Alhaji Kromah Page
Gaining Asylum in the United States -The Case of Liberians in Civil War
By Alhaji G. V. Kromah
(BA, LL.B., LL.M., MA, MAIR, SJD-cand.}
Posted July 26, 2008
Liberia, Africa’s oldest independent Republic, degenerated into an endemic civil war that threatened the stability of its neighbors and the rest of the West African sub-region. Nearly a third of the country’s 2.5 million people then was forced to flee the country. Various sources put the death toll at a range of 150,000 –250,000. The war began late 1989, and is technically ongoing, except for two years after the 1997 elections that brought Ex-President Charles Taylor to power. Hundreds of Liberians, many of them alumnae of universities in the United States, traveled to America seeking asylum as victims of various aspects of the war and later the conduct of the Charles Taylor government. Liberians consider their country as a "traditional friend of America," but had no special status in the United States as people fleeing from the conflict in their country except the Temporary Protective Status. Most of the Liberians have had to apply for asylum as refugees to make their stay lawful. The results have been mixed, with most applicants being accepted while others rejected, particularly after the 1997 elections. In this study, we examine the applicability of the 1951 Geneva Convention on the status of Refugees to Liberians as nationals of a country consumed by ongoing civil war. Then we survey the requirements and standards individuals like Liberians must fulfill to be granted refugee/asylee status under United States immigration laws and rulings of immigration judges, Board of Immigration Appeals (BIA) and regular courts. We finally look at the implications for Liberian asylees in the United States of the announcement that the despotic regime of Charles Taylor is no more and there is now a comprehensive peace agreement.
Backdrop – The conflict and the victims
The Liberian civil war involved several warring factions, including the remnants of the government army, which, for all practical purposes, could not be considered a public institution constitutionally established to defend the sovereignty of the state. The NPFL rebels of Charles Taylor started the war with the December 1989 invasion of Liberia from its eastern neighbor, the Ivory Coast. Relations between the two countries were unfriendly, and Taylor was able to obtain sponsorship from the leadership of the Ivory Coast to launch his war, with the expressed aim of removing President Samuel K. Doe.
A. Categories of War Targets
By the end of the first round of the conflict in 1997, several categories of victims of military groups had emerged:
These are two of Liberia’s 16 major tribes. They constituted the bulk of Taylor’s rebel National Patriotic Front of Liberia (NPFL) militias. Before the war, the Gios and Manos had accused the Doe administration of persecuting them for political reasons. A number of their leaders had political differences with Doe. Key among them was a fellow 1980 coup maker of Doe, Brig. Thomas Quiwonkpa, who subsequently launched an unsuccessful coup and was killed. In the aftermath, there were accusations of widespread reprisals against the Gios and Manos, leading to their flight into exile in nearby Ivory Coast. Nimba County, home of the Gios and Manos, is territorially contiguous to the Ivory Coast, which also has its own version of indigenous Gios and Manos. When the NPFL invaded Liberia, Gios and Manos living in government held areas were threatened.
The incumbent President Doe belonged to this ethnic tribe. Most of the government soldiers were recruited from it and remained in the army to fight the NPFL rebels as the most loyal to the government. Krahn soldiers and civilians became targets of the NPFL throughout the country. If they could not protect themselves by being members of the armed forces of Liberia, they had to flee and seek to become refugees.
The Mandingo tribe, which is also one of the original inhabitants of Nimba County as well as several other counties in Liberia, were economic and social rivals of the Gios and Manos. Though inter-marriage produced the aura of a community among them, elements of negative competition lingered. When the NPFL, packed with Gios and Manos entered Liberia, the Mandingoes were one of its first groups of civilian targets. They accused the Mandingoes of refusing to join them fight the Doe government. The Mandingoes in turn said they were neutral and law-abiding, and were therefore unwilling to involve themselves in the armed conflict, especially on the side of the rebels. Hundreds of them were killed throughout the country by the NPFL and its breakaway Independent National Patriotic Front of Liberia (INPFL).
Officials of the Doe administration, irrespective of ethnicity, were also marked. Top officials were particularly recognized while trying to escape and subsequently killed or arrested by the NPFL and INPFL.
Refugees who fled into the neighboring countries of Sierra Leone and Guinea organized themselves into "resistance" movements against the NPFL. These included the United Liberation Movement for Democracy of Liberia (ULIMO) and the Liberian Peace Council (LPC). They fought the NPFL and each other briefly at some point.
II. UN Convention as Controlling Instrument
Nationals, leaving a country at war either with itself or another country, normally assume they are refugees by virtue of their flight from the war, and accordingly Liberians fleeing their country considered themselves refugees. Liberians, invariably falling in one or more of the categories described supra, entered the United States on visitor’s visas and quickly began processing their application to gain asylum, assuming they were refugees by virtue of the war and conditions of political insecurity. But were all of the applicants technically refugees and therefore entitled to asylum in the United States?
