Lukwago v. Atty Gen USA

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
5-14-2003
Lukwago v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket 02-1812
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PRECEDENTIAL
Filed May 14, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1812
BERNARD LUKWAGO
a/k/a MELVIN HAFT,
Petitioner
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
Petition for Review of an Order
of the Board of Immigration Appeals
(A78-420-780)
Argued December 17, 2002
Before: SLOVITER, RENDELL, and GREENBERG,
Circuit Judges
(Filed: May 14, 2003)
2
Danielle E. B. Lehman (Argued)
Orinda, CA 94563
Jennifer J. Kramer
West Chester, PA 19382
Attorneys for Petitioner
Robert D. McCallum, Jr.
Assistant Attorney General Civil
Division
Linda S. Wendtland
Assistant Director
John C. Cunningham (Argued)
Senior Litigation Counsel
Michael P. Lindemann
John M. McAdams, Jr.
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
INTRODUCTION
Bernard Lukwago petitions for review of the decision of
the Board of Immigration Appeals (“BIA”) ordering his
deportation after denying his application for asylum,
application for withholding of removal under the
Immigration and Nationality Act (“INA”) and request for
withholding of removal under Article 3 of the United
Nations Convention Against Torture (“CAT”). For the
reasons set forth hereafter, we will deny the Petition for
Review on some claims and remand to the BIA on other
claims for further proceedings consistent with this opinion.
3
II.
FACTS AND PROCEDURAL HISTORY
Lukwago is a native and citizen of Uganda. He lived with
his parents on farmland in a village in the Gulu District of
Northern Uganda. He testified before the Immigration Judge
(“IJ”) that in August 1997, when he was 15 years old,
rebels from the Lord’s Resistance Army (“LRA”), a rebel
force that opposes the Ugandan government, attacked his
home and killed his parents. Certified Administrative
Record (“C.A.R.”) at 199-200. The rebels captured Lukwago,
tied his hands, and took him, along with three other
persons from his village, to the LRA camp. C.A.R. at 201-
02, 254. While at the camp, Lukwago stayed in a tent with
other kidnapped children where they were guarded by
armed rebels. C.A.R. at 203-04. Both adults and children
were held captive at the camp. C.A.R. at 220-21.
Because the BIA found no reason to challenge Lukwago’s
credibility we accept his recitation of the facts as given in
his affidavits and testimony. See Hartooni v. INS, 21 F.3d
336, 342 (9th Cir. 1994) (“Absent an explicit finding that a
specific statement by the petitioner is not credible we are
required to accept her testimony as true.”). Lukwago
testified that the rebels forced him to perform manual
labor. He was ordered to get water and firewood. C.A.R. at
205. The rebels also trained him to shoot a gun, while
threatening to beat him for poor performance. C.A.R. at
218. Once trained, Lukwago and other captives were forced
to fight with the rebels against government soldiers. C.A.R.
at 205-06. Lukwago was forced to fight on the front line
shooting at government soldiers. C.A.R. at 205-06. He
participated in at least 10 battles. C.A.R. at 221, 223. After
the fighting, Lukwago and other captive children were
ordered to remove uniforms and weapons from dead
soldiers. C.A.R. at 205. He also accompanied the rebels on
attacks against civilian villages where he was required to
carry stolen food and animals back to camp. C.A.R. at 229-
30. In addition, during the attacks Lukwago frequently
witnessed rebels torture civilians by cutting their lips and
fingers. C.A.R. at 230.
4
Lukwago testified that he was threatened he would be
killed if he tried to escape. C.A.R. at 204-05. He witnessed
the shooting of two captive children who failed in their
attempt to escape. C.A.R. at 265. After one rebel battle,
Lukwago and Joseph, his friend at the camp, were carrying
stolen weapons and uniforms back to the camp. C.A.R. at
208. Joseph became too tired to keep marching and the
rebels beat him, but he was unable to continue. C.A.R. at
208. Lukwago testified that the rebels forced him to help
place a heavy rock on Joseph’s chest and to sit on the rock
until his friend stopped breathing. C.A.R. at 208-11.
Lukwago escaped two weeks later while collecting firewood.
C.A.R. at 211-12. In total, Lukwago was held captive for
approximately four months. App. at 5.
After escaping, Lukwago went to his uncle’s home where
he stayed for 10 days. C.A.R. at 213-15. His uncle made
arrangements for Lukwago to flee Uganda, providing
Lukwago with a Ugandan passport and a German visa.
C.A.R. at 215. He fled with the false passport to Germany
where he purchased a ticket to Holland. C.A.R. at 215, 234.
Lukwago traveled to Amsterdam the following day and
applied for asylum. C.A.R. at 215, 236. After two years in
the Netherlands, his application was denied. C.A.R. at 238.
Soon after notification of the denial, he met Melvin Haft in
Rotterdam. He testified that “I was on the street. I was
crying. Then my, one man he see me, ask me my problem.
. . . He was Haft Melvin Sirada (phonetic sp.).” C.A.R. at
242-43. Haft, who had a passport from Holland, was from
Suriname. C.A.R. at 243. Lukwago stayed with Haft for two
weeks before Haft took him to Belgium. C.A.R. at 243. Haft
and Lukwago then traveled to Madrid, Spain where Haft
provided Lukwago a passport and an airplane ticket to the
United States, each in Haft’s name. C.A.R. at 243-45.
Lukwago arrived in the United States on November 22,
2000. C.A.R. at 1028. He requested asylum based on past
persecution by the LRA and fear of future persecution by
both the LRA and the Ugandan government if returned to
Uganda. C.A.R. at 978, 987.
On August 17, 2001, the IJ issued a decision and order
denying Lukwago’s application for asylum and withholding
of removal under INA § 241(b)(3). AV1 at 14-28 (IJ’s
5
Decision and Order).1 The IJ found that Lukwago’s
testimony was not credible based on his mannerisms before
the court and “certain inconsistent and unpersuasive
testimony the extent of which cast[ed] doubt on the veracity
of his claim.” AV1 at 19. Specifically, the IJ found Lukwago
not credible due to inconsistencies between his testimony
before the IJ and previous statements and testimony,
including a Dutch asylum interview,2 and the implausibility
of his descriptions of his participation in LRA battles. AV1
at 21-23. Nonetheless, the IJ granted Lukwago’s request for
withholding of removal under the CAT. AV1 at 27. The IJ
found, based on expert testimony and the Department of
State’s special Advisory Opinion, that Lukwago “stands the
likelihood of being subjected to torture by the [Ugandan
government] upon his return,” especially given the evidence
that former child soldiers are punished, detained in pits,
and used to clear minefields. AV1 at 26-27.
Both Lukwago and the INS appealed the IJ’s decision.
The BIA, in a decision dated February 21, 2002, reversed
the IJ’s adverse credibility finding because it lacked
sufficient support. AV1 at 5-7 (BIA Decision). The BIA
found that the IJ’s reliance on the Dutch asylum interview
was improper because the documents were “not properly
certified or authenticated.” AV1 at 5. In addition, the BIA
did not find Lukwago’s descriptions of the LRA battles
troublesome because “it would be unreasonable to expect a
high degree of detail regarding battle conditions from a
young man who was only 15 years old . . . and who had
been assessed as suffering from post-traumatic stress
disorder [ ].” AV1 at 6 (footnote omitted). Finally, the BIA
did not agree with the IJ’s finding that Lukwago’s
descriptions of his village and school were not credible. The
BIA stated those descriptions were not central to his claim
and were not necessarily in conflict with expert evidence on
1. AV1 is the designation given by petitioner for the Appendix attached
to his brief, which is to be distinguished from the separate Appendix also
provided.
