Ofosu v. McElroy

• Decision Date: 22 October 1996
• Docket Number: No. 669,D,669
• Parties: Kwadwo OFOSU, Petitioner-Appellant, v. Edward McELROY, Acting District Director of the New York District of the Immigration and Naturalization Service, Respondent-Appellee. ocket 96-2419.
• Court: U.S. Court of Appeals — Second Circuit

Page 694

98 F.3d 694

Kwadwo OFOSU, Petitioner-Appellant, v. Edward McELROY, Acting District Director of the New York

District of the Immigration and Naturalization

Service, Respondent-Appellee.

No. 669, Docket 96-2419.

United States Court of Appeals, Second Circuit.

Argued June 25, 1996.

Decided Oct. 22, 1996.

Bradford H. Sewell, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for Petitioner-Appellant.

F. James Loprest, Jr., Special Assistant United States Attorney, Southern District of New York, New York City, for Respondent-Appellee.

Before: MINER, JACOBS, and PARKER, Circuit Judges.

JACOBS, Circuit Judge:

Petitioner-appellant Kwadwo Ofosu filed a petition for a writ of habeas corpus, pursuant to Immigration and Naturalization Act ("INA") § 106(b), 8 U.S.C. § 1105a(b), and 28 U.S.C. § 2255, challenging a July 25, 1994 exclusion order issued by the Board of Immigration Appeals ("BIA"). The United States District Court for the Southern District of New York (Sotomayor, J.) denied Ofosu's petition. Ofosu has moved in this Court, pursuant to Fed. R.App. P. 8(a), for a stay of the BIA's exclusion order pending Ofosu's appeal from the district court's judgment. Edward McElroy, District Director of the New York District of the Immigration and Naturalization Service ("INS") cross-moved to dismiss Ofosu's appeal on the ground of fugitive disentitlement.

By order entered on June 26, 1996, we granted the motion for a stay, over the dissent of the writer of this opinion, and unanimously denied the cross-motion to dismiss. For the following reasons, the stay heretofore granted on June 26, 1996, is now conditioned upon the petitioner's prompt surrender to the INS for possible parole revocation. The cross-motion to dismiss the appeal is denied as moot in light of the condition placed upon the grant of the stay.

BACKGROUND

Arrival and Parole. The INS detained Ofosu, a Ghanaian national, upon his arrival in the United States, and commenced exclusion proceedings against him pursuant to section 212(a)(6)(C) and (7) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(a)(6)(C) and (7). Two months after his arrival, Ofosu applied for asylum pursuant to INA § 208(a), 8 U.S.C. § 1158(a), claiming "a well-founded fear of persecution on account of ... political opinion," INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). In the alternative, Ofosu sought the withholding of return to Ghana, claiming that his "life or freedom would be threatened" in that country "on account of ... political opinion." INA § 243(h)(1), 8 U.S.C. § 1253(h)(1).

The District Director of the New York Office of the INS temporarily paroled Ofosu into the United States pursuant to 8 C.F.R. § 212.5(b).

Proceedings Before the IJ and BIA. Ofosu appeared with counsel on June 9, 1992 for an exclusion hearing. An interpreter translated between Ashanti, which is Ofosu's native language, and English. Counsel conceded that Ofosu was excludable under INA § 212(a)(7), for failure to carry a valid passport, but stated that Ofosu sought asylum or the withholding of return. The immigration judge continued the proceeding until July 26, 1993. An exclusion hearing was held on that date, with Ofosu again represented by counsel, and with an interpreter translating this time between Twi, a language virtually identical to Ashanti, and English. Ofosu was the only witness at the exclusion hearing, and he testified that he worked for eight years as a "senior officer" of the Committees for the Defense of the Revolution ("CDR"), a government organization of somewhat uncertain purpose. The CDR was neither a police force nor a military organization, but one of its roles was to persecute enemies of the regime: "When you do[ ] something against the government ... we usually go in with force." Most of the members of the CDR, including Ofosu, were unarmed. Ofosu testified that he made many arrests, knew that people were being tortured, and thought that some were killed, but his testimony (set forth in the margin) can be read to say both that that he did witness these things and that he did not. ¹ Ofosu emphasized: "I have made so many arrest[s], I cannot give you the number. That's why I'm scared [for] my life, because now ... I am enemy to the general public because of the arrest[s] that I've made, I'm now a[n] enemy to the government...." He also said that he performed a variety of duties, including chasing smugglers who were smuggling cocoa out of the country.

