Ofosu v. McElroy

• Citation: 933 F. Supp. 237
• Decision Date: 07 December 1995
• Docket Number: No. 94 Civ. 8103 (NG) (SS).,94 Civ. 8103 (NG) (SS).
• Parties: In the Matter of Kwadwo OFOSU, Petitioner, v. Edward McELROY, Acting District Director of the New York District of the Immigration and Naturalization Service, Respondent.
• Court: U.S. District Court — Southern District of New York

933 F. Supp. 237

In the Matter of Kwadwo OFOSU, Petitioner, v. Edward McELROY, Acting District Director of the New York District of the Immigration and Naturalization Service, Respondent.

No. 94 Civ. 8103 (NG) (SS).

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

December 7, 1995.

Bradford H. Sewell, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for petitioner.

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

AMENDED ORDER ACCEPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SOTOMAYOR, District Judge.

Kwadwo Ofosu ("Ofosu" or "petitioner"), a citizen of Ghana, petitions this court for a writ of habeas corpus seeking review of a Board of Immigration Appeals ("BIA") final order of July 25, 1994. The BIA denied petitioner's application for asylum made pursuant to 8 U.S.C. § 1158 and the withholding of return made pursuant to 8 U.S.C. § 1253(h), denied petitioner's motion to re-open the exclusion proceedings, and ordered exclusion from the United States under 8 U.S.C. §§ 1226 and 1227. Ofosu concedes excludability, but challenges the denial of his request for asylum and the withholding of return.

This petition was referred to Magistrate Judge Nina Gershon, who filed a Report and Recommendation (the "Report") on December 7, 1995, recommending that the petition for habeas corpus be denied. The Report found that there was substantial evidence in the form of Ofosu's own admissions that he had participated in the persecution of others and was thus ineligible for asylum or withholding.

Ofosu has made timely objections to the Report pursuant to 28 U.S.C. § 2254. Therefore, my standard of review is de novo. 8 U.S.C. § 1105a(a)(5).

BACKGROUND

Ofosu claims he fled from Ghana because of his fear of persecution on account of his political opinion. Ofosu worked for eight years as a senior officer of the Committee for the Defense of the Revolution ("CDR"), a quasi-police force whose function, among others, Ofosu described as follows: "When you do something against the government. We-we usually go in with force." R. at 205.¹ In 1992, Ofosu became disillusioned with the regime then in power and the CDR's repressive activities, and decided to violate orders from the government to arrest certain political protestors. He left Ghana shortly thereafter. At the exclusion hearing held July 26, 1993, the Immigration Judge ("IJ") determined there was insufficient evidence to show Ofosu had a well-founded fear of persecution and that even if he had, his acts as an officer of the CDR were such that as a matter of discretion, asylum should not be granted. R. at 189-190.

On appeal, the BIA affirmed the IJ's decision, but on different grounds. Because Ofosu had assisted in the persecution of persons based on their political opinions, the BIA determined he was not qualified for refugee status under the persecutor exception, and therefore, was barred from seeking asylum or the withholding of return. R. at 5. The persecutor exception states that the granting of asylum and the withholding of deportation is not available to any person who has "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C.A. § 1101(a)(42)(B); 8 U.S.C. § 1253(h)(2)(A).

Ofosu raises two objections to the Report. He claims that "there is no substantial evidence that petitioner personally and actively assisted in any political persecution." Petitioner's Objections to the Magistrate Judge's Report and Recommendations ("Pet.'s Objections") at 2 (emphasis in original). He also charges the Report erred by applying an incorrect legal standard for establishing culpability under the persecutor exception. Pet.'s Objections at 18-20. Having reviewed the record, I find no error with the Report's factual findings or its legal conclusions and adopt it in its entirety.²

DISCUSSION

Judicial review of a BIA determination is very limited. BIA findings of fact are considered conclusive "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4). A decision may be reversed only if the evidence presented to the BIA was "so compelling that no reasonable factfinder could fail to find for the petitioner." INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

The question of Ofosu's participation in persecution is a factual determination to be made by the BIA. 8 C.F.R. §§ 3.1(b) and 208.18(c). "The BIA's factual findings concerning eligibility for asylum and withholding of deportation must be upheld if supported by substantial evidence." Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir.1994) (citing Sofyan Ali Saleh v. INS, 962 F.2d 234, 238 (2d Cir.1992)). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938)).