2. Lukwago submitted an affidavit to the IJ explaining that there were
some inconsistencies because the Dutch interview was conducted in
English, a language he spoke poorly at the time, and his request for a
Ugandan translater had been denied. C.A.R. at 412.
6
the topic. AV1 at 7. The INS does not challenge the BIA’s
credibility finding in the current appeal.
Despite its acceptance of Lukwago’s credibility, the BIA
dismissed Lukwago’s appeal and sustained the INS’ appeal,
thereby denying Lukwago’s asylum application, his request
for withholding of removal under INA § 241(b)(3), and his
request for protection under the CAT. The BIA held that
Lukwago failed to satisfy his burden of establishing that he
suffered past persecution or had a well-founded fear of
future persecution by the LRA or the Ugandan government
on account of his race, nationality, religion, membership in
a particular social group, or political opinion. AV1 at 7-9.
The BIA stated that Lukwago did not contend that his
treatment by the LRA was on account of his race,
nationality, political opinion or religion. It continued:
We therefore must look to whether he established his
membership in a “particular social group,” and that he
was targeted for persecution based on his membership
in that group. The only defining characteristic of this
group that the respondent has provided is age, i.e. all
persons under the age of 18. Although the evidence
indicates that the LRA does harm children, the
respondent has failed to demonstrate that he was
targeted by the LRA because he was a child.
AV1 at 8. It also declined to find that Lukwago faces a
heightened risk of future persecution by the LRA or the
Ugandan government as a former LRA child soldier. AV1 at
8-9.
The BIA denied Lukwago’s application for protection
under the CAT because Lukwago failed to demonstrate that
he is likely to be tortured by the Ugandan government if he
returns to Uganda. For this holding, the BIA relied on the
Ugandan government’s amnesty policy for former rebels.
AV1 at 9. With regard to the required showing of torture by
the LRA, the BIA found that (1) he presented no evidence to
show that the LRA attempts to seek out and harm “those
who have previously deserted from their ranks” and (2) the
CAT does not extend protection to torture by entities that
are beyond the government’s control. AV1 at 10.
7
The BIA ordered Lukwago’s deportation to Uganda.
Cecelia M. Espenoza, Board Member, concurred in part and
dissented in part with the BIA decision.3 AV1 at 11.
Lukwago filed a timely Petition for Review.
III.
JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction to review the IJ’s decision under
8 C.F.R. § 3.1(b). We have jurisdiction to review a final
order of removal pursuant to 8 U.S.C. § 1252(a)(1). We have
previously stated that “because the BIA has the power to
conduct a de novo review of IJ decisions . . . the ‘final order’
we review is that of the BIA.” Abdulai v. Ashcroft, 239 F.3d
542, 549 (3d Cir. 2001).
We must review the BIA’s statutory interpretation of the
INA under the deferential standard of Chevron U.S.A. v.
Natural Res. Def. Counsel, 467 U.S. 837 (1984). In Fatin v.
INS, 12 F.3d 1233 (3d Cir. 1993), we stated, “ ‘[I]f the
statute is silent or ambiguous with respect to the specific
issue, the question for the court is whether the agency’s
answer is based on a permissible construction of the
statute.’ ” Id. at 1239 (quoting Chevron, 467 U.S. at 843).
On the other hand, we must treat the BIA’s findings of
fact as “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B). In Abdille v. Ashcroft, we held that
“ ‘persecution’ and ‘well-founded fear of persecution’ are all
findings of fact that we review under the deferential
3. Board Member Espenoza concurred in the majority’s reversal of the
IJ’s adverse credibility finding and in the majority’s finding that Lukwago
did not establish that he was a member of a “particular social group.”
AV1 at 11. However, she dissented in part because she found that
Lukwago was “likely to have an anti-government political opinion
imputed to him,” and would have remanded for further consideration of
whether Lukwago had a well-founded fear of persecution on account of
that imputed political opinion. AV1 at 11. She also disagreed with the
majority’s rejection of Lukwago’s request for withholding of removal
under the CAT. AV1 at 11.
8
substantial evidence standard” and the BIA’s findings must
be upheld “unless the evidence not only supports a
contrary conclusion, but compels it.” 242 F.3d 477, 483-84
(3d Cir. 2001). We will reverse “only if a reasonable fact-
finder would have to conclude that the requisite fear of
persecution existed.” Id. at 484 (citation omitted).
IV.
DISCUSSION
Lukwago challenges the BIA’s decision denying his
applications for asylum, withholding of removal under INA
§ 241(b)(3), and withholding of removal under the CAT. In
considering Lukwago’s petition, we must give his testimony
the benefit of the BIA’s acceptance of his credibility. See
supra p. 5. On appeal, the INS does not challenge
Lukwago’s testimony.
A.
APPLICATION FOR ASYLUM
Congress established a new statutory procedure for
granting asylum to refugees with the enactment of the
Refugee Act of 1980. That Act added a new section 208(a),
now section 208(b), to the INA which gave the Attorney
General discretion to grant asylum to an alien who meets
the burden of showing that s/he qualifies as a “refugee”
under INA § 101(a)(42)(A). See Abdille, 242 F.3d at 482. The
INA defines a refugee as:
any person who is outside any country of such
person’s nationality . . . 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.
8 U.S.C. § 1101(a)(42)(A).
9
Thus, a refugee may be one who suffered past
persecution on account of one of the enumerated grounds
or fears future persecution on account of one of those
grounds. Lukwago contends that he qualifies as a refugee
because he was persecuted on account of his membership
in the “particular social group” of children from Northern
Uganda who are abducted and enslaved by the LRA and
oppose their involuntary servitude. Pet.’s Br. at 14. He also
claims that he has a well-founded fear of future persecution
by the LRA or the Ugandan government on account of his
membership in the “particular social group” of former child
soldiers who have escaped LRA enslavement or on account
of imputed political opinions. Pet.’s Br. at 26.
1.
PAST PERSECUTION
To qualify for asylum based on past persecution, the
applicant first must show that s/he suffered persecution.
Persecution “does not encompass all treatment that our
society regards as unfair, unjust, or even unlawful or
unconstitutional.” Fatin, 12 F.3d at 1240. Rather, we have
defined persecution as including “threats to life,
confinement, torture, and economic restrictions so severe
that they constitute a real threat to life or freedom.” Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (citation omitted).
The BIA did not deny that Lukwago was persecuted by
the LRA and Lukwago’s testimony was graphic on that
score. Lukwago witnessed the LRA murder his parents:
Q. The night that your parents were killed, what
happened first?
A. The rebels come and they start to kick the door
and start shooting. And then my parents, they opened
the back door and then when we start to run, the
rebels, they shoot my parents.
C.A.R. at 200.
He was abducted from his home and was held captive
against his will:
10
Q. And what happened after your parents were shot?
A. The rebels, they take me.
Q. And how did the Lord’s Resistance Army take you?
How did they force you to go with them?
A. They tie me on the rope, on the hand with other
three people and then they take us to the camp.
C.A.R. 201; App. at 5.
The LRA forced him to perform manual labor using
threats of physical harm. He testified,
We had to fetch water, to fetch firewood and also
when we go to fight, they also give us the gun and they
put us in the front and, and we go to fight. Also when
we fight, they tell us to, to remove the uniform from the
dead soldiers. The uniform and the, and the gun and
the shoes.
C.A.R. at 205.
He was repeatedly threatened and was beaten on more
than one occasion for failing to adhere to LRA orders.
