USCA1 Opinion
May 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-2135
SANMUGANATHAN NAKESWARAN,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Visuvanathan Rudrakumaran, with whom the Law Offices of Boris J.
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Lewcyckyj was on brief for petitioner.
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Ellen Sue Shapiro, Attorney, Office of Immigration Litigation,
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Civil Division, United States Department of Justice, with whom Frank
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W. Hunger, Assistant Attorney General, and Richard M. Evans, Assistant
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Director, were on brief for respondent.
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BOWNES, Senior Circuit Judge. In this case,
BOWNES, Senior Circuit Judge.
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Sanmuganathan Nakeswaran, a citizen of Sri Lanka, petitions
for review of a final order of the Board of Immigration
Appeals (BIA or Board) denying his request for asylum and
ordering him deported to Sri Lanka. We have jurisdiction
over petitioner's appeal under Section 106(a) of the
Immigration and Nationality Act, 8 U.S.C. 1105a(a). We
affirm the decision and deportation order of the Board.
Petitioner raises three issues on appeal: (1) that
he is entitled to temporary refugee status under the Fourth
Geneva Convention; (2) that the Board's practice of giving
"precedential value" to Matter of T, Int. Dec. 3187 (BIA
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1992) is an error of law; and (3) that he has a well-founded
fear of persecution in Sri Lanka on account of political
opinion, imputed political opinion and social group
membership. We address the issues seriatim. The first two
are clearly questions of law.
WHETHER THE FOURTH GENEVA
WHETHER THE FOURTH GENEVA
_________________________
CONVENTION ENTITLES PETITIONER
CONVENTION ENTITLES PETITIONER
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TO TEMPORARY REFUGEE STATUS.
TO TEMPORARY REFUGEE STATUS.
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A line of cases has firmly established that only in
the absence of a treaty or a controlling executive decision,
legislative act, or judicial decision do international law
principles come into play in respect to the admission or
exclusion of aliens. In The Chinese Exclusion Case, 130 U.S.
__________________________
581 (1889), the Court upheld the right of Congress to exclude
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Chinese laborers from the United States even if the
Congressional Act conflicted with treaties between the United
States and China. In Fong Yue Ting v. United States, 149
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U.S. 698 (1893), the Court stated:
The power to exclude or to expel
aliens, being a power affecting
international relations, is vested in the
political departments of the government,
and is to be regulated by treaty or by
act of Congress, and to be executed by
the executive authority according to the
regulations so established, except so far
as the judicial department has been
authorized by treaty or by statute, or is
required by the paramount law of the
Constitution, to intervene.
Id. at 713.
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In The Paquette Habana, 175 U.S. 677 (1900), the
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Court discussed specifically when international law could be
used by the courts:
International law is part of our law,
and must be ascertained and administered
by the courts of justice of appropriate
jurisdiction, as often as questions of
right depending upon it are duly
presented for their determination. For
this purpose, where there is no treaty,
and no controlling executive or
legislative act or judicial decision,
resort must be had to the customs and
usages of civilized nations . . . .
Id. at 700.
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In Galvan v. Press, 347 U.S. 522, 530 (1954), the
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Court noted:
The power of Congress over the
admission of aliens and their right to
remain is necessarily very broad,
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touching as it does basic aspects of
national sovereignty, more particularly
our foreign relations and the national
security.
In Kleindienst v. Mandel, 408 U.S. 753 (1972), the
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Court declined to reconsider this line of cases. Id. at 767.
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Relying on Galvan v. Press it noted:
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In summary, plenary congressional
power to make policies and rules for
exclusion of aliens has long been firmly
established. Id. at 769-70.
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Id. at 769-70.
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Admirable as the provisions of the Fourth Geneva
Convention may be, it is clear that they do not apply to this
case. It is the immigration laws of the United States and
the case law interpreting them that control.
WHETHER THE BOARD'S PRACTICE
WHETHER THE BOARD'S PRACTICE
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OF GIVING PRECEDENTIAL VALUE TO
OF GIVING PRECEDENTIAL VALUE TO
________________________________
THE MATTER OF T IS LEGAL ERROR.
THE MATTER OF T IS LEGAL ERROR.
