Adhiyappa v. I.N.S.
| Decision Date | 13 September 1995 |
| Docket Number | No. 94-3396,94-3396 |
| Citation | 58 F.3d 261 |
| Parties | Thiyagarajah ADHIYAPPA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Drew S. Diehl (argued and briefed), Firooz T. Namei, McKinney & Namei, Cincinnati, OH, for petitioner.
Francesco Isgro (argued and briefed), Richard M. Evans, Ellen Sue Shapiro, Donald Keener, U.S. Dept. of Justice, Immigration Litigation, Civ. Div., Washington, DC, Edmund A. Sargus, Jr., U.S. Atty., Office of the U.S. Atty., Columbus, OH, for respondent.
Before: KENNEDY and DAUGHTREY, Circuit Judges; CLELAND, District Judge. *
CLELAND, D.J., delivered the opinion of the court, in which KENNEDY, J., joined. DAUGHTREY, J. (pp. 268-70), delivered a separate dissenting opinion.
Thiyagarajah Adhiyappa ("Petitioner") seeks review, pursuant to 8 U.S.C. Sec. 1105a(a), of a final order of deportation issued by the Board of Immigration Appeals. While conceding deportability under 8 U.S.C. Sec. 1251(a)(4) 1, which permits deportation of an alien who is convicted of two crimes involving moral turpitude, Petitioner seeks asylum under 8 U.S.C. Sec. 1158(a), withholding of deportation pursuant to 8 U.S.C. Sec. 1253(h), and voluntary departure pursuant to 8 U.S.C. Sec. 1254(e). We deny the petition.
In order to prevail on his petition for asylum or withholding of deportation, Petitioner must show, inter alia, that he has a well-founded fear of persecution in Sri Lanka, his country of origin, on account of his political opinion, or that his life or freedom would be threatened in Sri Lanka on account of his political opinion. Accordingly, a short review of the history of Sri Lanka and its current political situation--neither of which was disputed by the parties--is appropriate. 2
Sri Lanka is a small island nation approximately 270 miles from north to south and approximately 140 miles from east to west. Formerly known as Ceylon, it is just off India's southeast coast. Approximately 74 percent of the population are Sinhalese; 12.5 percent Sri Lankan Tamils, who migrated to Sri Lanka from southern India many centuries ago; seven percent are Muslim; and 5.5 percent are Indian Tamils--more recent arrivals brought there by the British to work the tea estates in the central part of the country. Petitioner is an Indian Tamil.
Since its independence from Britain in 1948, the Sinhalese have been in power in Sri Lanka. Sinhalese has been made Sri Lanka's official language and Buddhism its religion. Sinhalese receive preference in hiring for the civil service and university admissions. Indian Tamils, on the other hand, are a disadvantaged group in Sri Lanka; they are both exploited and ignored--the untouchables of Sri Lanka. Petitioner's status as an Indian Tamil is stated on his birth certificate and, because of that status, he was not given Sri Lankan citizenship until he turned 25 years old. The Sri Lankan Tamils fall in between the Sinhalese and the Indian Tamils on the social scale in Sri Lanka.
Since it became independent from Britain, Sri Lanka has been rocked by political, religious, cultural, and ethnic violence. A major area of contention has been the proposal that part of the island be established as a separate Tamil nation controlled by the Sri Lankan Tamils. The separate state would include approximately one-third of the country in the north and east. Sri Lankans Tamils generally favor this proposal, while Sinhalese and Indian Tamils generally oppose it. Petitioner strongly opposes the creation of a separate Tamil nation.
Petitioner earned a graduate degree in geography from the University of Peradeniya, and, in September 1980, he obtained a position as a geography instructor at Jaffna University in Sri Lanka. In March 1981, the chancellor of the university asked Petitioner to be an assistant student advisor, and Petitioner accepted the position. His duties included advising freshmen students; observing Sri Lankan Tamil student group activities at the campus and attempting to prevent terrorist activities; and cooperating with Sri Lankan security forces' investigations of student activities. In short, part of his job was to inform university and government officials about Sri Lankan Tamil student activists who were taking action to pressure the government to create a separate Tamil nation. He performed this role until 1983. Petitioner also encouraged students not to get involved in Sri Lankan Tamil terrorist organizations.