C.A.R. at 206-07, 218-19. Lukwago was exposed to the
killing and physical torture of his fellow captives, innocent
civilians, and government soldiers. C.A.R. at 205-06, 229-
30, 265. He stated,
We steal those people’s food, their animals, bombing
their houses and sometimes the rebels, they cut the
people’s, the people’s lips like this here. This and
sometime they, their fingers.
C.A.R. at 230.
Moreover, he was forced to place his life in jeopardy in
battles against government forces. C.A.R. at 205-06. He
was subjected to all of this physical and psychological
abuse as a mere 15 year old boy. He was confined against
his will for four months, only to escape in the face of a
significant risk of death. There could be no question that
the LRA’s treatment of Lukwago “constitute[d] a real threat
to [his] life or freedom.” Lin, 238 F.3d at 244.
The INS argues that forced military conscription does not
constitute persecution. Lukwago responds that the INS did
11
not raise this argument in the proceedings before the
agency, and we see nothing in either the IJ’s opinion or
that of the BIA to suggest to the contrary. Nonetheless, we
will consider the INS’ argument but we do not find it
persuasive, in large part because the authority on which
the INS relies is inapplicable to Lukwago’s situation.
It is generally accepted “that a sovereign nation enjoys
the right to enforce its laws of conscription, and that
penalties for evasion are not considered persecution.” M.A.
v. United States INS, 899 F.2d 304, 312 (4th Cir. 1990) (en
banc). We cited the M.A. opinion in Chang v. INS, 119 F.3d
1055, 1060 (3d Cir. 1997), as an example of cases which
rejected the notion that the fear of violating generally
applicable laws does not constitute persecution. In M.A.,
the conscription at issue was by the government in power
to serve in its armed forces. We also are not inclined to
suggest that a government that drafts its citizens for
military service engages in persecution. After all, this
country has, until recently, partially filled its armed
services through the draft and may decide to do so in the
future.
Conscription into service by guerrillas engaged in attacks
on the established government is an entirely different
matter. Lukwago did not violate a legitimate conscription
requirement established under Ugandan law. Instead, he
was forcibly abducted by a guerrilla organization that was
mounting attacks against the established government.
The INS cites the Supreme Court decision in INS v. Elias-
Zacarias, 502 U.S. 478 (1992), to support its position that
forcible conscription by a guerrilla organization, in and of
itself, is not persecution “on account of” a protected
characteristic within the meaning of the INA. It argues that
“[t]he political aims of the guerrilla force are not enough to
compel a finding that the forced recruitment was a political
act, or that resistance to being kidnaped was an expression
of political opinion, or that threats and violence in
retaliation for resistance or escape were politically
motivated.” Resp. Br. at 38 (citing Elias-Zacarias, 502 U.S.
at 481-83).
The record in Elias-Zacarias was much different than that
presented here by Lukwago. In Elias-Zacarias the petitioner
12
sought asylum after one instance in which two armed
uniformed guerrillas asked him and his parents to join with
them, and told them they would be back after they refused
the guerrillas. The Supreme Court majority held that a
guerrilla organization’s attempt to coerce a person into
performing military service does not necessarily constitute
“persecution on account of . . . political opinion,” id. at 479,
and upheld the determination of the BIA to deny asylum.
Significantly, Elias-Zacarias was not forcibly conscripted,
only asked to join the guerrillas. There is nothing in the
Supreme Court opinion to suggest that forced conscription
by a guerrilla organization cannot constitute persecution.
Instead, the Court held that Elias-Zacarias failed to
demonstrate that such persecution, if any, was on account
of his political opinion or any other protected ground. Id. at
481-83. Even if forced conscription by a guerrilla
organization alone would not qualify a victim for asylum
that does not mean that, in appropriate circumstances, it
cannot constitute persecution.
The Court of Appeals for the Fourth Circuit, in its opinion
holding that penalties for draft evasion are not considered
persecution, excepted the situation where “refusal to serve
in the military results not in normal draft evasion penalties,
but rather in disproportionately severe punishment. . . .”
M.A., 899 F.2d at 312. It would be anomalous to consider
Lukwago’s enslavement to be “punishment” under this
exception but it was certainly not less than
“disproportionately severe punishment” for refusal to serve.
Lukwago provided testimonial and documentary evidence
that the LRA kills abducted child rebels who attempt to
escape. In fact, Lukwago witnessed the killing of at least
two children who unsuccessfully attempted to escape LRA
confinement. The threat of death is not a normal draft
evasion penalty and, once again, we can conceive of no
reasonable factfinder who would not agree that it qualifies
as persecution.
Moreover, Lukwago’s persecution by the LRA was not
limited to forced military service. He also endured physical
and psychological abuse. He was forced to kill his friend, to
watch the murder of his parents, and to view the mutilation
of innocent civilians. Thus, to the extent that the BIA
13
rejected Lukwago’s claim of past persecution because it
equated forced captivity with conscription into a
government’s armed services, it erred as a matter of law.
Lukwago’s confinement and treatment by the LRA may
constitute persecution under the INA.
But a demonstration by Lukwago of past persecution
would not be enough to qualify him for asylum. As the BIA
correctly stated, an applicant has the burden of showing
that the persecution was on account of the applicant’s race,
religion, nationality, membership in a particular social
group, or political opinion. 8 C.F.R. § 208.13(b)(1); see
Elias-Zacarias, 502 U.S. at 481-83 (applicant must show
some evidence that persecution due to one of the
enumerated grounds). When determining if an applicant
has suffered persecution on account of protected grounds,
we must look beyond the applicant’s conduct to the
persecutor’s motives. Chang, 119 F.3d at 1063. As the
Supreme Court explained in Elias-Zacarias, the INA “makes
motive critical,” and therefore, although an applicant is not
required to provide direct proof of his persecutor’s motives,
“he must provide some evidence of it, direct or
circumstantial.” 502 U.S. at 483 (emphasis in original). A
persecutor may have multiple motivations for his or her
conduct, but the persecutor must be motivated, at least in
part, by one of the enumerated grounds. See Chang, 119
F.3d at 1065 (finding persecution on account of political
opinion where persecutor’s action was “motivated, at least
in part” by the applicant’s political opinion). The BIA held
that Lukwago failed to show that the LRA persecuted him
based on any of the statutorily enumerated grounds. AV1
at 8.
Lukwago does not argue that the LRA persecuted him
because of his race, religion or nationality, and he failed to
demonstrate that the LRA’s past abduction and persecution
of him was on account of his political opinions. He does not
argue in his brief that he opposed the LRA movement or its
political opinions prior to his abduction. In Elias-Zacarias,
the Supreme Court held that persecution of persons
refusing to join guerilla forces was not persecution on
account of political opinion where the guerrillas were
motivated solely by their need to fill their ranks. 502 U.S.
14at 482-83. Similarly, Lukwago has not shown that his
abduction and persecution by the LRA was motivated by
any reason other than the LRA’s need for additional labor
and soldiers.
Instead, Lukwago contends that he was persecuted
because of his membership in a “particular social group,”
the only protected ground remaining. In Fatin, this court
laid out the three requirements to qualify for asylum on
account of membership in a “particular social group”: (1)
the applicant must identify a group that constitutes a
“particular social group;” (2) the applicant must establish
that s/he is a member of that group; and (3) the applicant
must show that s/he was persecuted based on that
membership. 12 F.3d at 1240.
The contours of what constitutes a “particular social
group” are difficult to discern. We have noted that the
“statutory language standing alone is not very instructive”
and that, “in its broadest literal sense, the phrase is almost
completely open-ended.” Id. at 1238. We stated that “[b]oth
courts and commentators have struggled to define
‘particular social group.’ ” Id. (footnotes omitted). Moreover,
the legislative history of the INA fails to “shed[ ] much light
on the meaning of the phrase ‘particular social group.’ ” Id.
at 1239. However, given the ambiguity of the language, our
role is limited to reviewing the BIA’s interpretation, using
Chevron deference to determine if it is a “permissible
construction of the statute.” Id. (citation omitted).
