In re J-J-, Applicant
U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals
Decided July 31, 1997
Interim Decision #3323
976
A motion to reconsider a decision of the Board of Immigration Appeals must be filed not later than 30 days after the mailing of the decision, or on or before July 31, 1996, whichever date is later. Only one motion to reconsider may be filed, and there is no exception to the time bar imposed on such motions. - Only one motion to reopen is allowed and must be filed with the Board not later than 90 days after the date on which the final administrative decision was rendered, or on or before September 30, 1996, whichever date is later. An exception exists for motions to reopen to apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality, if evidence is presented that is material and was not available and could not have been discovered or presented at the former hearing.
- An appeal or motion is deemed filed when it is received at the Board, irrespective of whether the alien is in custody.
- The Board‘s power to reopen or reconsider cases sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations, where enforcing them might result in hardship.
FOR THE APPLICANT: Ann A. Ruben, Esquire, Philadelphia, Pennsylvania
FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Jeffrey T. Bubier, Assistant District Counsel
BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: VILLAGELIU, Board Member. Dissenting Opinion: ROSENBERG, Board Member.
SCHMIDT, Chairman:
This case was last before us on August 8, 1995, when we dismissed the applicant‘s appeal from the decision of an Immigration Judge, denying the applicant‘s requests for asylum in the United States and withholding of deportation to Liberia. The applicant has now filed both a motion to reopen exclusion proceedings before the Board and a motion to reconsider our decision of August 8, 1995.
I. PROCEDURAL HISTORY
The applicant is a native and citizen of Liberia who arrived at New York‘s John F. Kennedy Airport on September 2, 1994. He surrendered a fraudulent passport to immigration authorities and requested asylum in the United States. The applicant was issued a Notice to Applicant for Admission Detained/Deferred for Hearing Before Immigration Judge (Form I-122) advising him of his apparent excludability under
At his exclusion hearing on March 23, 1995, the applicant conceded excludability but applied for asylum and withholding of deportation pursuant to
Acting pro se, the applicant filed a “Motion to Reopen and/or Reconsideration” with the Board 14 months later, on October 2, 1996. Thereafter, on October 21, 1996, the applicant‘s prior attorney filed a second motion to reconsider, arguing that the applicant did establish a well-founded fear of persecution, based on the facts alleged in the 1994 asylum application. The Board granted a stay of deportation on January 23, 1997, pending consideration of the instant motions.1
II. MOTION TO RECONSIDER
In his motion to reconsider, the applicant argues that the Immigration Judge erred in doubting his credibility or in acknowledging the dangers of
Under the regulations at
III. MOTION TO REOPEN
The applicant also seeks reopening to present evidence of worsening conditions in Liberia that he believes will persuade the Board to change our prior decision and grant him asylum. Pursuant to the regulations at
The numerical and temporal limitations set forth in
The applicant alleges in his motion that he can present new and material evidence that will show he does have a well-founded fear of persecution in Liberia based on the increased ethnic and political violence in that country. The applicant states in his motion that if he is deported to Liberia, he will be in danger, as are many other people there, on account of the fighting between rival tribal and political factions. The applicant‘s motion is supported by a copy of his 1994 asylum application, and by several articles on Liberia, including Amnesty International reports of 1995, decrying human rights abuses committed by all factions of the war, and reports of May and April 1996 which discuss the problem of thousands of civilians fleeing Liberia after the resumption and intensification of the civil war, despite an August 1995 peace agreement. A civil war has been raging in Liberia since December 1989.2
The Immigration and Naturalization Service opposes the applicant‘s motion to reopen, arguing that the new evidence presented by the applicant is not material and would not affect the prior decision of the Board.
IV. THE ASYLUM CLAIM
At his exclusion hearing on March 23, 1995, the applicant testified that he operated a small electrical appliance store in Liberia. He related that on September 20, 1992, he was forcibly recruited from his store by a guerrilla organization know as the National Patriotic Front of Liberia (“NPFL“), led by Charles Taylor. Others in the town who had refused to join the organization were shot. Along with other recruits, he was sent to a training camp in the Ivory Coast for 3 months. He then returned to Liberia to fight the other guerrilla groups, all of whom were vying for power in a multi-factional civil war following the death of Liberia‘s last president. The applicant testified that he fought with the group, planting bombs close to military tanks and engaging in combat fire in different battles for nearly 18 months following training. After a time, viewing the war as unfair, he sought to escape, despite his fear of the consequences. Others who had tried to escape had been killed.
