PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1810

FARHAN MOHAMOUD TANI WARFAA,

Plaintiff - Appellee,

v.

YUSUF ABDI ALI,

Defendant - Appellant.

No. 14-1934

FARHAN MOHAMOUD TANI WARFAA,

Plaintiff - Appellant,

v.

YUSUF ABDI ALI,

Defendant - Appellee.

Appeals from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Leonie M. Brinkema, 

District Judge. (1:05-cv-00701-LMB-JFA)

Argued: September 16, 2015 Decided: February 1, 2016 

Before GREGORY, AGEE, and DIAZ, Circuit Judges.
2

Affirmed by published opinion. Judge Agee wrote the majority 

opinion, in which Judge Diaz joined. Judge Gregory wrote a 

separate opinion dissenting in part.

ARGUED: Joseph Peter Drennan, Alexandria, Virginia, for 

Appellant/Cross-Appellee. Tara Melissa Lee, DLA PIPER LLP (US), 

Reston, Virginia, for Appellee/Cross-Appellant. ON BRIEF:

Joseph C. Davis, Reston, Virginia, Paul D. Schmitt, Mason 

Hubbard, DLA PIPER LLP (US), Washington, D.C.; Laura Kathleen 

Roberts, Nushin Sarkarati, Scott A. Gilmore, CENTER FOR JUSTICE 

& ACCOUNTABILITY, San Francisco, California, for Appellee/CrossAppellant.
3

AGEE, Circuit Judge:

Farhan Warfaa alleges that in 1987, a group of soldiers 

kidnapped him from his home in northern Somalia. Over the next 

several months, Warfaa claims he was beaten, tortured, shot, and 

ultimately left for dead at the direction of Yusuf Ali, a 

colonel in the Somali National Army at the time. Warfaa later

sued Ali under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350,

and the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L. 

No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350

note), alleging several violations of international law.

After lifting a multi-year stay, the district court 

dismissed Warfaa’s ATS claims, finding they did not sufficiently 

“touch and concern” the United States so as to establish

jurisdiction in United States courts under Kiobel v. Royal Dutch 

Petroleum Co., 133 S. Ct. 1659, 1669 (2013). The district court 

allowed Warfaa’s TVPA claims to proceed after holding that Ali 

was not entitled to immunity as a foreign official. Both Warfaa 

and Ali appeal. For the reasons set forth below, we affirm the 

judgment of the district court. 
4

I.

Throughout the 1980s, Somalia experienced a period of 

political upheaval.1 A military dictatorship led by Siad Barre 

controlled the country’s government, and Barre’s dictatorship 

employed violence and intimidation to maintain control and stay 

in power. Among other things, the Somali government targeted 

members of certain opposition “clans” through killings, torture, 

and property destruction. Warfaa’s clan, the Isaaq, was 

targeted. 

Ali supported the Barre regime and commanded the Fifth 

Battalion of the Somali National Army stationed in Gebiley, the 

area where Warfaa lived. Early one morning in December 1987, 

two armed soldiers from the Fifth Battalion appeared at Warfaa’s 

hut, rousted him from his sleep, and forced him to a nearby 

collection point. There, Warfaa and several other local farmers 

learned that they were accused of supporting an opposition 

organization, the Somali National Movement (“SNM”). Soldiers 

then forced the men to march to another village where an army 

truck drove them to Fifth Battalion headquarters. Some of the 

other farmers were freed, but Warfaa, as a member of the Isaaq 

 1 Because this appeal stems from the grant of a motion to 

dismiss, we accept as true all well-pled facts in Warfaa’s 

complaint and construe them in the light most favorable to him. 

United States v. Triple Canopy, 775 F.3d 628, 632 n.1 (4th Cir. 

2015).
5

clan, was detained and placed in a small, windowless cell with 

ten other prisoners.

Warfaa alleges he was subjected to many acts of violence 

during his detention at the direction of Ali. For instance,

Warfaa claims that soldiers hit him with the butt of a gun, tied 

him in a painful position, kicked him, and stripped him naked.

He was taken to Ali’s office, where Ali personally questioned 

him about his supposed support of SNM and his rumored 

involvement in the theft of a water truck. Later, soldiers 

again stripped Warfaa naked, beat him to unconsciousness, woke 

him with cold water, and then beat him again. Once more, Ali 

interrogated Warfaa after this torture, this time with Warfaa’s 

hands and feet chained. During the early months of 1988, Ali 

and his soldiers committed similar acts of torture against 

Warfaa at least nine times.