The laws generally governing the conduct of states and international bodies with respect to their obligation to refugees are primarily enshrined in the 1951 Convention Relating to the Status of Refugees. The Convention defines refugee as anyone "...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
A. State Obligations Under the Covenant
The Convention requires that all signatories or parties acceding to the Convention like the United States through the 1967 Protocol have certain obligations and must deal with refugees in accordance with certain guidelines. Generally states are obligated to apply the provisions of the Convention without discrimination of race, religion or nationality. Refugees shall not be subjected to certain unfavorable measures on account of being a citizen of another country, which is at odds with the host country. Specifically, the Convention prohibits the signatories and those who accede to the Convention from applying exceptional measures to a refugee "who is formally a national of the said state solely on account of such nationality." The refugee shall also have the right of association in non-political and non-profit making associations and trade unions, gainful employment, self-employment, education, due process in court, social security as well as be given the opportunity to naturalize as citizens of the host country. The contracting parties are also obligated to treat refugees in the same manner other lawful aliens are treated within their borders while at the same time refugees are expected to abide by the laws of the host country and pay taxes.
The Convention also obligates states not to expel a lawful refugee unless it is on grounds of security or public disorder. Such an expulsion, nevertheless should not, under the Convention, be carried out unless the refugee has been given the full rights to the due process of law. The refugee must be given time under the circumstances to defend herself before a court or competent jurisdiction within the country. And if she is finally found to be qualified for deportation, she must be given time to seek admission into another country, though the Convention says the contracting country "reserves the right to apply during that period such internal measures as they may deem necessary." The internal measures is worrisomely vague, and may include detention, a situation that could be continuously challenged on the basis of the provision of the same Convention Article supra, that the refugee shall be accorded the due process. Clearly seen again is the latitude given the refugee when it comes to options of protection from what is supposed to be the source of her fear.
One of the most important provisions of the 1951 Convention is the prohibition of expulsion to the country where the refugee has fear of returning to, a principle otherwise called non-refoulement. Perhaps the core of the rights provided for the refugee under the Convention and perhaps in domestic laws of the contracting parties, this concept prevents a host country from expelling a refugee "in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
The principle of refoulement is not only a logical, but also a practical consideration. The fear of the refugee applicant over persecution crucially relates to nationality and country. The individual’s appropriately requesting for refugee status based on fear of persecution means that person is asking for the protection of another country because it cannot be gotten from his or her own country. And this is a key part of the cluster of definition of a refugee in the 51 Convention, when it says the individual qualifies for refugee status if, among other things, is "…unable or, owing to such fear, is unwilling to avail himself of the protection of that country." It is therefore required that a person be outside of his own country of nationality before she can begin to be considered as a refugee.
B. Standards for Qualifying as Refugee
The condition of being outside of one’s country, as indicated earlier, is insufficient to qualify one as a refugee. A number of other critical elements such as the notion of well-founded fear and persecution also combine with grounds of nationality, membership of a particular social group, religion, race, and political opinion among others, to fulfill the requirements of a refugee.
1. Well-Founded Fear Under the ConventionA key operating concept in the Convention’s definition of a refugee is "well founded fear of being persecuted," along with the stipulation that this fear should be fundamentally based on grounds of one’s race, nationality, religion, membership of a social group, or political opinion. Being a citizen from a country at war, in other words, does not automatically qualify one as a refugee. Applicants must have a well-founded fear of persecution, which breaks own into subjective and objective elements. These two elements must combine to establish a credible presentation that indeed the potential refugee’s fear is well-founded.
The target groups of Liberians enumerated supra could generally be identified within this definition cluster, but the individual Liberians are required to demonstrate that their being outside of their country was based on fear of being persecuted due to one of the grounds mentioned. The application of the definition of refugee under the Convention was certainly not automatic; otherwise US Immigration authorities would have, under directive of the government, offered blanket asylum to all Liberians. In fact, US courts continue to say that "Congress has chosen to define asylum as limited to certain categories…and it has not generally opened the doors to those merely fleeing from civil war."
Fear may be based on threats or past experiences and the psychological reaction of the victim. Statements of the potential refugee may be evaluated to establish that they have a well-founded fear of being persecuted on any of the five grounds. The personality of the potential refugee and membership into certain groups, political opinion, and activities are necessary in establishing credibility of the applicant’s story. The issue of the subjective component is highly important in illustrating fear and therefore the credibility of what is presented must be evaluated to determine the believability of the applicant’s narration. Accordingly, it may be useful to examine the background of the individual and his family members, or his role in the society. The objective here is to determine whether the individual has actual fear that something threatening to his or her life, general safety or freedom will occur upon return to the country.
