Ndom v. Ashcroft

• Decision Date: 10 September 2004
• Docket Number: No. 02-74419.,02-74419.
• Citation: 384 F.3d 743
• Parties: Mamadou NDOM, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.3d 743 Mamadou NDOM, Petitioner,
v.
John ASHCROFT, Attorney General, Respondent. No. 02-74419. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 16, 2004. Filed September 10, 2004.

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Rochelle A. Fortier Nwadibia, Privitera & Nwadibia, San Francisco, CA, for the petitioner.

Emily Anne Radford and Keith I. Bernstein, 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.

Before: T.G. NELSON, W. FLETCHER, and BERZON, Circuit Judges.

BERZON, Circuit Judge:

Mamadou Ndom, a native and citizen of Senegal from the Casamance region of that country, left Casamance when it was plagued by armed conflict between government forces and secessionist rebels. He petitions for review of an order by the Board of Immigration Appeals ("BIA") that affirmed without opinion an Immigration Judge's ("IJ") denial of Ndom's application for asylum and withholding of removal. See 8 C.F.R. § 1003.1(e)(4). We grant the petition for review in part and remand.

Background

I. Conditions in the Casamance Region of Senegal

Documentary evidence in the record establishes that Casamance is the southernmost region of Senegal, bordered by the Gambia to the north and Guinea-Bissau to the south. The Mouvement des forces democratiques de Casamance ("MFDC") has been seeking independence for Casamance since 1982, when students marched on the regional capital. In May 1990, after years of violent demonstrations and increasing military and judicial suppression, the MFDC launched a campaign of armed opposition to the Senegalese government. See Amnesty International, Senegal: Climate of Terror in Casamance, at 4 (Mar. 5, 1998)[hereinafter, Climate of Terror].¹ Armed conflict between the MFDC and the Senegalese armed forces erupted regularly, despite several short-lived ceasefire agreements. See Climate of Terror, at 5; U.S. Department of State, Country Reports on Human Rights Practices for 1999 — Senegal, at 1 (Feb. 25, 2000)[hereinafter, 1999 Country Report]; Amnesty International, Senegal: Casamance civilians

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shelled by the Mouvement des forces democratiques de Casamance (MFDC), at 1 (June 30, 1999).

Government human rights abuses in Casamance are well-documented. "Hundreds of civilians have been arrested and tortured by the security forces. Numerous people have been the victims of extrajudicial executions and dozens of others have `disappeared' after their arrest and never been seen again." Climate of Terror, at 1; see also 1999 Country Report, at 4 (citing the Amnesty International findings).

Most of those arrested and charged with threatening State security "can be considered to be prisoners of conscience — that is, people imprisoned for, among other things, their political opinions or ethnic origin, without using or advocating violence.... In most cases, Casamance civilians have been imprisoned on the basis of anonymous, unverifiable accusations." Climate of Terror, at 6-7. Amnesty International has specifically documented the extra-judicial killing and "disappearance" of suspected MFDC sympathizers in Ndom's hometown, Naguis. See id. at apps. 1, 2; see also 1999 Country Report, at 3(describing allegation by Amnesty International and RADDHO, a Senegalese human rights organization, of a mass grave for victims of extrajudicial executions in Naguis). Amnesty International and RADDHO have also documented the existence of a mass grave for victims of extra-judicial killings in Ziguinchor, the regional capital of Casamance. See Climate of Terror, at 37.

Human rights abuses by the MFDC are also well-documented. See 1999 Country Report, at 3. According to Amnesty International, the MFDC has "seriously abused human rights by killing villagers who have refused to give them food or money and by killing civilians suspected of collaborating with the Senegalese authorities." Climate of Terror, at 38.

Consistent with the documents in the record, the IJ found that "Casamance is a conflictive area ... because of the fighting between the MFDC and the government forces.... The atrocities or human rights violations are attributed to both sides."

II. Ndom's Experience

The IJ found Ndom's testimony to be credible. We therefore accept Ndom's testimony as true. Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251 (9th Cir.2004).

