El-Sheikh v. Ashcroft

• Decision Date: 12 November 2004
• Docket Number: No. 03-2944.,03-2944.
• Citation: 388 F.3d 643
• Parties: Mohamed EL-SHEIKH, Petitioner, v. John ASHCROFT, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 643

388 F.3d 643

Mohamed EL-SHEIKH, Petitioner, v. John ASHCROFT, Respondent.

No. 03-2944.

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2004.

Filed: November 12, 2004.

Petitioned for judicial review of the decision of the Board of Immigration Appeals.

Sally M. Silk, argued, Minneapolis, MN, for appellant.

Jennifer Paisner, argued, Justice Dept., Washington, D.C., for appellee.

Before LOKEN, Chief Judge, BYE and MELLOY, Circuit Judges.

LOKEN, Chief Judge.

Mohamad A. El Sheikh, a twenty-seven-year-old native of Sudan, entered this country illegally, conceded removability, and requested asylum, withholding of removal, and relief under the Convention Against Torture. After a hearing, the Immigration Judge (IJ) denied relief, and the Board of Immigration Appeals (BIA) affirmed with an opinion. El Sheikh petitions for judicial review of this final order of removal. See 8 U.S.C. § 1252(b). After careful review of the administrative record, we conclude that the denial of El Sheikh's asylum claim is not supported by substantial evidence because there are no express agency findings as to (i) whether El Sheikh's testimony was credible, (ii) whether his testimony that he was twice detained and beaten by security police on account of his opposition to the government and its civil war policies, if credible, established past persecution, and if so (iii) whether the government rebutted the resulting presumption that El Sheikh has a well-founded fear of future persecution if he is removed to Sudan. Accordingly, we vacate the BIA's order and remand for further administrative proceedings.

I. The Evidence Submitted by El Sheikh.

At the hearing and in a lengthy affidavit supporting his asylum application, El Sheikh testified that his father is a wealthy businessman of Arab descent living in the capitol city of Khartoum. El Sheikh began college at East Nile University near Khartoum in 1996. Though not a member of any political party, El Sheikh was an active participant in informal student meetings called "Corners of Discussion," which tended to focus on the civil war being waged by the Islamic government against tribal insurgents in the south of Sudan. Because El Sheikh's mother was a member of the Dinka tribe and he had lived and visited in the south, he spoke at many sessions, revealing "the truth about what is happening in the war zone" to groups of up to one hundred students concerned about the costs of the civil war and fearful of being conscripted to fight it.

El Sheikh testified that, in April 1999, security police came to break up a large group of student protesters. El Sheikh was arrested as a leader of the demonstration. He was taken to Kober prison where he was beaten with belts and batons. He and others were held without charges for seven days and then released when their families complained. El Sheikh further testified that, in December 1999, he was arrested again by the security police while distributing anti-government flyers outside the university. He was detained at a "ghost house" without charges for thirty-five days, enduring repeated beatings, inadequate food, and long periods in the sun without protection. He was released only after signing a statement promising not to distribute anti-government flyers or to speak at the Corners of Discussion again. After this lengthy detention, government security officers "followed [his] every move" and harassed and interrogated him until he quit school and decided to leave the country.

El Sheikh testified that his brother's friend in Sudan's passport office helped obtain a passport and visa to South Korea. The documents fraudulently described El Sheikh as a "sales manager" because travel documents were not issued to students. El Sheikh then traveled to South Korea, where he stayed for three months with a family friend and businessman. He eventually obtained a tourist visa to Honduras and took a plane from South Korea to Honduras with a stop in Los Angeles, intending to enter the United States at Los Angeles without valid entry documents and to seek asylum. He denied traveling to South Korea to work or to look for work.

El Sheikh submitted extensive background information on Sudan, including Department of State reports that confirmed the Sudanese government's practice of arresting students who opposed the government and detaining them without charges in "ghost houses," where they were abused and beaten. El Sheikh also presented the testimony of a Sudanese native who was an organizer for an opposition political party at three universities in the mid-1990's, including East Nile University. Before coming to the United States in 1998, where he was granted asylum, this witness testified that he had met El Sheikh through this "opposition work," directed El Sheikh to speak at various "Political Corners," and saw El Sheikh actively speak against the government at such meetings. He also confirmed that the anti-government activists included students who were not affiliated with any opposition party. After leaving Sudan the witness heard that student activists were arrested at East Nile University, but he had no personal knowledge that El Sheikh was arrested in 1999.

II. The Agency's Decision.

After summarizing the evidence in considerable detail, the IJ denied all of El Sheikh's claims. The IJ found "palpable" discrepancies between El Sheikh's testimony and his earlier "credible fear" interview because El Sheikh told the asylum officer that he was not participating in the student "riot" when arrested in April 1999, and that he was merely "talking with friends" on campus when arrested in December 1999. The IJ expressed "some concerns" as to whether El Sheikh "was actually fleeing Sudan" when he went to South Korea. Noting that El Sheikh presented no medical evidence of significant injuries or "any real corroboration that [he] was harmed by the government of Sudan," that El Sheikh was permitted to attend the university and to leave the country, and that his participation in political activities was "relatively minimal," the IJ concluded that El Sheikh "has simply not met his burden of proof to establish that he has a persecution claim in Sudan."

The BIA affirmed. In the critical portion of its short opinion, the BIA stated:

[The IJ] did not make an express credibility finding. Even if [El Sheikh] is credible, we agree with the [IJ] that [El Sheikh] did not sustain his burden of proving eligibility for relief.

With regard to [El Sheikh's] claim of past persecution on account of his political opinion, in light of the questions regarding [his] testimony, we consider [his] corroborative evidence to determine whether he met the burden of proof. We find that [El Sheikh] failed to submit reasonably available corroborative evidence. Although [he] presented witness testimony, the witness left Sudan prior to [El Sheikh's] problems and could not corroborate the harm suffered by [El Sheikh]. (Citations omitted).

III. Discussion.

The Attorney General may, in his discretion, grant asylum to a "refugee." 8 U.S.C. § 1158(b)(1). A refugee is defined as an alien who is outside his native country and is unable or unwilling to return to that country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). To show a well-founded fear of persecution, an alien must show that the fear is both subjectively genuine and objectively reasonable. Proof of past persecution creates a rebuttable presumption that the alien has a well-founded fear of future persecution. See Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir.2004); 8 C.F.R. § 208.13(b). "In a close case, the question of past persecution ... may well be critical, because it determines whether the INS or the asylum applicant has the burden of proof" on issues such as changed country conditions and the alien's ability to safely relocate in his native country. Hagi-Salad v. Ashcroft, 359 F.3d 1044, 1049 (8th Cir.2004).¹ We review the BIA's determination that El Sheikh is not eligible for asylum under the deferential substantial evidence standard. Nyama v. Ashcroft, 357 F.3d 812, 815-16 (8th Cir. 2004).

Because the IJ made no express credibility finding, the BIA assumed El Sheikh's testimony was credible but concluded that the testimony was insufficiently corroborated. On the issue of past persecution, the BIA discounted El Sheikh's testimony of two lengthy detentions and beatings because his supporting witness left Sudan before 1999 and therefore "could not corroborate the harm." The BIA did not otherwise explain what "reasonably available corroborative evidence" was missing.

In Matter of S-M-J, 21 I & N Dec. 722 (BIA 1997) (en banc), the...