Shukoor v. Rogers, CV 95-6545-RSWL(RC).
| Decision Date | 06 February 1997 |
| Docket Number | No. CV 95-6545-RSWL(RC).,CV 95-6545-RSWL(RC). |
| Citation | 954 F.Supp. 1415 |
| Court | U.S. District Court — Central District of California |
| Parties | Jainulabdeen Abdul SHUKOOR aka Asurumunige Shatha Kitshiri De Silva, Petitioner, v. Richard K. ROGERS, District Director, Immigration and Naturalization Service, Respondents. |
Stuart I. Folinsky, Law Offices of Judith L. Wood, Los Angeles, CA, for petitioner.
Katherine M. Hikida, Assistant U.S. Attorney, United States Attorney's Office, Los Angeles, CA, for respondents.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of the United States Magistrate Judge, and has made a de novo determination.
IT IS ORDERED that (1) the Report and Recommendation is approved and adopted; (2) Judgment shall be entered granting the petition and remanding the case to the Board of Immigration Appeals for further proceedings in accordance with this Report and Recommendation; and (3) the execution of the order of exclusion against petitioner shall be stayed pending completion of administrative proceedings on remand, and any further consideration by this Court.
IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on petitioner and counsel for respondents.
This Report and Recommendation is submitted to the Honorable Ronald S.W. Lew, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.
On September 29, 1995, petitioner Jainulabdeen Abdul Shukoor, whose true name is Asurumunige Shatha Kitshiri De Silva (Administrative Record ("AR") 99), filed the instant habeas corpus petition seeking judicial review of the decision of the Board of Immigration Appeals (BIA) denying petitioner's application for asylum and excluding him from the United States. 8 U.S.C. § 1105a(b). The petitioner challenges the BIA decision, arguing that the BIA applied an erroneous legal standard and that he has established a claim for asylum based on past governmental persecution of him for an imputed political opinion. On January 5, 1996, the petitioner filed a brief in support of his petition for habeas corpus. The respondent filed a return on February 5, 1996, and the petitioner's traverse was filed on February 20, 1996.
The petitioner was born in Etul Kotte, Sri Lanka, on May 4, 1966. AR 306. He is an ethnic Sinhalese. Id. The petitioner was a businessman in Sri Lanka, where he and his father owned an automobile dealership and two rubber plantations. AR 165-66, 306. The petitioner was "arrested" on April 26, 1989, by the Sri Lankan army, an arm of the Sri Lankan government. AR 311. Previously, the Janata Vimukti Peramuna (JVP) or People's Liberation Front, a militant Sinhalese group dedicated to the overthrow of the Sri Lankan government, had made repeated demands of petitioner for money, and in February or March 1989, the petitioner gave the JVP approximately $40,000.00. AR 149, 151. The petitioner gave the JVP money because they had threatened his life and the lives of his family; they had also killed several friends and acquaintances in the area. AR 309.
During his "arrest," the petitioner was taken before several Sri Lankan army officers, who asked him about his JVP activities, and whether any of his family members were JVP supporters. AR 311. The army officers also accused the petitioner of being a JVP member. Id. When the petitioner denied this allegation, he was deemed to be lying and was beaten with a baton and a rubber hose until he became unconscious. AR 311-12. At the administrative hearing, the petitioner described this ordeal, as follows:
I told [the army officers] that I am a businessman and that there were threats of killing me by the JVP and that I was hiding from them. They never believed what I said and they said that I was hiding because I am a JVP member and also that I had been supporting them. I tried my best to convince them, but my efforts were in vain. They said again that they did not believe what I said and that they did not care of anything. Only thing they said was that they are killing everybody who supports the JVP.
AR 312. The petitioner was released four days later after a member of Parliament contacted by the petitioner's father interceded on petitioner's behalf. AR 312-13.
