Interim Decision #3209

Interim Decision #3209

MATTER OF K-SIn Exclusion Proceedings

A-29810907

Decided by Board October 5, 1993

In contrast to the precedential authority of the case law of a United States circuit

court, the Board of Immigration Appeals is not bound to follow the published decision

of a United States district court in cases arising within the same district. Matter of

Fakalata, 18 I&N Dec. 213, 217-18 (BIA 1982); Matter of Melendez, 16 l&N Dec. 54, 55

(BIA 1976); Matter of Harris, 15 l&N Dec. 39, 43 (BIA 1970); and Matter of Amado and

Monteiro, 13 I&N Dec. 179, 181 (BIA 1969), modified in part.

EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. § 1182(a)(19)j—Fraud or

willful misrepresentation of a material fact

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid

immigrant visa

Sec. 212(a)(26) [8 U.S.C. § 1182(3)(26)1—No valid

nonimmigrant visa

ON BEHALF OF SERVICE:

Patricia M. Mayberry

General Attorney

ON BEHALF OF APPLICANT:

Paul M. Kaplan, Esquire

Law Offices of Alan M. Kaufman

220 Montgomery Street, Suite 976

San Francisco, California 94104

BY: Milhollan, Chairman; Dunne, Morris, Vacca, awl Heilman, Board Members

In a decision rendered on February 2, 1993, the immigration judge

found the applicant excludable pursuant to the grounds set forth

above.' Furthermore, the immigration judge denied his petitions for

1 We point out that section 212(026) of the Immigration and Nationality Act, 8

U.S.C. § 1182(a)(26) (1988), is not an appropriate ground for exclusion in this case.

Where an alien has failed to establish his entitlement to status as a nonimmigrant, he is

properly excludable under section 212(a)(20) of the Act as an immigrant without the

requisite entry documents, rather than under section 212(a)(26) of the Act, as a

nonimmigrant lacking the required documentation. See Matter of Healy and Goodchtbd,

17 I&N Dcc. 22, 26 (BIA 1979).

Although not applicable to the instant case, the grounds for exclusion were revised and

redesignated by section 601(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104

Stat. 4978, 5067. See Matter of Papazyan, 20 l&N Dec. 568 (BIA 1992).

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Interim Decision #3209

asylum under section 208(a) of the Immigration and Nationality Act, 8

U.S.C. § 1158(a) (1988), and withholding of exclusion and deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1988 and

Supp. IV 1992), and ordered him excluded and deported from the

United States. The applicant, through counsel, has appealed from that

decision, but only with respect to the denial of relief from exclusion

and deportation. For its part, the Immigration and Naturalization

Service contends that the decision of the immigration judge is correct.

The appeal will be dismissed.

The record reflects that the applicant is a 26-year-old native and

citizen of India, who raised a persecution claim with respect to the

authorities as well as an extremist faction in that country. In

particular, he related that he is a Sikh from the state of Punjab who

lived with his family. He testified that he worked as a farmer and as an

automotive electrician. The applicant explained that he also performed various duties at a local Sikh temple, including distributing

food, making repairs, and cleaning. He advised that while he believed

in the creation of an independent Sikh state, i.e., Khalistan„ he was not

politically active.

According to the applicant, armed Sikh militants began to visit his

family home in 1987. He recalled that they demanded entrance upon

pain of death and informed him that if he could not otherwise support

their struggle for Khalistan, he should at least provide them with food.

He declared that he complied with their demand out of fear. The

applicant recounted the militants' warning that they would return

periodically and that he should not report their presence to the

authorities. He testified that while he was aware of government notices

requiring citizens to disclose such contact, he feared retaliation.

The applicant indicated that the terrorists continued to call on him

until finally, after some 4 to 5 months, he was arrested by the Punjab

police. He noted that he had been implicated by one of the militants

who had run afoul of the authorities. The applicant advised that he

was held for 6 days and interrogated under torture. He recalled that he

was questioned about the extremists, whether he belonged to their

group, and why he had not reported them. He stated that he eventually

was released due to the intervention of his father and the village

leader. He observed that he required medical treatment because of the

abuse that he suffered.

