Rachel Browning’s Legal Blog

Last week, the passage of a new provision of the Immigration and Nationality Act (INA) and an appeals court ruling on a high-profile asylum case both centered on the issue of the forced conscription into armed combat.  First, on October 3, President Bush signed into law the Child Soldiers Accountability Act of 2008 (PL 110-340).   The act amends the INA to render any alien who has recruited or used child soldiers inadmissible or deportable and directs the Attorney General and the Secretary of Homeland Security to promulgate final regulations to deny asylum or withholding of removal to aliens who are either inadmissible to the United States or deportable for recruiting or using child soldiers.  The recruitment of child soldiers is now considered to be a war crime under international law, with the International Criminal Court and the Special Court for Sierra Leone hearing landmark cases against defendants Thomas Lubanga Dyilo of the Democratic Republic of Congo, and former Liberian President Charles Taylor, respectively for alleged acts in violation of international law, including acts involving the forced conscription of child soldiers.  The signing of this bill into law, ironically, however, came just a few days before a federal appeals court denied the asylum claim of an applicant who based his claim on the fact that he was a victim of forced conscription, and the court’s denial was based in part on the Petitioner’s own involvement as a persecutor of other victims during the very conflict of which he claimed to be a victim.

The Petitioner, a citizen of Sierra Leone, sought asylum, withholding of removal and Convention Against Torture (CAT) relief.  After living in Germany for several years where he got married and had a child, he returned to Sierra Leone in 1984.  Years later, his uncle, Foday Sankoh, would eventually become the leader of the Revolutionary United Front (RUF), one of the rebel groups at the center of Sierra Leone’s 11-year civil war.  The war in Sierra Leone was notable for the use by rebel factions of child soldiers and for the brutal atrocities – amputations, mutilations, and sexual crimes – committed against civilians.  The Petitioner’s application for asylum was based on his involvement with his uncle during the conflict.  (Foday Sankoh, incidentally, was eventually arrested and held for trial in the Special Court for Sierra Leone for various war crimes and crimes against humanity, including the conscription of child soldiers,; but he died before his case could go to trial).  The Petitioner claimed that he too was an unwilling conscript into the RUF’s operations and that he was asked to move various items from abroad into Sierra Leone; items that he later found out were weapons allegedly needed for the RUF’s war effort.  Petitioner made eight trips to Europe to transport the cargo to the RUF in Sierra Leone.  Petitioner claimed that he had experienced persecution based on an attack he suffered by RUF members who threw scalding water on his back and gang-raped him. Petitioner applied for asylum in Germany, but his claim was denied.  After the denial, he came to the United States.

In support of his asylum claim, Petitioner submitted medical records from his surgery in Germany and two letters from men in Sierra Leone to support his claim of escape from the RUF. Petitioner stated at his hearing that if returned to Sierra Leone, he would be imprisoned by the government because they had been searching for him.  After considering the evidence, the IJ denied all relief, finding the Petitioner statutorily ineligible for asylum because he assisted in the persecution of others by traveling to Europe and acquiring weapons for the RUF.  Nor did the IJ find Petitioner’s version of the rape and attack credible and he questioned the authenticity of the letters Petitioner submitted in support of his application. Finally, the IJ noted that conditions in Sierra Leone had improved and found that Petitioner had presented no evidence that he would be persecuted upon his return. On appeal, the BIA upheld the IJ’s conclusions and found Petitioner ineligible for asylum as a persecutor. The BIA also upheld the IJ’s adverse credibility finding and agreed with the IJ that Petitioner’s evidence failed to establish that he would be persecuted upon return to Sierra Leone.

The 7^th Circuit Court of Appeals, which could reverse only if the evidence “compelled” a different conclusion, rejected Petitioner’s arguments that 1) the IJ erred in refusing to admit certain Sierra Leone country reports, 2) the BIA erred by taking administrative notice of a 1993 Sierra Leone country report, and 3) the IJ exhibited bias.  The court found no credible evidence of past persecution and no evidence establishing a well-founded fear.  The court agreed that Petitioner failed to meet his burden of proof that the past harm he suffered was on account of a political opinion. While Petitioner claimed the RUF pressed him into service because he had a passport to travel to Europe, he did not present any evidence that he was targeted on account of any political opinion which the RUF sought to repress.

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