75
percent of the abductions and torture. Of the two instances in
Kismayu, uniformed Somali government security personnel
were responsible for one of the abductions and torture.”
(citations omitted)); CAR 500 (“Of the eight Somali Bantu
deportees who were abused in the City of Kismayu, 50 percent
identified their abusers as the Jubbaland State police and 50
percent as Al Shabaab.”).

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21
bribe, interrogation, torture, or forcible payment of a ransom
by uniformed Somali security personnel stationed at the
airport.”60 To the extent that individuals involved are plain-
clothed and impersonating customs officials, the article authors
suggest that they are “doing so with the consent of actual public
officials,” “evident from the fact that these plain-clothed
individuals are able to detain Somali Bantu deportees in the
airport, a government-controlled facility.”61 Additionally, a
Canadian Government report suggests that, while authorities
have used military courts where security forces abused
civilians, “they generally did not investigate abuse by police,
army, or militia members” and “a culture of impunity was
widespread.”62
Fourth, the IJ ignores evidence that members of Al
Shabaab constitute the government, instead treating them as
separate entities. The IJ’s conclusion that members of Al
Shabaab are rogue operatives attempting to sabotage the
government and that their actions are not that of the
government itself is unsupported by case law. In 2020, the
U.S. Attorney General (AG) rejected the contention that
misuse of government authority or extrajudicial acts do not
qualify as government action.63 Instead, the AG explained that
“[i]t is misuse of authority, ‘made possible only because the
wrongdoer is clothed with the authority’ . . . of law, that may
violate the CAT regulations.”64 Similarly, we agree with the
60 CAR 499.
61 CAR 518.
62 CAR 564.
63 Matter of O-F-A-S-, 28 I. & N. Dec. 35, 41 (2020).
64 Id. (citing West v. Atkins, 487 U.S. 42, 49 (1988)); see also
id. (“By immunizing extrajudicial action by low-level officials

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Fifth Circuit that:
[P]roving action in an officer’s official capacity
“does not require that the public official be
executing official state policy or that the public
official be the nation’s president or some other
official at the upper echelons of power. Rather .
. . the use of official authority by low-level
officials, such a[s] police officers, can work to
place actions under the color of law even where
they are without state sanction.”65
The IJ’s conclusion is unsupported by the evidence. In
many regions of Somalia, Al Shabaab fully governs.
from the CAT's scope, a freestanding ‘rogue official’ rule
would appear to disqualify much of what the ‘under color of
law’ rule might otherwise qualify as ‘torture.’”). To the extent
that rogue officials do act for purely private reasons, the
Second Circuit has suggested that the fact that torture is
“routine” and tied to other criminal justice system objectives
can demonstrate knowledge by officials or willful blindness.
CAR 516 (citing Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d
Cir. 2004)). However, the court noted that “when it is a public
official who inflicts severe pain or suffering, it is only in
exceptional cases that we can expect to be able to conclude that
the acts do not constitute torture by reason of the official acting
for purely private reasons.” CAR 516–17 (quoting Khouzam,
361 F.3d at 171).
65 Marmorato v. Holder, 376 F. App’x. 380, 385 (5th Cir.
2010) (alterations in original) (quoting Ramirez-Peyro v.
Holder, 574 F.3d 893, 901 (8th Cir. 2009)); CAR 516 (quoting
Marmorato, 376 F. App’x at 385).

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23
Meanwhile, in areas run by the Somali government, Al
Shabaab has infiltrated all levels of the government and
security forces. Herrow himself asserts that “they’re the most
powerful in the government.”66 As at least one declaration in
the record notes, “an individual can be a policeman by day and
an Al Shabaab operative by night.”67 The record demonstrates
Al Shabaab’s use of government authority in abducting,
torturing, and attacking civilians, including returnees to
Somalia. It is through its members’ roles in the government
that Al Shabaab can target and keep track of people. It is with
the authority of law, working as Somali security personnel
stationed at the airport, that Al Shabaab is able to kidnap,
abduct, and torture returnees. They can locate individuals and
take action because Al Shabaab “exists right at the heart of
federal government and is ‘present during cabinet
meetings.’”68
Based on ample evidence in the record that the IJ failed
to consider and that contradicts the IJ’s findings on
acquiescence, we will grant Herrow’s petition with respect to
his claim that the BIA ignored favorable evidence, remanding
to the BIA for consideration of all the evidence under the
appropriate legal standards.
B. Withholding of Removal
Herrow claims that the BIA and IJ erred in denying his
withholding of removal claim based on his membership in the
66 CAR 231.
67 CAR 353.
68 CAR 311 (emphasis omitted).