The Courts of Appeals have varied in their interpretations
of the phrase. For example, the Ninth Circuit has defined a
“particular social group” as entailing a “voluntary
associational relationship” among its members. Sanchez-
Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986). That
court rejected a claim that “young, urban, working class
males of military age who had never served in the military”
qualified as a “particular social group,” and held instead
that the phrase “implies a collection of people closely
affiliated with each other, who are actuated by some
common impulse or interest.” Id. at 1573, 1576. On the
other hand, the Second Circuit has construed a “particular
social group” as “individuals who possess some
fundamental characteristic in common which serves to
15
distinguish them in the eyes of a persecutor.” Gomez v. INS,
947 F.2d 660, 664 (2d Cir. 1991). That court focused on
whether members of the group share a “recognizable and
discrete” characteristic. Id.We analyzed the meaning of a “particular social group” in
Fatin. Giving proper deference to the BIA, we accepted the
definition for a “particular social group” developed by the
BIA in Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA
1985), overruled in part as stated in Matter of Mogharrabi,
19 I. & N. Dec. 439 (BIA 1987). In Acosta, the BIA reasoned
that a “particular social group” refers to “a group of persons
all of whom share a common, immutable characteristic.” Id.The BIA then noted that “whatever the common
characteristic that defines the group, it must be one that
members of the group either cannot change, or should not
be required to change because it is fundamental to their
individual identities or consciences.” Id.The Courts of Appeals of the First Circuit and the
Seventh Circuit also have endorsed the Acosta definition.
See Ananeh-Firempong v. INS, 766 F.2d 621, 626 (1st Cir.
1985) (The alleged facts “show that the threat of
persecution arises out of characteristics that are essentially
beyond the petitioner’s power of change.”); Lwin v. INS, 144
F.3d 505, 512 (7th Cir. 1998) (“[w]e believe that the best
approach is to accept the formulation [of a particular social
group] proposed by the BIA in Acosta”).
Lukwago asserts that he is a member of the “particular
social group” of children from Northern Uganda who are
abducted and enslaved by the LRA and oppose their
involuntary servitude. The BIA rejected Lukwago’s proffered
social group on two grounds. First, the BIA seemed to
question whether a group based on age may qualify as a
“particular social group.” AV1 at 8. Second, even if age is a
“particular social group,” the BIA found that the LRA did
not target Lukwago because of his age. AV1 at 8.
It is undeniable that youth is an important component of
a child’s identity. Children share many general
characteristics, such as innocence, immaturity, and
impressionability. However, unlike innate characteristics,
such as sex or color, age changes over time, possibly
16
lessening its role in personal identity. Moreover, children as
a class represent an extremely large and diverse group, and
children, even within a single neighborhood, have a wide
degree of varying experiences, interests, and traits. See
Gomez, 947 F.2d at 664 (“Possession of broadly-based
characteristics such as youth and gender will not by itself
endow individuals with membership in a particular
group.”).
Lukwago contends that the BIA erred by not considering
the limitation in his proffered social group, i.e. those
“children from Northern Uganda who are abducted and
enslaved by the LRA and oppose their involuntary servitude
to the LRA.” Pet’s Br. at 14. The INS counters that a social
group cannot be created by the alleged underlying
persecution. We agree that under the statute a “particular
social group” must exist independently of the persecution
suffered by the applicant for asylum. Although the shared
experience of enduring past persecution may, under some
circumstances, support defining a “particular social group”
for purposes of fear of future persecution, it does not
support defining a “particular social group” for past
persecution because the persecution must have been “on
account of” a protected ground. INA § 101(a)(42)(A).
Therefore, the “particular social group” must have existed
before the persecution began.
Lukwago offered testimonial and documentary evidence
that the LRA targets children for abduction. He argues that
the LRA’s choice to kill his parents but abduct him shows
that the LRA targets children. He also submitted an
Amnesty International report which stated that, for the
LRA, “[t]aking children is a systematic choice: most of those
abducted are between 13 and 16 years old. Younger
children are generally not strong enough to carry weapons
or heavy loads while older children are less malleable to the
will of their abductors.” C.A.R. at 820 (Amnesty
International, “Uganda: ‘Breaking God’s Commands’: the
destruction of childhood by the Lord’s Resistance Army,” 18
Sept. 1997). In addition, Dr. Susan Dicklich, an expert
witness,4 who verified the LRA practice of abducting
4. Dr. Dicklich, who has traveled to Uganda as an affiliate of the Mack
Curry Institute for Social Research, has written on the country and its
conditions. App. at 78-79. The INS did not object to her expertise. App.
at 77.
17
children, testified that it is “very well documented in the
Human Rights Watch reports, Amnesty International as
well as the United States State Department reports on
human rights practices in Uganda.” C.A.R. at 274. She
elaborated, stating that the LRA abducts children during
raids on villages and schools. C.A.R. at 274-75.
Despite the evidence in support of the LRA’s practice of
targeting children, there was also evidence in the record
that the LRA indiscriminately persecutes civilians
regardless of age. For example, the response by the INS
Resource Information Center (“RIC”) to an information
request quoted an Amnesty International report, Amnesty
International, “Uganda: Breaking the Circle: Protecting
Human Rights in the Northern War Zone,” 17 March 1999,
stating that “the LRA has abducted thousands of children
and adults, has unlawfully killed hundreds, possibly
thousands, of civilians, has raped thousands of women and
beaten thousands of men, women and children.” C.A.R. at
496-97. The Amnesty International report continues, “[t]he
control of the civilian population is a strategic issue for the
government’s Uganda Peoples’ Defence Forces (UPDF) as
well as for the LRA . . . . This puts civilians of all ages at
the heart of the conflict, rendering them especially
vulnerable to human rights abuse on both sides.” C.A.R. at
503. The RIC also noted an article by Child Newsline which
quoted the story of a former child captive. The interviewee
stated, “[m]y first killing was hacking someone with a pagna
(curved machete) . . . . He was a civilian, an adult, 30 years
old. He was abducted [by the LRA], then he tried to escape,
so they made me kill him.” C.A.R. at 496.
Finally, Lukwago has conceded that the night he was
abducted, the LRA also abducted three adults from his
village.5 He admitted that adults were held as captives at
5. Q. Were there other children with you? Were you alone [while
marching to the LRA camp after his abduction]?
A. No. Older people than me. Three people.
Q. Older than you?
A. Yes.
Q. Three?
A. Yes.
C.A.R. at 253-54.
18
the LRA camp.6
Lukwago also failed to show that the LRA targets children
who oppose abduction. It is to be expected that most
Northern Ugandan children fear and oppose their abduction
by the LRA. Lukwago provides no evidence that he publicly
opposed the LRA prior to his capture or was politically
opposed to the LRA. See Elias-Zacarias, 502 U.S. at 483(rejecting asylum claim because applicant failed to show
that guerilla forces would persecute him on account of a
protected ground, “rather than because of his refusal to
fight with them”).
Based on the evidence in the record, the BIA’s finding
that the LRA did not target Lukwago for persecution based
on his age is supported by substantial evidence. The BIA
found that the LRA abducted Lukwago due to its need for
labor, not on account of his membership in any “particular
social group.” AV1 at 8. The evidence does not compel a
conclusion contrary to the BIA’s finding. Abdille, 242 F.3d
at 483-84.
2.
