Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lukwago v. Ashcroft

May 14, 2003

BERNARD LUKWAGO A/K/A MELVIN HAFT, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



Petition for Review of an Order of the Board of Immigration Appeals (A78-420-780)

Before: Sloviter, Rendell, and Greenberg, Circuit Judges

The opinion of the court was delivered by: Sloviter, Circuit Judge.

As amended May 16, 2003.

BERNARD LUKWAGO A/K/A MELVIN HAFT, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT

Petition for Review of an Order of the Board of Immigration Appeals (A78-420-780)

Danielle E. B. Lehman (Argued) Orinda, CA 94563 Jennifer J. Kramer West Chester, PA 19382 Attorneys for Petitioner

Robert D. McCallum, Jr. Assistant Attorney General Civil Division Linda S. Wendtland Assistant Director John C. Cunningham (Argued) Senior Litigation Counsel Michael P. Lindemann John M. McAdams, Jr. United States Department of Justice Office of Immigration Litigation Washington, DC 20044 Attorneys for Respondent

Before: Sloviter, Rendell, and Greenberg, Circuit Judges

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Argued December 17, 2002

OPINION OF THE COURT

I. INTRODUCTION

Bernard Lukwago petitions for review of the decision of the Board of Immigration Appeals ("BIA") ordering his deportation after denying his application for asylum, application for withholding of removal under the Immigration and Nationality Act ("INA") and request for withholding of removal under Article 3 of the United Nations Convention Against Torture ("CAT"). For the reasons set forth hereafter, we will deny the Petition for Review on some claims and remand to the BIA on other claims for further proceedings consistent with this opinion.

II. FACTS AND PROCEDURAL HISTORY

Lukwago is a native and citizen of Uganda. He lived with his parents on farmland in a village in the Gulu District of Northern Uganda. He testified before the Immigration Judge ("IJ") that in August 1997, when he was 15 years old, rebels from the Lord's Resistance Army ("LRA"), a rebel force that opposes the Ugandan government, attacked his home and killed his parents. Certified Administrative Record ("C.A.R.") at 199-200. The rebels captured Lukwago, tied his hands, and took him, along with three other persons from his village, to the LRA camp. C.A.R. at 201-02, 254. While at the camp, Lukwago stayed in a tent with other kidnapped children where they were guarded by armed rebels. C.A.R. at 203-04. Both adults and children were held captive at the camp. C.A.R. at 220-21.

Because the BIA found no reason to challenge Lukwago's credibility we accept his recitation of the facts as given in his affidavits and testimony. See Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994) ("Absent an explicit finding that a specific statement by the petitioner is not credible we are required to accept her testimony as true."). Lukwago testified that the rebels forced him to perform manual labor. He was ordered to get water and firewood. C.A.R. at 205. The rebels also trained him to shoot a gun, while threatening to beat him for poor performance. C.A.R. at 218. Once trained, Lukwago and other captives were forced to fight with the rebels against government soldiers. C.A.R. at 205-06. Lukwago was forced to fight on the front line shooting at government soldiers. C.A.R. at 205-06. He participated in at least 10 battles. C.A.R. at 221, 223. After the fighting, Lukwago and other captive children were ordered to remove uniforms and weapons from dead soldiers. C.A.R. at 205. He also accompanied the rebels on attacks against civilian villages where he was required to carry stolen food and animals back to camp. C.A.R. at 229-30. In addition, during the attacks Lukwago frequently witnessed rebels torture civilians by cutting their lips and fingers. C.A.R. at 230.

Lukwago testified that he was threatened he would be killed if he tried to escape. C.A.R. at 204-05. He witnessed the shooting of two captive children who failed in their attempt to escape. C.A.R. at 265. After one rebel battle, Lukwago and Joseph, his friend at the camp, were carrying stolen weapons and uniforms back to the camp. C.A.R. at 208. Joseph became too tired to keep marching and the rebels beat him, but he was unable to continue. C.A.R. at 208. Lukwago testified that the rebels forced him to help place a heavy rock on Joseph's chest and to sit on the rock until his friend stopped breathing. C.A.R. at 208-11. Lukwago escaped two weeks later while collecting firewood. C.A.R. at 211-12. In total, Lukwago was held captive for approximately four months. App. at 5.