The applicant declared that during the following months, both the

militants and the police repeatedly visited his family home. He related

that the police would come by day, while the militants would arrive at

night. He advised that due to his fear of harm from both groups, he

stopped sleeping at home and kept a constant watch during the day.

The applicant stated that in 1988, he visited an agent in Delhi to assist

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Interim Decision #3209

him in leaving India. He explained that he could not relocate to

another state within the country because the danger was omnipresent

and the police could find him anywhere. He indicated that he worked

for 2 years to amass the fee required by the agent. He testified that he

departed India in November 1990 and travelled to the United States,

where he had a lawful permanent resident sister_

Theapplicant noted that following his arrival in this country, his

family informed him that a second member of the militant group had

been apprehended by the authorities. He declared that the police

apparently learned of his continued contact with the terrorists and

warned his family to report his return?

In addition to his own testimony, the applicant offered personal and

background documentation in support of his persecution claim. This

material included a letter from his village leader generally corroborating his story. He also submitted reports by the Department of State

and Amnesty International which discussed the human rights situation

in India, including abuses by the security forces in Punjab. The record

also contains an advisory opinion issued by the Department of State's

Bureau of Human Rights and Humanitarian Affairs ("BHRHA").

At the conclusion of the hearing, the immigration judge denied the

applicant's petitions for asylum and withholding relief. Specifically,

she determined that the applicant had failed to establish past

persecution or the requisite fear of future persecution within the

meaning of the Act. On appeal, the applicant contests the immigration

judge's holding. He asserts, inter alia, that the facts of his case are

identical to those in Singh v. lichenl, 801 F. Supp 313 (ND. Cal.

1992), where the United States District Court for the Northern

District of California found an Indian Sikh from Punjab eligible for

asylum. Consequently, he argues that the Board must apply the

reasoning of the district court in his case. In response, the Service

concedes that this matter arises within the jurisdiction of the Singh

court. It contends, however, that the Board is not bound by the

decision of a district court in such a situation. Instead, the Service

maintains that the applicant's case is controlled by the Board's

decision in Matter of R-, 20 l&N Dec. 621 (BIA 1992), remanded sub

nom. Rana v. Moshorak, No. CV 93-0274 (C.D. Cal. July 15, 1993),

which also involved the persecution claim of a Sikh from the state of

Punjab in India.

2 Acc,ording to the applicant, the militants, unlike the police, stopped visiting his home

after he departed India. He explained that the militants generally did not deal with a

household lacking male members. In this regard, he observed that his father had died in

1989 and that his brother was constantly travelling.

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Interim Decision #3209

PRECEDENTIAL VALUE OF DISTRICT COURT DECISIONS

As a primary matter, we acknowledge that pursuant to our own

holding in Matter of Amado and Monteiro, 13 I&N Dec. 179, 181 (BIA

1969), the Board is bound to follow the ruling of a United States

district court in matters arising within the same jurisdiction. Nevertheless, we conclude that the decision and its progeny 3 represent an

incorrect legal position. Consequently, we find it necessary to withdraw from those cases on this limited issue.

We point out that the holding in Matter of Amado and Monteiro,

supra, was stated in a conclusory fashion without any supporting

analysis or authority. Although we have held that published case law

from a United States court of appeals must be followed within the

same circuit, except in unusual circumstances, see, e.g., Matter of

Anselrno, 20 I&N Dec. 25, 30 32 (BIA 1989), the issue of district

court "precedent" is fundamentally different. In particular, we note

that one panel of a circuit court is bound by the unappealed published

decision of another panel unless and until the decision is modified by

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the en banc court. See, e.g., Ward v. City of San Jose, 967 F.2d 280,

283 (9th Cir. 1991); Centel Cable v. White Dev. Corp., 902 F.2d 905,

908-09 (11th Cir. 1990). By contrast, district court judges are not

bound by the published decisions of their colleagues, even in the same

district. See Starbuck v. City & Cty. of San Francisco, 556 F.2d 450,

45711.13 (9th Cir. 1977); Lee v. China Airlines Ltd., 669 F. Supp. 979,

981 (C.D. Cal. 1987); In re Korean Airlines Disaster of Sept. 1, 1983,

664 F. Supp. 1478, 1480-81 (D.D.C. 1986); Charley's Taxi Radio

Dispatch v. Sida of Hawaii, 562 F. Supp. 712, 716-17 (D. Haw. 1983),

affd in part and rev'd in part on other grounds, 810 F.2d 869 (9th Cir.

