Lwin v. I.N.S.

Decision Date15 May 1998
Docket NumberNo. 97-2490,97-2490
Citation144 F.3d 505
PartiesMya LWIN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Douglas P. Martin (argued), Altheimer & Gray, Chicago, IL, Sioban Albiol, Midwest Immigrant Rights Center, Chicago, IL, for Petitioner.

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Kristal A. Marlow, Michelle Gluck, Stephen W. Funk (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before ESCHBACH, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

Mya Lwin, a Burmese national, is the father of a student dissident who fled Burma in the wake of the military junta's crackdown on pro-democracy uprisings in 1988. Despite orders from the police that he report any contact with his son, Mya continued to maintain unauthorized communications with him, first when his son reached Thailand and later after his son made his way to the United States. Mya visited his son in the United States and then applied for political asylum and withholding of deportation. The Immigration Judge (IJ) denied Mya's application, and that decision was upheld by the Board of Immigration Appeals (BIA or Board). Mya contends that the BIA erred by holding that he did not establish either past persecution or a well-founded fear of future persecution on account of political opinion or membership in a particular social group. We affirm in part, and vacate and remand in part.

I. Procedural Background

Mya Lwin, now in his late fifties, entered the United States on a visitor's visa in February 1995 and overstayed. In August 1995, he applied pro se for asylum and withholding of deportation under §§ 208(a) and 243(h) of the Immigration and Nationality Act (INA). 8 U.S.C. §§ 1158(a) & 1253(h). Shortly afterwards, the Immigration and Naturalization Service initiated deportation proceedings against him under § 241(a)(1)(C)(I) of the INA. 8 U.S.C. § 1251(a)(1)(C)(I). Mya conceded deportability. With the help of counsel, Mya supplemented his asylum application with affidavits, as well as international human rights reports and news clippings documenting Burma's political conditions. In a supplemental statement, Mya clarified that his asylum claim was based on his well-founded fear of persecution due to (1) the political opinions of his son that would be imputed to him, and (2) his membership in a particular social group, namely, parents of Burmese student dissidents.

A hearing followed at which both Mya (whom the IJ found to be "basically credible") and his activist son, Thant Lwin, testified about the circumstances surrounding Mya's fear of persecution. In May 1996, the IJ denied Mya's requests for asylum and withholding of deportation. The IJ explained that Mya had failed to demonstrate that he was persecuted on account of any imputed political opinion. The IJ did not mention Mya's social group claim. Mya appealed to the BIA, which summarily affirmed.

II. Factual Background

Authoritarian military regimes have ruled Burma throughout most of Mya's adult life. From 1962 to 1988, a strong-arm general, Ne Win, presided over a repressive state that suppressed all forms of internal dissent or rebellion. In late 1987, an unpopular demonetization decree followed by episodes of police brutality incited massive, widespread protests led by university students. Throughout the spring of 1988, police clashed with protesters. Thant Lwin, a Rangoon University student, was one of the protesters. Thant gave speeches and organized demonstrations for the All-Burma Federation of Students' Union, the country's largest student organization.

In June 1988, police arrested Thant for participating in protests organized by Rangoon University students. Police interrogated him for two days, releasing him only after he promised not to participate in the movement or contact other demonstrators. Thant then went underground. For a time, he supplied reports to the British embassy about the demonstrations. But as the protests mounted and the political climate grew more chaotic, Thant began to fear reprisal for his activism. He fled into the jungles near the Thai border on September 16, 1988. On September 18, a military junta, the State Law and Order Restoration Council (SLORC), regained direct control over the government. 1 The following day, SLORC ordered a brutal crackdown on protesters that left hundreds of persons dead. Thant meanwhile escaped to Bangkok. In 1991, he was admitted into the United States as a refugee under § 207 of the INA. 8 U.S.C. § 1157.

