Interim Decision #3323

Interim Decision #3323

In re J-J-, Applicant

Decided July 31, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) A motion to reconsider a decision of the Board of Immigration Appeals must be filed not

later than 30 days after the mailing of the decision, or on or before July 31, 1996, whichever

date is later. Only one motion to reconsider may be filed, and there is no exception to the

time bar imposed on such motions.

(2) Only one motion to reopen is allowed and must be filed with the Board not later than 90

days after the date on which the final administrative decision was rendered, or on or before

September 30, 1996, whichever date is later. An exception exists for motions to reopen to

apply or reapply for asylum or withholding of deportation based on changed circumstances

arising in the country of nationality, if evidence is presented that is material and was not

available and could not have been discovered or presented at the former hearing.

(3) An appeal or motion is deemed filed when it is received at the Board, irrespective of

whether the alien is in custody.

(4) The Board’s power to reopen or reconsider cases sua sponte is limited to exceptional circumstances and is not meant to cure filing defects or circumvent the regulations, where

enforcing them might result in hardship.

FOR THE APPLICANT: Ann A. Ruben, Esquire, Philadelphia, Pennsylvania

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Jeffrey T. Bubier,

Assistant District Counsel

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA,

HEILMAN, HOLMES, HURWITZ, FILPPU, COLE, MATHON, and GUENDELSBERGER,

Board Members. Concurring Opinion: VILLAGELIU, Board Member. Dissenting Opinion:

ROSENBERG, Board Member.

SCHMIDT, Chairman:

This case was last before us on August 8, 1995, when we dismissed the

applicant’s appeal from the decision of an Immigration Judge, denying the

applicant’s requests for asylum in the United States and withholding of

deportation to Liberia. The applicant has now filed both a motion to reopen

exclusion proceedings before the Board and a motion to reconsider our decision of August 8, 1995.

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The motion to reconsider is untimely, and we are therefore without jurisdiction to consider it. 8 C.F.R. § 3.2(b)(2) (1997). The motion to reopen is

likewise untimely. 8 C.F.R. § 3.2(c)(2) (1997). There remains the issue, however, of whether the untimely motion to reopen falls within the regulatory

exception allowing for reopening out of time in order to apply for asylum

based on changed circumstances arising in the country of nationality. 8

C.F.R. § 3.2(c)(3)(ii) (1997). We hold that this motion to reopen does not fall

within the changed circumstances exception, and it will therefore be denied.

I. PROCEDURAL HISTORY

The applicant is a native and citizen of Liberia who arrived at New York’s

John F. Kennedy Airport on September 2, 1994. He surrendered a fraudulent

passport to immigration authorities and requested asylum in the United

States. The applicant was issued a Notice to Applicant for Admission

Detained/Deferred for Hearing Before Immigration Judge (Form I-122)

advising him of his apparent excludability under section 212(a)(7) of the

Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7) (1994), for failure to

possess a valid visa or travel documents.

At his exclusion hearing on March 23, 1995, the applicant conceded

excludability but applied for asylum and withholding of deportation pursuant

to sections 208(a) and 243(h) of the Act, 8 U.S.C. §§ 1158(a) and 1253(h)

(1994). The Immigration Judge denied both requests, concluding that the

applicant did not establish either a well-founded fear or clear probability of

persecution. On August 8, 1995, the Board dismissed the applicant’s appeal.

Acting pro se, the applicant filed a “Motion to Reopen and/or Reconsideration” with the Board 14 months later, on October 2, 1996. Thereafter, on

October 21, 1996, the applicant’s prior attorney filed a second motion to

reconsider, arguing that the applicant did establish a well-founded fear of

persecution, based on the facts alleged in the 1994 asylum application. The

Board granted a stay of deportation on January 23, 1997, pending consideration of the instant motions.1

II. MOTION TO RECONSIDER

In his motion to reconsider, the applicant argues that the Immigration

Judge erred in doubting his credibility or in acknowledging the dangers of

1 While a motion to reopen seeks a second review of a case by the Board based on new or

previously unavailable evidence, a motion to reconsider “questions the Board’s decision for

alleged errors in appraising the facts and the law.” 1 C. Gordon et al., Immigration Law and

Procedure § 3.05[7][a], at 3-75 (rev. ed. 1997). When the Board reconsiders a decision, it

reexamines that decision “in light of additional legal arguments, a change of law, or perhaps an

argument or aspect of the case which was overlooked.” Gerald S. Hurwitz, Motions Practice

Before the Board of Immigration Appeals, 20 San Diego L. Rev. 79, 90 (1982) (footnote

omitted); see also Matter of Cerna, 20 I&N Dec. 399 (BIA 1991).

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Liberia’s civil war. The applicant further argues that the Board applied an

incorrect standard to the asylum claim. We are without jurisdiction to consider these arguments.

Under the regulations at 8 C.F.R. § 3.2(b)(2), promulgated on April 29,

1996, and effective July 1, 1996, a motion to reconsider a Board decision

must be filed not later than 30 days after the mailing of the Board decision, or

on or before July 31, 1996, whichever date is later. Only one motion to reconsider may be filed, and there is no exception to the time bar imposed on such

motions. Id. As the Board rendered a decision in this case on August 8, 1995,

reconsideration of the decision would be barred after July 31, 1996. The

applicant’s pro se motion to reconsider filed on October 2, 1996, and his

motion to reconsider filed by counsel on October 21, 1996, are not timely

filed and must therefore be denied.

III. MOTION TO REOPEN

The applicant also seeks reopening to present evidence of worsening conditions in Liberia that he believes will persuade the Board to change our prior

decision and grant him asylum. Pursuant to the regulations at 8 C.F.R.

§ 3.2(c)(2), only one motion to reopen is allowed and must be filed with the

Board not later than 90 days after the date on which the final administrative

decision was rendered, or on or before September 30, 1996, whichever date is

later. The applicant’s motion to reopen, filed on October 2, 1996, is untimely.

The numerical and temporal limitations set forth in 8 C.F.R. § 3.2(c)(2),

do not, however, bar motions to reopen to apply or reapply for asylum or

withholding of deportation based on changed circumstances arising in the

country of nationality, if such evidence is material and was not available and

could not have been discovered or presented at the former hearing. 8 C.F.R.

§ 3.2(c)(3)(ii). The motion must state the new facts to be proved and must be

supported by evidentiary material.

The applicant alleges in his motion that he can present new and material

evidence that will show he does have a well-founded fear of persecution in

Liberia based on the increased ethnic and political violence in that country.

The applicant states in his motion that if he is deported to Liberia, he will be in

danger, as are many other people there, on account of the fighting between

rival tribal and political factions. The applicant’s motion is supported by a

copy of his 1994 asylum application, and by several articles on Liberia, including Amnesty International reports of 1995, decrying human rights abuses

committed by all factions of the war, and reports of May and April 1996 which

discuss the problem of thousands of civilians fleeing Liberia after the resumption and intensification of the civil war, despite an August 1995 peace agreement. A civil war has been raging in Liberia since December 1989.2

2 Although the Attorney General has included Liberia in the Temporary Protected Status

(“TPS”) program authorized by section 244A of the Act, 8 U.S.C. § 1254a (1994), for certain

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The Immigration and Naturalization Service opposes the applicant’s

motion to reopen, arguing that the new evidence presented by the applicant is

not material and would not affect the prior decision of the Board.