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Petitioner objects to the use of the case, Matter
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of T, by the Board because "it concluded that Tamils are not
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persecuted in Sri Lanka." This is a very broad and basically
inaccurate statement of the Board's conclusions which
followed a detailed recitation of the violence that has taken
place in Sri Lanka among various ethnic groups. The Board
concluded,
inter alia:
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This Board in turn appreciates the
awful circumstances in which the Sri
Lankan Government and large numbers of
the inhabitants of that country find
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themselves. But if we were to accept the
applicant's assessment of human rights
violations as constituting persecution
under the Act, Tamils, Moslems, and
Sinhalese alike would all be persecuted
in Sri Lanka. Neither the relief of
asylum nor of withholding of deportation
provides for refuge "on account of" human
rights abuses unconnected to the grounds
enumerated in the Act, i.e., race,
religion, nationality, membership in a
particular social group, or political
opinion. See sections 208(a), 243(h)(1)
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of the Act; section 101(a)(42) of the
Act, 8 U.S.C. 1101(a)(42) (1988).
We will not, however, discuss the merits of the
Matter of T. We are not reviewing that case, nor do we rely
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directly or indirectly on its conclusions or statement of
facts. Suffice it to say that the Board of Immigration
Appeals, as with any other agency that renders a written
opinion after a hearing, has a right to rely on its own
decisions as precedent until that decision is overruled by
the Board, one of the Courts of Appeals, or the United States
Supreme Court.
WHETHER PETITIONER HAS A WELL-
WHETHER PETITIONER HAS A WELL-
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FOUNDED FEAR OF PERSECUTION ON ACCOUNT
FOUNDED FEAR OF PERSECUTION ON ACCOUNT
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OF POLITICAL OPINION, IMPUTED POLITICAL
OF POLITICAL OPINION, IMPUTED POLITICAL
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OPINION, OR SOCIAL GROUP MEMBERSHIP.
OPINION, OR SOCIAL GROUP MEMBERSHIP.
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This issue requires us to read the record so as to
determine whether there is substantial evidence to support
the Board's decision. Ravindran v. I.N.S., 976 F.2d 754, 758
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(1st Cir. 1992). The Board did not assess the credibility
findings of the Immigration Law Judge "because even if we
accept all of the respondent's testimony as true, he has not
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satisfied the well-founded fear standard of eligibility under
the Act."
A) Summary of the Record
A) Summary of the Record
The testimony at the hearing was primarily by
petitioner. Petitioner is an alien from Sri Lanka. He was
permitted to enter the United States in 1983 as an alien in
transit. He has been in this country since that time. His
visa expired on November 30, 1985. In his asylum application
petitioner admitted that he had stayed in the United States
longer than permitted under the Immigration and Nationality
Act and conceded that he was deportable. His asylum
application states that he has never been detained,
interrogated, convicted or sentenced in any country or
mistreated by Sri Lanka authorities. Petitioner's wife and
two children were permitted to come to the United States in
1984 so that his oldest son could receive medical treatment.
A third son was born after his wife entered the United
States. Petitioner's wife and children now reside in Canada
as refugees. Petitioner testified that he did not accompany
his family to Canada because he cannot learn another
language, is getting old, and is under medical treatment in
the United States.
Petitioner is a Tamil, a minority ethnic group in
Sri Lanka. He was born a Hindu, but later became a Christian
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because he "had problems with the Sinhalese as a Hindu." The
Sinhalese are the largest ethnic group in Sri Lanka.
Petitioner worked in Saudi Arabia under a five-year
contract starting February 6, 1978. He returned to Sri Lanka
for a one-month vacation each year. In 1977 petitioner was
attacked by a group of Sinhalese while on a train travelling
from Jaffna to Colombo. This happened again in 1980. After
being attacked in 1980, petitioner ran away before the police
and army could attack him. In March of 1981 he reported an
incident to the police. Although petitioner did not describe
the incident, we will assume that it was another Sinhalese
attack on him. According to petitioner, the police told him:
Being a Tamil you should not have even
come here. We are not going to listen to
your statements. We even know that one
of your brothers is involved in creating
troubles, and you have come here to join
your brother to help your brother,
therefore it is better for you to run
away from here, otherwise we will murder
you.