In May 1994, while encamped in the Ivory Coast, the applicant managed to escape with the help of an acquaintance who secreted the applicant aboard a ship. Once at sea, the applicant was discovered, but the captain knew the applicant‘s mother and agreed to help him. When the ship docked in Singapore, the captain took the applicant‘s picture and asked him for $1,000. A few days later, the captain gave the applicant an American passport and took him to the airport.
The applicant testified at his hearing that he would be killed if he returned to Liberia, because the war had gotten worse and because Charles Taylor would consider him a deserter of his group. In his decision, the Immigration Judge held that forced recruitment of an individual by guerrilla forces does not constitute persecution if the guerrillas seek to make the person a member of their group, rather than harm him because he possesses a characteristic they find offensive and wish to overcome. The Board agreed, concluding that the applicant had not shown that the NPFL had any interest in his political opinions, that he ever expressed any specific opinions, or that he deserted the guerrillas based on his refusal to engage in human rights abuses condemned by the international community. INS v. Elias-Zacarias, 502 U.S. 478 (1992);
V. CHANGED CIRCUMSTANCES ARISING IN LIBERIA
The applicant contends in his motion that a much more dangerous, chaotic, and violent situation exists in Liberia now than at the time the Board dismissed his appeal in 1995. The evidence submitted by the applicant indicates that the rival factions have continued to commit human rights violations and have continued to fight despite signed peace agreements. The applicant argues that if he is forced to return to Liberia, he may have to participate in some of these violations. He also points to the ongoing mass exodus of citizens from war-torn Liberia.
The documents attached to the applicant‘s brief indicate that the situation in Liberia remains volatile. Some of the evidence, such as a March 1996 letter from an attorney at the United Nations High Commissioner for Refugees, who was lending an opinion in another alien‘s asylum claim, indicates that Liberia has been in turmoil since 1989. In 1990, the Economic Community of West African States sent a cease-fire monitoring group to serve as regional peacekeepers in response to the ferocious slaughter of civilians and the burning and looting of villages. Nevertheless, guerrilla groups continued to gain ground. In 1993, Liberia‘s three main factions entered into a peace agreement, attempting to resolve their political differences, disarm rebel factions, and hold elections. The agreement proved to be ineffectual and resulted in renewed combat, with atrocious abuses against civilians carried out by all sides, including fighters of Charles Taylor‘s NPFL. In 1994, a coalition government made efforts to once again implement the peace agreement, but that group was undermined by political wrangling and renewed factional fighting. Another peace agreement forged in September 1994 also proved to be unsuccessful. In August 1995, a new peace agreement was signed, but reports once more showed it to lack promise. The situation in Liberia remained tense, and people were fleeing the renewed fighting. Recent newspaper reports, however, indicate that several days ago, on July 20, 1997, Charles Taylor was elected President of Liberia after fair and open elections, conducted pursuant
In short, a review of the documents presented by the applicant does not show materially changed circumstances in Liberia since the Immigration Judge‘s decision in this case. The only significant changes evident from the applicant‘s motion are (1) that more factions are involved in the war, and (2) that the years of civil war have taken their toll on the country‘s economic infrastructure. We acknowledge that the general security situation for the civilian population of Liberia remains uncertain, even following the July 1997 elections. On the record before us, however, these changes do not materially affect the basis of the applicant‘s asylum claim. At the time of the exclusion hearing, the applicant claimed that the fighting was already worse and that the different sides were continuing to splinter. None of the new evidence submitted by the applicant shows that he is likely to suffer harm in a form different from the general population in Liberia, or that he will suffer harm at the hands of the NPFL based on his political opinion rather than because he deserted its forces. Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA 1985), aff‘d, 801 F.2d 1571 (9th Cir. 1986) (stating that the harm resulting from country-wide civil strife and anarchy is not persecution on account of one of the five enumerated grounds); see also Perlera-Escobar v. INS, 894 F.2d 1292 (11th Cir. 1990); Rodriguez-Rivera v. INS, 848 F.2d 998 (9th Cir. 1988).
