404 F.3d 1207 (9th Cir. 2005), 03-71391, Nuru v. Gonzales

Docket Nº:03-71391.
Citation:404 F.3d 1207
Party Name:Ukashu NURU, aka Ukasha Nuru, Petitioner, v. Alberto R. GONZALES,[*] Attorney General, Respondent.
Case Date:April 21, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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404 F.3d 1207 (9th Cir. 2005)

Ukashu NURU, aka Ukasha Nuru, Petitioner,

v.

Alberto R. GONZALES, [*] Attorney General, Respondent.

No. 03-71391.

United States Court of Appeals, Ninth Circuit.

April 21, 2005.

Submitted Sept. 1, 2004

Vacated Feb. 23, 2005.

Resubmitted March 24, 2005.[**]

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Steve Paek, Law Offices of Steve Paek, Los Angeles, CA, for the petitioner.

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Peter D. Keisler, Donald E. Keener, Francis W. Fraser, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-954-387.

Before: REINHARDT, TASHIMA, and WARDLAW, Circuit Judges.

REINHARDT, Circuit Judge.

Warfare still continues to produce cruel, inhuman, and degrading acts of torture sanctioned or tolerated by government officials and committed even in lands that consider themselves civilized. The case before us involves one of those occurrences and requires us to decide whether the law permits the United States government to remove a victim of such treatment to his home country where he would likely, once again, be subjected to the infliction of severe physical pain and suffering, if not death.

Ukashu Nuru, a native and citizen of Eritrea, petitions for review of the Board of Immigration Appeals' ("BIA" or "Board") final order of removal, including the order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT" or "Convention"). The immigration judge found Nuru to be a credible witness but denied him relief on the grounds that he had not suffered past persecution as a result of his political opinion and that he would not be tortured if he were returned to Eritrea. The BIA adopted these findings and further found that Nuru's punishment by the Eritrean military was not disproportionately harsh and that he had not presented evidence that any punishment he would receive in the future would be disproportionately harsh or would be inflicted on account of his political beliefs.

On review, Nuru argues that it is more probable than not that he will be tortured if he is returned to Eritrea, that he suffered persecution "on account of" his political opinion in the past, that he has a well-founded fear that he will be similarly persecuted in the future, and that he is eligible for asylum and entitled to withholding of removal, as well as protection under the Convention. We agree, and remand for the grant of relief under CAT, the award of withholding of removal, and for the exercise of the Attorney General's discretion with respect to the grant of asylum.

FACTUAL AND PROCEDURAL BACKGROUND

Ukashu Nuru is married to a permanent resident of the United States and has a U.S. citizen son. When the Immigration and Naturalization Service ("INS")1 sought to remove him to Eritrea on the ground that his immigration papers were fraudulent and that he did not have a lawful visa, he applied for asylum, withholding of removal, and protection under Article III of the Convention. He asserted that he was tortured by the Eritrean army as a result of his political opposition to the war between Eritrea and Sudan.

At his hearing before the immigration judge, Nuru testified regarding his military service in Eritrea. He reported that he was drafted into the Eritrean military in July 1996 and underwent more than six months of military training. He was then assigned to the front line of the Eritrean-Sudanese conflict where he dutifully served for some time in the Eritrean army.

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He obeyed "orders," never refusing to serve his country.

Nuru testified that the Sudanese forces were better armed and equipped than the Eritrean military, that the Eritrean forces were not adequately trained to face their enemy, and that his unit was attacked from the air and ground with impunity. As a result, Nuru observed the death of many of his young comrades. This troubled him. "[M]any people were dying randomly without any protection ... against tanks, airplanes.... [W]e were helpless." From Nuru's point of view, the war did not make political sense because he and his comrades were fighting a losing battle in a land that was not theirs for a cause no one understood. Aside from his political opposition to the battle against the Sudanese, Nuru had no other opposition to serving in the military or with his government. He testified, "I did not support the government fighting with all [its] neighbors ... This is the only situation that I have with the government."

Having witnessed senseless death on the front, Nuru decided to protest against the "nonsense" war. At a front line unit meeting in 1997, his battalion commander instructed the soldiers to continue fighting the losing battle against the Sudanese forces, despite the fact that the Eritrean army had sustained substantial casualties. Nuru could no longer "listen to the lies and misrepresentations of [his] foolish [commander]." Nuru stood up and voiced his political opposition to the war: "[W]e are fighting a nonsense war. This land is not our[ ]s. We are dying for nothing, why are we fighting or continuing to fight?"

The battalion commander immediately rebuked Nuru for his statements. He directed him to remain standing for the duration of the meeting, and then forced him to kneel for some period of time thereafter. When the meeting adjourned, two soldiers removed all of Nuru's possessions, stripped him of his clothes, tied his hands and feet together behind his back, and placed him on his abdomen. This position is known as the "helicopter." While he was naked and bound, his fellow soldiers repeatedly slapped him, beat him, and whipped him with a sharp belt. They chastised and censured him. He was ordered by commanding officers "never to repeat such words in front of other people or in a meeting."

Unfortunately for Nuru, his punishment did not end there. For twenty-five days, he was tied up, naked and bound in the "helicopter" position, and left outside in the hot desert sun. For sustenance, he was given a small ration of bread, a can of food, and a cup of water daily.2 He was forced to urinate and defecate in this bound position, and he was regularly beaten and whipped until the skin broke open on his back and feet. As a result of this cruel, inhuman, and degrading treatment, Nuru had difficulty urinating and was unable to move without assistance. The immigration judge stated that he was "amazed" that no more serious form of punishment was imposed.

Nuru eventually suffered a severe tooth infection. When he complained, other soldiers taunted him: "[D]o you expect us to give you any other relief while you are opposing our orders?" Nuru pleaded for medical attention. Finally, he was permitted to see a nurse, who prescribed a pain killer for the infection. When the pain continued, he was transferred to a nearby town to receive proper medical attention. He was unguarded while seeing a dentist who extracted his infected tooth.

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Following the oral surgery, Nuru was ordered to return to his original camp--the camp at which the officers who had ordered him bound, whipped, beaten, and placed in the broiling sun for nearly one month were stationed. Rather than return to be further tortured, Nuru fled, ultimately to the United States. When questioned at his removal hearing as to why he had fled, Nuru testified that he feared his torture would continue if he returned to the camp since he was still opposed to the war. "I fled to, to save my life ... I was tortured. I had to flee," he said.

Nuru initially hid for a few days at his parents' house in Asmara and then hired a smuggler to take him into Ethiopia, where he resided with his aunt. In May 1998, a new phase of an old war between Ethiopia and Eritrea erupted. The Ethiopian government issued a proclamation ordering all individuals of Eritrean origin to report to headquarters. When Nuru failed to comply, he was seized by the Ethiopian government as a suspected spy and placed in an Ethiopian detention center, where he was denied medical attention, received meager rations, and was kicked, doused with cold water, slapped, and whipped.3 In February 2000, Nuru's aunt secured his release by bribing a security guard. Nuru then fled to Rome where he stayed for two and a half months before entering the United States.

In Nuru's absence, the Eritrean military took strong actions in reprisal against his family. After searching his parents' home looking for him, they seized his two brothers as accessories in his desertion, and forcibly closed his father's business. His brothers have not been heard from since. Nuru asserts that if he is returned to Eritrea he will be "executed, or ... detained in a separate place that no one could save [him]," and that the government will do this because of his expressed opposition to the war.

Following the removal hearing, the immigration judge issued an oral decision. He found Nuru to be a credible witness. The judge explained, "[T]he Court has little difficulty with [Nuru's] credibility. His elaboration of the facts that led to his departure are certainly not in conflict...." Nevertheless, he denied Nuru's claims for asylum, withholding of removal, and CAT relief.

First, the immigration judge found that Nuru was "nothing more than a common deserter." Despite credible testimony in which Nuru proclaimed his moral and political opposition to the war in Sudan and described the statements he had made in opposition to it, and despite credible testimony that, immediately after the meeting at which he made those statements, he was subjected to cruel, inhuman, and degrading punishment for...

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