Interim Decision #3195

Interim Decision #3195

MATTER OF RIn Exclusion Proceedings

A-70105328

Decided by Board December 15, 1992

(1) 'The fact that a Sikh from the state of Punjab in India was beaten and threatened by

Sikh militants because he resisted their recruitment efforts did not establish

persecution on account of political opinion or any of the other grounds enumerated in

the Immigration and Nationality Act.

(2) The mistreatment of a Sikh in Punjab by Indian police in the course of an

investigation does not establish eligibility for asylum or withholding of exclusion and

deportation where the purpose of the mistreatment was to obtain information about

Sikh militants who sought the violent overthrow of the Indian Government rather

than to punish him because of his political opinions or merely because he was a Sikh.

(3) While the Sikh applicant for asylum may fear returning to Punjab because of the

mistreatment he experienced there at the hands of the Indian police, he has not

demonstrated country wide persecution or mistreatment of Sikhs by the central

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government or other Indian groups, and therefore he has not established a wellfounded fear of persecution in India.

(4) Absent a threat of persecution on a country-wide basis in India and in light of the

factual circumstances of his case, a Sikh applicant does not merit a grant of asylum in

the exercise of discretion even if it were assumed that he suffered past persecution in

Punjab.

EXCLUDABLE: Act of 1952—Sec. 212(a)(5)(A)(i) [8 U.S.C. § 1182(a)(5X/VOI—No

valid labor certification

Sec. 212(a)(6)(C) [8 U.S.C. § 1182(a)(6)(C)]—Fraud or

willful misrepresentation of a material fact

Sec. 212(a)(7)(A)(i)(l) [8 U.S.C. § 1182(a)(7)(A)(i)(I)1—

No valid immigrant visa

ON BEHALF OF APPLICANT: Chanan Weinstein, Esquire

c/o Legal Eagles Consulting Services

One World Trade Center, Suite 1580

Long Beach, California 90831

BY: Milhollan, Chairman; Morris and Vacca, Board Members. Concurring and

Dissenting Opinion: Dunne, Board Member. Concurring Opinion: Heilman,

Board Member.

In a decision rendered on January 31, 1992, the immigration judge

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Interim Decision #3195

found the applicant excludable pursuant to sections 212(a)(5)(A)(i) and

(7)(A)(i)(I) of the Immigration and ationality Act, 8 U.S.C.

§§ 1182(a)(5)(A)(i) and (7)(A)(i)(I) (Sur p. III 1991), denied his

applications for asylum under section 208(a) of the Act, 8 U.S.C.

§ 1158(a) (1988), and for withholding of exclusion and deportation

under section 243(h)(I) of the Act, 8 U.S.C. § 1253(h)(I) (Stapp. II

1990), and ordered him excluded and deported from the United

States. The applicant, through counsel, has appealed from the denial of

his request for asylum and withholding. Tile appeal will be dismissed.

The applicant's request for oral argument before the Board is denied.

See 8 C.F.R. § 3.1(e) (1992).

The record reflects that the applicant iis a 21-year-old native and

citizen of India, who raised a claim of past persecution, as well as a

fear of future persecution in that country ; on account of his religion

and his actual or imputed political or inions. In particular, the

applicant related that he was a Sikh from the Punjab region of India.

He indicated that in January 1991, Sikh militants, apparently members of the All India Sikh Student Federatic n, came to his family home

and demanded money to support thei: cause. In addition, the

applicant stated that the militants sought u recruit him, although he

rebuffed their efforts. He explained that wile he favored an independent Sikh state, he rejected accomplishing this goal by violence. He

also indicated that he did not want to cat se problems for his father.

According to the applicant, his contact with these Sikhs was

reported to the local police, who arrested l im as a suspected militant.

He testified that he was interrogated about the individuals who visited

his house and subjected to brutal physical abuse by the police because

they suspected him of being one of the militant Sikhs. The police

ultimately released him without charging him or taking him before a

judge after "good people in the area" went to the police station. He

stated that upon his release, he returned tc his family home, where he

was again confronted by the Sikh militants He testified that they beat

him and told him that he must join their ranks. The applicant related

that the militants threatened to kill him and a member of his family if

he did not comply with their wishes. He indicated that, thereafter,

both the police and the militants continut d to seek him out. At one

point during his testimony, the applicant st ited that he was also beaten

by the police on June 13, 1991, but the reas Ins or circumstances of this

incident were not made clear. His testimorr suggested that this beating

occurred after another of his encounters wir h the militant Sikhs (whom

the applicant referred to as "the boys"). Fe testified that, as a result,

he went into hiding in June 1991 and departed India in September

1991. He indicated that he did not want tc return to India because he

feared the police and the militant Sikhs. He stated that the "Punjab

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police" are "very dirty" police who bring fake charges and kill people

in false encounters.

The immigration judge concluded that the applicant had not

established his eligibility for either asylum or withholding of exclusion

and deportation and the applicant appealed. On appeal, it is submitted

that the applicant

proved in his testimony and the supporting documents that if the court will not

withhold his deportation his life will be in danger. There is a clear probability and/or

it is more likely than not that the authorities will continue to persecute him due to his

alleged ties to the militants. The militants will continue to harass him and perhaps

kill him due to his refusal to join them.