In March 1988, SNM fighters attacked Fifth Battalion 

headquarters while Ali was interrogating Warfaa. After ordering 

his soldiers to defend the base, Ali shot Warfaa in the wrist 

and leg, causing him to fall unconscious. Ali thought he had 

killed Warfaa and ordered his guards to bury the body. When 

Warfaa regained consciousness, however, he convinced the guards 

to accept a bribe, and they released him. Warfaa still resides 

in Somalia today.
6

The Barre regime collapsed in 1991, but Ali had departed 

the country in advance of the fall and immigrated to Canada in 

December 1990. Canada deported Ali two years later for serious 

human rights abuses, and he then came to the United States. The 

United States began deportation proceedings soon thereafter, but 

Ali voluntarily left the country in 1994. For reasons not 

explained in the record, Ali returned to the United States in 

December 1996 and now resides in Alexandria, Virginia.2

Warfaa, identified only as a John Doe, and a Jane Doe 

originally filed suit against Ali in the United States District 

Court for the Eastern District of Virginia in 2004. Plaintiffs 

voluntarily dismissed the complaint and refiled it in June 2005. 

For most of its duration, this case has been stayed. In 

August 2005, the district court stayed the case until a party 

could provide a declaration from the United States Department of 

State indicating that the action would not interfere with U.S. 

foreign policy. In April 2012, after the case briefly resumed, 

the district court granted a consent motion to further stay the 

 2 It is unclear from the record why Ali came to the United 

States after deportation by Canada and why he remains in the 

United States. Ali was arrested in 1998 by agents of the 

Immigration and Naturalization Service, who indicated he was 

responsible for “genocidal acts” that “led to the deaths of 

thousands of people.” See David Stout, Ex-Somali Army Officer 

Arrested in Virginia, N.Y. Times, Feb. 28, 1998, at A4. The 

record contains no evidence explaining the disposition of these

claims.
7

case pending the Supreme Court’s decision in Kiobel. After the 

Supreme Court issued its Kiobel decision in April 2013, the 

district court again extended the stay and invited the State 

Department to express its view as to whether the issues before 

the court would affect United States foreign policy. The State 

Department “decline[d] to express views on the subject” and, 

upon further request, explained that it was “not in a position 

to present views to the Court concerning this matter at this 

time.”3 J.A. 17, 22.

On April 25, 2014, the district court lifted the stay and 

ordered Warfaa to file an amended complaint. Warfaa’s amended 

complaint contains six counts: (1) attempted extrajudicial 

killing; (2) torture; (3) cruel, inhuman, or degrading treatment 

or punishment; (4) arbitrary detention; (5) crimes against 

humanity; and (6) war crimes. All six counts allege torts 

purportedly committed in violation of international law, with 

jurisdiction arising under the ATS. In addition, the first two 

counts -- attempted extrajudicial killing and torture -- are

alleged to violate the TVPA, which provides a jurisdictional 

 3 Requesting the State Department’s view is common in cases 

that implicate foreign policy. The Court “give[s] absolute 

deference to the State Department’s position on status-based 

immunity doctrines such as head-of-state immunity. The State 

Department’s determination regarding conduct-based immunity, by 

contrast, is not controlling, but it carries substantial weight 

in [the Court’s] analysis of the issue.” Yousuf v. Samantar, 

699 F.3d 763, 773 (4th Cir. 2012).
8

basis separate from the ATS. See 28 U.S.C. § 1350 note; Kiobel, 

133 S. Ct. at 1669 (Kennedy, J., concurring) (noting the TVPA 

addresses “human rights abuses committed abroad”).

Ali filed a motion to dismiss the amended complaint 

pursuant to Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6). Although the motion did not address Kiobel, the 

district court subsequently ordered Warfaa to explain “at [a] 

scheduled hearing” why his ATS claims were not barred by the 

Supreme Court’s ruling. See J.A. 56-57. At the hearing on the 

motion to dismiss, the district court stated that it was “going 

to dismiss the ATS claims from this case” “on the basis of 

Kiobel” because “[t]here is absolutely no connection between the 

United States and [Ali]’s conduct in Somalia.” J.A. 66. It 

further indicated that it was not inclined to dismiss the TVPA 

claims.

In a subsequent written opinion, the district court granted 

Ali’s motion to dismiss as to the ATS claims, but denied the 

motion as to the TVPA claims. The district court dismissed the

ATS claims because “such claims, generally speaking, must be 

based on violations occurring on American soil.” J.A. 78. In 

this case, however, “all the relevant conduct . . . occurred in 

Somalia, carried out by a defendant who at the time was not a 
9

citizen or resident of the United States.” Id.4 The district

court rejected Ali’s motion to dismiss the TVPA counts,

concluding that Ali could not claim “official acts” immunity 

because his alleged acts violated jus cogens norms.5

Both parties timely appealed. Ali appeals the district 

court’s decision to “reject the Defendant’s plea of common law 

immunity from suit.” J.A. 101; see Yousuf v. Samantar, 699 F.3d 

763, 768 n.1 (4th Cir. 2012) (explaining that a foreign official 

is entitled to lodge an immediate appeal from a pretrial order 

denying him “common law” immunity). Warfaa appeals from the 

final judgment on the ATS claims. This Court has jurisdiction 

under 28 U.S.C. § 1291.

