                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-1194
AHMED ALI,
                                            Petitioner-Appellant,
                                v.

DEBORAH ACHIM, MICHAEL CHERTOFF,
and ALBERTO GONZALES,
                               Respondents-Appellees.
                   ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
             No. 04 C 2772—Amy J. St. Eve, Judge.
                         ____________


Nos. 05-2028 & 05-3009
AHMED ALI,
                                                         Petitioner,
                                v.

ALBERTO GONZALES,
                                                       Respondent.
                         ____________
              Petitions for Review of Orders of the
                Board of Immigration Appeals.
                        No. A77-607-113.
                         ____________
  ARGUED JANUARY 9, 2006—DECIDED NOVEMBER 6, 2006
                    ____________
2                         Nos. 05-1194, 05-2028 & 05-3009

    Before POSNER, EVANS, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. Ahmed Ali petitions for review
from the Board of Immigration Appeals’ (“BIA”) final
decision ordering him removed to his native Somalia. He
also appeals from an order of the United States District
Court for the Northern District of Illinois denying his
habeas corpus petition in which he challenged his prolonged
preremoval detention. The government released Ali from
custody shortly before this case was argued, so the habeas
detention challenge is moot and we review only the decision
of the BIA ordering his removal to Somalia. For the reasons
that follow, we deny the petition for review with respect to
the BIA’s denial of waiver of inadmissibility, asylum, and
withholding of removal. We grant the petition with respect
to the BIA’s denial of deferral of removal under the Conven-
tion Against Torture (“CAT”) and remand that claim for
further proceedings.


                     I. Background
  Ali was born in 1980 in Baidoa, Somalia, to a family
belonging to the minority Rahanweyn clan and the Digil
subclan. Since the collapse of its central government in
1991, Somalia has been afflicted by interclan and intraclan
warfare. U.S. STATE DEP’T COUNTRY REPORTS ON HUMAN
RIGHTS PRACTICES (SOMALIA) 2 (Mar. 2006). The State
Department Country Report specifically highlights deadly
infighting among subfactions of the Rahanweyn Resistance
Army in the southern regions of Bay and Bakool. Ali’s
hometown of Baidoa is located in the Bay region.
  According to the uncontradicted testimony of Dr. Said
Samatar, a professor of African History at Rutgers Univer-
sity who gave his expert opinion at Ali’s immigration
hearing, if Ali were returned to the areas of Somalia
controlled by his Rahanweyn clan, “he would face immedi-
ate and present danger” because the region “is in dispute by
Nos. 05-1194, 05-2028 & 05-3009                            3

two factions of the Rahanweyn.” By “immediate and present
danger” he meant Ali was likely to be beaten and robbed
and, “in many places,” would also be targeted for death. Dr.
Samatar indicated Ali would likely be singled out to be
beaten, robbed, or killed because he would be perceived as
wealthy after spending time in the United States and
“because of the intricacy of [his] lineage.” Regarding this
latter point, he described persistent feuds between
subfactions of the Rahanweyn based on lineage, and
testified that the infighting among the Rahanweyn “de-
pends on . . . your clan lineage.” Dr. Samatar testified that
Ali would fare no better in another part of Somalia not
controlled by the Rahanweyn. In non-Rahanweyn-controlled
regions, he said, Ali would be targeted by members of the
local dominant clan because of his status as a Rahanweyn.
  Shortly after the outbreak of clan-based violence in 1991,
two of Ali’s brothers were killed—one by a stray bullet, the
other by street gangs. In 1994 warlords from the dominant
Hawiye clan who were affiliated with the United Somali
Congress (“USC”) invaded Baidoa. USC soldiers shot at
Ali on two or three occasions, and he describes “constantly
running from the USC military” as a teenager. Hawiye
militiamen subjected him to several beatings. In 1996,
when Ali was sixteen years old, USC soldiers raided the Ali
family’s home in Baidoa and attempted to rape Ali’s older
sister. When she resisted, they killed her. Both the at-
tempted rape and murder happened in front of Ali.
  Soon after his sister’s murder, Ali and the rest of his
family fled to a town near the Somali-Kenyan border. There
they again experienced clan-based persecution, this time at
the hands of the Darod clan. The Rahanweyn were easily
identified by the Darods because they spoke a different
dialect. In one incident, a member of the Darod militia
demanded that Ali put his penis into an exhaust pipe; Ali
refused and was beaten. He understood this kind of abuse
4                         Nos. 05-1194, 05-2028 & 05-3009