Petitioner replied to the police they were lying about his
brother, that his brother was a student and worked for
organizations that looked after the needs of the Tamil
people, and that his brother was a scout for the Tamil
student organization.
Petitioner testified that, to his knowledge, his
brother did not belong to any Tamil political organizations.
He explained that, as a scout, his brother helps Tamil
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refugees who had been driven from their homes during communal
riots and came to Jaffna by ship. The name of this brother
is Ganeswaran.
During one of his visits home from Saudi Arabia,
his parents told him that Ganeswaran had been accused of
taking part in political activities against the government
and had been jailed for three months. Friends told him that
they also had been imprisoned for three months, and that
during the arrest of his brother, the police had dislocated
Ganeswaran's hand.
In July of 1983, petitioner flew to Sri Lanka from
Saudi Arabia. He had trouble leaving the airport because of
people openly hostile to Tamils. He was told by the police
that he could leave the airport if he wished, but they were
not prepared to give him any protection. According to
petitioner, "[t]he Army people were shouting: 'let the
Tamils out, let the Tamils out. We will kill them.'" As a
result, petitioner was forced to stay in the airport "from
8:00 a.m. on Saturday until 5:00 the following Sunday."
He managed to get out of the airport with the help
of his roommate who was a Muslim. His roommate gave
petitioner a cap to wear signifying that he was a Muslim and
he used the name of his roommate's brother-in-law, Farook.
He and his roommate took a taxi to his roommate's house where
he stayed for about fifteen days.
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Petitioner, still disguised as a Muslim, then went
to his parent's home where his wife lived. He only stayed
there for four or five hours because his father advised him
to leave and go to his mother-in-law's house. The reason for
this advice was that the Army and other people came to the
home of petitioner's parents frequently looking for his
brother, Ganeswaran. By this time Ganeswaran had gone to
India. He was, at the time of the hearing, living in
Germany.
After petitioner and his wife had gone to his
mother-in-law's home, the police visited his parents' home.
Noting that petitioner's wife was not there, the police found
out from petitioner's father where she had gone.
Petitioner's father promptly told petitioner that the police
might go to his mother-in-law's home and advised him to
leave. By the time the police arrived at petitioner's
mother-in-law's home, he had gone to Colombo "to save my
life."
Petitioner decided to go to India. He renewed his
passport in 1983 by paying a broker 1000 rupees to go to the
passport office for him. Petitioner did this because the
police were looking for him and the people in the passport
office were Sinhalese and "they wouldn't do it for me."
Petitioner also testified, however, that he had no problem
getting his passport stamped each time he came back to Sri
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Lanka from Saudi Arabia and returned to continue working in
Saudi Arabia. Petitioner attributed this to the fact that
those working in Saudi Arabia had no passport problems.
Petitioner was told by his wife that the Army had
come looking for him while she was living with her parents.
She also told him that the Army had shot her uncle.
Another brother of petitioner, Rajeswaran, was
arrested by security personnel on his return to Saudi Arabia
from Sri Lanka. The reason for the arrest was that it was
suspected that Rajeswaran was sending money from Saudi Arabia
to the Tamil Tigers. The Tamil Tigers is an organization
that uses violence to try to achieve its goal of a separate
Tamil state.
On June 3, 1987, petitioner, who was in the United
States, was informed by telephone that his brother Rajeswaran
had been arrested on June 2 at the airport on his way back to
Saudi Arabia. Petitioner made arrangements to raise the
50,000 rupees necessary to bail his brother out of jail.
Petitioner also called the company his brother worked for in
Saudi Arabia to ensure that his brother could return to his
job. Petitioner talked to his brother on the phone before
his return to Saudi Arabia. His brother told petitioner that
he ached all over and was "really suffering." He advised
petitioner never to come back to Sri Lanka. At the end of
July petitioner's brother called him from Saudi Arabia. He
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told petitioner that "the Ceylon Army and Police had kicked
him, used the bayonet, and put his face in a chili bag." A
chili bag contains "chilies" that burn a person's face.
After petitioner's brother, Rajeswaran, went back
to Saudi Arabia to work, police came to the house looking for
him. His family abandoned their house and moved about twelve
miles away. The house was partly destroyed by a shell that
hit the house during a battle between government forces and
Tamil guerrillas. Petitioner testified, "I feel it was for
us."
