Opposition Brief — Adhiyappa v. Immigration & Naturalization Service

No. 95-929 | : ,

| In the Supreme Court of the Giited States

i OCTOBER TERM, 1995

THIYAGARAJAH ADHIYAPPA, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

DREW S. DAYs, III

Solicitor General -

FRANK W. HUNGER

Assistant Attorney General

RICHARD M. EVANS

TERRI J. LAVI

Attorneys

Department of Justice

Washington, D.C. 20520

(202) 514-2217

QUESTION PRESENTED

Whether the decision of the Board of Immigration

Appeals that petitioner’s fear of persecution by a

terrorist organization was not “on account of *

political opinion” was supported by substantial

evidence.

+ *

TABLE OF CONTENTS

Page

CNG a ce l

EEE ATA Se l

EEE IES EE CD 2

LEE DATS ST Se RC 6

RE 12

TABLE OF AUTHORITIES

Cases:

American Textiles Mfrs. Inst., Inc. v. Donowan,

a sseuceuouensensuuce -

Consolo v. Federal Maritime Comm'n, 383 U.S. 607

EEE LES -

INS v. Elias-Zacarias, 502 U.S. 478 (1992) ......... 7, 8,9

11,12

Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) ............. 9

Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994) .......... 10, 11

Rivas-Martinez v. INS, 997 F.2d 1143 (5th Cir.

EEE: 2 AL ee 10

Singh v. Ilchert, 301 F. Supp. 313 (N.D. Cal. 1992) . 9

Sotelo-Aquije v. Slattery, 17 F.3d 33 (2d Cir.

A LE Lo 9, 10

Wisniewski v. United States, 353 U.S. 901 (1957) .... 11

Statutes:

Immigration Act of 1990, Pub. L. No. 101-649, 104

Stat. 4978:

ER 4

eee 4

Immigration and Nationality Act, 8 U.S.C. 1101

et 8eq.:

§ 101(a)(42), 8 U.S.C. 1101(a)(42) .00.... eee 2

PS © Crete BEOOID cccvecccccerercesccesceeveceveverees 2, 4, 5

§ 241(a)(4), 8 U.S.C. 1251(a)(4) (1988) 0.000.000.0000. 4

§ 241(aX(2) Ai), 8 U.S.C. 1251(ay(2) Ail) ........ 4

DF Uy © We MEO) cccccceccecoveccececcoorcerocsces 4

(III)

IV

Statutes—Continued:

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

102

Jn the Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-929

TH! YAGARAJAH ADHIYAPPA, PETITIONER

v~.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-

24a) is reported at 58 F.3d 261. The decisions of the

Board of Immigration Appeals (Pet. App. 25a-31a) and

the immigration judge (Pet. App. 32a-37a) are un-

reported.

JURISDICTION

The judgment of the court of appeals was entered on

June 28, 1995, and rehearing was denied on September

13, 1995. Pet. App. la-2a. The petition for a writ of

certiorari was filed on December 12, 1995. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. The Refugee Act of 1980, Pub. L. No. 96-212, 94

Stat. 102, limits eligibility for asylum to any alien the

Attorney General determines to be “a refugee within

the meaning of section 1101(a)(42)(A) of this title.” 8

U.S.C, 1158(a). A “refugee” is defined in that Section

as any person who has left his native country and is

unable or unwilling to return there “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.” 8 U.S.C.

1101(a)(42).

2. Petitioner is a member of the Indian Tamil

ethnic group, which has been involved in a protracted

conflict between political, religious, cultural, and

ethnic factions within Sri Lanka. The main com-

peting groups in the Sri Lankan conflict are the

Sinhalese, who comprise the majority of the popula-

tion, and the Sri Lankan Tamils, who migrated to Sri

Lanka from southern India many centuries ago.

Indian Tamils, a small group of relatively recent

immigrants brought to Sri Lanka by the British to

serve as agricultural laborers, are “exploited and

ignored” members of Sri Lankan society, and are “the

untouchables of Sri Lanka.” Pet. App. 5a.'

A major source of conflict between the competing

factions is the proposal that a separate Tamil state be

1 Although petitioner testified that he and his family

suffered violent assaults and property damage by Sinhalese

forces, he has expressly waived any claim to asylum based upon

a fear of persecution by the Sinhalese. Pet. C.A. Br. 3 n.3.

Accordingly, petitioner’s recitation of facts relating to alleged

attacks by the Sinhalese is not relevant to the issues before the

Court. See Pet. 4-5.

3

created within Sri Lanka. Sri Lankan Tamils

generally favor that proposal, while Sinhalese and

Indian Tamils generally oppose it. Pet. App. 5a.

Certain militant Tamils have sought to advance the

separatist cause through acts of terrorism. /d. at

27a-28a. Petitioner strongly opposes the creation of a

separate Tamil state. /d. at 5a.

