NEWS FROM THE COURTS

Salaam v. INS, Ninth Circuit

In this case, the court reversed the decision of the Board of Immigration Appeals and granted asylum.

Rasaq Dipo Salaam, a native of Nigeria, sought asylum in the US in 1997.  According to his asylum application, at 17 he became a member of the Free Nigeria Movement, dedicated to ending abuses committed by the Nigerian government.  Shortly after joining, he became vice-president of the FNM in his area.  As such he wrote fliers and broadsides criticizing the government, and posted them in Lagos, the capital of Nigeria.  Each flier contained his made and address.  Salaam also organized demonstrations and spoke against the government.  He claimed to have been arrested four times, each time following the posting of a new flyer.  After each arrest, he was held for several days and beaten.  The Nigerian police sought to arrest him a fifth time, but Salaam was able to escape.  He fled Nigeria and sought asylum in the US. 

The immigration judge who heard Salaam’s application made an adverse credibility determination and denied his application.  The Board of Immigration Appeals said that while it disagreed with the adverse credibility determination, it did agree with the decision to deny asylum, finding that his claims were “implausible” and that Salaam had failed to present corroborating evidence.  Particularly, the Board found it difficult to believe that Salaam had risen to such prominence in the FNM at such a young age.

Because the Board did not make an explicit credibility determination, the Ninth Circuit took its finding that Salaam’s claims were “implausible” as an adverse credibility determination.  The court found that this determination was not supported by the evidence.  The Board seemed to think that Salaam said he was a national leader of the FNM, when in fact he was only a district leader.  Moreover, most participants in the FNM were students, making a youthful leader quite likely.  The Board also found implausible that Salaam would continue to include his name and address on fliers after being arrested.  The court found that such actions were plausible coming from someone who had stated that he would die for his country, as Salaam had.  Therefore, the court found that Salaam’s testimony was credible.

The Ninth Circuit does not require corroborating evidence when the asylum applicant testifies credibly.  If the applicant’s testimony is not credible, or lacks sufficient detail, corroborating evidence can be required, but not, as here, where the applicant has testified credibly.  Moreover, Salaam did present corroborating evidence in the form of two witnesses and documents relating to the activities of the FNM. 

Finding that Salaam had testified credibly, the court further found that he had suffered past persecution on the basis of political opinion.  Because of this he is entitled to a presumption that he would face persecution if returned to Nigeria, a presumption the INS did not rebut.  Therefore, the court remanded the case with instructions to grant asylum.

The opinion is available online at http://caselaw.lp.findlaw.com/cgi-moses/getcase.pl?court=9th&navby=case&no=9871439.

*********

In re West, Board of Immigration Appeals

In this case, the Board ruled that a person released from custody before mandatory detention went into effect but sentenced afterward is not subject to mandatory detention.

West had been arrested and charged with possession of marijuana with the intent to distribute.  He was confined, and was released after posing bond.  He was released on December 10, 1997.  He later pled guilty to the charge, and in February 1999 was sentenced to probation.  He did not return to state custody.  In August 1999, the INS took West into custody, seeking to deport him on the basis of the drug conviction.  The INS sought to detain him under the mandatory detention provisions of the Immigration and Nationality Act.  The Immigration Judge ruled that West was not subject to mandatory detention, and the INS appealed.

Under the INA, aliens convicted of certain crimes are to be detained “when the alien is released” regardless of the form of release.  However, this rule applies only to aliens released after October 8, 1998.  Before the BIA, the INS argued that the “when released” language should, when the alien is not sentenced to jail time but is given probation, be taken to mean the date of sentencing.  For West, this would make his release date February 1999, more than one year after he was physically released from state custody.  The INS position was that released meant more than released from physical restraint. 

The Board disagreed with the INS, finding that the use of the word “release” throughout the INA clearly referred to release from physical custody.  This is even more clear from the language of the mandatory detention provision, which clarifies that it applies “without regard to whether the alien is released on parole, supervised release, or probation.”  Each of these is a form of post-custodial supervision that occur after a person is released from physical custody.  Therefore, because West was released from physical custody before the mandatory detention provision became effective, it cannot be applied to him.

The opinion is available online at http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/reposts/3438.pdf.

< Back | Next >

Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.