Jalloh v. Ashcroft , 103 F. App'x 402 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-2117
CHERNO JALLOH,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Joseph C. Lyons with whom Goulston & Storrs was on brief for
petitioner.
Leslie Cayer Ohta, Trial Attorney, with whom Peter D. Keisler,
Assistant Attorney General, and Mark C. Walters, Assistant
Director, were on brief for respondent.
July 7, 2004
COFFIN, Senior Circuit Judge. Petitioner Cherno Jalloh, a
citizen of Sierra Leone, was admitted to the United States on a
non-immigrant visa in September 1998. Eight months later, Jalloh
applied for asylum or, in the alternative, withholding of removal,
on the basis of a well-founded fear of persecution on account of
political opinion. An Immigration Judge (IJ) denied the petition
and the Board of Immigration Appeals (BIA) affirmed. The IJ relied
heavily on the determination that, as a result of having submitted
fraudulent identity documents, Jalloh was not a credible witness.
The BIA, although it reversed the adverse credibility finding,
nevertheless adopted the IJ's conclusion that Jalloh failed to
demonstrate either past persecution or a well-founded fear of
future persecution.
On appeal, Jalloh alleges that the evidence presented below -
particularly in light of the restoration of credibility - compels
a conclusion that he was eligible for asylum or, in the
alternative, that he is entitled to withholding of removal. The
proceedings below, however, leave us without an adequate basis to
decide whether petitioner's evidence merits denying or granting any
form of relief because the BIA did not fully consider the effect of
the restoration of credibility on the merits of petitioner's claim
and also assigned him an incorrect burden of proof. We therefore
vacate the BIA's order and remand for further analysis of
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petitioner's application in light of his restored credibility and
under the proper evidentiary standard.
I. Background
Petitioner's application for asylum is predicated on the
brutal murders of his family and the destruction of the family
home, allegedly by a rebellious faction of the Sierra Leonean
military.1 The backdrop for this tragedy is the calamitous history
of Sierra Leone, plagued by civil strife since 1991 and beset by
abject poverty for decades prior. After several years of military
rule, a civilian government was elected in March 1996. This did
not end the struggle for power, however, and two formerly warring
factions - ousted military members known as the Armed Forces
Revolutionary Council (AFRC) and an independent rebel group known
as the Revolutionary United Front (RUF) - cooperated in an effort
to destabilize the elected regime. The terrorizing of civilians,
aimed at discouraging participation in and support for the
government, figured prominently in AFRC and RUF tactics.
Throughout the years of violence, civilians were literally and
figuratively caught in the crossfire and, as a result, established
1
The petitioner's burden for demonstrating eligibility for
asylum is lower than the burden for withholding of removal. INS v.
Stevic, 467 U.S. 407, 430 (1984); Albathani v. INS, 318 F.3d 365,
372 (1st Cir. 2003) (observing that "[b]ecause the 'more likely
than not' standard for withholding deportation is more stringent
than that for asylum, a petitioner unable to satisfy the asylum
standard fails, a fortiori, to satisfy the former"). We therefore
focus our inquiry on whether the evidence presented by Jalloh meets
the lower threshold for asylum.
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militia defense forces to protect themselves. Jalloh's father was
a village elder and, although not a member, offered support to one
such group known as the Kamajors.2 In addition to offering
protection, the Kamajors advocated for a democratically elected
government and, after the election in 1996, lent their support to
the elected civilian government.
On December 2, 1996, when Jalloh was 22 years of age and a
student at the government secondary school in the town of Kenema,
the school day was interrupted by the sound of gunshots.3 Fleeing
the building with other students, Jalloh headed towards his home in
hope of finding safety. Unfortunately, upon reaching his
neighborhood, he discovered that his house had been set on fire and
that his father, mother, and younger sister had been shot dead.
Jalloh found three other bodies, burned beyond recognition, in the
ruins of the home and concluded that these were likely three of his
four remaining siblings. Jalloh took cover in the home of a
neighbor, Mr. Williams, who said he - Williams - had seen renegade
2
An elected civilian government was in power at the time
Jalloh's family was killed, but the regime was unstable. In May
1997 - five months after petitioner's family members were killed -
a military coup succeeded in overthrowing the government. Civilian
leadership was not re-established until February 1998, and even
then fighting continued.