as an attempt to humiliate the members of minority clans
like the Rahanweyn.
  In 1998 Ali and his family fled to Kenya, and in 1999 the
United States admitted them as refugees. Ali settled in
Madison, Wisconsin, with one of his sisters; his parents
moved to Minnesota. He worked a variety of jobs in Madi-
son and attended the Madison Area Technical College. Even
after moving to Madison, however, Ali suffered nightmares
about the atrocities he witnessed and experienced in
Somalia, especially his sister’s murder. He says the night-
mares caused him to develop a drinking problem and to
struggle with depression and insomnia.
  Ali was involved in a string of altercations in Madison,
starting with an incident in April 2000 where he accepted
a ride in a car from three men and a woman. They drove
him to a park in Madison, beat him up, and hit him with a
beer bottle. His lip was cut and he received medical treat-
ment at a hospital. Two months later Ali crossed paths with
one of the men from the April 2000 incident. They started
to fight, the police responded, and both Ali and the other
man were cited for disorderly conduct.
  Then, on June 30, 2000, Ali got into yet another fight with
the same man when he spotted him on State Street in
downtown Madison. Ali gave the following statement to
police officers investigating the incident: “If someone
does something to you, you don’t forget. I knew it was a
mistake and I went after him and I punched him first
and he put me on the ground and that’s when I got the knot
on my head and it was an eye for an eye yesterday.” During
this altercation, Ali produced a box-cutting instrument and
cut the other man about the face, chest, hand, shoulder, and
back, saying, “I’m gonna kill you all.”
 Ali was arrested and charged in Dane County Circuit
Court with substantial battery with intent to cause sub-
Nos. 05-1194, 05-2028 & 05-3009                             5

stantial bodily harm by using a dangerous weapon in
violation of sections 940.19(3) and 939.63 of the Wisconsin
Statutes. He was released on his own recognizance on
condition that he not return to the vicinity of State Street
where the June 30 fight occurred. Ali violated this condition
by going to State Street—he says he was there to catch a
bus to school—and he was again arrested and released.
During this period of release, Ali was diagnosed with
posttraumatic stress disorder caused by his experiences in
Somalia.
  Ali pleaded no contest to the felony charge of substantial
battery with a dangerous weapon and was placed on
probation for seven years and ordered to serve an eleven-
month term of incarceration in the local work release
facility. Ali completed his eleven-month term in June 2002
and was turned over to federal immigration authorities who
initiated removal proceedings against him because of his
felony battery conviction.
   Ali conceded removability on account of his conviction, but
sought relief from removal in the form of a waiver of
inadmissibility, asylum, withholding of removal, and
deferral of removal under the CAT. After two-and-a-half
years of administrative proceedings, the BIA ultimately
denied all of Ali’s claims for relief. The BIA applied the
standard set forth in Matter of Jean, 23 I. & N. Dec. 373
(A.G. 2002), to deny Ali a waiver of inadmissibility because
he committed a violent crime and had not shown an
“exceptional and extremely unusual hardship.” Citing Ali’s
conviction for substantial battery with a dangerous weapon,
the BIA also found him ineligible for asylum and withhold-
ing of removal because he had committed a “particularly
serious crime.” Finally, the BIA refused to grant Ali
deferral of removal under the CAT because it concluded he
had not shown he would more likely than not suffer torture
if returned to Somalia. Ali petitioned this court for review.
6                           Nos. 05-1194, 05-2028 & 05-3009