Upon our independent review of the record, we conclude that the

applicant has failed to demonstrate either past persecution or a wellfounded fear of future persecution in India on account of race,

religion, nationality, membership in a particular social group, or

political opinion.' See sections 101(a)(42)(A), 208(a) of the Act, 8

U.S.C. §§ 1101(a)(42)(A), 1158(a) (1988); 8 C.F.R. § 208.13 (1992);

see also INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (holding that the

asylum standard is more generous than the withholding standard);

Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (past persecution); 8

C.F.R. § 208.13(b)(2) (1992) ("reasonable possibility" definition of

well founded fear asylum standard). Further, we find that the applicant has failed to establish his eligibility for withholding under the

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"clear probability" of persecution standard. INS v. Stevie, 467 U.S.

407 (1984); see also section 243(h)(1) of the Act; 8 C.F.R. § 208.16

(1992).

As a primary matter, we find that there is no persuasive evidence in

the record to demonstrate that either the Sikh militants or the police

who confronted the applicant sought to punish him on account of one

of the grounds enumerated in the Act. As regards persecution on

account of political opinion, we note the Supreme Court recently made

clear in INS v. Elias Zacarias, 502 U.S. 478, 482 (1992), that

persecution must be on account of the victim's political opinion, not

the persecutor's. The Court further held that an applicant for asylum

must establish that the persecution or feared persecution is because of

that political opinion, rather than a refusal to fight for a guerrilla

group. Id Here, the record indicates that the Sikh militants were

seeking operating resources from the applicant in the form of material

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1 We have assumed, arguendo, that the applicant's testimony is worthy of belief. We

note, however, that he made no reference at all to the incidents regarding the "militant"

Sikhs on his application for asylum and specifically indicated on the application that he

had never been detained or interrogated in any country other than the United States. We

also note that the record does not support the assertion in the applicant's brief on appeal

that he was accused of being a "bad Sikh."

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Interim Decision #3195

assistance and manpower. The mere fact that the militants also may

have had a generalized political agenda is inadequate to establish that

the applicant fears persecution from them on account of political

opinion. We find no persuasive evidence, direct or circumstantial, that

the motives underlying the militants' conduct towards the applicant

were tied to the applicant's actual or imputed political opinions, rather

than to his refusal to assist them. In this regard, we note that the mere

resistance of forced recruitment is not an "expression of political

opinion hostile to the persecutor." Id. Here, in resisting recruitment,

the applicant indicated that he told the militants that his father was an

honest person and that "they" (apparently meaning the applicant and

his father) believed in creating an independent Sikh state, but not

through violent means? He stated that it was dangerous to tell the

militants this because they had killed certain people who refused to

join them. The militants then demanded money from the applicant's

family and still wanted him to join their group. On another occasion,

the militants returned and threatened to kill him and a family member

if he would not join their cause. He testified that he was beaten by the

militants on this occasion and told that he would not be beaten if he

would join them. While the circumstances the applicant found himself

in were terrible, there is no indication that the militants cared at all

about the reasons for his refusal to join. They certainly did not cease to

be interested in having him join their group because of his views. In

fact, all of the evidence reflects (and the applicant seems to largely

acknowledge on appeal) that the purpose of the threats and mistreatment by the militants was to coerce him into joining with them. The

Supreme Court has held that persecution for this reason is not

"because" of political opinion. Id. at 816.

Similarly, there is no indication that the police actions against the

applicant extended beyond the investigation of and reaction against

those thought—rightly or wrongly—to be militants seeking the violent

overthrow of the government. Under the circumstances of this case,

the police had reasons to investigate the extent of the applicant's

knowledge of and involvement with Sikh militants. While the applicant states he was subjected to police brutality, which we certainly do

not countenance, the record reflects that the purpose of the mistreatment was to extract information about Sikh militants, rather than to

persecute the applicant "because" of his political opinions or the mere

2 The applicant did not make it entirely clear what he specifically said to the militants.

He testified that he told them that he could not join them because his father was a "very

honest person" and because "we don't believe in this" (presumably meaning the use of

violence).

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fact that he was a Sikh. 3 Accordingly, the applicant has not established

his eligibility for either asylum or withholding of exclusion and

deportation. Id.

Moreover, we do not find adequate evidence to demonstrate that

the alleged persecution in this case exists on a country-wide basis. To

establish eligibility for relief under section 208(a) of the Act, an alien

must be unable or unwilling to return to his country of nationality or

the country in which he last resided because of persecution or a wellfounded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion. Inherent

in refugee status is the concept that an individual requires international protection because his country of origin or of habitual residence is

no longer safe for him. This concept is expressed in part by the

requirement in the Act and the United Nations Protocol Relating to

the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S.

No. 6577, 606 U.N.T.S. 268 ("Protocol"), that a refugee must be

unable or unwilling to return to a particular "country." See section

101(a)(42)(A) of the Act; see also Article 1.2 of the Protocol, which

largely incorporates the definition of refugee contained in Article

IA(2) of the United Nations Convention Relating to the Status of

Refugees, July 28, 1951, 189 U.N.T.S. 150 ("Convention"). Similarly,

the Office of the United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determining Refugee Status

Under the 1951 Convention and the 1967 Protocol Relating to the

Status of Refugees para. 90, at 21 (Geneva, 1988) ("Handbook")

provides: "As long as [an applicant] has no fear in relation to the

country of his nationality, he can be expected to avail himself of that

country's protection. He is not in need of international protection and

is therefore not a refugee."

