Hennepincountyofficeofmulti-Culturalservices

JuliaM.Morgan

ImmigrantAdvocate

HennepinCountyOfficeofMulti-CulturalServices

330South12thStreet,Suite3700

Minneapolis,MN55404

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BOARD OF IMMIGRATION APPEALS

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In the Matter of: )

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E- O- ) File No.: A-##-###-###

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In Removal Proceedings )

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REDACTED RESPONDENT’S BRIEF

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TABLE OF CONTENTS

STATEMENT OF ISSUES 1

SUMMARY OF ARGUMENT 1

FACTS AND PROCEDURAL HISTORY 3

Facts from the Record 3

Country Conditions in Uganda 7

The Immigration Judge’s Decision 8

STANDARD OF REVIEW 9

ARGUMENT 9

I. THE BOARD SHOULD AFFIRM THE IJ’S GRANT OF ASYLUM BECAUSE E- SATISFIED THE FILING REQUIREMENTS. 9

a. The IJ correctly concluded that E-’s “unaccompanied minor” status is an “extraordinary circumstance” that excuses an untimely asylum filing. 10

b. E-’s persecution and the effects of his trauma constitute an “extraordinary circumstance” that excuses an untimely asylum filing. 11

II. THE BOARD SHOULD AFFIRM THE IJ’S GRANT OF ASYLUM BECAUSE THE IJ PROPERLY CONCLUDED THAT E- IS NOT STATUTORILY BARRED UNDER THE “PERSECUTOR” BAR OR THE “SERIOUS, NONPOLITICAL CRIMES” BAR. 12

a. E- is not a persecutor. 12

1. The government’s attempt to invoke the “persecutor” bar contravenes the Supreme Court’s decision in Fedorenko and the Eighth Circuit’s decision in Hernandez. 13

2. E-’s allegedly persecutory acts were not committed “on account of” one of the grounds enumerated in the statute. 15

b. E- has not committed “serious, nonpolitical crimes” outside the United States. 15

1. The IJ’s decision not to apply the bar conforms with basic norms of international law – binding upon the United States in the absence of conflicting domestic law – that recognize that child soldiers are victims, not criminals. 16

2. The IJ’s decision not to apply the bar was proper because E- was an unwilling participant in LRA activities and complied with orders only under extreme duress. 17

3. The IJ’s decision not to apply the bar was proper because at the time of his captivity E- was only 11 or 12 to 13, well under the age of criminal responsibility. 17

III. THE BOARD SHOULD AFFIRM THE IJ’S GRANT OF ASYLUM BECAUSE THE IJ PROPERLY CONCLUDED THAT E- QUALIFIES AS A REFUGEE. 18

a. E- suffered past persecution by the LRA on account of his membership in a particular social group, the Acholi people. 18

1. E-’s treatment by the LRA – which included the destruction of his home, the kidnapping of his family, two years’ captivity, repeated beatings, whippings, threats of death, and gunshot wounds – clearly rises to the level of persecution. 18

2. The government of Uganda is unable to control the LRA. 20

3. The LRA persecuted E- “on account of” his membership in a particular social group – the Acholi people. 21

b. E-’s past persecution by the LRA creates a presumption of a well-founded fear of future persecution that the government has failed to rebut. 23

1. E- cannot safely relocate within Uganda. 23

2. Even if E- could relocate safely within Uganda, it would be unreasonable for him to do so. 24

c. E- has a well-founded fear of future persecution. 25

1. E- established a well-founded fear of future persecution by the government of Uganda on account of membership in a particular social group – the Acholi people. 25

2. E- established a well-founded fear of future persecution by the government of Uganda and by the LRA on account of membership in a particular social group – former child soldiers in the LRA. 28

