Sarr v. Gonzales

• Decision Date: 22 January 2007
• Docket Number: No. 05-9606.,05-9606.
• Citation: 474 F.3d 783
• Parties: Alassane SARR, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

474 F.3d 783

Alassane SARR, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 05-9606.

United States Court of Appeals, Tenth Circuit.

January 22, 2007.

COPYRIGHT MATERIAL OMITTED

Sharon A. Healey, Seattle, WA, for Petitioner.

Irene M. Solet (Michael J. Singer and Peter D. Keisler, Assistant Attorneys General, with her on the brief), Civil Division, Department of Justice, Washington, DC, for Respondent.

Before LUCERO, McCONNELL, and HOLMES, Circuit Judges.

McCONNELL, Circuit Judge.

Petitioner Alassane Sarr seeks review of a final order of removal issued by the Bureau of Immigration Appeals (BIA), which affirmed a determination by an Immigration Judge (IJ) denying Mr. Sarr's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We reverse the decision of the BIA and remand for further proceedings.

I. BACKGROUND

A. Mauritania

The Islamic Republic of Mauritania is located in northwest Africa, bordered by the Atlantic Ocean, Senegal, Mali, Algeria, and Western Sahara. Formerly a French colony, the country gained its independence in 1960, an event that triggered a large migration of native sub-Saharan peoples to the area north of the Senegal River.¹ Among these peoples were the Pulaar, or Fulani, a black African nomadic group with roots in the region dating back to at least the fourteenth century.² The country's ethnic makeup is now approximately forty percent African-Arab-Berber (often called "Black Moor"), thirty percent Arab-Berber ("White Moor"), and thirty percent Black African (mostly Wolof, Tukulor, Soninke, and Fulani).³ Over time, conflict arose between the majority Moor population, which viewed Mauritania as an Arab nation, and the black Africans, who sought a more substantial role for sub-Saharan peoples and their way of life. The conflict came to a head in 1989 when violence erupted between the groups and thousands of black Africans were forced to leave the country and had their land and property confiscated. Though the Mauritanian government denies the allegations, a human rights group maintains that "[s]ince 1989, tens of thousands of black Mauritanians have been forcibly expelled, and hundreds more have been tortured or killed .... The campaign to eliminate black culture in Mauritania, orchestrated by the white Moor rulers, reached its height in the late 1980s and early 1990s...." Human Rights Watch/Africa, Mauritania's Campaign of Terror 1 (1994), Admin. R. at 270. The State Department has also recognized the "intercommunal violence that broke out in April 1989." Mauritania Note, supra note 1.

B. Mr. Sarr's Story

On March 3, 2001, Mr. Sarr used a false passport to enter the United States via New York City. On January 28, 2002, he filed applications for asylum, withholding of removal, and protection under the CTA with the Immigration and Naturalization Service (INS), the functions of which are now handled by U.S. Citizenship and Immigration Services within the Department of Homeland Security. During the pendency of these applications, Mr. Sarr relocated to Colorado, and the case was transferred to that venue.

In his asylum application and at his immigration hearing, Mr. Sarr claimed that he was a member of the Fulani ethnic group and that he was born in Mauritania in 1976. His father owned a three-acre farm in Kaedi, Mauritania, near the Senegalese border, where Mr. Sarr resided with his family through the age of thirteen. On September 20, 1989, five soldiers (whom Mr. Sarr identified as "white") arrived at the Sarr family home and demanded proof of the family's identity from Mr. Sarr's father. He complied, whereupon the soldiers promptly destroyed the documents. Mr. Sarr also explained to the court, however, that his mother retained his birth certificate, a document he later produced at his asylum hearing as proof of his identity. After destroying the papers, the soldiers assassinated Mr. Sarr's father, beat Mr. Sarr and the other members of his family, and removed the Sarrs from their home. After a brief detention in the local police station, the family members were forced to cross the Senegal River by rowboat, where they were met by Red Cross workers and admitted to a refugee camp in Matam, Senegal. During the asylum hearing, Mr. Sarr described in detail the circumstances of this incident, including the name of the military officer who led the attack on the Sarr family, the vehicle in which the soldiers traveled, the weapons they carried, and the instruments with which they beat the surviving members of the family.

