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OFOSU v. MCELROY

December 7, 1995

IN THE MATTER OF KWADWO OFOSU, Petitioner, - against - EDWARD McELROY, Acting District Director of the New York District of the Immigration and Naturalization Service, Respondent.


The opinion of the court was delivered by: GERSHON

 GERSHON, United States Magistrate Judge:

 Kwadwo Ofosu, a Ghanian, arrived in the United States on March 6, 1992 carrying a falsified Nigerian passport which contained his picture and another person's name. Certified Administrative Record ("R") p. 238. He was charged with excludability under 8 U.S.C. §§ 1182(a)(6)(C), 1182(a)(7)(A)(i)(I), 1182(a)(7)(B)(i)(I), and 1182(a)(7)(B)(i)(II). *fn1" In this petition for a writ of habeas corpus, Ofosu seeks review of a July 25, 1994 final order of the Board of Immigration Appeals ("BIA") denying his application for asylum under 8 U.S.C. § 1158 and for withholding of return under 8 U.S.C. § 1253(h), denying his motion to reopen the exclusion proceedings, and ordering his exclusion from the United States.

 Ofosu has conceded excludability. What he challenges is the denial of his request for asylum or for withholding of return.

 The Hearing.

 The sole testimony at the hearing, held July 26, 1993, on Ofosu's excludability and on his request for asylum or the withholding of return was that of Ofosu himself. Ofosu testified that, prior to leaving Ghana, he worked for the government as a member of the Committee for Defense of the Revolution ("CDR"). Because he had disobeyed a CDR order to arrest political protestors at a rally, he believed he would be arrested upon his return to Ghana. Ofosu testified that the CDR was established by "Rawlings," (misspelled in the transcript as "Rollins") to work "alongside the police." *fn2" R. 204. Ofosu became a member of the CDR in 1984 and, after a six month training period, he worked full time and was paid. R. 205-07.

 As a member of the CDR, "spying" was something he did on a regular basis, even after working hours. "If I see something that was not, uh, that was against the government, I had to act. So it looks like I was always on duty." R. 207. Ofosu was a senior officer in the CDR and had "extra responsibility." R. 226. One of Ofosu's duties was to inform the government about people who spoke against Rawlings or sought to form political parties. Anyone who spoke against Rawlings was considered a criminal. R. 228. Most people arrested by the CDR were not charged with any crime. R. 211.

 Ofosu never made any arrests alone. He reported what he saw and then, as a senior officer, he would accompany other CDR members and, as a group, they would make the arrests. R. 207, 230-31. When asked to describe the difference between the police and members of the CDR, Ofosu explained that the police were responsible for criminal cases, and the duties of the CDR "were only something that concerns the government. When you do something against the government. We-we usually go in with force." R. 205. By "go in with force" he meant that, in contrast with the police, who had to have warrants showing their authority to make an arrest and who could be questioned by the people being arrested, members of the CDR made arrests without warrants and answered no questions. R. 229-30. Because of this, "people were not scared of the police as they were scared us [sic]." R. 229. He testified that "in the beginning, we were not after political opponents we were after smugglers and other-- but later on, when, uh, it turn [sic] out that we were sent to arrest people opposed to [the government], that's when I started not to like what I was doing." R. 234.

 
I have made so many arrest, I cannot give you the number. That's why I'm scared of my life [sic], because now I--that I am [an] enemy to the general public because of the arrest[] that I've made, I'm now [an] enemy to the government because of the way I arrest--I deserted the government. Now I don't have a stand. People, the people from the general public don't like me, the government doesn't like me.

 R. 231.

 Other than one person, who received a trial and whom he saw shot by a firing squad, Ofosu never saw anyone killed, but he thought that some of those arrested had been killed. R. 232-33. He also testified that he had never seen anyone being tortured, but most of the people arrested by the CDR were tortured, and he had seen one person after that person had been tortured. R. 233.

 On the morning of February 17, 1992, Ofosu was ordered by a superior to make arrests at a rally to be held that day by members of the Ghanian Democratic Union ("GDU"), a political group that opposed the government. R. 214. Ofosu testified that, while he had never attended any meetings of the GDU, he "liked them because, uh, by that time there was nobody in Ghana that speak [sic] against [Rawlings]." R. 215. As approximately thirty-five CDR members set off to the rally, Ofosu tried to convince some of the officers that they should not make arrests:

 
On the way going, I started convincing them that I did not see why those people should be arrested because they have done nothing, and what they were saying was the truth. So why are we -- after we go the rally, we did not know what to do. Because though we had a position among us, nobody knew what to do.

 R. 216. Ofosu spoke to seven officers who, in turn, spoke with other officers. When they arrived at the rally, instead of making arrests, they stopped the rally. R. 217.

 This was not the first time he had been called upon to make arrests at a rally or demonstration; it was part of his job. R. 217-18. The reason he encouraged people not to make arrests at the February 17th demonstration was that, "I knew I was aware that some of the people that were to arrest [sic] would be killed by all means" if they were arrested. R. 218. Ofosu testified that this was not the first time he had failed to make arrests when ordered to do so: "Sometimes when we are asked to go and make arrests, we would go, but, uh, would not make any arrest and then we come back and report maybe we didn't find the place. This is the first time that, uh, I did it openly." R. 218.

 In the week following the incident, Ofosu and the other CDR officers continued to go to work, but were questioned by the CDR about the incident. R. 236. On the morning of February 25, 1992, when Ofosu was on his way to work, a soldier told him that two of his colleagues in the CDR had been arrested by the army and that Ofosu was also to be arrested. R. 219. Ofosu left the country the same day. He testified that he had since learned that the two CDR officers who were arrested remain incarcerated without trial and are ...


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