                       II. Discussion
A. Jurisdiction to review discretionary decisions
  The government first challenges our jurisdiction to
consider the BIA’s discretionary decisions denying waiver
of inadmissibility and finding Ali ineligible for asylum
and withholding of removal. Section 1252(a)(2)(B) generally
deprives courts of jurisdiction to review discretionary
denials of immigration relief, and § 1252(a)(2)(C) strips
courts of jurisdiction to review final removal orders
against aliens who are removable by reason of having
committed certain crimes. 8 U.S.C. § 1252(a)(2)(B), (C). But
there is an exception for constitutional claims and questions
of law: the statute provides that neither subparagraph (B)
or (C) of § 1252(a)(2) precludes judicial “review of constitu-
tional claims or questions of law raised upon a petition for
review filed with an appropriate court of appeals.” 8 U.S.C.
§ 1252(a)(2)(D); Sokolov v. Gonzales, 442 F.3d 566, 569 (7th
Cir. 2006).
  So while we lack jurisdiction to review the Attorney
General’s exercise of discretion to grant or deny relief to
an alien (or, more commonly, the discretionary decision of
the BIA acting on the Attorney General’s behalf ), we retain
jurisdiction to examine whether the correct legal standard
was applied to the alien’s claim for relief. See Jean v.
Gonzales, 452 F.3d 392, 396 (5th Cir. 2006). Accordingly, we
proceed to Ali’s argument that the BIA evaluated his claims
using improper legal standards.


B. Matter of Jean standard
  An alien who commits a “crime of moral turpitude”
generally may not be admitted to the United States.1



1
  Ali concedes that his conviction for substantial battery with a
dangerous weapon was a crime of moral turpitude.
Nos. 05-1194, 05-2028 & 05-3009                             7

8 U.S.C. § 1182(a)(2)(A)(i)(I). But Congress has given the
Attorney General and the Secretary of Homeland Secur-
ity permissive discretion to waive a refugee’s inadmissi-
bility “for humanitarian purposes, to assure family unity, or
when it is otherwise in the public interest.” 8 U.S.C.
§ 1159(c). In Matter of Jean, 23 I. & N. Dec. 373 (A.G. 2002),
the Attorney General declined to waive inadmissibility for
a Haitian refugee who pleaded guilty to second-degree
manslaughter after beating and shaking a nineteen-month-
old child to death. Matter of Jean, 23 I. & N. Dec. at 374-75.
The Attorney General articulated a heightened standard for
waiving the inadmissibility of refugees who have been
convicted of violent or dangerous crimes. Under the Matter
of Jean standard, aliens convicted of “violent or dangerous”
criminal acts will not be allowed to adjust their status
under § 1159(c) “except in extraordinary circumstances,
such as those involving national security or foreign policy
considerations, or cases in which an alien clearly demon-
strates that the denial of status adjustment would result in
exceptional and extremely unusual hardship.” Matter of
Jean, 23 I. & N. Dec. at 383.
  Ali argues that the heightened standard established in
Matter of Jean for waiving the inadmissibility of refugees
who commit violent crimes is inconsistent with and unau-
thorized by § 1159(c). He contends the BIA should have
evaluated his request for a waiver of inadmissibility by
looking at the totality of the circumstances in his case,
including his family’s experiences in Somalia, his
posttraumatic stress disorder, his victim’s previous attack
against him, and his ties to family in the United States. He
asserts that § 1159(c) spells out a “three-part test” for
inadmissibility waivers that the BIA was required to follow.
  We think Ali reads too much into the statute and over-
states the scope of the Matter of Jean standard. First,
§ 1159(c) does not contain a “three-part test,” nor does it
direct the Attorney General to conduct a “totality of the
8                         Nos. 05-1194, 05-2028 & 05-3009

circumstances” analysis when deciding whether to grant an
inadmissibility waiver. The statute says the Attorney
General or Secretary of Homeland Security “may waive” a
refugee’s inadmissibility for “humanitarian purposes, to
assure family unity, or when it is otherwise in the public
interest.” 8 U.S.C. § 1159(c) (emphasis added). Nowhere
does the statute require the Attorney General to waive
any refugee’s inadmissibility; the language is completely
permissive, giving the Attorney General the discretion to
decide on a case-by-case basis whether to grant relief
for any of the three listed reasons.
  After we heard oral argument in this case, two other
federal courts of appeals considered similar challenges to
the Matter of Jean standard and rejected them in published
opinions. In the first of these decisions, Rivas-Gomez v.
Gonzales, 441 F.3d 1072 (9th Cir. 2006), the Ninth Circuit
observed that the Attorney General possesses “broad
discretion to grant or deny waivers and may establish
general standards governing the exercise of such discretion
‘as long as these standards are rationally related to the
statutory scheme.’ ” Id. at 1078 (quoting Ayala-Chavez v.
INS, 944 F.2d 638, 641 (9th Cir. 1991)). The court approved
Matter of Jean’s heightened waiver standard for refugees
who commit violent crimes because it found the standard
was rationally related to the “national immigration policy
of not admitting aliens who would be a danger to society.”
Rivas-Gomez, 441 F.3d at 1078.
  The Fifth Circuit reached the same conclusion in Jean v.
Gonzales, 452 F.3d at 396-98. This was petitioner Jean’s
appeal from the Attorney General’s decision in Matter
of Jean. Jean argued, as Ali does here, that the Attorney
General’s heightened standard for refugees who commit
violent crimes was not authorized by 8 U.S.C. § 1159(c). The
Fifth Circuit disagreed because “the Attorney General did
not add a class of aliens to those who are statutorily
inadmissible for waiver, nor did he instruct the BIA
Nos. 05-1194, 05-2028 & 05-3009                               9

