Singh v. I.N.S.

• Decision Date: 14 May 1996
• Docket Number: No. 95-70008,95-70008
• Citation: 94 F.3d 1353
• Parties: 96 Cal. Daily Op. Serv. 6692, 96 Daily Journal D.A.R. 10,929 Ranjit John SINGH; Chand Kumari, a/k/a Chand Kumari Singh; Renika Singh, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1353

94 F.3d 1353

96 Cal. Daily Op. Serv. 6692, 96 Daily Journal

D.A.R. 10,929

Ranjit John SINGH; Chand Kumari, a/k/a Chand Kumari Singh;

Renika Singh, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-70008.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 1996. ^*

Decided Sept. 6, 1996.

Michael Schoenleber, Sacramento, California, for petitioners.

Michelle Gluck, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for respondent.

Petition for Review of a Decision of the Immigration and Naturalization Service. INS Nos. A70-147-755 to A70-147-757.

Before: PREGERSON and TROTT, Circuit Judges, and WINMILL, ^** District Judge.

PREGERSON, Circuit Judge:

Ranjit John Singh petitions for review of the Board of Immigration Appeals's ("BIA") denial of his application for asylum and withholding of deportation under Sections 208(a) and 243(h) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. §§ 1158(a), 1253(h). We have jurisdiction under 8 U.S.C. § 1105a(a), and we grant the petition for review.

I

Ranjit John Singh, his wife Chand Kumari Singh, and daughter Renika Singh, are ethnic Indian citizens ("Indo-Fijians") of Fiji. ¹ They were admitted to the United States as visitors on May 6, 1989, with permission to remain until November 5, 1989. On June 29, 1989, they applied for asylum with the District Director of the Immigration and Naturalization Service ("INS") in San Francisco. ² The Asylum Office denied the application and issued an Order to Show Cause why they should not be deported.

On July 18, 1991, the Immigration Judge ("IJ") found Singh and his family to be deportable as charged and denied their application for asylum and withholding of deportation but granted them voluntary departure. The IJ stated that what Singh and his family suffered in Fiji was harassment and discrimination that did not amount to persecution because this sort of treatment was suffered by a "majority of the Indian population remaining in Fiji."

On October 31, 1994, the BIA dismissed Singh's appeal and ordered voluntary departure. The BIA agreed with the IJ that any harassment and discrimination suffered by Singh and his family did not constitute persecution because Singh "failed to establish that anyone in Fiji was interested in him." The BIA also stated that the treatment Singh suffered did not "constitute[ ] a specific individualized threat."

II

We have held that where the IJ expressly finds certain testimony to be credible, and where the BIA makes no contrary finding, we "accept as undisputed" the testimony given at the hearing before the IJ. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995). In this case, the BIA failed to make an express finding concerning Singh's credibility. We, therefore, look to the IJ's decision to determine whether the IJ made an express finding on credibility.

The IJ expressly found Singh's testimony to be credible and consistent and stated that each member of the Singh family "earnestly believes he/she will be persecuted." The IJ's finding was not contradicted by the BIA. In fact, the BIA stated in its opinion that Singh's testimony at the hearing was consistent with the information contained in the asylum application and was corroborated by his wife's and daughter's testimony.

Thus, in resolving this appeal, we take as true all the facts as testified to by Singh and his family. The record before the IJ and the BIA also contains (a) evidence of anti-Indian discrimination, harassment, and violence in Fiji, and (b) evidence of particularized persecution that Singh and his family suffered in Fiji. We summarize this evidence below.

A

Fiji's population is about evenly divided between ethnic Fijians and Indo-Fijians. Before 1987, Fiji's constitution established a "delicate balance" in favor of ethnic Fijians but guaranteed equal political participation to all groups. In two coups d'etat that occurred in May and July 1987, the Fijian military, a predominantly ethnic Fijian organization, deposed the existing government dominated by Indo-Fijians. The military stated that its objective was to ensure the political supremacy of ethnic Fijians.

General Sitiveni Rabuka, the leader of the two coups, proclaimed their purpose to be to regain "Fiji for Fijians" and called his political agenda "Fijian Democratic Socialism." Rabuka replaced the president and prime minister with individuals sympathetic to his views. In 1990, the interim government introduced a new constitution ensuring political control by ethnic Fijians. The new constitution guarantees ethnic Fijians a majority of seats in the lower house of Parliament and in the Senate. The new constitution also contains procedures designed to ensure an ethnic Fijian president and ethnic Fijian prime minister.