 4 We have omitted internal quotation marks, alterations, and

citations here and throughout this opinion, unless otherwise 

noted.

5 The district court also concluded that (1) the complaint 

alleged sufficient facts under Federal Rule of Civil Procedure 

12(b)(6), (2) the TVPA’s statute of limitations did not justify 

dismissal, (3) the case did not present a non-justiciable 

political question and (4) Ali could not seek protection under 

the act-of-state doctrine. Ali does not meaningfully challenge 

those portions of the district court’s decision. As to those 

issues, his only argument consists of one sentence: “Perforce, 

Ali further urges that the fact that the subject matter of the 

instant litigation also presents a non-justiciable political 

question and an act of state confer further reasons for reversal 

of the subject Order appealed from.” Ali’s Opening Br. 10. 

Because Ali “does not develop the[se] argument[s] or offer any 

explanation for or analysis of his position in his initial 

brief,” the Court need not consider them, and we do not. United 

States ex rel. Ubl v. IIF Data Solutions, 650 F.3d 445, 457 (4th 

Cir. 2011) (finding that a single sentence raising an argument 

did not preserve it). 
10

II.

Whether the ATS bars claims related to extraterritorial 

conduct presents an issue of subject matter jurisdiction, Al 

Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 520 (4th Cir. 

2014), which the Court considers de novo. Johnson v. Am. 

Towers, LLC, 781 F.3d 693, 701 (4th Cir. 2015). Likewise, the 

district court’s denial of foreign official immunity presents a 

question of law that the Court must decide de novo. See Smith 

v. Ray, 781 F.3d 95, 100 (4th Cir. 2015) (reviewing a district 

court’s decision to deny qualified immunity de novo); Wye Oak 

Tech., Inc. v. Repub. of Iraq, 666 F.3d 205, 212 (4th Cir. 2011) 

(considering a question of immunity under the Foreign Sovereign 

Immunities Act de novo).

III.

The ATS “does not expressly provide any causes of action.” 

Kiobel, 133 S. Ct. at 1663. Rather, it grants district courts 

“original jurisdiction” over “any civil action by an alien for a 

tort . . . committed in violation of the law of nations or a 

treaty of the United States.” 28 U.S.C. § 1350. 

“Passed as part of the Judiciary Act of 1789, the ATS was 

invoked twice in the late 18th century, but then only once more 
11

over the next 167 years.” Kiobel, 133 S. Ct. at 1663. After

1980, ATS claims became more common, often relying on the Second 

Circuit’s decision in Filártiga v. Peña-Irala, 630 F.2d 876 (2d 

Cir. 1980). In that case, the Second Circuit applied the ATS to 

a claim of torture committed abroad, with all of the acts

involving foreign nationals. Id. at 878, 889. Filártiga opened 

the door to more ATS claims and “launched modern ATS 

litigation,” Perry S. Bechky, Homage to Filártiga, 33 Rev. 

Litig. 333, 336 (2014), but recent Supreme Court decisions have

significantly limited, if not rejected, the applicability of the 

Filártiga rationale. See Kiobel, 133 S. Ct. at 1664 (holding 

that ATS includes implicit geographic limits); Sosa v. AlvarezMachain, 542 U.S. 692, 732 (2004) (holding federal courts cannot 

recognize claims brought via the ATS unless plaintiffs premise 

those claims on “specific, universal, and obligatory” 

international norms).6

 6 Warfaa’s citation to Filártiga as contrary authority is 

without merit after the Supreme Court’s decision in Kiobel. As 

commentators have noted, “[t]he Kiobel Court all but annulled 

the subject-matter jurisdiction granted by the Alien Tort 

Statute for the very cases for which Filártiga had made it 

matter, cases in which the alleged tort occurs within the 

territorial borders or waters of a foreign sovereign.” Louise 

Weinberg, What We Don’t Talk About When We Talk About 

Extraterritoriality: Kiobel and the Conflict of Laws, 99 Cornell 

L. Rev. 1471, 1496 (2014). This Court has cited Filártiga once, 

in Al Shimari, and we did so only as a passing reference without 

any discussion of the Second Circuit’s analysis in the context 

of Kiobel. Whatever lingering value in a particular 

(Continued)
12

Alien plaintiffs, like Warfaa, have sought to invoke the 

ATS as a means to seek relief for alleged international humanrights violations. The Supreme Court has explained, however, 

the reach of the ATS is narrow and strictly circumscribed. 

Kiobel, 133 S. Ct. at 1664. 