to ignore statutory considerations of family unity, humani-
tarian concerns, and public interest.” Jean, 452 F.3d at
397 (citing Togbah v. Ashcroft, 104 Fed. Appx. 788, 794 (3d
Cir. 2004) (unpublished)). Because Matter of Jean’s height-
ened waiver standard for violent criminal refugees was
“rational and connected to the statutory scheme,” the Fifth
Circuit held the Attorney General permissibly exercised the
broad discretion conferred upon him by § 1159(c). Id.
  We agree with our sister circuits that the Attorney
General did not exceed his statutory authority when he
articulated the heightened waiver standard in Matter of
Jean. The Matter of Jean standard is not like the regulation
successfully challenged in Succar v. Ashcroft, 394 F.3d 8
(1st Cir. 2005), a case on which Ali relies. Succar held that
where 8 U.S.C. § 1255(a) lists categories of aliens who may
apply to the Attorney General for a discretionary adjust-
ment of immigration status, the Attorney General—in the
exercise of that discretion—may not promulgate a regula-
tion that effectively amends the statute by completely
barring subcategories of aliens from applying for adjust-
ment. Succar, 394 F.3d at 21. The court found such a
regulation would contradict the statute because § 1255(a)
did not give the Attorney General the discretion to decide
who could apply for adjustment, it only gave him the
discretion to decide who should be granted adjustment. Id.
at 28.
  But in Matter of Jean the Attorney General did not
categorically exclude violent or dangerous criminal refugees
from applying for an inadmissibility waiver, nor from being
granted such a waiver. Matter of Jean simply says the
Attorney General will, in the exercise of his statutorily
conferred discretion, require a more compelling showing of
hardship from refugees who make themselves inadmissible
by committing violent crimes. Jean, 23 I. & N. Dec. at 383.
Succar itself spells out this distinction: “Congress’s eligibil-
ity determinations do not limit the considerations that may
10                          Nos. 05-1194, 05-2028 & 05-3009

guide the Attorney General in exercising his discretion to
determine who, among those eligible, will be accorded
grace.” Succar, 394 F.3d at 29 n.28 (quotation marks and
citations omitted). See also Jean, 452 F.3d at 397 (“[T]he
Attorney General did not add a class of aliens to those who
are statutorily inadmissible for waiver . . . . He left open the
possibility that even the most violent and dangerous
immigrants could be granted relief in an appropriate
case.”). The Attorney General acted within the discretion
conferred by § 1159(c) when he established the heightened
waiver standard for violent or dangerous criminal refugees
in Matter of Jean.


C. A “particularly serious crime”
  Ali next argues that the BIA erred when it found he
committed a “particularly serious crime,” a finding that
made him ineligible for asylum and withholding of removal.
The immigration statutes give the Attorney General—by
extension, the BIA—discretion to determine whether aliens
are eligible to receive asylum and withholding of removal.
8 U.S.C. §§ 1158(b)(2)(A)(ii) and 1231(b)(3) (B)(ii).2 As we
have noted, courts generally lack jurisdiction to review the
Attorney General’s discretionary immigration decisions, but
§ 1252(a)(2)(D) authorizes us to address the questions of
law raised by Ali’s challenge to the BIA’s finding that he
committed a particularly serious crime.
  Ali’s appeal presents questions of law because he chal-
lenges the BIA’s interpretation of the term “particularly
serious crime” in the asylum and withholding statutes. He