Here, the BIA's determination is amply supported by the record. Ofosu's testimony corroborates the BIA determination that he, at a minimum, "assisted or otherwise participated in political persecution." The following extracts from the record suffice to meet this threshold.

Q. How often did you accompany people to make arrests or go to make arrests yourself, with others?

A. I have made so many arrest, I cannot give you the number. That's why I'm scared of my life, because now I — that I am an enemy of the general public because of the arrest that I've made.

* * * * * *

Q. All right. Now you said that sometimes those prisoners were killed? Isn't that correct?

A. I said I think that — I'd — I've never seen anybody being killed, apart from those who were sent to face the firing squad. So since they were not allowed visitors in there, nobody knew what happened to them. We think, or I think they have been killed.

* * * * * *

Q. All right. Now as far as you know, were people arrested by the CDR, and held the CT — CDR ever tortured?

A. Yes. Most of them were tortured. Because we saw one torture you that, uh, you would never think of, uh, doing anything against the government, if you were released.

R. at 231-233.³

The Report finds, and I agree, that the statute barring persecutors does not merely bar the trigger-pullers and torturers. The machinery of persecution requires as its foot soldier the arresting officer, and so long as that officer knows the likely consequences of his actions, he cannot find sanctuary in the United States under color of its protections for the persecuted. Arrest 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 applicant for refugee status. The petitioner, after some years of employment as a persecutor, now abjures that career choice. 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.

CONCLUSION

For the reasons stated above, the Magistrate Judge's Report is accepted and adopted in its entirety and the petition for writ of habeas corpus is DENIED. The Clerk of the Court is directed to dismiss the petition.

SO ORDERED.

REPORT AND RECOMMENDATION

GERSHON, United States Magistrate Judge:

Kwadwo Ofosu, a Ghanian, arrived in the United States on March 6, 1992 carrying a falsified Nigerian passport which contained his picture and another person's name. Certified Administrative Record ("R") p. 238. He was charged with excludability under 8 U.S.C. §§ 1182(a)(6)(C), 1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(I), and 1182(a)(7)(B)(i)(II).¹ In this petition for a writ of habeas corpus, Ofosu seeks review of a July 25, 1994 final order of the Board of Immigration Appeals ("BIA") denying his application for asylum under 8 U.S.C. § 1158 and for withholding of return under 8 U.S.C. § 1253(h), denying his motion to reopen the exclusion proceedings, and ordering his exclusion from the United States.

Ofosu has conceded excludability. What he challenges is the denial of his request for asylum or for withholding of return.

The Hearing.

The sole testimony at the hearing, held July 26, 1993, on Ofosu's excludability and on his request for asylum or the withholding of return was that of Ofosu himself. Ofosu testified that, prior to leaving Ghana, he worked for the government as a member of the Committee for Defense of the Revolution ("CDR"). Because he had disobeyed a CDR order to arrest political protestors at a rally, he believed he would be arrested upon his return to Ghana. Ofosu testified that the CDR was established by "Rawlings," (misspelled in the transcript as "Rollins") to work "alongside the police."² R. 204. Ofosu became a member of the CDR in 1984 and, after a six month training period, he worked full time and was paid. R. 205-07.

As a member of the CDR, "spying" was something he did on a regular basis, even after working hours. "If I see something that was not, uh, that was against the government, I had to act. So it looks like I was always on duty." R. 207. Ofosu was a senior officer in the CDR and had "extra responsibility." R. 226. One of Ofosu's duties was to inform the government about people who spoke against Rawlings or sought to form political parties. Anyone who spoke against Rawlings was considered a criminal. R. 228. Most people arrested by the CDR were not charged with any crime. R. 211.

Ofosu never made any arrests alone. He reported what he saw and then, as a senior officer, he would accompany other CDR members and, as a group, they...