Though it is the applicant’s duty to prove fear of persecution, it is not always that he or she has to show this through personal or direct experiences. What has happened to a family member or someone belonging to a common racial or social group could happen to the individual. It is reasonable that persecution of members of the group or family, especially when openly being carried out may be valid reason for the potential refugee to express fear of the same persecution if present in the same environment.
The 51 Convention as interpreted by the UNHCR is sensitive to the plight of the potential refugee in determining whether the seeker has fear of persecution, notwithstanding the deception sometimes involved. The UNHCR analyzes that individuals may not be having fear because they have experienced it already, but because they must avoid it. In other instances, the refugee may not be able to describe the fear or formally describe his plight as a persecution. But he or she could establish that indeed there was well-founded fear of persecution.
The UNHCR also considers the kind of travel document the refugee status seeker is holding as determinant factor. The Commission argues that ‘well-foundedness’ can be determined if the status seeker has a valid passport belonging to the country he is claiming to be fleeing. It is assumed that a government will not knowingly issue a passport to someone it is persecuting. And if is this case, the individual would have a heavier burden to prove that that government cannot provide the protection required. At the same time, it is possible for travelling purposes, that individuals could secure their passports lawfully but secretly. Individuals with valid passports could also remain outside and conditions for fear of persecution on any of the grounds developed in their country. In Liberia under Charles Taylor, many of the opposition leaders who voluntarily left the country after the 1997 elections probably with intent to return home, could not return either because they were accused of plotting to overthrow the government, or their groups harassed or tortured. They had valid passports, but the condition in the country contradicted assumptions that the individual is in good standing with his or her government because of the valid passport. The passport issue underscores how the individual refugee status seeker is usually required to prove the merit of the case presented.
There are however circumstances under which proving individual merit may not be necessary. The authors of the UNHCR Handbook on refugees status point to the scenario where whole groups have been affected to the extent that members of the group could each be considered as arefugee. This group determination could be considered a prima facie case in favor of seeking refugee status, meaning there are no facts to prove the contrary. This could apply to one or most of the cases of the Liberian targeted groups named supra. Where it is established, for example, that members of the Mandingo ethnic group, unarmed at the outset of the war, are being massacred in every part of the country irrespective of whatever other connections or identity of the victims, it may be reasonable to consider such a case as a prima facie refugee case.
The prima facie scenario underlies the importance of the objective element of the notion of well-founded fear of persecution. Because the individual’s subjective submission is critical in determining credibility of the story, the objective element of the condition existing in the country can play a vital role. The objective component can support reasons for the fear in order to demonstrate that it is well-founded or credible. In the case of Liberia, the violent civil war was a matter of regular international media coverage. The war had virtually consumed the entire country. Even the peacekeeping force was for a couple of years confined to the capital, Monrovia. There was abundant information about people being targeted because they belonged to certain ethnic groups, the collapsed government, or accused of being "supporters and collaborators" of the warring factions. These pieces of general information could be presented as the objective element.
2. Persecution Under the Convention
Generally persecution connotes a variety of meanings and even within the sphere of the Convention, it is not precise. From a general perspective, persecution could mean the oppressing, harassing or maltreating, especially because of race, religion. The online Webster dictionary defines persecute as pursuing "in a manner to injure, grieve, or afflict; to beset with cruelty or malignity; to harass; especially, to afflict, harass, punish, or put to death, for adherence to a particular religious creed or mode of worship." Equally, the Lectric Law Library's Lexicon defines persecution as the "infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive."
Only a description, though concrete, can be gleaned from the 51 Convention itself. In prohibiting contracting states from expelling or returning the refugee to an area he is unwilling to return for fear of persecution, Article 33 states that the contracting country involved should not send the applicant to "…the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (Italics my emphasis). The threat referred to on grounds listed is crucial as it relates to life. This should imply all of the circumstances that go into making life livable. Though death is the ultimate, the persistent, and probably systematic, violation of the individual’s inalienable right to exercise various forms of freedom on any of the grounds noted may constitute threat to life. Combined, the dictionary and Convention meanings of persecution present a comprehensive notion of the set of threats describable as persecution, besides the elaborate discussion of the principle under US laws infra. For Liberians, it was a matter of practical definition.
