Omar Hassan Kadar a.k.a. Kadar Kodon

In re: OMAR HASSAN KADAR a.k.a. Kadar Kodon,File: A29 835 461 - New York

IN EXCLUSION PROCEEDINGS

APPEAL

ON BEHALF OF APPLICANT: Susan Marie Beschta, Esquire Catholic Legal Immigration Network Inc. 1011 First Avenue New York, New York 10022

ON BEHALF OF SERVICE: Susan Egan General Attorney

EXCLUDABLE:

Sec. 212(a)(6)(C), I&N Act [8 U.S.C. § 1182(a)(6)(C)]Sought to procure entry by fraud or willful misrepresentation of a material fact

Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § 1182(a)(7)(A)(i)(I)]

Sec. 212(a)(7)(B), I&N Act [8 U.S.C. § 1182(a)(7)(B)] No valid nonimmigrant visa

APPLICATION: Asylum; withholding of deportation

In a decision dated March 9, 1992, an immigration judge found the applicant excludable as charged, denied his applications for asylum and withholding of deportation, and ordered him excluded and deported from the United States. The applicant appealed the denial of his applications for asylum and withholding of deportation. The appeal will be sustained. The request for oral argument before the Board is denied. See 8 C.F.R. § 3.1(e).

The applicant is a 19-year-old native and citizen of Somalia. He arrived in the United States on November 2, 1991, at which time his admissibility was called into question and he was placed in these exclusion proceedings. He was charged with excludability under sections 212(a)(6)(C), 212(a)(7)(A)(i)(I), and 212(a)(7)(B) of the Immigration and Nationality Act, 8 U.S.C. §§ 1182(a)(6)(C), 1182(a)(7)(A)(i)(I), and 1182(a)(7)(B), as an alien who misrepresented a material fact to gain admission, as an alien not in possession of an unexpired immigrant visa, and as an alien not in possession of an unexpired nonimmigrant visa. At an exclusion hearing on March 9, 1992, the applicant conceded that he was excludable, and his excludability is not contested on appeal.1[1] The only issues on appeal concern his applications for asylum and withholding of deportation.

In order to establish eligibility for a grant of asylum, an alien must demonstrate that he is a "refugee" within the meaning of section 101(a) (42) (A) of the Act, 8 U.S.C. § 1101(a) (42) (A). See section 208 of the Act, 8 U.S.C. § 1158. That definition includes the requirement that an alien demonstrate that he is unwilling or unable to return to his 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. A well-founded fear of persecution may be established upon a lesser showing than the clear probability of persecution which must be shown for withholding of deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h). INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); see also Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). We have held, adopting the view of the United States Court of Appeals for the Fifth Circuit, that an applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution. Matter of Mogharrabi, supra; see Guevara Flores v. INS, 786 F.2d 1242 (5th Cir. 1986), cert. denied, 480 U.S. 930 (1987); see also Carcamo-Flores v. INS, 805 F.2d 60 (2d Cir. 1986). Alternatively, eligibility for asylum may be established by a showing of past persecution. 8 C. F. R. § 208.13(b)(1); Matter of Chen, Interim Decision 3104 (BIA 1989).

An alien who is seeking withholding of deportation from any country must show that his "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h) (1) of the Act. In order to make this showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407, 413 (1984). This clear probability standard requires a showing that it is more likely than not that an alien would be subject to persecution. Id. at 429-30.

The applicant bears the evidentiary burdens of proof and persuasion in any application for withholding of deportation under section 243(h) or asylum under section 208 of the Act. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds, Matter of Mogharrabi, supra; 8 C.F.R. §§ 208.13, 242.17(c).

In a letter dated January 16, 1992, the Department of State's Bureau of Human Rights and Humanitarian Affairs (BHRHA) issued an advisory opinion in which it stated that the Siad Barre regime had fallen in January 1991, and President Siad Barre had fled the capital, which was now controlled by anti-government forces. It was further noted that "we see nothing in the application to indicate that the applicant would be the subject of any particular attention or abuse from a new Government of Somalia upon returning--once the fighting has stopped and such a government is formed and establishes control over the country." It was also noted that the situation in Somalia remained "violent and chaotic" and "there is an absence of clear governmental authority," and thus the applicant's fear of returning to the "extraordinarily dangerous situation" was understandable.

The applicant testified that he was an active member of the United Somali Congress (USC) from 1987 to January 1991. He reported that he had been arrested in November 1987 and was imprisoned for 11 months in Somalia at Godka, known as the "hole." During the course of his imprisonment he stated that he was regularly interrogated and tortured. He described having been placed in a sack and submerged in water, having been tied inside the jail and hung upside down by his ankles, having had food rations withheld, and having been beaten, kicked, and punched. The applicant recounted that his family obtained his release through the payment of bribes and that he and a brother then went into hiding in the bush, aided by his uncle. In January 1991 the applicant returned to his family's home, where he discovered that his father, mother, and four siblings had been killed by troops of President Siad Barre. The applicant fled first to Kenya, and then Denmark, before arriving in the United States. The applicant also testified concerning the fighting in Somalia, after the departure of President Siad Barre, between the two clans making up the USC. Evidence offered in support of the applicant's asylum claim included various documents pertaining to general conditions in Somalia. Additionally, affidavits from Said S. Samatar, Professor of African History at Rutgers University; Anna Simons, Visiting Instructor at Duke University; and Sarah Williams, M.D., were submitted at the hearing. The affidavits were marked for identification and are included with the record, but were not considered by the immigration judge in reaching his decision.