IV. THE ASYLUM CLAIM

At his exclusion hearing on March 23, 1995, the applicant testified that he

operated a small electrical appliance store in Liberia. He related that on September 20, 1992, he was forcibly recruited from his store by a guerrilla organization know as the National Patriotic Front of Liberia (“NPFL”), led by

Charles Taylor. Others in the town who had refused to join the organization

were shot. Along with other recruits, he was sent to a training camp in the

Ivory Coast for 3 months. He then returned to Liberia to fight the other guerrilla groups, all of whom were vying for power in a multi-factional civil war

following the death of Liberia’s last president. The applicant testified that he

fought with the group, planting bombs close to military tanks and engaging in

combat fire in different battles for nearly 18 months following training. After

a time, viewing the war as unfair, he sought to escape, despite his fear of the

consequences. Others who had tried to escape had been killed.

In May 1994, while encamped in the Ivory Coast, the applicant managed

to escape with the help of an acquaintance who secreted the applicant aboard

a ship. Once at sea, the applicant was discovered, but the captain knew the

applicant’s mother and agreed to help him. When the ship docked in Singapore, the captain took the applicant’s picture and asked him for $1,000. A few

days later, the captain gave the applicant an American passport and took him

to the airport.

The applicant testified at his hearing that he would be killed if he returned

to Liberia, because the war had gotten worse and because Charles Taylor

would consider him a deserter of his group. In his decision, the Immigration

Judge held that forced recruitment of an individual by guerrilla forces does

not constitute persecution if the guerrillas seek to make the person a member

of their group, rather than harm him because he possesses a characteristic

they find offensive and wish to overcome. The Board agreed, concluding that

the applicant had not shown that the NPFL had any interest in his political

opinions, that he ever expressed any specific opinions, or that he deserted the

guerrillas based on his refusal to engage in human rights abuses condemned

by the international community. INS v. Elias-Zacarias, 502 U.S. 478 (1992);

countries with ongoing armed conflict or environmental disaster, the applicant did not qualify

to register for the benefits of this program, as he had not been “continuously physically present”

in the United States since March 27, 1991, and was not in valid immigrant or nonimmigrant

status during the original registration period. On April 7, 1997, however, the Attorney General

“redesignated” Liberia in the TPS program and made TPS available to eligible Liberians who

have continuously resided in the United States since June 1, 1996, and who have been

continuously physically present in the United States since April 7, 1997. 61 Fed. Reg. 8076

(1996). The applicant may therefore now qualify to participate in this program.

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INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). The Board found that the

applicant had simply not produced evidence from which it would be reasonable to believe that the harm he suffered was motivated by his race, religion,

nationality, membership in a particular social group, or political opinion.

Matter of Dass, 20 I&N Dec. 120 (BIA 1989); Matter of Mogharrabi, 19

I&N Dec. 439 (BIA 1987). The Board held that the applicant was conscripted

by the NPFL as a soldier in its cause, and not because of his desire to remain

neutral in the conflict in Liberia or because of his ethnicity as an

Americo-Liberian. The issue now is whether the conditions in Liberia have

materially changed to the extent that the applicant’s asylum claim, which was

previously found not to constitute persecution, could now be considered persecution as defined in the Act.

V. CHANGED CIRCUMSTANCES ARISING IN LIBERIA

The applicant contends in his motion that a much more dangerous, chaotic, and violent situation exists in Liberia now than at the time the Board dismissed his appeal in 1995. The evidence submitted by the applicant indicates

that the rival factions have continued to commit human rights violations and

have continued to fight despite signed peace agreements. The applicant

argues that if he is forced to return to Liberia, he may have to participate in

some of these violations. He also points to the ongoing mass exodus of citizens from war-torn Liberia.

The documents attached to the applicant’s brief indicate that the situation

in Liberia remains volatile. Some of the evidence, such as a March 1996 letter

from an attorney at the United Nations High Commissioner for Refugees,

who was lending an opinion in another alien’s asylum claim, indicates that

Liberia has been in turmoil since 1989. In 1990, the Economic Community of

West African States sent a cease-fire monitoring group to serve as regional

peacekeepers in response to the ferocious slaughter of civilians and the burning and looting of villages. Nevertheless, guerrilla groups continued to gain

ground. In 1993, Liberia’s three main factions entered into a peace agreement, attempting to resolve their political differences, disarm rebel factions,

and hold elections. The agreement proved to be ineffectual and resulted in

renewed combat, with atrocious abuses against civilians carried out by all

sides, including fighters of Charles Taylor’s NPFL. In 1994, a coalition government made efforts to once again implement the peace agreement, but that

group was undermined by political wrangling and renewed factional fighting. Another peace agreement forged in September 1994 also proved to be

unsuccessful. In August 1995, a new peace agreement was signed, but reports

once more showed it to lack promise. The situation in Liberia remained tense,

and people were fleeing the renewed fighting. Recent newspaper reports,

however, indicate that several days ago, on July 20, 1997, Charles Taylor was

elected President of Liberia after fair and open elections, conducted pursuant

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to the most recent peace agreement. See Donald G. McNeil, Jr., Liberia Gets

a Fair Vote, Courtesy of Unfree Neighbors, N.Y. Times, July 22, 1997, at A9.

In short, a review of the documents presented by the applicant does not

show materially changed circumstances in Liberia since the Immigration

Judge’s decision in this case. The only significant changes evident from the

applicant’s motion are (1) that more factions are involved in the war, and (2)

that the years of civil war have taken their toll on the country’s economic

infrastructure. We acknowledge that the general security situation for the

civilian population of Liberia remains uncertain, even following the July

1997 elections. On the record before us, however, these changes do not materially affect the basis of the applicant’s asylum claim. At the time of the

exclusion hearing, the applicant claimed that the fighting was already worse

and that the different sides were continuing to splinter. None of the new evidence submitted by the applicant shows that he is likely to suffer harm in a

form different from the general population in Liberia, or that he will suffer

harm at the hands of the NPFL based on his political opinion rather than

because he deserted its forces. Matter of Sanchez and Escobar, 19 I&N Dec.

276 (BIA 1985), aff’d, 801 F.2d 1571 (9th Cir. 1986) (stating that the harm

resulting from country-wide civil strife and anarchy is not persecution on

account of one of the five enumerated grounds); see also Perlera-Escobar v.

INS, 894 F.2d 1292 (11th Cir. 1990); Rodriguez-Rivera v. INS, 848 F.2d 998

(9th Cir. 1988).

Neither does the Attorney General’s decision to redesignate Liberia in the

TPS program represent a change in circumstances material to the applicant’s

asylum claim, as there is no further evidence that the applicant himself is at

greater risk based on his race, religion, nationality, social group, or political

opinion than the rest of the population. In redesignating Liberia in the TPS

program, the Attorney General recognized that the continuation of civil strife

in Liberia through 1996 prevented Liberian citizens and residents from safely

returning there. However, the expanded availability of TPS to Liberians who

did not originally qualify in 1991 does not represent materially changed circumstances arising in Liberia, as the redesignation is based on the same terrible war raging there since 1989.