In September 1980, petitioner was hired as a

geography instructor by Jaffna University in

northern Sri Lanka. In March 1981, the chancellor of

the university asked him to serve as an assistant

student advisor, and he accepted the position.

Petitioner’s duties included advising freshman

students, and observing and preventing terrorist

activities on campus. As required by his job, peti-

tioner provided the names of students suspected of

participating in terrorist activities to Sri Lankan

security forces and to campus authorities. Pet. App.

6a, 27a.

Petitioner testified that, as a student advisor, he

informed on about 50 students. Pet. App. 27a. He

claimed that each time government soldiers took

action against militants in the area, he received

threats from Tamil separatist groups that suspected

him of informing on their members. /d. at 28a. He

testified that, although the militants called him a

traitor and threatened to kill him if he continued to

inform on them, he did not heed their warnings

because he was afraid that he might lose his job:

“They [the terrorists] said if you continue to do that,

we will kill you. But having no choice, I had to hold on

to my job, I had to report to the university as well [as

to] security forces.” Jd. at 16a. He added that he felt

somewhat protected from the militants because the

government was still firmly in control of Jaffna. By

mid-1983, however, the government’s control over

Jaffna began to erode, and petitioner fled Sri Lanka,

fearing that his life was in danger. /d. at 28a.

3. Petitioner entered the United States in August

1983, on a non-immigrant student visa. He was

convicted of theft offenses on April 14, 1987, and on

February 28, 1989. In light of those convictions, the

Immigration and Naturalization Service (INS)

brought deportation proceedings against petitioner

pursuant to former Section 241(a)(4) of the Immigra-

tion and Nationality Act (Act), 8 U.S.C. 1251(a)(4)

(1988), which authorizes the Attorney General to

deport any alien who, at any time after entry into the

United States, is convicted of two or more crimes

involving moral turpitude.’ Petitioner conceded his

deportability, but requested asylum pursuant to 8

U.S.C. 1158(a) and withholding of deportation pur-

suant to 8 U.S.C, 1253(h). Pet. App. 7a-8a.

In an oral decision issued on December 11, 1989, the

immigration judge (IJ) found that petitioner was

statutorily ineligible for asylum and withholding of

deportation. Pet. App. 32a-37a. The IJ found that

petitioner was opposed to the creation of a separate

2 Although Section 2 of the Immigration Act of 1990, Pub.

L. No. 101-649, 104 Stat. 4978, renumbered and in some in-

stances revised the grounds for deportation, Section 602(d) of

the 1990 Act (104 Stat. 5067) specified that those changes would

not apply to “deportation proceedings for which notice has

been provided to the alien before March 1, 1991.” In any

event, the same provision is now found at Section

241(aX(2A)ii) of the Act, 8 U.S.C. 1251(ay(2)Aii) (“Any

alien who at any time after entry is convicted of two or more

crimes involving moral turpitude, not arising out of a single

scheme of criminal misconduct, regardless of whether confined

therefor and regardless of whether the convictions were in a

single trial, is deportable.”).

a

5

Tamil state, but concluded that petitioner had failed

to demonstrate a well-founded fear of persecution on

account of that political opinion. /d. at 34a. The IJ

based his conclusion, in part, on a finding that

petitioner had failed to prove that “the terrorist

organization[s] have a threatening presence in all

areas in which he could find a place to live.” /d. ai 35a.

The IJ also cited a lack of evidence that petitioner’s

political opinion was “the concern of anybody at this

time.” Jd. at 36a. Accordingly, the IJ ordered peti-

tioner deported to Sri Lanka.

The BIA affirmed the decision of the immigration

judge. Pet. App. 25a-3la. The BIA observed that peti-

tioner “mainly fears Tamil militants, as they made

threats against him over a decade ago for informing

authorities about students involved in their move-

ment.” Jd. at 28a-29a. It determined, however, that

the evidence did not support petitioner’s fear of per-

secution on account of political opinion, ov any other

ground specified in 8 U.S.C. 1158(a). Pet. App. 28a-

29a. The BIA concluded that the militants’ “interest

would appear to be for retaliation against a perceived

informer, which would not be persecution on account

of a protected status; it is reasonable to assume that

the retaliation would occur regardless of what

political opinion, if any, [petitioner] held.” Jd. at 29a.

Petitioner sought review of the deportation order

in the United States Court of Appeals for the Sixth

Circuit. The court of appeals sustained the BIA’s

decision, concluding that it was supported by sub-

stantial evidence. Pet. App. 3a-24a.

ARGUMENT

The court of appeals’ determination that the BIA’s

findings were supported by substantial evidence is

fact-bound and does not conflict with any decision of

this Court or of any other court of appeals. Thus,

further review is unwarranted.

