NEW YORK: Mr. Rashpal Singh, a member of the All India Sikh Students Federation, who was detained by the Immigration authorities when he landed at New York on April 16, 1988, was granted political asylum by the Immigration Judge, Patricia A. Rohan.
The case was decided on August 11, 1988 and the Judge in her order stated: IT IS ORDERED THAT THE APPLICANT’S AP PLICATION FOR ASYLUM IN THE UNITED STATES UN DER SECTION 208 OF THE IMMIGRATION AND NAITO NALITY ACT BE AND THE SAME IS HEREBY GRANTED. Details of the decision are as follows:
WRITTEN DECISION OF THE IMMIGRATION JUDGE.
The applicant is a 27 year old, unmarried, male alien, native citizen of India. He last arrived in the United States on April 16, 1988, at
New York. On April 16, 1988, the applicant was issued a Notice of Detention and Hearing, before an Immigration Judge, Form 1122 (Exhibit 1). The applicant has been in the custody of the Immigration and Naturalization Service since his arrival.
At the commencement of his hearing in exclusion proceedings before Immigration Judge How ard J, Cohen on May 24, 1988, the applicant, through his attorney, conceded service of Exhibit 1. The applicant admitted he is excludable under sections 212 (a) (19) and 212 (a) (20) of the Immigration and Nationality Act (herein after “the act”). The applicant: seeks relief from exclusion and deportation pursuant to sections 208 and 243 (n) of the Act. The applicant was granted an adjournment to prepare an application for asylum. On August 2, 1988, the hearing was reconvened to consider his application for relief. Pursuant to 8 CFR 242.8 (b). I familiarized myself with the brief record of prior proceedings and as summed jurisdiction over this mat ter. Neither of the parties in this case posed an objection to my assuming jurisdiction.
On June 2, 1988, the applicant submitted a written request for asylum, Form 1589 (Exhibit 2), which was referred to the Department of State in accordance with 8 CFR 208.10 (b). In June of 1988, the Department of State rendered an advisory opinion in which they stated that they have “no factual material about this specific applicant.” They also advised that, “We are unaware of any basis to the claim that the government of India engages in acts of precaution or a policy of discrimination against members of the Sikh community” (Exhibit 3). ‘While that opinion is not binding in these proceedings, I have considered their views in reaching a conclusion regarding this applicant’s claim that he will be persecuted upon his return to India. In accordance with 8 CFR.3 the applicant’s I589 is considered as an application for both asylum and withholding of exclusion and deportation to India.
The alien bears the evidentiary burdens of proof and persuasion in applications for withholding of deportation or asylum. Matter of Acosta, Interim Decision 2986 (BIA 1985); 8 CFR 208.5; 8 CFR 242.17 (c). An alien who is seeking withholding of deportation from any country must show that his “life or freedom would be threat ended in such country on account of race, religion, nationality, member ship in a particular social group, or political opinion.” Section 243 (h) (1) of the Act. In order to make this showing, the alien must establish a “clear probability” of per section on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407, 413 (1984). These clear probability standard re quires a showing that it is more likely than not that the alien would be subject to persecution. Id. at 42930. Under the Refugee Act of 1980, withholding of deportation is mandatory. Thus, once the alien has established that he qualifies for that relief, and that he is not ineligible under the provisions of section 243 (h)(2) of the Act, it must be granted, and he cannot then be returned to the country where he would face persecution. He can, however, be sent to another country under certain circumstances. In this important regard, withholding of deportation differs from asylum, which may, in the exercise of discretion, be denied to an alien who establishes statutory eligibility for that relief.
In order to establish eligibility for a discretionary grant of asylum, the alien must demonstrate that he is a “refugee” as defined by section 101(a)(42)(A) of the Act. See section 208 of the Act. That definition includes the requirement that the alien demonstrate that he is unwilling or unable to return to his country 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. In INS v. Cardozo Fonseca, 480 U.S. 107 S.Ct. 1207 (1987), the Court held that a probable showing of persecution need not be made in order to establish a well-founded fear of persecution under section 208 of the Act, This holding effectively overruled the Board of Immigration Appeals’ prior position, as stated in Matter of Acosta, Supra at p. 25, that the “clear probability” standard and the “well-founded fear” standard are not meaningfully different and, in practical application, converge. In light of the Cardozo Fonseca decision, the Board now endorses the “reasonable person” analysis propounded claim that he will be per secuted upon his return to India. In accordance with 8 CFR.3 the applicant’s I589 is considered as an application for both asylum and withholding of exclusion and deportation to India.
