Sangha v. I.N.S., 95-70427

• Decision Date: 09 January 1997
• Docket Number: No. 95-70427,95-70427
• Citation: 103 F.3d 1482
• Parties: 97 Cal. Daily Op. Serv. 242, 97 Daily Journal D.A.R. 387, 97 Daily Journal D.A.R. 459 Baljinder Singh SANGHA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1482

103 F.3d 1482

97 Cal. Daily Op. Serv. 242, 97 Daily Journal

D.A.R. 387,

97 Daily Journal D.A.R. 459

Baljinder Singh SANGHA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70427.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 10, 1996.

Decided Jan. 9, 1997.

Virender Kumar Goswami, Charles E. Nichol, San Francisco, CA, for petitioner.

Jeffrey J. Bernstein, United States Department of Justice, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A-72-142-329.

Before: GOODWIN, WALLACE, and RYMER, Circuit Judges.

GOODWIN, Circuit Judge:

Baljinder Singh Sangha, an Indian national, petitions for review of the decision of the Board of Immigration Appeals ("BIA"). The BIA found that Sangha failed to show that he was persecuted on account of his political opinion. The BIA had jurisdiction under 8 C.F.R. §§ 3.1(b)(2), 242.21. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). The petition is denied.

I. Facts

The facts in this case are not in dispute. Baljinder Singh Sangha, then fifteen years old, lived with his father, mother, and older brother on a farm in Punjab, India. He attended school and helped his father on the farm.

In June, 1991, Sangha's father, Gursewak Singh, joined the Akali Dal Langowal party, and in July he assumed a local leadership role. The Akali Dal party criticized the militants and terrorists then operating in the Punjab, and it promoted peaceful solutions to political problems. In August, 1991, Sangha's father gave a speech criticizing the Bhindrawala Tiger Force (BTF) for promoting violence in the Punjab. The BTF was an organization dedicated to the creation of a separate Sikh homeland, commonly known as Khalistan. Sangha testified that he himself was never a member of the Akali Dal party, "didn't know anything," but "supported his father" in his activities.

In September, 1991, four armed men forced their way into the Sangha home. They beat up Sangha's father until Sangha and his brother came to protect him. The men identified themselves as members of the BTF. They demanded that Sangha's father cease his political activities, pay them 100,000 rupees, and give over Sangha and his brother. They said they wanted the two brothers to fight for Khalistan and they wanted to make the brothers unavailable to support the father. They gave Sangha's father three weeks to comply.

Early the next morning, Sangha's whole family left for the neighboring state of Uttar Pradesh to stay away until the terrorists left. A month or two later, however, Sangha's father returned to the farm only to receive a letter from the BTF. This letter reiterated the BTF's demands and threatened to kill the Sangha family. Sangha's father thereupon returned to Uttar Pradesh and arranged for his two sons to leave India.

Sangha entered the United States illegally on January 29, 1992. When apprehended, he conceded deportability and applied for asylum or withholding of deportation based on his past persecution on account of political opinions. The immigration judge denied his application and ordered deportation. Sangha timely appealed to the BIA. The BIA affirmed the denial, and this petition ensued.

II. Statutory Requirements

Grants of asylum are governed by Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a). This section gives the Attorney General the discretion to grant asylum to aliens who qualify as "refugees." A "refugee" is defined as an alien who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987).

Sangha seeks asylum under the "persecution on account of ... political opinion" part of the section. In INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), the Supreme Court addressed this section in a case factually very similar to ours. Elias-Zacarias was recruited by guerillas, but refused to join. When the guerillas threatened, he fled to the United States, where the BIA refused asylum. Following the case law of our circuit, we reversed the BIA. In Elias-Zacarias the Supreme Court reversed.

In considering the availability of political asylum under this section, the Court narrowed our interpretations in three ways. First, to be eligible for asylum, the applicant must show the persecution occurred because of his own political opinion, and not because of the political opinions of his persecutor. " '[P]ersecution on account of ... political opinion' in § 101(a)(42) is persecution on account of the victim's political opinion, not the persecutor's." Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. at 816.

