Singh v. I.N.S.
| Decision Date | 22 January 1998 |
| Docket Number | No. 96-70930,96-70930 |
| Citation | 134 F.3d 962 |
| Parties | 98 Cal. Daily Op. Serv. 551, 98 Daily Journal D.A.R. 767 Brijmati SINGH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John M.A. Burgess and Suzanne B. Friedman, Law Office of John M.A. Burgess, San Francisco, California, for the petitioner.
F. Franklin Amanat and Ethan B. Kanter, United States Department of Justice, Washington, DC, for the respondent.
Petition for Review of a Decision of the Board of Immigration Appeals. INS No. A72-400-174.
Before: GOODWIN and T.G. NELSON, Circuit Judges, and RHOADES, * District Judge.
I. Overview
Petitioner Brijmati Singh, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals' denial of her application for asylum and withholding of deportation. For the reasons stated below, we deny the Petition.
II. Background
The population of Fiji is roughly evenly divided between ethnic Fijians (the majority of whom are Christian) and Fijians of Indian descent (most of whom are Hindu). Considerable racial and religious tension exists between these two groups. In 1987 the Fijian military, which consists largely of ethnic Fijians, overthrew the democratic government and established a regime that favors ethnic Fijians.
Petitioner is an Indo-Fijian of the Hindu faith. Her life in Fiji became difficult after the coup. All of her family members emigrated to Australia in the wake of the societal upheaval that the coup caused. 1 According to Petitioner, her Indo-Fijian neighbors fled their homes in order to avoid harassment at the hands of ethnic Fijians. This left Petitioner and her daughter as the only Indo-Fijians in their village.
Petitioner claims that "every night [her] house was stoned by the Fijian natives." (A.R. at 136.) Petitioner reported a stoning incident to the police, but by the time they arrived the perpetrators had departed and the police took no further action. In addition, Petitioner claims that ethnic Fijians loitered in her yard, vandalized her property, stole coconuts from her trees, and occasionally stole items from her garage. (Id. at 126.) Also, Petitioner claims that individuals burglarized her home on one occasion. Again, Petitioner alleges that the police took no action. All of these incidents took place in 1987 except for the burglary, which took place in 1989. (Id. at 25, 126.) 2
To escape this treatment, Petitioner sold her home at a loss and moved to an apartment located closer to her workplace and her daughter's school. Subsequently, some of her teenage daughter's Indo-Fijian schoolmates were raped, which caused Petitioner to fear for her daughter's safety. Petitioner contends that she escorted her daughter to school and that her daughter had to return from school in the company of others. Petitioner's daughter then would lock herself in the apartment until Petitioner arrived home. 3
In addition to these hardships, the new government banned Hindu religious gatherings. Many Hindu temples were destroyed, including Petitioner's. Also, in 1990 the government enacted a new constitution that guarantees political supremacy for ethnic Fijians.
On January 10, 1992 Petitioner left Fiji and arrived in the United States on a six-month visitor's visa. (A.R. at 24.) Petitioner then applied for asylum but the Asylum Office denied her request. Nonetheless, Petitioner never left the United States. Accordingly, on March 22, 1994 the Immigration and Naturalization Service ("INS") instituted deportation proceedings against Petitioner. The INS charged her with deportability under 8 U.S.C. § 1251, for remaining in the United States longer than her visa permitted.
Petitioner conceded deportability at a deportation hearing and the immigration judge designated Fiji as the country of deportation. 4 Petitioner requested withholding of deportation and again applied for asylum. The immigration judge denied these requests.
Petitioner appealed to the Board of Immigration Appeals ("BIA"), which affirmed the decision of the immigration judge on September 5, 1996. Petitioner then timely appealed to this Court, which has jurisdiction to review the decision of the BIA 5 pursuant to 8 U.S.C. § 1105a(a)(2) (repealed 1996). 6
III. Discussion
We first will discuss whether the BIA erred by denying Petitioner's request for asylum. Second, we will discuss whether the BIA erred by denying her request for withholding of deportation.
We review the BIA's decision that Petitioner has not established eligibility for asylum under the substantial evidence standard. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). Under this standard, "a petitioner contending that the [BIA]'s findings are erroneous must establish that the evidence not only supports that conclusion, but compels it." Id. at 1431 (internal quotation marks omitted). "This strict standard bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown." Kotasz v. INS, 31 F.3d 847, 851 (9th Cir.1994). Thus, we must deny the Petition unless Petitioner presented evidence "so compelling that no reasonable factfinder could find" that Petitioner has not established eligibility for asylum. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 816-17, 117 L.Ed.2d 38 (1992).
Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(b), gives the Attorney General discretion to grant asylum to a refugee. A refugee is an alien who is unwilling to return to the country of origin "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).
To establish eligibility based on a well-founded fear of persecution, the alien must have a subjectively genuine and objectively reasonable fear. Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir.1991). An alien satisfies the subjective component of this test by credibly testifying that the alien genuinely fears persecution. Cuadras v. United States INS, 910 F.2d 567, 570-71 (9th Cir.1990). An alien satisfies the objective component by pointing to "credible, direct, and specific evidence in the record ... that would support a reasonable fear of persecution." Ghaly, 58 F.3d at 1428 (quoting Arriaga-Barrientos, 925 F.2d at 1178-79). 7
Here, Petitioner has met the subjective component of the test because the immigration judge found her testimony that she fears persecution to be credible. (A.R. at 28-29); see also Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985) (). The question thus becomes whether Petitioner can establish that a reasonable person in her circumstances would fear persecution on the basis of race or religion. Petitioner can do this by demonstrating that she suffered persecution in the past because "[a]n alien who establishes past persecution is presumed to have a well-founded fear of future persecution." Gaya Prasad v. INS, 101 F.3d 614, 617 (9th Cir.1996). 8
However, in order to establish a well-founded fear, "[P]etitioner cannot simply prove that there exists a generalized or random possibility of persecution ...; [s]he must show that [s]he is at particular risk--that [her] predicament is appreciably different from the dangers faced by [her] fellow citizens." Kotasz, 31 F.3d at 852 (internal quotation marks omitted). Petitioner must establish that the mistreatment she suffered was directed personally toward her, and that it was substantially more grievous in kind or degree than the general manifestation of hostility between the competing ethnic and religious groups in Fiji. Mere generalized lawlessness and violence between diverse populations, of the sort which abounds in numerous countries and inflicts misery upon millions of innocent people daily around the world, generally is not sufficient to permit the Attorney General to grant asylum to everyone who wishes to improve his or her life by moving to the United States without an immigration visa. See id.
As discussed below, when compared with similar Ninth Circuit cases, it becomes clear that Petitioner's allegations do not compel a finding of persecution. Additionally, specific facts in the record indicate that the treatment she received was not so extreme that it constitutes persecution, let alone compels a finding that it does. Moreover, even if such treatment could rise to the level of persecution, Petitioner has not demonstrated that many of the incidents were targeted particularly toward her, or that they occurred because of racial or religious animus.
The Immigration and Nationality Act does not define "persecution" or specify what acts constitute persecution. We have described it, however, as " 'the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.' " Ghaly, 58 F.3d at 1431 (quoting Elias-Zacarias, 502 U.S. at 489, 112 S.Ct. at 819-20). Although persecution does not require bodily harm or a threat to life or liberty, Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988), "persecution is an extreme concept that does not include every sort of treatment our society regards as offensive." Ghaly, 58 F.3d at 1431 (internal quotation marks omitted). For example, "[d]...
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