We have construed this requirement "to mean that an alien seeking

to meet the definition of a refugee must do more than show a wellfounded fear of persecution in a particular place or abode within a

country—he must show that the threat of persecution exists for him

country-wide." Matter of Acosta, 19 I&N Dec. 211, 235 (BIA 1985),

modified on other grounds, Matter of Mogharrabi,

19 I&N Dec_ 439

(BIA 1987). The published cases which have dealt with this issue have

3 We certainly do not hold that there are no circumstances under which the motive for

police abuses could be to persecute someone on account of a reason protected under the

Act, but we find no direct or circumstantial evidence that such is the case here. There is

no evidence that the police were concerned with anything other than the fact the

applicant was thought to be involved with those engaged in a violent struggle against the

government. There is nothing to indicate that, such being the case, the police cared what

the applicant's individual political opinions may or may not have been or whether he

was or was not a Sikh.

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involved claims of nongovernmental persecution. See, e.g., Etugh v.

INS, 921 F.2d 36, 38-39 (3d Cir. 1990); Cuadras v. INS, 910 F.2d 567,

571 (9th Cir. 1990); Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th

Cir. 1986); Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir. 1986);

Matter of Fuentes, 19 I&N Dec. 658, 662-63 (BIA 1988). While the

issue will ordinarily arise in these circumstances, it is not limited to

such situations. The issue similarly can arise where governmental

authorities or those with ties to the government cannot be adequately

controlled in one particular area of a country, but individuals can live

safely elsewhere in their country of nationality. The Handbook states:

The fear of being persecuted need not always extend to the whole territory of the

refugee's country of nationality. Thus in ethnic dashes or in cases of grave

disturbances involving civil war conditions, persecution of a specific ethnic or

national group may occur in only one part of the country. In such situations, a person

will not be excluded from refugee status merely because he could have sought refuge

in another part of the same country, if under all the circumstances it would not have

been reasonable to expect him to do so.

Handbook, supra, para. 91, at 21-22 (second emphasis added).

This language reflects the concept that, while it is not "always"

necessary to demonstrate a country-wide fear, it is the exception,

rather than the rule, that one can qualify as a refugee without such a

showing.

In the instant case, the applicant's claim is focused on the state of

Punjab and the violence and police abuses there. The discord in

Punjab is well known. As the advisory opinion from the Department

of State's Bureau of Human Rights and Humanitarian Affairs

("BHRHA") relates, the "[e]thnic strife and separatist violence in the

state of Punjab has been one of India's intractable problems." 4

However, Punjab is but one of 25 states in India, and, as the BHRHA

also notes, India is "a democratic nation with strong legal safeguards

for individuals, a free press, an independent judiciary, and active civil

liberties organizations." The advisory opinion states that the Government of India "does not take action against individuals solely as a

result of their being members of the Sikh faith," and that large

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

India."

4 While the letter of the Department of State is advisory in nature, that agency is

charged, inter alia, with the responsibility of knowing what is going on, politically and

otherwise, in foreign countries. In the instant case, the Department of State had the

opportunity to examine and evaluate the applicant's evidence. In view of the

Department of State's knowledge of the country in question, its opinion in this case is

worthy of serious consideration in the absence of facts to the contrary. See generally,

Rojas v. INS, 937 F.2d 186, 190 n.I (5th Cir. 1991); Asghari v. INS, 396 F.2d 391, 392

(9th Cir. 1968).

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We do not find that the applicant has adequately addressed the

issues raised by this aspect of the BHRHA opinion. The record

indicates that the situation relating to Sikh grievances is peculiar to

Punjab, a geographically small portion of India with its own unique

history. There is no evidence that similar conditions, or violent

political struggles relating to Sikhs, pertain in any other part of India.

There is simply no evidence in this record that the applicant could not

safely live in India, other than in Punjab, or that it would not be

"reasonable to expect him to do so." Handbook, supra, para. 91, at 22.

Particularly given the scrutiny under which India is examined by

human rights organizations, if there were country wide persecution or

mistreatment of Sikhs by government authorities in India, we would

expect there to be corroborative background evidence. See Matter of

Doss, 20 I&N Dec. 120 (BIA 1989).

Therefore, even assuming that the applicant may fear returning to

Punjab, we do not fmd that he has demonstrated either a well-founded

fear or a clear probability of persecution in India. See sections

101(a)(42)(A), 208(a), 243(h)(1) of the Act; 8 C.F.R. §§ 208.13, 208.16

(1992); INS v. Cardoza-Fonseca, supra; INS v. Stevic, supra. Assuming,

arguendo, that he previously suffered persecution in Punjab, on the

evidence of record before us, we do not find it unreasonable to expect

him to have sought refuge elsewhere in India. In view of the

unrebutted opinion of the Department of State, which has been

characterized as the "best resource the Board could look to in order to

obtain information on political situations in foreign nations," we find

that a preponderance of the evidence establishes that conditions in

India, outside Punjab, are not such that the applicant would have a

well-founded fear of returning to that country. Rojas v. INS, 937 F.2d

186, 190 n.1 (5th Cir. 1991); see also 8 C.F.R. § 208.13(b)(1)(i) (1992).