2
   Withholding of removal is a mandatory form of relief to which
eligible applicants are entitled, 8 U.S.C. § 1231(b)(3)(A), but
the Attorney General has discretion to determine who is eligible.
8 U.S.C. § 1231(b)(3)(B).
Nos. 05-1194, 05-2028 & 05-3009                             11

argues that the plain language of those statutes should
have precluded the BIA from holding that his conviction for
substantial battery with a dangerous weapon constituted a
“particularly serious crime.” Where, as here, we are asked
to review “ ‘an agency’s construction of the statute which it
administers,’ ” we apply “the principles of deference de-
scribed in Chevron U.S.A. v. Natural Resources, Defense
Council, Inc., 467 U.S. 837, 842 (1984).” INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999) (quoting Chevron, 467
U.S. at 842).
   If the statute at issue speaks clearly and directly to the
question at hand, “that is the end of the matter; for the
court, as well as the agency, must give effect to the unam-
biguously expressed intent of Congress.” Chevron, 467 U.S.
at 842-43. But when “the statute is silent or ambiguous
with respect to the specific issue, the question for the court
is whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843. An agency’s inter-
pretation of an ambiguous statute may be permissible even
if it differs from the construction the reviewing court would
have given the statute “if the question initially had arisen
in a judicial proceeding.” Id. at 843 n.11. We give “consider-
able weight . . . to an executive department’s construction
of a statutory scheme it is entrusted to administer,” id. at
844, and deference to the executive “is especially appropri-
ate in the immigration context where officials ‘exercise
especially sensitive political functions that implicate
questions of foreign relations.’ ” Aguirre-Aguirre, 526 U.S.
at 425 (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).
  Ali urges us to hold that the asylum and withholding
statutes are unambiguous, that his crime of conviction
is not a “particularly serious crime” within the meaning
of §§ 1158(b)(2) and 1231(b)(3), and that the BIA’s interpre-
tation of these statutes is not entitled to judicial deference.
The asylum statute says that an alien is ineligible for
asylum “if the Attorney General determines that . . . (ii) the
12                          Nos. 05-1194, 05-2028 & 05-3009

alien, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the
community of the United States.” 8 U.S.C.
§ 1158(b)(2)(A)(ii). Neither § 1158 nor any other section of
the immigration code offers a definition of the statutory
phrase “particularly serious crime,” but § 1158 does list two
categories of crimes that are per se “particularly serious”:
(1) “aggravated felon[ies]” and (2) other crimes that the
Attorney General “designate[s] by regulation.” 8 U.S.C.
§§ 1158(b)(2)(B). Ali would have us read subparagraph
(b)(2)(B) to mean that only aggravated felonies and other
crimes specifically designated by regulation may be con-
sidered “particularly serious.”3
  We do not think § 1158 so cabins the Attorney General’s
discretion to determine whether an alien has been convicted
of a “particularly serious crime” for purposes of ineligibility
for asylum. Congress named two categories of per se
“particularly serious” crimes, but it did not say these were
the only categories of crimes that would bring an alien’s
case within the statutory bar. Nowhere does § 1158 purport
to prohibit the Attorney General from determining in a
given case that an alien’s nonaggravated felony is “particu-
larly serious” unless he had the foresight to explicitly
itemize that particular crime by regulation. The statutory
language simply is not susceptible to such a limited inter-
pretation. We therefore reject Ali’s argument that the BIA
misinterpreted an unambiguous statute. Alternatively, to
the extent there is any ambiguity, the BIA’s interpretation
is entitled to considerable deference. Chevron, 467 U.S.
at 844.



3
  The parties agree that Ali’s crime of conviction was neither an
aggravated felony (as that term is defined for immigration
purposes) nor a crime the Attorney General has by regulation
designated as “particularly serious.”
Nos. 05-1194, 05-2028 & 05-3009                            13

