On Petition for Review of an Order of the Board of Immigration Appeals (INS No. A78 424 961)
Before: Becker, Chief Judge,*fn1 Nygaard and Ambro, Circuit Judges.
The opinion of the court was delivered by: Becker, Circuit Judge.
In this multi-pronged petition for review of the Board of Immigration Appeal's ("BIA") denial of Kwasi Amanfi's application for asylum, withholding of removal, and protection under the Convention Against Torture, we are primarily presented with the question whether the BIA improperly deviated from its existing interpretation of the Immigration and Naturalization Act's ("INA") definition of a refugee. Amanfi, a native and citizen of Ghana, was detained by immigration officials upon his arrival in the United States after he presented false travel documents. In testimony before the immigration judge, Amanfi stated that he was persecuted by members of a cult and by the Ghanian police on account of their view that he was a homosexual, even though Amanfi did not identify himself as a homosexual and there was no independent evidence that he was.
The BIA recognized the precedents establishing that homosexuals are a protected social group and supporting asylum claims on the basis of imputed political opinion, i.e., when the persecutor believes the applicant has a certain political opinion even though the applicant does not. However, the BIA was unwilling to extend the concept underlying the theory of imputed political opinion -- that what matters is the beliefs of the persecutor rather than the persecuted -- to Amanfi's theory of imputed membership in a social group (homosexuals) because it deemed such an extension to be without legal precedent.
The INS maintained this position in its brief, but before oral argument it filed a motion to remand this case to the BIA in light of a regulation proposed by the Attorney General in December 2000 that supports Amanfi's theory of imputed membership in a social group. Amanfi notes that in a letter opinion dated January 19, 1993, the INS's General Counsel adopted an interpretation of the INA supporting Amanfi's theory. He nonetheless argues that we should deny the INS's motion and file a precedential opinion in this case because proposed regulations are not binding on the BIA and the INS has never declared when it will promulgate this rule, indeed suggesting at oral argument that it may be quite a long time, perhaps years, before it does so.
While we might remand to the BIA to consider this legal issue in the first instance, we decline to do so here. As we explained in Johnson v. Ashcroft, 286 F.3d 696, 700 (3d Cir. 2002), an agency may change its policies, but it cannot depart from its established precedents without explanation. In at least two decisions, the BIA has held that "[p]ersecution for 'imputed' grounds . . . can satisfy the 'refugee' definition" in the INA. In re S-P-, 21 I. & N. Dec. 486 (BIA 1996); see also In re T-M-B-, 21 I. & N. Dec. 775 (BIA 1997). Moreover, the Attorney General, who is the ultimate authority on interpretations of the INA, INA § 103(a)(1), 8 U.S.C. § 1103(a)(1), explained that the proposed regulation cited by the INS in its motion was not designed to make new law but rather "codifies the existing doctrine of imputed political opinion, as well as the existing administrative interpretation that this doctrine also extends to the protected grounds other than political opinion." 65 Fed. Reg. 76588, 76592 (Dec. 7, 2000). Because Amanfi's theory of persecution on account of his imputed membership in a social group is supported by these legal precedents, and the BIA did not articulate a reason for deviating from them, we will grant the petition of review to that extent and deny the INS's remand motion. We will, however, remand Amanfi's seriously contested asylum claim to the BIA for consideration of its validity in deference to the BIA's expertise in analyzing the merits of asylum applications.
Finally, we will deny Amanfi's petition for review of the BIA's dismissal of his claim for asylum on the ground of religious persecution, and also his application for protection under the Convention Against Torture. The BIA analyzed the evidence supporting these claims and found that Amanfi did not satisfy his burden of proof. Since we may decline to uphold the BIA's findings of fact only if the evidence compels us to do so, see INS v. Elias-Zacarias, 502 U.S. 478, 481 n.3 (1992), and Amanfi has not identified evidence that would lead us to this conclusion, we will defer to the BIA's determination that Amanfi does not qualify for asylum and withholding of removal on religious persecution grounds or under the Convention Against Torture.
Kwasi Amanfi is a citizen of Ghana who was detained by the INS at JFK Airport in New York on December 21, 2000, when he attempted to transit through the United States to Canada. He was in possession of a Canadian passport in the name of Ken Oppong. When questioned about his identity by immigration officials, Amanfi at first claimed he was a Canadian citizen but later admitted his real identity and explained that he acquired the passport in Ghana. That same day, the INS served Amanfi with a Notice to Appear charging him with removability under INA § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), as an alien who sought to obtain admission to the United States by fraud or willful misrepresentation of a material fact, and under INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien seeking admission without a valid document.
In April 2001, Amanfi appeared before an immigration judge ("IJ") and filed, pro se, an application for asylum and withholding of removal under INA §§ 208(a) and 241(b)(3), 8 U.S.C. §§ 1158(a) and 1231(b)(3), and for protection under Article 3 of the Convention Against Torture. In an unsigned attachment to his application, Amanfi stated that he was seeking asylum because of prior abuse by Ghanian authorities on account of his imputed status as a homosexual and alleged torture by a cult that objected to his father's preaching against human sacrifice. At a merits hearing where he was represented by counsel, Amanfi articulated his justification for asylum in testimony summarized as follows.
Amanfi was born in Kumansi, Ghana, and was a member of the Ashanti ethnic group. He had a close relationship with his grandfather who was a "chief" of the Ashanti and who explained to him the group's traditional practices, including human sacrifice. According to what his grandfather told him, homosexuals and other individuals who committed sexual acts that were considered taboo would not be suitable for sacrifice. Although Amanfi's grandfather and other relatives practiced Ashanti traditions, his father was a teacher and minister of a Christian group, as well as a television and radio preacher. Amanfi also identified himself as a Christian. He testified that his father received threats from "macho men" and the "Blood Temple" cult, which objected to his lectures against human sacrifice, and that his father was assaulted by these groups on at least one occasion. In August 2000, Amanfi's father disappeared after he left for church and never returned. Amanfi filed a police report but, despite repeated complaints, received little assistance from the Ghanian authorities in the search for his father.
Shortly thereafter, several men claiming to be police came to Amanfi's house, drove him to an "isolated area," and locked him in a room. The men -- whom Amanfi did not actually believe were police, but rather "macho men" who, according to the Department of State country conditions report for Ghana, are private security guards hired by individuals to settle disputes -- told him that his father had been killed because of his preaching. The "macho men" threatened Amanfi with the same. He testified that the room in which he was kept contained a fetish, or idol, that was covered with blood, which he suspected was from his father. His captors brought him food and wine, which Amanfi claimed meant they were preparing him for sacrifice. He based this assumption on teachings from his grandfather about the purification process that occurs before an individual may be sacrificed.
Another person was brought into the room where Amanfi was detained. Amanfi informed this man, who was named "Kojo," that they could save themselves from being sacrificed if they engaged in homosexual behavior because, according to his granfather, homosexuals were unacceptable for sacrifice. Even though Amanfi stated that he was not a homosexual, he engaged in a homosexual act with Kojo and was discovered by his captors. Several of the "macho men" took him and Kojo outside and beat them before bringing them to the police station. At the station, the police informed the public that Amanfi and Kojo were homosexuals, and Amanfi stated that a "big crowd" came to look at them ...