After the 1997 elections in Liberia, which were expected to have ended the war, Liberians set out for another round of escape from their country. The government of Charles Taylor began with officials of opposition political parties. Within three months of his inauguration in August, Presidential security guards had adopted and slaughtered Samuel Dokie, the former Deputy Speaker of the Transitional Legislative Assembly, horribly along with his wife, sister, a security guard and one other person. Following a public outcry, Taylor had several of his presidential Special Security Service (SSS) officers arrested, and the Director suspended. In the end, a kangaroo court acquitted those tried. Before the murder, Taylor had gone on public radio to accuse another opposition figure of plotting to overthrow the government. Within six months, about fifteen of twenty top opposition party figures had left the country. They were part of a particular group of political opinion, opposition parties criticizing the bad conduct of government, and cumulatively added to their ethnic background repugnant to Taylor during the war, there was ground for which they were being persecuted. Soon, outspoken journalists were being brutalized by state security and their offices vandalized. So were students and human rights advocates being regularly jailed, leading to another wave of citizens fleeing from Liberia. Various categories of people, from social/political/ethnic groups, expressing opinions, were being killed or threatened to be killed, tortured or jailed. Whether all that fled the country directly or indirectly as a result of these incidents were eligible for refugee status and therefore asylum in the United States is the subject of particular analysis based on US regulations and judicial rulings infra.
When Liberians apply to be considered as refugees and therefore entitled to be processed for asylum, the framework is that the United States will adhere to the provisions of the 1951 Convention Relating to the Status of Refugees. Under the general principles of the duties and obligations of a contracting state to an international treaty, upon ratification the state is expected to apply and consider the provisions of such treaties as binding and having the effect of law within its jurisdiction. The state may legislate laws to specify how the treaty may be implemented domestically, and amend the laws where these laws run contrary to the Treaty.
The 51 instrument accordingly provides: "With respect to those articles of this Convention that come within the legislative jurisdiction of constituent States, provinces or cantons which are not, under the constitutional system of the Federation, bound to take legislative action, the Federal Government shall bring such articles with a favourable recommendation to the notice of the appropriate authorities of States, provinces or cantons at the earliest possible moment." In fact, the Convention gives the right to other signatories to inquire as to whether other countries are carrying out measures, including legislation, to apply the provisions of the Convention in their domestic jurisdictions.
The United States, which was not a signatory to the 1951 Convention treaty adopted in New York, became part of the Convention only in 1968 when it acceded to the 1967 Protocol Relating to the Status of Refugees, agreeing to what it considered the "substantive provisions" of Articles 2 through 34 of the Convention. INS v. Cardoza-Fonseca affirmed that Article 33.1 of the Convention, comparable to § 243(h) of the INA, imposed a mandatory duty on contracting states like the United States not to return an alien to a country where his "life or freedom would be threatened" on account of one of the several grounds above. The court, in distinguishing refugee from asylee in the same case, stated that the law gave the US Attorney General the authority to grant the broader relief of asylum to refugees, more in accordance with Article 34 of the Convention, which urges contracting parties to facilitate the assimilation and naturalization of refugees as far as possible.
B. Determining Eligibility Under US Law
The United States has indeed enacted laws that reflect the key principles laid out by the 1951 Convention and its Protocols. Beginning with the crucial area of who is legally a refugee, the US Immigration and Nationality Act in effect restates the Convention’s criteria in providing that "any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of that country 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..." Anyone applying for an asylum status under US Laws must first meet the requirements of a refuge. That is so notwithstanding the terms refugee and asylum (asylee) are not exactly the same, though often used interchangeably. The difference technically is that the refugee applies for protection while outside of the United States, and for asylum, the applicant is already in the United States or at the borders, asking for protection against fear of persecution in his own country. And yet it is the various elements of the definition of refugee – well founded fear, persecution, race, nationality, membership of a particular social group, political opinion, etc. – that have been the basis for granting or rejecting asylum, withholding of removal, deportation and refusal of entry in the United States.
A foreigner in the US may apply for affirmative asylum, which means she is not in a removal proceeding and is submitting her own asylum application and will appear before an immigration officer in a non-adversarial interview. On the other hand, the alien who has found himself in an adversarial proceeding will find it not only useful but also necessary to apply for Defensive Asylum, which would have the same benefits and privileges of affirmative asylum if granted.
Most Liberians fell in the category of applying affirmatively, though an unspecified large number of others had to go for defensive asylum. When the Liberia civil war broke out on Christmas Eve 1989, it took only three months for the fighting to spread to all parts of the country, fueling a mass exodus of Liberians. With the historic relations between Liberia and the United States, many Liberians managed to obtain US visas, while others were already in the United States legally or illegally. Nearly 10,000 others who were not sure they could get asylum easily opted for the Temporary Protective Status (TPS), granted by the US government to Liberia as a country involved in an ongoing armed conflict.
Most Liberians opted for asylum obviously owing to the comparative benefits of the asylee becoming a permanent resident and later citizen. Liberians on the TPS meanwhile have been lobbying for a legislation in the US Congress to convert all TPS holders into permanent residents. Where they suspected problem in gaining asylum, they stalled their asylum application while benefiting from the TPS.
1. Persecution & Well-Founded Fear in US Law
Liberian asylum applicants, as in cases of other nationalities, have had to prove, despite the war in their country, that they were individually eligible in accordance with requirements of the immigration laws of the United States, encompassing key provisions of the 51 Convention.