With respect to the applicant’s arguments that the new evidence demonstrates (1) that he will suffer persecution because he is opposed to the violence in Liberia, and (2) that he will be forcibly enlisted to fight or commit

violence against civilian populations, which would go against his political

opinion of wishing to remain neutral, we find that the applicant is restating

his asylum claim made to the Board in 1995. The applicant argued in his 1995

appeal to the Board that he was coerced into joining a guerrilla group, that he

protested to his recruiters that he did not want to get involved in the fighting,

and that his conscription into this group, which resulted in almost 2 years of

training and fighting, constituted persecution on account of his political opinion. We view the new evidence presented by the applicant as cumulative to

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his original asylum claim, and we have no new evidence concerning the

effect of the elections in Liberia on the applicant’s asylum claim. As we find

that the applicant has not presented evidence of materially changed circumstances that would affect his asylum claim, we conclude that his motion to

reopen does not fall within the time limit exception of 8 C.F.R. § 3.2(c)(3)(ii).

VI. PRO SE DETAINED ALIENS

The dissenting opinion proposes that we ought to consider this motion as

timely filed because the applicant is pro se and detained and therefore lacks

control over the mailing process in his prison. In the dissent’s view, we

should adopt the rationale in Houston v. Lack, 487 U.S. 266 (1988), where

the Supreme Court held that a pro se prisoner’s notice of appeal from a

habeas corpus denial is deemed “filed,” pursuant to Federal Rule of Appellate Procedure 4(a)(1), at the moment of delivery to prison authorities for forwarding to the district court. See also Arango-Aradondo v. INS, 13 F.3d 610

(2d Cir. 1994).

We decline to adopt such a standard for several reasons. First, we find that

the federal rules regarding timely filing are distinguishable from our own. In

Houston v. Lack, supra, the Court noted that Rule 4(a)(1) did not define the

moment at which the filing of an appeal occurred, and the lack of definition

opened the interpretation of “filing” a notice of appeal to mean something

other than “receipt” by the court. Also, in Arango-Aradondo v. INS, supra,

the court found that Rule 25(a)(C) of the Federal Rules of Appellate Procedure, which applied to the alien’s petition for review in the circuit court, actually provided that an appeal filed by an inmate is timely filed if deposited in

the institution’s internal mail system on or before the last day for filing. Likewise, as noted in Koch v. Ricketts, 68 F.3d 1191 (9th Cir. 1995), Federal Rule

of Appellate Procedure 4(c) specifically provided for constructive filing of a

notice of appeal, that is, a notice of appeal was timely filed if deposited in the

institution’s internal mail system on or before the last day for filing. See also

Cooper v. Brookshire, 70 F.3d 377 (5th Cir. 1995).

In contrast, the appeals and motions regulations for the Board explicitly

define the moment of filing of a notice of appeal as the moment the appeal is

received at the Board. 8 C.F.R. § 3.38 (1997). When a procedural rule is

clear, such as it is here, the courts have declined to follow the policy arguments in Houston v. Lack, supra. For example, in Guirguis v. INS, 993 F.2d

508 (5th Cir. 1993), the court of appeals found untimely a petition for review

that was received 1 day late. The court first noted that unlike in Houston v.

Lack, supra, there was no reliable record concerning the handling of mail in

Service detention facilities, and thus no evidence of the ability of immigration detainees to place matters directly into the regular United States mail

rather than having to entrust them to Service officials. Further, the court

found that appellate review of a final administrative order of deportation is

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governed by Federal Rules of Appellate Procedure 15(a) and 25(a) rather

than the rules applicable to appeals from district courts at issue in Houston.

These rules, which govern review of an order of an administrative agency,

board, commission, or officer, specify that timely filing is achieved when

submissions are received by the clerk of the court within the time fixed for filing. See also White v. INS, 6 F.3d 1312 (8th Cir. 1993), cert. denied, 511 U.S.

1141 (1994) (one of the last cases before Rule 25(a) was amended to incorporate Houston v. Lack).

In Nigro v. Sullivan, 40 F.3d 990 (9th Cir. 1994), the United States Court

of Appeals for the Ninth Circuit noted that the regulations governing appellate review in the Bureau of Prisons, 28 C.F.R. § 542.14 (1993), define an

appeal as filed when it is received at the General Counsel’s Office and a

receipt for it is issued. As reasoned by the court in Nigro, “received” is a term

that is not open to other interpretations of “filing” and does not constructively

mean “deposited in the institution’s internal mail system.” See id. at 994;

Fed. R. App. P. 25(a)(C). The court found that defendant Nigro’s appeal was

not timely filed with the General Counsel’s Office and dismissed a habeas

writ, finding that the defendant failed to exhaust his administrative remedies.

The court further distinguished Houston v. Lack, supra, noting that Houston

involved access to the courts and not access to administrative procedures.

Nigro v. Sullivan, supra, at 995.

We further note that Houston v. Lack, supra, and the caselaw spawned

from it refer to appeals and not specifically to motions. Likewise, the Federal

Rules of Appellate Procedure, and the other procedural rules discussed in

these cases that define timely filing, refer specifically to appeals. Indeed, our

own rule regarding the timeliness of filing, 8 C.F.R. § 3.38, refers to notices

of appeal. No definition of timely filing was ever adjudicated in the context

of motions to reopen or reconsider before the Board because, until the new

appeals and motions regulations were promulgated, there was no filing deadline with regard to motions to reopen or reconsider.

The federal rules are also mostly silent with regard to the filing deadlines

of motions. In the Federal Rules of Civil Procedure, motions for “relief from

judgment orders,” contained in Rule 60(b), most resemble our motions to

reopen or reconsider. A Rule 60(b) motion is allowed “within a reasonable

time,” although in many instances, not more than a year after the judgment

order. However, the rule makes no mention of how timely filing is accomplished. Therefore, there is no wide body of law dealing with the timely filing

of a motion. The body of law we look to in this regard comes from the appellate process, where the definition of “timely filing” is often extended to other

forms of filings where the rules may be silent. In our own context, we view

the definition of timely filing of appeals to extend to motions to reopen or

reconsider, as it would be a consistent application of the regulations to

enforce one filing definition, and such a definition would also be consistent

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with the general rule that receipt by the court clerk constitutes filing. Houston

v. Lack, supra; United States v. Lombardo, 241 U.S. 73 (1916).

In sum, in a case such as this where the new motions and appeals regulations plainly define the term “filing,” we are obliged to follow the definition,

rather than ignore it based on the perceived equities or inequities of any particular case. The applicant’s motion to reopen was untimely, and he is not

entitled to different treatment based on his custody status.

VII. THE BOARD’S POWER TO REOPEN ON ITS OWN

MOTION

The current temporal and numerical limitations in the regulations governing motions to reopen or reconsider originate in the Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 4978. By that legislation, the Attorney General was directed to issue regulations limiting the number of motions to

reopen or reconsider that an alien could make and establishing a maximum

time period for the filing of such motions. Congress intended by this provision to expedite the judicial review process in immigration proceedings and

to discourage the filing of dilatory appeals and motions. Stone v. INS, 514

U.S. 386 (1995).