In 1987, as a result of a bloody civil war involving the ethnic Tamil minority in northeast Sri Lanka, and the ethnic Sinhala majority in southern Sri Lanka, Indian troops arrived in Sri Lanka, ostensibly to keep the peace and to protect the Tamils from the Sinhala. AR 265. In response to the arrival of the Indian troops, the JVP, a "totalitarian revolutionary group whose goals and methods have been compared to those of Pol Pot's Khymer Rouge in Camobodia," was formed. Id. The JVP dedicated itself to the violent overthrow of the Sri Lankan government and the expulsion of the Indian troops. Id. To do this, the JVP resorted to extreme forms of terrorism. AR 265, 300. In response, governmental (military and police) death squads were formed, which were sent into JVP areas, and told to do what was necessary to defeat the enemy. AR 265. These death squads responded in kind, slaying those they suspected were JVP members. AR 265, 300, 303, 400, 404, 413. It is estimated that between 25,000 and 60,000 boys and men were "disappeared" by the governmental death squads between 1989 and 1990. AR 265. Amnesty International has described as "grave" the human rights violations in Sri Lanka during this period by both the Sri Lankan security forces in the south (where petitioner lived) and the Indian peacekeepers in the northeast. AR 362-388. These grave human rights violations included arbitrary arrest and detention without trial, torture, deaths in custody, "disappearances" and extrajudicial killings. AR 362. Specifically, as in petitioner's case, the armed governmental death squads arrested and tortured, without charge or trial, thousands of people suspected of having links with the JVP. AR 367-69, 371-75.
The petitioner is a native and citizen of Sri Lanka, who arrived in the United States on November 4, 1989, and applied for asylum on December 20, 1989. AR 468, 471, 474.
An administrative hearing was held before Immigration Judge ("IJ") Lauren R. Mathon on May 23 and 24, 1991. On June 3, 1991, the IJ found the petitioner excludable from the United States under the following provisions of the Immigration and Nationality Act ("Act"): Section 212(a)(14)1 (); Section 212(a)(19)2 (); and Section 212(a)(20)3 (). AR 74. In reaching these conclusions, the IJ found that the petitioner was not a credible witness.4 The IJ made no findings regarding petitioner's claim of past persecution. The IJ did find, however, that petitioner was not eligible for asylum in that he "has not shown that a reasonable person in his position would have a well-founded fear of [future] persecution from anyone ... in Sri Lanka which the government is either unable or unwilling to control, for any of the five grounds specified in the Act." AR 83.
The petitioner appealed the IJ's decision to the BIA, which affirmed the IJ's decision to deny the petitioner's application for asylum and exclude him, finding that the petitioner "ha[d] not established past persecution or satisfied the well-founded fear [of future persecution] standard of eligibility required for asylum under section 208 of the Act." AR 2-3. The BIA found unconvincing the petitioner's claim that he was persecuted by the JVP because he was active in Sri Lanka's ruling party, the United National Party (UNP). AR 3. The BIA further determined that, considering the petitioner was a prominent businessman and landowner, the JVP's extortion of money from him was not to punish him for any political activity but to acquire needed financial resources. Id. The BIA also found that the petitioner had not shown that the JVP, which was targeted by a governmental anti-terrorist campaign, was any longer a viable terrorist threat in Sri Lanka. Id. These holdings are not challenged by the petitioner.
The BIA further determined that the petitioner had not shown that his April 26, 1989 arrest by the Sri Lankan army was based on his political opinion. AR 4. Specifically, the BIA found that the Sri Lankan government had "the legitimate right to investigate to determine the extent of the [petitioner's] knowledge of and participation in terrorist activities" since petitioner had given, albeit unwillingly, a large sum of money to a group opposing the government. Id. The BIA also found it noteworthy that the petitioner was released "after only 4 days when a member of parliament" interceded on his behalf. Id. The BIA concluded that the arrest and torture of petitioner, thus, was not based on the petitioner's political opinion. Id. Because the petitioner failed to establish grounds for asylum, the BIA found he also failed to meet the higher burden of proof for showing eligibility for withholding of deportation. Id. The petitioner challenges the BIA's findings regarding his past persecution by the Sri Lankan government for his imputed political opinion.
A final order of exclusion5 may be reviewed judicially only in a habeas corpus proceeding. 8 U.S.C. § 1105a(b); El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742, 746 (9th Cir....
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