GRANT OF ASYLUM FOR HUMANITARIAN REASONS
Lukwago also claims that he is entitled to a discretionary
grant of asylum for humanitarian reasons based solely on
past persecution, even if there were little risk of future
persecution. Pet.’s Br. at 21. In Matter of Chen, 20 I. & N.
6.
Q. Were there any people being held [at the LRA camp] that you
could tell as captives other than children?
A. Yes. And us, they were big, bigger than us. Bigger than us.
Q. Yes.
A. Yes.
Q. How many of those were there?
A. There were many. I don’t know the number.
C.A.R. at 220-21.
19
Dec. 16 (BIA 1989), the BIA recognized that in limited
circumstances an applicant may be granted asylum without
demonstrating a future threat of persecution. The BIA
stated:
If an alien establishes that he has been persecuted in
the past for one of the five reasons listed in the statute,
he is eligible for a grant of asylum. The likelihood of
present or future persecution then becomes relevant as
to the exercise of discretion, and asylum may be denied
as a matter of discretion if there is little likelihood of
present persecution. . . .
However, there may be cases where the favorable
exercise of discretion is warranted for humanitarian
reasons even if there is little likelihood of future
persecution. . . .
“It is frequently recognized that a person who—or
whose family—has suffered under atrocious forms of
persecution should not be expected to repatriate.”. . .
Thus, while the likelihood of future persecution is a
factor to consider in exercising discretion in cases
where an asylum application is based on past
persecution, asylum may in some situations be granted
where there is little threat of future persecution.
Id. at 18-19 (quoting the Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of
Refugees (Geneva, 1979)).
In Chen, the BIA found that the applicant suffered past
persecution on account of his religion, but that due to a
regime change in China he did not have a well-founded fear
of future persecution on account of his religion. Id. at 20-
21. Yet, because of the severity of the persecution suffered
by the applicant, the BIA granted Chen asylum for
humanitarian reasons. Id. at 21.
Although we would characterize the persecution endured
by Lukwago as atrocious and severe, Lukwago’s case is
distinguishable from Chen. The BIA found Chen had
suffered past persecution on account of his religion, an
enumerated ground, whereas the BIA found that Lukwago
20
did not suffer past persecution on account of his
membership in a “particular social group,” a finding we
have upheld. Therefore, Lukwago, unlike Chen, is not
eligible for a grant of asylum. The BIA does not have
discretion to bypass the requirements of the INA
notwithstanding the severity of the persecution suffered by
the applicant.
3.
WELL-FOUNDED FEAR OF FUTURE PERSECUTION
An applicant who demonstrates that s/he has suffered
past persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion, triggers a rebuttable presumption of a well-
founded fear of future persecution, as long as that fear is
related to the past persecution. 8 C.F.R. § 208.13(b)(1). The
presumption only may be rebutted by an IJ’s finding by a
preponderance of the evidence that:
(A) There has been a fundamental change in
circumstances such that the applicant no longer has a
well-founded fear of persecution . . . on account of race,
religion, nationality, membership in a particular social
group, or political opinion; or
(B) 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.
Id. § 208.13(b)(1)(i). The INS has the burden of establishing
either changed circumstances or the reasonableness of
relocation. Id. § 208.13(b)(1)(ii). If an applicant meets all of
the statutory criteria, the Attorney General has discretion
to grant asylum, but “is not required to do so.” Fatin, 12
F.3d at 1238.
An applicant who fails to demonstrate past persecution
may still qualify for asylum by showing that s/he has a
well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion if returned to his or her native
21
country. For this purpose, the “particular social group” in
which Lukwago claims membership is children from
Northern Uganda who have escaped from involuntary
servitude after being abducted and enslaved by the LRA.
This differs from the class that he proffered in connection
with his claim for asylum for past persecution, as this
group is limited to former child soldiers who have escaped
LRA captivity.
Lukwago argues that he has a well-founded fear of
persecution by either the Ugandan Government, the LRA,
or both, if he is returned to Uganda. He asserts that he will
be persecuted by them either because of the “particular
social group” that he proffers and/or because of the
political opinion they impute to him. Because Lukwago’s
definition of the “particular social group” is limited to
escaped LRA child soldiers and that is also the basis of the
political opinion imputed to members of that social group
by the Ugandan Government and the LRA, we consider the
two grounds together.
The term “well-founded fear” has both a subjective and
objective component. Abdille, 242 F.3d at 495-96. An
applicant must “show that he has a subjective fear of
persecution that is supported by objective evidence that
persecution is a reasonable possibility.” Id. at 496 (citation
omitted).
As in Abdille, here the BIA does not challenge Lukwago’s
subjective fear of persecution. However, the question
remains whether that fear is objectively reasonable. On
appeal, Lukwago has the burden of showing that the record
would compel a reasonable adjudicator to find that he has
a well-founded fear of future persecution based on an
enumerated ground, in this case based on the “particular
social group” that Lukwago proffers or an imputed political
opinion.
a. Fear of Persecution by the Ugandan Government
In seeking our review of the BIA’s rejection of his claim of
a well-founded fear of persecution by the Ugandan
Government, Lukwago contends that if he is returned to
Uganda the Ugandan government will persecute him as a
former rebel fighter despite the fact that his participation
22
with the rebels was compelled by the LRA. He claims that
due to his past participation in rebel attacks and battles
against the government, the Ugandan government will also
impute to him an anti-government political opinion.
Lukwago has the burden of proof on this issue.
Lukwago proffers his own testimony as well as other
evidence to show that his fear of persecution by the
Ugandan Government is objectively reasonable. Lukwago
testified that after his escape, he feared being seen by the
government because he would be killed or put in prison.
C.A.R. at 214. In response to the question why the
government would do this, he replied “[b]ecause I was the
rebel fighting against the government.” C.A.R. at 214. Dr.
Dicklich also testified that any person the government
suspects of being a rebel will be killed. C.A.R. at 279.
The Department of State noted reports that the Ugandan
government detained LRA child soldiers for several months
and that “the military used the children to help find LRA
landmines and arms caches.” C.A.R. at 553. The RIC cited
a report that government soldiers opened fire on a group of
80 child rebels collecting water, killing at least 30 of the
children. C.A.R. at 497. The Human Rights Watch reports
that some children have been detained on treason charges
and subjected to physical abuse while in government
custody. C.A.R. at 505.
Despite these reports, the BIA rejected Lukwago’s claim,
based primarily on the fact that Uganda instituted an
amnesty policy for former rebels. The BIA stated that “the
grant of amnesty reflects a willingness on the part of the
government to disregard past rebel affiliation.” AV1 at 9.
The RIC report also notes that “the government’s policies
toward abducted LRA child soldiers who escape or are
captured has generally been more humane.” C.A.R. at 494.
Dr. Dicklich testified that the official Ugandan government
position is that child rebels “are usually taken to an army
barracks in Gulu in particular and then they’re given to
some of the NGOs [non-governmental organizations], in
particular there is an NGO World Vision Uganda takes
some of the child soldiers and does psychological treatment
for them.” C.A.R. at 279. She conceded that the government
23
has “given more sympathy to child soldiers in general.”
C.A.R. at 281.
A 1997 Amnesty International report summarized the
situation at the time of its inquiry as follows:
[T]he [government] is following a policy of encouraging
LRA soldiers to give themselves up. The authorities
emphasize that the majority of LRA fighters are
abducted children who have fought against their will.
Although they may have committed gross human rights
abuses, the fact of abduction and childhood allows the
government to follow a policy of reintegration rather
than punishment. Officially escaping or captured LRA
soldiers remain only a short time in military barracks
before being transferred to the non-governmental
organizations World Vision or GUSCO for counselling
and therapy. It appears that this official policy is in
general what happens in practice.