3
Although the IJ cast doubt on the veracity of the story in
its entirety, the BIA accepted Jalloh's account of the killings
while finding insufficient evidence that the perpetrators were
politically motivated. We therefore recite the course of events as
recounted by Jalloh in his brief and his testimony before the IJ.
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soldiers leaving the Jalloh home. A second man, also sheltering in
Williams' house but unfamiliar to Jalloh, said that the house of
another family that supported the Kamajors had also been burned.
Jalloh thus concluded that his family had been targeted by
insurgent forces as a result of his father's support for the
Kamajors.
Fearing that he would suffer a similar fate, he fled to Sierra
Leone's Waterloo Displacement Camp. After remaining there
approximately five months, he came into contact with a former
business partner of his father's, Abdul Traore. Traore offered to
let Jalloh live with him in Guinea, and Jalloh agreed, thinking it
safer than the refugee camp. While in Guinea, however, Jalloh also
visited a second camp, the Moola Refugee Camp, apparently in order
to secure various identification documents pertaining to his
alleged refugee status. In September 1998, Traore and Jalloh
traveled to the United States. At Traore's suggestion, Jalloh
falsely procured a Guinean passport using his own photograph but
the biographical information of Traore's deceased son. With this
passport, Jalloh was admitted to the United States on a non-
immigrant visa. Traore and Jalloh quickly lost contact, and Jalloh
ended up in Boston with a friend who knew his family in Sierra
Leone. In April 1999, Jalloh submitted an application for asylum
and withholding of removal.
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II. Applicable Law and Proceedings Below
In support of his application for asylum, Jalloh was required
to demonstrate that he was a refugee as defined by the Immigration
and Nationality Act, namely, that he was unable or unwilling to
return to Sierra Leone because of "persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101 (42)(A). The regulations place this burden squarely
on the asylum applicant. See 8 C.F.R. § 208.13 (2003). An
applicant will be deemed to have met this burden if he establishes
a well-founded fear of persecution that is both genuine - a
subjective inquiry - and reasonable - an objective standard
requiring that the applicant demonstrate that there is "a
reasonable possibility of suffering such persecution if he or she
were to return to that country," Id. at § 208.13 (b)(2)(B).
See Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992) (requiring
asylum applicant to show a reasonable fear of persecution "by
credible, direct, and specific evidence").
We have characterized the appropriate inquiry as "whether a
reasonable person in the asylum applicant's circumstances would
fear persecution on account of a statutorily protected ground,"
Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999). An alien
need not provide evidence of being singled out, however, if he or
she can establish 1) "a pattern or practice in his or her country
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of nationality" of the persecution of similarly situated persons
and 2) "his or her own inclusion in, and identification with, such
group of persons." 8 C.F.R. § 208.13 (b)(2)(iii)(A). See also
Knezevic v. INS, 367 F.3d 1206, 1213 (9th Cir. 2004) (citing Kotasz
v. INS, 31 F.3d 847, 852 (9th Cir. 1994)) (asylum applicants not
required to demonstrate that they would be "singled out" for
persecution because "'persecution of an entire group can render
proof of individual targeting entirely superfluous'").
Significantly, an asylum applicant's testimony alone - if
deemed credible - could sustain this burden of proof. 8 C.F.R. §
208.13; Gailius v. INS, 147 F.3d 34, 45 (1st Cir. 1998).
Furthermore, an asylum applicant may establish the persecutor's
motive through circumstantial evidence. Guzman v. INS, 327 F.3d
11, 15 (1st Cir. 2003); Ramirez Rivas v. INS, 899 F.2d 864, 869
(9th Cir. 1990) ("Evidence of the motive of a persecutor is hard to
come by . . . . Circumstantial evidence, of course, is evidence,
not 'no evidence,' as the Service asserts.").