1987); Indiana Nat. Corp. v. Rich, 554 F. Supp. 864, 867 68 (S.D. Ind.

1982), rev'd on other grounds, 712 F.2d 1180 (7th Cir. 1983); State

Farm Mut_ Auto Ins. Co. v. Bates, 542 F. Supp. 807, 816 (ND. Ga.

1982); Hartley v. Sioux City and New Orleans Barge Lines, Inc., 247 F.

Supp. 1015, 1018 (W.D. Pa. 1965), aff d, 37.9 F.2d 354 (3d Cir. 1967);

White v. Baltic Conveyor Co., 209 F. Supp. 716, 722 (D.N.J. 1962).

Moreover, the United States Supreme Court has made clear that the

Federal Government is not restricted by the doctrine of "nonmutual

collateral estoppel." See United States v. Mendoza, 464 U.S. 154

(1984). Specifically, pursuant to Mendoza, the Government's failure to

appeal from the adverse decision of a lower federal court does not bar

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3See, e.g., Matter of Fakalata, 18 I&N Dec. 213, 217-18 (BIA 1982); Matter of

Melendez, 16 I&N Dec. 54, 55 (BIA 1976); Matter of Harris, 15 1&N Dec. 39, 43 (BIA

1970, modified on other grounds, Matter of Rivers, 11 1&N Dec. 419 (BIA 1980). See

generally Matter of Anselmo, 20 I&N Dec. 25, 30-32 (BIA 1989) (referring to circuit

court precedent, but citing to Matter of Amado and Monteiro, supra, with approval).

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Interim Decision #3209

it per se from relitigating the same question in a subsequent case

against a different party. 4 The Court noted that there may be many

reasons, besides acquiescence, as to why the Government might not

seek further review in a particular cases Id. at 160-61.

If an agency of the Federal Government were required to follow the

decision of a district court within that tribunal's jurisdiction, other

judges from that same district would never have the opportunity to

review the issue presented. See United States v. Mendoza, supra, at 160

(raising the concern that the development of important questions of

law might be thwarted). While the reasoning underlying a district

judge's decision must be given due consideration, particularly as other

judges will apply the "discretionary doctrine of intra-court comity,"

see, e.g., Indiana Nat. Corp. v. Rich, supra, at 868, the analysis does not

have to be followed as a matter of law. 6 We are not aware of any valid

authority of the United States Court of Appeals for the Ninth Circuit

which holds otherwise.'

While there are a great number of cases addressing a federal

agency's obligation to follow the law of a circuit court, see, e.g., NLRB

4 The fact situation in Mendoza involved two separate district court jurisdictions, i.e.,

the Government had failed to appeal from an adverse decision of the United States

District Court for the Northern District of California and then sought to relitigate the

same underlying issue before the United States District Court for the Central District of

California. In rendering its decision, the Supreme Court gave no indication as to

whether it would have ruled differently had the facts involved two different judges

within the same district. But see Pierre v. Rivkind, 825 F.2d 1501, 1505 (11th Cir. 1987),

and Stieberger v. Heckler, 615 F. Supp. 1315, 1358 n.29 (S.D.N.Y. 1985), vacated on

other grounds sub nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986), which suggest

(Pierre by its fact pattern) that such a distinction was not material to the Supreme

Court's ruling.

As noted in Stieberger v. Heckler, .supra, at 1359, however: "Mendoza does not support

(a) right (by the Government' to refuse to apply the legal rules enumerated in a circuit

WWI decision in subsequent. cases within the same circuit."

