Dwomoh v. Sava

• Decision Date: 13 October 1988
• Docket Number: No. 88 CV 6083 (KMW).,88 CV 6083 (KMW).
• Citation: 696 F. Supp. 970
• Parties: Nana Asante DWOMOH, Petitioner, v. Charles C. SAVA, as the District Director of the New York District of the Immigration and Naturalization Service, Respondent.
• Court: U.S. District Court — Southern District of New York

696 F. Supp. 970

Nana Asante DWOMOH, Petitioner, v. Charles C. SAVA, as the District Director of the New York District of the Immigration and Naturalization Service, Respondent.

No. 88 CV 6083 (KMW).

United States District Court, S.D. New York.

October 13, 1988.

Simpson, Thacher & Bartlett, New York City, for petitioner.

Timothy Mac Fall, Sp. Asst., Rudolph W. Giuliani, U.S. Atty., New York City, for respondent.

OPINION

KIMBA M. WOOD, District Judge.

This case is before the Court on a Petition for a Writ of Habeas Corpus. Petitioner challenges a determination of the Board of Immigration Appeals ("BIA") denying petitioner political asylum. The BIA's determination is based on its interpretation of the definition of "refugee" in the Refugee Act of 1980 (the "Act"); the BIA interprets that definition to deny refugee status to an individual who supported a coup d'etat against the government of Ghana. I conclude that the decision of the BIA must be reversed as a matter of law because the BIA's interpretation of the definition of "refugee" contravenes the intent of Congress as reflected in the Act itself and in the Act's legislative history.

1. FACTS

The record reflects the following facts. The petitioner, Nana Asante Dwomoh, is a thirty-one year old Ghanaian soldier who escaped from Ussher Fort Prison in Ghana on December 22, 1986. (Transcript of Proceedings Before the Immigration Judge, at 48-49 hereinafter the "Transcript"; Affidavit of Nana Asante Dwomoh, March 19, 1987, at ¶ 3 hereinafter the "First Dwomoh Affidavit"). Mr. Dwomoh had joined the Ghanaian Army in 1974, at the age of eighteen, and for the next eleven years he had pursued his military career, attaining the rank of Sergeant. (Transcript at 63; First Dwomoh Affidavit at ¶ 3.) However, by 1985, disturbed by worsening political conditions (including summary execution of eight generals and several judges, among others) and the threatened execution of a political prisoner who was a friend of his, he agreed to participate in resistance activities that included efforts to free his friend from prison and to support a coup against the military government. (First Dwomoh Affidavit, at ¶¶ 5-13.)

On November 6, 1985, the morning before the coup was to take place, a Ghanaian military patrol picked up Mr. Dwomoh and beat him in an unsuccessful attempt to obtain a confession. (Transcript at 42-43; First Dwomoh Affidavit, at ¶ 14.) After being arrested, beaten several times, and imprisoned by the Ghanaian military government for more than one year, without access to counsel, family or friends, Mr. Dwomoh escaped from the prison where he was held in Ghana and fled to the United States. (Transcript at 48-49, 91; Transcript of Proceedings Before the Immigration Judge in the Matter of Abubakari Shariff at 23-24, 73-74, 93 hereinafter the "Shariff Transcript".)

The Ghanaian military regime had seized power from a democratically-elected government in 1981, and has since prohibited all peaceful means of political change and expression, while simultaneously denying due process protections to those who seek political change through more forceful means.¹ There is every indication that, if returned to Ghana, Mr. Dwomoh will again be physically abused and possibly may be executed.

In a split decision, a majority of the BIA held that an individual such as Mr. Dwomoh cannot qualify for protection as a refugee under United States law on the basis of any of the facts recited here, including his resistance activities, which the BIA condemned as "treason."

2. THE PROCEEDINGS BELOW

The BIA upheld the Immigration Judge's denial of Mr. Dwomoh's petition for asylum and withholding of deportation, solely on the basis of the BIA's determination that the acts Mr. Dwomoh engaged in do not qualify him as a "refugee."²In re Dwomoh, A26 805 882 (BIA 1988) hereinafter the "BIA Op.". In the BIA's view, Mr. Dwomoh cannot qualify for refugee status because, unlike those who merely express political views, he participated in an unsuccessful coup d'etat (Mr. Dwomoh "is a fugitive from justice who faces prosecution for his role in an unsuccessful coup d'etat"). (BIA Op. at 4-5.)