In view of the absence of evidence of any likelihood of persecution

elsewhere in India and the factual circumstances of this case, we would

deny his application for asylum in the exercise of discretion. Matter of

Chen, supra. We recognize that it is always unfortunate when persons

are obliged to leave their homes as a result of danger or fear, but that is

not the issue here. The question is, once the decision to leave one's

home has been made, does an individual have the right to emigrate

rather than move elsewhere in his own country.

For the reasons stated above, the appeal will be dismissed.

The appeal is dismissed.

ORDER:

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CONCURRING IN PART AND DISSENTING IN PART:

Mary Maguire Dunne, Board Member

I respectfully concur in part and dissent in part.

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In its decision, the majority dismisses the applicant's appeal from

the immigration judge's denial of asylum and withholding of exclusion

and deportation. As noted by the majority, the record reflects that the

applicant is a Sikh from the Punjab region of India, who raised a claim

of past persecution, as well as a fear of future persecution, on account

of his religion and his actual or imputed political opinions. The

majority's factual summary of the applicant's persecution claim, which

I adopt, shows that he was abused by Sikh militants, apparently

members of the All India Sikh Student Federation, who sought to

recruit him into their ranks and to force him to contribute material

assistance to their cause. Although the applicant favored the creation

of an independent Sikh state, he refused to join the militants, as he

rejected their use of violence.

The majority also notes that the applicant's contact with the

militants was reported to the Indian police and that, consequently, he

was arrested as a suspected subversive. The majority summarily

acknowledges that the applicant was subjected to "brutal physical

abuse" by the police. I would add that the specific torture endured by

the applicant included having his arms and legs stretched, being

stripped and whipped with a leather belt, being beaten with batons,

and being denied food.

Turning to an analysis of the applicant's persecution claim, I concur

with the majority's view that the decision of the United States

Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478 (1992), controls

that aspect of his claim dealing with the Sikh militants. That decision

specifically found that forced recruitment by a rebel faction per se does

not amount to persecution within the meaning of the Immigration and

Nationality Act. Id. I strongly disagree, however, with the majority's

position that the abuse meted out to the applicant by the Indian police

was not on account of religion and/or political opinion. I also reject the

majority's alternate holding that the applicant's claim with respect to

the Indian police should be denied because he has not shown a well-

founded fear of persecution on a country-wide basis.

In regard to the underlying merits of the applicant's persecution

claim concerning the Indian police, the majority finds that "the

purpose of the mistreatment was to extract information about Sikh

militants, rather than to persecute the applicant 'because' of his

political opinions or the mere fact that he was a Sikh." In arriving at

this conclusion, the majority has ignored relevant precedent of the

United States Court of Appeals for the Ninth Circuit. As this case

arises within the jurisdiction of that court, we are bound by its

decisions. See Master of Anselmo, 20 I&N Dec. 25, at 31 (BIA 1989).

Specifically, the Ninth Circuit has ruled that while a government has

the right to prosecute individuals accused of criminal activity, such as

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supporting a guerrilla faction, when violence or threats of violence

usurp legal procedure, then persecution on the basis of political

opinion exists. See, e.g., Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th

Cir. 1988).

In addition, the majority has ignored the principle enunciated in the

Board's own precedent of Matter of Fuentes, 19 I&N Dec. 658, 662

(BIA 1988), that an alien does not bear the unreasonable burden of

establishing the exact motivation of a persecutor where different

grounds for actions are possible. In this light, I find improper the

majority's confident conclusion that the persecution suffered by the

applicant at the hands of the Indian police was not premised upon one

of the protected grounds.

In reality, the majority employs a standard diametrically opposed to

that set forth in Matter of Fuentes, supra, by implicitly suggesting that

an alien must prove a persecutorial motivation anchored upon one of

the enumerated grounds to the exclusion of all other possible motivations. Matter of Fuentes, however, recognized that there can be more

than one possible basis for a persecutor's actions. The task of the alien

is simply to demonstrate the reasonableness of a motivation which is

related to one of the enumerated grounds. Concomitantly, it is

irrelevant whether the majority's interpretation of the events is

reasonable; the proper focus is whether the applicant's interpretation is

reasonable.

Under the facts of this case, it is logical to assume that religious and

political considerations' may have been the critical factors driving the

Indian security apparatus to persecute the applicant. See Singh v.

Ilchert, 801 F. Supp. 313, 318-19 (N.D. Cal. 1992). In this regard, I

would point out that the present turmoil in the Punjab region of India

is based upon religious as well as political differences, that the

organization the applicant was suspected of belonging to, the All India

Sikh Student Federation, is a religious/political organization, and that

the inhumane conduct experienced by the applicant was disproportionate to any measured government reaction that could be expected

as a response to anti-government activity. See INS v. Elias-Zacarias,

supra, at 483 84 (holding that direct evidence of a persecutor's motive

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is not required, and that circumstantial evidence may suffice).

For a variety of reasons, I also strongly disagree with the majority's

'In many instances, the grounds of persecution may overlap. See Office of the United

Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for

Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating

to the Status of Refugees para. 67, at 17 (Geneva, 1988); see also INS v. Carrio4a-

Fonseca, 480 U.S. 421, 439 rt. 22 (1987) (noting that the Handbook provides "significant

guidance").

