Lukwago v. Ashcroft

• Decision Date: 14 May 2003
• Docket Number: No. 02-1812.,02-1812.
• Citation: 329 F.3d 157
• Parties: Bernard LUKWAGO a/k/a Melvin Haft, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

329 F.3d 157

Bernard LUKWAGO a/k/a Melvin Haft, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-1812.

United States Court of Appeals, Third Circuit.

Argued December 17, 2002.

Filed May 14, 2003.

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Danielle E.B. Lehman (Argued), Orinda, Jennifer J. Kramer, West Chester, for Petitioner.

Robert D. McCallum, Jr., Assistant Attorney General Civil Division, Linda S. Wendtland, Assistant Director, John C. Cunningham (Argued), Senior Litigation Counsel, Michael P. Lindemann, John M. McAdams, Jr., United States Department of Justice, Office of Immigration Litigation, Washington, for Respondent.

Before SLOVITER, RENDELL, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. INTRODUCTION

Bernard Lukwago petitions for review of the decision of the Board of Immigration Appeals ("BIA") ordering his deportation after denying his application for asylum, application for withholding of removal under the Immigration and Nationality Act ("INA") and request for withholding of removal under Article 3 of the United Nations Convention Against Torture ("CAT"). For the reasons set forth hereafter, we will deny the Petition for Review on some claims and remand to the BIA on other claims for further proceedings consistent with this opinion.

II. FACTS AND PROCEDURAL HISTORY

Lukwago is a native and citizen of Uganda. He lived with his parents on farmland in a village in the Gulu District of Northern Uganda. He testified before the Immigration Judge ("IJ") that in August 1997, when he was 15 years old, rebels from the Lord's Resistance Army ("LRA"), a rebel force that opposes the Ugandan government, attacked his home and killed his parents. Certified Administrative Record ("C.A.R.") at 199-200. The rebels captured Lukwago, tied his hands, and took him, along with three other persons from his village, to the LRA camp. C.A.R. at 201-02, 254. While at the camp, Lukwago stayed in a tent with other kidnapped children where they were guarded by armed rebels. C.A.R. at 203-04. Both adults and children were held captive at the camp. C.A.R. at 220-21.

Because the BIA found no reason to challenge Lukwago's credibility we accept his recitation of the facts as given in his affidavits and testimony. See Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994) ("Absent an explicit finding that a specific statement by the petitioner is not credible we are required to accept her testimony as true."). Lukwago testified that the rebels forced him to perform manual labor. He was ordered to get water and firewood. C.A.R. at 205. The rebels also trained him to shoot a gun, while threatening to beat him for poor performance. C.A.R. at 218. Once trained, Lukwago and other captives were forced to fight with the rebels against government soldiers. C.A.R. at 205-06. Lukwago was forced to fight on the front line shooting at government soldiers. C.A.R. at 205-06. He participated in at least 10 battles. C.A.R. at 221, 223. After the fighting, Lukwago and other captive children were ordered to remove uniforms and weapons from dead soldiers. C.A.R. at 205. He also accompanied the rebels on attacks against civilian villages where he was required to carry stolen food and animals back to camp. C.A.R. at 229-30. In addition, during the attacks Lukwago frequently witnessed rebels torture civilians by cutting their lips and fingers. C.A.R. at 230.

Lukwago testified that he was threatened he would be killed if he tried to escape. C.A.R. at 204-05. He witnessed the shooting of two captive children who failed in their attempt to escape. C.A.R. at 265. After one rebel battle, Lukwago and Joseph, his friend at the camp, were carrying stolen weapons and uniforms back to the camp. C.A.R. at 208. Joseph became too tired to keep marching and the rebels beat him, but he was unable to continue. C.A.R. at 208. Lukwago testified that the rebels forced him to help place a heavy rock on Joseph's chest and to sit on the rock until his friend stopped breathing. C.A.R. at 208-11. Lukwago escaped two weeks later while collecting firewood. C.A.R. at 211-12. In total, Lukwago was held captive for approximately four months. App. at 5.

