Kabba v. Mukasey

• Decision Date: 01 July 2008
• Docket Number: No. 07-9532.,07-9532.
• Citation: 530 F.3d 1239
• Parties: Essa KABBA, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

530 F.3d 1239

Essa KABBA, Petitioner, v. Michael B. MUKASEY, United States Attorney General, Respondent.

No. 07-9532.

United States Court of Appeals, Tenth Circuit.

July 1, 2008.

Submitted on the briefs:^*

Patrick C. Hyde, Patrick C. Hyde, P.C., Denver, CO, for the Petitioner.

Jeffrey S. Bucholtz, Assistant Attorney General, Mary Jane Candaux, Assistant Director, and Michael C. Heyse, Trial Attorney, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the Respondent.

Before LUCERO, PORFILIO, and BRORBY, Circuit Judges.

LUCERO, Circuit Judge.

Essa Kabba, a native of Sierra Leone, entered the United States without authorization. He applied for asylum, asserting past persecution and a fear of future persecution based on his political opinion or imputed political opinion. His asylum application was also construed as a request for a restriction on removal¹ and for protection under the Convention Against Torture ("CAT"). Finding that Kabba was a credible witness, the Immigration Judge ("IJ") determined that Kabba had established a well-founded fear of persecution and granted his asylum application. In an appeal filed by the government, the Bureau of Immigration Appeals ("BIA") concluded otherwise. In the BIA's view, Kabba was not a credible witness because he presented fraudulent documents to the IJ, and because it found omissions and inconsistencies in certain statements that Kabba made during the proceedings. On this basis, the BIA determined that Kabba was ineligible for both asylum and restriction on removal. The BIA further concluded that relief under the CAT was unwarranted because country conditions in Sierra Leone had changed such that Kabba should not fear returning. It directed the IJ to enter an order of removal against Kabba.

On remand, the IJ ordered Kabba's removal, and the BIA dismissed Kabba's subsequent appeal. Kabba then petitioned this court for review, primarily contending that the BIA did not appropriately review the IJ's credibility determination under the clearly erroneous standard, as required by 8 C.F.R. § 1003.1(d)(3)(i). We agree. Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we therefore grant the petition for review on Kabba's requests for asylum and restriction on removal, and remand for further proceedings. We deny, however, the petition for review as to the request for CAT relief.

I

A

Kabba, a native speaker of Mandingo, filed an asylum application with the assistance of an individual who spoke a different dialect and with the help of an interpreter. In the application, he stated that he sought asylum because he feared being killed by Revolutionary United Front ("RUF") rebels if he returned to Sierra Leone. He recounted that in October 2000, four RUF rebels raped his wife, held a gun to his head, threatened to kill him, and kidnapped his wife and children. Kabba also explained that for thirteen years before the rebel attacks in Sierra Leone, Kabba's brother was associated with a political and environmental group called "Sumpu Ado Kathy," which opposed the RUF rebels. His brother, Kabba stated, was killed by rebels while giving a speech about natural resources and diamond development. After these events, Kabba left Sierra Leone and traveled to Guinea where he met a friend whom the application states was an RUF rebel. That friend helped Kabba obtain a passport, visa, and airplane ticket to Canada, where Kabba stayed until he entered the United States.

The IJ considered Kabba's application over the course of two evidentiary hearings, holding the first hearing on April 19, 2004. Because Kabba and his interpreter spoke different dialects of Mandingo, and because Kabba was becoming frustrated with the translations problems, the IJ terminated the first hearing. Proceedings began anew at a second hearing on November 1, 2004, where a different interpreter who spoke Kabba's dialect assisted.

At the second hearing, Kabba presented evidence that was significantly more detailed than the statements he made in his asylum application. The evidence indicated that Kabba was born in February 1951 in Koidu, Sierra Leone, in the Kono District, a location famous for its diamond mines. A diamond digger by trade, Kabba had no education other than some schooling in the Koran. He does not know how to read or write.

Kabba testified that he feared being persecuted or killed by the RUF rebels if he returned to Sierra Leone. He explained that the rebels had persecuted him in the past because of his politics and his support for the government. Kabba stated that he, his father, and his brother all supported the then-president of Sierra Leone, Tijan Kabbah. His brother held gatherings to support Kabbah's election, and Kabba drove his brother's car to pick up people for the gatherings. According to Kabba, the rebels were aware of his actions.