Judicial decisions and US laws have approached asylum eligibility in varied ways, but essentially focusing on the key concepts of persecution and well-founded fear. The asylum applicant has the burden to prove that he is a refugee within its legal definition, meaning there is the element of persecution, among other things. The applicant qualifies as a refugee ready for the granting of asylum as a discretionary process of the US Attorney General if such applicant has suffered past persecution or because he has a well-founded fear of future persecution.
But how is persecution defined under US laws? Is it markedly different from the 51 Convention? Threat to life is basically the reference made to persecution in Article 33 of the Convention. Under US laws, various cases have defined persecution, going beyond direct threat to life. In Desir , the court defined persecution as "the infliction of suffering or harm upon those who differ….in a way that is regarded as offensive." The court then said that Persecution is found "only when there is a difference between the persecutor's views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference (in race, religion or political opinions) in a way ….that the persecutor will not tolerate." In other words, persecution is beyond threat to life and freedom.
In Balzoski v. INS, the court said mere harassment cannot be considered persecution. The suffering must be more severe. Similarly, a single instance of harm may not necessarily establish persecution per se, whereas several actions taken together may qualify as cumulative grounds. This may include any combination of acts, including arbitrary interference with a person’s privacy, family, home or correspondence; relegation to substandard dwellings; exclusions from institutions of higher learning; enforce social or civil inactivity, passport denial; constant surveillance; and pressure to become an informer.. All of these incidents were prevalent during the administration of Charles Taylor in Liberia, particularly within the capital Monrovia.
When Taylor served as rebel leader before his 1997 assumption of the country’s Presidency, the ongoing war had produced multiple deadly adversaries. With the Doe cripple government itself becoing one of the warring factions and not seen capable of providing protection, it was not difficult for many Liberians to benefit from the principle of well-founded fear of persecution on account of membership of social groups or political opinions, and other grounds indicated supra. Non-combatants became victims, among other reasons because their ethnic groups were being targeted, a circumstance that has been considered in US cases and the INA. The U.S. Department of Justice Executive Office for Immigration Review Board of Appeals (called BIA for Board of Immigration Appeals) ruled In re H-, that persecution can occur irrespective of whether or not a national government is still operating, and that "while interclan violence may arise during the course of civil strife, such circumstances do not preclude the possibility that harm inflicted during the course of such strife may constitute persecution within the meaning section 208(a) of the Immigration & Nationality Act." The BIA also stated that an alien who has demonstrated past persecution is presumed to have a well-founded fear of future persecution. Under US laws, the applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.
Many Liberians coming to the United States were part of the target groups supra, and had to flee for their lives in most cases. Others were detained and tortured, but were fortunate to have found a way of escaping. And yet others saw or reliably learned of the killing of their families, fellow ethnic members, colleagues in government, or others sharing political opinion. The remnants of the government army, mostly from the slain President Krahn ethnic group, were engaged in tooth-to-tooth battle with the rebel NPFL mostly Gio/Manos, supported by foreign mercenaries. The Krahns were also part of the Mandingo dominated ULIMO resistance movement fighting the NPFL as well. After the first round of the war and elections held in 1997, Charles Taylor packed all military and security agencies with his NPFL rebels, used to arbitrarily jail, extort money and property, brutalize, torture and even killed politicians, students, journalists, and human rights activists, because they criticized the policies of the regime. Members of the Liberian targeted groups from the draconian rule could demonstrate past persecution and well-founded fear of future persecution on account of their political opinion if they returned to Liberia. In Desir vs. Ilchert, the court affirmed that "beatings, imprisonment, and assaults by government security forces for the purpose of extortion may constitute persecution on account of political opinion within the meaning of sections 101(a)(42)(A) and 243(h)(1) of the Immigration and Nationality Act.
Liberians would invariably had to combine subjective and objective illustration of their stories in order to meet the well-founded fear requirement US Immigration regulations required, also contained in the 51 Convention. US courts have held that in order for an applicant to establish eligibility for asylum based on a well-founded fear of persecution, he must show a fear that is subjectively genuine and objectively reasonable. The court here stated that an applicant’s candid, credible, and since testimony demonstrating a genuine fear of persecution satisfies the subjective component, while the objective requires a showing of specific evidence in the record of facts supporting fear that the applicant would face persecution. The applicant, under the subjective element, must reliably explain that he has actual fear that something harmful will happen to him if he returned to his country. He then must present specific facts through objective evidence or through persuasive, credible testimony; and show that given evidence presented, a reasonable person would experience a fear of persecution. But the asylum seeker’s subjective fear is useful only when the objective evidence is sufficient to suggest risk of persecution.