  In this regard, the BIA’s construction of § 1158(b)(2) is
entirely permissible, particularly considering the vast array
of crimes defined by each of the fifty states’ criminal codes.
An interpretation that requires the Attorney General and
his agents to sift through each state’s code and prospec-
tively identify by regulation every single crime that would
qualify as “particularly serious” would impose an onerous
burden. Nothing in the statute’s text suggests a require-
ment that the Attorney General must engage in such an
anticipatory task. Section 1158(b)(2) does not prohibit the
Attorney General from determining on a case-by-case basis
that an asylum applicant has committed a “particularly
serious” crime, even though the crime is neither an aggra-
vated felony nor a crime expressly designated by regulation
as “particularly serious.”
   We reach the same conclusion with respect to the with-
holding of removal statute, 8 U.S.C. § 1231(b)(3)(B). That
statute says an alien is ineligible for withholding of removal
if “the Attorney General decides that . . . (ii) the alien,
having been convicted by a final judgment of a particularly
serious crime is a danger to the community of the United
States.” Subparagraph (b)(3)(B) adds the following about
the “particularly serious crime” exclusion:
    For purposes of clause (ii), an alien who has been
    convicted of an aggravated felony (or felonies) for which
    the alien has been sentenced to an aggregate term of
    imprisonment of at least 5 years shall be considered to
    have committed a particularly serious crime. The
    previous sentence shall not preclude the Attorney
    General from determining that, notwithstanding the
    length of sentence imposed, an alien has been convicted
    of a particularly serious crime.
8 U.S.C. § 1231(b)(3)(B).
  Ali reads this language to mean that only aggravated
felonies count as particularly serious crimes for purposes of
14                         Nos. 05-1194, 05-2028 & 05-3009

withholding of removal ineligibility. He notes that the
statute makes aggravated felonies resulting in prison terms
of at least five years per se “particularly serious.” The next
sentence gives the Attorney General discretion to decide
that a crime is particularly serious even if the alien was not
sentenced to at least five years in prison. But, Ali observes,
that same sentence says nothing about giving the Attorney
General discretion to call a crime particularly serious when
it is not an “aggravated felony.” Ali invokes the canon of
construction that says the expression of one thing is the
exclusion of the other. See, e.g., Dersch Energies, Inc. v.
Shell Oil Co., 314 F.3d 846, 861 n.15 (expressio unius est
exclusio alterius). He reasons that because the statute
expressly grants the Attorney General discretion to find
aggravated felonies “particularly serious” regardless of the
length of an alien’s sentence but does not explicitly provide
any similar discretion for crimes that are not aggravated
felonies, § 1231(b)(3)(B) precludes the Attorney General
from finding any crimes “particularly serious” other than
aggravated felonies.
  The problem with this argument is that § 1231 does not
state a general rule that only aggravated felonies can be
considered “particularly serious” crimes. The designation of
aggravated felonies producing sentences of at least five
years’ imprisonment as per se “particularly serious” creates
no presumption that the Attorney General may not exercise
discretion on a case-by-case basis to decide that other
nonaggravated-felony crimes are also “particularly serious.”
Congress specified that the Attorney General may extend
the “particularly serious” designation to aggravated felonies
producing prison terms of less than five years. But the
absence of a similar provision for nonaggravated-felony
crimes does not imply that only aggravated felonies can
qualify as “particularly serious” crimes. Again, to the extent
that § 1231(b)(3)(B) is ambiguous on this point, the BIA’s
reasonable interpretation is entitled to deference. Chevron,
467 U.S. at 844.
Nos. 05-1194, 05-2028 & 05-3009                                  15

  The BIA acted in accordance with §§ 1158 and 1231 and
did not apply an incorrect legal standard when it deter-
mined that Ali committed a “particularly serious” crime
for purposes of ineligibility for asylum and withholding
of removal. We lack jurisdiction to review the BIA’s exercise
of discretion when the agency operates under the proper
legal standard. 8 U.S.C. § 1252(a)(2)(B) and (C). We there-
fore do not address Ali’s argument that the BIA misapplied
its own precedent—Matter of Frentescu, 18 I. & N. Dec. 244
(1982)4—in its analysis of Ali’s offense of conviction.
Reviewing the BIA’s determination in this regard would
require an improper assertion of jurisdiction over the BIA’s
exercise of its statutorily conferred discretion. But see Afridi
v. Gonzales, 442 F.3d 1212, 1218-20 (9th Cir. 2006) (assert-
ing jurisdiction then granting petition for review and
remanding alien’s withholding of removal claim because
BIA did not fully engage the Frentescu factors when
deciding alien’s crime was “particularly serious”).