After escaping, Lukwago went to his uncle's home where he stayed for 10 days. C.A.R. at 213-15. His uncle made arrangements for Lukwago to flee Uganda, providing Lukwago with a Ugandan passport and a German visa. C.A.R. at 215. He fled with the false passport to Germany where he purchased a ticket to Holland. C.A.R. at 215, 234. Lukwago traveled to Amsterdam the following day and applied for asylum. C.A.R. at 215, 236. After two years in the Netherlands, his application was denied. C.A.R. at 238. Soon after notification of the denial, he met Melvin Haft in Rotterdam. He testified that "I was on the street. I was crying. Then my, one man he see me, ask me my problem.... He was Haft Melvin Sirada (phonetic sp.)." C.A.R. at 242-43. Haft, who had a passport from Holland, was from Suriname. C.A.R. at 243. Lukwago stayed with Haft for two weeks before Haft took him to Belgium. C.A.R. at 243. Haft and Lukwago then traveled to Madrid, Spain where Haft provided Lukwago a passport and an airplane ticket to the United States, each in Haft's name. C.A.R. at 243-45.

Lukwago arrived in the United States on November 22, 2000. C.A.R. at 1028. He requested asylum based on past persecution by the LRA and fear of future persecution by both the LRA and the Ugandan government if returned to Uganda. C.A.R. at 978, 987.

On August 17, 2001, the IJ issued a decision and order denying Lukwago's application for asylum and withholding of removal under INA § 241(b)(3). AV1 at 14-28 (IJ's Decision and Order).¹ The IJ found that Lukwago's testimony was not credible based on his mannerisms before the court and "certain inconsistent and unpersuasive testimony the extent of which cast[ed] doubt on the veracity of his claim." AV1 at 19. Specifically, the IJ found Lukwago not credible due to inconsistencies between his testimony before the IJ and previous statements and testimony, including a Dutch asylum interview,² and the implausibility of his descriptions of his participation in LRA battles. AV1 at 21-23. Nonetheless, the IJ granted Lukwago's request for withholding of removal under the CAT. AV1 at 27. The IJ found, based on expert testimony and the Department of State's special Advisory Opinion, that Lukwago "stands the likelihood of being subjected to torture by the [Ugandan government] upon his return," especially given the evidence that former child soldiers are punished, detained in pits, and used to clear minefields. AV1 at 26-27.

Both Lukwago and the INS appealed the IJ's decision. The BIA, in a decision dated February 21, 2002, reversed the IJ's adverse credibility finding because it lacked sufficient support. AV1 at 5-7 (BIA Decision). The BIA found that the IJ's reliance on the Dutch asylum interview was improper because the documents were "not properly certified or authenticated." AV1 at 5. In addition, the BIA did not find Lukwago's descriptions of the LRA battles troublesome because "it would be unreasonable to expect a high degree of detail regarding battle conditions from a young man who was only 15 years old ... and who had been assessed as suffering from post-traumatic stress disorder [ ]." AV1 at 6 (footnote omitted). Finally, the BIA did not agree with the IJ's finding that Lukwago's descriptions of his village and school were not credible. The BIA stated those descriptions were not central to his claim and were not necessarily in conflict with expert evidence on the topic. AV1 at 7. The INS does not challenge the BIA's credibility finding in the current appeal.

Despite its acceptance of Lukwago's credibility, the BIA dismissed Lukwago's appeal and sustained the INS' appeal, thereby denying Lukwago's asylum application, his request for withholding of removal under INA § 241(b)(3), and his request for protection under the CAT. The BIA held that Lukwago failed to satisfy his burden of establishing that he suffered past persecution or had a well-founded fear of future persecution by the LRA or the Ugandan government on account of his race, nationality, religion, membership in a particular social group, or political opinion. AV1 at 7-9. The BIA stated that Lukwago did not contend that his treatment by the LRA was on account of his race, nationality, political opinion or religion. It continued:

We therefore must look to whether he established his membership in a "particular social group," and that he was targeted for persecution based on his membership in that group. The only defining characteristic of this group that the respondent has provided is age, i.e. all persons under the age of 18. Although the evidence indicates that the LRA does harm children, the respondent has failed to demonstrate that he was targeted by the LRA because he was a child.

AV1 at 8. It also declined to find that Lukwago faces a heightened risk of future persecution by the LRA or the Ugandan government as a former LRA child soldier. AV1 at 8-9.

The BIA denied Lukwago's application for protection under the CAT because Lukwago failed to demonstrate that he is likely to be tortured by the Ugandan government if he returns to Uganda. For this holding, the BIA relied on the Ugandan government's amnesty policy for former rebels. AV1 at 9. With regard to the required showing of torture by the LRA, the BIA found that (1) he presented no evidence to show that the LRA attempts to seek out and harm "those who have previously deserted from their ranks" and (2) the CAT does not extend protection to torture by entities that are beyond the government's control. AV1 at 10.

The BIA ordered Lukwago's deportation to Uganda. Cecelia M. Espenoza, Board Member, concurred in part and dissented in part with the BIA...