The war in Liberia had been the subject of extensive international coverage, for the most part. Journalists were risking their lives to enter combat zones and inside the operating areas of the NPFL, where most of the ethnic cleansing and other civilian elimination took place. The government of President Doe eventually collapsed, but for the intervention of the peacekeeping force of the Economic Community of West African States, anarchy would have totally decimated the heavily populated capital, Monrovia. Besides, governments like that of the United States and international organizations led by the United States had official information on events in the country, at least indicating that there was ongoing war targeting various groupings. That objective element was available for those Liberian asylum seekers who could give credible evidence of having past persecution and well-founded fear of future persecution.
Liberians who came from Monrovia during the presidency of Taylor may have had to demonstrate that they were specifically being persecuted as it was suspected that many of them were working with the regime and got simply tired and decided to come to the United States. That is one reason why individuals, in most cases, have had to prove past persecution and well-founded fear of future persecution. The Board of Immigration Appeals has pointed to some key elements, which the asylum applicant must show in fulfilling the burden of proof that he has a well-founded fear of persecution if he returned to his country. In Mogharrabi, the BIA underscored that the applicant should have a belief or character which a persecutor seeks to subdue through some form of punishment; second, the persecutor is aware or could become aware that the applicant has this belief or characteristic; Third, the persecutor has the capability of punishing the applicant; and fourth, the persecutor has the inclination to punish the applicant. In yet what seems to be flexibility in the persecution standard, the court held in Cardoza-Fonesca that an applicant for asylum has established well-founded fear even if he has "fear of an event happening when there is less than a fifty percent chance that it will take place, and establishing a ten percent chance of being shot, tortured, or otherwise persecuted."
The persistent violation of human rights under the Taylor government, including the brutal harassment of former faction militias, led to the resumption of the civil war only two years after Taylor’s 1997 assumption of the Liberian Presidency. Again victims organized themselves in two warring factions with fighters from various factions that had been disarmed and dissolved in three years earlier. The Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) waged war in the interior of the country, steadily capturing territory from the government. In the end, only Monrovia was left, contributing to Taylor’s resignation and departure in August 2003.
For Liberians contemplating asylum in the United States before the fighting reached Monrovia, two principles of US Immigration laws and judicial decisions were relevant –Persecutor’s erroneous belief and internal relocation. As the war raged, the regime in Monrovia falsely accused people of collaborating with the LURD and MODEL warring factions, imprisoned and threaten to kill them as a deterrent. Many of these individuals were people who generally requested the government to improve its policies as an inducement to the ending of the war. If such individuals ever found their way to the United States, the law would support them in their quest for asylum. According to Desir, "death threat based on persecutor’s erroneous belief that alien was member of guerilla organization coupled with affirmative choice to remain politically neutral was sufficient to establish clear probability of persecution based on political opinion."
Then there were government agents sent to rebel-held territories on reconnaissance missions. Most were uncovered and jailed. Many of them succeeded in escaping and coming to the United States, having first returned to Monrovia and welcomed by their superiors. If individuals in this group of escapees applied for asylum, it would be difficult to attain asylum on the basis that there was war in the country and that the government could not protect them. The legal principle of internal relocation would have applied against them. The court has cited US laws in stating in Sene v. Aschroft that the "finding of past persecution will show a well-founded fear of future persecution unless the applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality and under all the circumstances, it would be reasonable to expect the applicant to do so." Sene, the Senegalese asylum seeker in this US case, argued that he had been arrested and tortured by rebels in the southern Casamance region of his country, and that he had also suffered persecution by the government in Dakar. The court held that Sene could relocate in another part of Senegal where the rebel had neither control nor influence. The ongoing war has been confined to Casamance, where the guerilla group has been fighting to establish its own independent state. In the Liberian scenario, the government agents returned to Monrovia and without any peril to their lives and voluntarily left for the United States. The Immigration Judge may consider whether an asylum applicant may safely relocate to another part of the country outside of where he is facing persecution. The asylum seeker may be rejected if it is established that internal relocation is a reasonable alternative given all the circumstances, though it must be reasonable to expect the applicant to do so.
The ruling would be different though if the applicant were claiming fear of persecution because of his membership in an ethnic group. With widespread war in the country, it would not be reasonable to have expected the applicant to relocate to another part of the country and consider himself free of risk. Melkonian affirms that in ethnic clashes or civil war conditions, an applicant would not be denied refugee status simply because he did not relocate in another part of the country, especially so when the conditions in other areas are not safe.
Where a Liberian opposition leader critical of the government had managed to escape, and his relatives remaining behind were detained and maltreated by top presidential security aides, other relatives escaping from Monrovia or living in the United States had relief under the "reasonable person standard." This rule holds that a reasonable person in the position of the victim would also have a well-founded fear of persecution. Guevara-Flores states that an applicant for asylum has a well-founded fear "if he shows that a reasonable person in his circumstances would fear persecution. In Matter of Mogharrabi, the court described the reasonable person standard as a "common sense" framework for analyzing whether claims of persecution are well founded, while another case said the standard "appropriately captures the various formulations that have been advanced to explain the well-founded fear test."