Notwithstanding the statutorily mandated restrictions, the Board retains

limited discretionary powers under the regulations to reopen or reconsider

cases on our own motion. 8 C.F.R. § 3.2(a). That power, however, allows the

Board to reopen proceedings sua sponte in exceptional situations not present

here. The power to reopen on our own motion is not meant to be used as a

general cure for filing defects or to otherwise circumvent the regulations,

where enforcing them might result in hardship. When Congress passes laws,

and agencies promulgate rules as directed by those laws, these acts are meant

to have real and substantial effect. Stone v. INS, supra. That is the case with

the Immigration Act of 1990, and the motions and appeals regulations promulgated pursuant to that Act in April 1996. These rules are meant to bring

finality to immigration proceedings and to redress the problem of abuses

resulting from the filing of successive or frivolous motions.

VIII. CONCLUSION

In conclusion, the applicant’s motion to reconsider and the second motion

to reconsider filed on his behalf by counsel are both untimely as they were

received more than 60 days late. There is no exception to the time bar

imposed on motions to reconsider. The motion to reopen is also untimely as it

was received 2 days late. To be timely filed, a submission has to be received

at the Board within the time allowed by regulation. The motion to reopen

does not fall within the exception for reopening out of time to apply for asylum based on changed circumstances arising in the country of nationality

since the time of the Immigration Judge’s decision. Finally, the applicant has

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not demonstrated any exceptional situation which would warrant reopening

on the Board’s own motion. Accordingly, the motions will be denied.

ORDER:

The motion to reconsider is denied as untimely.

FURTHER ORDER:

The motion to reopen is denied as

untimely.

CONCURRING OPINION: Gustavo D. Villageliu, Board Member

I respectfully concur.

While I agree with the majority’s opinion I merely wish to comment on the

discussion regarding the Board’s power to reopen on its own motion in

exceptional situations. Such situations, in my opinion, must include cases

where the courts have reversed the underlying basis for the Board’s legal

conclusions in a case after the 30-day limitation for motions to reconsider has

expired. To decline to reconsider an improperly decided case would be a

waste of limited judicial and administrative resources and inconsistent with

the goals expressed by Congress to provide exceptions in the interests of justice. See H.R. Conf. Rep. No. 101-955, at 133 (1990), reprinted in 1990

U.S.C.C.A.N. 6784, 6798; cf. 8 C.F.R. § 3.1(d)(1) (1997) (delegating to the

Board the Attorney General’s discretionary authority, subject to specific limitations in the regulations).

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

The applicant, a native and citizen of Liberia, is an applicant for asylum

under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158

(1994), and withholding of deportation under section 243(h) of the Act,

8 U.S.C. § 1253(h) (1994). He has neither been charged with nor convicted of

any crime, but he is detained, and has been in the custody of the Immigration

and Natualization Service (Service), held in a jail meant for persons convicted of criminal offenses, for nearly 3 years. He has been physically located

either at the Service’s then-Esmor detention facility in Elizabeth, New Jersey, or at the Lehigh County jail, a county prison facility in Allenwood, Pennsylvania, with which the Service has contracted to hold detained asylum

seekers and other noncitizens. His imprisonment came about because he was

taken into custody at John F. Kennedy Airport when he presented the passport he had used during his flight and asked for asylum.

We can reopen and reconsider the likelihood of persecution faced by the

applicant in Liberia, as he asks, under a fair and reasonable interpretation of

any of three permissible regulatory avenues. We should have invoked at least

one of these paths in order to afford this detained alien an opportunity to perfect his claim under present circumstances before returning him to Liberia.

First, his motion can be treated as timely filed and received under 8 C.F.R.

§§ 3.2(b) and (c)(1997) as of the date it was received by the prison mail

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system, an interpretation consistent with the law of the Supreme Court and of

the United States Court of Appeals for the Third Circuit, in which this case

arises. Second, if we are unwilling to recognize receipt of his motion by

prison officials as constituting receipt for our jurisdictional purposes, we can

assert jurisdiction over his motion without regard to temporal or numerical

limitations under 8 C.F.R. § 3.2(c)(3)(ii) on account of changed circumstances in Liberia. Third, if we are unwilling to follow Supreme Court and

circuit authority, or to recognize the fact of changed circumstances in terms

of country conditions since the applicant’s hearing and review before this

Board, it nonetheless would be prudent to reopen the case and reconsider our

disposition of the applicant’s appeal in light of our authority under 8 C.F.R.

§ 3.2(a).

The majority, however, opts for none of these alternatives.1 I cannot travel

down such a dangerous road with them, nor can I join them on the route they

take to reach such a destination. Consequently, I dissent.

I. DENIAL OF THE APPLICANT’S MOTION IS THE RESULT

OF AN UNREASONABLY RESTRICTIVE READING OF THE

REGULATIONS, AND AN UNJUSTIFIABLE DEPARTURE

FROM APPLICABLE LAW

The applicant’s motion to reopen and reconsider (providing new evidence

that previously had been unavailable, some of which is proffered to establish

changed circumstances in Liberia), and an accompanying brief citing legal

authority, apparently written in his own hand, was prepared and signed by

him on September 25, 1996, in the Lehigh detention facility to which he had

been transferred. It was submitted for delivery to the prison mail system,

together with a certificate of service, signed by the applicant under penalty of

perjury, on that same date.

It arrived and was “stamped in” at the Board, however, on October 2,

1996. The Service has opposed the motion to reopen on the basis that the documents submitted in support of changed circumstances are not material

because they consist of reports from Amnesty International and news clippings,and even if material, are of little effect, given the basis for the Board’s

dismissal of the applicant’s appeal.2

The crux of the matter before us has to do with asylum protection and consideration of substantive issues involving the applicant’s liberty and his

1 A stay of exclusion and deportation was granted on January 23, 1997, in connection with

the applicant’s motion to reopen and reconsider, with one of three panel members dissenting.

My concurrence to our grant of the applicant’s request for a stay stated that I would allow

consideration of his motion and any further proceedings appropriate under that motion.

2 Cf. 8 C.F.R. § 208.12(a)(1997); see also Fengchu Chang v. INS, 119 F.3d 1055 (3d Cir.

1997) (giving weight to reports of conditions from groups other than the State Department,

such as “Human Rights Watch/Asia Report,” and discussion concerning the Board’s prior

dismissal of the applicant’s appeal, infra).

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treatment by our immigration system, ultimately having the potential for life

or death consequences. The majority seeks to resolve the matter on purely

technical grounds, mechanically disposing of the applicant’s concerns without ever coming close to touching the heart of the applicant’s claim for protection, or the issue of how we should deal with the unfortunate fact that

asylum seekers continue to be detained under the provisions of our immigration system.3

Procedural requirements should not bar this claim. Considerations of

equity and fairness, as well as the principle of lenity toward asylum seekers

under domestic and international law, warrant our reopening of the applicant’s case to allow adjudication of the proffered evidence of deteriorating

country conditions, as well as to provide a reasoned decision under controlling law on the merits of his claim.

A. The Applicant Filed a Timely Motion to Reopen and Reconsider

At the outset, I note that the regulations, as promulgated, do not specifically provide that a motion to reopen or reconsider must have been received

within the designated time period provided under the Attorney General’s regulations, effective July 1, 1996. By comparison, the regulations governing

appeals state specifically and clearly that an appeal must have been received

by the time afforded for appeal. See 8 C.F.R. § 3.2. Effective July 1, 1996, a

party is allowed one motion to reopen which must be filed within 90 days of

the issuance of a final administrative order or on or before September 30,

1996, whichever is later. See 8 C.F.R. § 3.2(c)(2). A party is allowed one

motion to reconsider which must be filed within 30 days of the order in which

reconsideration is sought, or on or before July 31, 1996, whichever is later.