The IJ denied Jalloh's petition on two grounds: first, that he
had not established that he was a refugee because he could not
prove Sierra Leonean citizenship; second, that Jalloh did not
establish "a well-founded fear of persecution because he was not
credible." Undergirding each of the two grounds was an adverse
credibility determination stemming from Jalloh's submission of a
fraudulent Sierra Leone identification card as part of his petition
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for asylum.4 Jalloh claimed that at the time he submitted the
card, he reasonably believed it to be valid. At the hearing before
the IJ, Jalloh explained that his father had originally secured an
identification card for him, but that this card was lost. Before
his family's death, Jalloh became concerned about the increasing
violence around Kenema and wanted to secure a replacement card in
case he was forced to flee. This necessitated a trip to Freetown,
Sierra Leone's capitol. Because ambushes of travelers were
frequent, Jalloh paid someone to take the trip for him, and thus
acquired his second card through this intermediary. He testified
that he had no reason to believe that the second card was
fraudulent because it looked like all other identity cards he had
seen.
The IJ, however, was not convinced, and, relying on Matter of
O-D, 21 I&N Dec. 1079, 1083 (BIA 1998), noted that submission of at
least one counterfeit identification document "generally discredits
[petitioner's] testimony regarding asylum eligibility and
specifically discredits his identity claim." The IJ not only
discounted Jalloh's testimony, but also accorded very little weight
to expert testimony that supported his claim of citizenship,
namely, that Jalloh was fluent in languages native to Sierra Leone
4
Jalloh does not contest the testimony of a forensic analyst
who concluded that the card was "concocted." On this basis, the IJ
concluded that Jalloh's claim of Sierra Leonean citizenship was not
credible, and thus he could not establish a foundation for refugee
status.
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and was familiar with the culture generally and people specifically
in a manner to be expected of a native.
The alternative ground for denying asylum - that Jalloh did
not establish a well-founded fear of persecution because he did not
demonstrate a causal connection between his family's political
opinion and the feared persecution - also relied in part on the
adverse credibility finding. In evaluating Jalloh's claim that
insurgent forces were aware of his father's support of the Kamajors
and thus targeted the family on account of political affiliation,
the IJ again discounted Jalloh's testimony because he was not a
credible witness and "therefore, his testimony as to what actually
occurred is questionable at best." The court instead adopted the
government's argument that Jalloh's family simply fell victim to
the indiscriminate violence sweeping through the country.
The BIA, on the other hand, accepted Jalloh's explanation of
the lost identification card and thus credited Jalloh's claim of
citizenship.5 The BIA noted more generally that "[t]he submission
of the fraudulent document does not taint the respondent's veracity
and credibility under Matter of O-D . . . because the respondent
testified that he did not know the document was fraudulent." By
virtue of its citation to Matter of O-D, it appears that the BIA
may have intended the credibility reversal to affect not just the
5
As a further result of the restoration of credibility, the
BIA reversed the IJ's finding that Jalloh had filed a frivolous
application for asylum.
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claim of citizenship, but "overall credibility" as well.6 However,
in reviewing the IJ's alternative ground for dismissal, the BIA did
not address Jalloh's evidence - or the IJ's treatment of that
evidence - in light of Jalloh's restored credibility. On the key
issue of whether the family's murders had been on account of
political opinion, the BIA offered a cursory review of the evidence
as interpreted by the IJ and then concluded that Jalloh's claim of
causation was simply "speculation."
III. Analysis
We review the BIA's decision under a "substantial evidence"
standard. Guzman, 327 F.3d at 15. Under this deferential
standard, we will uphold the BIA if the decision is "supported by
reasonable, substantial, and probative evidence on the record
considered as a whole." Id. (citing INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)). We will not reverse unless we determine
that the record compels the conclusion that Jalloh is eligible for
asylum. Aguilar-Solis, 168 F.3d at 565. We may remand, however,
if the BIA's opinion fails to state "with sufficient particularity
and clarity the reasons for denial of asylum." Gailius, 147 F.3d
at 46 (citing Hartooni v. INS, 21 F.3d 336, 343 (9th Cir. 1994)
(internal citations omitted)).