Neither does the Attorney General‘s decision to redesignate Liberia in the TPS program represent a change in circumstances material to the applicant‘s asylum claim, as there is no further evidence that the applicant himself is at greater risk based on his race, religion, nationality, social group, or political opinion than the rest of the population. In redesignating Liberia in the TPS program, the Attorney General recognized that the continuation of civil strife in Liberia through 1996 prevented Liberian citizens and residents from safely returning there. However, the expanded availability of TPS to Liberians who did not originally qualify in 1991 does not represent materially changed circumstances arising in Liberia, as the redesignation is based on the same terrible war raging there since 1989.
With respect to the applicant‘s arguments that the new evidence demonstrates (1) that he will suffer persecution because he is opposed to the violence in Liberia, and (2) that he will be forcibly enlisted to fight or commit violence against civilian populations, which would go against his political opinion of wishing to remain neutral, we find that the applicant is restating his asylum claim made to the Board in 1995. The applicant argued in his 1995 appeal to the Board that he was coerced into joining a guerrilla group, that he protested to his recruiters that he did not want to get involved in the fighting, and that his conscription into this group, which resulted in almost 2 years of training and fighting, constituted persecution on account of his political opinion. We view the new evidence presented by the applicant as cumulative to
VI. PRO SE DETAINED ALIENS
The dissenting opinion proposes that we ought to consider this motion as timely filed because the applicant is pro se and detained and therefore lacks control over the mailing process in his prison. In the dissent‘s view, we should adopt the rationale in Houston v. Lack, 487 U.S. 266 (1988), where the Supreme Court held that a pro se prisoner‘s notice of appeal from a habeas corpus denial is deemed “filed,” pursuant to Federal Rule of Appellate Procedure 4(a)(1), at the moment of delivery to prison authorities for forwarding to the district court. See also Arango-Aradondo v. INS, 13 F.3d 610 (2d Cir. 1994).
We decline to adopt such a standard for several reasons. First, we find that the federal rules regarding timely filing are distinguishable from our own. In Houston v. Lack, supra, the Court noted that Rule 4(a)(1) did not define the moment at which the filing of an appeal occurred, and the lack of definition opened the interpretation of “filing” a notice of appeal to mean something other than “receipt” by the court. Also, in Arango-Aradondo v. INS, supra, the court found that Rule 25(a)(C) of the Federal Rules of Appellate Procedure, which applied to the alien‘s petition for review in the circuit court, actually provided that an appeal filed by an inmate is timely filed if deposited in the institution‘s internal mail system on or before the last day for filing. Likewise, as noted in Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995), Federal Rule of Appellate Procedure 4(c) specifically provided for constructive filing of a notice of appeal, that is, a notice of appeal was timely filed if deposited in the institution‘s internal mail system on or before the last day for filing. See also Cooper v. Brookshire, 70 F.3d 377 (5th Cir. 1995).
In contrast, the appeals and motions regulations for the Board explicitly define the moment of filing of a notice of appeal as the moment the appeal is received at the Board.
In Nigro v. Sullivan, 40 F.3d 990 (9th Cir. 1994), the United States Court of Appeals for the Ninth Circuit noted that the regulations governing appellate review in the Bureau of Prisons,
We further note that Houston v. Lack, supra, and the caselaw spawned from it refer to appeals and not specifically to motions. Likewise, the Federal Rules of Appellate Procedure, and the other procedural rules discussed in these cases that define timely filing, refer specifically to appeals. Indeed, our own rule regarding the timeliness of filing,
The federal rules are also mostly silent with regard to the filing deadlines of motions. In the Federal Rules of Civil Procedure, motions for “relief from judgment orders,” contained in Rule 60(b), most resemble our motions to reopen or reconsider. A Rule 60(b) motion is allowed “within a reasonable time,” although in many instances, not more than a year after the judgment order. However, the rule makes no mention of how timely filing is accomplished. Therefore, there is no wide body of law dealing with the timely filing of a motion. The body of law we look to in this regard comes from the appellate process, where the definition of “timely filing” is often extended to other forms of filings where the rules may be silent. In our own context, we view the definition of timely filing of appeals to extend to motions to reopen or reconsider, as it would be a consistent application of the regulations to enforce one filing definition, and such a definition would also be consistent
In sum, in a case such as this where the new motions and appeals regulations plainly define the term “filing,” we are obliged to follow the definition, rather than ignore it based on the perceived equities or inequities of any particular case. The applicant‘s motion to reopen was untimely, and he is not entitled to different treatment based on his custody status.