C.A.R. at 497-98.
Lukwago contends that the Ugandan government does
not adhere to its official amnesty policy. Dr. Dicklich
testified that “the presidential amnesty doesn’t always
trickle down in terms of being known to [government]
soldiers . . . . So I would have my doubts about the
effectiveness of the presidential amnesty on rebels.” C.A.R.
at 279-80. The Ugandan government has denied these
allegations, C.A.R. at 848, and Amnesty International
reports that the “vast majority” of former child soldiers who
were interviewed stated they were treated well. C.A.R. at
848. Following the oral argument, Lukwago’s counsel sent
the court, without comment, the 2002 Uganda Country
Report issued March 31, 2003. That Report states, inter
alia, that “the Government has made limited progress in
implementing provisions in the amnesty act related to the
repatriation and resettlement of former rebels because of
funding constraints.” 2002 Country Report at 12. Even if
we could consider that information, it does not detract from
the opinion of the United States Embassy in Kampala that
it would be unlikely that the Ugandan government would
harm former abductees. C.A.R. at 487-88. Moreover, there
is nothing in the record to suggest that the Ugandan
24
government would impute to former child soldiers an anti-
government political opinion independent of their status as
former child soldiers.
It follows, based on the record before the BIA, that its
finding that Lukwago does not have a well-founded fear of
persecution by the Ugandan Government on account of his
membership in a “particular social group” or an imputed
anti-government political opinion is supported by
substantial evidence in the record, and we have no basis to
disturb it.
b. Fear of Persecution by the LRA
Lukwago’s claim of fear of future persecution from the
LRA if he is returned to Uganda has considerably more
support in the record. In its brief on appeal, the INS
concedes that the Amnesty International report in the
record states that northern villages “shunned escaped
abductees, for fear of reprisal by the LRA.” Resp.’s Br. at 51
n.10. Nonetheless, the BIA rejected Lukwago’s claim of a
well-founded fear of future persecution from the LRA
because it found that he failed to show that “he is in any
greater danger than other members of Uganda’s population
based on the fact that he is a person who, as a youth, was
forced to fight with [the LRA] but escaped.” AV1 at 8. The
BIA noted that Lukwago “is no longer a member of that
broadly-defined social group of ‘children,’ in that he is now
an adult.” AV1 at 8. The BIA also found that the record
failed to demonstrate that the LRA purposefully tracks
down escaped captives over time, especially given that a
number of years have passed since Lukwago escaped from
the LRA. AV1 at 8.
In considering whether Lukwago met his burden to
demonstrate a well-founded fear of future persecution on
account of one of the INA’s protected categories, we must
examine the Supreme Court’s discussion of that statutory
requirement in its opinion in INS v. Cardoza-Fonseca, 480
U.S. 421, 431 (1987). In that opinion the Court compared
the standard in § 243(h) of the INA for withholding of
deportation (“it is more likely than not that the alien would
be subjected to persecution” in the country to which he
would be returned) with the standard for asylum in § 208(a)
25
(“well-founded fear of persecution”). Id. at 423. The Court
rejected the INS’ position that § 208(a) requires a showing
that persecution would be more likely than not. Id. In that
connection, the Court analyzed the § 208(a) standard and
stated that “the reference to ‘fear’ in the § 208(a) standard
obviously makes the eligibility determination turn to some
extent on the subjective mental state of the alien.” Id. at
430-31. The Court provided some additional guidance when
it explained that “[o]ne can certainly have a well-founded
fear of an event happening when there is less than a 50%
chance of the occurrence taking place.” Id. at 431.
The Court illustrated the point in its next sentence:
As one leading authority has pointed out:
“Let us . . . presume that it is known that in the
applicant’s country of origin every tenth adult male
person is either put to death or sent to some remote
labor camp. . . . In such a case it would be only too
apparent that anyone who has managed to escape from
the country in question will have ‘well-founded fear of
being persecuted’ upon his eventual return.” 1A. Grahl-
Madsen, The Status of Refugees in International Law
180 (1966).
This ordinary and obvious meaning of the phrase is not
to be lightly discounted.
Id. (citations omitted).
An applicant may use testimonial, documentary, or
expert evidence to show both a subjective and an
objectively reasonable fear of future persecution. We stated
in Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir.
1998), that if documentary evidence is lacking, an
“applicant’s credible, persuasive, and specific testimony
may suffice” to establish an objective fear of persecution.
Lukwago was not required to show that persecution would
be more likely than not or even probable. Lukwago was only
required to show that his fear was subjective and
objectively reasonable. Gomez, 947 F.2d at 663; Lwin, 144
F.3d at 509.
We thus turn to apply these general standards to
Lukwago’s case. The BIA denied Lukwago’s claim that he
26
had a well-founded fear of persecution by the LRA on three
bases. The relevant paragraph of its opinion is set forth in
the margin.7 The BIA stated that Lukwago is no longer a
child and that he has not shown that he might be in any
greater danger than other members of Uganda’s population.
The BIA’s reference to Lukwago no longer being a child is
not to the point because Lukwago does not assert, for
purposes of his claim of a well-founded fear of future
persecution, a social group based on age. He asserts that
he is a member of the group of former child soldiers who
have escaped.
We incorporate here our prior discussion of the
characteristics of a “particular social group” in the context
of past persecution. See supra at 14-15. We note, however,
that the issue presented for purposes of this discussion is
distinguishable from the prior discussion in that this group
is not dependent on a member’s current age, but rather the
shared experience of abduction, persecution and escape at
a time when he was a child. The INS has offered no
persuasive reason why a “particular social group” under the
INA may not consist of former child soldiers who have
escaped LRA enslavement. In fact, when the BIA defined a
7.
Nor has the respondent established that he has a well-founded fear
of persecution by the LRA in the future based on his membership in
a particular social group. His claim is that if he returns to Uganda
LRA members are going to recognize him as a former abducted child
who escaped, and they will take him back to the camps and kill him
in front of the children who are there. We first note, however, that
the respondent is no longer a member of that broadly-defined social
group of “children,” in that he is now an adult. Moreover, although
he presented some evidence that children who attempt to escape and
are caught are harmed, he presented no evidence that persons who
have successfully escaped are sought out or harmed at a later date.
Although the background evidence supports his concern that he
might be in danger from the LRA upon return, he has not submitted
any evidence to indicate that he is in any greater danger than other
members of Uganda’s population based on the fact that he is a
person who, as a youth, was forced to fight with them but escaped.
AV1 at 8 (emphasis added).
27
“particular social group” in Acosta as “a group of persons
all of whom share a common, immutable characteristic,” it
stated, “[t]he shared characteristic might be an innate one
such as sex, color, or kinship ties, or in some
circumstances it might be a shared past experience such as
former military leadership or land ownership.” 19 I. & N.
Dec. at 233. In Fatin, we accepted gender as a basis for a
“particular social group,” noting that in Acosta, “the Board
specifically mentioned ‘sex’ as a[ ] . . . characteristic that
could link the members of a ‘particular social group.’ ”
Fatin, 12 F.3d at 1240. Similarly, membership in the group
of former child soldiers who have escaped LRA captivity fits
precisely within the BIA’s own recognition that a shared
past experience may be enough to link members of a
“particular social group.” Acosta, 19 I. & N. Dec. at 233.
Lukwago’s proffered group is not dissimilar from that
suggested in Acosta where the BIA stated that the shared
characteristic “might be a shared past experience such as
former military leadership.” Id.
