De Souza v. I.N.S., 92-3042

• Decision Date: 23 July 1993
• Docket Number: No. 92-3042,92-3042
• Citation: 999 F.2d 1156
• Parties: Erica P. De SOUZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1156

999 F.2d 1156

Erica P. De SOUZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-3042.

United States Court of Appeals,

Seventh Circuit.

Argued May 14, 1993.

Decided July 23, 1993.

Nicholas C. Grapsas, Madison, WI (argued), for Erica P. De Souza.

Fred Foreman, U.S. Atty., Crim. Div., Chicago, IL, William J. Howard, Donald A. Couvillon (argued), David J. Kline, Dept. of Justice, Office of Immigration Litigation, Washington, DC, A.D. Moyer, I.N.S., Chicago, IL, for I.N.S.

Before BAUER, Chief Judge, EASTERBROOK, and ROVNER, Circuit Judges.

BAUER, Chief Judge.

Kenyan native Erica P. De Souza petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "Board"). The Board denied her application for asylum and withholding of deportation pursuant to Sections 208(a) and 243(h) of the Immigration and Nationality Act (the "Act"). 8 U.S.C. §§ 1158(a) and 1253(h). We affirm.

I.

Erica P. De Souza was born on July 17, 1963 in Mombasa, Kenya. Administrative Record ("A.R.") at 49. Only a few months later, on December 12, 1963, Kenya obtained its independence from the United Kingdom. Id. at 2, 131. De Souza's parents were born in Goa, a former Portuguese colony which India invaded and conquered shortly after De Souza's birth. De Souza claims that the Kenyan government refused to grant her citizenship because of her ethnic origins. Id. at 132. De Souza lived in Kenya until 1980. She attended a public grade school and a private high school. Id. at 96. In 1980, she travelled to the United States for high school as part of the American Field Service program. Id. De Souza returned to Kenya in 1984 to visit her family. Id. at 50. Because she was not a citizen, the Kenyan government required her to obtain a three-month tourist visa for her trip. The United Kingdom designated her as a British Protected Person because, at the time of De Souza's birth, Kenya was a British colony. The United Kingdom, like Kenya, also denied her citizenship.

De Souza returned to the United States in January 1985 to continue her education. The Immigration and Naturalization Service ("INS") admitted De Souza back into the country as a nonimmigrant student and authorized her to remain until February 27, 1987. Id. at 141. When De Souza stayed in the United States past that date, the INS instituted deportation proceedings. Id. De Souza admitted that she had stayed past February 27, 1987, but applied for section 208(a) asylum and section 243(h) withholding of deportation.

On October 4, 1988, an immigration judge conducted a hearing on De Souza's application for asylum and withholding of deportation. De Souza testified at the hearing. She stated that in Kenya people of Indian descent are subject to racial discrimination and harassment. She claimed that her mother, a manager who works in an import-export business, is constantly harassed in her job by the black people she works with. Id. at 54, 57. De Souza expressed concern that if she returns to Kenya she will have no rights, will be considered an outsider because of her ethnicity and, as a result, will not be able to obtain employment. Id. at 58. De Souza added that a Kenyan police officer, for no apparent reason, once pulled her over while she was driving and asked to see her driver's license. Id. at 59. She admitted, however, that she had not had any other problems with the Kenyan government, that her mother and sister who still reside there had never been arrested or detained, and that she had not tried to return to Kenya at all since her 1984 visit. Id. at 59, 61.

The immigration judge found that De Souza had not demonstrated that if she returned to Kenya she would face persecution. Id. at 39. The immigration judge therefore denied De Souza's application for asylum and withholding of deportation. ¹ Id. at 40.

De Souza appealed to the BIA. The Board noted that De Souza did not produce any evidence that the Kenyan government intended to persecute her on account of her race, or that it did not intend to protect her from unlawful assault or violence. Id. at 3. The Board also observed that De Souza's mother and sister continued to reside in Kenya without incident, that Kenya's laws are not directed specifically at any one group, and that it is within Kenya's sovereign power to decide who its citizens will be. Id. at 4. Finally, the Board determined that Kenya's denial of citizenship to De Souza did not deprive her of any right because persons like De Souza, who were born before Kenyan independence of non-Kenyan parents, have never been considered citizens of Kenya. Id. Accordingly, the BIA dismissed De Souza's appeal and ordered De Souza to leave the United States or be deported. Id.