Petitioner testified at his hearing that members of militant separatist groups would come to his house, which he shared with other instructors, call him a traitor, and threaten to kill him if he continued to provide names to the authorities. (Joint Appendix 14-15). Because Petitioner was on the side of the government, he felt some protection from the separatists. However, the government's control over northern Sri Lanka began to erode, and its ability to check the terrorists began to recede. In 1983, Petitioner began to fear for his life. Around this time, the court system ceased operating because of the terrorists' threats to the judges and others. As a result of this situation, Petitioner fled to the United States in August 1983. One of his colleagues, a lawyer who represented the Jaffna area in the national parliament, fled to India about the same time. When that colleague returned to Sri Lanka in 1986, though, he was assassinated. Petitioner's colleague was one of many people deemed by the militants as traitors and killed. Petitioner asserts that he fears a similar fate if forced to return to Sri Lanka.
Subsequent to Petitioner's flight to the United States, there have been movements toward peace in Sri Lanka, but those efforts have been, for the most part, unsuccessful. Tamil separatist organizations operate openly throughout the northern and eastern sections of the country, in areas not controlled by the Sinhalese government. Though provisional governments have been elected, the terrorist organizations continue to operate in opposition to the government. Petitioner testified at his hearing before the immigration judge that the Tamil terrorist organizations "control everything." (Joint Appendix 150).
Petitioner has lived in Cincinnati, Ohio with his wife since entering the United States with student visas in 1983. He is 41 years old. On April 14, 1987 and on February 28, 1989, he was convicted of theft offenses. On the first occasion, he pleaded no contest to a charge that he had placed one transistor battery in his pocket while shopping for groceries; on the second occasion, he pleaded no contest to a charge that he transferred the price tag from one television set to a similar one which did not have a price tag.
Respondent Immigration and Naturalization Service ("INS") commenced immigration proceedings against Petitioner in 1989 pursuant to 8 U.S.C. Sec. 1251(a)(4), which provides authority for the Attorney General to deport any alien who, at any time after entry into the United States, is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct. In the deportation proceedings and before this court, Petitioner conceded deportability on the basis of his two misdemeanor convictions but sought asylum pursuant to 8 U.S.C. Sec. 1158(a), withholding of deportation pursuant to 8 U.S.C. Sec. 1253(h), and voluntary departure pursuant to 8 U.S.C. Sec. 1254(e).
In a July 10, 1989 hearing, the immigration judge denied Petitioner's request for voluntary departure on the ground that Petitioner falls within the class of persons statutorily ineligible for voluntary departure, aliens who have been convicted of two crimes involving moral turpitude. Petitioner does not press for the voluntary departure relief before this court.
The immigration judge conducted another hearing on December 11, 1989, to consider the requests for asylum and withholding of deportation. At the conclusion of the hearing, the immigration judge issued an oral decision in which he found Petitioner to be deportable and denied each of the applications for relief. (See Joint Appendix, 92-97). To qualify for asylum, Petitioner must show that he is a
person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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. Sec. 1101(a)(42)(A). See also, 8 U.S.C. Sec. 1158(a). The applicable standard for withholding of deportation is similar to the standard for asylum but provides less discretion to the attorney general in deciding whether or not to deport. 8 U.S.C. Sec. 1253(h) provides:
(h)(1) The Attorney General shall not deport or return any alien (other than an alien described in section 241(a)(19)) 3 to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.
The immigration judge concluded that Petitioner does have a political opinion, but that he had not provided sufficient evidence that his position (Joint Appendix 95-96). The immigration judge noted that there is civil unrest, but he concluded that Petitioner failed to show that there is...
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