D. International law
  Ali spends two sentences in his opening brief arguing that
the BIA’s decision violates international standards
for denying relief to criminal refugees, but his cursory
argument provides no basis for granting his petition. The
only authority he cites is the Office of the High Commis-



4
  “While there are crimes which, on their face, are ‘particularly
serious crimes’ or clearly are not ‘particularly serious crimes,’ the
record in most proceedings will have to be analyzed on a case-by-
case basis. In judging the seriousness of a crime, we look to
such factors as the nature of the conviction, the circumstances and
underlying facts of the conviction, the type of sentence imposed,
and, most importantly, whether the type and circumstances of the
crime indicate that the alien will be a danger to the community.”
Matter of Frentescu, 18 I. & N. Dec. 244, 247 (1982).
16                           Nos. 05-1194, 05-2028 & 05-3009

sioner for Human Refugees, Handbook on Procedures and
Criteria for Determining Refugee Status, ¶ 154, which “is
not binding on the Attorney General, the BIA, or United
States courts.” Aguirre-Aguirre, 526 U.S. at 427.


E. Deferral of removal under the Convention
   Against Torture
  Finally, we address Ali’s contention that the BIA should
have granted him deferral of removal under the CAT,
implemented at 8 C.F.R. §§ 1208.16-18.5 The BIA denied Ali
relief under the CAT because it determined that he had not
shown he would more likely than not face torture if re-
moved to Somalia. We review the BIA’s factual findings for
substantial evidence; this means we will reverse the BIA’s
decision only if the evidence in the record compels a
contrary conclusion. Jun Ying Wang v. Gonzales, 445 F.3d
993, 997 (7th Cir. 2006).
  Ali is entitled to deferral of removal—the relief is manda-
tory, not discretionary—if he can prove that it is more likely
than not he would be tortured if removed to Somalia. 8
C.F.R. § 1208.16(c)(2) and (4). The BIA was required to
consider “all evidence relevant to the possibility of future
torture . . . including, but not limited to” evidence that Ali
suffered past torture, evidence that he could relocate to a


5
   Deferral of removal under the CAT is a limited form of protec-
tion available only to aliens who are barred from receiving
withholding of removal. 8 C.F.R. § 1208.17(a). Deferral of removal
does not confer permanent immigration status on an alien, and an
alien who has been granted this form of relief may be removed to
another country where there is no likelihood of torture. 8 C.F.R.
§ 1208.17(b)(2). Also, deferral of removal is subject to termination
if an immigration judge determines that there is no longer a
likelihood of torture in the country to which removal has been
deferred. 8 C.F.R. § 1208.17(b)(1).
Nos. 05-1194, 05-2028 & 05-3009                              17

part of Somalia where he is not likely to be tortured,
evidence of “gross, flagrant or mass violations of human
rights” in Somalia, and other relevant information about
Somalia’s country conditions. 8 C.F.R. § 1208.16(c)(3). For
purposes of the CAT, torture has the following definition:
    [A]ny act by which severe pain or suffering, whether
    physical or mental, is intentionally inflicted on a person
    for such purposes as obtaining from him or her or a
    third person information or a confession, punishing him
    or her for an act he or she or a third person has commit-
    ted or is suspected of having committed, or intimidating
    or coercing him or her or a third person, or for any
    reason based on discrimination of any kind, when such
    pain or suffering is 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.
8 C.F.R. § 1208.18(a)(1). Mental pain or suffering consti-
tutes torture if it results from, among other things, the
“intentional infliction or threatened infliction of severe
physical pain or suffering,” the “threat of imminent death,”
and the “threat that another person will imminently be
subjected to death, severe physical pain or suffering.” 8
C.F.R. § 1208.18(a)(4). The requirement that torture be
inflicted by or with the acquiescence of a public official
is met if “prior to the activity constituting torture,” a public
official is aware of the activity and then “breach[es] his or
her legal responsibility to intervene to prevent
such activity.” 8 C.F.R. § 1208.18(a)(7).
  The BIA acknowledged that Ali “would probably face
[clan-based] harm and possibly torture if returned to live
for prolonged periods in certain areas” of Somalia that are
not controlled by the Rahanweyn. But the Board con-
cluded the only risks to which Ali would be exposed in
the Rahanweyn-controlled areas would be based on his
perceived wealth for having lived in the United States or
18                         Nos. 05-1194, 05-2028 & 05-3009

