Ravindran v. I.N.S.

Decision Date06 May 1992
Docket NumberNo. 91-2055,91-2055
Citation976 F.2d 754
PartiesValli Kandiah RAVINDRAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
CourtU.S. Court of Appeals — First Circuit

Gerald D. Wall, Greater Boston Legal Services, Boston, Mass., with whom Miriam Kelliher, Somerville, Mass., was on brief for petitioner.

Charles E. Hamilton, III, Office of Immigration Litigation, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Civil Div., and David J. Kline, Asst. Director, Office of Immigration Litigation, Washington, D.C., were on brief for respondent.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and PETTINE, * Senior District Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Petitioner Valli Kandiah Ravindran, a citizen of Sri Lanka, petitions for review of an order of the Board of Immigration Appeals which denied his request for political asylum and withholding of deportation. We have jurisdiction to hear his appeal pursuant to Section 106(a) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1105a(a). See Ipina v. I.N.S., 868 F.2d 511, 513 n. 5 (1st Cir.1989). Because substantial evidence supports the BIA's decision, we deny the petition for review.

I. BACKGROUND

Petitioner is a 26-year-old unmarried male native and citizen of Sri Lanka. The population of Sri Lanka is comprised mainly of two ethnic groups, the Sinhalese--Buddhists who constitute a majority of Sri Lankans and have controlled the national government since 1971--and the Tamils--Hindus who constitute only eighteen percent of the population and are subject to various forms of discrimination by the Sinhalese. During the 1980s, tensions between the two groups rose as Tamils pressed for autonomy in the northern and eastern provinces. Sri Lankan security forces have been accused of human rights abuses, including the torture and killing of ordinary citizens in their efforts to defeat militant Tamil groups, such as the Liberation Tigers of Tamil Eelam. Attempts by the Indian government to enforce a peace accord between the Sri Lankan government and the separatist Tamil groups appear only to have escalated the violence and further destabilized the political situation in Sri Lanka.

Petitioner is a member of the Tamil minority. In his application for asylum, he claimed that he fears persecution in Sri Lanka because of his political opinion. At his deportation hearings, petitioner pointed to two particular encounters with the authorities as evidence of past government persecution of him. In 1982, when he was seventeen, petitioner joined a political organization, the Non-Violent Direct Action Group ("the NVDAG"). He participated in various group activities, such as first aid training, but was not a leader of the group, nor was he ever stopped or questioned by authorities while passing out NVDAG pamphlets to his fellow students. In August, 1984, he helped the NVDAG organize a one-day hunger strike in a public square to protest recent killings of civilians by government forces. The strikers were not harassed or arrested during the meeting. On his way home later that evening, however, petitioner and two or three others were arrested by soldiers and taken to a prison. At his deportation hearings, petitioner testified that, at the time of his arrest, he was on the streets after the local 5:00 p.m. curfew. Petitioner was detained at the prison for three days, where he was interrogated and hit by soldiers. Upon his release, one of the prison authorities told him to avoid political activities. Petitioner offered no evidence to elaborate on this statement, to explain the nature of the interrogation, nor to describe whether he was injured by the soldiers.

In a separate incident, soldiers shot at and chased a group of people from the street, including petitioner. The soldiers caught petitioner, but released him after he identified himself as a student. Petitioner testified that the authorities did not know he was a member of the NVDAG at the time of either incident.

Petitioner also presented evidence about other incidents which affected his family in particular and Tamils in general. For example, he witnessed acts of random violence by soldiers against civilians. His brother-in-law was wounded when soldiers fired into a crowd of Tamils. His uncle was imprisoned for one year and his uncle's house was destroyed in apparent punishment for the uncle's activities in the Tamil United Liberation Front, a political party which advocated a separate Tamil state. Petitioner's family's house was searched twice in the years he lived there; he testified, without elaboration, that during one search the soldiers "were looking for me, but I could not be found."