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alternate finding that the applicant's persecution claim with respect to

the Indian authorities should be denied, as he failed to show a wellfounded fear of persecution on a country-wide basis. First, I note that

the majority grounds this determination on a statement set forth in the

advisory opinion of the Department of State's Bureau of Human

Rights and Humanitarian Affairs ("BHRHA") that "large numbers of

Sikhs are leading tranquil and productive lives [outside of the Punjab]

in other parts of India." Although the BHRHA advisory opinion is

physically contained in the record and the immigration judge generally

referred to it in his decision, it apparently was never entered into

evidence, contrary to regulation. See 8 C.F.R. § 208.11(c) (1992). The

Act "provides that all evidence which is pertinent to determinations

made during deportation [or exclusion] proceedings ... must be

adduced in the hearing before the immigration judge." Matter of

Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (footnote omitted).

Second, the issue of country-wide persecution was never raised at

the hearing below, in the immigration judge's decision, or on appeal.

Under these circumstances, the majority's finding that the applicant

failed to "adequately address" the question is fundamentally unfair.

Clearly, the applicant did not have a meaningful opportunity to

respond to the critical aspect of the BHRHA advisory opinion upon

which the majority relies. See 8 C.F.R. § 208.11(c) (1992); Matter of

Saban, 18 I&N Dec. 70, 71 (BIA 1981). As a practical matter, this

lapse of due process is especially egregious when one considers the fact

that this case has been designated as a precedent decision. The Board

is basing its finding upon a factual assumption which has not been

properly developed.

Third, as noted above, this matter arises within the jurisdiction of

the Ninth Circuit and we are bound to follow the precedent of that

court. It is highly doubtful that the Ninth Circuit would countenance

the use of the principle of country-vvide persecution where, as here, an

alien has been persecuted by one component of a government's

security apparatus, the overall organization of which "would presumably be capable of locating [the alien] in other regions of India." Singh

v. Ilchert, supra, at 321 (citing to Ninth Circuit precedent); see also

Beltran-Zavala v. INS, 912 F.2d 1027, 1030 (9th Cir. 1990).

Fourth, I find that the majority's country-wide persecution analysis

is premised upon a factual conclusion by the BHRHA which is highly

suspect. For example, the BHRHA does not explain whether the "large

numbers of Sikhs" who lead "tranquil and productive lives" outside of

the Punjab include those who, like the applicant, have previously run

afoul of the Indian police. Concomitantly, it fails to mention whether a

Sikh's "ability to avoid further persecution by relocating inconspicuously may be limited by his manner of religious dress and his inability

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to speak the languages or dialects of other regions of India." Singh v.

Ikhert, supra, at 321.

Moreover, although the BHRHA purportedly based its opinion on

the Department of State's annual Country Reports on Human Rights

Practices, it fails to comment on highly relevant information set forth

in those materials. See, e.g., Committees on Foreign Relations and

Foreign Affairs, 102d Cong., 1st Sess., Country Reports on Human

Rights Practices for 1990 1425 (Joint Comm. Print 1991) ("Country

Reports"). In particular, the Country Reports note that over 3,000

Sikhs were killed during anti-Sikh rioting in New Delhi and elsewhere

in India following the 1984 assassination of Indira Gandhi by her Sikh

bodyguards. Id. at 1426. Furthermore, they reflect that only a small

percentage of those charged with instigating or participating in the

rioting were actually convicted, and that most of these were found

guilty of minor offenses. Id. The Country Reports also refer to

allegations that "the principal instigators of the riots are protected

from prosecution by their high political visibility, and that none of

those arrested were major figures in the mass killing of Sikhs." Id.

Additionally, an earlier report indicates that "a large number- of Sikhs

fled from other parts of India to the Punjab as a result of the riots.

Committees on Foreign Relations and Foreign Affairs, 99th Cong., 2d

Sess., Country Reports on Human Rights Practices for 1985 1221, 1221

(Joint Comm. Print 1986).

As a fmal concern, I would note that the legal analysis employed by

the majority in conjunction with the principle of country-wide

persecution is seriously flawed. In the context of a past persecution

scenario, the majority concludes that the applicant's failure to

establish country wide persecution mandates that his applications for

asylum and withholding be denied. The majority has pointed to no

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direct statutory or regulatory authority for such a conclusion. On the

contrary, pursuant to 8 C.F.R. § 208.13(b)(1)(i) (1992), once past

persecution is established, an alien is presumed to have a well founded

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fear of future persecution if he were to return to his homeland, and the

burden is on the Immigration and Naturalization Service to show

otherwise by a preponderance of the evidence.

Therefore, in the matter at hand, the burden is on the Service to

disprove the existence of country-wide persecution rather than on the

applicant to prove it. See Singlyv. Ilchert, supra, at 322. A problematic

one-sentence reference in a BHRHA opinion is insufficient to meet the

Service's burden. See generally Matter of Doss, 20 I&N Dec. 120, at

123 (BIA 1989) (concerning the necessity of presenting adequate

background. documentation). Moreover, even if the Service were to

prove that the applicant could safely live in regions of India outside of

the Punjab, the applicant still may be granted asylum in the exercise of

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discretion if he shows "compelling reasons" for not returning, such as

the severity of his past persecution. See 8 C.F.R. § 208.13(b)(1)(ii)

(1992); Matter of Chen, 20 I&N Dec. 16, 17 (BIA 1989).