Second, the victim must prove causal connection. The Court required that the applicant establish by direct or circumstantial evidence that the persecution was "on account of" political opinion. Elias-Zacarias, 502 U.S. at 483, 112 S.Ct. at 816-17. Applicants can no longer establish that their persecution was "on account of" political opinion by inference, unless the inference is one that is clearly to be drawn from facts in evidence. That is, persecution on account of political opinion no longer can be inferred merely from acts of random violence by members of a village or political subdivision against their neighbors who may or may not have divergent religious or political views. Cf. Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.1985). Persecution by anti-government guerillas may no longer, from that fact alone, be presumed to be "on account of" political opinion. Cf. Arteaga v. INS, 836 F.2d 1227, 1231-32 (9th Cir.1988). The petitioner must prove something more than violence plus disparity of views.

Finally, the Court narrowed the scope of review of asylum decisions. The Court held that the BIA's determination that an applicant is not eligible for asylum "can be reversed only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815. The Court continued, "[t]o reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it." Id. at 481 n. 1, 112 S.Ct. at 815 n. 1.

We discuss Sangha's petition for asylum based on persecution on account of political opinion under the new standards set forth by Elias-Zacarias, as elaborated by our subsequent cases.

III. Standard of Review

In this case, we review for legal error the determination of the BIA that Sangha was not eligible for asylum. We review factual determinations of an applicant's statutory eligibility under a "substantial evidence" standard. Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815. To obtain reversal, petitioner must show that "the evidence not only supports that conclusion, but compels it." Id., at 481 n. 1, 112 S.Ct. at 815 n. 1.

IV. Burden of Proof

The applicant bears the burden of establishing his eligibility under the Act. 8 C.F.R. § 208.13(a); Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995). The applicant must establish his case by "credible, direct, and specific evidence" in the record. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995) (citation omitted). Because asylum cases are inherently difficult to prove, an applicant may establish his case through his own testimony alone. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir.1984).

V. Elements of Petitioner's Case

After Elias-Zacarias, an asylum seeker claiming to be a victim of persecution on account of his or her political opinion must establish, by evidence, four facts: (a) that he or she has been a victim of persecution; (b) that he or she holds a political opinion; (c) that this political opinion is known to or imputed by the persecutors; and (d) the ensuing persecution of the victim has been or will be on account of this opinion.

(a) Persecution

Sangha's testimony established that he suffered past persecution. "Persecution" means "the infliction of suffering or harm upon those who differ ... in a way regarded as offensive." Sagermark v. INS, 767 F.2d 645, 649 (9th Cir.1985), cert. denied, 476 U.S. 1171, 106 S.Ct. 2895, 90 L.Ed.2d 982 (1986) (quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969)). "Persecution" may be inflicted either by the government or by persons or organizations which the government is unable or unwilling to control. McMullen v. INS, 658 F.2d 1312, 1315 (9th Cir.1981). Sangha's father suffered violence, Sangha suffered threats of violence.

The BTF is a terrorist group the government is unable to control. The BTF wanted to recruit Sangha and threatened him with death. These BTF actions are sufficient to show persecution under the Act. See Arteaga, 836 F.2d at 1232 ("Forced recruitment by a revolutionary army is tantamount to kidnapping, and is therefore persecution.")

(b) Political Opinion

Sangha must next establish that in 1991-92 he had a political opinion. A number of our asylum cases decided before 1992 broadly defining persecution on account of political opinion, based on the political opinion of the persecutors, have been weakened by Elias-Zacarias. See, e.g., Mendoza Perez v. INS, 902 F.2d 760, 762 (9th Cir.1990); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988); Arteaga, 836 F.2d at 1232 n. 8; Zayas-Marini v. INS, 785 F.2d 801, 806 (9th Cir.1986); Hernandez-Ortiz, 777 F.2d at 516.

Since Elias-Zacarias, our cases have instead focused on the political opinions of the victims. Under our case law, and unchanged by Elias-Zacarias, an applicant can establish his political opinion on the basis of his own affirmative political views, his political neutrality, or a political opinion imputed to him by his...