Sivaainkaran v. I.N.S.

Decision Date17 August 1992
Docket NumberNo. 91-2728,91-2728
PartiesChelvadurai SIVAAINKARAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Peter J. Miller, Richard Stavins (argued), Robbins, Salomon, Wolf, Schlesinger & Miller, Chicago, Ill., for petitioner.

Ira H. Raphaelson, Asst. U.S. Atty., Office of U.S. Atty., Criminal Div., Chicago, Ill., Lori L. Scialabba, David V. Bernal, Charles E. Pazar (argued), Robert Kendall, Jr., Dept. of Justice, Office of Immigration Litigation, Richard L. Thornburg, U.S. Atty. Gen., Office of U.S., Atty. Gen., Washington, D.C., A.D. Moyer, Michael L. Harper, Samuel Der-Yeghiayan, I.N.S., Chicago, Ill., for respondent.

Before COFFEY, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Petitioner Chelvadurai Sivaainkaran asks us to set aside a decision by the Board of Immigration Appeals (BIA or Board) denying his application for asylum and withholding of deportation. 8 U.S.C. §§ 1158(a), 1153(h). For the reasons set forth in this opinion, we deny the petition for review.

I.

Sivaainkaran is a 30-year old citizen of Sri Lanka, an island nation off the coast of India which has been embroiled for decades in an ethno-religious conflict between the minority Tamils and the majority Sinhalese. See generally William McGowan, Only Man is Vile: The Tragedy of Sri Lanka (1992). Tamils comprise roughly 15% of the Sri Lankan population and are mostly Hindus; Sinhalese comprise roughly 74% of the population and are mostly Buddhists. Aside from their ethnic and religious differences, the Sinhalese and Tamils have distinct languages and customs and dominate different regions of the country.

Sri Lanka (formerly Ceylon) gained its independence from Great Britain in 1948 and has been led ever since by a Sinhalese-dominated government. To oversimplify the present-day conflict, the Sinhalese believe that under British colonialism the urbanized Tamil minority cornered too large a percentage of government and professional jobs. In response, they embarked on a campaign to level the playing field, through such as actions as adopting ethnic quotas for university admissions and government jobs, and establishing Sinhalese as the country's official language. The Tamils view this campaign as state-sponsored discrimination, and over time many have joined a militant Tamil movement whose members seek to establish an independent Tamil state. The government's response to civil unrest in Sri Lanka has been widely criticized by human rights groups.

Sivaainkaran, who is a Tamil and a Hindu, entered the United States in October 1984 on a visitor's visa. Just weeks before doing so, Sivaainkaran's family arranged his marriage to Sivagowri Arasaratnam, who remains behind in Sri Lanka. When his visitor's visa expired, Sivaainkaran applied for political asylum in the United States, claiming he feared persecution in his country. His request was denied and the Immigration and Naturalization Service (INS) subsequently issued an order in February 1986 to deport Sivaainkaran under § 241(a)(2) of the Immigration and Nationality Act (the Act). 8 U.S.C. § 1251(a)(2).

Sivaainkaran appeared before an immigration judge in April 1986, at which time he conceded his deportability but renewed his desire to seek asylum. The immigration judge continued the hearing to permit Sivaainkaran to renew his application for political asylum. After conducting a hearing on the merits of the application in June 1987, the judge denied Sivaainkaran's request for asylum and withholding of deportation. The BIA affirmed in June 1991, and this appeal followed.

II.

Political asylum is a two-step process. First, an alien must demonstrate that he meets the statutory definition of a "refugee," defined as one who is unable or unwilling to return to his or her country because of past 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); INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Carvajal-Munoz v. INS, 743 F.2d 562, 567-68 (7th Cir.1984). The asylum applicant bears the burden of proof on this issue. 8 C.F.R. § 208.5; Carvajal-Munoz, 743 F.2d at 572-73. If an applicant meets this definition, then the Attorney General has the discretion to grant asylum. 8 U.S.C. § 1158(a); Elias-Zacarias, --- U.S. at ----, 112 S.Ct. at 815; INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987); Kaczmarczyk v. INS, 933 F.2d 588, 593 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991).

