Michael v. Slattery, 94 Civ. 1306 (JFK).

• Decision Date: 05 May 1994
• Docket Number: No. 94 Civ. 1306 (JFK).,94 Civ. 1306 (JFK).
• Citation: 852 F. Supp. 211
• Parties: In the Matter of Adeboye, Olugbenga MICHAEL, Petitioner, v. William SLATTERY, as District Director of the New York District of the Immigration and Naturalization Service, and Roseanne Sonchik, as Acting Assistant District Director for the Detention and Deportation of the New York District of the Immigration and Naturalization Service, Respondents.
• Court: U.S. District Court — Southern District of New York

852 F. Supp. 211

In the Matter of Adeboye, Olugbenga MICHAEL, Petitioner, v. William SLATTERY, as District Director of the New York District of the Immigration and Naturalization Service, and Roseanne Sonchik, as Acting Assistant District Director for the Detention and Deportation of the New York District of the Immigration and Naturalization Service, Respondents.

No. 94 Civ. 1306 (JFK).

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

May 5, 1994.

COPYRIGHT MATERIAL OMITTED

Delphine Winthrop Knight, New York City, for petitioner (Elizabeth A. Hone, of counsel).

Mary Jo White, U.S. Atty., S.D.N.Y., New York City, for petitioners (F. James Loprest, Jr., Sp. Asst. U.S. Atty., of counsel).

OPINION AND ORDER

KEENAN, District Judge:

Before this Court is a petition for a writ of habeas corpus on behalf of petitioner, a Nigerian native, for a review of the decision of the Board of Immigration Appeals in petitioner's case. The respondents, William Slattery, as District Director of the New York District of the Immigration and Naturalization Service, and Roseanne Sonchik, as Acting Assistant District Director for the Detention and Deportation of the New York District of the Immigration and Naturalization Service, oppose this petition. For the reasons that follow, that petition is granted.

BACKGROUND

Petitioner is a twenty-three year old Nigerian citizen who arrived in the United States without valid travel documents permitting entry. He was detained at JFK airport by the Immigration and Naturalization Service ("INS"). Exclusion proceedings were initiated pursuant to 8 U.S.C. section 1251(a)(1) of the Immigration and Nationality Act (the "Act"). Petitioner applied for political asylum and withholding of exclusion pursuant to sections 208 and 243(h) of the Act. See 8 U.S.C. §§ 1158 and 1253(h). The Immigration Judge denied petitioner's application on October 14, 1993. See In re Adeboye (unpublished decision of the Immigration Judge, No. A72 481 114, New York, October 14, 1993) hereinafter "Hearing Decision". The Board of Immigration Appeals (the "Board") dismissed petitioner's appeal of that denial on February 25, 1994. See In re Adeboye (unpublished decision of the Board of Immigration Appeals, No. A72 481 114, New York, February 25, 1994) hereinafter "Board Decision". That dismissal subjected petitioner to immediate deportation to Nigeria, pursuant to section 237 of the Act. See 8 U.S.C. § 1227. Petitioner now seeks review by this Court pursuant to 8 U.S.C. section 1105a(b) of the Act. Petitioner has requested and received a stay of deportation pending this Court's review.

A. Conditions in Nigeria

As a student at Ibadan Polytechnic University, petitioner became involved in student government and pro-democracy groups. In May of 1993, petitioner joined Nigerians for Democratic Rule ("NDR"), a political group dedicated to fostering the change in Nigeria from military rule to democratic rule. As a member of that group, petitioner posted flyers, educated people about the election process, and encouraged people to participate in the upcoming elections scheduled for June 12, 1993.

On June 9, 1993, the leader of NDR was murdered. On June 10, 1993, twelve NDR members were arrested while campaigning. Petitioner contends that he and other NDR members continued to encourage voter turnout while dodging arrest themselves. On June 12, 1993, petitioner worked at various polling places around the city of Ibadan. On his return home, petitioner was informed by a neighbor that the military-based State Security Service ("SSS") had come by earlier in the day looking for him. Fearing arrest, petitioner fled to a friend's home and agreed with fellow NDR members that he would not return home.

NDR members arranged for petitioner to leave Nigeria. Petitioner decided to visit his cousin in the United States until the situation in Nigeria cooled down. NDR members gave petitioner an airline ticket to the United States, a passport and a Resident Alien card. These travel documents, in the name of Gabriel Morphy Aderomilehin, were doctored to include a photo of petitioner. On June 14, 1993, without returning home and without informing anyone outside of NDR of his plans, petitioner left Nigeria for the United States. Petitioner states that he had never before been outside of Nigeria and hoped a democratically elected government would take office soon so that he could return home.