After escaping, Lukwago went to his uncle's home where he stayed for 10 days. C.A.R. at 213-15. His uncle made arrangements for Lukwago to flee Uganda, providing Lukwago with a Ugandan passport and a German visa. C.A.R. at 215. He fled with the false passport to Germany where he purchased a ticket to Holland. C.A.R. at 215, 234. Lukwago traveled to Amsterdam the following day and applied for asylum. C.A.R. at 215, 236. After two years in the Netherlands, his application was denied. C.A.R. at 238. Soon after notification of the denial, he met Melvin Haft in Rotterdam. He testified that "I was on the street. I was crying. Then my, one man he see me, ask me my problem. . . . He was Haft Melvin Sirada (phonetic sp.)." C.A.R. at 242-43. Haft, who had a passport from Holland, was from Suriname. C.A.R. at 243. Lukwago stayed with Haft for two weeks before Haft took him to Belgium. C.A.R. at 243. Haft and Lukwago then traveled to Madrid, Spain where Haft provided Lukwago a passport and an airplane ticket to the United States, each in Haft's name. C.A.R. at 243-45.

Lukwago arrived in the United States on November 22, 2000. C.A.R. at 1028. He requested asylum based on past persecution by the LRA and fear of future persecution by both the LRA and the Ugandan government if returned to Uganda. C.A.R. at 978, 987.

On August 17, 2001, the IJ issued a decision and order denying Lukwago's application for asylum and withholding of removal under INA § 241(b)(3). AV1 at 14-28 (IJ's Decision and Order). *fn1 The IJ found that Lukwago's testimony was not credible based on his mannerisms before the court and "certain inconsistent and unpersuasive testimony the extent of which cast[ed] doubt on the veracity of his claim." AV1 at 19. Specifically, the IJ found Lukwago not credible due to inconsistencies between his testimony before the IJ and previous statements and testimony, including a Dutch asylum interview, *fn2 and the implausibility of his descriptions of his participation in LRA battles. AV1 at 21-23. Nonetheless, the IJ granted Lukwago's request for withholding of removal under the CAT. AV1 at 27. The IJ found, based on expert testimony and the Department of State's special Advisory Opinion, that Lukwago "stands the likelihood of being subjected to torture by the [Ugandan government] upon his return," especially given the evidence that former child soldiers are punished, detained in pits, and used to clear minefields. AV1 at 26-27.

Both Lukwago and the INS appealed the IJ's decision. The BIA, in a decision dated February 21, 2002, reversed the IJ's adverse credibility finding because it lacked sufficient support. AV1 at 5-7 (BIA Decision). The BIA found that the IJ's reliance on the Dutch asylum interview was improper because the documents were "not properly certified or authenticated." AV1 at 5. In addition, the BIA did not find Lukwago's descriptions of the LRA battles troublesome because "it would be unreasonable to expect a high degree of detail regarding battle conditions from a young man who was only 15 years old . . . and who had been assessed as suffering from post-traumatic stress disorder [ ]." AV1 at 6 (footnote omitted). Finally, the BIA did not agree with the IJ's finding that Lukwago's descriptions of his village and school were not credible. The BIA stated those descriptions were not central to his claim and were not necessarily in conflict with expert evidence on the topic. AV1 at 7. The INS does not challenge the BIA's credibility finding in the current appeal.

Despite its acceptance of Lukwago's credibility, the BIA dismissed Lukwago's appeal and sustained the INS' appeal, thereby denying Lukwago's asylum application, his request for withholding of removal under INA § 241(b)(3), and his request for protection under the CAT. The BIA held that Lukwago failed to satisfy his burden of establishing that he suffered past persecution or had a well-founded fear of future persecution by the LRA or the Ugandan government on account of his race, nationality, religion, membership in a particular social group, or political opinion. AV1 at 7-9. The BIA stated that Lukwago did not contend that his treatment by the LRA was on account of his race, nationality, political opinion or religion. It continued:

We therefore must look to whether he established his membership in a "particular social group," and that he was targeted for persecution based on his membership in that group. The only defining characteristic of this group that the respondent has provided is age, i.e. all persons under the age of 18. Although the evidence indicates that the LRA does harm children, the respondent has failed to demonstrate that he was targeted by the LRA because he was a child. AV1 at 8.