Ndom worked on his family's farm in Naguis, a town in Casamance, supplementing his farm income by selling fish at a local market. He testified that his physical appearance identifies him as being from Casamance. In 1990, at age 15, Ndom joined the MFDC. At that time, nearly all the residents of Naguis supported the MFDC. Ndom joined the organization, and continues to sympathize with its goal of secession, because he believes that Casamance's substantial natural resources are exploited by the Senegalese government and thus are not available to benefit the people of Casamance. To join the MFDC, Ndom was required to attend meetings and to "support the MFDC morally."

By 1993, according to Ndom, the MFDC had renounced its prior non-violent approach to secession and was increasingly killing civilians, including children and some of Ndom's acquaintances. Ndom therefore decided to leave the MFDC. He did not resign officially as he feared that he would be killed if he did, but instead stopped attending MFDC meetings and made excuses for doing so.

Subsequently, Ndom was twice arrested and detained by the Senegalese authorities. On December 27, 1994, after MFDC and government forces had clashed near Naguis, between five and seven plainclothes

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police officers arrested Ndom at his home. The officers told Ndom that he was needed for questioning and threatened him with force if he did not accompany them. Ndom testified that there had recently been fighting between the MFDC and government forces in the Naguis area, and that "right after the fight, they was arresting people, collectively, and by that time they had arrested me." According to Ndom, large-scale arrests were common after violence between the government and the MFDC: "[Y]ou know we expect... to be arrested. You know, they go house to house, you notice people, people looking around, they make like ... collective arrest[ ]."

Soldiers took Ndom from Naguis to the main police station at Ziguinchor, the regional capital. At the Ziguinchor station, a police commissioner accused Ndom of having participated in a "rebellious manifestation" and instructed him to sign a form confessing to participation in recent guerrilla activity. When Ndom refused, the police commissioner checked a box titled "refuse to sign" on the form. Ndom asked why he was being detained: "they told me because you have participate in the rebel movement."

Ndom was held in a cell in Ziguinchor for two days and then transferred with ten others to the Reubess prison in Dakar, some 300 miles away. In Dakar, Ndom was held for seventeen days in a small, dark cell with ten other people. Ndom was not taken before a judge or formally charged. His captors told him that he would be watched carefully because he now had a record. He was released, with other suspected MFDC members, on January 15, 1995, when the President of Senegal issued a general pardon.

Ndom was arrested by government soldiers again on March 3, 1995, and detained for six days. When asked by the IJ whether his second arrest was "the same type of situation that you were confronted with in 1994," Ndom stated:"[t]hat's exactly the same reason." Once again, Ndom was accused of participation in a recent "rebellious manifestation." According to Ndom's asylum application, approximately 100 of the 400 residents of Naguis, mainly males, were arrested along with him. The soldiers making the second arrest appear to have been aware that Ndom had been arrested previously.

Following his second arrest, Ndom was again taken to the main police station in Ziguinchor. He was questioned by the same police commissioner who had interrogated him previously. The commissioner stated that he recognized Ndom's face, that Ndom was "really taking a risk to die," and that "you know this is your last chance, next time I'm going to take serious action against you." The commissioner later came to Ndom's cell and repeated this threat. As a result of these threats and what he knew about the treatment of others, Ndom feared he would be "disappeared."

Ndom was detained for six days at the police station in Ziguinchor. Although he was not harmed physically, the conditions in the prison were so poor as to cause him "mental torture." He was released without explanation.

Ndom remained in Casamance for two years following his release. Out of fear, he avoided both MFDC members and government security forces. Whenever hostilities broke out between the parties, he would hide in his farm's grain loft to avoid arrest by the government. In April 1997, Ndom was seriously injured when a land mine exploded near him. After his release from the hospital, Ndom resolved to leave Senegal for the United States. He sold the family farm and livestock to pay for a forged passport and passage to Canada.

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From Canada, he eventually made his way to Oakland, California.

On July 27, 1998, Ndom was served with a Notice to Appear by the INS² charging him with removability for entering the country without a valid visa or other entry document. He applied for asylum and withholding of removal. After several hearings, the IJ denied each of Ndom's applications. He found Ndom's testimony credible and consistent with State Department reports on Casamance. The IJ determined, however, that Ndom had not suffered persecution at the hands of the Senegalese armed forces on account of any protected ground. Ndom's association with the MFDC, the IJ...