Filed: Dec. 23, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-23-2004 Johnson v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1931 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Johnson v. Atty Gen USA" (2004). 2004 Decisions. Paper 41. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/41 This decision is brought to you for free and open access by the Opinions o
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-23-2004 Johnson v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1931 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Johnson v. Atty Gen USA" (2004). 2004 Decisions. Paper 41. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/41 This decision is brought to you for free and open access by the Opinions of..
More
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-23-2004
Johnson v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1931
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Johnson v. Atty Gen USA" (2004). 2004 Decisions. Paper 41.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/41
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1931
JIMMY JOHNSON,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
(No. A73-149-183)
Argued October 28, 2004
Before: NYGAARD, AM BRO, and GARTH, Circuit Judges
(Opinion filed December 23, 2004 )
Visuvanathan Rudrakumaran, Esquire (Argued)
875 Avenue of the Americas
New York, NY 10001
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General
United States Department of Justice
Civil Division
Donald Keener
Assistant Director
Alison Marie Igoe
Senior Litigation Counsel
Douglas E. Ginsburg, Esquire
John M . McAdams, Jr., Esquire
Janice K. Redfern, Esquire
Norah A. Schwarz, Esquire (Argued)
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
OPINION
AM BRO, Circuit Judge
Jimmy Johnson petitions for review of the order of the Board of Immigration
Appeals (“BIA”) denying his application for asylum.1 That order reversed the decision of
the Immigration Judge (“IJ”). We grant the petition.
I. Factual and Procedural History
Johnson, a native and citizen of Liberia, arrived in the United States on September
2, 1994. The Immigration and Naturalization Service (“INS”)2 detained Johnson and
1
Johnson also requests that we reverse the portion of the BIA’s decision denying his
application for withholding of removal under the Immigration and Nationality Act
(“INA”). However, Johnson makes no substantive arguments regarding his withholding
claim, and we therefore deem it waived. See Laborers’ Int’l Union of N. Am. v. Foster
Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994) (a passing reference to an argument in a
party’s brief is insufficient to bring the issue before this Court).
2
As a result of the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat.
2135 (2002), the INS has ceased to exist as an agency within the Department of Justice,
2
placed him in exclusion proceedings for arriving in the United States without valid
documentation. Johnson then applied for asylum and withholding of removal.
On March 23, 1995, the IJ held a hearing on Johnson’s claims. Johnson testified
that, on September 20, 1992, he had been forcibly conscripted into the army of the
National Patriotic Front of Liberia (“NPFL”)— a group associated with Charles Taylor,
who later became the President of Liberia. Johnson escaped in 1994 and testified that he
feared he would be killed if returned to Liberia. Although the IJ did not believe some
aspects of Johnson’s story, he gave him “the benefit of the doubt” and determined that
Johnson was credible. The IJ, however, denied Johnson’s application for asylum and
withholding of removal on the ground that Johnson had not suffered past persecution on
account of political opinion or any other ground enumerated in the INA. He also found
that Johnson was not likely to suffer future persecution. The BIA affirmed the IJ’s
decision on August 8, 1995.
On September 25, 1996, Johnson filed a pro se motion to reopen and/or reconsider
and was granted a stay of deportation pending the resolution of this motion. On July 31,
1997, the BIA determined that the motion was untimely and thus it lacked jurisdiction to
hear it. The BIA also considered whether Johnson’s untimely motion to reopen his
asylum application fell within the exception for reopening out of time based on changed
and its enforcement functions have been transferred to the Department of Homeland
Security.
3
country conditions and concluded that it did not. On February 9, 1999, our Court
dismissed for lack of jurisdiction Johnson’s petition for review of the BIA’s 1997 order.
On May 12, 1999, Johnson, represented by his current counsel, filed another
motion to reopen to seek protection under the Convention Against Torture (“CAT”),
implemented by the Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277 § 2242, 112 Stat. 2681, 2822 (1998). The BIA granted the motion and remanded
the matter to the IJ for consideration of Johnson’s CAT claim. At his second hearing
before the IJ, Johnson testified, inter alia, that (1) he believed the Liberian civil war was
unjust, (2) the NPFL espoused that “if you do not follow them, they view you as
supporting other groups,” and (3) people who were caught trying to leave the NPFL were
killed. The IJ proceeded to grant Johnson asylum, withholding of deportation, and relief
under CAT.
The BIA held, on January 10, 2001, that the IJ had erred as a matter of law in
considering Johnson’s applications for asylum and withholding of removal because the
BIA’s remand order was limited to consideration of his CAT claim. The BIA affirmed
the IJ’s grant of relief under CAT and vacated the grants of asylum and withholding of
removal. Johnson again came to our Court, and it granted his petition for review of the
portion of the BIA’s order vacating the IJ’s grant of asylum and withholding of removal
and remanded to the BIA for further consideration. See Johnson v. Ashcroft, 286 F.3d
696 (3d Cir. 2002).
4
On remand, the BIA acknowledged that it had not been clear when remanding
Johnson’s case to the IJ. It then proceeded to address Johnson’s asylum and withholding
of removal claims on the merits. In doing so, the BIA vacated the IJ’s decision granting
Johnson asylum and withholding of removal, finding that Johnson could not “make out a
claim that any adverse treatment he fears in Liberia is on account of a protected ground.”
As for the CAT claim, the BIA reiterated its affirmance of the IJ’s grant of relief.
