MEMORANDUM AND ORDER
JOYNER, District Judge.
This case has been brought before the Court on Petition of Randall Sackie for a writ of habeas corpus and on his petition for emergency stay of removal pending this Court's adjudication of his habeas petition. For the reasons which follow, the petitions shall be granted.
History of the Case
Randall Sackie is a 27-year-old native and citizen of Liberia who emigrated to the United States in May, 1995 and was admitted as a permanent resident on the basis of a petition from one of his parents, who had previously acquired U.S. citizenship. On July 21, 2000, the Philadelphia office of the Immigration and Naturalization Service ("INS") served Petitioner with a Notice to Appear, which is an immigration charging document by which removal proceedings are instituted. Specifically, the Notice to Appear alleged that Mr. Sackie had been convicted, (1) on June 18, 1998 of receiving stolen property in Minnesota; (2) on November 12, 1998 of giving a false name to the police in Minnesota; (3) on June 21, 1999 of giving false information to a police officer in Minnesota; (4) on August 16, 1999 of receiving stolen property in Ohio; (5) on August 26, 1999 of receiving stolen property and theft of property lost in Pennsylvania; and (6) on April 10, 2000 of access device fraud in Pennsylvania. The Notice to Appear further charged that Petitioner was deportable because he had been convicted of crimes involving moral turpitude and an aggravated felony pursuant to 8 U.S.C. § 1227(a)(2)(A)(i), (ii), and (iii).
In response thereto, Petitioner denied that he had been convicted of an aggravated felony and sought asylum, withholding of removal and protection under the U.N. Convention Against Torture ("CAT"). Petitioner's habeas petition asserts that he had been forcibly recruited as a child soldier in 1990 by the "marine" arm of the National Patriotic Front of Liberia ("NPFL") under the leadership of Charles Taylor, that he and his fellow recruits were regularly abused and given drugs such as cocaine to make them high and less fearful of the dangerous situations in which they were being placed, and that he
In 1993, a West African organization called the ECOMOG sent troops into Libera to disarm the rebel group that the petitioner was fighting with. Fearing for his life, Mr. Sackie fled to Conakry, Guinea and from there, with the help of the United Nations, contacted his father in the U.S. At the direction of his father, who had initiated a family petition, Mr. Sackie returned to Liberia in 1994 to await his visa. He subsequently was granted status as a legal permanent resident pursuant to the family petition and emigrated to the U.S. in May, 1995. Charles Taylor was elected President of Liberia in 1997 and remains in power to this date. Petitioner argues (as he did before two Immigration judges and two panels of the Board of Immigration Appeals) that if he were returned to Liberia, he would more likely than not face torture by or with the acquiescence of the Liberian government because of his prior membership in the marines/INPFL, that he is easily identified as an INPFL member because he has extensive body markings, scars and tattoos, and that he is therefore entitled to a deferral of his removal under the CAT.
Standard of Review
It is now clear that despite the limitations on federal court review of executive branch deportation decisions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), federal courts retain subject matter jurisdiction under 28 U.S.C. § 2241 to decide habeas corpus petitions by criminal aliens subject to deportation. INS v. St. Cyr., 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001). Although the Third Circuit has yet to make a definitive statement on the standard of review of such petitions, most of the courts in this circuit are in agreement that habeas review is limited solely to questions of statutory and constitutional law; review of factual or discretionary issues is prohibited. See: Da Rosa Silva v. INS, 263 F.Supp.2d 1005 (E.D.Pa.2003); Edwards v. INS, Civ. A. No. 03-286, 2003 U.S. Dist. LEXIS 6594 (E.D.Pa. March 31, 2003); Bamba v. Elwood, 252 F.Supp.2d 195, 199 (E.D.Pa. 2003); Builes v. Nye, 239 F.Supp.2d 518, 523 (M.D.Pa.2003); U.S. ex. rel. Zhelyatdinov v. Ashcroft, Civ. A. No. 02-4318, 2002 WL 31957526 (E.D.Pa. Dec. 27, 2002); Sulaiman v. Attorney General, 212 F.Supp.2d 413, 416 (E.D.Pa.2002), affd w/o opinion, 64 Fed.Appx. 851 (3d Cir.2003).
As noted, by his habeas petition Mr. Sackie seeks asylum, withholding of removal and/or protection under the UN Convention Against Torture (CAT).
Withholding of removal is properly granted "if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group or political opinion" unless "the alien ordered, incited, assisted or otherwise participated in the persecution of an individual because of the individual's race, religion, nationality, membership in a particular social group or political opinion" or is a danger to the community of the United States by virtue of having been convicted of a particularly serious crime. 8 U.S.C. § 1231(b)(3)(A),(B)(i), (ii). The burden of proof is on the applicant for withholding of removal to establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 C.F.R. § 208.16(b). Thus, withholding of removal involves considerations very similar to those applicable to requests for asylum.
