In re S-P-
| Decision Date | 18 June 1996 |
| Docket Number | Interim Decision No. 3287.,File A72 971 091. |
| Citation | 21 I&N Dec. 486 |
| Parties | In re S-P-, Applicant. |
| Court | U.S. DOJ Board of Immigration Appeals |
BEFORE: Board En Banc: SCHMIDT, Chairman; HOLMES, HURWITZ, VILLAGELIU, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Concurring Opinion: FILPPU, Board Member, joined by DUNNE, Vice Chairman, HEILMAN, and COLE, Board Members. Dissenting Opinion: VACCA, Board Member.
GUENDELSBERGER, Board Member.
In a decision dated April 3, 1995, an Immigration Judge found the applicant to be excludable as alleged and denied his requests for asylum and withholding of deportation pursuant to sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h)(1994). The applicant appealed the denial of asylum, arguing in part that the Immigration Judge abused her discretion.
On May 9, 1995, the Immigration and Naturalization Service filed a motion requesting summary dismissal of the appeal on the grounds that the Notice of Appeal lacked the required specificity and that the applicant had failed to file an appellate brief. Meanwhile, on May 5, 1995, the applicant timely filed an appellate brief which more clearly specified the reasons for his appeal. The Service submitted a late brief on December 4, 1995. The Service's motion for summary dismissal is denied. The applicant's appeal is sustained.
The applicant is a 34-year-old Sri Lankan national of Tamil ethnicity. He was a welder by trade and had his own welding shop for several years. In November 1993, the applicant and his wife relocated to a Red Cross refugee camp near Elali in northern Sri Lanka. The Liberation Tigers of Tamil Eelam ("LTTE" or "Tigers") took the applicant from the refugee camp and forced him to work for them as a welder in one of their base camps near Elali. There were about 30 others in this camp who, like the applicant, were forced to work for the Tigers. These workers were taken to various work sites during the day and brought back to the Tigers' camp in the evening. The applicant testified that he was not mistreated by the Tigers, but that he was watched at all times and believed he would be severely punished were he to attempt an escape.
In March 1994, the applicant was in the Tigers' camp when it was raided by the Sri Lankan Army. The applicant hid in a bunker during the attack which lasted about 3 hours. When he emerged, he was surrounded by 50 to 60 Sri Lankan soldiers. The soldiers accused him of being a Tiger and took him and 12 other conscripted workers captured with him to the Sri Lankan Army camp in Elali. At that camp, he and the 12 other workers were kicked and beaten with plastic pipes and gun butts.
Two days after he was captured, the applicant and the 12 other workers were taken by ship to Magazine Army Prison in Colombo. In Colombo, the applicant was asked questions and his answers were written down. He then signed a document written in Sinhala, a language he can speak but cannot read.
The applicant was held by the Army in the Colombo prison for 6 months, from March 25 to September 18, 1994, during which time he was mistreated during at least eight sessions. On one occasion, he was placed in a room with burning chilies which caused choking and smoke inhalation. On other occasions, he was threatened with guns by drunken soldiers, tied up, and beaten. On four occasions the barrel of a gun was held to his head and he was told that if he did not tell the truth he would be killed. At various times, his head was repeatedly dunked in a bucket of water.
The abuses described above occurred both during periods of interrogation and during periods when no interrogation took place, i.e., after attacks by the Tigers upon army positions, and when army officers had been drinking. During such sessions, the applicant was repeatedly accused of being a Tiger.
On September 18, 1994, the applicant was released after his uncle paid a bribe to a guard. After his release, the applicant went to his uncle's house in Colombo, where he stayed for 8 days. During that 8 days, he only left his uncle's house two times to go to the temple.
On September 26, 1994, three policemen came looking for the applicant at his uncle's house. The applicant's uncle told the policemen that the applicant had returned to his own home. After this incident, the applicant moved to the house of a friend of his uncle, where he remained until leaving Sri Lanka on December 19, 1994. During this time, the applicant contacted a brother who arranged for an agent to meet him in Colombo. The applicant's father-in-law brought him his passport. The applicant gave his passport to his agent at a hotel on October 12 or 13, 1994.
On December 19, 1994, the applicant's agent flew with him to Singapore, where the applicant remained for 6 days. On December 25, 1994, the applicant flew from Singapore to San Francisco, stopping for an hour in Hong Kong. The applicant was detained by Service officers when he arrived at San Francisco because he did not have valid entry documents.
Although the Immigration Judge found the applicant to be credible, she concluded that the abuse of the applicant by Sri Lankan army personnel "did not rise to the level of persecution contemplated by" the Act. Subsequent portions of the decision indicate that the Immigration Judge, in denying asylum, was not concerned with the level of harm1 but with the requirement that the motive for the persecution be "on account of" one of the five grounds set forth in the definition of "refugee" in section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994). The Immigration Judge ultimately concluded that the motive for the abuse inflicted upon the applicant was the "ongoing civil strife in Sri Lanka" and, therefore, was not on account of a ground protected by the asylum law.
The issue is whether the applicant in this case has demonstrated that the physical and mental torture he endured was inflicted because of political views imputed to him after he had been detained as a suspected Tamil Tiger and, therefore, was "persecution ... on account of political opinion" under the definition of "refugee" in section 101(a)(42)(A) of the Act.
An applicant for asylum bears the burden of establishing that he or she meets the "refugee" definition of section 101(a)(42)(A) of the Act. In meeting this burden, an asylum applicant must do more than simply show that he or she was harmed or has a well-founded fear of being harmed. An applicant must demonstrate that the harm was or would be inflicted "on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 101(a)(42)(A) of the Act. Harm arising from general conditions of strife, for example, is not persecution on account of one of the grounds protected under the Act.
Persecution for "imputed" grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the "refugee" definition. Matter of A-G-, 19 I&N Dec. 502, 507 (BIA 1987). Notably, the United Nations Handbook on Refugees recognizes that persecution based on political opinion may include situations in which "such opinions have come to the notice of the authorities or are attributed by them to the applicant." Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para. 80, at 19 (Geneva 1979) (emphasis added).
Persecutors may have differing motives for engaging in acts of persecution, some tied to reasons protected under the Act and others not. Proving the actual, exact reason for persecution or feared persecution may be impossible in many cases. An asylum applicant is not obliged to show conclusively why persecution has occurred or may occur. Such a rigorous standard would largely render nugatory the Supreme Court's decision in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), and would be inconsistent with the "well-founded fear" standard embodied in the "refugee" definition.
The Board, recognizing the "well-founded fear" standard and the fact that an applicant for asylum may well face difficulty in showing the exact motivation...
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