The Board determined that Sivaainkaran did not meet the statutory definition of a "refugee." This is a factual determination, which we review under the substantial evidence test. Kaczmarczyk, 933 F.2d at 593. Under this highly deferential standard of review, we must uphold the Board's determination if it is "supported by reasonable, substantial, and probative evidence on the record as a whole," 8 U.S.C. § 1105a(a)(4), and may reverse only if the evidence is so "compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, --- U.S. at ----, 112 S.Ct. at 817.

III.

Sivaainkaran makes two claims on appeal. He first contends that the Board erroneously applied an objective reasonableness standard, rather than a subjective standard, in determining whether he held a well-founded fear of persecution. 1 This contention lacks merit. The test for determining whether an asylum applicant holds a well-founded fear of persecution is comprised of both objective and subjective elements. An applicant must show not only a genuine, subjective fear of persecution, but that a reasonable person in the applicant's circumstances would fear persecution if returned to his or her native country. Zulbeari v. INS, 963 F.2d 999, 1000 (7th Cir.1992); Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991); Carvajal-Munoz, 743 F.2d at 573. This objective component of the test requires the applicant to "present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution." Zulbeari, 963 F.2d at 1000 (emphasis added); see also Balazoski, 932 F.2d at 641; Carvajal-Munoz, 743 F.2d at 573. Alternatively, Sivaainkaran maintains that even viewing his application objectively, the BIA erred in finding that he did not hold a well-founded fear of persecution. Sivaainkaran testified that he feared persecution in his homeland because of (1) several past encounters with Sri Lankan authorities, and (2) the general risk of persecution Tamils face in Sri Lanka.

Sivaainkaran's first run-in with the authorities occurred in 1984, when the police in his town, in retaliation for a rumored attack by Tamil guerrillas, allegedly blew up their own police station after first herding twenty-five Tamils inside. Guerrillas reacted, according to Sivaainkaran, by erecting street blockades in town in order to recover the victims of the blast without interference from authorities. One of those blockades rested in front of Sivaainkaran's house, which led soldiers to investigate there. His family had already evacuated town, but Sivaainkaran happened to have returned to collect some belongings when soldiers pounded on the front door; out of distrust, he fled out the back door. According to Sivaainkaran, the soldiers pursued him through a field and fired shots either at him or in the air. By hiding in some brush, he managed to escape the soldiers and a helicopter hovering overhead. Sivaainkaran, his mother, and his sister did not return to live in their ransacked home for nearly two months.

Sivaainkaran's second encounter with the authorities--which actually involved his relatives rather than him personally--occurred in July 1983 when his sister and brother-in-law were forced from their home in Colombo, Sri Lanka, by an angry Sinhalese mob. They lost many possessions and were forced to live in a refugee camp for several weeks. According to Sivaainkaran, his final encounter with authorities involved his wife, who lives with her family in the town of Tamali. He asserted that she could not leave home for fear government soldiers would detain or rape her, and that she could not work as a school teacher because civil strife had closed the schools in her community.

In addition to these specific encounters, Sivaainkaran maintained that he feared persecution simply because of the general risk of persecution Tamils face in Sri Lanka. In particular, he asserted that young, male Tamils--because of the higher frequency with which they engage in militant activities--have been singled out for persecution by authorities. To support this claim, Sivaainkaran presented voluminous reports from human rights groups and news organizations chronicling the civil war in Sri Lanka and the detention, torture, and killing of Tamil citizens by the government. The reports recount how the government imposed emergency measures to give authorities the power to arrest without warrant, to detain prisoners incommunicado, and to dispose of the bodies of victims of violent clashes without investigation. The documents show that human rights groups reported an escalation in government-sponsored violence, and recommended that foreign governments not deport Tamils to Sri Lanka against their will. Those reports also indicated that attacks by Tamil separatists have been followed by reprisal killings against innocent civilians and that there are large scale arrests of alleged suspects, most of whom are male Tamils between the ages of 15 and 30.

After reviewing these facts, the Board concluded that Sivaainkaran did not have a well-founded fear of persecution, observing that he had never been detained, arrested, or imprisoned, and that his one encounter with authorities did not...

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