According to Mr. Sarr, he remained in the refugee camp until 1996, at which time he moved to the city of Dakar in the hopes of finding help for his family and a "better life." Admin. R. at 89-90. There he became a peddler of merchandise for a shop owner. Mr. Sarr testified that he sent portions of his earnings to his siblings, who remained in the Matam refugee camp. Mr. Sarr also testified that he was unable to obtain legitimate identification or open a bank account while in Dakar. In 2001, Mr. Sarr purchased a false passport and left Dakar for the United States. He testified that he feared if he returned to Mauritania, "[t]he same thing that happened to us in 1989" would happen again. Supp. Admin. R. at 1.⁴ He stated that he had lost touch with his siblings, who presumably are still in Senegal.

C. The Immigration Judge's Opinion

The evidence before the IJ consisted of Mr. Sarr's asylum application and the INS's response, Mr. Sarr's Mauritanian birth certificate, Mr. Sarr's own testimony, which was presented through an interpreter, psychiatric analyses of Mr. Sarr, several State Department Country Reports on Mauritania, and a "packet of material" submitted by Mr. Sarr regarding Mauritania and his situation there.⁵ Admin. R. at 53. The government performed a forensic examination of the birth certificate, which did not reveal any changes to the document. At the beginning of the hearing, counsel for the Department of Homeland Security explained that the "particular problem with this case" was that Mr. Sarr "had stated to the asylum officer that all family documents were destroyed in the attack, yet he was able to produce the birth certificate. A huge inconsistency." Id. at 77. Counsel also argued that Mr. Sarr's description of conditions in Mauritania "was inconsistent with known conditions in Mauritania" and that "repatriation has been occurring for some time." Id.

At the conclusion of the hearing, the IJ delivered an oral decision rejecting Mr. Sarr's petitions for asylum and related relief based upon an adverse credibility finding. The IJ found that Mr. Sarr "failed to show past persecution or a well-founded fear of persecution," and that his testimony "was not sufficiently detailed, consistent or believable to provide a plausible and coherent account of the basis for his fears." Id. at 53-54. In particular, the IJ expressed doubt that Mr. Sarr was truly from Mauritania: "The issue before the Court is whether this guy is from Mauritania or not. I have no idea and I didn't give any credibility to his testimony." Id. at 55; see also id. at 57 ("Again, what this Court has problems with is credibility. I don't know if he's from Mauritania. I don't know if what he's telling me is the truth. He has absolutely nothing to show me that would suggest that he is, in fact, from Mauritania.").

The IJ identified three reasons for doubting Mr. Sarr's story. First, and most importantly, the IJ doubted Mr. Sarr's account of how his birth certificate was preserved:

[The respondent testified that] his birth certificate that his mother had on her when she died is what he produced for this Court. The problem is when I was listening to the testimony in this particular matter he told us quite clearly that when the soldiers came to his house that, in fact, they asked his father if, in fact, they were Mauritanians or not. That his father brought out the paperwork regarding the family and that the soldiers destroyed all of the paperwork. That nothing was available. Now, all of a sudden, he comes up with a birth certificate. From where, I have no idea other [than] what he said, the mother had it on her. Well, according to what [he told] us previously, ... the father had it and handed it to the soldiers and they destroyed all of the paperwork and ... there was nothing left there.

Id. at 54-55. Second, the IJ noted that Mr. Sarr gave two different dates—1994 and 1991—for his mother's death. Third, the IJ questioned why Mr. Sarr did not know the address or phone number of the man for whom he had worked in Dakar, and did not attempt to contact him to obtain corroboration of his story.

The IJ found in favor of Mr. Sarr on the issue of past and current conditions in Mauritania. In particular, the IJ stated "[T]here was a problem between blacks and white Moors [in Mauritania in 1989].... I agree with counsel for the respondent that I don't think things in Mauritania have changed at all." Id. at 55.

D. The BIA's Opinion

Mr. Sarr appealed the IJ's decision to the BIA, which affirmed in a short opinion by a single member. After noting that it had "reviewed the record of proceeding, the Immigration Judge's decision[,] ... and the respondent's contentions on appeal," the BIA "agree[d] with the Immigration Judge that [Mr. Sarr] has failed to carry his burden of proof to demonstrate his actual identity, and did not establish either past persecution or a well-founded fear of future persecution that would justify a grant of asylum" or the other requested forms of relief. Id. at 2. The BIA recognized that the IJ did not "completely describe" Mr. Sarr's testimony regarding how his mother retained the birth certificate, but found that "the record reflects that [Mr. Sarr] made contradictory statements with regard to the central issue of the alleged destruction of his family's documents and the issue of when his mother, who...