After Thant's escape, military officials twice interrogated Mya and his wife about their son's whereabouts. The first interrogation occurred in November 1988, and the second in April 1990. Although Mya had already received letters from Thant stating that he was in Bangkok, Mya did not disclose his son's location. At the end of the second interrogation, Mya signed a statement promising to report any communication received from his son. Between 1988 and 1990, village and police officials searched the Lwins' home on three occasions.

Several years later, Thant, who ended up in Fort Wayne, Indiana, contacted his father and invited him to visit. Mya obtained a passport under the pretense of making a business trip, and traveled to Bangkok, where the American embassy helped arrange a visa for him to visit Thant in the United States. Mya arrived in the United States in February 1995.

After his arrival, Mya sent his wife a letter enclosing a photograph of himself, Thant, and Thant's newborn daughter. But the letter never arrived, so presumably the government authorities intercepted it. That was corroborated by the fact that police interrogated Mya's wife about the photograph. In a subsequent phone conversation, Mya's wife advised him to stay in the United States as long as he could. Because his wife refused to speak openly for fear that the telephones might be tapped, Mya understood her to warn him that returning to Burma was unsafe. Mya's wife continues to live in Rangoon with their other son and his family, and has not been arrested or subjected to any further questioning by the police.

As part of his asylum application, Mya also submitted evidence about Burma's mistreatment of other parents of student activists. He included an affidavit from a Rangoon University student organizer named Ba Kyaw, who asserted that he had been arrested in 1989 and imprisoned for four months before fleeing to the jungle on the Thai border. According to Kyaw, his father was arrested by SLORC and then sentenced to twelve years' imprisonment for attempting to contact him in 1990 by letter. Mya and Thant also testified at the hearing about other parents who had been arrested and imprisoned for not reporting communications with their activist children.

III. Analysis

This court reviews decisions of the BIA deferentially. We must uphold the Board's conclusion "if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105(a)(4); Angoucheva v. INS, 106 F.3d 781, 788 (7th Cir.1997). In a case such as this one, where the BIA summarily affirms an IJ's decision, we base our review on only the IJ's analysis. See Guentchev v. INS, 77 F.3d 1036, 1038 (7th Cir.1996). However, the BIA's summary affirmance of a flawed decision by an IJ may lead us to conclude that the BIA's decision is insufficient. See Draganova v. INS, 82 F.3d 716, 720 (7th Cir.1996).

In order to qualify for asylum, Mya must establish that he is unwilling to return to Burma "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); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). To show a well-founded fear, he must demonstrate both that the fear is genuine and that it is reasonable in light of the credible evidence. See Dobrican v. INS, 77 F.3d 164, 167 (7th Cir.1996).

A. Past Persecution

As an initial matter, we uphold the IJ's conclusion that Mya has failed to establish past persecution. Substantial evidence supports the IJ's finding that the events described by Mya--namely, being interrogated twice about the whereabouts of his son, having his home searched on three separate occasions, and being forced to sign an agreement to report his son's location if his son contacted him-"did not describe any conduct by the Burma military and/or police forces that would tend to indicate any unreasonableness." The incidents described by Mya are not sufficiently serious to rise to the level of persecution. See Borca v. INS, 77 F.3d 210, 215 (7th Cir.1996) (being interrogated twice, having dwelling searched twice, and receiving threatening phone calls did not rise beyond level of harassment).

B. Well-founded Fear of Persecution

We turn next to Mya's claim that he has a well-founded fear of persecution based upon either imputed political opinion or membership in a "particular social group," a group which he identifies as comprised of parents of Burmese student dissidents.

1. Imputed political opinion.

One way that an applicant can establish a "political opinion" under the INA is to show an imputed political opinion. An imputed political opinion is a political opinion attributed to the applicant by his persecutor. Meza-Manay v. INS, 139 F.3d 759, 763-64 (9th Cir.1998); Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir.1996); Ravindran v. INS, 976 F.2d 754, 760 (1st Cir.1992); Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1298 (11th Cir.1990). Mya claims that the government has singled him out for persecution because it mistakenly believes that he shares the same political opinions as his son.

The IJ found, correctly, that Mya's fears were "speculative in nature" and "not...

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