IV. Return of "Peace" as Changed Conditions
The Liberian civil war began with the Charles Taylor led rebel NPFL invasion of Liberia late 1989. The conflict saw the brutal killing of President Samuel K. Doe, and then a proliferation of warring factions, many claiming to be protecting their people. The ECOWAS peace mediation took Liberians to several African capitals as well as to Geneva. In August 1995, it was announced that a final peace agreement had be signed and the three key warring faction leaders, including Taylor, would come to Monrovia to serve as part of the five-member provisional Collective Presidency. The factions remained armed for two-thirds of the two years the collective presidency ruled the country. Peace was officially proclaimed, and yet militias were still roaming a huge portion of the country with arms. The inevitability of armed clashes among the supposedly disarmed factions occurred when the Collective Presidency, including three faction leaders, ordered the arrest of another faction leader in Monrovia on charges of murder. The accused refused to submit himself, and that served as the basis for another round of serious armed conflict in Monrovia. Nearly all of the Krahn ethnic militias were mobilized behind the accused, Roosevelt Johnson, and the individual faction leaders in the government brought in their fighters to town. The result was massive violence. This time around, the structure of the targeting changed. Though Krahns were still going after the Gios, they now were now fighting the Mandingoes. People outside of these ethnic groups were put in different categories of supporting or associating with one faction or the other, or working with the government. Could this period be considered as changed conditions, which would make asylum no longer necessary for Liberians under US laws and cases?
The 1997 elections were heralded as finally bringing eight years of armed conflict to an end. As indicated supra, Charles Taylor as President gave himself a gestation period of only three months to begin abducting his political opponents clamping down on all forms of criticism of his corrupt and human abusive government. Hundreds fled, and thousands of refugees already outside of the country decided to remain outside. LURD was organized as a warring faction followed by MODEL, and they both waged a fierce war against the Taylor government until he was forced to resign and leave he country. Again, ethnic and groups became targets to each other, despite peace was said to have now been established.The Taylor departure in August 2003 was also part of the Accra Comprehensive Peace Agreement, bringing in another interim administration for the next two years. As of now, the militias are not only still armed, but also involved in intense fighting in the interior of the country. An American, Jack Klein, heading the UN mission, has promised to bring in 15,000 peacekeepers. Only about 4,000 troops have been deployed, and largely in Monrovia. Liberians are still fleeing from one place to another. Is this change of government from the despotic Charles Taylor regime to an interim government of national unity a sufficient changed condition to bring about a termination of the asylum status of refugees or denying them and putting them in removal or exclusion proceedings?
A. Changed Condition and Termination of Asylum
Liberian asylees facing termination of asylum because conditions are said to have changed are in effect in a proceeding of removal, exclusion or deportation. An immigration asylum officer may terminate a grant of asylum made under the jurisdiction of an asylum officer or a district director if, among other things, the applicant no longer has a well-founded fear of persecution upon return due to change of conditions in his country of nationality. The same is true for removal or deportation. The wife or husband of the asylee along with children who got asylum as a result of a relative derivative will also be considered to no longer have well-founded fear of returning home, and thus will lose the asylum status.The termination process is not automatic however. The alien shall be given notice 30 days before an interview with the service officer for the determination of the termination. The BIA or Immigration Judge may also reopen a case for the purposes of termination of asylum or withholding of removal. In such a case, the BIA or Judge will have to determine by preponderance of evidence that the defendant no longer has a well-founded fear of persecution back home. One of the sources of such evidence is the official country report from the US State Department. In all of this, the defendant has to be given the opportunity to respond to the report. Even in immigration cases for foreigners, the US Fifth Amendment clause gives them the right to due process and that they be allowed to rebut official notice documents affecting the decision on their status. The due process also includes the right of the alien defendant to have a lawyer of their choice, though at their own expense, and it is incumbent upon the immigration judge to inform the defendant about free legal services existing in their district.
US Government official reports on conditions of country are not beyond the bounds of error. The Court has said that "While a state department report on country conditions may be probative in a well-founded fear case, the use of such official report does not substitute for an analysis of the facts of each applicant's individual circumstances…" It is also established "the determination of whether or not a particular applicant's fear is rebutted by general country conditions information requires an individualized analysis that focuses on the specific harm suffered and the relationship to it of the particular information contained in the relevant country reports, and information about general changes in the country is not sufficient."