Following the hearing, the immigration judge issued his oral decision finding the applicant excludable as charged and denying the applications for asylum and withholding of deportation. The immigration judge, referencing the advisory opinion of the BHRHA, noted that the regime of President Siad Barre had been deposed. The immigration judge further found that there was now a civil war in Somalia, with the applicant's clan fighting another clan.

However, as the immigration judge found that there was no evidence that anyone in Somalia has an interest in persecuting the applicant, the immigration judge denied the requested relief.

On appeal, the applicant submitted additional evidence, consisting of letters on his behalf. our review is a review of the record, and thus we will not consider the evidence first offered on appeal. See generally Matter of Soriano, 19 I&N Dec. 764 (BIA 1988); Matter of Haim, 19 I&N Dec. 641 (BIA 1988). With the brief on appeal, the applicant has also submitted a motion to correct the transcript, reflecting 15 errors in the translation at the exclusion hearing. The Service has not opposed the motion. The motion is granted, although we note that the corrections do not materially affect our review of this case,

In his decision, the immigration judge did not make a specific finding with regard to the applicant's credibility. The immigration judge noted a discrepancy between the applicant's affidavit received in connection with the application for asylum (Ex. 2) and an additional declaration dated January 21, 1992. Specifically, the first statement referred to two arrests, while the second referred only to one. An explanation for the discrepancy was offered at the hearing, when it was indicated that the confusion was caused by a problem with the translation. The immigration judge stated, concerning the discrepancy, "[t]here may have been a problem with translation. There may be a problem with credibility. I don't believe that to reach a decision in this case such a judgment has to be made." (i.j. dec. at 4). We note that at the hearing the immigration judge stated that, when the applicant testified as to his treatment while jailed in Somalia, the applicant was believable (Tr. at 21). The immigration judge did not make an adverse credibility finding regarding the applicant's testimony. Following a review of the record, we see nothing to bring the applicant's credibility seriously into question. The applicant provided detailed testimony of his activities in support of the USC, his imprisonment and torture, and his subsequent flight from Somalia. We further note that additional evidence consisting of the statements by Prof. Samatar, Dr. Simons, and Dr. Williams was rejected by the immigration judge, apparently because the affiants were not present at the hearing. The affidavits of Prof. Samatar and Dr. Simons pertain to general conditions in Somalia and can be considered essentially cumulative of other evidence of record. However, the affidavit from Dr. Williams pertains to her medical examination of the applicant, showing residual disabilities as a result of the applicant's claim of torture in Somalia. We find that the statement is relevant to applicant's claim and consider it in reaching our determination.

We are satisfied that, as a result of his association with the USC, the applicant suffered persecution in Somalia at the hands of the regime of President Siad Barre. However, as the immigration judge noted, President Siad Barre has been deposed. While the immigration judge determined that the applicant accordingly need no longer fear future persecution in Somalia, we have held that in certain circumstances past persecution alone might warrant a grant of asylum even if there was no reasonable likelihood of present persecution. For instance, asylum could be granted if the past persecution had been so severe that return to the country of persecution would be inhumane. Matter of Chen, supra. In this case, the record indicates that the applicant was imprisoned for 11 months as a result of his political beliefs and actions, during which time he was subjected to barbaric forms of torture. Evidence of record, including Department of State reports, describes incidents of the torture of political prisoners in Somalia (Ex. 2). In addition to the past persecution experienced directly by the applicant, we note that nearly all members of his family, including his mother, father, and four siblings, were killed by soldiers of the now-deposed President Siad Barre. Thus, as the applicant has established that he was persecuted in the past in Somalia, there arises a rebuttable presumption that he has reason to fear similar persecution in the future. Matter of Chen, supra.

Although the applicant's native country in now immersed in civil strife, the government which previously persecuted him has been deposed, and harm from generally civil strife persecution within the meaning of the Act. See Matter of Rodriguez-Majano, 19 I&N Dec. 811 (BIA 1988). However, we further note that there are cases where the favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution. The United Nations High Commissioner for Refugees noted in The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979), in referring to a "general humanitarian principle," that:

It is frequently recognized that a person who - or whose family - has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refuges.

Id. at § 136. We conclude that asylum should be granted in the exercise of discretion. While conditions have changed since the applicant departed Somalia, in that President Siad Barre has been removed from power, the country is now engulfed in civil war, with fighting between rival clans. The BHRHA has recognized, in its January 16, 1992, advisory opinion, the "violent, 11 "chaotic," and "extraordinarily dangerous situation" existing in Somalia. In view of the applicant's torture in Somalia and the murder by government troops of six members of his immediate family, we find the humanitarian factors weigh heavily in the applicant's favor. We note that after departing Somalia, the applicant took temporary refuge in neighboring Kenya from August to October 1991, and indicated that while there he feared deportation to Somalia. From there he went to Denmark for two weeks, and left when he was told that he was unlikely to receive asylum in Denmark and might be deported. We cannot say that the applicant obtained safe haven even though he escaped to another country. We note that the applicant's younger brother and aunt have fled Somalia and were last known by him to have proceeded to Tanzania. His only relative remaining in Somalia is the uncle with whom he sought refuge after obtaining his release from imprisonment. After reviewing the totality of the circumstances present in this case, we find that the applicant's asylum application should be granted in the exercise of discretion. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987).

Inasmuch as we are granting the application for asylum, we find it unnecessary to decide whether the applicant has established a clear probability of persecution for section 243(h) purposes. See Matter of Mogharrabi, supra. Accordingly, the following orders will be entered.

ORDER: The decision of the immigration judge is reversed.

FURTHER ORDER: The application for asylum is granted and the exclusion proceedings are terminated.

1 The Immigrant and Naturalization Service did not pursue the applicant's excludability under section 212 (a) (7) (B) at the exclusion hearing.