Lukwago shares the past experience of abduction,
torture, and escape with other former child soldiers. His
status as a former child soldier is a characteristic he
cannot change and one that is now, unfortunately,
fundamental to his identity. See Lwin, 144 F.3d at 512(concluding parents of student dissidents share a
“ ‘common immutable characteristic’ sufficient to comprise
a particular social group”) (citation omitted). Inasmuch as
we interpret the INA’s reference to a “particular social
group” to include the definition Lukwago has proffered, the
record fully supports his claim that he is a member of the
alleged “particular social group” and that he has a
subjective fear of persecution by the LRA.
Therefore, the remaining question is whether Lukwago
has demonstrated that there is a reasonable probability
that the LRA will target him for future persecution if he
returns to Uganda. We use the substantial evidence
standard to review the BIA’s finding of no reasonable fear.
Lukwago submitted extensive evidence in support of his
fear of LRA retaliation. Lukwago testified that after he
escaped, he hid in his uncle’s house and was afraid to go
outside. He testified that he was scared of the LRA, stating,
28
“if they see me, they catch me and take me back to the
camp. And they kill me in front of the other children.”
C.A.R. at 214. His testimony is supported by his
observations of the LRA’s killing of other child soldiers who
were unsuccessful in their attempts to escape.
His fear is also supported by Dr. Dicklich’s expert
testimony.8 She stated that if children who try to escape are
caught by the LRA, they are usually killed to make an
example out of them. C.A.R. at 277. She also testified that
“[Lukwago] could very well be subject[ed] to torture and
possible death if he were returned to Uganda,” noting that
he is a “wanted man by both [the LRA and the government]
in my estimation.” C.A.R. at 282-83. She explained:
If he returned to the north, it would be highly likely. If
he were to return to Kampala, it would be likely and if
I were to do that on a scale of 1 to 10, my assessment
would be if he were returned to the north, he would
have an 8 out of 10 in terms of being apprehended or
re-abducted by the Lord’s Resistance Army. In terms of
going, for example, to Kampala where the Lord’s
Resistance Army has been known to bomb Kampala,
just this past year, there’s a likelihood of 6 or 7.
C.A.R. at 283. Even outside Northern Uganda, Dr. Dicklich
believed that “given his background and knowing that he
was a former LRA rebel, the likelihood [of persecution]
increases.” C.A.R. at 284-85.
The BIA’s finding that Lukwago “presented no evidence
that persons who have successfully escaped are sought out
or harmed at a later date,” AV1 at 8, is not supported by
the record. On the contrary, the record shows that the LRA
kills children who fail in their escape attempts and,
applicable here, that the LRA also engages in retaliatory
conduct to punish children who have successfully escaped.
8. We find Dr. Dicklich’s testimony to have been important regarding a
number of aspects of Lukwago’s claims. However, her testimony is not
discussed in the BIA’s opinion and we are not certain to what extent the
BIA took it into account. Obviously, as we are remanding, the BIA
should give due consideration to this evidence if it did not do so
previously.
29
Not only did Dr. Dicklich testify that such former child
rebels are at greater risk of persecution by the LRA, but the
Human Rights Watch report also documents cases of
retaliation by the LRA. The response of the RIC, a branch
of the INS, stated: “[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 if members of the rebel forces were to see
and recognize him/her.” C.A.R. at 494. The RIC cited a
1997 Human Rights Watch report which acknowledged that
failed escape attempts end in death. C.A.R. at 495. In
addition, even when escape attempts are successful the
LRA engages in retaliatory conduct — “[f]ailed escape
attempts continue to be punished by death, and successful
escape attempts lead to retaliation: if one sibling escapes,
the rebels often kill the other sibling, or return to the
child’s home village and slaughter any surviving relatives.”
C.A.R. at 495.
Based on the record, we conclude that substantial
evidence does not support the BIA’s determination that the
group of escaped child soldiers is in no greater danger from
the LRA than other members of the Ugandan population.
Even if the group of former child soldiers were not in
markedly more danger from the LRA, Lukwago’s fear that
he personally will suffer future persecution by the LRA if
returned to Uganda may be well founded.
In his reply brief Lukwago notes that his public
statements about his experience as a captured child soldier
have thrust him into the position of a public figure. He
states that his “application for asylum and his subsequent
appeals are public record and have drawn the attention of
various United States government organizations, the United
Nations, and many other organizations within the public
sphere.” Pet.’s Reply Br. at 21. He also notes:
[he] is featured in a Documentary entitled “Armed and
Innocent,” which was first presented at the United
Nations Special Session on Children and seen by
diplomats, representatives, and members of the media
from around the word. Segments of this Documentary
in which [Lukwago] was featured were broadcasted on
MSNBC. On August 4, 2002, [Lukwago’s] case as
30
written by Melissa Dribben, including his picture and
statements made in his affidavit and asylum
application, was featured as the cover story of the
Philadelphia Inquirer Magazine in the Sunday edition of
the Philadelphia Inquirer. [Lukwago’s] picture and the
article were also featured on the Philadelphia Inquirer’s
website. On September 15, 2002, the Associated Press
released an article written by Tina Moore on
[Lukwago’s] appeal, which was printed or placed on the
Internet versions of several leading newspapers
nationwide, including the Boston Globe, Washington
Post, New York Times, and Sun-Sentinel.
Pet.’s Reply Br. at 21-22.
The INS argues that the LRA will not be able to identify
Lukwago after more than a five-year absence but cites to no
evidence as the basis for that argument. Lukwago asks us
to take judicial notice of the considerable amount of
publicity that his case has received which leads him to
state that it is reasonable to conclude that there is at least
a 10% chance that he will be seen and recognized by the
LRA. If Lukwago has become a public person, there is no
reason to believe that his widespread reports of
enslavement by the LRA would not have come to the LRA’s
attention. If the LRA is able to retaliate against an escaped
child’s village or family, it is not unreasonable to believe its
members could retaliate against the escaped child himself
or herself. Of course, it would not be appropriate for this
court to decide the relevance of the material referred to by
Lukwago in the first instance. We will instead remand so
that the BIA can determine what effect such widespread
publicity has on Lukwago’s well-founded fear of future
persecution by the LRA and whether the record should be
reopened to accept that patently relevant material.9 See,
e.g., Miller v. United States INS, 762 F.2d 21, 24-25 (3d Cir.
1985).
9. Because we will remand to the BIA, we need not decide the scope of
judicial notice that would be appropriate in light of the statutory
provision that limits our review to matters on the record before the BIA.
See 8 U.S.C. § 1252(b)(4)(A).
31
The INS asserts that Lukwago only has a well-founded
fear of persecution if he is returned to Northern Uganda.
The INS regulations require that an applicant claiming fear
of persecution by a non-governmental entity “avoid
persecution by relocating to another part of the applicant’s
country of nationality or, if stateless, another part of the
applicant’s country of last habitual residence, if under all
the circumstances it would be reasonable to expect
the applicant to do so.” 8 C.F.R. §§ 208.13(b)(2)(ii),
208.13(b)(3)(i).
Lukwago, who had the burden on this issue, provided
evidence in the record that relocation would not eliminate
the risk of persecution and that relocation would be
unreasonable. Dr. Dicklich testified that the “LRA has a
longer reach than just in the north.” C.A.R. at 285. She
also testified that given Lukwago’s background as a former
child soldier he is at a higher risk of harm by the LRA than
the general Ugandan population. C.A.R. at 284-85. On the
question of relocation, Dr. Dicklich stated that kinship is
important in Ugandan culture and that “[y]ou don’t want to
move too far from your roots.” C.A.R. at 298. Moreover,
Lukwago’s absence of family in other parts of Uganda
would result in a high likelihood that Lukwago would be
homeless and on the streets. C.A.R. at 285.