VII. THE BOARD‘S POWER TO REOPEN ON ITS OWN MOTION
The current temporal and numerical limitations in the regulations governing motions to reopen or reconsider originate in the
Notwithstanding the statutorily mandated restrictions, the Board retains limited discretionary powers under the regulations to reopen or reconsider cases on our own motion.
VIII. CONCLUSION
In conclusion, the applicant‘s motion to reconsider and the second motion to reconsider filed on his behalf by counsel are both untimely as they were received more than 60 days late. There is no exception to the time bar imposed on motions to reconsider. The motion to reopen is also untimely as it was received 2 days late. To be timely filed, a submission has to be received at the Board within the time allowed by regulation. The motion to reopen does not fall within the exception for reopening out of time to apply for asylum based on changed circumstances arising in the country of nationality since the time of the Immigration Judge‘s decision. Finally, the applicant has
ORDER: The motion to reconsider is denied as untimely.
FURTHER ORDER: The motion to reopen is denied as untimely.
In re J-J-, Applicant
Gustavo D. Villageliu, Board Member
CONCURRING OPINION: Gustavo D. Villageliu, Board Member
I respectfully concur.
While I agree with the majority‘s opinion I merely wish to comment on the discussion regarding the Board‘s power to reopen on its own motion in exceptional situations. Such situations, in my opinion, must include cases where the courts have reversed the underlying basis for the Board‘s legal conclusions in a case after the 30-day limitation for motions to reconsider has expired. To decline to reconsider an improperly decided case would be a waste of limited judicial and administrative resources and inconsistent with the goals expressed by Congress to provide exceptions in the interests of justice. See H.R. Conf. Rep. No. 101-955, at 133 (1990), reprinted in 1990 U.S.C.C.A.N. 6784, 6798; cf.
In re J-J-, Applicant
Lory D. Rosenberg, Board Member
DISSENTING OPINION: Lory D. Rosenberg, Board Member
I respectfully dissent.
The applicant, a native and citizen of Liberia, is an applicant for asylum under
We can reopen and reconsider the likelihood of persecution faced by the applicant in Liberia, as he asks, under a fair and reasonable interpretation of any of three permissible regulatory avenues. We should have invoked at least one of these paths in order to afford this detained alien an opportunity to perfect his claim under present circumstances before returning him to Liberia.
First, his motion can be treated as timely filed and received under
The majority, however, opts for none of these alternatives.1 I cannot travel down such a dangerous road with them, nor can I join them on the route they take to reach such a destination. Consequently, I dissent.
I. DENIAL OF THE APPLICANT‘S MOTION IS THE RESULT OF AN UNREASONABLY RESTRICTIVE READING OF THE REGULATIONS, AND AN UNJUSTIFIABLE DEPARTURE FROM APPLICABLE LAW
The applicant‘s motion to reopen and reconsider (providing new evidence that previously had been unavailable, some of which is proffered to establish changed circumstances in Liberia), and an accompanying brief citing legal authority, apparently written in his own hand, was prepared and signed by him on September 25, 1996, in the Lehigh detention facility to which he had been transferred. It was submitted for delivery to the prison mail system, together with a certificate of service, signed by the applicant under penalty of perjury, on that same date.