The Convention Against Torture, in turn, allows a deportable alien to apply for relief from removal if an "immigration judge determines that the alien is more likely than not to be tortured
The original immigration judge hearing Mr. Sackie's case found that he did not participate or assist in the persecution of others on account of one of the statutorilyenumerated grounds and granted him asylum under Section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 and withholding of removal under Section 241(b)(3), 8 U.S.C. § 1231(b)(3). He likewise found that Petitioner was not convicted of an aggravated felony. The Immigration and Naturalization Service (INS) appealed the original IJ's decision on the grounds that Petitioner had failed to establish that he is a refugee within the meaning of the Act and that his asylum and withholding claims should be denied as a matter of discretion as a result of his criminal convictions. It did not argue that Mr. Sackie was precluded from relief by his convictions and, in fact, the BIA deemed the INS' argument that these convictions equated to aggravated felonies as having been waived on appeal. While affirming the conclusion that Petitioner did not participate or assist in the persecution of others, the Board of Immigration Appeals (BIA) did not agree with the IJ's finding that Petitioner here had met his burden of proving past persecution and a well-founded fear of future persecution. Further, the BIA found that even if he had, the crimes which Mr. Sackie committed in the U.S. mandated a denial of asylum in the exercise of discretion. Given that the IJ had granted Petitioner asylum and did not therefore consider his application for relief under the CAT, the BIA vacated the grant of asylum but remanded the matter for consideration of the CAT claim. On remand, a different IJ found that Mr. Sackie had not shown that he was more likely than not to be tortured if returned to Liberia and therefore denied
In now reviewing the record before us under the limited habeas standard of review articulated above, we cannot find any constitutional or statutory error in the BIA's decision that Petitioner is not a refugee within the meaning of the Immigration and Nationality Act, 8 U.S.C. § 1101, et. seq. We therefore deny Petitioner habeas relief based on his asylum claim. We do find, however, that the IJ and concomitantly, the BIA did commit constitutional and statutory error in considering Mr. Sackie's CAT claim and in finding that he failed to meet his burden of proving that he was tortured or is more likely than not to be tortured if he were deported back to Liberia. Indeed, here there is ample record evidence that Liberia is and has been for more than the last decade a very unstable country torn apart by civil war, that the present leader, Charles Taylor is himself a warlord who came to power as the result of the successful fighting of his own group of rebels, and that the ongoing battles between various groups of rebel fighters have resulted in the death and displacement of millions of innocent civilians, many of whom have fled and continue to flee into the neighboring countries of Sierra Leone, Guinea and Ivory Coast. It is also clear that many of these rebel groups seize young children and force them into their ranks to fight. Petitioner's testimony that he was just one such child soldier, was not controverted and was accepted by the IJ and the BIA and this Court has no basis to question or doubt the veracity of it. Borrowing from the findings made in the April 1, 2002 Decision of the BIA,
As the BIA itself found, Petitioner was kidnaped at gunpoint, repeatedly threatened with death, had his arm and back cut as part of an initiation rite, and was regularly fed cocaine, alcohol and marijuana. In finding that Petitioner had failed to meet his burden of proving torture, the IJ and the BIA (per curiam) focused exclusively on the physical component of torture, and ignored the possibility that it could arise by virtue of prolonged mental harm. In so doing, we find that the IJ and BIA apparently disregarded the following portion of Regulation 208.18:
Given Mr. Sackie's undisputed and uncontroverted testimony that he was threatened with imminent death on numerous occasions, frequently given mind altering substances and suffered cuts to his back and arms, we must find that he has met his burden of proving that he was tortured in his native country. He has also testified without contradiction that the INPFL fought against the current president and that he bears the distinctive marks and tatoos of an INPFL member. Finally, the recent newspaper and internet articles which petitioner has produced as documentary evidence show that the current government is itself guilty of numerous, heinous human rights violations and that it has virtually no control over the country such that even if it wanted to intervene, it has virtually no power to prevent the crimes against humanity which are currently ongoing throughout the country. Accordingly, we find that Mr. Sackie has sufficiently shown that he was tortured in the past and that he is more likely than not to suffer torture or death in the future if he were returned at this time to his native country. We therefore conclude that Petitioner is entitled to habeas relief in the form of a withholding of removal under the CAT.
An order follows.
AND NOW, this 18th day of June, 2003, upon consideration of Randall Sackie's Petition for Writ of Habeas Corpus and Petition for Emergency Stay of Removal, it is hereby ORDERED that the Petitions are GRANTED, and Petitioner is DIRECTED to be released from the custody of the Immigration and Naturalization Service.