In Kiobel, the Supreme Court considered whether an ATS 

claim “may reach conduct occurring in the territory of a foreign 

sovereign.” Id. The answer, for the most part, is “no,” as the 

Supreme Court has applied a “presumption against 

extraterritorial application.” Id. The presumption “provides 

that when a statute gives no clear indication of an 

extraterritorial application, it has none, and reflects the 

presumption that United States law governs domestically but does 

not rule the world.” Id. A court that applies the ATS 

extraterritorially risks interference in United States foreign 

policy. Id. at 1664-65 (“[T]he principles underlying the 

[presumption] similarly constrain courts considering causes of 

action that may be brought under the ATS.”). Accordingly, in 

Kiobel, the “petitioners’ case seeking relief for violations of 

the law of nations occurring outside the United States [wa]s 

 

circumstance Filártiga may have, if any, would not apply in a 

case like Warfaa’s, where the only pled event to “touch and 

concern” the United States is the defendant’s post-conduct 

residency in the United States. 
13

barred.” Id. at 1669. The Supreme Court emphasized that the 

ATS can create jurisdiction for such claims only where they 

“touch and concern” United States territory “with sufficient 

force to displace the presumption against extraterritorial 

application.” Id.

This Court has applied Kiobel only once, in Al Shimari v. 

CACI Premier Tech., Inc., 758 F.3d 516, 529 (4th Cir. 2014). In 

that case, four plaintiffs sued an American military contractor 

and several of its employees who were alleged to be American 

citizens directly responsible for abusive mistreatment and 

torture at the Abu Ghraib prison in Iraq. Id. at 520-21. We 

recognized that “the clear implication of the [Supreme] Court’s 

‘touch and concern’ language is that courts should not assume 

that the presumption categorically bars cases that manifest a 

close connection to United States territory.” Id. at 528. To 

find that the presumption against extraterritoriality applies, 

“it is not sufficient merely to say that . . . the actual 

injuries were inflicted abroad.” Id. Instead, courts should

conduct a “fact-based analysis.” Id.

Applying this analytical framework, we found that the Al 

Shimari plaintiffs alleged “extensive ‘relevant conduct’ in 

United States territory,” which distinguished their case from 

Kiobel. Id. Based on that “extensive relevant conduct,” the 

plaintiffs’ claims sufficiently “touch[ed] and concern[ed]” the 
14

United States to establish jurisdiction under the ATS.7 Id. at 

529. 

Al Shimari thus is best read to note that the presumption 

against ATS extraterritorial application is not irrefutable. A 

plaintiff may rebut the presumption in certain, narrow 

circumstances: when extensive United States contacts are present

and the alleged conduct bears such a strong and direct 

connection to the United States that it falls within Kiobel’s

limited “touch and concern” language. The usual case will not 

present the strong and direct “touches” we recognized in Al 

Shimari. 

An ATS claim premised on no relevant conduct in the United 

States will fit within the heartland of cases to which the 

extraterritoriality presumption applies. Doe v. Drummond Co., 

 7 In Al Shimari, the Court cited five significant points of 

contact with the United States: the defendant-contractor’s 

“status as a United States corporation”; the “United States 

citizenship of [the contractor]’s employees, upon whose conduct 

the ATS claims are based”; the fact that the contractor’s 

“contract to perform interrogation services in Iraq was issued 

in the United States by the United States Department of the 

Interior, and that the contract required [the contractor]’s 

employees to obtain security clearances from the United States 

Department of Defense”; “allegations that [the contractor]’s 

managers in the United States gave tacit approval to the acts of 

torture committed by [the contractor]’s employees . . ., 

attempted to ‘cover up’ the misconduct, and ‘implicitly, if not 

expressly, encouraged’ it”; and congressional intent “to provide 

aliens access to United States courts and to hold citizens of 

the United States accountable for acts of torture committed 

abroad.” Id. at 530-31. There are no such contacts, or 

anything close to them, in Warfaa’s case. 
15

782 F.3d 576, 592 n.23 (11th Cir. 2015) (“[I]f no relevant 

aspects of an ATS claim occur within the United States, the 

presumption against extraterritoriality prevents 

jurisdiction[.]”); Mujica v. AirScan Inc., 771 F.3d 580, 592

(9th Cir. 2014) (“The allegations that form the basis of 

Plaintiffs’ claims exclusively concern conduct that occurred in 

Colombia.”); Chowdhury v. Worldtel Bangl. Holding, Ltd., 746 

F.3d 42, 49 (2d Cir. 2014) (“[A]ll the relevant conduct set 

forth in plaintiff’s complaint occurred in Bangladesh, and 

therefore plaintiff’s claim brought under the ATS is barred.”); 

Cardona v. Chiquita Brands Int’l, Inc., 760 F.3d 1185, 1191

(11th Cir. 2014) (holding that the presumption applied because 

the alleged torture “occurred outside the territorial 

jurisdiction of the United States”); Balintulo v. Daimler AG, 

727 F.3d 174, 189 (2d Cir. 2013) (“Kiobel forecloses the 

plaintiffs’ claims because the plaintiffs have failed to allege 

that any relevant conduct occurred in the United States.”).