It arrived and was “stamped in” at the Board, however, on October 2, 1996. The Service has opposed the motion to reopen on the basis that the documents submitted in support of changed circumstances are not material because they consist of reports from Amnesty International and news clippings, and even if material, are of little effect, given the basis for the Board‘s dismissal of the applicant‘s appeal.2
The crux of the matter before us has to do with asylum protection and consideration of substantive issues involving the applicant‘s liberty and his
Procedural requirements should not bar this claim. Considerations of equity and fairness, as well as the principle of lenity toward asylum seekers under domestic and international law, warrant our reopening of the applicant‘s case to allow adjudication of the proffered evidence of deteriorating country conditions, as well as to provide a reasoned decision under controlling law on the merits of his claim.
A. The Applicant Filed a Timely Motion to Reopen and Reconsider
At the outset, I note that the regulations, as promulgated, do not specifically provide that a motion to reopen or reconsider must have been received within the designated time period provided under the Attorney General‘s regulations, effective July 1, 1996. By comparison, the regulations governing appeals state specifically and clearly that an appeal must have been received by the time afforded for appeal. See
In its opinion, the majority makes much of this technical distinction in the regulations, arguing that despite the presence of the specific articulation of such a construction in the appeals provision, and the absence of such language in the motions provisions, the same standard as applies to the timely filing of appeals should apply to the filing of motions to reopen and reconsider. That, however, is a straw man which need not be set up only to be knocked down. Without conceding that such a distinction may be one without a difference in every case, I do not find it to be a factor on which the applicant‘s motion turns in this case. For purposes of my dissent, therefore, I will
The majority completely misreads the law that appropriately governs the proceedings in this case. Ordinarily, according to the interpretation I have conceded for purposes of this decision, a motion under
As a detainee, incarcerated in a county jail, the applicant had little control over the outgoing mail or when his motion papers would be sent out. Case law and federal rules uniformly support treating the applicant‘s motion as received at the time it was submitted for mailing to the prison authorities or deposited in the prison mail system. See Houston v. Lack, 487 U.S. 266 (1988) (holding that a prisoner‘s notice of appeal is deemed filed at the moment it is conveyed to the prison authorities for forwarding to the district court); Arango-Abadondo v. INS, 13 F.3d 610, 612 (2d Cir. 1994) (finding no jurisdictional bar where a detainee verified that he had deposited a petition for review of a final deportation order in prison internal mail system on the 90th and final day allowed for filing of such petitions); see also
The Supreme Court‘s decision in Fallen v. United States, 378 U.S. 139 (1964), on which the decision in Houston v. Lack, supra, was predicated, provides further support for finding that delivery of a timely pleading to prison authorities or a prison mail system constitutes timely receipt of the decision notwithstanding whether the actual delivery and receipt of the notice in question to the clerk of court occurs after the filing deadline.4 In Fallen, a case involving both a motion for a new trial and an appeal, the court held that when the incarcerated litigant must depend on prison authorities for mailing his motion to a clerk of court, evidence that the prisoner had delivered his notice to prison authorities for mailing to the clerk of court within the appeal period constitutes timely receipt of the documents, despite the fact that the clerk‘s office did not receive the notice until after the appeal period expired. Fallen v. United States, supra, at 142. The Supreme Court there emphasized that the “Rules are not, and were not intended to be, a rigid code to have an inflexible meaning irrespective of the circumstances.” Id. (emphasis added).
What the majority fails to understand is that under these cases, in the case of a detained alien, “receipt” is accomplished when the prisoner delivers the material to be filed to the jailer. In other words, the jailer stands in the shoes of the court or agency clerk by whom the documents must be received in order for filing to be properly accomplished by the designated deadline. See Fallen v. United States, supra, at 144 (Stewart, Clark, Harlan and Brennan, J., concurring) (opining that “the jailer is in effect the clerk of the District Court“).
If the decisions of the Supreme Court are not enough to provide persuasive legal support for this interpretation, the decisions of the United States Court of Appeals for the Third Circuit, in which the instant case arises, underscore the point.5 In United States v. Grana, 864 F.2d 312 (3d Cir. 1989), the court found that in computing the timeliness of filings which are jurisdictional in nature, any delay beyond the incarcerated litigant‘s control, attributable to prison officials, is to be excluded from the computation of time allowed the prisoner for appeal.