B. Arrival in the United States

Petitioner arrived in the United States on June 15, 1993. He presented his invalid travel documents to the INS officials. INS officials, suspicious of the doctored documents, detained petitioner for questioning. Petitioner admitted that the documents were not his.

Petitioner signed an affidavit after being interviewed by INS officials. Petitioner is not completely fluent in English and states that he did not read his affidavit prior to signing it. He agrees that the affidavit is basically correct, although not complete. In the affidavit, petitioner gave his real name and nationality. He stated that he had come to the United States to visit his brother and wished to remain for three weeks. He stated that he had never been arrested, but that if he had to return home, the government would kill him. He further stated that he wanted a new Nigerian President to be announced so he could return to Nigeria.

The INS officials informed petitioner that he would not be admitted to the United States and that he was entitled to a hearing, unless he wanted to return to Nigeria voluntarily. Petitioner requested his hearing. Petitioner was then served with a notice charging that he was subject to exclusion on four grounds: 1) attempting to enter the country by fraud, pursuant to section 212(a)(6)(C)(i) of the Act; 2) attempting to enter the country without a valid immigration visa, pursuant to section 212(a)(7)(A)(i)(I) of the Act; 3) attempting to enter the country without a valid travel document, pursuant to section 212(a)(7)(B)(i)(I) of the Act; and 4) attempting to enter the country without a valid nonimmigrant visa, pursuant to section 212(a)(7)(B)(i)(II) of the Act. Petitioner was then placed in an INS detention center and a hearing on his potential exclusion was scheduled. Petitioner filed his application for asylum and withholding of deportation on August 26, 1993.

C. Current Conditions in Nigeria

Petitioner states that the situation in Nigeria has not improved while he has been in detention. He submitted evidence about the current conditions in Nigeria at his exclusion hearing. The democratically elected government, chosen during the June 12, 1993 elections, has not been permitted to take office. Petitioner believes that the SSS is still after him and he alleges that he is afraid to return home.

On November 18, 1993, a successful military coup was staged in Nigeria. There has been a renewed crackdown against pro-democracy activities. All democratic institutions have been dissolved. Political parties, political gatherings, and the Nigerian Election Commission have been banned. Civilian officials in local, state and federal government have been replaced with members of the military.

Petitioner's family and friends have related that the military regularly harasses them in hopes of discovering petitioner's whereabouts. They further state that the military continues to search for petitioner. Petitioner's mother and girlfriend were briefly detained by the military. Three of petitioner's friends in the NDR have been killed since the petitioner left Nigeria. Petitioner's mother apparently has gone into hiding.

Petitioner asserts that he remains committed to the goal of assisting Nigeria's transition to democracy. He is eager to return home when it is safe to do so.

D. Advisory Report

On September 1, 1993, the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State (the "State Department") sent the Immigration Judge an advisory report entitled Country Conditions and Asylum Claims from Nigeria. This report did not concern petitioner specifically. Rather, it considered the political climate in Nigeria generally. It noted that Nigerian asylum applicants frequently stress "fears for their personal safety based on their generalized opposition" to the military regime. The report went on to note that the military dictator had departed from government and that millions of Nigerians had opposed him. The report concluded that "mere opposition ... short of unlawful criminal actions against the government would not now appear to be cause for concern." It must be noted that this report pre-dated the military coup that ousted the democratically elected government and re-imposed military rule.

E. The Proceedings Below

1. The Immigration Hearing

A hearing was held on petitioner's application for political asylum and withholding of deportation on October 14, 1993. Petitioner testified at that hearing as to the facts that form the basis of his fear of persecution, which forms the basis of his asylum application. Petitioner submitted corroborating materials. The INS did not present any contrary evidence or testimony.

The Immigration Judge denied petitioner's application, although he found petitioner to be credible and ruled that petitioner had not perpetrated any fraud on the United States. The Judge ruled that petitioner had failed to establish that he had a well-founded fear of persecution. In his decision, the Judge stated that the applicant has the burden of establishing his right to political asylum. See Hearing Decision, supra, at 7. While the Judge noted that the evidence raised issues as to whether the applicant had a well-founded fear of persecution, the Judge ultimately concluded that no real proof "had been furnished that the security apparatus of the government of Nigeria is interested in the applicant." See id. The Judge concluded that the applicant had the burden of establishing that the Government was still...