Sheriff v. Attorney General of U.S.

• Decision Date: 24 November 2009
• Docket Number: No. 08-1645.,08-1645.
• Parties: Martina SHERIFF, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

587 F.3d 584

Martina SHERIFF, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 08-1645.

United States Court of Appeals, Third Circuit.

Argued: September 21, 2009.

Opinion Filed: November 24, 2009.

Dennis Mulligan, Esq. (Argued), Nationalities Service Center, Philadelphia, PA, for Petitioner.

Susan B. Green, Esq. (Argued), Richard M. Evans, Esq., Lindsay B. Glauner, Esq., Angela N. Liang, Esq., United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: BARRY, FISHER and JORDAN, Circuit Judges.

OPINION OF THE COURT

BARRY, Circuit Judge.

This is a case of almost unimaginable horrors inflicted on a Liberian woman by supporters of former Liberian president, Charles Taylor. Those horrors, which include witnessing the murder of her mother and the rape of her daughter, who later died; the abduction of her other daughter, now presumed dead; and her own capture and detention, during which time she was bound with electrical wire and raped multiple times, prompt us, as a matter of first impression for our court, to consider, among other issues, what has come to be known as "humanitarian asylum."

Some background is in order. The Republic of Liberia is a country with a violent and, indeed, sordid past. Charles Taylor was elected president in 1997 after years of leading a bloody insurgency against the Liberian government, various militias, and the civilian population. It was an authoritarian rule, notable for its brutality, ending in August 2003 when Taylor resigned as President, and was exiled to Nigeria. He was later indicted for, inter alia, crimes against humanity by the Special Court for Sierra Leone. In November 2005, Ellen Johnson-Sirleaf was elected president, becoming Africa's first elected female head of state.

Martina Sheriff ("Sheriff") is a 48 year-old native and citizen of Liberia, with no formal education. She is a Muslim and a member of the Mandingo tribe, a group that, beginning in late-1989, was targeted and savaged by the National Patriotic Front of Liberia ("NPFL"), rebels led by Taylor. The savagery continued throughout Taylor's rule as President and, if Sheriff is to be believed—and there is no suggestion she should not be—even after he was removed from office.

In 1990, NPFL rebels entered Sheriff's village and massacred more than 400 Mandingos, including women and children. Sheriff's mother was murdered and her oldest daughter, Mawata, was raped in front of her. The girl later died. Her house was burned to the ground, bodies were strewn everywhere, and the rebels had run amok. As the atrocities and mass confusion continued, Sheriff and her family escaped to Guinea, returning home only when a peacekeeping force was deployed to her home area.

In 1997, Sheriff joined the All-Liberia Coalition Party ("ALCOP"), a political party opposed to Taylor and supporting the interests of the Mandingos. ALCOP was headed by Alhaji Kromah, a Mandingo. Sheriff was head of its women's wing in the area in which she lived. After Taylor's election, Sheriff was hunted by his forces because she had supported Kromah and was a Mandingo.

In September 1998, Taylor's forces again raided Sheriff's village and arrested her, along with others, accusing them of being spies for Kromah. Sheriff was beaten, treated as a slave, tied with electrical wire, raped by four of her captors over the period of a week or two, and almost died. She was released through the intervention of religious leaders, and again fled to Guinea. She returned home in April 1999 in an effort to take her father, a teacher of religion, to Guinea to care for him after he was arrested, tortured, and shot in the leg by Taylor's forces because they believed he had prayed that Kromah would win the election. He was not allowed to leave, and died of his wounds. Sheriff's village was still engulfed in rebel fighting, and the atrocities continued. During that fighting and the confusion that ensued, Sheriff's daughter, Massa, was abducted and is presumed dead.