Warfaa’s cross-appeal asks the Court to apply Kiobel and Al 

Shimari to permit a claim against a U.S. resident, Ali, arising 

out of conduct that occurred solely abroad. We analyze that 

claim by beginning with Kiobel’s strong presumption against 

extraterritorial application of the ATS, recognizing Al Shimari

is the rare case to rebut the presumption.
16

Warfaa’s claims fall squarely within the ambit of Kiobel’s

broad presumption against extraterritorial application of the 

ATS.8 As with Kiobel, in this case, “all of the relevant conduct 

took place outside the United States,” in Somalia. Kiobel, 133 

S. Ct. at 1669. Nothing in this case involved U.S. citizens, 

the U.S. government, U.S. entities, or events in the United 

States. The alleged campaign of torture and intimidation was 

launched, managed and controlled by the Somali army. Ali 

inflicted all the injuries against Warfaa in Somalia. Warfaa’s

ultimate escape -- thus ending the violation -- occurred in 

Somalia, as well.

The only purported “touch” in this case is the happenstance 

of Ali’s after-acquired residence in the United States long 

 8 The dissent suggests that Kiobel applies only to corporate 

defendants, not natural persons like Ali. Nothing in Kiobel

lends support to that argument. Instead, the Supreme Court 

painted with broad strokes when discussing the scope and 

purposes of the presumption against extraterritorial application 

of the ATS, purposes which apply with equal force when it comes 

to natural person defendants. Further, the dissent correctly 

recognizes that post-Kiobel no Circuit Court has permitted an 

ATS claim premised on individual liability to proceed in the 

absence of any cognizable “touches” within the United States. 

Dissenting Op. 21. Nonetheless, the dissent relies on Sexual 

Minorities Uganda v. Lively, 960 F. Supp. 2d 304 (D. Mass. 

2013), for the proposition that citizenship status distinguishes 

this case from Kiobel. Ali, however, is not a United States 

citizen, and the facts alleged in Lively have no correlation to 

the allegations pled in this case. For example, in Lively, “the 

Amended Complaint allege[d] that the tortious acts committed by 

Defendant took place to a substantial degree within the United 

States, over many years, with only infrequent actual visits to 

Uganda.” Id. at 321.
17

after the alleged events of abuse.9 Mere happenstance of 

residency, lacking any connection to the relevant conduct, is 

not a cognizable consideration in the ATS context. See Kiobel, 

133 S. Ct. at 1669 (indicating the defendant’s “mere . . . 

presence” in the United States does not afford jurisdiction).

“Kiobel’s resort to the presumption against extraterritoriality 

extinguishes . . . ATS cases [with foreign parties and conduct], 

at least where all of the relevant conduct occurs outside the 

United States, even when the perpetrator later moves to the 

United States.” Bechky, supra, at 343.10

In sum, Warfaa has pled no claim which “touches and 

concerns” the United States to support ATS jurisdiction. The 

district court thus did not err in granting Ali’s motion to 

dismiss the ATS counts in the complaint for lack of 

jurisdiction.11

 9 The dissent’s representation that Ali has sought “safe 

haven” here, Dissenting Op. 21, 28, is the dissent’s 

characterization alone, and is not reflected in Warfaa’s

pleadings or the record in this case. 10 The dissent implies some sort of military aid by the 

United States to Ali. Dissenting Op. 26-27. Such a claim was 

never pled, briefed or argued by Warfaa, and derives only from a 

factual reference in Ali’s brief. Ali’s Opening Br. 8. The 

record is devoid of any connection between Ali’s alleged conduct 

in Somalia and some U.S. Military contact. The dissent’s 

comments in this regard are pure speculation. 

11 To the extent the district court’s opinion reads Kiobel

as creating a categorical rule barring the ATS’ application to 

conduct solely outside the United States, that reading is 

overbroad. Al Shimari makes clear that extensive and direct 

(Continued)
18

IV.

The district court allowed Warfaa’s TVPA claims to go 

forward, finding Ali lacked foreign official immunity for jus 

cogens violations under Yousuf v. Samantar, 699 F.3d 763, 777 

(4th Cir. 2012). In Samantar, we held that foreign official 

immunity could not be claimed “for jus cogens violations, even 

if the acts were performed in the defendant’s official 

capacity.” Id. Ali does not contest that the misdeeds alleged 

in the complaint violate jus cogens norms; he concedes that they 

do. Rather, his challenge is a simple one: Samantar was wrongly 

decided, and jus cogens violations deserve immunity. 

Ali would have us overrule Samantar entirely, but that 

course is not open to us. One panel’s “decision is binding, not 

only upon the district court, but also upon another panel of 

this court -- unless and until it is reconsidered en banc.” Doe 

v. Charleston Area Med. Ctr., Inc., 529 F.2d 638, 642 (4th Cir. 

1975); see also, e.g., United States v. Spinks, 770 F.3d 285, 

289-90 (4th Cir. 2014). True, the Court has the “statutory and 

constitutional power” to reconsider its own decisions. McMellon 

v. United States, 387 F.3d 329, 334 (4th Cir. 2004) (en banc). 