6
Indeed, in Matter of O-D, not only had false documents been
presented, but, as the BIA stated, "[I]n the absence of an
explanation regarding such presentation, [the presentation] creates
serious doubts regarding the respondent's overall credibility."
Matter of O-D, 21 I&N Dec. at 1083.
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At the outset, we note that when the BIA required Jalloh to
prove a well-founded fear of persecution by showing that it was
"more likely than not that his life or freedom would be threatened
upon return to Sierra Leone," the BIA assigned Jalloh the wrong
burden of proof.7 The "more likely than not" burden applies to
withholding of removal, 8 C.F.R. § 208.16(b)(2)(ii), not asylum,
which requires a lesser showing that the "fear of persecution upon
return is reasonable,"8 Id. at § 208.13(b)(2)(iii)(B) (emphasis
added). Compare INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)
(describing as "inexorable" the conclusion that "to show a 'well-
founded fear of persecution,' an alien need not prove that it is
more likely than not that he or she will be persecuted in his or
her home country"), with INS v. Stevic, 467 U.S. 407, 430 (1984)
(requiring that an applicant for withholding of removal demonstrate
7
Jalloh did not raise this issue on appeal, and the government
did not acknowledge the misstep, but it is settled in this circuit
that an appellate court has discretion, in exceptional cases, to
relieve a party of forfeiture. See United States v. La Guardia,
902 F.2d 1010, 1013 (1st Cir. 1990). The BIA's error of law
deviates from clear precedent of both the Supreme Court and this
circuit and, therefore, should not escape our attention,
particularly in a case where further proceedings will be necessary
on remand.
8
The confusion is further apparent in the BIA's conclusion
that Jalloh "failed to prove entitlement to asylum." As the
Supreme Court explained in INS v. Cardoza-Fonseca, 480 U.S. 421,
441 (1987), asylum is discretionary relief and thus an applicant
who demonstrates a well-founded fear of persecution is simply
deemed "eligible" for asylum. An applicant who meets the higher
standard for withholding of removal, however, is "entitled" to
relief.
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"that it is more likely than not that the alien would be subject to
persecution on one of the specified grounds," but specifically
leaving open the required showing for an asylum applicant). This
legal error adds to the difficulty of reviewing the BIA's decision.
The Board erroneously failed to consider whether Jalloh's evidence
supports a reasonable fear of persecution sufficient to sustain an
application for asylum, even if it does not demonstrate that
Jalloh's likelihood of facing persecution is "more likely than
not." See Hernandez-Barrera v. Ashcroft, --- F.3d ---, --- (1st
Cir. 2004) [No. 02-2513, slip op. at 27] (cautioning that the "INS
cannot impose an evidentiary burden on the applicant that is not
provided by and appears to be inconsistent with the statute or
regulation") (internal citations omitted). Moreover, despite its
restoration of credibility to Jalloh, the BIA gave short shrift to
his considerable evidence that he faced a well-founded fear of
persecution on account of political opinion.9
Jalloh presented probative evidence that suggested a political
connection between the violence suffered by his family and his
father's political views. His own testimony described how a known
member of the Kamajors would visit the family home - located in a
9
Jalloh's claim is actually based on his fear that the
renegade soldiers and insurgents would impute his father's
political support of the Kamajors to Jalloh himself, and thus
target him for persecution. Such imputed political opinion - even
if incorrectly attributed to the asylum applicant - can satisfy the
"on account of" requirement under the Act's definition of a
refugee. Morales v. INS, 208 F.3d 323, 331 (1st Cir. 2000).
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section of the town controlled by the renegade soldiers -
approximately twice each month to arrange for supplies of rice -
paid for by Jalloh's father - to be picked up at various local
stores. Jalloh explained that his father was a member of the
village elders and that as a leader in the community, his political
opinions - including his support of free elections and the Kamajors
- would have been known.