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24
“Repatriated Minority Somalis” group.69 Because we agree
with the BIA and IJ that “Repatriated Minority Somalis” is not
a cognizable particular social group, we will deny Herrow’s
petition in part.
A person is not subject to removal and is granted
withholding of removal if his “life or freedom would be
threatened in that country because of [his] race, religion,
nationality, membership in a particular social group, or
political opinion.”70 To establish membership in a particular
social group, a person must show that the group is “(1)
composed of members who share a common, immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question.”71
A characteristic is immutable if it cannot be changed or
should not “be required to [be] change[d] as a matter of
conscience to avoid persecution.”72 “A group is particularized
if it is discrete, has definable boundaries—as opposed to being
overbroad, diffuse, or subjective . . . .”73 A group’s size,
however, does not preclude it from being cognizable under the
69 The determination of whether a group constitutes a
cognizable social group is reviewed de novo. Matter of W-Y-
C- & H-O-B-, 27 I. & N. Dec. 189, 191 (BIA 2018).
70 8 U.S.C. § 1231(b)(3).
71 Radiowala v. Att’y Gen., 930 F.3d 577, 583 (3d Cir. 2019)
(citing S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir.
2018)); Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA
2014).
72 Radiowala, 930 F.3d at 583.
73 Id.

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25
INA.74 That said, there must be a clear “benchmark for
determining who falls within” the group.75 To be socially
distinct, there must be “evidence that the society in question
recognizes a proposed group as distinct.”76
Here, the BIA held that “Repatriated Minority Somalis”
is not a cognizable social group because the term “repatriated
minority” is “too amorphous, overbroad, and diffuse to satisfy
the particularity requirement.”77 In doing so, it agreed with the
IJ that “minority” can encompass any “relatively small group
of people in Somalia” and is neither “limited to one’s clan
membership” nor “narrowed by any other criterion.”78 We
agree with the IJ’s assessment.
Herrow argues that his proposed group is no more
amorphous than other groups courts have recognized, such as
“Somali females” or “Iranian women.”79 He is mistaken. All
members of those groups share a commonality: they are
women. Meanwhile, as the IJ correctly noted, “minority” can
encompass persons belonging to “tribal, ethnic, religious,
74 N.L.A. v. Holder, 744 F.3d 425, 438 (7th Cir. 2014) (“[I]t
would be antithetical to asylum law to deny refuge to a group
of persecuted individuals who have valid claims merely
because too many have valid claims.”); see also Singh v. I.N.S.,
94 F.3d 1353, 1359 (9th Cir. 1996) (“[W]e reject the notion
that an applicant is ineligible for asylum merely because all
members of a persecuted group might be eligible for asylum.”).
75 Radiowala, 930 F.3d at 583.
76 Id. (quoting S.E.R.L., 894 F.3d at 551).
77 CAR 3.
78 CAR 12.
79 Petitioner Br. 23–24.

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26
cultural, political, and other minorities.”80 While being part of
a minority may be immutable, society may not recognize a
group encompassing all members of all minorities in Somalia
as socially distinct.
The term “repatriated” is similarly overbroad, as it can
encompass individuals absent for days or decades. While
evidence in the record demonstrates that a returnee who has
been absent from Somalia for years may be distinguishable,
there is no evidence that a returnee absent for a few weeks or
months might be. Thus, we agree that, as framed, this group is
“insufficiently socially distinct” as well.81 Therefore, we reject
Herrow’s argument that “Repatriated Minority Somalis” are a
cognizable social group and deny Herrow’s petition for review
of his withholding of removal claim.
IV. CONCLUSION
We will grant in part Herrow’s petition for review and
remand this case to the BIA for consideration of all evidence,
including that evidence which is favorable to Herrow, on his
CAT claim. For the reasons stated above, we will affirm the
dismissal of the remaining claims.
80 CAR 96.
81 CAR 97.