 

“touches” involving the United States may rebut the presumption 

in some cases. Warfaa simply has none.
19

But we have decided collectively not to exercise that power as a 

“matter of prudence” outside the en banc context. Id. The 

district court properly concluded Samantar forecloses Ali’s 

claim to foreign official immunity. 

V.

For the reasons described above, the district court 

correctly held that Warfaa’s ATS claims lacked a sufficient 

nexus with the United States to establish jurisdiction over

those claims. The district court also correctly rejected Ali’s 

claim of foreign official immunity. The district court’s 

judgment is therefore

AFFIRMED.
20

GREGORY, Circuit Judge, concurring in part and dissenting in 

part:

I write separately to dissent from Part III of the majority 

opinion, as I would hold that the Supreme Court’s decision in 

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), 

does not foreclose the possibility of relief under the Alien 

Tort Statute (“ATS”) here.

I.

In Kiobel, a group of Nigerian political asylees brought 

suit against Royal Dutch Petroleum Company, Shell Transport and 

Trading Company, and their joint subsidiary, Shell Petroleum 

Development Company of Nigeria, alleging that these companies 

aided and abetted the Nigerian government in committing human 

rights abuses against them. 133 S. Ct. at 1662-63. The 

defendants’ only contacts with the United States were “listings 

on the New York Stock Exchange and an affiliation with a public 

relations office in New York.” Mujica v. AirScan Inc., 771 F.3d 

580, 591 (9th Cir. 2014) (citing Kiobel, 133 S. Ct. at 1662-63; 

id. at 1677-78 (Breyer, J., concurring)). The Court explained 

that “[c]orporations are often present in many countries, and it 

would reach too far to say that mere corporate presence 

suffices” to displace the presumption against 

extraterritoriality. Kiobel, 133 S. Ct. at 1669. The Court, 
21

however, was “careful to leave open a number of significant 

questions regarding the reach and interpretation of the Alien 

Tort Statute.” Id. (Kennedy, J., concurring).

Following Kiobel, a number of our sister circuits have 

considered and rejected ATS claims brought against U.S. 

corporations and their corporate officers for aiding and 

abetting foreign actors who commit human rights abuses. See

Maj. Op. 14-15 (citing Doe v. Drummond Co., 782 F.3d 576, 601 

(11th Cir. 2015); Chowdhury v. Worldtel Bangladesh Holding, 

Ltd., 746 F.3d 42, 45 (2d Cir. 2014); Cardona v. Chiquita Brands 

Int’l Inc., 760 F.3d 1185, 1188-89 (11th Cir. 2014); Mujica, 771 

F.3d at 596; Balintulo v. Daimler AG, 727 F.3d 174, 179 (2d Cir. 

2013)). But no circuit court has decided a post-Kiobel ATS case 

premised on principal liability brought against an individual 

defendant who has sought safe haven in the United States, a key 

difference the majority does not address. This is not to 

suggest that Kiobel applies only to corporate defendants, see

Maj. Op. 16 n. 8, but that the analysis and relevant 

considerations may differ where the defendant is a natural 

person.

Several cases brought prior to Kiobel considered situations 

involving individual, natural-person defendants—facts more akin 

to those presented here. In Filartiga v. Pena-Irala, 630 F.2d 

876, 878 (2d Cir. 1980), two Paraguayan citizens brought an 
22

action against Pena-Irala (“Pena”), a Paraguayan police officer, 

for the torture and death of a relative. Pena had come to the 

United States, overstayed his visitor’s visa, and had been 

residing in the United States for over nine months when one of 

the plaintiffs served him with a summons and civil complaint. 

Id. at 878-79. While acknowledging that “the Alien Tort Statute 

ha[d] rarely been the basis for jurisdiction during its long 

history,” the Second Circuit found “little doubt” that the 

action was properly in federal court. Id. at 887. “This is 

undeniably an action by an alien, for a tort only, committed in 

violation of the law of nations.” Id. Thus, jurisdiction under 

the ATS was proper. Id. at 889; see also Kadic v. Karadzic, 70 

F.3d 232, 236-37 (2d Cir. 1995) (finding jurisdiction for ATS 

claims brought by Croat and Muslim citizens of BosniaHerzegovina against Bosnian-Serb leader for violations of the 

law of nations committed during the Bosnian civil war); In re 

Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 

503 (9th Cir. 1992) (finding jurisdiction for ATS claim brought 

by Philippine citizen against former Philippine official for 

violations of the law of nations committed abroad).

The majority states that “recent Supreme Court decisions 

have significantly limited, if not rejected, the applicability 

of the Filartiga rationale.” Maj. Op. 11 (citing Kiobel, 133 S. 

Ct. at 1664; Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004)). 
23

Nothing in those opinions, however, explicitly overrules 

Filartiga or its progeny. In fact, the Supreme Court in Sosa

“referred to [Filartiga and Marcos] with approval, suggesting 

that the ATS allowed a claim for relief in such circumstances.” 