See 8 C.F.R. § 3.2(b)(2).

In its opinion, the majority makes much of this technical distinction in the

regulations, arguing that despite the presence of the specific articulation of

such a construction in the appeals provision, and the absence of such language in the motions provisions, the same standard as applies to the timely

filing of appeals should apply to the filing of motions to reopen and reconsider. That, however, is a straw man which need not be set up only to be

knocked down. Without conceding that such a distinction may be one without a difference in every case, I do not find it to be a factor on which the applicant’s motion turns in this case. For purposes of my dissent, therefore, I will

3 See also related concerns expressed by the Presidentially appointed Commission on

Immigration Reform in “U.S. Refugee Policy: Taking Leadership: Report to Congress,” at

29-30 (June 1997)(finding detention of asylum seekers not a good use of scarce resources and

objecting to a new threshold standard to be met by certain asylum applicants to determine who

will gain access to an asylum hearing); Memorandum from former Commissioner Gene

McNary (April 1992) (creating the Asylum Pre-Screening Officer (“APSO”) program, which

facilitates asylum seekers’ release from detention, to comport, in part, with international

norms).

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proceed as though actual receipt, as opposed to mailing, is the touchstone for

determining whether or not both an appeal or a motion is timely filed.

The majority completely misreads the law that appropriately governs the

proceedings in this case. Ordinarily, according to the interpretation I have

conceded for purposes of this decision, a motion under 8 C.F.R. § 3.2(c)(2)

would be out of time if not received at the Board by the designated date,

which in this case would be September 30, 1996.

As a detainee, incarcerated in a county jail, the applicant had little control

over the outgoing mail or when his motion papers would be sent out. Case

law and federal rules uniformly support treating the applicant’s motion as

received at the time it was submitted for mailing to the prison authorities or

deposited in the prison mail system. See Houston v. Lack, 487 U.S. 266

(1988) (holding that a prisoner’s notice of appeal is deemed filed at the

moment it is conveyed to the prison authorities for forwarding to the district

court); Arango-Abadondo v. INS, 13 F.3d 610, 612 (2d Cir. 1994) (finding no

jurisdictional bar where a detainee verified that he had deposited a petition

for review of a final deportation order in prison internal mail system on the

90th and final day allowed for filing of such petitions); see also Fed. R. App.

P. 25(a)(2)(C) (establishing that papers filed by an inmate confined in an

institution are timely filed if deposited in the institution’s internal mail system, as established by a notarized statement or declaration in compliance

with 28 U.S.C. § 1746).

The Supreme Court’s decision in Fallen v. United States, 378 U.S. 139

(1964), on which the decision in Houston v. Lack, supra, was predicated, provides further support for finding that delivery of a timely pleading to prison

authorities or a prison mail system constitutes timely receipt of the decision

notwithstanding whether the actual delivery and receipt of the notice in question to the clerk of court occurs after the filing deadline.4 In Fallen, a case

involving both a motion for a new trial and an appeal, the court held that

when the incarcerated litigant must depend on prison authorities for mailing

his motion to a clerk of court, evidence that the prisoner had delivered his

notice to prison authorities for mailing to the clerk of court within the appeal

period constitutes timely receipt of the documents, despite the fact that the

clerk’s office did not receive the notice until after the appeal period expired.

Fallen v. United States, supra, at 142. The Supreme Court there emphasized

that the “Rules are not, and were not intended to be, a rigid code to have an

inflexible meaning irrespective of the circumstances.” Id. (emphasis added).

4 In Fallen v. United States, supra, the motion and notice were received by the clerk on

January 29, a date outside the period allowed for such filing, but were dated by the petitioner on

January 23. The envelope containing the letters bore a government frank but no postmark.

Similarly, the applicant’s motion, brief, and certificate of service were received by the Board’s

Appeals Processing Unit on October 2, but dated by the applicant on September 25. The

envelope in which they were received bears a government frank but no postmark.

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This reading of the law and procedural requirements pertaining to the

cases of detained prisoners does not rely on our invoking a rule that mailing

constitutes a tmely filing. The overwhelming authority instead supports the

view for which the majority advocates: that it is the receipt of the document

with the clerk of court that perfects filing.

What the majority fails to understand is that under these cases, in the case

of a detained alien, “receipt” is accomplished when the prisoner delivers the

material to be filed to the jailer. In other words, the jailer stands in the shoes

of the court or agency clerk by whom the documents must be received in

order for filing to be properly accomplished by the designated deadline. See

Fallen v. United States, supra, at 144 (Stewart, Clark, Harlan and Brennan,

J., concurring) (opining that “the jailer is in effect the clerk of the District

Court”).

If the decisions of the Supreme Court are not enough to provide persuasive

legal support for this interpretation, the decisions of the United States Court

of Appeals for the Third Circuit, in which the instant case arises, underscore

the point.5 In United States v. Grana, 864 F.2d 312 (3d Cir. 1989), the court

found that in computing the timeliness of filings which are jurisdictional in

nature, any delay beyond the incarcerated litigant’s control, attributable to

prison officials, is to be excluded from the computation of time allowed the

prisoner for appeal.

Although technically out of time, the court found that under Houston v.

Lack, supra, and Fallen v. United States, supra, when the incarcerated litigant must depend on prison authorities for delivery of a judgement or for

mailing to a clerk of court, he has lost control over his ability to comply with

filing requirements. United States v. Grana, supra, at 314-15. The Third Circuit also has emphasized that in seeking to accommodate both strict jurisdictional time limitations and fairness to imprisoned pro se litigants, where the

impediment to timely filing arises from the process of transmitting mail from

the prison over which the prisoner has no control, the requirements of procedural rules should be liberally construed and “‘“ mere technicalities” should

not stand in the way of consideration of a case on its merits.’” United States v.

Grana, supra, at 315 (quoting Torres v. Oakland Scavenger Co., 487 U.S.

312, 316 (1988) (quoting Foman v. Davis, 371 U.S. 178, 181 (1962)), and citing United States v. Solly, 545 F.2d 874 (3d Cir. 1976)(holding that a clerk’s

receipt of a notice of appeal meets the “filing” requirement even if the notice

was not formally noted as “filed”)); see also Smith v. Evans, 853 F.2d 155,

161-62 (3d Cir. 1988) (finding application of the Houston rule warranted).

The Third Circuit has unequivocally found that a technically untimely filing due to prison delay which is beyond the prisoner’s control cannot be used

5 The Board is bound to follow the law of the United States Court of Appeals for the Third

Circuit, in which this case arises. See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993);

Matter of Anselmo, 20 I&N Dec. 25, 31-32 (BIA 1989).

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for determining non-compliance with the required filing time. Similarly, the

circuit court has held that evidence that the prisoner had delivered his notice

to prison authorities for mailing to the clerk of court within the appeal period

is sufficient to establish a timely filing. The applicability of these principles

are not limited to appeals or motions arising in the criminal justice system.