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Herrow v. Attorney General, No. 22-1854
PHIPPS, Circuit Judge, dissenting in part.
The Majority sets aside the final order of removal and
remands this case to the agency on the grounds that the agency
failed to consider evidence favorable to Herrow’s CAT claim.
While I agree with the other holding in the case (that
repatriated minority Somalis do not constitute a cognizable
particular social group), I respectfully disagree with the
conclusion that the CAT claim merits reconsideration by the
agency.
From a casual reading of the Majority Opinion – one
unaccompanied by the administrative record – one could leave
with the impression that the agency ignored an almanac of facts
regarding the torture of repatriated Somalis. That takeaway
would be inaccurate because the facts that the agency did not
specifically address come from a single source: an article
published in the Georgetown Immigration Law Journal. See
Daniel J. Van Lehman & Estelle M. McKee, Removals to
Somalia in Light of the Convention Against Torture: Recent
Evidence from Somali Bantu Deportees, 33 Geo. Immigr. L.J.
357 (2019) (AR484–524). And there was readily apparent
good cause for not crediting those facts.
The article itself lacks many of the traditional indicia of
reliability. Nothing in the administrative record indicates that
the journal is peer-reviewed; rather, it appears to be a student-
run journal. Moreover, the article itself is an advocacy piece.
Its two authors are paid to advocate for refugees – one leads a
law school immigration clinic and the other testifies as an
expert at removal hearings. See id. at 357 n.* (AR484) (stating
that one author “teaches the Asylum and Convention Against
Torture Appellate Clinic” at Cornell Law School, and that the
other “has testified as an expert witness in criminal and
immigration court for Somali minorities, including the Somali
Bantu”). In addition, the article expressly announces its
purpose of demonstrating that “current United States law does

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2
not properly consider the reality of torture and persecution
suffered by the Somali Bantu.” Id. at 360 (AR487). And lest
its character as an advocacy piece be overlooked, the article
closes with an appendix containing an open letter addressed to
the United Nations High Commissioner for Refugees urging
that Somali Bantus be “not returned to Somalia against their
will.” Id. at 396 (AR523).
The article’s methodology further undercuts its reliability.
The article makes broad conclusions about the conditions in a
country of over 20 million people based on interviews of
18 Somalis. That sample size is not only statistically
insignificant, but also the methodology is subjective (since it
bakes in the biases of the participants) and does not lend itself
to independent verification (since it neither includes a list of
interview questions nor offers to make available the
responses). Moreover, the article suffers from selection bias
because a criterion for inviting the participants was the ease of
contacting them, and the article does nothing to rule out the
possibility that the participants may have been former clients
of the clinic administered by one of the authors or persons in
whose favor the other author testified.
Finally, even on its own terms, the article is not reliable.
The demographic data it provides about the participants
indicates that they have differences in birth country, native
language, clan and subclan membership, and religious practice.
Yet the article makes no effort to determine the role that those
other variables may have on the likelihood of torture in
Somalia. Without any attempt at a multivariate analysis, the
article does nothing to rule out another variable or combination
of variables as the cause for the experiences reported by the
participants.
In light of the patent concerns about the article’s reliability,
it is inappropriate, in my view, to set aside the removal order
based on the agency’s failure to explain its decision not to
credit the findings in the article. While an agency has an

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3
obligation to consider the whole record, including evidence
that detracts from its position, see Universal Camera Corp. v.
N.L.R.B., 340 U.S. 474, 488–89 (1951), an agency need not
explain its decision not to credit evidence that has minimal
persuasive value, see Huang v. Att’y Gen., 620 F.3d 372, 388
(3d Cir. 2010). Here, the obvious reliability concerns with the
article make it unnecessary for the agency to specifically
explain why it was not persuaded by the article’s factual
findings. And even if the agency did have to explain why it
gave no meaningful weight to the article’s fact-finding, the
omission of that explanation would be nothing more than
harmless error since, even if considered, the article would not
compel a reasonable adjudicator to reach a contrary
conclusion. See 8 U.S.C. § 1252(b)(4)(B); Garland v. Ming
Dai, 593 U.S. 357, 373 (2021) (“[T]he court of appeals must
accept the agency’s findings of fact as ‘conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.’” (quoting 8 U.S.C. § 1252(b)(4)(B))).
For these reasons, I respectfully dissent in part, and I would
deny the petition.

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