On Petition for Review from the Board of Immigration Appeals (A 75 805 924) Initially docketed as an Appeal from the United States District Court for the Middle District of Pennsylvania prior to enactment of the REAL ID Act (D.C. No. 02-cv-00738) District Judge: Honorable Malcolm Muir.
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Before: SLOVITER and FISHER, Circuit Judges, and POLLAK,*fn2 District Judge.
The Department of Homeland Security ("DHS") appeals the Order of the District Court granting Mohamed Kamara's petition for writ of habeas corpus and permanently enjoining the government from deporting Kamara to Sierra Leone.
The parties stipulated in a joint motion, filed on April 13, 2004, to the following facts:*fn3 Kamara, a native of Sierra Leone, was studying medicine in Cuba in the early 1980s on a grant from the government of Sierra Leone. In the course of his studies in Cuba, the Sierra Leone government failed to provide the financial support it had promised. In response, Kamara and other Sierra Leone students stormed the Sierra Leone embassy in Cuba, physically accosted the Sierra Leonian Ambassador, and publicly accused the Sierra Leone government of corruption. Shortly thereafter, in 1982, Kamara was "deported" (expelled) from Cuba at the direction of officials of the Sierra Leone government, and required to return to Sierra Leone. While in transit through Miami, Florida on a non-immigrant transit visa, Kamara left the airport. He has remained in the United States ever since.
On April 23, 1999, Kamara was convicted in a New York State Court of attempted sale of a controlled substance (cocaine) in the third degree, and sentenced to six months incarceration. The conviction arose after undercover police officers approached Kamara and offered him $10 to help them buy cocaine. Kamara, who lived in a drug infested area, complied with the request and was thereafter arrested. On June 18, 1999, the Immigration and Naturalization Service ("INS") (which has since been replaced by the Department of Homeland Security, Bureau of Immigration and Customs Enforcement) commenced removal proceedings against Kamara on the grounds that he was an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(U), an alien convicted of violating a controlled substance law, and an alien who remained in the United States for a time longer than permitted. See 8 U.S.C. § 1227(a)(2)(A)(iii), (a)(2)(B)(i), (a)(1)(B).
Kamara applied for asylum, withholding of removal under § 241(b)(3) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1231(b)(3), and for protection under the CAT.*fn4 On February 25, 2000, the Immigration Judge ("IJ") issued an oral opinion granting Kamara's application for withholding of removal, reasoning that "in this case the widespread atrocities against people opposing the authority of the former government and present military rebel forces [the Revolutionary United Front ("RUF")] indicates a greater chance, rather than a lesser chance that the respondent will be persecuted for who he is upon his return." Supp. App. at 21. In the same oral decision, the IJ preterminated Kamara's application for asylum, see 8 U.S.C. § 1158(b)(2)(A)(ii), (b)(2)(B)(i) (providing that an alien convicted of aggravated felony is not eligible for asylum), and held that given its decision to grant Kamara's petition for withholding of removal, it was unnecessary to reach the CAT claim.
On October 31, 2000, the Bureau of Immigration Appeals ("BIA" or "Board") reversed the decision of the IJ, stating that there is "insufficient evidence in the record to suggest that anyone in Sierra Leone would want to persecute [Kamara] for any complaints he made while a student in Cuba over 20 years ago." J.A. at 19. The case was remanded to the IJ for consideration of whether Kamara was entitled to relief under the CAT.
At an evidentiary hearing held on January 19, 2001, the IJ heard additional testimony from Kamara, received testimony from Kamara's niece, and accepted into evidence information about country conditions in Sierra Leone. The IJ found both Kamara and his niece credible, and thereafter, in a written opinion dated July 12, 2001, accepted their testimony as the facts of the case.
The testimonial and other evidence regarding country conditions revealed that as of January 2001, Sierra Leone was in the midst of a civil war. The RUF controlled two thirds of the country, and the government controlled the remaining one third. Each entity had an established record of grievous human rights violations.
The several country reports and various media publications (New York Times, Time Magazine, USA Today ) received by the IJ made plain that "[t]here is hardly a ruling body in the world . . . that matches the RUF and its allied forces for its utter inhumanity to people under its control." J.A. at 26. The IJ, continuing reference to the country reports, stated that the rebel group, which was the military branch of the Sierra Leone government before the revolution, has killed thousands of unarmed civilians, including women and children (many during mass executions), and maimed countless others through its "'particularly vicious practice of cutting off ears, noses, hands, arms, and legs of noncombatants as a deliberate terror tactic ...'"
J.A. at 26-27 (quoting 1999 Country Report). Women were systematically raped by members of the rebel group, and men who refused to rape their own family members had limbs amputated. The IJ found that "the RUF carried out a pattern of abducting those from the outside who demonstrated any special capabilities: 'Rebel forces abducted civilians, missionaries, aid workers from nongovernmental agencies, U.N. personnel, and journalists.'" J.A. at 27 (quoting 1999 Country Report). Likewise, they deliberately targeted and murdered "'government officials, human rights activists, religious leaders, and lawyers as they entered Freetown.'" J.A. at 27 (quoting 1999 Country Report).