Jalloh also testified to having been told that on the day his
home was destroyed, the home of another family, known to have
supported the Kamajors, was also burned. Such evidence of
selectivity further buttresses Jalloh's claim that his family was
targeted on account of political opinion. See Popova v. INS, 273
F.3d 1251, 1255, 1258 (9th Cir. 2001) (fact that, in an apartment
complex, only petitioner's apartment was burned supported claim
that petitioner was targeted on account of religious affiliation
and political opinion); cf. Pieterson v. Ashcroft, 364 F.3d 38, 42-
43 (1st Cir. 2004) (justifying denial of petitioner's claim in part
on the fact that the evidence "suggested that no particular group
of persons was being singled out; the looting and burning of houses
and shops did not target persons of particular ethnicities or
political beliefs") (emphasis added).
Documentary evidence in the form of news reports and country
profiles from the United States Department of State and
organizations like Amnesty International and Human Rights Watch
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further substantiates Jalloh's claim that supporters of the
Kamajors were targeted for persecution. Although the reports
attest to the generalized violence characteristic of Sierra Leone's
civil war and aftermath, there is also clear mention of attacks on
Kamajors and purported collaborators in Kenema, the same city in
which Jalloh's family lived. Significantly, the reported abuses
were not confined solely to suspected members of the Kamajors, but
also extended to citizens accused of simply supporting the group.
Finally, Professor Rosalind Shaw, accepted by the IJ as an expert
on the conditions of Sierra Leone, testified that both Jalloh's
account of the killings and the targeted abuse of Kamajor
supporters are consistent with her understanding of the pervasive
situation in the country.
In addition, Jalloh provided evidence pertaining to the
likelihood of his being identified and targeted for persecution
should he return to Sierra Leone. He testified that he knew at
least twenty young men from school and from playing soccer who
joined the soldiers, and he explained that these men would not only
be able to identify him, but would also be aware of his family's
political affiliation. Jalloh's own testimony was corroborated by
that of Professor Shaw, who offered her expert opinion that should
Jalloh return to Sierra Leone, he was "more than likely" to be
identified and persecuted.
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The BIA acknowledged that the record contained evidence that
"soldiers targeted Kamajors and supporters of Kamajors, and that
the respondent's father was a supporter of the Kamajors," but then
dismissed Jalloh's claim that his family had been killed on account
of political opinion as "speculation." This cursory discounting of
Jalloh's proffered testimony is - absent further explanation -
inconsistent both with the BIA's determination that Jalloh was a
credible witness and 8 C.F.R. § 208.13, which allows an applicant
to prove motivation on his or her own testimony alone, absent other
evidence to the contrary. See Shoafera v. INS, 228 F.3d 1070, 1075
(9th Cir. 2000) ("A bald assertion that [petitioner's] credible
testimony was 'speculation' is insufficient. Some evidence or
support for that conclusion must be offered."). Although we have
clarified that a reviewing court need not accept the uncontradicted
testimony of an asylum applicant as true if it is "internally
inconsistent or belied by the prevailing circumstances," Aguilar-
Solis, 168 F.3d at 570, the BIA has given us no indication that
either of those qualifying characteristics is present here. The
only analysis offered by the BIA was that "there is no evidence
that the respondent's father was ever threatened or harmed on
account of his political beliefs . . . or that other members of his
family had been threatened or harmed." This, however, is a
conclusory characterization of the record which, as we have noted,
is too opaque to serve as the basis for decision.
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Jalloh has offered evidence - his own testimony, international
and governmental agency reports, and expert opinion - that his
family was killed on account of his father's political affiliation
with the Kamajors and that, furthermore, should he return to Sierra
Leone, he may suffer a similar fate. Because the BIA reversed the
IJ with respect to Jalloh's credibility, we need a more detailed
explanation of why this evidence is insufficient. Gailius, 147
F.3d at 47 (explaining that remand is appropriate in asylum context
when "a reviewing court cannot sustain the agency's decision
because it has failed to offer legally sufficient reasons for its
decision").
The combined effect of the credibility reversal and the
assignment of the wrong burden of proof has left us without a
sufficient basis to affirm the BIA, and we therefore vacate the
order of the BIA and remand to determine whether the credible
testimony offered by Jalloh establishes past persecution or a
reasonable fear of future persecution on account of political
opinion.
Vacated and remanded.
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