1. Petitioner argues that the court of appeals has

unreasonably restricted asylum eligibility to cases in

which the persecutor is motivated “exclusively by the

applicant’s political thought, and not to any degree by

actions which the applicant has taken against the

persecutor’s interest.” Pet. 11. That argument,

however, mischaracterizes the decision below. The

court of appeals did not address the issue of how an

asylum claim should be treated where the alleged

persecutor acts on the basis of mixed motives, some of

which might be “on account of” the applicant’s

political opinion. Instead, the court upheld the BIA’s

determination that the terrorists who threatened

petitioner did mot act on account of any political

opinion of petitioner, but rather acted on the basis of a

retaliatory motive. Pet. App. 17a. That conclusion

was based on evidence that the militant separatist

organizations “warned” petitioner every time he

“[gave] names,” and threatened him “whenever

soldiers went after the terrorists, indicating that

[they believed that] he had informed the soldiers.”

Ibid. In addition, the court noted that “[p]etitioner

did not present evidence that the terrorists , were

targeting antiseparatists who were not serving as

government informants.” Jbid. Thus, the BIA’s

determination “that it was [petitioner’s] status as an

informant, not his political opinion, that spurred [the

7

militants’] hatred,” ibid., was supported by sub-

stantial evidence. |

The result reached by the Sixth Circuit is

consistent with this Court’s decision in INS v. Elias-

Zacarias, 502 U.S. 478 (1992). In Elias-Zacarias, the

Court reversed a Ninth Circuit decision holding that

the BIA erred in rejecting a Guatemalan native’s

political asylum claim, which was based on evidence

that he was threatened with forcible conscription into

a guerrilla army. The Court observed that an asylum

applicant must “provide some evidence of [the per-

secutor’s political motive],” because the asylum

statute “makes motive critical.” Jd. at 483. The

Court also noted that, to obtain reversal of an adverse

BIA decision, it is not enough for the applicant to

point to evidence supporting his claim of a well-

founded fear of politically-motivated persecution:

“(H]je must show that the evidence he presented was

so compelling that no reasonable factfinder could fail

to find the requisite fear of persecution.” Jd. at 483-

484. Applying that deferential standard of review, the

Court concluded that the evidence did not compel the

conclusion that the guerrillas’ attempt to conscript

Elias-Zacarias constituted persecution “on account of

* * * political opinion,” because the guerrillas might

have attributed his reluctance to fight to a multitude

of nonpolitical factors, such as a “fear of combat” or a

desire to remain with his family. Jd. at 482.

In this case, as in Elias-Zacarias, the threatened

persecution was not necessarily on account of

petitioner’s political opinion because, as noted above,

substantial evidence supports the BIA’s finding that

the terrorist threats against petitioner’s life were

8

motivated by his activities as an informant.’ Al-

though petitioner’s assertion that the terrorists had

some political motives may be plausible based on the

evidence presented, the BIA’s findings must be

sustained absent evidence “so compelling that no

reasonable factfinder could fail to find” that the mili-

tants’ threats were politically motivated. Elias-

Zacarias, 502 U.S. at 484; see id. at 481 n.1 (“[t]o

reverse the BIA finding we must find that the

evidence not only supports [petitioner’s}] conclusion,

but compels it”); American Textiles Mfrs. Inst., Inc.

v. Donovan, 452 U.S. 490, 523 (1982) (“the possibility

of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s

finding from being supported by substantial

evidence”) (quoting Consolo v. Federal Maritime

Comm’n, 383 U.S. 607, 620 (1966)). In this case, the

evidence simply did not permit reversal under the

deferential standard set forth in Elias-Zacarias.

3. In attempting to demonstrate a “major conflict”

among the circuits, petitioner catalogues cases in

which courts have rejected the Board’s finding that

persecution was not “on account of * * * political

3 Petitioner attempts to distinguish Elias-Zacarias on the

ground that the asylum applicant there was an uneducated

peasant who wished to remain politically neutral, whereas

petitioner is a university instructor who had openly expressed

his anti-separatist political views. Pet. 17-18. However, in

Elias-Zacarias, the Court expressly declined to decide

whether the applicant’s political neutrality qualified as a po-

litical opinion, 502 U.S. at 483, and instead decided the case

based on the lack of compelling proof of the persecutors’

political motivation.

9

opinion.” Pet. 19-22. However, each of the cases cited

by petitioner is distinguishable from the Sixth

Circuit’s decision here, which presents a textbook

application of the principles enunciated in Elias-

Zacarias.