B Withholding of Removal, Preponderance Evidence, Probability Standard
It must be noted here that in these cases of changed conditions, it is the government that is being required to show a preponderance of evidence that the asylum or removal defendant no longer has well-founded fear of persecution due to changes back home. If the applicant establishes past persecution, the only significant factor to consider is whether conditions have changed in the defendant’s country of nationality to the extent that the fear cannot said to be well founded. The series of peace announcements that have made at various intervals of peace agreements have done little to establish there is now actually any serious change of conditions on the ground that would erase fear of persecution. Though Taylor has left Monrovia, has men are still present there unarmed. In fact some of his death squad commanders have been retained in current transitional government of Gyude Bryant, who apparently had no say in the position allotment given Taylor’s group at the Accra conference. Even though the alien has the burden or proof in establishing eligibility for withholding of removal, Immigration regulations state that the Immigration Officer shall not require the defendant to provide evidence that she would be singled out individually for persecution. This rule obtains if the alien can establish that there is a "pattern or practice in the country of proposed removal of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social, group or political opinion….and that the applicant establish his own inclusion in an identification with such group of persons such that it is more likely than not that his life or freedom would be threatened upon return home." The US Supreme Court has held that the aforementioned standard, "clear probability of persecution," is always applied in cases of withholding of deportation, as compared to the "well-founded fear" standard used for asylum. On the prosecution side, the Immigration must also demonstrate some elements before deporting someone. In Woody v. Ins, the court said "no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts as grounds for deportation are true...and that this standard of proof applies to all deportation cases, regardless of the length of time the alien has resided in this country." The Attorney General and his co-workers must respect the principal of non-refoulement supra.
B. Humanitarian ConsiderationLiberians may attempt pleading for asylum or the retaining thereof on a humanitarian conclusion, though the bar here is huge. The acts constituting the basis of the fear of past persecution must be so severe that it would be inhumane to return the applicant to his country, though he may have no fear of future persecution. There is no need of proving fear of future persecution. The past persecution must be so severe that that it would "so sear a person with distressing association with his native country that it wold be inhuman to force him to return there." References have been to the incidents of the German Jews the victims of the Chinese Cultural Revolution, and survivors of the Cambodian genocide. There may not have been proven genocide committed in Liberia yet, but the severity of the brutality meted out to Human Rights Journalist Hassan Bility and 56 others under the Charles Taylor regime. In substantiated testimony, Taylor and his men used various inhumane methods against them to extract false information from there. An article published by the Liberian Orbit web magazine last year quoted sources in Monrovia as saying that government security agents pushed and held Bility and Mabutu Kromah in a filled sewer tank for several hours, locked on top with iron bars. Mabutu Kromah nearly lost his life after the ordeal. He is reportedly suffering from hemorrhage and has been denied medication. Bility, in addition to the sewer mistreatment, has been severely bruised on his arms, and the sore in his palm is rapidly deteriorating. He has had malaria since his incarceration. As for Varmuyan Dulleh, the latest and youngest of the Mandingo tribe arrested, is said to be in critical condition, with some even describing one of his arms and a leg as "deformed" from the brutality.
The 1951 Geneva Convention Relating to the Status of Refugees has served as a fundamental human rights instrument, providing a common reference for the treatment of people who can no longer avail themselves of the protection of their own countries for fear of being harmed or deprived of their freedom. Though the United States and other contracting parties have been given the flexibility of enacting laws to implement key provisions of the Convention taking their own security interest into consideration, the Convention did not waver that under no circumstance should an individual be deported even to the frontiers of the country of nationality she is afraid of returning to. And for the most part, the United States has respected this principle of non-refoulement. While the US Attorney General is given discretionary powers to grant asylum, he has no discretion to deport someone where the individual has proven by various standards that he will be killed, tortured, or otherwise harmed if he is sent home. The Immigration authorities may effect the deportation if they can impeach the claims of the potential deportee through a various standards.
Liberians coming from an ongoing civil war coupled with a President that oppressed the country for six years, largely individually met the test that they had well-founded fear of being persecuted on the grounds of political opinion, member of special social group, nationality, race or religion. In other instances, the cumulative effect of certain actions against them rose up to ground for persecution.
Peace has been declared in Liberian since August this year when Taylor was forced to resign and depart for Nigeria where he now lives in exile. But the warring factions that help remove him are still fighting remnants of the regime, though a cease-fire agreement has been signed by all of the parties. The United Nations has not been able to deploy outside of Monrovia, and as such the transitional government of Gyude Bryant has no control of the territory of the Republic. He is also confined to Monrovia. Under the circumstances, it is unlikely that US authorities will effect the termination of asylum given to thousands of Liberians. The elements of fear of persecution will have to be substantially erased. At the same time, Liberians who suffered severe persecution like torture can remain on asylum under humanitarian consideration. After one year, an asylee has the option of applying for permanent residence status and later US citizenship.