Accordingly, having carefully reviewed the record and relevant

authority, I conclude that the applicant has demonstrated statutory

eligibility for asylum.2 Since I find no basis in the record for an adverse

discretionary determination, I would sustain the appeal and grant the

application for asylum.

CONCURRING OPINION: Michael J. Heilman, Board Member

I respectfully concur.

The dissenting opinion contains a number of statements that should

not go unchallenged. First, the statement that the "present turmoil in

the Punjab region of India is based upon religious as well as political

differences" is completely at odds with the history of India. Punjab,

which is a state, not a region, has experienced violence instigated solely

by Sikh extremists who have attacked fellow Sikhs, Hindus, and

Moslems in furtherance of their plan to establish an independent Sikh

state. The dissenting opinion would lead one to believe that the

"turmoil" in Punjab resulted from some sort of religions "differences"

for which the Hindus and Moslems bear responsibility, and that the

Hindus and Moslems first attacked or repressed the Sikhs. This

statement has absolutely no basis in fact.

There have been since the early 1980's in Punjab demands by some

Sikhs over the sharing of the state capital at Chandigarh with Haryana,

and grievances over land disputes and water rights pertaining to the

Sutlez -Umana Canal. The Government of India was willing to discuss

these issues with Sikh political figures and did so, in a series of

negotiations. Unfortunately for all concerned, a small but highly

vicious band of extremists had decided that Punjab had to become an

independent Sikh state, despite the fact that almost 40 percent of the

population is Moslem and Hindu. These extremists armed themselves

and began a campaign of terror, which in 1984 led to the infamous

battle at the "Golden Temple," the subsequent murder of Prime

Minister Gandhi, and anti-Sikh violence in some parts of India. It is

Sikh-inspired violence that is the historical context for this claim, not

any campaign against the Sikhs led by the government or any other

religious group, to which the Sikhs are responding.

The dissenting opinion finds that the Government of India

2 1 find it necessary to point out that the separate concurring opinion in this case has

misinterpreted various aspects of my legal and factual analysis. In lieu of a direct reply,

however, I am content to let the careful reader draw his or her own conclusions.

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persecutes Sikhs on the basis of religion.. The history of India does not

disclose any support whatsoever for this view. Sikhs constitute less

than 2 percent of the population of India, but have occupied high

positions in the Indian Government and military. India is, by terms of

its 1976 constitution, a secular state. In 1982, a Sikh, Giani Singh, was

elected President of India, and at present another Sikh, Man Singh, is

Minister of Finance. It would strike me as quite odd that members of a

"persecuted" religious group would be chosen for such high posts. The

Nazis did not have a Jewish minister of finance.

I know of no information in this record or from any other source

that would support the dissenting member's opinion that the Government of India persecutes Sikhs on account of their religion or is happy

to allow others to do so. It is clear to me that there is no historical basis

at all for such a view. This asylum claim has no plausible context.

It might be useful in regard to this issue to point out that the

violence in Punjab has occurred during a period when many other

communal and separatist conflicts have occurred, none of which had

anything to do with Sikhs. These conflicts led the Indian Government

to introduce police and military forces and suspend local governments,

as happened in Punjab. In the 1980's and up to the present, there has

been agitation or violence in Goa, Assam, Karnataka, Tamil Nadu,

Gujarat, Rajasthan, Bihar, Uttar Pradesh, Madhya Pradesh, Kashmir,

and West Bengal. Is the fact that Moslems and Hindus and Gurkhas

and Nepalese were killed in all of these places evidence that the

Government of India persecutes them as well?

The dissenting opinion would have us believe that the anti-Sikh

violence that occurred after Prime Minister Gandhi's murder is

evidence of religious persecution of Sikhs that shows Sikhs are

persecuted all over India. If this is so, then the intermittent violence

against Hindus and Moslems and Nepalese and Bengalis in other parts

of India shows persecution of those persons as well. As Hindus and

Moslems constitute over 90 percent of the population of India, we

would have an enormous number of people who could make the same

claim of religious persecution, many of them on the basis of attacks by

Sikhs. Communal and religious violence is a sad fact of Indian history,

beginning with the partition of India and Pakistan. There is no

evidence, however, that the Government of India supports or engages

in this violence, although the Government has a checkered history in

its responses to clashes or attacks by one group against another. But

these occurrences show failings on the part of the Government, not

any policy of religious persecution.

"lhe dissenting opinion also comes to unsubstantiated conclusions

regarding purported mistreatment of the asylum applicant by the

police as evidence of persecution on account of religious belief. It is

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not clear to me at all why it is assumed that the police in Punjab are

not Sikhs, but Hindus or Moslems. There is no evidence in the record

to support this assumption. Recent news articles about Punjab have

related accounts of the murder of Sikh policemen and their families by

extremist Sikhs. It would appear that it is convenient for the dissent to

assume that the police in Punjab are not Sikhs, or else the religious

persecution theory makes no sense. As it is clear that Sikhs are

policemen, it would seem elementary to make some inquiry into the

percentage of policemen in Punjab who are Sikh, and whether they too

mistreat Sikhs who fall into their hands. The proposition that Sikh

policemen mistreat Sikhs on account of their common religion is

implausible on its face.