Kiobel, 133 S. Ct. at 1675 (Breyer, J., concurring) (citing 

Sosa, 542 U.S. at 732). Even Congress has recognized that 

Filartiga was “met with general approval.” H.R. Rep. No. 102-

367, pt. 1, at 4 (1991); S. Rep. No. 102-249, at 4 (1991). 

Therefore, Filartiga is still good law, and its reasoning is 

instructive here.

II.

This case involves “allegations of serious violations of 

international law” committed by a natural person who has sought 

safe haven within our borders and includes claims that are not 

covered by the Torture Victim Protection Act nor “the reasoning 

and holding” of Kiobel. Id. at 1669 (Kennedy, J., concurring). 

Thus, the “proper implementation of the presumption against 

extraterritorial application” in this case requires “further 

elaboration and explanation.” Id. Blithely relying on the fact 

that the human rights abuses occurred abroad ignores the myriad 

ways in which this claim touches and concerns the territory of 

the United States.
24

As the majority correctly states, “claims” are cognizable 

under the ATS where they “touch and concern the territory of the 

United States . . . with sufficient force to displace the 

presumption against extraterritorial application.” Maj. Op. 13

(citing Kiobel, 133 S. Ct. at 1669). The Supreme Court’s use of 

“claim”—rather than conduct—to describe the circumstances in 

which the presumption may be displaced, however, “suggest[s] 

that courts must consider all the facts that give rise to ATS 

claims, including the parties’ identities and their relationship 

to the causes of action.” Al Shimari v. CACI Premier Tech., 

Inc., 758 F.3d 516, 527 (4th Cir. 2014).

If we consider, as we must, a “broader range of facts than 

the location where the plaintiff[] actually sustained [his] 

injuries,” there are three facts that distinguish this case from 

Kiobel. Id. at 529. First, Ali’s status as a lawful permanent 

resident alone distinguishes this case from Kiobel, where the 

corporate defendant was merely “present.” Kiobel, 133 S. Ct. at 

1669. This Court found a defendant’s citizenship status to be a 

relevant “touch” in Al Shimari, where we observed that such 

“case[s] do[] not present any potential problems associated with 

bringing foreign nationals into United States courts to answer 

for conduct committed abroad, given that the defendants are 

United States citizens.” Al Shimari, 758 F.3d at 530 (citing 

Sexual Minorities Uganda v. Lively, 960 F. Supp. 2d 304, 322 (D. 
25

Mass. 2013) (holding that Kiobel did not bar ATS claims against 

an American citizen, in part because “[t]his is not a case where 

a foreign national is being hailed into an unfamiliar court to 

defend himself”)). To the extent that we rely on citizenship 

status as a factor, we do so in the good company of our dear 

colleagues sitting on this very Court. See Maj. Op. 16, n. 8. 

As a legal permanent resident, Ali “has a binding tie to the 

United States and its court system.” Yousuf v. Samantar, 699 

F.3d 763, 778 (4th Cir. 2012); see also id. at 767 (finding 

relevant the fact that U.S. residents “who enjoy the protections 

of U.S. law ordinarily should be subject to the jurisdiction of 

the courts”).

Second, Ali’s “after-acquired residence” in this country is 

not mere “happenstance.” Maj. Op. 16. Ali was in the United 

States when he “realiz[ed] that the Barre regime was about to 

fall.” Decl. of Ali ¶ 15, Br. in Supp. of Def.’s Renewed Mot. 

to Dismiss at 1, Warfaa v. Ali, 33 F. Supp. 3d 653 (2014) (No. 

1:05-cv-701), ECF No. 91. He initially sought refugee status in 

Canada. Id. at ¶ 15. Canada deported Ali back to the United 

States for gross human rights abuses committed in Somalia. Id.

at ¶ 18; J.A. 74. When confronted with deportation proceedings 

upon entering the United States, he voluntarily departed, only 

to return two years later on a spousal visa. Decl. of Ali ¶ 22. 

In 1997, Ali was confronted with deportation proceedings yet 
26

again but prevailed at trial to have proceedings terminated. 

Id. at ¶ 23. The government did not appeal. Id. He has been 

living here as a lawful permanent resident, availing himself of 

the benefits and privileges of U.S. residency since 1996.

Lastly, when the alleged acts of torture took place, Ali 

was serving as a commander in the Somali National Army. In that 

same capacity, he received extensive military training, on 

numerous occasions, in the United States. The details of these 

contacts, which took place prior to and following the alleged 

acts, are laid out by Ali himself in a declaration to the 

district court.1 In 1984, Ali received special military training 

with the Officers’ Advanced Military Course at Fort Benning, 

Georgia. Decl. of Ali ¶ 8, Br. in Supp. of Def.’s Renewed Mot. 

to Dismiss at 1, Warfaa v. Ali, 33 F. Supp. 3d 653 (2014) (No. 