The Sierra Leone government, though clearly not as brutal as the RUF, also had "serious problems" reflected in its human rights record. J.A. at 29. The 1999 Country Report recounts incidents of extrajudicial killings, summary executions of suspected rebels and suspected rebel collaborators, beatings of noncombatants, as well as arbitrary arrest and detention of persons. Furthermore, "discrimination based on ethnic origin [was] widely practiced. . . ." J.A. at 29.
As an initial matter, the IJ determined that akin to the Taliban in Afghanistan and the Israeli Defense Forces in Palestinian Lands, the RUF should be considered a "political official" (or "government") for purposes of the CAT, and therefore that Kamara's claim for protection against torture by the RUF should be heard on the merits. See 8 C.F.R. § 208.18(a)(1) (stating that to receive protection under CAT, applicant must show that torture will be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity"). The IJ then concluded that based on the testimony of Kamara and his niece, and the "ample evidence of gross, flagrant, or mass violations of human rights in Sierra Leone. . . it is more likely than not that respondent will be tortured if returned to Sierra Leone today." J.A. at 30 (internal citation and quotations omitted).
The IJ reasoned that "[i]f the respondent should fall into the RUF's hands, torture is all but certain." J.A. at 28. Kamara's family had already suffered a great deal at the hands of the RUF. The family home was burned down, Kamara's cousin had his hands chopped off, his aunt was shot, the same aunt's husband died while trapped in a house that was set on fire by the RUF, and Kamara's brother-in-law, who has since died, had many properties destroyed, including the Muslim school that he founded. Kamara's mother, sister, and aunt joined the "more than 1 million citizens" who fled the country or were internally displaced. J.A. at 27.
The IJ, reiterating his findings following the first hearing, also found that the relevant facts made "reasonable and altogether plausible [Kamara's] concern that he will be singled out by the government for abusive treatment in violation of his personal security if he is deported there" because of his prior protests in Cuba twenty years before. J.A. at 29. The IJ noted additionally that Kamara will be highly noticeable "because of his long absence from the country coupled with his being among the small minority of elites in the country [which is only 20% literate] (by reason of education, family background, wealth, and experience abroad)." J.A. at 30.
Balancing the very "real" probability that Kamara may fall into RUF hands (and the "certain" torture that would result) with the "nearly certain" probability that Kamara will fall into the government's hands, (and the "reasonable" chance of "abusive treatment in violation of his personal security" that would result), the IJ found that Kamara's application for relief under the CAT should be granted. J.A. at 28-29. Given the additional fact finding, the IJ also clarified the facts surrounding Kamara's petition for withholding of removal, in the event that the BIA decided to revisit the issue on appeal. See 8 U.S.C. § 1231(b)(3). The IJ noted, however, that the BIA's law of the case precluded him from granting withholding of removal at that stage in the proceedings.
The INS once again appealed the decision of the IJ, and on April 5, 2002, in a six paragraph decision, the BIA sustained the appeal. The Board first reasoned that, given the IJ's findings that "it cannot be found to be more likely than not that [the respondent] would find himself in the RUF's hands," there was no reason to discuss the likelihood of torture by the RUF or whether the RUF constitutes a government for purposes of the CAT. J.A. at 37. The BIA then concluded that Kamara failed to meet his burden of proof that he would face "torture" at the hands of the Sierra Leone government. J.A. at 37-38 (stating that "'abusive treatment' violative of one's 'personal security' does not constitute torture, as defined by the regulations") (citing 8 C.F.R. § 208.18(a)).
On April 23, 2002, Kamara filed a petition for a writ of habeas corpus in the Middle District of Pennsylvania, challenging the decision of the BIA.*fn5 The District Court granted the writ, holding that "[t]he cursory and erroneous review of this case by the [BIA] violated Kamara's right to due process of law," and that "[w]hen the [CAT] regulations are properly construed, the undisputed evidence was sufficient to meet the requirements for relief." J.A. at 70-71. The Court also held that deporting Kamara to Sierra Leone would violate Kamara's substantive due process rights under the "state-created danger" exception. See, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). Finally, the Court issued a permanent injunction against removal. DHS filed a timely notice of appeal on June 9, 2004.
II. Jurisdiction / Standard of Review
Until May 11 of this year, an alien convicted of an aggravated felony and removable on such grounds was statutorily barred from filing a petition for review in the court of appeals challenging the BIA's finding that s/he was ineligible for relief under the CAT. See 8 U.S.C. § 1252(a)(2)(C); see also Bakhtriger v. Elwood, 360 F.3d 414, 420 (3d Cir. 2004); Patel v. Ashcroft, 294 F.3d 465, 468 (3d Cir. 2002). We held in Ogbudimkpa, however, that a district court retains jurisdiction to ...