Since the two coups, Indo-Fijians have been subjected to discrimination, harassment, and violence by ethnic Fijians. The most horrible reported attacks on Indo-Fijians include women raped in front of their children, political opponents brutally beaten, detainees forced to walk naked in the streets while holding human excrement, people forced to swim in sewage ponds, and children stripped and beaten for Sunday curfew violations and forced to rub their noses against a concrete floor until their noses bled. Ethnic Fijian youth gangs have raided, stoned, and fire bombed Indo-Fijian homes. In 1989, five Hindu temples were burned. In October 1990, an Indian school was burned.

The government in power in Fiji appeared to encourage and condone the discrimination, harassment, and violence inflicted by ethnic Fijians against Indo-Fijians. The police department, primarily composed of ethnic Fijians, did little to protect the Indo-Fijian population.

We note, however, the State Department's Country Report on Human Rights Practices for 1990 indicates that at least as of 1989 (two years after the coups), governmental authorities were responding to a few high-profile cases of ethnically motivated crime. But we hasten to add that this report does not make clear whether the government punished such criminals in a manner commensurate with their crimes or instead merely slapped them on their wrists.

B

At the time of the 1987 coups, Singh was employed as general manager of a shipping company in Suva, Fiji's capital city. He was the only Indo-Fijian at this supervisory level in any shipping company in Fiji. By virtue of this position, he was also a member of a shipping committee composed of the general managers of the six shipping companies in Fiji. This committee met monthly, and at these meetings Singh advocated opening up dock worker positions to all races rather than just ethnic Fijians, who had traditionally received preferential hiring.

Singh testified that his support for nondiscriminatory hiring resulted in groups of ethnic Fijian dock workers making direct threats on his life. These death threats began in August 1987, after the coups, and escalated through December 1987. Singh was told that if he did not leave his job as general manager of the shipping company, he would be killed. The ethnic Fijian dock workers threatened to kill him by either dropping a cargo pallet on him or by "other means" if he did not leave. In September 1987, a gang of ethnic Fijian dock workers told Singh that his house would be burned and his wife and daughter "finish[ed] off" if he didn't leave the job.

The threats were followed by attempts to kill or scare Singh and to harm his family. In November 1987, while Singh was walking on a wharf, ethnic Fijian dock workers dropped two loaded cargo pallets nearly on top of Singh. In December 1987, a gang of ethnic Fijians threatened Singh at knife-point. The same gang that threatened Singh at work came to his house. The gang threw stones at his house and threatened his wife and daughter with burning the house. At the end of December 1987, fearing for his family's safety, Singh quit his job at the shipping company, left his house in Suva, and temporarily moved his family 110 miles away.

After leaving his job, Singh opened up a grocery shop near Suva. Singh's family stayed away for two months, then moved back to a town near Suva so that his daughter could resume school. The Singh family did not return to the house they owned in Suva. Instead, they rented a house in Nasinu, near Suva.

Despite these precautions, the threats and violence resumed as soon as the family returned to the Suva area. In August 1988, while Singh's wife and daughter were at home alone, four ethnic Fijian men tried to break into the house at night. The men broke a window, waking Singh's daughter. Singh's daughter ran to her mother, and they started to scream. The attackers then tried to force the door open, breaking the bolt and chanting "rovadi dena," meaning that they were going to rape Singh's wife. The screams of Singh's wife and daughter alerted their neighbors and scared off the attackers.

In November 1988, an ethnic Fijian assaulted and threatened Singh in his shop. The man took a pack of cigarettes and, when Singh asked him to pay, the man became violent. He grabbed Singh, holding him under a kerosene pump, and threatened to light him on fire. The man told Singh, "you are an Indian and ... I don't want you here, I don't want to see your presence." The man then shoved Singh against a 44-gallon drum, injuring his ribs. Before leaving Singh's shop, the man told Singh that another Indo-Fijian's shop nearby had been burned down two weeks earlier, and if Singh didn't leave, the same thing would happen to him.

Singh reported each of these threats and attacks to the police. Even though he provided names of the attackers in many instances, the police did not respond to any of his crime reports.

III

Where, as here, the BIA conducts its own review of the record, we review the BIA's decision rather than the IJ's decision. We review de novo the BIA's ...