As to the dissenting view that mistreatment of Sikhs occurs on

account of "political differences," a like number of unfounded

assumptions come into play. It is the case in India, as it is in many

countries, that the police sometimes exercise their powers in ways that

are objectionable. In most instances, beatings and arrests are considered abuses of police authority, not forms of persecution_ For instance,

the recent beating of Rodney King in Los Angeles was perceived as

police misconduct, not persecution of Mr. King. What do we have in

India that makes the situation different?

Again, as with religion, it is necessary to look to the underlying

context of the claim to determine whether there is a history of

persecution of Sikhs in India on account of political opinion. This

record shows none. It seems entirely specious to assume that all Sikhs

even have the same opinions on political issues of interest to Indian

citizens. The only category of Sikhs that appears to have any relevance

here is those who have desires relating to the governance of Punjab.

Yet we know that Sikhs freely elect persons in Punjab who represent

their views on such matters in the state assembly, as well as to the

national government, through the medium of Sikh-based political

parties. In 1985, in fact, after the battle at the Golden Temple, the

Indian Government negotiated a political settlement over a number of

issues relating to Sikh demands and established governmental commissions to carry out the agreement At that time and after, the

Government of India has discussed Sikh concerns and negotiated on

matters of mutual concern.

So where in the recent history of India is there evidence of

"persecution" of Sikhs on account of political opinion, and what

political opinion? Are we in the realm of fantasy here? Did Hitler

negotiate differences with Jews, did Stalin negotiate differences with

the "kulaks," did Pol Pot negotiate with his political opposition?

There is no history in this record, or outside of it, of the Government

of India persecuting Sikhs for peacefully expressing their views

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through the Indian political process. There is no evidence that while

the Government has been negotiating with Sikh moderates for over a

decade it has been persecuting them at the same time. So, it appears

clear to me that the "political opinion" the dissent alludes to cannot be

the political opinion of asserting Sikh views on matters of government.

Let us be clear on what we mean. Who is in danger and for what

reason? In my estimation, the category "at risk" is those Sikhs

suspected, rightly or wrongly, of being associated with the terrorist

Sikh organizations, of providing them assistance. This is an extremely

narrow category of persons. The dissenting opinion, I would note, does

not define the "political opinion" that it sees being attacked by the

police, so that is left purely to conjecture. If the dissent sees the

political opinion as being Sikh separatism, then of course, there is no

basis for this, as there is no evidence that peaceful expression of this

program through the Indian political system places anyone at risk.

Is, however, the "political opinion" envisioned by the dissenting

opinion the violent separation of Punjab from India through a

program of murder and terrorism, and the creation of a "pure" Sikh

state, with Hindus and Moslems to be driven out? If it is, I absolutely

reject the notion that this is a form of political opinion protected by

the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102.

Unlike the dissenting opinion, I do not find all political opinion to

be equal, or protected under the term "political opinion" as used in the

Refugee Act of 1980. I am well aware, of course, that persecution is

generally defined as the infliction of harm on account of a "differing"

political opinion, one which the supposed agent of persecution finds

"offensive." But this is a theory that is surely filled with dangerous

pitfalls, if all opinions are treated as equal. If the political program of

Sikh extremists includes the murder of policemen and government

officials, as well as judges and political figures, is this not a program

that one should differ with and try to overcome? Surely the opposite is

not possible, that one should support it and grant asylum for it.

Violent expression of political opinion was at the heart of a claim

that an Irish national wished to make to this Board. The Attorney

General refused to let the claim be made, and the Supreme Court

affirmed that decision. INS v. Doherty, 502 U.S. 314 (1992). In that

instance, an Irish nationalist had murdered a British Army officer and

claimed that he was persecuted on account of his political opinion of

Irish nationalism. In that case, as in the present, an identifiable group

of people with political grievances, nationalist sentiments, and a

particular religion had rejected the peaceful political process and opted

for violent confrontation. Both that claim and this occur against a

backdrop of alleged police misconduct.

We know that the Sikh extremists, as well as the violent Irish

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nationalists, have a political program that, in their minds, justifies

violence. What the Sikh extremists want and how they operate is no

mystery to the Indian public, and most certainly not to the Indian

police, who know how many policemen have been killed and the

suffering that the extremists have caused. The police did not start this

violence; the police did not one day decide to start killing Sikhs and

drive them out of Punjab. How incredibly odd that the dissenting

opinion assigns them the onus of "persecution. - What a remarkable

juxtaposition of victim and killer.

And here I will be as blunt as possible: Given the viciousness with

which the extremists have murdered so many persons, among them

many policemen and their families, would one realistically expect

gentle treatment? It ill behooves us to label as agents of persecution the

very people the Sikh extremists murder with abandon when they have

the opportunity. We know from our own history that policemen who

consider themselves targets of extremists understandably react in ways

that have little to do with constitutional theory, or conventional police

procedures. Let us remember the fate of the Symbionesc Liberation

Army in Los Angeles and the Black Panthers in Chicago.

The dissenting opinion is correct in one respect in citing BlancoLopez v. INS, 858 F.2d 531 (9th Cir. 1988), in support of the

proposition that mistreatment by the police is viewed in the Ninth

Circuit as a form of persecution. That decision found as persecution

supposedly threatened mistreatment of a former employee of the

Salvadoran Government who had been accused of gun running on

behalf of Salvadoran guerrillas who were attempting to overthrow the

Government of El Salvador through a program of violence and

murder, acts universally considered to constitute treason or sedition.