Sheriff took her remaining children and escaped for a final time to Guinea, but Liberian forces invaded the town in which she was living, beat her, and shot and killed the woman who was caring for her, as well as a number of other people. Sheriff fled Guinea and entered the United States on May 15, 2001, using the dead woman's passport. She was charged as removable under 8 U.S.C. § 1227(a)(1)(B) and 8 U.S.C. § 1227(a)(3)(C), and conceded removability. She has been seeking asylum, withholding of removal, and relief under the U.N. Convention Against Torture ever since, alleging persecution on account of her Mandingo ethnicity and her membership in a political party that opposed the rule of Charles Taylor. She explained why:

Q. [N]ow, what do you think would happen to you, Martina, if you were to return to Liberia today?

A. When I go back, they will kill me.

Q. Why do you think that would happen?

* * *

A. They still searching for me.

Q. Who is?

A. People that cause me to come here.

Q. Okay.

A. Charles Taylor people.

Q. Okay, you understand Charles Taylor is no longer the president of Liberia?

A. Yes, I know.

Q. With him no longer being power, in office, why do you fear Charles Taylor or his people?

A. The people he left in power, they still there. They never leave.

Q. Okay, and why do you think those people would want to harm you if you returned?

A. They will kill me.

* * *

Q. Why?

A. Being Mandingo.

(App. 153-54.)

On April 24, 2006, the Immigration Judge ("IJ") found Sheriff to be credible and granted her application for asylum, concluding, first, that the government had not rebutted the presumption of a well-founded fear of future persecution, and, second, that even if it had, Sheriff had demonstrated reasons so compelling that humanitarian asylum was warranted under 8 C.F.R. § 208.13(b)(1)(iii). The Department of Homeland Security ("DHS") appealed to the Board of Immigration Appeals ("BIA") which, on February 5, 2008, sustained the appeal, one member dissenting (without opinion), and denied Sheriff's applications for asylum, withholding of removal and relief under the Convention Against Torture.

The BIA did not disturb the IJ's credibility finding, but took administrative notice of the 2006 U.S. Department of State Country Reports for Liberia ("Country Reports") and concluded that there had been a "fundamental change in country conditions" since the 2000 Country Reports in the record¹ and the November 2004 hearing before the IJ, and that the presumption of a well-founded fear of persecution had, therefore, been rebutted. (App. at 4.) The BIA also found that, although Sheriff's "mistreatment was despicable," id., humanitarian asylum was not warranted because she had not shown compelling reasons for being unable or unwilling to return to Liberia.

Sheriff timely petitioned for review, pressing only her claim for asylum, and we stayed her removal. We will grant the petition and remand to the BIA for reasons we will explain below. We note here, however, that what underlies almost all of what will follow is the utter failure of the BIA to apparently even consider, much less discuss, many if not most of the atrocities to which Sheriff was subjected; her testimony that she will be killed if she is returned to Liberia, and why; and the documentary evidence in the case. The BIA was not entitled to simply ignore such a powerful presentation and summarily conclude that the presumption had been rebutted and that humanitarian relief was not in order.

I. Jurisdiction and Standard of Review

The BIA had jurisdiction to hear DHS's appeal of the IJ's decision pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its own decision, we review that decision, and not that of the IJ. Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir.2002).

We will affirm "the Attorney General's discretionary judgment whether to grant relief under [the asylum statutes]" unless that judgment was "manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(d). More specifically, the BIA's determinations will be upheld if they are supported by reasonable, substantial, and probative evidence in the record considered as a whole. Yusupov v. Att'y Gen., 518 F.3d 185, 197 (3d Cir.2008). Under the substantial evidence standard, the BIA's determinations "must be upheld unless the evidence not only supports a contrary conclusion, but compels it." Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001); Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). However, as just suggested, "the BIA must substantiate its decisions. We will not accord the BIA deference where its findings and conclusions are based on inferences or presumptions that are not reasonably grounded in the record." Id. (internal citations and quotations omitted).

II. Legal Standards

On appeal, Sheriff argues that the BIA erred in concluding that DHS rebutted the presumption of future persecution. This argument is based not only on the evidence of record that was not considered by the BIA but on the fact that the BIA considered Country Reports that were not in the record and that it applied the wrong standard of review. Sheriff also claims that, regardless of whether the presumption had been rebutted, the BIA erred in concluding that she was not eligible for humanitarian asylum.

"The Attorney General `may' grant asylum to an alien who demonstrates that he/she is a refugee." Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002) (quoting 8 U.S.C. § 1158(b)(1)). A refugee is a "person unable or unwilling to return to the country of that person's nationality or habitual residence because of past persecution or because of a well-founded fear of future persecution on account of h[er] race, religion, nationality, membership in a particular social group, or political opinion." Id. at 271-72 (citing 8 U.S.C. § 1101(a)(42)(A)). Persecution "must...