In late 1983 petitioner decided not to go to India
as he had intended, but to come to the United States. His
change of mind was based on a job offer on a ship that was
supposedly berthed in Wilmington. Petitioner flew to New
York City, arriving there on November 27, 1983. He has been
in the United States since that date. The job never
materialized so petitioner came to Boston, where he has
relatives.
About a week after he arrived in the United States,
petitioner joined the Tamil Eelam Association, which "is
fighting for freedom and some form of consolation [sic] for
the Tamils to live in our country." As a member of Tamil
Eelam, petitioner has participated in three marches held in
Washington and three other marches held in Cambridge, Boston,
and New York City. Videotapes were made of the
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demonstrations and pictures taken of the participants by
members of the Sri Lankan Embassy.
Petitioner testified that after joining the Tamil
Eelam and participating in their marches, he is afraid to go
back to Sri Lanka. He thinks that he might be shot and said
that, "a man who is a mechanic who studied with me was shot,
for no reason, and this can happen to me, too." Petitioner's
fear of returning to Sri Lanka is based on his Tamil Eelam
activities in the United States. He was not involved in
politics in Sri Lanka.
Petitioner is aware of an agreement between Sri
Lanka and India under the terms of which persons in detention
would be released, the police and army would be relieved of
their duties in the north and east of Sri Lanka and general
elections would be held there. Petitioner did not think that
the agreement was favorable to the Tamils, despite the fact
that it was supported by Tamil Eelam. Petitioner
acknowledged that the terrorist organization known as the
Tamil Tigers is opposed to the peace agreement. Petitioner
denied that he would fight with the Tigers, but stated that
he agreed with their goal of a separate government for the
Tamils. It is petitioner's opinion that unless the Tamils
have a country of their own they will never be safe in Sri
Lanka. The Sixth Amendment to the Constitution of Sri Lanka
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prohibits any form of support for an independent Tamil state
anywhere.
At the time the petitioner's hearing came to a
close, his parents, four sisters, and another brother,
Ratnaeswaran, were living in Sri Lanka.
B) The Applicable Law
B) The Applicable Law
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8 U.S.C. 1158(a) provides:
The Attorney General shall establish a
procedure for an alien physically present
in the United States or at a land border
or port of entry, irrespective of such
alien's status, to apply for asylum, and
the alien may be granted asylum in the
discretion of the Attorney General if the
Attorney General determines that such
alien is a refugee within the meaning of
section 1101(a)(42)(A) of this title.
The pertinent part of section 1101(a)(42)(A) states:
The term "refugee" means (A) any
person who is outside any country of such
person's nationality . . . and who is
unable or unwilling to return to, and is
unable or unwilling to avail himself or
herself of the protection of, that
country 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.
We note that in this case there is no claim of
persecution of petitioner while he was living in Sri Lanka.
His asylum application states that he was never mistreated by
Sri Lankan authorities. The only question is whether
petitioner has a well-founded fear of persecution if he is
returned to Sri Lanka. Petitioner has the burden of proof.
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Ravindran, 976 F.2d at 758; Alvarez-Flores v. I.N.S., 909
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F.2d l, 3 (1st Cir. 1990).
There are subjective and objective components to
the well-founded fear standard.
The subjective component requires that
the asserted fear be genuine. The
objective component, on the other hand,
contemplates that the applicant show "'by
credible, direct, and specific evidence,
... facts that would support a reasonable
fear that the petitioner faces
persecution.'" Alvarez-Flores, 909 F.2d
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at 5 (quoting
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Diaz-Escobar v. I.N.S., 782 F.2d 1488,
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1492 (9th Cir. 1986)).
Ravindran, 976 F.2d at 758.
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A person seeking asylum does not have to prove
"that it is more likely than not that he or she will be
persecuted in his or her home country." I.N.S. v. Cardoza-
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Fonesca, 480 U.S. 421, 449 (1987). An alien, such as
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petitioner, seeking asylum need only prove that his fear is
genuine and reasonable. Khalaf v. I.N.S., 909 F.2d 589, 591
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(1st Cir. 1990). This lessened burden has been, however,
offset somewhat by the Court's recent heightening of the
deference due the Board's decision. In order to obtain
judicial reversal of the Board's determination, petitioner
must show that the evidence he presented
was so compelling that no reasonable
factfinder could fail to find the
requisite fear of persecution.