Although technically out of time, the court found that under Houston v. Lack, supra, and Fallen v. United States, supra, when the incarcerated litigant must depend on prison authorities for delivery of a judgement or for mailing to a clerk of court, he has lost control over his ability to comply with filing requirements. United States v. Grana, supra, at 314-15. The Third Circuit also has emphasized that in seeking to accommodate both strict jurisdictional time limitations and fairness to imprisoned pro se litigants, where the impediment to timely filing arises from the process of transmitting mail from the prison over which the prisoner has no control, the requirements of procedural rules should be liberally construed and “‘““mere technicalities” should not stand in the way of consideration of a case on its merits.“‘” United States v. Grana, supra, at 315 (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988) (quoting Foman v. Davis, 371 U.S. 178, 181 (1962)), and citing United States v. Solly, 545 F.2d 874 (3d Cir. 1976)(holding that a clerk‘s receipt of a notice of appeal meets the “filing” requirement even if the notice was not formally noted as “filed“)); see also Smith v. Evans, 853 F.2d 155, 161-62 (3d Cir. 1988) (finding application of the Houston rule warranted).
The Third Circuit has unequivocally found that a technically untimely filing due to prison delay which is beyond the prisoner‘s control cannot be used
In In re Flanagan, 999 F.2d 753 (3d Cir. 1993), the Third Circuit found that the rationale of Houston v. Lack, supra, controlled prisoners’ notices of appeal to a district court from a decision issued by a bankruptcy court. The court found that the prisoners’ notices of appeal were timely when deposited with prison officials, addressed to the clerk with postage prepaid, on the last day for filing. The court so held even though the notices were not actually received and stamped filed by the clerk until 8 days after the closing date of the appeal period. The court specifically addressed the Government‘s argument that slow mail should not justify the application of the Houston principle and that evidence of actual prison delay must be demonstrated, finding that the Supreme Court created “‘a bright-line rule, not an uncertain one.” Id. at 757 (quoting Houston v. Lack, supra, at 276). Instead, the court reasoned that “[c]ertain statements in Houston, along with its reliance on the concurrence in Fallen, indicate a broader rule—one that seems to make the prison mail room an adjunct of the clerk‘s office without regard to whether there has been an allegation of actual delay.” In re Flanagan, supra, at 759 (emphasis added).
The majority is simply wrong in reading either Houston v. Lack, supra, or my argument that Houston should extend to this case, as asserting the proposition that it is necessary to adopt some definition of “filing” other than receipt by the clerk. Their citation of authority from other circuit courts of appeals is inapposite, as such authority is directly contrary to the rulings of the Third Circuit in which this case arises and by which it is governed.6
Moreover, I contend that the better reading of this procedural rule as applied to asylum applicants facing refoulement to a country in which persecution is claimed, and to other applicants facing deportation from the United States, is the more liberal reading adopted by the Third Circuit.7 It is
The Service imprisoned an asylum seeker, not a criminal. Now, we are not even allowing that asylum seeker the benefit of a legal construction developed to protect access to the courts in such cases. It is inappropriate and contrary to superior authority to refuse to reopen the applicant‘s case under
B. The Applicant‘s Motion Adequately Asserts Changed Circumstances Affecting His Asylum Claim
Where a movant seeks reopening or reconsideration by a motion that is considered to be untimely or in excess of the single motion allowed by the regulations, he must show changed circumstances.8
The majority cites no authority for its implicit contention that the concept of changed circumstances requires a new basis for an asylum claim. Such is directly inapposite to the holdings in other cases joined by many members of the instant majority. See, e.g., Matter of C-A-L-, 21 I&N Dec. 754, 757 (BIA 1997) (finding the guerrilla presence in Guatemala to have declined, so that “the threat to the general population has decreased“); see also Matter of T-M-B-, 21 I&N Dec. 775, 777 (BIA 1997) (finding that the State Department profile indicates that the agent of persecution has decreased in number of adherents and has lost some degree of ability to operate throughout the country). And, I would like to know what authority supersedes that of the Handbook which recognizes that the cumulative10 effect of several incidents ascertained in light of a wide range of circumstances may constitute a basis for a finding of a well-founded fear of persecution. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para. 201, at 48 (Geneva 1992)(“Handbook“); see also id. para. 53, at 14-15; Masieh v. INS, 73 F.3d 579 (5th Cir. 1996); Shirazi-Pirza v. INS, 14 F.3d 1424 (9th Cir. 1994).
