Matter of K---- S----
| Decision Date | 05 October 1993 |
| Docket Number | A-29810907,Interim Decision Number 3209 |
| Citation | 20 I&N Dec. 715 |
| Parties | MATTER OF K---- S---- In Exclusion Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision rendered on February 2, 1993, the immigration judge found the applicant excludable pursuant to the grounds set forth above.1 Furthermore, the immigration judge denied his petitions for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1988), and withholding of exclusion and deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1988 and Supp. IV 1992), and ordered him excluded and deported from the United States. The applicant, through counsel, has appealed from that decision, but only with respect to the denial of relief from exclusion and deportation. For its part, the Immigration and Naturalization Service contends that the decision of the immigration judge is correct. The appeal will be dismissed.
The record reflects that the applicant is a 26-year-old native and citizen of India, who raised a persecution claim with respect to the authorities as well as an extremist faction in that country. In particular, he related that he is a Sikh from the state of Punjab who lived with his family. He testified that he worked as a farmer and as an automotive electrician. The applicant explained that he also performed various duties at a local Sikh temple, including distributing food, making repairs, and cleaning. He advised that while he believed in the creation of an independent Sikh state, i.e., Khalistan, he was not politically active.
According to the applicant, armed Sikh militants began to visit his family home in 1987. He recalled that they demanded entrance upon pain of death and informed him that if he could not otherwise support their struggle for Khalistan, he should at least provide them with food. He declared that he complied with their demand out of fear. The applicant recounted the militants' warning that they would return periodically and that he should not report their presence to the authorities. He testified that while he was aware of government notices requiring citizens to disclose such contact, he feared retaliation.
The applicant indicated that the terrorists continued to call on him until finally, after some 4 to 5 months, he was arrested by the Punjab police. He noted that he had been implicated by one of the militants who had run afoul of the authorities. The applicant advised that he was held for 6 days and interrogated under torture. He recalled that he was questioned about the extremists, whether he belonged to their group, and why he had not reported them. He stated that he eventually was released due to the intervention of his father and the village leader. He observed that he required medical treatment because of the abuse that he suffered.
The applicant declared that during the following months, both the militants and the police repeatedly visited his family home. He related that the police would come by day, while the militants would arrive at night. He advised that due to his fear of harm from both groups, he stopped sleeping at home and kept a constant watch during the day. The applicant stated that in 1988, he visited an agent in Delhi to assist him in leaving India. He explained that he could not relocate to another state within the country because the danger was omnipresent and the police could find him anywhere. He indicated that he worked for 2 years to amass the fee required by the agent. He testified that he departed India in November 1990 and travelled to the United States, where he had a lawful permanent resident sister.
The applicant noted that following his arrival in this country, his family informed him that a second member of the militant group had been apprehended by the authorities. He declared that the police apparently learned of his continued contact with the terrorists and warned his family to report his return.2
In addition to his own testimony, the applicant offered personal and background documentation in support of his persecution claim. This material included a letter from his village leader generally corroborating his story. He also submitted reports by the Department of State and Amnesty International which discussed the human rights situation in India, including abuses by the security forces in Punjab. The record also contains an advisory opinion issued by the Department of State's Bureau of Human Rights and Humanitarian Affairs ("BHRHA").
At the conclusion of the hearing, the immigration judge denied the applicant's petitions for asylum and withholding relief. Specifically, she determined that the applicant had failed to establish past persecution or the requisite fear of future persecution within the meaning of the Act. On appeal, the applicant contests the immigration judge's holding. He asserts, inter alia, that the facts of his case are identical to those in Singh v. Ilchert, 801 F. Supp. 313 (N.D. Cal. 1992), where the United States District Court for the Northern District of California found an Indian Sikh from Punjab eligible for asylum. Consequently, he argues that the Board must apply the reasoning of the district court in his case. In response, the Service concedes that this matter arises within the jurisdiction of the Singh court. It contends, however, that the Board is not bound by the decision of a district court in such a situation. Instead, the Service maintains that the applicant's case is controlled by the Board's decision in Matter of R----, 20 I&N Dec. 621 (BIA 1992), remanded sub nom. Rana v. Moshorak, No. CV 93-0274 (C.D. Cal. July 15, 1993), which also involved the persecution claim of a Sikh from the state of Punjab in India.
As a primary matter, we acknowledge that pursuant to our own holding in Matter of Amado and Monteiro, 13 I&N Dec. 179, 181 (BIA 1969), the Board is bound to follow the ruling of a United States district court in matters arising within the same jurisdiction. Nevertheless, we conclude that the decision and its progeny3 represent an incorrect legal position. Consequently, we find it necessary to withdraw from those cases on this limited issue.
We point out that the holding in Matter of Amado and Monteiro, supra, was stated in a conclusory fashion without any supporting analysis or authority. Although we have held that published case law from a United States court of appeals must be followed within the same circuit, except in unusual circumstances, see, e.g., Matter of Anselmo, 20 I&N Dec. 25, 30-32 (BIA 1989), the issue of district court "precedent" is fundamentally different. In particular, we note that one panel of a circuit court is bound by the unappealed published decision of another panel unless and until the decision is modified by the en banc court. See, e.g., Ward v. City of San Jose, 967 F.2d 280, 283 (9th Cir. 1991); Centel Cable v. White Dev. Corp., 902 F.2d 905, 908-09 (11th Cir. 1990). By contrast, district court judges are not bound by the published decisions of their colleagues, even in the same district. See Starbuck v. City & Cty. of San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir. 1977); Lee v. China Airlines Ltd., 669 F. Supp. 979, 981 (C.D. Cal. 1987); In re Korean Airlines Disaster of Sept. 1, 1983, 664 F. Supp. 1478, 1480-81 (D.D.C. 1986); Charley's Taxi Radio Dispatch v. Sida of Hawaii, 562 F. Supp. 712, 716-17 (D. Haw. 1983), aff'd in part and rev'd in part on other grounds, 810 F.2d 869 (9th Cir. 1987); Indiana Nat. Corp. v. Rich, 554 F. Supp. 864, 867-68 (S.D. Ind. 1982), rev'd on other grounds, 712 F.2d 1180 (7th Cir. 1983); State Farm Mut. Auto Ins. Co. v. Bates, 542 F. Supp. 807, 816 (N.D. Ga. 1982); Hartley v. Sioux City and New Orleans Barge Lines, Inc., 247 F. Supp. 1015, 1018 (W.D. Pa. 1965), aff'd, 379 F.2d 354 (3d Cir. 1967); White v. Baltic Conveyor Co., 209 F. Supp. 716, 722 (D.N.J. 1962).
Moreover, the United States Supreme Court has made clear that the Federal Government is not restricted by the doctrine of "nonmutual collateral estoppel." See United States v. Mendoza, 464 U.S. 154 (1984). Specifically, pursuant to Mendoza, the Government's failure to appeal from the adverse decision of a lower federal court does not bar it per se from relitigating the same question in a subsequent case against a different party.4 The Court noted that there may be many reasons, besides acquiescence, as to why the Government might not seek further review in a particular case.5 Id. at 160-61.
If an agency of the Federal Government were required to follow the decision of a district court within that tribunal's jurisdiction, other judges from that same district would never have the opportunity to review the issue presented. See United States v. Mendoza, supra, at 160 (). While the reasoning underlying a...
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