Under this analysis, an applicant for asylum will have established a well-rounded fear of persecution if he shows that a reasonable person in his circumstances would fear persecution. Matter of Mogharrabi, Interim Decision 3028, at p. 9 (BIA June 12, 1987). In deterging whether the alien is eligible for asylum, the alien’s subjective mental state must be considered against the back ground of circumstances prevailing in the alien’s home country. The objective reasonableness of the alien’s fear can be based on what has happened to others similarly situated, as reported in current State Department Country Reports On Human Rights Practices or other reliable sources. Matter of Exam, 18 I&N Dec. 303, 3045 (BIA 1982). In some cases, the only available evidence of the alien’s subjective fears may be the alien’s own testimony. It can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fears. Matter of Mo ghasrrabi, supra at p. 10.
Not just any fear of harm will suffice to sustain the alien’s bur den, The objectively reasonable possibility of persecution on account of a ground specified in section 101(a)(42)(A) of the Act and the alien’s subjectively reason able fear of experiencing that per section must both be established.
An applicant for asylum has the burden of establishing that the favorable exercise of discretion is warranted in each case. Matter of Shirdel, Interim Decision 2958 (BIA 1984). Therefore, the alien should present evidence on any relevant factors which he believes support the favorable exercise of discretion is warranted after an alien has established eligibility asylum, the Board has indicated a number of factors to be considered. Whether the alien has relatives legally in the United States or other personal ties to this country which motivated him to seek asylum here rather than elsewhere is one factor. The extent of the alien’s ties to any other countries where he does not fear persecution should also be examined. If the alien engaged in fraud to circumvent orderly refugee procedures, the seriousness of the fraud should be considered. The use of fraudulent documents to escape the country of persecution itself is not a significant adverse factor while, at the other extreme, entry under the assumed identity of a’ United States citizen with a fraudulently obtained United States passport is a very serious adverse factor. In addition, general human Italian considerations, such as an alien’s tender age or poor health, may also be relevant. Matter of Pula, Interim Decision 3033 at p. 10 (BIA 1987).
The discretionary factors should be carefully evaluated in the light the unusually harsh consequences which may befall an alien who has established a well-founded fear of persecution but cannot meet the higher burden required for withholding of deportation. The Board has identified the situation of the: aliens as “of particular concern.” Id. When deportation to a country where there is a strong possibility that the alien will be persecuted will result from a discretionary denieal of asylum, then the danger of persecution should generally outweigh all but the most egregious of adverse factors. In the absence of any adverse factors, however, asylum should be granted in the exercise of discretion Id
The applicant is a member of the Sikh religion who had resided his entire life in the Punjab area of India. The applicant testified that while he was a college student at Begowal, India, from 1980 to 1982 he encountered the All— India Sikh Students Federation (hereinafter “the SSF”). He testified that the SSF has as its objective the promotion of the Sikh religion and the vindication of the rights of the Sikh community. The applicant testified that he joined the SSF in 1982 by registering as a member at Amritsar, India. He testified that he paid the nominal annual membership dues of ten rupees from 1982 until he left India in April of 1988.
The applicant described himself as a “worker” or rank and file member of the SSF. He denied ever being an officer of the organization. He testified that he participated in demonstrations and sit in to protest the detention of numerous Sikhs being held in official custody either without being charged or under false charges of common criminal activities. He testified that he also helped to prepare for meetings at which the Sikh community’s leaders would speak. His particular duties were to arrange the meals and accommodations for these visiting leaders. The applicant testified that he failed in college in 1982. There after he helped his father —a retired military pensioner —with the family farms, but that his “main purpose in life was SSF activities.”
The applicant testified that after the “invasion” of the Golden Temple in Amritsar by the Indian Army. In June of 1984, there was much rioting and many Sikhs were killed or arrested. The SSF demonstrated to demand relief for the families of victims of the anti-Sikh violence and the release of Sikhs held under false charges. He said that these demonstrations were regular monthly events. The applicant testified that he ‘was arrested and taken from his home on two occasions. He said these incidents were not the direct result of his participation in demonstrations, but rather were because of his membership in the SSF. He has denied that he has ever engaged in acts of terrorism, or that the SSF is an organization engaged in violence. He testified that in December of 1987, he and three of his friends were taken from their homes at night, blindfolded, and transported by jeep to detention facilities which he described as “torture chambers.” The applicant testified that while he ‘was routinely beaten, hung upside down, and denied food. He said that the police accused him of terrorism and common crimes and became more violent when he denied these activities. The applicant testified that he and his friends were released after being in detention for about one month. The applicant testified that he and two friends were arrested during a religious meal and detained for about fifteen days in February of 1988. The treatment he received during this second period of detention was similar to that described during his first detention in December of 1987. The applicant testified that he was beaten so much that he sometimes fainted. He testified that he lost most of the sensation in two of his fingers, which appear to be discolored. He testified that after his release he did not seek medical attention, but bandaged his wounds himself. He thought his failure to seek medical attention may have caused his fingers not to heal properly.