II.

A. Standard of Review

We review the Board's decision to grant or deny De Souza's application for asylum and withholding of deportation for abuse of discretion. Osuch v. INS, 970 F.2d 394, 396 (7th Cir.1992).

B. De Souza's Application for Section 208(a) Asylum

Section 208(a) authorizes the Attorney General (and the INS as her agent), in the exercise of her discretion, to grant asylum to an alien who is a refugee as defined in the Act. ² INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). An asylum applicant must prove that she is a refugee, which the Act defines as an alien who is unable or unwilling to return to the alien's 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." ³ 8 U.S.C. § 1101(a)(42)(A). See also 8 C.F.R. § 208.13 (burden of proof on asylum applicant to establish that she is a refugee as defined by the Act).

De Souza failed to prove that she suffered persecution or that she possesses a well-founded fear of persecution. De Souza claims that the Kenyan government's denial of Kenyan citizenship, permanent residency, and education at Kenyan public schools was so horrific that it amounted to persecution. She also points to her 1984 visit, when she was admitted to Kenya as a tourist with no right to work, as further evidence that the Kenyan government has persecuted her because of her Asian race and Indian nationality.

We have described "persecution," for purposes of the Act, as punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate. Osaghae v. INS, 942 F.2d 1160, 1163 (7th Cir.1991). Our cases reveal that De Souza's claimed suffering at the hands of the Kenyan government does not amount to this type of persecution. Consider, for example, the case of Chelvadurai Sivaainkaran. Sivaainkaran, a Tamil who lived in war-torn Sri Lanka, was a man who unsuccessfully applied for asylum. Sri Lanka was embroiled in an ethno-religious conflict between the minority Tamils and the majority Sinhalese. Sivaainkaran v. INS, 972 F.2d 161, 162 (7th Cir.1992). Sivaainkaran presented evidence that soldiers of the Sinhalese-dominated government chased him through a field, fired shots at him, and ransacked his home. Id. at 164. Later, an angry Sinhalese mob forced Sivaainkaran's sister and brother-in-law from their home. His sister and brother-in-law lost many of their possessions and, because of the mob's actions, were forced to live in a refugee camp for several weeks. Id. Sivaainkaran also claimed that his wife could not leave their home for fear that government soldiers would detain or rape her and that she could not work as a school teacher because the war caused the schools to be closed. Finally, Sivaainkaran stated that he feared persecution if he returned to Sri Lanka because Tamils in Sri Lanka were subject to government-sponsored reprisal killings, large-scale warrantless arrests, and torture. Id. at 164. The BIA denied his application for section 208(a) asylum and section 243(h) withholding of deportation. Id. at 162. We held that Sivaainkaran lacked an objectively reasonable fear of persecution and therefore denied his petition for review of the Board's order. Id. at 165-66.

Clearly, De Souza presents a much weaker case of "persecution" than did Sivaainkaran. She has merely alleged the following acts by the Kenyan government: (1) she was denied citizenship; (2) she had to attend a private high school before she came to the United States; and (3) a Kenyan police officer once pulled her over and asked to see her driver's license. These incidents, however unfortunate, do not constitute "persecution" for purposes of the Act.

The refusal of the Kenyan government to grant De Souza citizenship did not deprive her of any right; she had no right to Kenyan citizenship. It is well within the discretion of the Kenyan government to decide who its citizens will be.

Her contention that being forced to attend a private high school amounts to persecution borders on frivolity. The Kenyan government could provide public education to all people, no people, or some people without "persecuting" them. De Souza's claim really amounts to this: Kenya did not provide her with enough public education. She was allowed to attend public grade school, but not public high school. Providing public elementary education to noncitizens, as the Kenyan government did for De Souza, is not persecution. ⁴ To the contrary, one might even call it generosity.

Finally, we come to De Souza's allegation that a police officer once stopped her and asked to see her driver's license. What exactly does this add to her case? The answer is: nothing.

Compared to the incidents and threats of government-related torture, shootings, mob violence, mass arrests, and killings endured by Chelvadurai Sivaainkaran, De Souza's claim that the government of Kenya persecuted her and that she possesses a well-founded fear of persecution with respect to Kenya is almost trivial. As we affirmed the denial of Sivaainkaran's asylum application, we do the same here. See also Skalak...