Erica P. De Souza v. Immigration and Naturalization Service

999 F.2d 1156, 1993 U.S. App. LEXIS 18854
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 23, 1993
Docket92-3042
StatusPublished
Cited by38 cases

This text of 999 F.2d 1156 (Erica P. De Souza v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erica P. De Souza v. Immigration and Naturalization Service, 999 F.2d 1156, 1993 U.S. App. LEXIS 18854 (7th Cir. 1993).

Opinions

BAUER, Chief Judge.

Kenyan native Erica P. De Souza petitions for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”). [1157]*1157The Board denied her application for asylum and withholding of deportation pursuant to Sections 208(a) and 243(h) of the Immigration and Nationality Act (the “Act”). 8 U.S.C. §§ 1158(a) and 1253(h). We affirm.

I.

Erica P. De Souza was born on July 17, 1963 in Mombasa, Kenya. -Administrative Record (“A.R.”) at 49. Only a few months later, on December 12, 1963, Kenya obtained its independence from the United Kingdom. Id. at 2, 131. De Souza’s parents were born in Goa, a former Portuguese colony which India invaded and conquered shortly after De Souza’s birth. De Souza claims that the Kenyan government refused to grant her citizenship because of her ethnic origins. Id. at 132. De Souza lived in Kenya until 1980. She attended a public grade school and a private high school. Id. at 96. In 1980, she travelled to the United States for high school as part of the American Field Service program. Id. De Souza returned to Kenya in 1984 to visit her family. Id. at 50. Because she was not a citizen, the Kenyan government required her to obtain a three-month tourist visa for her trip. The United Kingdom designated her as a British Protected Person because, at the time of De Souza’s birth, Kenya was a British colony. The United Kingdom, like Kenya, also denied her citizenship.

De Souza returned to the United States in January 1985 to continue her education. The Immigration and Naturalization Service (“INS”) admitted De Souza back into the country as a nonimmigrant student and authorized her to remain until February 27, 1987. Id. at 141. When De Souza stayed in the United States past that date, the INS instituted deportation proceedings. Id. De Souza admitted that she had stayed past February 27, 1987, but applied for section 208(a) asylum and section 243(h) withholding of deportation.

On October 4, 1988, an immigration judge conducted a hearing on De Souza’s application for asylum and withholding of deportation. De Souza testified at the hearing. She stated that in Kenya people of Indian descent are subject to racial discrimination and harassment. She claimed that her mother, a manager who works in an import-export business, is constantly harassed in her job by the black people she works with. Id. at 54, 57. De Souza expressed concern that if she returns to Kenya she will have no rights, will be considered an outsider because of her ethnicity and, as a result, will not be able to obtain employment. Id. at 58. De Souza added that a Kenyan police officer, for no apparent reason, once pulled her over while she was driving and asked to see her driver’s license. Id. at 59. She admitted, however, that she had not had any other problems with the Kenyan government, that her mother and sister who still reside there had never been arrested or detained, and that she had not tried to return to Kenya at all since her 1984 visit. Id. at 59, 61.

The immigration judge found that De Sou-za had not demonstrated that if she returned to Kenya she would face persecution. Id. at 39. The immigration judge therefore denied De Souza’s application for asylum and withholding of deportation.1 Id. at 40.

De Souza appealed to the BIA. The Board noted that De Souza did not produce any evidence that the Kenyan government intended to persecute her on account of her race, or that it did not intend to protect her from unlawful assault or violence. Id. at 3. The Board also observed that De Souza’s mother and sister continued to reside in Kenya without incident, that Kenya’s laws are not directed specifically at any one group, and that it is within Kenya’s sovereign power to decide who its citizens will be. Id. at 4. Finally, the Board determined that Kenya’s denial of citizenship to De Souza did not deprive her of any right because persons like De Souza, who were born before Kenyan independence of non-Kenyan parents, have never been considered citizens of Kenya. Id. Accordingly, the BIA dismissed De Souza’s appeal and ordered De Souza to leave the United States or be deported. Id.

[1158]*1158II.

A. Standard of Review

We review the Board’s decision to grant or deny De Souza’s application for asylum and withholding of deportation for abuse of discretion. Osuch v. INS, 970 F.2d 394, 396 (7th Cir.1992).

B. De Souza’s Application for Section 208(a) Asylum

Section 208(a) authorizes the Attorney General (and the INS as her agent), in the exercise of her discretion, to grant asylum to an alien who is a refugee as defined in the Act.2 INS v. Elias-Zacarias, — U.S. -,-, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). An asylum applicant must prove that she is a refugee, which the Act defines as an alien who is unable or unwilling to return to the alien’s country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”3 8 U.S.C. § 1101(a)(42)(A). See also 8 C.F.R. § 208.13 (burden of proof on asylum applicant to establish that she is a refugee as defined by the Act).

De Souza failed to prove that she suffered persecution or that she possesses a well-founded fear of persecution. De Souza claims that the Kenyan government’s denial of Kenyan citizenship, permanent residency, and education at Kenyan public schools was so horrific that it amounted to persecution. She also points to her 1984 visit, when she was admitted to Kenya as a tourist with no right to work, as further evidence that the Kenyan government has persecuted her because of her Asian race and Indian nationality-

We have described “persecution,” for purposes of the Act, as punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate. Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir.1991). Our cases reveal that De Souza’s claimed suffering at the hands of the Kenyan government does not amount to this type of persecution. Consider, for example, the case of Chelvadurai Si-vaainkaran. Sivaainkaran, a Tamil who lived in war-torn Sri Lanka, was a man who unsuccessfully applied for asylum. Sri Lanka was embroiled in an ethno-religious conflict between the minority Tamils and the majority Sinhalese. Sivaainkaran v. INS, 972 F.2d 161, 162 (7th Cir.1992).

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Cite This Page — Counsel Stack

Bluebook (online)
999 F.2d 1156, 1993 U.S. App. LEXIS 18854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erica-p-de-souza-v-immigration-and-naturalization-service-ca7-1993.