Sackie v. Ashcroft

270 F.Supp.2d 596

Randall SACKIE v. John ASHCROFT, U.S. Attorney General, Kenneth Elwood, District Director and U.S. Immigration and Naturalization Service, Philadelphia District

No. CIV.A. 02-3705.

United States District Court, E.D. Pennsylvania.

June 18, 2003.

Sandra Greene, York, for Plaintiff.

Stephen J. Britt, U.S. Attorney's Office, Philadelphia, for Defendants.

MEMORANDUM AND ORDER

JOYNER, District Judge.

This case has been brought before the Court on Petition of Randall Sackie for a writ of habeas corpus and on his petition for emergency stay of removal pending this Court's adjudication of his habeas petition. For the reasons which follow, the petitions shall be granted.

History of the Case

Randall Sackie is a 27-year-old native and citizen of Liberia who emigrated to the United States in May, 1995 and was admitted as a permanent resident on the basis of a petition from one of his parents, who had previously acquired U.S. citizenship. On July 21, 2000, the Philadelphia office of the Immigration and Naturalization Service ("INS") served Petitioner with a Notice to Appear, which is an immigration charging document by which removal proceedings are instituted. Specifically, the Notice to Appear alleged that Mr. Sackie had been convicted, (1) on June 18, 1998 of receiving stolen property in Minnesota; (2) on November 12, 1998 of giving a false name to the police in Minnesota; (3) on June 21, 1999 of giving false information to a police officer in Minnesota; (4) on August 16, 1999 of receiving stolen property in Ohio; (5) on August 26, 1999 of receiving stolen property and theft of property lost in Pennsylvania; and (6) on April 10, 2000 of access device fraud in Pennsylvania. The Notice to Appear further charged that Petitioner was deportable because he had been convicted of crimes involving moral turpitude and an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), (ii), and (iii).

In response thereto, Petitioner denied that he had been convicted of an aggravated felony and sought asylum, withholding of removal and protection under the U.N. Convention Against Torture ("CAT"). Petitioner's habeas petition asserts that he had been forcibly recruited as a child soldier in 1990 by the "marine" arm of the National Patriotic Front of Liberia ("NPFL") under the leadership of Charles Taylor, that he and his fellow recruits were regularly abused and given drugs such as cocaine to make them high and less fearful of the dangerous situations in which they were being placed, and that he was ordered, under direct threat to his own life, to kill others. Later in 1990, the marine group in which Petitioner had been placed broke away from Charles Taylor under the direction of one Prince Johnson, renamed itself the Independent National Patriotic Front of Liberia ("INPFA") and began fighting against Taylor. According to Petitioner, the abuse, drugged food and forced killing continued in the same fashion as it had when he was one of Charles Taylor's marines.

In 1993, a West African organization called the ECOMOG sent troops into Libera to disarm the rebel group that the petitioner was fighting with. Fearing for his life, Mr. Sackie fled to Conakry, Guinea and from there, with the help of the United Nations, contacted his father in the U.S. At the direction of his father, who had initiated a family petition, Mr. Sackie returned to Liberia in 1994 to await his visa. He subsequently was granted status as a legal permanent resident pursuant to the family petition and emigrated to the U.S. in May, 1995. Charles Taylor was elected President of Liberia in 1997 and remains in power to this date. Petitioner argues (as he did before two Immigration judges and two panels of the Board of Immigration Appeals) that if he were returned to Liberia, he would more likely than not face torture by or with the acquiescence of the Liberian government because of his prior membership in the marines/INPFL, that he is easily identified as an INPFL member because he has extensive body markings, scars and tattoos, and that he is therefore entitled to a deferral of his removal under the CAT.¹

Standard of Review

It is now clear that despite the limitations on federal court review of executive branch deportation decisions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), federal courts retain subject matter jurisdiction under 28 U.S.C. § 2241 to decide habeas corpus petitions by criminal aliens subject to deportation. INS v. St. Cyr., 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001). Although the Third Circuit has yet to make a definitive statement on the standard of review of such petitions, most of the courts in this circuit are in agreement that habeas review is limited solely to questions of statutory and constitutional law; review of factual or discretionary issues is prohibited. See: Da Rosa Silva v. INS, 263 F.Supp.2d 1005 (E.D.Pa.2003); Edwards v. INS, Civ. A. No. 03-286, 2003 U.S. Dist. LEXIS 6594 (E.D.Pa. March 31, 2003); Bamba v. Elwood, 252 F.Supp.2d 195, 199 (E.D.Pa. 2003); Builes v. Nye, 239 F.Supp.2d 518, 523 (M.D.Pa.2003); U.S. ex. rel. Zhelyatdinov v. Ashcroft, Civ. A. No. 02-4318, 2002 WL 31957526 (E.D.Pa. Dec. 27, 2002); Sulaiman v. Attorney General, 212 F.Supp.2d 413, 416 (E.D.Pa.2002), affd w/o opinion, 64 Fed.Appx. 851 (3d Cir.2003).

Discussion

As noted, by his habeas petition Mr. Sackie seeks asylum, withholding of removal and/or protection under the UN Convention Against Torture (CAT).

Pursuant to 8 U.S.C. § 1158(b)(1), the Attorney General has discretion to grant asylum to an alien applicant if he determines that the alien is a refugee within the meaning of § 1101(a)(42)(A). Under this section, "[t]he term `refugee' means any person who is outside any country of such person's nationality, or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who 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). However, § 1158(b)(1) does not apply if the Attorney General determines, inter alia, that the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion, or was convicted of a particularly serious crime and constitutes a danger to the community of the United States. 8 U.S.C. § 1158(b)(2)(A)(i), (ii). "For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime." 8 U.S.C. § 1158(b)(2)(B)(i). It is the applicant for asylum who bears the burden of establishing that he or she falls within the statutory definition of "refugee.". Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir.2001), citing, 8 C.F.R. § 208.13(a) and Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir.1998).

Withholding of removal is properly granted "if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group or political opinion" unless "the alien ordered, incited, assisted or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group or political opinion" or is a danger to the community of the United States by virtue of having been convicted of a particularly serious crime. 8 U.S.C. § 1231(b)(3)(A),(B)(i), (ii). The burden of proof is on the applicant for withholding of removal to establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 C.F.R. § 208.16(b). Thus, withholding of removal involves considerations very similar to those applicable to requests for asylum.²

The Convention Against Torture, in turn, allows a deportable alien to apply for relief from removal if an "immigration judge determines that the alien is more likely than not to be tortured³ in the country of removal." Edwards, 2003 U.S. Dist LEXIS at *7, quoting 8 C.F.K. § 208.16(c)(4).⁴ Again, the burden of proof is on the applicant whose testimony may, if credible, be sufficient to sustain the burden without corroboration. 8 C.F.R. § 208.16(c)(2). In assessing whether it is more likely than not that the alien would be tortured in the proposed country of removal, all evidence relevant to that possibility shall be considered including evidence of past torture inflicted upon the applicant, evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured, and evidence of gross, flagrant or mass human rights violations in the country of removal. 8 C.F.R. § 208.16(c)(3). In the event that the immigration judge should determine that the alien is more likely than not to be tortured in the country of removal, protection under the CAT will be granted either in the form of withholding or deferral of removal. 8 C.F.R. § 208.16(c)(4). Unless the alien is subject to mandatory denial of withholding of removal (as is the case where the alien has been convicted of a particularly serious crime), he shall be granted withholding; otherwise, his removal shall be deferred. 8 C.F.R. § 208.16(c)(4), (d).

The original immigration judge hearing Mr. Sackie's case found that he did not participate or...