The BIA did not decide the issue of whether relocation
would abate the risk of persecution by the LRA and
whether it would be reasonable. Therefore, on remand the
BIA should consider the issue of relocation. See INS v.
Ventura, 123 S.Ct. 353, 355 (2002) (reversing the judgment
of the Court of Appeals and remanding to the BIA because
it had not considered the issue of changed circumstances).
Finally, we consider Lukwago’s argument that as an
escaped captive the LRA will persecute him based on
imputed anti-LRA political opinions. The Court of Appeals
for the Seventh Circuit has explained that “[a]n imputed
political opinion is a political opinion attributed to the
applicant by his persecutor.” Lwin, 144 F.3d at 509. We
have also held that “[t]he persecution may be on account of
a political opinion the applicant actually holds or on
account of one the foreign government has imputed to
him.” Balasubramanrim, 143 F.3d at 164 n. 10; see also
32
Estrada-Posadas v. United States INS, 924 F.2d 916, 919
(9th Cir. 1991) (“[O]n limited occasions, certain conscious
and deliberate acts or decisions by an alien may establish
a well-founded fear of persecution on account of imputed
political opinion, but only when a persecutor attributes
political beliefs to the alien as a result of these acts or
decisions”). Here, Lukwago asserts that the LRA will impute
to him an anti-LRA political opinion because he escaped
enslavement. As is often the case, Lukwago’s political
opinion argument is entwined with his social group claim.
See Fatin, 12 F.3d at 1242.
For an imputed political opinion claim, Lukwago must
show that the LRA has attributed to him an anti-LRA
political opinion and that he has a well-founded fear of
persecution based on that imputed political opinion. In an
affidavit, Lukwago stated, “[b]ecause I was taken by the
LRA and I escaped, I am a target for the LRA. They assume
that people who escape are against what they stand for and
they kill them.” C.A.R. at 540.
Lukwago’s public explanation of the reason he escaped
from the LRA provides ample evidence of his opposition to
the LRA. He stated:
I thought about everything that the LRA had done. I
thought about how they had killed my parents right in
front of me. I remembered the kids they had beaten
and I thought about the children who had been killed.
I thought about my friend, Joseph, and about the little
girls who were given to the soldiers as wives. The LRA
were bad people. I remembered how they had looted
villages and cut the lips and fingers off of villagers. I
will never forget seeing that and hearing the people
scream in pain and cry out for the pain of their loved
ones.
[ ] I thought about all of this and I said to myself, “if I
die, I die.” I couldn’t stay there anymore. I started to
run.
C.A.R. at 536. The BIA did not make any findings on his
imputed political opinion claim with regard to the LRA. This
issue also should be considered by the BIA on remand.
33
B.
WITHHOLDING OF REMOVAL
Lukwago also seeks protection under INA § 241(b)(3), the
statutory provision which provides for mandatory
withholding of removal for an applicant who meets all of the
statutory criteria. 8 U.S.C. § 1231(b)(3)(A); INS v. Aguirre-
Aguirre, 526 U.S. 415, 420 (1999). The standard for
withholding of removal is higher than, albeit similar to, the
standard for asylum. Balasubramanrim, 143 F.3d at 165.
As in the case of asylum, the applicant must show that
s/he will be persecuted on account of his or her race,
religion, nationality, membership in a particular social
group or political opinion if deported. 8 C.F.R. § 208.16(b).
However, in the case of withholding of removal, the
applicant must show that such future persecution is “more
likely than not” to occur. Id. § 208.16(b)(2); see Cardoza-
Fonseca, 480 U.S. at 430-31.
If Lukwago is unable to satisfy the standard for asylum,
he necessarily fails to meet the standard for withholding of
removal under INA § 241(b)(3). Because we have found that
there is substantial evidence to support the BIA’s
determination that Lukwago failed to demonstrate past
persecution by the LRA or a well-founded fear of future
persecution by the Ugandan government, he cannot meet
the standard for withholding of removal for these claims.
We are remanding to the BIA the issue of whether
Lukwago is entitled to a grant of asylum for a well-founded
fear of persecution by the LRA on account of his
membership in the “particular social group” of former child
soldiers or on account of imputed anti-LRA political
opinions. Because the BIA rejected these grounds as bases
for asylum, it followed that it declined to withhold removal
for these claims. AV1 at 9. As we are remanding to the BIA
for reconsideration of whether Lukwago has demonstrated
a well-founded fear of persecution by the LRA for purposes
of asylum, a fuller consideration of Lukwago’s eligibility for
withholding of removal on these claims is also warranted on
remand. In addition, as in Ventura, the BIA should conduct
an analysis of whether there have been changed
34
circumstances that would affect Lukwago’s request for
removal and/or whether Lukwago’s relocation within
Uganda would be reasonable. See 8 C.F.R. § 208.16(b)(3).
C.
PROTECTION UNDER THE CAT
Finally, Lukwago seeks protection under the CAT. The
standard for withholding of removal under the CAT is
different than that for INA § 241(b)(3). Lukwago must show
that it is more likely than not he will be tortured if removed
to Uganda. 8 C.F.R. § 208.16(c)(2). Under the CAT, torture
is defined as:
any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or her
or a third person information or a confession,
punishing him or her for an act he or she or a third
person has committed or is suspected of having
committed, or intimidating or coercing him or her or a
third person, or for any reason based on discrimination
of any kind. . . .
8 C.F.R. § 208.18(a)(1).
The CAT does not require a showing that the torture is
on account of any protected ground, but only applies to
torture that “is inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other
person acting in an official capacity.” Id. The applicable
regulation provides that to meet the standard of
“acquiescence of” a public official, “the public official, prior
to the activity constituting torture, [must] have awareness
of such activity” and breach his/her legal responsibility to
intervene. Id. § 208.18(a)(7). Lukwago has not only failed to
demonstrate that the Ugandan government acquiesces in
the LRA’s activities, but the evidence he submitted shows
that the Ugandan government and the LRA are in
continuous opposition.
The only remaining question for our review of the BIA’s
denial of withholding of removal under the CAT is whether
35
Lukwago demonstrated that it is more likely than not that
the Ugandan government will torture him if he returned.
The BIA’s finding to the contrary was not against the weight
of the record. Given the Ugandan government’s amnesty
policy and the assurances of the United States Embassy,
the BIA had substantial support in the record to deny
Lukwago’s request. Therefore, we will deny Lukwago’s
Petition for Review of the BIA’s denial of his request for
protection under the CAT.
V.
CONCLUSION
In summary, we will deny the Petition for Review to the
extent that it is based on Lukwago’s claim to asylum for
past persecution to the class he proffers or seeks asylum
for humanitarian reasons based on past persecution. We
will also deny the Petition for Review to the extent it is
based on Lukwago’s application for protection under the
CAT. With respect to Lukwago’s claim of a well-founded fear
of future persecution, we will deny the Petition for Review
insofar as Lukwago’s claim is based on fear of persecution
by the Ugandan Government. We will remand for
reconsideration by the BIA the remainder of Lukwago’s
claim for asylum based on a well-founded fear of
persecution in the future by the LRA because we hold that
the class of former child soldiers who have escaped from
the LRA fits within the statutory definition of a “particular
social group,” because there is evidence that the class may
be in more danger from the LRA than the general
population, and because Lukwago may be in considerably
more danger than most other members of the class on
account of an anti-LRA imputed political opinion. On
remand, the BIA should also reconsider Lukwago’s
application for withholding of removal under INA § 241(b)(3)
for the same reasons.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit