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Sankoh v. Mukasey

August 13, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A76-645-986.

The opinion of the court was delivered by: Flaum, Circuit Judge


Before FLAUM, EVANS, and TINDER, Circuit Judges.

Saidu Sankoh is a native of Sierra Leone seeking asylum, withholding of removal, and relief under the Convention Against Torture. An immigration judge denied his applications and ordered him removed. The Board of Immigration Appeals concurred in the immigration judge's conclusion and dismissed Sankoh's appeal. Sankoh then moved to this Court, challenging the agency's decision under several theories. Finding no error, we affirm.

I. Background

Saidu Sankoh is a Sierra Leonean national who arrived in the United States in 1996. When his visitor's visa expired in early 1997, the INS issued him a notice to appear charging him with being removable under 8 U.S.C. § 1227(a)(1)(B). After a number of extensions not relevant here, his removal proceedings finally began in 2005. There, Sankoh conceded his removability and requested relief in the form of withholding of removal, asylum, and protection under Article 3 of the Convention Against Torture. The immigration judge conducted two hearings for these claims in January and June 2005 during which Sankoh testified and submitted a number of documents to substantiate his requests for relief. The court's inquiry centered on Sankoh's experiences prior to leaving Sierra Leone and what treatment he could expect should he return.

Much of the evidence came from Sankoh's testimony. His story was one charted by the political currents of Sierra Leone-retold below as he presented it, with modifications where necessary. Sankoh told the court that he was born in 1946 to a family of some political prominence. In 1970, when political conditions in the country deteriorated, Sankoh's family sent him to safety in Germany. He spent fourteen years there, marrying a German woman, fathering a child with her, learning the language, and obtaining German residency. But after he divorced his German wife in 1984, he returned to Sierra Leone, where he set up shop as a printer in the country's capital, Freetown. Soon the political turmoil that had forced Sankoh from Sierra Leone would flare anew, only this time much of it would be caused by Sankoh's uncle, Foday Sankoh, and the rebel group that he led, the Revolutionary United Front.

The RUF was a rebel group bent on overthrowing Sierra Leone's government, although it did not espouse any particular ideology. The group was led by Foday Sankoh, supported by the now-deposed Liberian president Charles Taylor, and was responsible for Sierra Leone's decade-long civil war. The brutal war was notable for the use of child soldiers, the atrocities committed-including the widespread practice of amputation and mutilation against civilians-and the interplay between the war and the country's valuable diamond mines. See generally Barbara Crossette, Sierra Leone Rebel Leader Reportedly Smuggled Gems, N.Y. TIMES, May 14, 2000; Howard W. French, African Rebel With Room Service, N.Y. TIMES, Jun. 23, 1996; see also ISHMAEL BEAH, A LONG WAY GONE: MEMOIRS OF A BOY SOLDIER (Farrar, Straus & Giroux 2007).

This case turns on Sankoh's involvement with his uncle and the RUF from 1992 through 1994. Sankoh could not deny his connection to the group, but he sought to prove before the immigration court that he was an unwilling conscript to the RUF's operations, a version of events that the immigration judge and Board ultimately found to be incredible. As Sankoh described it to the court, his uncle and a band of RUF soldiers first asked him to help the cause in 1992. He testified that they wanted his help moving "something" from abroad into Sierra Leone. Sankoh told the immigration judge that his confronters were purposefully opaque in describing what this "something" was; as his asylum application recounted things, however, they told him he would be procuring guns. In any event, Sankoh's uncle considered him the perfect candidate for transacting business abroad. He had a "valid passport to travel to Europe," which meant he could travel freely throughout the continent. And his Sierra Leonean citizenship meant that he could import goods into the country as well, something a foreigner could not do. In short, he was someone that could function on both sides of a European transaction-both in helping to procure goods abroad and in shepherding them into Sierra Leone. Sankoh told the immigration judge that he initially refused the offer. But after his uncle struck his foot with the butt of a rifle and threatened further "consequences" if he did not cooperate, he acquiesced. He also submitted that he went along because, if he did not, "the rebels would kill me because they had disclosed important secret information (such as hide-outs) to me when 'requesting' my help to buy weapons."