In November, 1985, more than one year after his three-day detention, petitioner flew to Bogota, Columbia, where he signed onto a Greek ship as a crewman. He had obtained a Sri Lankan passport and exit visa without trouble. Petitioner worked on the ship for five months on its shipping runs between North and South America, going ashore in Venezuela, Uruguay, Colombia, Brazil and Puerto Rico. He never asked for asylum in any of these ports. He left the ship permanently in Boston on April 28, 1986, because of fights with and threats by other Sri Lankan crewmen who were Sinhalese. The Immigration and Naturalization Service ("the I.N.S.") authorized him to enter the United States on a 29-day transit visa. Petitioner lived and worked in the Boston area until October, 1986, when he was arrested for shoplifting. After being notified, the I.N.S. served petitioner with an order to show cause why he should not be deported. Petitioner never applied for, nor asked U.S. officials about, asylum until after he was served with the show cause order.

At the show cause hearing, petitioner conceded deportability, but requested asylum and withholding of deportation. At a series of seven hearings spanning two years before an Immigration Judge, petitioner presented testimony and documentary evidence to support his request. On November 2, 1989, the Immigration Judge ruled that petitioner did not statutorily qualify for asylum under Section 208(a) of the Act, 8 U.S.C. § 1158(a), finding that his testimony was not credible, and, even if it were, he failed to establish that he had a "well-founded fear of persecution" because of his race, religion, nationality, membership in a particular social group, or political opinion. 1 The Immigration Judge also found that petitioner was not entitled to withholding of deportation under Section 243(h) of the Act, 8 U.S.C. § 1253(h), because he failed to show a clear probability that his life or freedom would be threatened if he were deported. 2 The Immigration Judge did grant petitioner's request for voluntary departure within three months in lieu of deportation. The Board of Immigration Appeals ("the BIA"), after a de novo review of the record, agreed with the Immigration Judge's decision and dismissed petitioner's appeal on July 26, 1991. 3 The BIA also revised the voluntary departure period to thirty days. Petitioner filed a timely petition for review to this court.

II. DISCUSSION
A. Eligibility for Asylum

As one of his arguments before us, petitioner asserts that the BIA erred in not granting him political asylum. According to petitioner, the record is without substantial evidence to support the BIA's finding that he was statutorily ineligible for asylum.

1. Applicable Law

An alien may be granted asylum in the discretion of the Attorney General if the alien is a "refugee." See 8 U.S.C. § 1158(a). "Refugee" is defined, in relevant part, as any alien who is unwilling or unable to return to his 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." 8 U.S.C. § 1101(a)(42)(A). Petitioner bears the burden of proof. 8 C.F.R. § 242.17(c)(4)(iii); Alvarez-Flores v. I.N.S., 909 F.2d 1, 3 (1st Cir.1990). Finding an alien to be a refugee does no more than establish that he may be granted asylum in the discretion of the Attorney General. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 443, 107 S.Ct. 1207, 1219, 94 L.Ed.2d 434 (1987).

A petitioner can establish that he is a refugee by showing either past persecution or a well-founded fear of persecution in the future on the basis of one of the enumerated grounds. See Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988). While the contours of the well-founded fear standard have not been precisely defined, see Ipina, 868 F.2d at 514 n. 6, it has both a subjective and objective component. See Alvarez-Flores, 909 F.2d at 5. The subjective component requires that the asserted fear be genuine. The objective component, on the other hand, contemplates that the applicant show " 'by credible, direct, and specific evidence, ... facts that would support a reasonable fear that the petitioner faces persecution.' " Alvarez-Flores, 909 F.2d at 5 (quoting Diaz-Escobar v. I.N.S., 782 F.2d 1488, 1492 (9th Cir.1986)). In contrast to the higher standard for the withholding of deportation, to qualify for asylum an alien is not required to prove that it is more likely than not that he will be persecuted. See Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. at 1222. The petitioner need show only that his fear is genuine and reasonable. Khalaf v. I.N.S., 909 F.2d 589, 591 (1st Cir.1990).

2. Standard of Review

Decisions of the BIA denying asylum are judicially reviewed in two steps. At the threshold, a court will affirm findings by the BIA that an applicant is not a refugee if there is substantial evidence to support that determination. See Alvarez-Flores, 909 F.2d at 3; Novoa-Umania v. I.N.S., 896 F.2d 1, 2 (1st Cir.1990). "Under this deferential standard, we may not reverse the Board simply because we disagree with its evaluation of the evidence; if the Board's conclusion is substantially...

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