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Removal/Asylum/Court Proceedings
The 8th Circuit Court Finds Delay in Asylum Filing Does Not Impact Severity of Persecution

The following is a decision made by the 8th Circuit Court on August 14, 2008, which is posted on the AILA InfoNet:

Cooke v. Mukasey, (8th Cir. Aug. 14, 2008)

After considering the record as a whole, we conclude that the evidence compels the finding that Petitioner suffered past persecution on account of his political beliefs. The IJ's contrary decision is not supported by reasonable, substantial, and probative evidence. We conclude that substantial evidence supports the IJ's determination that there are "substantially changed country conditions" from the time Petitioner and his wife left Liberia. Although the issue is a close one, we cannot find that Petitioner and his wife have an objectively well-founded fear of persecution.

Petitioner and his wife, citizens of Liberia, sought asylum, withholding of removal and Convention Against Torture (CAT) relief based on the harm Petitioner and his family suffered in Liberia due to Petitioner's political opinion. Petitioner testified that he worked as an accountant for the Liberian Ministry of Finance when Samuel Doe was President of Liberia. Petitioner and his family fled the capital to Cape Mount when civil war broke out. While in Cape Mount he was detained and beaten by Charles Taylor's rebel group who accused him of squandering the government's money when he worked for the Department of Finance. The beating left a scar on his head and an enlarged blood vessel for which he continued to be treated in the United States. In 1990, Petitioner and his family fled to Sierra Leone where they were given refugee status by the United Nations. When a new interim government was established in Liberia in 1992, Petitioner and his family returned. In 1997, Petitioner's family was threatened by Taylor rebels when Petitioner was visiting his mother in the United States. The rebels accused Petitioner of going to the United States to raise money for the Unity Party in Liberia. The rebels attacked Petitioner's wife, causing a wound on her back, and stole money and clothing. Petitioner then returned to Liberia. In 1998, Petitioner leaked information to the press about government corruption by high ranking officials in Charles Taylor's party. He stated that as a result, he was arrested by police from Taylor's government, detained, and interrogated. He was released after 3 days. Petitioner traveled to the United States in 1998 and again returned to Liberia in 1999 to assist his children by changing their last names and making other arrangements for them. In 1999, Petitioner received a letter from the Ministry of Finance which stated that the Auditor General of Liberia had ordered his arrest because of government corruption.

The immigration judge denied relief. Although the IJ found Petitioner and his wife credible, she determined that the incidents they experienced did not rise to the level of persecution. Alternatively, the IJ found that country conditions in Liberia had changed to such an extent that Petitioner and his wife could not show a well-founded fear of persecution if they were to return. The BIA affirmed the IJ's decision without issuing a separate decision.

On review, the Eighth Circuit noted that persecution is a fluid concept that has been defined to include the threat of death, the threat or infliction of torture, and the threat or infliction of injury, citing Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007). The court held, after reviewing the entire record, that the evidence compelled a finding of past persecution. The court disagreed with the IJ's reasoning that the abuse suffered by Petitioner was rendered less "significant" by the fact that he did not seek asylum on an earlier trip to the United States. The court noted that Petitioner testified that he did not apply for asylum on the earlier trip in order to get his wife and children out of Liberia. The court found that this delay was reasonable. The court also stated that it failed to see how the delay in filing could impact the severity of the persecution suffered by Petitioner.

The court also held that because Petitioner suffered past persecution, he was entitled to a presumption of future persecution under 8 CFR Ħħ208.13(b)(1). The court noted that the presumption could be overcome by a showing that there had been a fundamental change in circumstances such that the applicant's fear of persecution was no longer well-founded. The court rejected Petitioner's first argument that the IJ did not properly shift the burden of proof to the government to show changed country conditions. The court noted that the IJ extensively cited from the 2005 Department of State Report for Liberia which was submitted by the government.

The court concluded that substantial evidence supported the IJ's determination that there were "substantially changed country conditions" in Liberia from the time Petitioner and his wife left. The court noted that Charles Taylor had resigned as President and fled the country and that the head of Petitioner's political party was elected President in 2005. The court also cited to the presence of an independent national commission on human rights, demobilized former combatants, considerably fewer human rights abuses, and no reports of unlawful killings or political disappearances.

The court also held that although the issue was a close one, Petitioner did not have a well-founded fear of future persecution from the individuals still in power whose corruption he exposed. The court stated that the issue was a close one, but found that there was no objective evidence in the record that anyone in the current Liberian government posed a threat to Petitioner.

The court denied withholding of removal and CAT relief finding that because Petitioner failed to meet the less demanding burden of proof for asylum, he could not meet the more stringent standards under withholding of removal and CAT.

The petition for review was denied.


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