Eight trips to various points in Europe would ensue, and, according to Sankoh, they all followed the same script. The RUF would make all the arrangements, and his escort would be an Eastern-European man named Alex, who met Sankoh along his path to Europe. Alex would then drop Sankoh off at a hotel, take his passport, and leave him until all the shipments had been arranged. He said that he never left the hotel or entertained options of fleeing because he thought he was being watched. Instead, he would stay in his hotel room most of the time he was away, and at some point Alex would reappear, transaction complete, and tell Sankoh it was time to go. When he arrived back in Sierra Leone, he would then have to pick up a shipment in his name at customs. Sankoh claimed never to have known exactly what was in the shipment. Someone in the RUF told him it was "second-hand tires," although he surmised that it was either "weapons, or medical supplies." At one point he read the word "rifles" in Dutch along the side of one parcel, which he understood due to its similarity to German. As mentioned above, however, this version is in tension with his asylum applica- tion where he claimed he was told the content of the shipments from the outset. Once through customs, Sankoh would then help get the "supplies to the rebels in the bush" or, as he described his treatment, the RUF would use him as a "pack animal[] to carry supplies."

Sankoh claimed that his relationship with the RUF soured after his eighth and last trip to Europe when he was attacked by several of the group's members. After stopping for the night while transporting a shipment to rebel troops, someone threw scalding water on his back and four RUF members then gang-raped him. He told the immigration judge that the rape was so forceful that he needed to later undergo surgery to fix an inguinal hernia that had resulted. Immediately after his rape, Sankoh received some comfort from an RUF member who was also moving materiel through the bush. The person was able to speak German and, when he heard what had happened to Sankoh and that he was planning to escape, gave him some advice on the best way to do it. Sankoh said that he made his move: marching through the bush, flagging down a truck on a nearby road, and making his way back to Freetown. Once in Freetown, Sankoh says that he received help leaving the country from a friend at the airport, Shaka Kanu. Kanu gave him an airplane ticket and some cash, and, on February 6, 1994, he left Sierra Leone bound for Europe.

After a brief detour through Belgium, Sankoh arrived by train in Frankfurt, Germany. There, he learned that the German government had revoked his residency due to the length of his absence. And when he requested asylum, his request was denied. Sankoh was able to remain in Germany for nearly two-and-a-half years, during which time, he said he received medical treatment for malaria, high blood pressure, and the hernia that he claims resulted from the rape. But after the German government denied all of his requests to remain, Sankoh left for the United States in July 1996, eventually overstaying his visa and receiving the notice to appear.

To support his testimony, Sankoh also provided medical records of his surgery in Germany to show his inguinal hernia. He also gave the court two letters from two men in Sierra Leone-one, Abu Koroma, claiming to be the RUF member who helped him escape after his rape and another, Dr. Kanu, saying he was Sankoh's "close friend." The two claimed to know each other. Koroma, who had helped Sankoh escape after his rape, said that he learned Sankoh's identity when he was visiting Dr. Kanu for treatment. The doctor had a picture of Sankoh on a wall, and when Koroma saw it, he recognized Sankoh from the jungle and recounted the story of his escape. The letters submitted to the court told the story of this serendipitous encounter as well as the details surrounding Sankoh's rape.

Sankoh also claimed that the Sierra Leonean government would imprison him should he return. He based this claim on what he said had happened to his family after he left. According to Sankoh, soon after he left Sierra Leone, his mother's house was firebombed and destroyed, apparently in an effort to target his cousin. Sankoh provided letters from a friend and the family lawyer describing the bombing, the government's efforts to find Sankoh's children, and the government's threats that Sankoh would meet a similar fate if he returned. He also claimed that the government had been searching for him in his former apartment in Freetown since he left; officials thought that he had been a gunrunner for the RUF, meaning he would be arrested and imprisoned if he ever returned.

At the end of the hearing and just prior to closing arguments, Sankoh's attorney objected to the immigration judge's decision not to admit a State Department country report for Sierra Leone from 1993. From 1997 through the proceedings in 2005, Sankoh had submitted a number of documents setting out the country conditions in Sierra Leone for the years in which he was living there. The immigration judge who would ultimately hear Sankoh's case had a 100-page limit on documentary evidence, and Sankoh's counsel was unsure as to whether these previously submitted documents would count against this limit. Efforts to clarify the court's position on the limit failed. And when proceedings began, Sankoh's counsel submitted 65 pages of documents focusing on the country conditions in Sierra Leone since his original application for asylum-essentially an update to the previously submitted documents. When the immigration judge later told Sankoh's attorney that the previous documents were not on file, she did not object, instead proceeding apace with Sankoh's case. After Sankoh had presented his case, the judge asked whether "there [was] any other document that hasn't been considered that you want me to consider," and Sankoh's attorney indicated that there was not. The immigration judge then told the parties what issues he wanted addressed in closing ...

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