In In re Flanagan, 999 F.2d 753 (3d Cir. 1993), the Third Circuit found

that the rationale of Houston v. Lack, supra, controlled prisoners’ notices of

appeal to a district court from a decision issued by a bankruptcy court. The

court found that the prisoners’ notices of appeal were timely when deposited

with prison officials, addressed to the clerk with postage prepaid, on the last

day for filing. The court so held even though the notices were not actually

received and stamped filed by the clerk until 8 days after the closing date of

the appeal period. The court specifically addressed the Government’s argument that slow mail should not justify the application of the Houston principle and that evidence of actual prison delay must be demonstrated, finding

that the Supreme Court created “‘a bright-line rule, not an uncertain one.’”

Id. at 757 (quoting Houston v. Lack, supra, at 276). Instead, the court reasoned that “[c]ertain statements in Houston, along with its reliance on the

concurrence in Fallen, indicate a broader rule—one that seems to make the

prison mail room an adjunct of the clerk’s office without regard to whether

there has been an allegation of actual delay.” In re Flanagan, supra, at 759

(emphasis added).

The majority is simply wrong in reading either Houston v. Lack, supra, or

my argument that Houston should extend to this case, as asserting the proposition that it is necessary to adopt some definition of “filing” other than

receipt by the clerk. Their citation of authority from other circuit courts of

appeals is inapposite, as such authority is directly contrary to the rulings of

the Third Circuit in which this case arises and by which it is governed.6

Moreover, I contend that the better reading of this procedural rule as

applied to asylum applicants facing refoulement to a country in which

persecution is claimed, and to other applicants facing deportation from the

United States, is the more liberal reading adopted by the Third Circuit.7 It is

6 I note, furthermore, that it is Gurguis v. INS, 993 F.2d 508 (5th Cir. 1993), cited by the

majority, and not Houston v. Lack, supra, which is inapplicable to this case. The Fifth Circuit

attempted to distinguish Houston because it addressed appeals to district courts, rather than to

circuit courts, whose procedural rules require actual receipt to perfect a filing under Rule 15(a)

of the Federal Rules of Appellate Procedure. See also Nigro v. Sullivan, 40 F.3d 990 (9th Cir.

1994)(attempting to construe “file” and “serve” so as to differentiate them from the status of a

notice being “received”). As I have shown, however, Houston and Fallen and their progeny in

the Third Circuit expressly treat deposit of pleadings to be mailed with prison officials as

receipt by the clerk of court, be it a district court, a circuit court, or an administrative agency.

7 The majority’s reliance on the absence of specific procedures for handling of mail in

detention facilities run by the Service, as noted by the Fifth Circuit in Gurguis v. INS, supra,

serves neither reason nor fairness. First, a good percentage of detainees held by the Service are

not held in Service-run detention facilities, but are housed in actual county jails and federal

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consistent with notions of due process which have long been affirmed by the

courts in recognition of the fact that expulsion carries extremely harsh consequences and that deportation is often the equivalent of banishment or exile.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Barber v. Gonzales,

347 U.S. 637, 642 (1954); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948);

Bridges v. Wixon, 326 U.S. 135, 154 (1945) (stating that deportation “visits a

great hardship on the individual . . . . Meticulous care must be exercised lest

the procedure by which he is deprived of that liberty not meet the essential

standards of fairness.”); see also Romero-Morales v. INS, 25 F.3d 125, 131

(2d Cir. 1994) (finding “disquieting” the Immigration Judge’s “failure to

examine the particulars of the case before him”); Baires v. INS, 856 F.2d 89,

91 (9th Cir. 1988) (holding that administrative expediency must give way to

protection of fundamental rights).

The Service imprisoned an asylum seeker, not a criminal. Now, we are not

even allowing that asylum seeker the benefit of a legal construction developed to protect access to the courts in such cases. It is inappropriate and contrary to superior authority to refuse to reopen the applicant’s case under

8 C.F.R. § 3.2(c)(1). As the Supreme Court noted with disapproval in Fallen,

the fact that regulations “were not approached with sympathy . . . is apparent

when the circumstances of this case are examined.” Fallen v. United States,

supra, at 142. Consequently, I would treat this motion as filed and received

“in time,” and reopen and reconsider the applicant’s asylum claim.

B. The Applicant’s Motion Adequately Asserts

Changed Circumstances Affecting His Asylum Claim

Where a movant seeks reopening or reconsideration by a motion that is

considered to be untimely or in excess of the single motion allowed by the

regulations, he must show changed circumstances.8 8 C.F.R. § 3.2(c)(3)(ii).

To insure our compliance with the United States’ international refugee obligations embodied in statutory provisions and judicial decisions interpreting

such law, the standard for determining changed circumstances must be a flexible one. Most recently, it has been defined as encompassing “circumstances

materially affecting the applicant’s eligibility for asylum” including, but not

prisons meant for criminal inmates. Second, the absence of any official process for handling

mail by the Service, whose officers double as jailers and party litigants for the “prosecution” of

exclusion and deportation charges, only underscores the need for a liberal reading which deems

deposit with detention authorities to be receipt by an adjunct of the Appeals Processing Unit

clerk. Third, the absence of agency procedures to insure that appeal and motion papers filed by

incarcerated litigants are timely conveyed to and received by the agency needs to be remedied,

not relied upon to defeat otherwise legitimate and nonfrivolous actions.

8 “Change(d)” is defined as “1 a) to become different; alter[ed]; var[ied]. . . b) to undergo

alteration or replacement . . . 2 to pass from one phase to another.” Something that is “changed”

is defined as “something that is or may be substituted; something of the same kind, but new and

fresh.” Webster’s New World Dictionary 234 (Third College Edition 1988).

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limited to, “(A) Changes in conditions in the applicant’s country of nationality . . . or (B) Changes in objective circumstances in the United States, including changes in applicable U.S. law, that create a reasonable possibility” that

an applicant is eligible for asylum. 62 Fed. Reg. 10,312, 10,339 (1997) (to be

codified at 8 C.F.R. 208.4(a)(4)(i)); see also sections 208(a)(2)(C), (D) of the

Act, 8 U.S.C.A. §§ 1158(a)(2)(C),(D)(West Supp. 1997).9

The majority cites no authority for its implicit contention that the concept

of changed circumstances requires a new basis for an asylum claim. Such is

directly inapposite to the holdings in other cases joined by many members of

the instant majority. See, e.g., Matter of C-A-L-, 21 I&N Dec. 754, 757 (BIA

1997) (finding the guerrilla presence in Guatemala to have declined, so that

“the threat to the general population has decreased”); see also Matter of

T-M-B-, 21 I&N Dec. 775, 777 (BIA 1997) (finding that the State Department profile indicates that the agent of persecution has decreased in number

of adherents and has lost some degree of ability to operate throughout the

country). And, I would like to know what authority supersedes that of the

Handbook which recognizes that the cumulative10 effect of several incidents

ascertained in light of a wide range of circumstances may constitute a basis

for a finding of a well-founded fear of persecution. Office of the United

Nations High Commissioner for Refugees, Handbook on Procedures and

Criteria for Determining Refugee Status Under the 1951 Convention and the

1967 Protocol Relating to the Status of Refugees para. 201, at 48 (Geneva

1992)(“Handbook”); see also id. para. 53, at 14-15; Masieh v. INS, 73 F.3d

579 (5th Cir. 1996); Shirazi-Pirza v. INS, 14 F.3d 1424 (9th Cir. 1994).