In making its decision, the BIA made its own findings of fact and accepted Mr. Dwomoh's account of the facts as true.³ The BIA is authorized to review the decision of an Immigration Judge de novo.⁴ In this case, it is clear that the BIA made a de novo review, rather than accept the findings of the Immigration Judge. Had the BIA accepted the Immigration Judge's findings, it would never have reached the legal question it decided—whether Mr. Dwomoh qualified as a refugee based on the facts as presented by Mr. Dwomoh.⁵ In addition, the language of both the majority opinion and the dissent indicates that the BIA found the facts to be as related in the opinion.

3. STANDARD OF REVIEW

The Court here is reviewing the BIA's construction of a statute, rather than BIA findings of fact or the application of those facts to the law. The Supreme Court has held that if Congress has explicitly addressed the question at issue, the Court must give effect to Congress' intent:

When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. Footnote omitted. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute.... The question for the court is whether the agency's answer is based on a permissible construction of the statute. Footnote omitted.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, 104 S.Ct. 2778, 2781-2782, 81 L.Ed.2d 694 (1984). Here, Congress has unambiguously expressed its intent regarding the definition of "refugee"; because the intent of Congress on the precise question at issue is so clear, this Court must review the decision of the BIA without giving any particular deference to the BIA's statutory interpretation.⁶

The Supreme Court rejected the BIA's argument that its construction of the Refugee Act of 1980 is entitled to substantial deference in similar circumstances in INS v. Cardoza-Fonseca, in 1987, stating:

The Government argues that the BIA's construction of the Refugee Act of 1980 is entitled to substantial deference, even if we conclude that the Court of Appeals' reading of the statutes is more in keeping with Congress' intent. Footnote omitted. This argument is unpersuasive.... "The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. Citing cases. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect."

supra, 107 S.Ct. at 1220-1221, quoting Chevron, supra, 104 S.Ct. at 2781. See also, Carcamo-Flores v. INS, 805 F.2d 60, 68 (2d Cir.1986) ("A reading of the board's opinion in this case leaves at least room for significant doubt as to whether the appropriate standard was applied.... We therefore remand the case for further proceedings in which the board is directed to apply explicitly and clearly the well-founded fear test....").

4. THE DEFINITION OF REFUGEE

The BIA takes the position that a person can qualify for refugee status if he faces prosecution for openly espousing anti-government views, but that he cannot so qualify if he faces prosecution for acting on those views, where his action takes the form of a politically motivated attempt to overthrow the government by violent means. (BIA Op. at 4.) Without considering the fact that in totalitarian governments a person may have only one chance to express or act upon anti-government views, and that the only means of effecting political change may be to overthrow the government, the BIA compared Ghana to the United States and stated that both countries have the right to enforce their laws against treason and insurrection, even by imposition of the death penalty. (BIA Op. at 11.) On the question of whether the beatings and one year's detention of Mr. Dwomoh without permitting him contact with the outside world constitute "persecution on account of ... political opinion" within the Congressional definition, the BIA stated, "... he was subjected to mistreatment due to his refusal to provide information about the attempted coup d'etat, not because of any political view he may hold." (BIA Op. at 3.) In determining whether the punishment petitioner faced and faces is persecution on account of political opinion, the BIA relied both on its view that governments have the right to enforce laws against treason, and a statement in a publication of the United Nations High Commissioner for Refugees that persons fleeing from punishment for common law offenses are not normally refugees. United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, (Geneva, 1979), p. 15 hereinafter the "UNHCR Handbook".

A. Legislative History of the Definition of "Refugee"

In 1980, the Congress adopted a new definition of "refugee" as part of a comprehensive overhaul of United States policy regarding refugee resettlement and assistance. One of the "five basic objectives" of the Act, according to the Senate Report, was to provide a new definition of a refugee. Senate Report No. 96-256, P.L. 96-212 p. 1, U.S.Code Cong. & Admin.News 1980, p. 141. The new definition provides that an applicant is a "refugee" if he

is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of

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