On April 7, 1997, the Attorney General of the United States found that conditions have so deteriorated in Liberia that it was necessary and appropriate to redesignate Liberia within the Temporary Protected Status (“TPS“) program which affords protection from refoulement to nationals of countries so designated. Not only did the Attorney General extend the period of protection under TPS for those Liberians already granted such status, she designated Liberia anew, with the result that Liberians within the United States
Nevertheless, the majority persists in concluding that the applicant has not shown changed circumstances. Remarkably, the majority finds that the continued and dramatic increase in violence, war, and tribal and political persecution do not constitute “materially changed circumstances” that would affect the applicant‘s claim that he faces persecution on account of his desertion from coerced and involuntary participation in the Charles Taylor paramilitary forces in which he would have had to commit human rights abuses. The majority dismisses the applicant‘s new documentary evidence of current country conditions and the Attorney General‘s April 1997 designation of Liberia in the TPS program, of which we may take administrative notice at least for purposes of consideration of the applicant‘s motion under
It is critical that we not dismiss such “additional evidence” or diminish its significance in relation to the requirement under
I believe that “changed circumstances,” the additional requirement imposed before we will grant an out of time or number motion to reopen in the asylum context under the regulations, encompasses not only foreign electoral changes, or other changes in government which might extinguish or limit relief available to an asylum seeker, but both qualitative and quantitative changes which may enhance the likelihood of persecution and require us to extend relief. Moreover, I find that affirmative and material evidence submitted with the applicant‘s motion and responsive pleadings establishes a prima facie showing of changed circumstances sufficient to warrant reopening of the applicant‘s case for a hearing.11
Furthermore, it is fair to say that the majority has taken administrative notice of recent electoral events in which Charles Taylor has become President. This should require consideration of how the applicant‘s alleged persecutor being elected President affects the risk of persecution to him personally. The cloaking of Charles Taylor and his forces with state power would appear to have enhanced and not diminished the likelihood of the applicant‘s fear of persecution. If anything, the recent July election of Charles Taylor underscores the necessity for a reexamination of the applicant‘s claim in light of all the pertinent facts. At a minimum, in light of the legally erroneous adjudication of the applicant‘s original appeal by this Board, discussed below, the prima facie evidence submitted and additional changes of which the majority now takes administrative notice warrant reopening.
C. Board Consideration of the Applicant‘s Motion by Certification is Warranted to Correct Errors of Law and Comport with International Refugee Protections
If the majority is determined not to recognize the applicant‘s motion as timely filed and refuses to acknowledge that evidence of changed conditions in Liberia warrant reopening, we should, at the very least, exercise our certification authority under
The Third Circuit favors a meaningful hearing in asylum cases. Marincas v. INS, 92 F.3d 195 (3d Cir. 1996). In addition, I believe our decision below is erroneous as a matter of law. See Fengchu Chang v. INS, 119 F.3d 1055 (3d Cir. 1997) (finding the Board to have erred in mischaracterizing what constitutes a political opinion held by the victim of persecution, as well as what constitutes politically motivated action on the part of the persecutor). Such an error, alone, without a showing of changed circumstances, constitutes the type of situation in which our authority to reopen under certification should be exercised.
The Immigration Judge found the applicant to be credible and recognized that the applicant held a political view which he had expressed when he said the guerrilla war between different factions in Liberia was “unfair and unjustified.” Contrary to our finding in support of denying the respondent‘s prior appeal—that the applicant did not desert the Charles Taylor forces due to his desire not to participate in human rights violations or other acts condemned by the international community—the applicant stated, as part of his explanation for resisting recruitment and opposing the war, that many innocent people were suspected of being collaborators, giving out information about the guerrillas, and were therefore murdered by Charles Taylors’ forces. Similarly, as another part of an explanation for why he found the war unfair and did not want to participate in it, he testified that once he was recruited forcibly by the Charles Taylor National Patriotic Liberation Front (“NPFL“), he was forced to fight against and try to kill his compatriots.
