Sarr v. Gonzales

474 F.3d 783, 2007 U.S. App. LEXIS 1351, 2007 WL 140953
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 22, 2007
Docket05-9606
StatusPublished
Cited by132 cases

This text of 474 F.3d 783 (Sarr v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sarr v. Gonzales, 474 F.3d 783, 2007 U.S. App. LEXIS 1351, 2007 WL 140953 (10th Cir. 2007).

Opinion

McCONNELL, Circuit Judge.

Petitioner Alassane Sarr seeks review of a final order of removal issued by the Bureau of Immigration Appeals (BIA), which affirmed a determination by an Immigration Judge (IJ) denying Mr. Sarr’s application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We reverse the decision of the BIA and remand for further proceedings.

I. BACKGROUND

A. Mauritania

The Islamic Republic of Mauritania is located in northwest Africa, bordered by the Atlantic Ocean, Senegal, Mali, Algeria, and Western Sahara. Formerly a French colony, the country gained its independence in 1960, an event that triggered a large migration of native sub-Saharan peoples to the area north of the Senegal River. 1 Among these peoples were the Pul-aar, or Fulani, a black African nomadic group with roots in the region dating back to at least the fourteenth century. 2 The country’s ethnic makeup is now approximately forty percent African-Arab-Berber (often called “Black Moor”), thirty percent Arab-Berber (‘White Moor”), and thirty percent Black African (mostly Wolof, Tu-kulor, Soninke, and Fulani). 3 Over time, conflict arose between the majority Moor population, which viewed Mauritania as an Arab nation, and the black Africans, who sought a more substantial role for sub-Saharan peoples and their way of life. The conflict came to a head in 1989 when violence erupted between the groups and thousands of black Africans were forced to leave the country and had their land and property confiscated. Though the Mauritanian government denies the allegations, a human rights group maintains that *786 “[s]ince 1989, tens of thousands of black Mauritanians have been forcibly expelled, and hundreds more have been tortured or killed.... The campaign to eliminate black culture in Mauritania, orchestrated by the white Moor rulers, reached its height in the late 1980s and early 1990s.... ” Human Rights Watch/Africa, Mauritania’s Campaign of Terror 1 (1994), Admin. R. at 270. The State Department has also recognized the “intercommunal violence that broke out in April 1989.” Mauritania Note, supra note 1.

B. Mr. Sarr’s Story

On March 3, 2001, Mr. Sarr used a false' passport to enter, the United States via New York City. On January 28, 2002, he filed applications for asylum, withholding of removal, and protection under the CTA with the Immigration and Naturalization Service (INS), the functions of which are now handled by U.S. Citizenship and Immigration Services within the Department of Homeland Security. During the pen-dency of these applications, Mr. Sarr relocated to Colorado, and the case was .transferred to that venue.

In his asylum application and at his immigration hearing, Mr. Sarr claimed that he was a member of the Fulani ethnic group and that he was born in Mauritania in 1976. His father, owned a three-acre farm in Kaedi, Mauritania, near the Senegalese border, where Mr. Sarr resided with his family through the age of thirteen. On September 20, 1989, five • soldiers (whom Mr. Sarr identified as “white”) arrived at the Sarr family home and demanded proof of the family’s identity from Mr. Sarr’s father. He complied, whereupon the soldiers promptly destroyed the documents. Mr. Sarr also explained to the court, however, that his mother retained his birth certificate, a document he later produced at his asylum hearing as proof of his identity. After destroying the papers, the soldiers assassinated Mr. Sarr’s father, beat Mr. Sarr and the other members of his family, and removed the Sarrs from their home. After a brief detention in the local police station, the family members were forced to cross the Senegal River by rowboat, where they were met by Red Cross workers and admitted to a refugee camp in Matam, Senegal. During the asylum hearing, Mr. Sarr described in detail the circumstances of this incident, including the name of the military officer who led the attack on the Sarr family, the vehicle in which the soldiers traveled, the weapons they carried, and the instruments with which they beat the surviving members of the family.

According to Mr. Sarr, he remained in the refugee camp until 1996, at which time he moved to the city of Dakar in the hopes of finding help for his family and a “better life.” Admin. R. at 89-90. There he became a peddler of merchandise for a shop owner. Mr. Sarr testified that he sent portions of his earnings to his siblings, who remained in the Matam refugee camp. Mr. Sarr also testified that he was unable to obtain legitimate identification or open a bank account while in Dakar. In 2001, Mr. Sarr purchased a false passport and left Dakar for the United States. He testified that he feared if he returned to Mauritania, “[t]he same thing that happened to us in 1989” would happen again. Supp. Admin. R. at l. 4 He stated that he had lost touch with his siblings, who presumably are still in Senegal.

*787 C. The Immigration Judge’s Opinion

The evidence before the IJ consisted of Mr. Sarr’s asylum application and the INS’s response, Mr. Sarr’s Mauritanian birth certificate, Mr. Sarr’s own testimony, which was presented through an interpreter, psychiatric analyses of Mr. Sarr, several State Department Country Reports on Mauritania, and a “packet of material” submitted by Mr. Sarr regarding Mauritania and his situation there. 5 Admin. R. at 53. The government performed a forensic examination of the birth certificate, which did not reveal any changes to the document. At the beginning of the hearing, counsel for the Department of Homeland Security explained that the “particular problem with this case” was that Mr. Sarr “had stated to the asylum officer that all family documents were destroyed in the attack, yet he was able to produce the birth certificate. A huge inconsistency.” Id. at 77. Counsel also argued that Mr. Sarr’s description of conditions in Mauritania “was inconsistent with known conditions in Mauritania” and that “repatriation has been occurring for some time.” Id.

At the conclusion of the hearing, the IJ delivered an oral decision rejecting Mr. Sarr’s petitions for asylum and related relief based upon an adverse credibility finding. The IJ found that Mr. Sarr “failed to show past persecution or a well-founded fear of persecution,” and that his testimony “was not sufficiently detailed, consistent or believable to provide a plausible and coherent account of the basis for his fears.” Id. at 53-54. In particular, the IJ expressed doubt that Mr. Sarr was truly from Mauritania: “The issue before the Court is whether this guy is from Mauritania or not. I have no idea and I didn’t give any credibility to his testimony.” Id. at 55; see also id. at 57 (“Again, what this Court has problems with is credibility. I don’t know if he’s from Mauritania. I don’t know if what he’s telling me is the truth. He has absolutely nothing to show me that would suggest that he is, in fact, from Mauritania.”).

The IJ identified three reasons for doubting Mr.

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Bluebook (online)
474 F.3d 783, 2007 U.S. App. LEXIS 1351, 2007 WL 140953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarr-v-gonzales-ca10-2007.