On April 7, 1997, the Attorney General of the United States found that

conditions have so deteriorated in Liberia that it was necessary and appropriate to redesignate Liberia within the Temporary Protected Status (“TPS”)

program which affords protection from refoulement to nationals of countries

so designated. Not only did the Attorney General extend the period of protection under TPS for those Liberians already granted such status, she designated Liberia anew, with the result that Liberians within the United States

9 Although these provisions appear in the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546

(“IIRIRA”), and implementing regulations, we have recognized that reference to such

provisions is an appropriate indicator of congressional intent in adjudicating cases governed by

prior statutory enactments. See Matter of Q-T-M- T-, 21 I&N Dec. 639 (BIA 1996).

10 “Cumulative” is defined as “1 increasing in effect, size, quantity, etc. by successive

additions . . . 2 designating additional evidence that gives support to earlier evidence.”

Webster’s New World Dictionary 338 (Third College Edition 1988). In the motion to reopen

context, the fact that new, previously unavailable evidence is “cumulative” in relation to

evidence previously submitted and considered, does not preclude its consideration as evidence

of “changed circumstances.” 62 Fed. Reg. 10,312, 10,339 (1997) (to be codified as 8 C.F.R.

§ 204.4(a)(4)) (defining “changed circumstances” as those “materially affecting the applicant’s

eligiblity for asylum”).

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who were not protected under the original program may now seek and be

granted such protection. 62 Fed. Reg. 16,608-10 (1997).

Nevertheless, the majority persists in concluding that the applicant has not

shown changed circumstances. Remarkably, the majority finds that the continued and dramatic increase in violence, war, and tribal and political persecution do not constitute “materially changed circumstances” that would

affect the applicant’s claim that he faces persecution on account of his desertion from coerced and involuntary participation in the Charles Taylor paramilitary forces in which he would have had to commit human rights abuses.

The majority dismisses the applicant’s new documentary evidence of current

country conditions and the Attorney General’s April 1997 designation of

Liberia in the TPS program, of which we may take administrative notice at

least for purposes of consideration of the applicant’s motion under 8 C.F.R.

§ 3.2(c)(3)(ii), as no more than a restatement of his original asylum claim.

It is critical that we not dismiss such “additional evidence” or diminish its

significance in relation to the requirement under 8 C.F.R. § 3.2(c)(3)(ii) that

an asylum applicant establish changed circumstances. All qualitative elements of asylum eligibility aside, a well-founded fear of persecution is determined ultimately according to a numeric approximation in which we

measure the likelihood that there exists at least a 10% chance that the persecution feared will occur. See INS v. Cardoza-Fonseca, 480 U.S. 421, 440

(1987) (recognizing that there “is simply no room in the United Nations’ definition [of the term “refugee,” which essentially is the same as the Immigration and Naturalization Act definition] for concluding that because an

applicant only has a 10% chance of being . . . persecuted, that he or she has no

‘well-founded fear’ of the event happening”). Disregarding or rejecting evidence that is cumulative, because it is similar to, supports, merely alters in

quantity or effect, but is not fundamentally different in nature from, previously considered evidence, is contrary to the the refugee definition as interpreted by the Supreme Court.

I believe that “changed circumstances,” the additional requirement

imposed before we will grant an out of time or number motion to reopen in

the asylum context under the regulations, encompasses not only foreign electoral changes, or other changes in government which might extinguish or

limit relief available to an asylum seeker, but both qualitative and quantitative changes which may enhance the likelihood of persecution and require us

to extend relief. Moreover, I find that affirmative and material evidence submitted with the applicant’s motion and responsive pleadings establishes a

prima facie showing of changed circumstances sufficient to warrant reopening of the applicant’s case for a hearing.11

11 It is important to note that in determining whether an applicant has satisfied the terms of

8 C.F.R. § 3.2(c)(3)(ii), we are assessing the proferred evidence under a “prima facie” standard,

in which the proferred evidence is to be taken as being true factually, and the question before us

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Despite a supposed peace accord in August 1995, the Department of State

report indicates that the warring factions continued to be as active or more

active than previously, engaging in arbitrary detentions of “prisoners of

war,” and the deliberately targeted murder, mutilation, forced rape, torture,

and abductions of each other and the civilian population, that those working

to implement the accord have been attacked by the warring factions, and that

there are no operating courts in most areas of the country. Committees on

International Relations and Foreign Relations, 104th Cong., 2d Sess., Country Reports on Human Rights Practices for 1995 141-44 (Joint Comm. Print

1996). This has been more than confirmed by the Attorney General’s recent

assessment, resulting in her extending and redesignating Liberia as a country

whose qualifying nationals are to be accorded TPS. Such evidence of continued and unabating violence, including tribal and factional persecution, is a

“changed circumstance” and increases the likelihood that the applicant is

likely to face repercussions if forcibly returned to Liberia.

Furthermore, it is fair to say that the majority has taken administrative

notice of recent electoral events in which Charles Taylor has become President. This should require consideration of how the applicant’s alleged persecutor being elected President affects the risk of persecution to him

personally. The cloaking of Charles Taylor and his forces with state power

would appear to have enhanced and not diminished the likelihood of the

applicant’s fear of persecution. If anything, the recent July election of

Charles Taylor underscores the necessity for a reexamination of the applicant’s claim in light of all the pertinent facts. At a minimum, in light of the

legally erroneous adjudication of the applicant’s original appeal by this

Board, discussed below, the prima facie evidence submitted and additional

changes of which the majority now takes administrative notice warrant

reopening.

C. Board Consideration of the Applicant’s Motion by Certification

is Warranted to Correct Errors of Law and Comport with

International Refugee Protections

If the majority is determined not to recognize the applicant’s motion as

timely filed and refuses to acknowledge that evidence of changed conditions

in Liberia warrant reopening, we should, at the very least, exercise our certification authority under 8 C.F.R. § 3.2(a) to hear the applicant’s motion on its

merits. An out of time motion may be considered by the Board, as we are free

to reopen or reconsider any case in which we have rendered a decision.

8 C.F.R. § 3.2(a); see also 8 C.F.R. § 3.1(d)(1) (1997) (authorizing the Board

is whether such evidence, together with that already in the record, could satisfy the applicant’s

burden of demonstrating a well-founded fear of persecution. Matter of L-O-G-, 21 I&N Dec.

413 (BIA 1996); Matter of Coehlo, 20 I&N Dec. 464 (BIA 1992).

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to exercise the discretion and authority conferred on it by the Attorney General as is appropriate and necessary for the disposition of the case).

The Third Circuit favors a meaningful hearing in asylum cases. Marincas

v. INS, 92 F.3d 195 (3d Cir. 1996). In addition, I believe our decision below is

erroneous as a matter of law. See Fengchu Chang v. INS, 119 F.3d 1055 (3d

Cir. 1997) (finding the Board to have erred in mischaracterizing what constitutes a political opinion held by the victim of persecution, as well as what

constitutes politically motivated action on the part of the persecutor). Such an

error, alone, without a showing of changed circumstances, constitutes the

type of situation in which our authority to reopen under certification should

be exercised.