In an affidavit filed in 1995, Ofosu averred that his testimony had been distorted in translation and that he was generally unaware of the part that the CDR played in the violent suppression of political dissent. He indicated in that affidavit that the organization was mostly concerned with economic crimes and with enforcing work requirements, and had the overall mission of supporting the Marxist government of Lt. Rawlings.

In any event, Ofosu testified at the hearing that there came a time when he refused to arrest political opponents of the regime because he knew that harm would come to them if they were arrested; that he encouraged other officers of the CDR not to make arrests; that, on occasion, when he was sent to make arrests, he falsely reported that the people he was sent to arrest were not at the location to which he was sent; that two of his colleagues, who followed Ofosu's example and refused to make arrests, were themselves arrested; and that Ofosu was told by a soldier that someone was about to arrest him, after which Ofosu left Ghana. ²

At the end of the hearing, the immigration judge denied asylum and ordered Ofosu to be excluded, on the ground that Ofosu offered insufficient evidence of a threat of persecution or harm to his life or freedom because of his race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. §§ 1158(a), 1253(h). See also id. § 1101(a)(42)(A). The only such evidence was "the applicant's own unsubstantiated and conclusionary statements." The immigration judge also noted that an applicant for asylum must show "that he would merit relief of political asylum as a matter of discretion," and that Ofosu's involvement in "a quasi-political police force" weighed "heavily" as "an unfavorable factor" against any factors that might militate in favor of asylum.

Ofosu appealed to the BIA and also moved to reopen the record in order to introduce into evidence a Ghanian warrant for his arrest to substantiate his fear of persecution. On July 25, 1994, the BIA issued an order and opinion that dismissed the appeal from the IJ's order denying asylum and the withholding of return and denied the motion to reopen. The BIA rested its decision to deny asylum on the distinct ground that Ofosu is ineligible because he is not a "refugee," see 8 U.S.C. § 1158(a), a term that excludes "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of ... political opinion," id. § 1101(a)(42); see also id. *698s 1253(h)(2)(A). Specifically, the BIA found that Ofosu "arrested individuals on the basis of their political opinion" who "were subsequently imprisoned indefinitely, tortured, and in some instances killed." As to the warrant for Ofosu's arrest, the BIA denied the motion to reopen on the ground that the document was available at the time of the original exclusion hearing. ³

Habeas Corpus Proceeding. Ofosu thereafter filed in the Southern District a motion pursuant to INA § 106(b), 8 U.S.C. § 1105a(b), and 28 U.S.C. § 2255, for habeas relief from the BIA's order. Adopting and approving a report and recommendation from a magistrate judge, Judge Sotomayor denied the petition in a decision dated May 6, 1996. The district court concluded that the BIA's determination "is amply supported by the record." Specifically, the district court ruled that the "[a]rrest of persons the petitioner believed would be killed or tortured (or merely imprisoned indefinitely without trial) on account of their political actions constitutes persecution of the kind Congress considered sufficiently abhorrent to disqualify an application for refugee status." As to Ofosu's claimed change of heart, the district court observed: "However commendable his conversion, Congress did not enact an exception to the statute at issue which absolves a persecutor of his past on account of a belated crisis of conscience."

Ofosu's Disregard of His Parole Status. By letter dated May 13, 1996, the INS ordered Ofosu, who was still on parole, to report to the INS at 9:00 a.m. on May 28, 1996 for exclusion to Ghana. At a May 23, 1996 hearing before the district court, the INS and Ofosu entered into a judicially approved stipulation that, if Ofosu filed by May 30, 1996(1) a notice of appeal from the district court's denial of habeas corpus and (2) a motion in this Court for a stay of exclusion pending appeal, then "[a] stay of deportation and exclusion will be in effect until disposition of the request for a stay by the Second Circuit." ⁴

The transcript of that hearing reflects Ofosu's perfect understanding that, notwithstanding the stay of exclusion, he was still required to present himself for possible revocation of parole at 9:00 a.m. on May 28. At that hearing, his counsel expressly sought a stay that would allow him to ignore the surrender order, arguing: "They may put him in detention. That is a risk that is not acceptable." But Judge Sotomayor responded:

The only risk to your client that is irreparable is the risk of being sent back, not the risk of staying in jail for 6 to 9 months. You have a very hard time convincing me I should stay his presentation. The only ... irreparable injury to him is one that kicks him out, returns him to another country.

Shortly thereafter, the judge ruled: "I am not going to stay presentation, merely stay deportation from today until Tuesday [May 28]." And again: "I am only giving you a stay of...