It also declined to find that Lukwago faces a heightened risk of future persecution by the LRA or the Ugandan government as a former LRA child soldier. AV1 at 8-9.

The BIA denied Lukwago's application for protection under the CAT because Lukwago failed to demonstrate that he is likely to be tortured by the Ugandan government if he returns to Uganda. For this holding, the BIA relied on the Ugandan government's amnesty policy for former rebels. AV1 at 9. With regard to the required showing of torture by the LRA, the BIA found that (1) he presented no evidence to show that the LRA attempts to seek out and harm "those who have previously deserted from their ranks" and (2) the CAT does not extend protection to torture by entities that are beyond the government's control. AV1 at 10.

The BIA ordered Lukwago's deportation to Uganda. Cecelia M. Espenoza, Board Member, concurred in part and dissented in part with the BIA decision. *fn3 AV1 at 11. Lukwago filed a timely Petition for Review.

III. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction to review the IJ's decision under 8 C.F.R. § 3.1(b). We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). We have previously stated that "because the BIA has the power to conduct a de novo review of IJ decisions . . . the 'final order' we review is that of the BIA." Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).

We must review the BIA's statutory interpretation of the INA under the deferential standard of Chevron U.S.A. v. Natural Res. Def. Counsel, 467 U.S. 837 (1984). In Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), we stated, " '[I]f 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 1239 (quoting Chevron, 467 U.S. at 843).

On the other hand, we must treat the BIA's findings of fact as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). In Abdille v. Ashcroft, we held that " 'persecution' and 'well-founded fear of persecution' are all findings of fact that we review under the deferential substantial evidence standard" and the BIA's findings must be upheld "unless the evidence not only supports a contrary conclusion, but compels it." 242 F.3d 477, 483-84 (3d Cir. 2001). We will reverse "only if a reasonable fact-finder would have to conclude that the requisite fear of persecution existed." Id. at 484 (citation omitted).

IV. DISCUSSION

Lukwago challenges the BIA's decision denying his applications for asylum, withholding of removal under INA § 241(b)(3), and withholding of removal under the CAT. In considering Lukwago's petition, we must give his testimony the benefit of the BIA's acceptance of his credibility. See supra p. 3. On appeal, the INS does not challenge Lukwago's testimony.

A. APPLICATION FOR ASYLUM

Congress established a new statutory procedure for granting asylum to refugees with the enactment of the Refugee Act of 1980. That Act added a new section 208(a), now section 208(b), to the INA which gave the Attorney General discretion to grant asylum to an alien who meets the burden of showing that s/he qualifies as a "refugee" under INA § 101(a)(42)(A). See Abdille, 242 F.3d at 482. The INA defines a refugee as:

any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country 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(a)(42)(A).

Thus, a refugee may be one who suffered past persecution on account of one of the enumerated grounds or fears future persecution on account of one of those grounds. Lukwago contends that he qualifies as a refugee because he was persecuted on account of his membership in the "particular social group" of children from Northern Uganda who are abducted and enslaved by the LRA and oppose their involuntary servitude. Pet.'s Br. at 14. He also claims that he has a well-founded fear of future persecution by the LRA or the Ugandan government on account of his membership in the "particular social group" of former child soldiers who have escaped LRA enslavement or on account of imputed political opinions. Pet.'s Br. at 26.

1. PAST PERSECUTION

To qualify for asylum based on past persecution, the applicant first must show that s/he suffered persecution. Persecution "does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional." Fatin, 12 F.3d at 1240. Rather, we have defined persecution as including "threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom." Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001) (citation omitted).

The BIA did not deny that Lukwago was persecuted by the LRA and Lukwago's testimony was graphic on that score. Lukwago witnessed the LRA murder his parents:

Q: The night that your parents were killed, what happened first?

A: The rebels come and they start to kick the door and start shooting. And then my parents, they opened the back door and then when we start to run, the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.