Wednesday, August 20, 2008
Court: Changed Conditions in Sierra Leone Justify Asylum Denial
By SHERRI M. OKAMOTO, Staff Writer
Conditions in Sierra Leone have changed to the extent that asylum-seekers can return home without fear of future persecution, the Ninth U.S. Circuit Court of Appeals held yesterday.
The panel upheld the Board of Immigration Appeals’ conclusion that while Baba Sowe may have given credible testimony regarding persecution during the civil war that swept the West African nation between 1991 and 2000, the presumption of future persecution was rebutted. The court remanded to the BIA, however, to determine whether Sowe has valid reasons, apart from any fear of future persecution, for refusing to return to his native country.
Sowe, a Muslim Maraka, testified to atrocities that included the murder of his parents, severing of his brother’s hand and kidnapping of his sister during the war. Sowe claimed that members of the Revolutionary United Front—a violent military group which led a failed insurrection against the Sierra Leone government—targeted him and his family because his father was the imam of a mosque, and because his family did not support the RUF.
He testified that RUF members had kidnapped and beaten him, and then imprisoned him at RUF labor camps on three separate occasions between 1998 and 2001 as well.
Based on a 2005 U.S. Department of State Country Report, the immigration judge determined that even if Sowe’s testimony were true and demonstrated past persecution, the “dramatic changes” in Sierra Leone—including the end of the war, election of new leaders, withdrawal of U.N. peacekeepers, and peaceful relationships between various religious communities—indicated that Sowe would not face future persecution if returned to his native country.
The BIA dismissed Sowe’s appeal and denied discretionary relief, stating:
“We do not find the harm that respondent claims to have suffered, that of being detained and beaten by the RUF, to be sufficiently compelling to support a grant of asylum in the absence of a well-founded fear of future persecution.”
Level of Disarmament
Sowe contended that the disarmament of RUF forces was not yet completed, and pointed to sections in the country report indicating that the Sierra Leone police were “undisciplined and incompetent,” and that the government was “unwilling or unable to control RUF or former RUF rebels.”
But Senior Judge Arthur L. Alarcón, in his opinion for the Ninth Circuit, explained the appellate court could not “second-guess” the immigration judge’s construction of the “somewhat contradictory” report.
Noting that the country reports are “‘the most appropriate and perhaps the best resource for information on political situations in foreign nations,’” Alarcón reasoned that substantial evidence in the 2005 report supported the immigration judge’s determination that as a result of fundamental changes in Sierra Leone, the RUF no longer persecutes any group on account of race, religion, nationality, membership in a particular social group, or political opinion.
The evidence of changed country conditions effectively rebutted the presumption that Sowe would suffer future persecution based on his past persecution, which defeated Sowe’s asylum and withholding of removal claims, Alarcón concluded.
Same Evidence Used
Because the evidence Sowe relied upon to prove torture was the same evidence he cited in his asylum claim, Alarcón wrote, the changed country conditions also defeated Sowe’s claims for CAT protection.
However, Alarcón continued, Sowe could be eligible for asylum under 8 C.F.R. § 1208.13(b)(1)(iii)(A), which provides that an applicant who does not have a well-founded fear of future persecution “may be granted asylum, in the exercise of the decision-maker’s discretion, if…[t]he applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution.”
He explained that the BIA had erred in failing to make a determination whether Sowe had provided compelling reasons for being unwilling or unable to return to Sierra Leone, and remanded for a determination on this issue.
Judges Susan P. Graber and Johnnie B. Rawlinson joined Alarcón in his opinion.
The case is Sowe v. Mukasey, 06-72938
Copyright 2008, Metropolitan News Company