5 In its brief, the Service acknowledges that the Government withdrew its appeal from

the decision in Singh' v. Eckert, supra. The Service represents, however, that the

withdrawal was mandated by reasons other than acquiescence. Presumably, the

Government's decision was motivated by "institutional" or "policy" concerns of the

type described in United States v. Mendoza, supra, at 160 61, rather than solely by a

general fear of establishing adverse precedent.

6 AS a practical matter, of course, the greater the number of judges who ascribe to a

particular ruling, the less tenable the Federal Government's opposition in that district

becomes. If the holdings were consistently unfavorable, one would reasonably expect the

Government either to acquiesce or to appeal, rather than to delay until all or a vast

majority of the judges within the district had ruled against it. We note, for example, that

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the Northern District of California Is composed of some 13 sitting judges. See 816 F.

Supp. VII, XX (Judges of the Courts).

7 As this matter arises within the jurisdiction of the Ninth Circuit, we would be bound

by the pertinent decisions of that court. See Matter of Anselmo, supra.

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v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74 (9th Cir. 1987); Spraic v.

United States R.R. Retirement Bd., 735 F.2d 1208, 1211 (9th Cir.

1984); Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir.), cert.

denied, 449 U.S. 975 (1980), there are virtually none addressing the

issue with respect to the ruling of a district court. Reason would

suggest that this would not be the case if the principles concerning the

precedential value of circuit court decisions also applied to district

court decisions. In fact, because of the large volume of district court

decisions, one would expect a significant number of relevant cases to

exist if the position stated in Matter of Amado and Monteiro, supra,

were correct.

We have been able to uncover only two federal court cases which

contain language directly contradicting the position which we adopt

today: Hillhouse v. Harris, 547 F. Supp. 88, 91-93 (W.D. Ark. 1982),

aff'd, 715 F.2d 428, 430 (8th Cir. 1983), and Flores v. Seer. of Health,

Educ. and Welfare, 228 F. Supp. 877, 878 (D.P.R. 1964). Neither

matter arose within the Northern District of California or the Ninth

Circuit. Further, Floras did not cite any authority in support of its

holding. While the judge in Flores admonished the subject federal

agency for having failed to appeal from the adverse district court

decision at issue, see id. at 878, as noted in United States v. Mendoza,

supra, at 160-61, there may be reasons besides acquiescence to explain

why an agency might not seek reversal or modification of a particular

ruling. With respect to Hillhouse v. Harris, supra, we consider that the

relevant analyses of both the district court and the reviewing circuit

court are dicta. Additionally, they cite to supporting authority which

pertains solely to the obligation of an agency to follow the law of the

circuits Id.

MERITS OF THE APPLICANT'S PERSECUTION CLAIM

After careful review, we find that the applicant has failed to

establish eligibility for either asylum or withholding of exclusion and

deportation.9 See sections 208(a) and 243(h) of the Act; section

101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1988); 8 C.F.R.

§§ 208.13, 208.16 (1993); see also 8 C.F.R. § 208.13(b)(2) (1993)

(setting forth "reasonable possibility" requirement of well-founded

fear asylum standard); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)

(holding that asylum standard is more generous than withholding

standard); INS v. Stevic, 467 U.S. 407 (1984) (defining withholding

gThis Board has not followed a practice of nonacquiescence in circuit court decisions

in cases arising within the same jurisdiction. See Matter of Anselmo, supra, at 30-31.

9 We have assumed, arguendo, that the factual basis of the applicant's persecution

claim is worthy of belief.

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standard); Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (defining past

persecution).

Specifically, having withdrawn from Matter of Amado and Monteiro, supra, and its progeny, we do not find ourselves obliged to follow

the ruling of the district court in Singh v. Ilchert, supra, with respect to

the merits of the applicant's persecution claim. While we have

carefully examined the reasoning of the court, we respectfully disagree

with its conclusions. See Matter of R , supra.