The applicant testified that he ‘was arrested both times because of his SSF membership. He said that his friends who were arrested with him were also SSf members. He said that the police routinely harass SSF members by arresting them on false charges and beating them. He said that during both of his periods of detention he was never formally charged or brought before a judge or magistrate. He said that he was released because the police had no basis to continue to detain him. The applicant testified that the police told him they would arrest him again unless he ceased to practice his religion. He testified that a week after he was released from the second detention he was assaulted by members of a Hindu antiSikh vigilante group, called Shiv Sena.
The applicant testified that the Shiv Sena “owns” the police and government because these institutions are dominated by Hindus. He testified that the Shiv Sena has a “death list” with all of the SSF members on it and that their purpose is to destroy this group and other Sikh nationalists, The applicant said that he did not report the assault by members of that group to the authorities because the authorities will not intervene against the Shiv Sena.
The applicant also testified that his uncle and a cousin were arrested in June of 1987 on their way to Amritsar, a holy city for Sikhs. These two relatives were also members of the SSF. He testified that they have not been heard from since. He believes that they were killed while in police custody.
The applicant testified that after he and his two friends were released from the February 1988 detention his friends left India. He testified that the statement on his 1589 that one of these friends was rearrested and died in custody was not correct and he could not account for that information appearing on his asylum application. The applicant testified that his family urged him to leave the country. With his family’s support and with the assistance of a friend he went to Bombay India, where he paid an agent recommended by his friend $6,000. $1,000 was for a plane ticket and $5,000 was for a passport under an assumed identity.
The applicant testified that he could not obtain a passport through normal channels, which involves the police, because they would delay issuance of passport to him for as much as two years. The applicant testified that he was certain that if he remained in India he would again be arrested and beaten by the police and beaten by the Shiv Sena. He doubted that he would survive all of the beatings he anticipated receiving. The applicant testified that it was essential that he quickly receive a passport and leave the country.
The applicant left India on April 15, 1988. He traveled to Kuwait, where he was obliged to stay for thirty six hours because his next flight was cancelled. He landed in New York on April 16, 1988. The applicant testified that he was in transit to Canada. The applicant was detained by United States immigration officers. The applicant testified that because he is detained here he decided to apply for asylum in this country. The applicant testified that if his asylum application is denied here he wishes to proceed to Canada and pursue asylum in that country.
The applicant’s testimony was Consistent, credible, and sufficiently detailed to provide a plausible account of the events in India. Which give rise to his well-founded fear of persecution because of his membership in the SSF? There is ample material in the documents attached to the I589 (Exhibit 3) and in the background material submitted later (particularly the Amnesty International Reports in Exhibit 4 and the Country Reports for Human Rights Practices for 1987, contained in Exhibit 6) from which to conclude that the Indian government views the SSF as an outlawed group whose members. Share responsibility for the widespread violence which exists in India. While recognizing the legitimate government need to curb such violence, the documents presented by the applicant also establish the possibility that local police officials beat and torture Sikhs in their custody. The events described by the applicant have enough bases in objective facts to establish that a rational’ person in his circumstances would fear persecution. As a member of a religious minority with aspirations for either national or territorial autonomy, and a member of an organization which promotes the rights and interests of that minority, the applicant holds political sentiments for which the Indian government’s tolerance is overshadowed by an inability to curb local incidents of police brutality to which this applicant has already been subjected. I find that the applicant has demonstrated his eligibility for asylum on account of his political opinions.
Other than the applicant’s manner of obtaining an Indian passport, there is no adverse information about him contained in the record; the danger of persecution should generally outweigh all but the most egregious of adverse factors. Matter of Pula, supra. In the absence of any adverse information about the applicant and in view of the grave danger which the applicant would face if he were retimed to India, especially in light of the immediate attention of the authorities that his return without a valid Indian passport would create, I will grant his application for asylum in the exercise of discretion. It is, therefore, unnecessary to decide whether the applicant has also established a clear probability of persecution for purposes of withholding his exclusion and deportation to India pursuant to section 243(n) of the Act. Matter of Mogharrabi, supra at p. 14 accordingly, the following order will be entered:
ORDER: IT IS ORDERED that’ the applicant’s application for as ylum in the United States under: section 208 of the Immigration and Nationality Act be and the same is hereby granted.
PATRICIA A. ROHAN Immigration Judge.