Johnson petitions yet again for review of the portion of the BIA’s decision denying
him asylum.3
II. Jurisdiction and Standard of Review
Under former INA § 106, as amended by the transitional rules for judicial review
in § 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, 100 Stat. 3009-456, 3009-626 (Sept. 30, 1996),
we have jurisdiction to review a final order of removal by the BIA. IIRIRA’s transitional
rules apply to Johnson’s petition because he was placed in deportation proceedings before
April 1, 1997, and the BIA entered a final order of removal after October 30, 1996.
This case involves factual findings made by the BIA. We must uphold those
3
Even though Johnson was granted relief under CAT, a final order of removal exists
here because CAT protection does not affect the finality of such a removal order. See 8
C.F.R. § 208.16(f) (an alien granted relief under CAT may be deported to a third country
other than the one to which removal has been withheld or deferred); 8 C.F.R.
§ 208.18(c)(1), (c)(2) (the Secretary of State may seek assurances that the alien will not
be tortured if removed and the Attorney General may order removal if he determines that
the assurances are sufficiently reliable to allow it).
5
findings if they are supported by substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d
293, 296 (3d Cir. 2004).
III. Discussion
The Attorney General and his delegates may grant asylum to any alien who
qualifies as a refugee under the INA. 8 U.S.C. § 1158(b)(1). A refugee is an alien who is
“unable or unwilling” to return to his country of origin “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). Aliens have the
burden of supporting their asylum claims. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002). “Testimony, by itself, is sufficient to meet this burden, if ‘credible.’”
Id. (citing 8
C.F.R. § 208.13(a)). To establish eligibility for asylum, the applicant must demonstrate
past persecution by substantial evidence or a well-founded fear of persecution that is
subjectively and objectively reasonable. Lukwago v. INS,
329 F.3d 157, 177 (3d Cir.
2003).
Here the BIA denied Johnson’s asylum claim because it found that he “ha[d] failed
to show that he was persecuted on account of his political opinion, and that his
‘persecution’ was not solely the result of the guerillas’ aim in seeking to fill their ranks in
order to carry out the war with the government and pursue their political goal, their
political motive being irrelevant.” In reaching this conclusion, the BIA relied heavily on
the Supreme Court’s decision in INS v. Elias-Zacarias, 502 U.S. 478 (1992), that forcible
6
recruitment into military service, without more, does not constitute persecution on
account of political opinion. Our Court has held, however, that Elias-Zacarias does not
foreclose a claim for asylum based on forced conscription by a guerilla organization if
other factors are present. Lukwago, 329 F.3d at 169 (“Even if forced conscription by a
guerilla organization alone would not qualify a victim for asylum[,] that does not mean
that, in appropriate circumstances, it cannot constitute persecution.”). Specifically, an
applicant may be eligible for asylum if his forced conscription was on account of one of
the grounds enumerated in the INA. Cf.
id. at 170 (stating that the petitioner’s past
persecution, which included forced military service, could be a basis for asylum if it was
on account of petitioner’s race, religion, nationality, membership in a particular social
group, or political opinion); see also Melkonian v. Ashcroft,
320 F.3d 1061, 1068 (9th
Cir. 2002) (noting that Elias-Zacarias would not foreclose an applicant’s asylum claim
based on forced conscription when the applicant testified that he was targeted for
conscription based on his ethnicity and religion).
In this case, in addition to its reliance on its interpretation of Elias-Zacarias, the
BIA found that Johnson had failed to show that he was persecuted other than as a
consequence of the guerillas’ desire to add members to fight for their side. It also
addressed whether Johnson’s forced conscription was on account of political opinion, and
the answer was no. We must therefore determine whether these conclusions are
supported by substantial evidence.
7
We have recognized that “‘persecution may [also] be on account of a political
opinion that . . . the foreign government has imputed to [the applicant.]’” Lukwago, 329
F.3d at 181 (quoting Balasubramanrim v. INS,
143 F.3d 157, 165 n.10 (3d Cir. 1998)).
On appeal, Johnson argues that if he is deported to Liberia, the NPFL will impute an anti-
NPFL political opinion to him on the basis of his desertion from that group. He supports
this position with several statements from his testimony at his second hearing before the
IJ. At that hearing, Johnson testified that he believed the Liberian civil war was unjust
and that the NPFL had the view that “if you do not follow them, they view you as
supporting other groups.” He also testified that people who were caught trying to leave
the NPFL were killed.
The IJ credited Johnson’s testimony and the BIA did not disturb this credibility
finding. In reviewing the IJ’s decision on asylum, however, the BIA did not discuss
whether Johnson had established imputed political opinion. Moreover, the BIA did not
mention Johnson’s testimony that the NPFL attributes an opposing political view to those
who do not follow it. Because the BIA, in reviewing the IJ’s decision on Johnson’s
second asylum hearing, did not even consider Johnson’s credible testimony from that
hearing—which is crucial to determining whether Johnson has established past
persecution or a well-founded fear of persecution on account of political opinion or
imputed political opinion—we cannot say that the BIA’s decision is supported by
8
substantial evidence.4
IV. Conclusion
Thus, we grant the petition and remand Johnson’s case to the BIA for further
proceedings.
4
The BIA did not explicitly address whether Johnson had a well-founded fear of
persecution presumably because it found that any adverse treatment Johnson feared was
not on account of political opinion. Persecution includes “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.” Fatin v. INS, 12 F.3d 1223, 1240 (3d Cir. 1993). If so, does not the BIA’s
decision that Johnson was entitled to relief under CAT (in other words, that it was more
likely than not that Johnson would be tortured upon return to Liberia) require a finding
that Johnson has established that the adverse treatment he fears rises to the level of
persecution?
9
10