The applicant testified that he accompanied the recruiters only on pain of death. He testified further from personal observation that he witnessed a group who refused to go with the NPLF killed, and that he saw a group of friends who tried to escape killed. These circumstances have only been exacerbated by recent developments in Liberia.
We have held that punishment for refusing to serve in the military in Afghanistan, under circumstances in which young men were dragooned and impressed into service in the place of those who refused to fight against their compatriots, differs from mere refusal to avoid military service and would constitute persecution on account of political opinion. Matter of Salim, 18 I&N Dec. 311 (BIA 1982). Furthermore, in M.A. v. United States INS, 858 F.2d 210 (4th Cir. 1988), the court reasoned that draft evasion can be an expression of political opposition. The factors of refusal to commit violence against fellow countrymen and the type of punishment inflicted for desertion are relevant in determining asylum eligibility, and the Board must take into consideration the genuineness of the applicant‘s opposition and the type of treatment he fears upon return. Id. at 216; see also Fengchu Chang v. INS, supra, at 8-9, 11.
Contrary to our conclusion on appeal that the applicant “never expressed any” political opinion, he told the recruiters that he did not want to join them and didn‘t agree with what they were doing, and stated he wanted to live peacefully. Cf. INS v. Elias-Zacarias, 502 U.S. 478 (1992); Fengchu Chang v. INS, supra, at 7 (ruling that to “characterize this action . . . as anything other than political narrows the term ‘political’ beyond recognition“). While statements in opposition to the “unfair war” and the “killing of his compatriots” may not express a sophisticated political analysis, it is certainly unreasonable to say that opposition to a war and to the killing of one‘s own countrymen is not a political view. Fengchu Chang v. INS, supra, at 7 (citing Osorio v. INS, 18 F.3d 1017, 1029 (2d Cir. 1994)).12 Finally, since the applicant‘s claim was heard before the Immigration Judge and considered by the Board on appeal in 1995, we have clarified that the proper standard to be applied to an applicant‘s claim is whether he has proven he has a belief or characteristic offensive to the agent of persecution, and the alleged persecutor has the inclination and ability to harm him, at least in part, on account of that belief or characteristic. Matter of S-P-, 21 I&N Dec. 486 (BIA 1996); Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).13
The restrictive interpretation applied by the majority to the applicant‘s motion is unwarranted under the facts and circumstances before us. While the regulations may strive in part to eliminate “successive . . . appeals and motions,” Stone v. INS, 514 U.S. 386, 115 S. Ct. 1537, 1546 (1995), this is not a case where the applicant has qualified for a new form of relief by virtue of delaying his deportation. He has been in Service detention throughout and the Service apparently has not chosen to deport him until a significant period of time has passed. During that period not only have conditions changed in Liberia, but infirmities in the final administrative order have been brought to our attention. Neither the regulations nor the Supreme Court‘s interpretation of a legitimate desire on the part of Congress to remove excludable and deportable aliens in a timely fashion preclude our reopening and reconsidering a decision in the case of a credible asylum seeker under the circumstances presented here.
I cannot conclude that the applicant has received a reasoned decision on appeal to the Board when that decision is founded on factual errors and questionable conclusions of law. I believe that a reopened hearing is likely to lead to a different result. Matter of Coehlo, supra. Even apart from finding the applicant‘s evidence of changed circumstances to be ample, I would reopen this case to properly consider, and, if necessary, supplement or clarify the record, and to render a reasoned decision based on applicable law.
II. CONCLUSION: THE MOTION SHOULD BE GRANTED
The applicant is due reopening of his case pursuant to his Motion to Reconsider/Reopen to the Board of Immigration Appeals, which he signed and delivered to or placed in the Lehigh County jail mail system on September 25, 1996. The applicant also is due reopening of his case on its merits given changed circumstances in Liberia and the errors in our denial of his appeal. Although the agents of persecution and the type of persecution feared by the applicant may not have changed in character, the circumstances on which the applicant‘s fear of persecution is based have changed materially both in scope and degree. Denial of reopening and reconsideration in the face of such acknowledgment is inconsistent with the regulations and with our international refugee obligations. The motion was timely filed and received under applicable law and notions of fairness.