The Immigration Judge found the applicant to be credible and recognized

that the applicant held a political view which he had expressed when he said

the guerrilla war between different factions in Liberia was “unfair and unjustified.” Contrary to our finding in support of denying the respondent’s prior

appeal—that the applicant did not desert the Charles Taylor forces due to his

desire not to participate in human rights violations or other acts condemned

by the international community—the applicant stated, as part of his explanation for resisting recruitment and opposing the war, that many innocent people were suspected of being collaborators, giving out information about the

guerrillas, and were therefore murdered by Charles Taylors’ forces. Similarly, as another part of an explanation for why he found the war unfair and

did not want to participate in it, he testified that once he was recruited forcibly by the Charles Taylor National Patriotic Liberation Front (“NPFL”), he

was forced to fight against and try to kill his compatriots.

The applicant testified that he accompanied the recruiters only on pain of

death. He testified further from personal observation that he witnessed a

group who refused to go with the NPLF killed, and that he saw a group of

friends who tried to escape killed. These circumstances have only been exacerbated by recent developments in Liberia.

We have held that punishment for refusing to serve in the military in

Afghanistan, under circumstances in which young men were dragooned and

impressed into service in the place of those who refused to fight against their

compatriots, differs from mere refusal to avoid military service and would

constitute persecution on account of political opinion. Matter of Salim, 18

I&N Dec. 311 (BIA 1982). Furthermore, in M.A. v. United States INS, 858

F.2d 210 (4th Cir. 1988), the court reasoned that draft evasion can be an

expression of political opposition. The factors of refusal to commit violence

against fellow countrymen and the type of punishment inflicted for desertion

are relevant in determining asylum eligibility, and the Board must take into

consideration the genuineness of the applicant’s opposition and the type of

treatment he fears upon return. Id. at 216; see also Fengchu Chang v. INS,

supra, at 8-9, 11.

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The Board also has held that where conscription places an individual in a

position in which he might be forced to commit acts that the international

community condemns, or where refusal to serve could lead to disproportionate punishment motivated by the evader’s actual or perceived political opinion, such claims come within the statutory grounds and warrant protection

under the Act. Matter of A-G-, 19 I&N Dec. 502, 506 (BIA 1987), aff’d sub

nom. M.A. v. United States INS, 899 F.2d 304 (4th Cir. 1990). There is no

requirement, which I find implicit in our opinion, that a deserter who disagrees with his government regarding political justification for military

action must desert precisely at the moment that the military entity requires

him to commit an atrocity. It is enough that the military forces are known to

commit atrocities and that the applicant deplores and does not wish to commit them. M.A. v. United States INS, supra, at 315; Matter of A-G-, supra.

Contrary to our conclusion on appeal that the applicant “never expressed

any” political opinion, he told the recruiters that he did not want to join them

and didn’t agree with what they were doing, and stated he wanted to live

peacefully. Cf. INS v. Elias-Zacarias, 502 U.S. 478 (1992); Fengchu Chang

v. INS, supra, at 7 (ruling that to “characterize this action . . . as anything

other than political narrows the term ‘political’ beyond recognition”). While

statements in opposition to the “unfair war” and the “killing of his compatriots” may not express a sophisticated political analysis, it is certainly unreasonable to say that opposition to a war and to the killing of one’s own

countrymen is not a political view. Fengchu Chang v. INS, supra, at 7 (citing

Osorio v. INS, 18 F.3d 1017, 1029 (2d Cir. 1994)).12 Finally, since the applicant’s claim was heard before the Immigration Judge and considered by the

Board on appeal in 1995, we have clarified that the proper standard to be

applied to an applicant’s claim is whether he has proven he has a belief or

characteristic offensive to the agent of persecution, and the alleged persecutor has the inclination and ability to harm him, at least in part, on account of

that belief or characteristic. Matter of S-P-, 21 I&N Dec. 486 (BIA 1996);

Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996).13

12 The decision of the Board appears to be factually in error when it states that the law of the

Second Circuit is controlling. This hearing took place in the Immigration Court at Elizabeth,

New Jersey, which is within the jurisdiction of the United States Court of Appeals for the Third

Circuit. Moreover, even assuming that Second Circuit law is controlling, which it is not, the

Board misconstrues the court’s decision in Sotelo-Aquije v. Slattery, 17 F.3d 33, 36 (2d Cir.

1994), to require public expression of an opinion it does not so require. And even if it did, the

applicant did express his opposition directly to the Charles Taylor forces when they came for

him. See also Fengchu Chang v. INS, supra, (citing numerous decisions of the United States

Courts of Appeals for the Ninth and Second Circuits in support of its reasoning and

conclusion).

13 Canas-Segovia v. INS, 970 F.2d 599, 602 (9th Cir. 1992) (holding on remand that while the

persecutor’s motive was important, the victim of persecution does not bear the unreasonable

burden of having to determine the exact motivation of the persecutor or that political or other

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In Fengchu Chang v. INS, supra, the Third Circuit came to the same conclusion, and it is that interpretation we must follow. Under the law in effect

today, an applicant’s request for asylum should be sustained if he establishes

that, in part, the persecutor’s motive was to overcome a belief or characteristic related to one of the five grounds. Matter of S-P-, supra.

The restrictive interpretation applied by the majority to the applicant’s

motion is unwarranted under the facts and circumstances before us. While the

regulations may strive in part to eliminate “successive . . . appeals and

motions,” Stone v. INS, 514 U.S. 386, 115 S. Ct. 1537, 1546 (1995), this is

not a case where the applicant has qualified for a new form of relief by virtue

of delaying his deportation. He has been in Service detention throughout and

the Service apparently has not chosen to deport him until a significant period

of time has passed. During that period not only have conditions changed in

Liberia, but infirmities in the final administrative order have been brought to

our attention. Neither the regulations nor the Supreme Court’s interpretation

of a legitimate desire on the part of Congress to remove excludable and

deportable aliens in a timely fashion preclude our reopening and reconsidering a decision in the case of a credible asylum seeker under the circumstances

presented here.

I cannot conclude that the applicant has received a reasoned decision on

appeal to the Board when that decision is founded on factual errors and questionable conclusions of law. I believe that a reopened hearing is likely to lead

to a different result. Matter of Coehlo, supra. Even apart from finding the

applicant’s evidence of changed circumstances to be ample, I would reopen

this case to properly consider, and, if necessary, supplement or clarify the

record, and to render a reasoned decision based on applicable law.

II. CONCLUSION: THE MOTION SHOULD BE GRANTED

The applicant is due reopening of his case pursuant to his Motion to

Reconsider/Reopen to the Board of Immigration Appeals, which he signed

and delivered to or placed in the Lehigh County jail mail system on September 25, 1996. The applicant also is due reopening of his case on its merits

given changed circumstances in Liberia and the errors in our denial of his

appeal. Although the agents of persecution and the type of persecution feared

by the applicant may not have changed in character, the circumstances on

which the applicant’s fear of persecution is based have changed materially

both in scope and degree. Denial of reopening and reconsideration in the face

of such acknowledgment is inconsistent with the regulations and with our

international refugee obligations. The motion was timely filed and received

under applicable law and notions of fairness.

offending positions or views attributed to the victim could motivate persecution); see also

Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995); Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988).

997