CONCLUSION 31

TABLE OF LEGAL AUTHORITIES

Cases

Matter of Acosta, 19 I&N Dec. 211 (BIA 1995) 21, 28

Behzadpour v. United States, 946 F.2d 1351 (8th Cir. 1991) 25

Bellido v. Ashcroft, 367 F.3d 840 (8th Cir. 2004) 19

El Himri v. Ashcroft, 378 F.3d 932 (9th Cir. 2004) 10

Fedorenko v. United States, 449 U.S. 490 (1981) 13

Fisher v. INS, 291 F.3d 491 (8th Cir. 2002) 18

Hernandez v. Reno, 258 F.3d 806 (8th Cir. 2001) 20

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 25

INS v. Elias-Zacarias, 502 U.S. 478 (1992) 19, 25

Knezevic v. Ashcroft, 367 F.3d 1206 (9th Cir. 2004) 23

Lukwago v. Ashcroft, 329 F.3d 157 (3rd Cir. 2003) 19, 20, 22, 28

McMullen v. INS, 788 F.2d 591 (9th Cir. 1986) 16

Melecio-Saquil v. Ashcroft, 337 F.3d 983 (8th Cir. 2003) 25

The Paquete Habana, 175 U.S. 677 (1900) 17

Regalado-Garcia v. INS, 305 F.3d 784 (8th Cir. 2002) 18

Matter of Rodriguez-Majano, 19 I&N Dec. 811 (BIA 1988) 13

Matter of S-P-, 21 I&N Dec. 486 (BIA 1996) 21

Matter of Y-C-, 23 I&N Dec. 286 (BIA 2002) 11

Statutes

6 U.S.C. § 279(b)(1)(A) 10

6 U.S.C. § 279(g)(2) 10

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) 18

INA § 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B) 9

INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D) 9

INA § 208(b)(2)(A)(i), 8 U.S.C. § 1158(b)(2)(A)(i) 8, 12

INA § 208(b)(2)(A)(iii), 8 U.S.C. § 1158(b)(2)(A)(iii) 15

INA § 208(b)(2)(A)(iv), 8 U.S.C. § 1158(b)(2)(A)(iv) 3

18 U.S.C. § 5031 18

Regulations

8 C.F.R. §§ 208.13(b)(3)(ii), 1208.13(b)(3)(ii) 23

8 C.F.R. §§ 208.13(b)(1), 1208.13(b)(1) 23

8 C.F.R. §§ 208.13(b)(3), 1208.13(b)(3) 24

8 C.F.R. §§ 208.4(a)(5), 1208.4(a)(5) 8

8 C.F.R. §§ 208.4(a)(5)(i), 1208.4(a)(5)(i) 11

8 C.F.R. §§ 208.4(a)(5)(ii), 1208.4(a)(5)(ii) 10

8 C.F.R. § 1003.1(d)(3)(i) 9

8 C.F.R. § 1003.1(d)(3)(ii) 9

8 C.F.R. § 1003.1(d)(3)(iv) 7, 16

Other Authorities

Convention on the Rights of the Child 18

Protocol relating to the Status of Refugees, 606 U.N.T.S. 267 (1967) 16

Rome Statute of the International Criminal Court, July 17, 1998, 37 I.L.M. 999 17

UNHCR advisory opinion regarding international standards for exclusion from refugee status 16

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status 16

U.S.Dep’tofState, Uganda Country Reporton HumanRights Practices- 2005 (Mar.2006) 7, 21, 23, 30

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A-##-###-###

STATEMENT OF ISSUES

1.  Should the Board affirm the Immigration Judge’s finding of an “exceptional circumstance” that excuses the one-year asylum application deadline where E- was an unaccompanied minor and suffered persisting effects of persecution?

2.  Should the Board affirm the Immigration Judge’s decision not to apply the “persecutor bar” or the “serious, non-political crimes” bar to E- where E- was only 11 years old when, under extreme duress, he unwillingly participated in LRA activities; the acts he was forced to commit were directed against his own people and his only motive in committing them was to avoid being killed; E- voiced his opposition to the LRA’s murderous practices; he made no effort to conceal his involvement with the LRA from U.S. officials; and where the UNHCR and well-established international norms recognize that child soldiers are victims, not criminals?

3.  Should the Board affirm the Immigration Judge’s grant of asylum to E-, an ethnic Acholi and LRA child soldier, where:

·  the LRA kidnapped E-’s parents, held him captive for two years, threatened him with death, shot him twice, and repeatedly beat and whipped him;

·  after his escape to Kampala, the Ugandan capital, E- was detained by Ugandan officials on suspicion of being an LRA spy, was viewed with suspicion because of his Acholi ethnicity and because his visible scars and wounds identified him as a former LRA abductee, and he could only attend school under an assumed identity and after payment of a bribe to government officials; and

·  the persecution of former child soldiers by Ugandan government forces and the LRA practice of seeking out escaped child soldiers for brutal reprisals are extensively documented?

SUMMARY OF ARGUMENT

The respondent, E- O-, is an ethnic Acholi youth from Uganda who, when only 11 years old, was forced under threat of death to serve as a child soldier in the Lord’s Resistance Army (LRA), a notorious rebel paramilitary group that has waged a 19-year war against the government of Uganda. The LRA kidnapped E-’s family, repeatedly beat, whipped, and shot him, and threatened him with death. Although he was finally able to escape the LRA, E-’s Acholi ethnicity and immutable status as a former child soldier combine to place him at tremendous risk throughout Uganda, where both sides in the conflict now have motive to persecute him.