Kabba also testified that the RUF rebels persecuted him on three different occasions. First, in October 2000, RUF rebels killed his brother because he refused to support them. After his brother was killed, Kabba's father, son, and older daughter left Koidu because his father feared that the RUF rebels would come for them as well. Kabba did not know why the rebels chose this particular time to kill his brother, as his brother had supported the president for many years. Two weeks later, also in October 2000, RUF rebels attacked several citizens in Koidu, killing sixteen people including one of Kabba's daughters.

Then, at the end of the same month, four RUF rebels came to Kabba's home. They each raped his wife and took turns holding a gun to his head, forcing Kabba and his daughter to watch the abuse. The rebels decided not to kill Kabba, however, because the child was crying, but they did warn him that they would kill him if they returned and he refused to support them. The rebels then kidnapped Kabba's wife and daughter. He does not know where the rebels took them.²

In early November 2000, Kabba decided to leave Koidu because he did not want to wait for the rebels to come back and kill him. He first went to Guinea with seven other people, traveling mostly at night. His group arrived in Guinea on November 10, 2000, and he paid a truck driver to transport him to Conakry. Kabba and other individuals hid behind merchandise in the truck. After arriving in Conakry, Kabba went to a mosque where he met Bangoura, a friend of his brother.³ Bangoura obtained for Kabba a Canadian visa, an airplane ticket, and a Guinean passport under a false name. Kabba then traveled to Canada with a man named Jallow. Upon reaching Canada, Kabba gave the return plane ticket and passport to Jallow. Two weeks later, Kabba traveled by bus to Minneapolis, Minnesota where he initiated asylum proceedings. He later traveled to Aurora, Colorado, where he stayed with Banta Sumbunu, the brother of a former business associate.

Kabba presented several documents to the IJ in support of his application for asylum. Among other things, he submitted his birth certificate and a Sierra Leone identification card, which the U.S. Immigration and Customs Enforcement's Forensic Document Laboratories ("FDL") concluded were inauthentic. In response to FDL's finding, Kabba explained to the IJ that his father obtained the documents for him after the fighting with the RUF rebels began because his father knew that the family would not stay in Sierra Leone. Kabba further testified that his father obtained a photocopy of the original birth certificate, not an original. Kabba stated that he thought the documents were authentic when he provided them to the immigration authorities.

In addition to Kabba's testimony, the IJ heard testimony from Banta Sumbunu. He stated at the hearing that his brother, Baba Sumbunu, told him that Kabba is from Sierra Leone, and Kabba presented a notarized letter from Baba Sumbunu stating that he knew Kabba ten years ago in Sierra Leone. Baba was originally scheduled to testify by telephone, but the IJ decided that his testimony was unnecessary.

Kabba also presented a letter from the Sierra Leone Ministry of Internal Affairs certifying that he is from Sierra Leone and a resident of Koidu, Kono. In addition, he submitted an eight-page report from the Rocky Mountain Survivor Center, where he was treated twenty-four times during a period of over a year by therapist David Harris, and eight times by Dr. Kirk Anderson, a psychiatrist. The report explained that Kabba was diagnosed with major depressive disorder and post-traumatic stress disorder, which is common for persons who endure physical threats and psychological torture. Harris stated that Kabba told a consistent story throughout his treatment sessions.

Lastly, Kabba presented a letter from the National League for Human Rights and Democracy advising him not to return to Sierra Leone. The letter warned that the peace was fragile and that secret killings of persons who oppose the rebels continue, because those persons could serve as witnesses against the rebels in special court proceedings.

B

After reviewing the testimony and documentary evidence, the IJ granted Kabba's application for asylum. Noting Kabba's lack of education, the mental health report, and the general consistency between his testimony at the April 19, 2004, and November 1, 2004, hearings, the IJ concluded that Kabba was a credible witness. Specifically, the IJ stated that Kabba's "testimony was ... sufficiently detailed, consistent and believable to provide a plausible and coherent account for his fears and he [did] not need to establish further corroborating evidence to present his case." Although the IJ recognized that Kabba's birth certificate and the Sierra Leone identification card were not authentic, the IJ accepted Kabba's statements concerning the documents and the fact that he received them from his father. The IJ also noted that although Kabba did not always know the exact dates of certain events,...