1:05-cv-701), ECF No. 91. Later that year, he returned to Fort 

Benning where he completed six months of intensive military 

training. Id. at ¶ 10. In 1985, he was invited by a 

representative of the Defense Intelligence Agency to pursue 

further military training at Fort Leavenworth, where he spent a 

 1 Ali’s military training in the United States is a relevant 

“touch” and the fact that it was brought to the Court’s 

attention solely by Ali himself does not insulate it from our 

consideration. Cf. United States v. Wilson, 699 F.3d 789, 793 

(4th Cir. 2012) (“[W]hen a requirement goes to subject-matter 

jurisdiction, courts are obligated to consider sua sponte issues 

that the parties have disclaimed or have not presented.” 

(quoting Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012)).
27

year, before returning to Somalia in July of 1986. Id. 

Finally, he received training in management studies with the 

U.S. Air Force at Keesler Air Force Base a mere two years after 

the acts alleged against him in this case. Id. at ¶ 10. This 

is not to suggest that the U.S. government condoned or endorsed 

defendant’s conduct, but these contacts are clearly relevant to 

a test that requires us to consider whether a claim “touch[es] 

and concern[s] the territory of the United States.”2 Kiobel, 133 

S. Ct. at 1669. When pressed at oral argument, even counsel for 

Ali did not deny that a “prior relationship,” such as the 

military training at issue here, would “perhaps” be something to 

consider as part of the touch and concern inquiry. Oral 

Argument at 34:44.

Whatever the extent of the relationship between Ali and the 

U.S. military, it cannot be fairly said that “[t]he only 

purported ‘touch’ in this case is the happenstance of Ali’s 

after-acquired residence in the United States long after the 

alleged events of abuse.” Maj. Op. 16-17.

 2 See George James, Somalia’s Overthrown Dictator, Mohammed 

Siad Barre, Is Dead, N.Y. Times, Jan. 3, 1995, at C41 (“Somalia 

received military and economic aid from the United States for a 

promise of American use of the port of Berbera on the Gulf of 

Aden. But aid declined drastically as allegations of human 

rights abuses rose.”).
28

III.

The majority today allows a U.S. resident to avoid the 

process of civil justice for allegedly “commit[ting] acts abroad 

that would clearly be crimes if committed at home.” United 

States v. Bollinger, 798 F.3d 201, 219 (4th Cir. 2015) 

(upholding the constitutionality of 18 U.S.C. § 2423(c) under 

the Foreign Commerce Clause). The precedential effect of this 

holding “could undoubtedly have broad ramifications on our 

standing in the world, potentially disrupting diplomatic and 

even commercial relationships.” Id.

It is not the extraterritorial application of the ATS in 

the instant case that “risks interference in United States 

foreign policy,” but rather, providing safe haven to an 

individual who allegedly committed numerous atrocities abroad. 

Maj. Op. 12. This was the case in Filartiga, where, as here, 

“[t]he individual torturer was found residing in the United 

States.” Suppl. Br. for United States as Amicus Curiae in 

Partial Supp. of Affirmance at 4, Kiobel v. Royal Dutch 

Petroleum Co., 133 S. Ct. 1659 (2013) (No. 10-1491). These are 

“circumstances that could give rise to the prospect that this 

country would be perceived as harboring the perpetrator,” 

thereby “seriously damag[ing] the credibility of our nation’s 

commitment to the protection of human rights.” Id. at 19 

(citing Mem. for the United States as Amicus Curiae at 22-23, 
29

Filartiga v. Pena-Irala, 630 F.2d 876 (2d. 1979) (No. 79-6090)). 

Such concerns are precisely what led the United States, writing 

as amicus in Kiobel, to conclude that “allowing suits based on 

conduct occurring in a foreign country in the circumstances 

presented in Filartiga is consistent with the foreign relations 

interests of the United States, including the promotion of 

respect for human rights.” Suppl. Br. for the United States in 

Partial Supp. of Affirmance at 4-5, Kiobel, 133 S. Ct. 1659 

(2013) (No. 10-1491).

The ATS has not been completely abrogated by Kiobel. It is 

still a statute, and Congress meant something by it. The fact 

that the alleged torts occurred outside our borders cannot be 

the end of the story; what we are dealing with, after all, is 

the Alien Tort Statute.

Ali is alleged to have committed gross human rights abuses, 

for which he was deported from Canada, and is now a lawful 

permanent resident. The United States is the sole forum in 

which he is amenable to suit. The atrocious nature of these 

allegations, the extensive contacts with the United States, and 

the context of those contacts renders jurisdiction proper under 

the ATS. I would reverse the district court’s summary dismissal 

of the ATS claims and find that Warfaa has pleaded sufficient 

facts showing that his claim touches and concerns the territory 
30

of the United States. I respectfully dissent from the 

majority’s holding on this issue.