The Ninth Circuit found that the Salvadoran Government "believed

him to be a guerrilla and attempted to persecute him for it," that he

faced "persecution based on Blanco-Lopez's perceived political belief." Id. at 534. The court, however, through oversight or design,

never defined what the "political beliefs" of a guerrilla might be. It

would appear that the Ninth Circuit holds the entirely novel view that

the violent overthrow of a democratically elected government is a

"political opinion" like any other and that no government may object

to its expression. If a guerrilla organization arose in this country aimed

at the violent overthrow of the Federal Government through a

program of murder of government and law enforcement officials and

federal judges, it would appear that governmental suppression of this

organization would be an act of persecution in the Ninth Circuit. After

all, if that court could find that the Government of El Salvador

"persecuted" Blanco-Lopez because it believed him "to be a guerrilla,"

then it is clear that "being" a guerrilla is somehow a form of "political

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opinion," regardless of the actual objectives of the guerrillas and their

methods. If this is so, then that court could not logically object to the

murder of federal judges by "guerrillas" who are only acting out their

"political opinion," whether it be a form of Marxism or "Aryan

supremacy."

I am aware that the Ninth Circuit arrived at the conclusion that

"being" a guerrilla is a form of political opinion by constructing a

syllogism. In this syllogism, the court applied two premises. The first is

that the mistreatment Blanco-Lopez feared was not a "legitimate

criminal prosecution." Blanco-Lopez v. INS, supra, at 534. No one of

course had said that it was. The court's second premise was that if the

feared police actions were not prosecution, then they constituted

"persecution." This is a faulty, unfounded second premise, more in the

nature of a slogan than a statement of fact. It is not a legal or logical

principle that anything that is not prosecution is therefore persecution.

"Illegitimate" police actions may be many things: simple acts of

criminality, abuses of authority, or acts of sadism. If it follows, as the

Ninth Circuit assumes, that all that is not prosecution is persecution,

then an ill-treated burglar or rapist could claim persecution on account

of "being" in a social group of burglars or rapists.

But this logical failing aside, if it is true that "being" a guerrilla is

the acting out of a political opinion that policemen should be killed, I

would still reject the proposition that this is a form of "political

opinion" protected by the asylum laws. If a "political opinion" of this

type is protected, then so is the view that Jews should be killed because

they are believed to control the world, or that federal judges should be

murdered because they are considered an instrument of repression of

Caucasian Christians.

It is clear to me that such an application of the term "persecution"

was untenable even before INS v. Elias-Zacarias, 502 U.S. 478 (1992).

But now, there is surely no life whatsoever in the Blanco-Lopez

analysis. It is inconceivable that any person could claim that he is

persecuted "on account" of suspicion of "being" a gun-running

guerrilla. "Being" a guerrilla is not a form of political opinion. "Being"

a guerrilla means being engaged in acts of violence and illegality. I

know of no legal principle or form of logic that states that "being"

engaged in such acts automatically transforms the "political opinions"

that drive those acts into a form of political opinion protected by

United States law. Under this theory, Serbian guerrillas who wish to

"cleanse" Bosnia of Moslems would obtain asylum in the Ninth

Circuit.

The applicant here, for substantial reasons, was suspected of helping

members of an extremist organization which has murdered many

persons, including policemen, in furtherance of the political goal of

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independence of "Khalistan." If caught, he faces the distinct possibility of being mistreated. I can only assume that the dissenting member

would consider this person an obi ect of persecution, on account of the

facts that Indian policemen wish to "overcome" or disagree with the

"political opinion" that policemen should be killed, and that they

might abuse him if they catch hint. How marvelous. Perhaps we could

offer asylum to a Sikh who has bombed a bus and killed innocent men,

women, and children of several religions, Sikhs included, on the

ground that he risks certain death if caught for such an outrageous act.

One faces the remarkable possibility under Blanco-Lopez that the

more egregious the act and the greater the outrage, the higher the

probability of being granted asylum, on the ground that claimed police

mistreatment will be on "account of political opinion," not human

failings, vengeance, or anger provoked by the extremists' acts. It never

occurred to the court in Blanco-Lopez,after all, that the police officials

of El Salvador might reasonably be angered by their well-founded

belief that he was providing guns to persons who killed soldiers and

Policemen, not by his "political opinion," which, of course, they had

shown no interest in whatsoever prior to their receipt of information

that he was gun-running. This interpretation would be directly

contrary to the holding of INS v. Elias-Zacarias, supra.

In the present case, there is simply no basis in history or logic to

find persecution of the applicant on account of religion, or on the basis

of political opinion protected by the Refugee Act of 1980, supra. If the

dissenting member wishes to accord asylum to persons who are

thought to have helped violent Sikli terrorist organizations which have

murdered Hindu, Moslem, and Sikh men, women, and children, then

it should be openly stated. If this is the "political opinion" in question,

and I can see no other that applies, then our asylum law would be put

to an entirely unintended use by such an application. If the applicant

here succeeds, then those Sikhs who have in fact committed acts of

violence and murder would be entitled to asylum also, on the simple

ground that they have either been mistreated by the police, or fear such

mistreatment. What a perverse application of laws intended to accord

sanctuary to the persecuted of the world.

For these reasons and those stated by the majority I would also

dismiss the appeal.

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