Instead, we find that the analysis of the applicant's persecution

claim is controlled by Matter of R-, supra. As we acknowledged in that

ruling, extrajudicial police actions and separatist violence are, unfortunately, common occurrences in the Indian state of Punjab. /d. at 626.

Nevertheless, as indicated by the United States Supreme Court in INS

v. Elias Zacarias, 502 U.S. 478 (1992), an alien must do more than

simply show physical abuse or civil rights or human rights violations in

order to demonstrate persecution within the meaning of the Act."' See

also Martinez-Romero v. INS, 692 F.2d 595 (9th Cir_ 1982) (concerning general civil strife).

With respect to the applicant's fear of harm at the hands of Sikh

extremists, we find that there is no persuasive evidence to show that

their demands for material support implicated any of the protected

grounds. See Matter of R-, supra, at 623 -24. The mere fact that the

terrorists may have had a generalized political agenda is insufficient to

establish that they interpreted any hesitancy on the part of the

applicant as a sign of opposition to their ultimate political goals. Id

Indeed, like the militants, the applicant favored the creation of an

independent Sikh state. Moreover, we consider that he ultimately

complied with their requests for food. His fear of retaliation as a

perceived informer is not based upon any of the protected grounds.

See supra note 10.

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10 0n appeal, the applicant cites to the Ninth Circuit's decision

in Montecino v. INS,

915 F.2d 518 (9th Cir. 1990), in support of his case. Pursuant to the Ninth Circuit's

analysis, an ex-soldier's objectively reasonable fear of reprisal by guerrilla forces in a

civil war setting automatically establishes eligibility for asylum. We find that the Ninth

Circuit's reasoning has been effectively overruled by the decision of the Supreme Court

in INS v. Elias Zacarias, supra. For example, the mere existence of a generalized

political motivation underlying the actions of one side to a civil war is insufficient to

establish persecution on account of political opinion for purposes of the Act. Id. at 482.

There must be some direct or persuasive circumstantial showing that the persecutor's

specific motives regarding the targeted individual are reasonably premised upon one of

the protected grounds. Id. at 482-84.

In the alternative, we find that the applicant's situation is distinguishable from

Montecino v. INS, .supra, at 520, insofar as he indicated that the Punjab police and Sikh

extremists viewed him as an active participant in the hostilities, as opposed to one who

had abandoned his role.

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In regard to the applicant's confrontations with the Indian security

apparatus, the expert BHRHA advisory opinion notes that the

authorities do not take action against individuals "solely as a result of

their being members of the Sikh faith." It explains that "[i]ndividual

Sikhs have been arrested and charged with involvement in specific

violent acts, but not simply because they are members of that faith."

While we condemn the brutal methods of the Punjab police, the

applicant has failed to establish that he was targeted on account of his

political opinion or the mere fact that he was a Sikh. See Matter of R-,

supra, at 624-25. There is no convincing evidence that the police

interest in him involved anything more than the investigation of and

reaction against those thought—rightly or wrongly—to be militants

seeking the violent overthrow of the government. Id. Indeed, the

record reveals that the applicant had ongoing contact with extremists.

In the alternative, we consider that the applicant's problems were

confined to Punjab. Id. at 625-27. According to the BHRHA, large

numbers of Sikhs lead "tranquil and productive lives in other parts of

India." The applicant failed to cite to any persuasive background

documentation in rebuttal. See Matter of Dass, 20 l&N Dec. 120

124-25 (BIA 1989). Rather, he simply offered his conclusory observation that he faces danger throughout India and that the police could

find him anywhere.

Consequently, the applicant has failed to demonstrate either a wellfounded fear or a clear probability of persecution on a country-wide

basis, so as to establish statutory eligibility for asylum or withholding

of exclusion and deportation, respectively. See Matter of R-, supra, at

10. Further, even assuming that the applicant suffered past persecution

in Punjab on account of one of the protected grounds, he does not

merit asylum in the exercise of discretion in view of the absence of a

threat of persecution throughout India and the factual circumstances

of his case. Id.

Accordingly, the appeal will be dismissed.

ORDER:

The appeal is dismissed.

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