For example, in Osorio v. INS, 18 F.3d 1017 (1994)

(see Pet. 20), the Second Circuit held that the BIA

erroneously presumed that a union activist’s dispute

with the government could not have a_ political

dimension because it occurred in the context of an

economic dispute. By so presuming, the court held,

the BIA improperly discounted evidence of the

persecutor’s mixed motives, which appeared to be

political as well as economic. 18 F.3d at 1029-1031;

accord Singh v. Ilchert, 801 F. Supp. 313, 319 (N.D.

Cal. 1992). The instant case, however, has no relation

to “mixed motive” cases such as Osorio and Singh,

because the BIA reasonably found that petitioner

failed to establish that the militants had any concern

about his political opinions. See Pet. App. 17a.

Likewise, Sotelo-Aquije v. Slattery, 17 F.3d 33 (2d

Cir. 1994) (see Pet. 20-21), is distinguishable from this

case. In Sotelo-Aquije, the Second Circuit reversed

the BIA’s decision that a municipal council member

failed to prove a well-founded fear of persecution by a

guerrilla organization. The council member’s claim

was based on evidence that the guerrillas threatened

to harm him if he refused to resign from his post. The

BIA had held that the guerrillas targeted the

petitioner because of his status as a council member,

not because of his political beliefs. 17 F.3d at 37-38.

The Second Circuit set aside the BIA’s holding as

unsupported by substantial evidence, noting that the

holding was contradicted by the BIA’s own factual

finding that only those council members who actively

10

opposed the guerrilla group became targets of its

violence. Jd. at 37.

Here, petitioner, like other Indian Tamils, had

publicly advocated a unified Sri Lanka long before he

became an informant, apparently without provoking

threats from the terrorists. Indeed, he was a member

of the Ceylon Workers’ Congress, which strongly

opposes the formation of a separate Tamil state. Pet.

App. 2la. Thus, unlike in Sotelo-Aquije, nothing in

the record contradicted the BIA’s finding that it was

petitioner’s status as an informant, not his political

opinion, that caused him to be singled out for perse-

cution.

Finally, Rivas-Martinez v. INS, 997 F.2d 1143 (5th

Cir. 1993), and Perkovic v. INS, 33 F.3d 615 (6th Cir.

1994) (Pet. 19-22), are not inconsistent with the court

of appeals’ holding in this case. In Rivas-Martinez,

the Fifth Circuit held that the BIA erred in denying a

Salvadoran woman’s claim that she had a well-founded

fear of political persecution, based on her refusal to

assist a guerrilla organization. 997 F.2d at 1145-1146.

The sole basis for the BIA’s decision was that the

petitioner had never communicated her political views

directly to her persecutors; instead, she had offered a

“non-political * * * excuse” for her refusal to assist

the guerrillas, “in an effort to avoid * * * antagoniz-

ing” them. Jd. at 1147. The Fifth Circuit held that

remand was necessary because the BIA had not made

a factual finding about the guerrillas’ motivation for

persecuting the petitioner, which could have been on

account of her political beliefs despite her attempt to

hide those beliefs. Jd. at 1146. In contrast, the BIA

explicitly found in the instant case that the militant

Tamils were not motivated by their disagreement

with petitioner’s political beliefs, but instead were

11

interested in petitioner only because he was a

perceived informer. Pet. App. 29a.

Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994), is also

inapposite. In Perkovic, the petitioners demonstrated

that they had a well-founded fear that they would be

persecuted if they returned to Yugoslavia because

they had been active in promoting civil rights there

for ethnic Albanians. One of the petitioners had been

arrested, beaten, and interrogated about his political

activities, which had included public display of the

Albanian flag and of pro-Albanian posters. Jd. at 616-

617. His sister, the other petitioner, had been arrest-

ed after police found an Albanian flag and cassette

recordings of Albanian ethnic music in her room. /d.

at 617. The evidence presented in Perkovic clearly

established that the petitioners were targeted on

account of their political opinion. Here, however,

petitioner did not present any evidence that he was

interrogated or threatened due to his political

opinion; instead, the threats against petitioner’s life

followed confrontations about his activities as an

informant. In any event, any tension between the

Sixth Circuit’s decision in this case and its prior

decision in Perkovic would not warrant review by

this Court. Wisniewski v. United States, 353 U.S. 901

(1957).

Far from demonstrating “a profound confusion

about what this Court enunciated in INS v. Elias-

Zacarias” (Pet. 23), the cases cited by petitioner

show that the lower courts uniformly have required

the BIA to consider evidence of the persecutor’s

motivation when evaluating whether threatened

persecution is “on account of * * * _ political

opinion.” In the instant case, the Sixth Circuit de-

nied releif because the evidence petitioner presented

12

did not justify reversal under the deferential standard

of review required by Elias-Zacarias, not because of

any legal controversy over the definition of “refugee.”

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREW S. DAYS, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

RICHARD M. EVANS

TERRI J. LAVI

Attorneys

FEBRUARY 1996