I.N.S. v. Elias-Zacarias, ____ U.S. ____, ____, 112 S. Ct.
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812, 817 (1992).
CONCLUSION
CONCLUSION
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We find substantial evidence in the record to
support the Board's conclusion that petitioner failed to
prove the objective component of the standard: "that there
was not a well-founded fear of persecution by the Sri Lankan
authorities on any of the five grounds specified in the Act."
Because there is no question that Tamils, as well as other
ethnic groups in Sri Lanka, have suffered onslaughts of
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violence engendered by ethnicity we turn to the case law for
guidance.
We have held that acts of violence
against a petitioner's friends or family
members may establish a well-founded
fear, notwithstanding an utter lack of
persecution against the petitioner
herself. We have required, however, that
this violence create a pattern of
persecution closely tied to the
petitioner. Allegations of isolated
violence are not enough.
Arriaga-Barrientos v. I.N.S., 937 F.2d 411, 414 (9th Cir.
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1991) (citations omitted). The authorities were interested
in petitioner's brother, Ganeswaran, not petitioner, and it
was Ganeswaran who was assaulted and arrested by the police.
Petitioner was in the United States when his brother
Rajeswaran was arrested and beaten. We think it significant
that petitioner was able, by telephone, to obtain the release
of his brother from jail and arrange for Rajeswaran to go
back to work in Saudi Arabia. We cannot ignore the fact that
petitioner's parents, four sisters, and a brother continue to
live in Sri Lanka.
As we pointed out in Ravindran, 976 F.2d at 759:
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"Generally, evidence of widespread violence and human rights
violations affecting all citizens is insufficient to
establish persecution." Ravindran is a case practically on
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all fours with this one. It involved a Tamil petitioner
claiming a well-founded fear of persecution if he were
deported. The decision in Ravindran is, therefore, binding
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on us. Petitioner does not refer to Ravindran at all in his
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brief.
There is no evidence that the political opinions,
goals and methods of the Tamil Tigers have been imputed to
the petitioner by the Sri Lankan authorities. Nor is there
evidence that the Sri Lankan authorities know of petitioner's
membership in the Tamil Eelam Association. But even assuming
that they do know, there is no evidence that membership on
the Tamil Eelam would result in persecution. The Tamil Eelam
supports the peace pact between Sri Lanka and India.
Nor is there any evidence that petitioner's
advocacy of an independent Tamil state will result in his
persecution because it may have violated the Sixth Amendment
to the Constitution of Sri Lanka. Petitioner's advocacy of
an independent Tamil state took place in the United States.
There is no evidence that the authorities in Sri Lanka are
aware of petitioner's views. There is nothing in the record
suggesting that Sri Lankan authorities have persecuted Tamils
for opinions expressed in another country.
There is in the record a letter from the State
Department to the Immigration Examiner containing a copy of
the January 1984 State Department Report on Human Rights
Practices in Sri Lanka for the calendar year 1983 which gives
a different perspective on the situation in Sri Lanka. A
portion of the report states:
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In general, and as explained in
greater detail in the enclosed human
rights report, there is distrust and
animosity between Tamils and the majority
Sinhalese of Sri Lanka. Communal
tensions led in mid-1983 to the worst
outbreak of violence and lawlessness to
have occurred in Sri Lanka in recent
history. In a week of rioting, several
hundred people were killed and thousands
lost their homes. The Government
restored order in early August and has
succeeded in maintaining the peace since
then, but tensions remain. Many of the
Tamils affected by the violence suffered
great personal and property losses, and
some fear there will be a recurrence of
violence. But any threat against the
peace and well-being of Tamils, and of
all Sri Lankans, arises from tensions in
society, and not from a policy of the
Government to persecute or to allow the
persecution of Tamils or any other group.
The leaders of the Government, who
include Tamils, strive to protect all Sri
Lankans. Illegal discrimination against
Tamils does not occur with the sanction
of the Government.
Whether petitioner will suffer violence on his
return to Sri Lanka, we do not know. We do know, however,
that there is no principled basis for overturning the Board's
decision.
Affirmed.
Affirmed.
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