because of the random violence and looting that plagues the
Bay and Bakool regions. In the BIA’s view, violence would
not be inflicted for the purpose of causing severe mental or
physical pain or suffering, and would not be motivated by
the desire to obtain from Ali a confession or information, to
punish or coerce him, or to discriminate against him. See 8
C.F.R. § 1208.18(a)(1) (requiring “torture” to be attributable
to these motives). Accordingly, the BIA found Ali had not
shown he was more likely than not to face torture if re-
moved to Somalia and denied relief under the CAT.
  The BIA reached these conclusions by ignoring key
evidence, overlooking Dr. Samatar’s testimony that Ali
would be targeted for violence in the Rahanweyn-controlled
areas because of his particular lineage within his clan, not
just for being perceived as wealthy for having lived in the
United States. The BIA failed to take into account
Dr. Samatar’s testimony that the Rahanweyn infighting
“depends on . . . your clan lineage” and that violence and
torture are perpetrated with the intent to punish clan
members.
  We also find remarkable the BIA’s overall conclusion that
Ali did “not present[ ] evidence of past harm which
is necessarily linked to his clan membership and which
bolsters the belief he will be tortured in the future.” The
BIA reached this conclusion only by omitting any men-
tion of the attempted rape and murder of Ali’s sister and
the violence Ali endured personally. Soldiers from the
invading Hawiye clan attempted to rape Ali’s sister, then
killed her when she resisted. This atrocity took place in the
context of the interclan warfare between the dominant
Hawiye and the Rayanweyn, and it was carried out in the
Ali family home with Ali—who was then sixteen years
old—looking on. Ali himself was shot at and beaten by
militiamen affiliated with the Hawiye. The BIA also made
no mention of the clan-based violence Ali suffered at the
Nos. 05-1194, 05-2028 & 05-3009                                19

hands of the Darod militia on the Somali-Kenyan border
after fleeing from the Hawiye. The record reflects that
the violence Ali witnessed and experienced had a pro-
found psychological effect on him, precipitating post-
traumatic stress disorder.
  By focusing narrowly on the deaths of Ali’s two broth-
ers—both of which could plausibly be attributed to the
generally unsafe, lawless conditions in Somalia—the BIA
sidestepped critical evidence it was required to consider.
8 C.F.R. § 1208.16(c)(3). When all the relevant evidence
is properly considered, the record compels the conclusion
that Ali would more likely than not face torture if re-
moved to Somalia.6
  Because the BIA found Ali was not likely to face torture
in Somalia, it left open the question whether he would face
torture “at the instigation of or with the consent or acquies-
cence of a public official or other person acting in an official
capacity.” 8 C.F.R. § 1208.18(a)(1). The parties have not
fully briefed this issue on appeal—each only briefly men-



6
  Ali’s case is not like Pelinkovic v. Ashcroft, 366 F.3d 532 (7th
Cir. 2004), a case on which the government relies. Pelinkovic
upheld the denial of a claim for relief under the CAT because
the petitioners failed “to make a particularized showing that
any of them would more likely than not be subject to torture upon
their return, as differentiated from the general risk shared by all
ethnic Albanians in Montenegro.” We explained it was impossible
for the petitioners to show a likelihood of torture because “the
events they feared were prospective—possible civil war with
Serbia, possibly resulting in the same ethnic cleansing directed at
ethnic Albanians as in other Milosevic campaigns. Thankfully,
those possibilities did not come to pass.” Id. at 542. Here, Ali’s
fears are not premised on merely prospective possibilities; they
are rooted in the reality of Somalian interclan and intraclan
warfare that devastated his own family and continues to plague
much of his homeland.
20                       Nos. 05-1194, 05-2028 & 05-3009

tioning the matter—so the prudent course is to remand the
case for the BIA to consider whether Ali established the
official capacity element of his CAT claim.


                    III. Conclusion
  Ali’s petition for review is DENIED with respect to his
claims for waiver of inadmissibility, asylum, and withhold-
ing of removal. His petition is GRANTED as to his claim for
deferral of removal under the CAT, and that claim is
REMANDED to the BIA for further proceedings consistent
with this opinion.
                      AFFIRMED IN PART AND REVERSED AND
                                        REMANDED IN PART.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—11-6-06