Eligibility for Asylum

As the Immigration Judge properly concluded, E- has established his eligibility for asylum in several ways.

First, E- established that he suffered past persecution by the LRA on account of his Acholi ethnicity. The LRA’s well-documented practice of destroying Acholi villages and kidnapping and brutalizing the Acholi people led the IJ to conclude that “[t]he LRA…has generally waged what could be a scorched earth campaign against the Acholi.” I.J. at 18-19.

Second, E- established a well-founded fear of future persecution by the government of Uganda both on account of his Acholi ethnicity and on account of his status as a former child soldier in the LRA. As the IJ noted, the Special Representative to the U.N. Secretary General on Children and Armed Conflict has “accused the Ugandan government of harboring a dark agenda against the Acholi.” ROP Exh. 2.; I.J. at 11. In addition, the persecution of former-LRA child soldiers by Ugandan forces is extensively documented in the record.

Third, E- established a well-founded fear of future persecution by the LRA on account of his immutable status as a former child soldier. The LRA’s reprisals against escaped child soldiers are severe, as the IJ noted in his decision, citing an April 2001 INS article stating that “[t]he treatments meted out to children who escape from the LRA and then fall back into their hands suggest that a person within this category would be in grave danger...”). I.J. at 13 (citing ROP Exh. 8 at 117).

Inapplicability of the Statutory Bars

The IJ was also correct to dismiss the government’s efforts to raise several statutory bars to E-’s eligibility for asylum.[1]

First, the IJ properly rejected the government’s argument that E- should be barred for failing to meet the 1-year filing deadline. Two exceptional circumstances excuse E-’s late filing – he suffered lingering effects from his persecution, and he was an unaccompanied minor.

Second, E-’s unwilling participation in the LRA does not bar him from asylum as a persecutor. Supreme Court and Eighth Circuit precedent clearly establish that mere membership in an organization that engages in persecution does not bar one as a persecutor. The IJ properly applied this controlling precedent to determine that E- was not culpable for acts he opposed but was forced to commit.

Third, E- is not barred for having committed serious, nonpolitical crimes outside the United States. Basic norms of international law recognize that child soldiers are victims, not criminals. Moreover, E- was under the age of criminal responsibility during the time he was forced to serve as a child soldier, and he obeyed orders only under extreme duress.

FACTS AND PROCEDURAL HISTORY

Facts from the Record

When E- O- was just 11 years old, the Lord’s Resistance Army (LRA) attacked his Acholi village in Uganda, burned down his home, and kidnapped his entire family. I.J. at 4. Because E- happened to be at school when the attack occurred, he was not kidnapped himself. I.J. at 4. Separated from his family, E- wandered the countryside for several months hoping to find them. I.J. at 5. E- finally gave up and returned to his village to consult with village officials about what to do next. I.J. at 5, Tr. at 22.

Convinced that it was his last remaining hope of locating his family, E- decided he had no choice but to go to the LRA. I.J. at 4-5, Tr. at 22. When the LRA demanded that he sign papers indicating he was willing to kill people, E- protested. Tr. at 25 (“I told them I wasn’t going to sign nothing, and while you signing it, they’re whipping you, like, with ropes. If you don’t want to sign whatever, they’re going to force you to sign it. But I didn’t want to sign any other things that I felt like I wasn’t going to do, so I took the consequences and I took the pain for it.”). E-, himself an Acholi, testified that he strongly disagreed with the rebels’ persecution of the Acholi people. Tr. at 26 (“They were killing people, you know, and they forcing me to kill somebody’s life. I don’t want to take somebody’s life. I wasn’t put up in the world to kill somebody. I don’t believe in killing people.”)

E-’s defiance continued throughout his captivity. For example, E- repeatedly refused orders to execute groups of villagers. Tr. at 76. He was whipped for refusing to follow orders to shoot at Acholi villagers. I.J. at 5, Tr. at 27. He was cut on his arm for refusing to kill someone. Tr. at 57. He was hit with a gun “a lot of times” for his refusal to follow orders. Tr. at 72 (“…[W]hen you don’t want to do something your heart tells you to do, I mean, you’re not going to do it, obviously. And when they try to mistreat us like the worst treatment I’ve ever got. They’re going to whip you with the gun. You’re going to do this or what? You’re going to do it or what?”). When E- was given a gun, he would often throw it down. Tr. at 26-27 (“They gave me guns to shoot, but a lot of times I just, I threw the gun away in the bush telling them, I’m too young for this. I don’t want to kill somebody…”).