Interim Decision #3187
MATTER OF T-
In Exclusion Proceedings
A-28464467
Decided by Board October 13, 1992
(1)The Government of Sri Lanka does not persecute ethnic Sri Lankan Tamils on the
basis of their ethnicity or "on account of their championing of Tamil interests or
political rights.
(2) Neither the relief of asylum nor of withholding of deportation provides for refuge
"on account of human rights abuses unconnected to the grounds enumerated in the
Immigration and Nationality Act, i.e., race, religion, nationality, membership in a
particular social group, or political opinion.
(3)An ethnic Tamil alien from Sri Lanka who was torced to assist the Libulation Tigers
of Tamil Eelam (MITE"), a separatist Tamil terrorist group, under threat of harm,
did not establish that the LTTE was motivated to punish him because of his political
views or persecute him on account of any of the other grounds enumerated in the Act.
(4)In light of the historical context of the Sri Lankan civil war, an ethnic Tamil alien
suspected of having ties to the terrorist group LTTE failed to demonstrate that the
human rights abuses he suffered at the hands of the Sri Lankan security forces, Indian
Peacekeeping Force, and allied Tamil organizations in reaction to LTTE terrorism
amounted to persecution on account of any of the grounds enumerated in the Act.
EXCLUDABLE: Act of 1952—Sec. 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)j-
Fraud or willful misrepresentation of a material fact
Sec. 212(aX7)(AXIXI) [8 U.S.C. § 1182(a)(7)(A)(i)(M-
No valid immigrant visa
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Daniel H. Smith, Esquire Thomas P. Molloy
MacDonald, Hoague & Bayless General Attorney
1500 Hoge Building
705 Second Avenue
Seattle, Washington 98104-1745
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated March 6, 1992, the immigration judge found the
applicant excludable on the grounds set forth above, based upon his
admissions. Furthermore, the immigration judge denied his applications for asylum under section 208(a) of the Immigration and
Nationality Act, 8 U.S.C. § 1158(a) (1988), and for withholding of
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Interim Decision #3187
exclusion and deportation under section 243(h)(I) of the Act, 8 U.S.C.
§ 1253(h)(1) (Supp. II 1990), and ordered him excluded and deported
from the United States. The applicant, through counsel, has appealed
from that decision with respect to the denial of relief from exclusion
and deportation. The appeal will be dismissed. The applicant's request
for oral argument before for the Board is denied. See
8 C.F.R. § 3.1(e)
(1992).
The record reflects that the applicant is a 37-year-old native and
citizen of Sri Lanka, who is a member of the Tamil ethnic group. He
claimed persecution by the Government of Sri Lanka and by various
groups allied with the Government because of his association with the
Liberation Tigers of Tamil Eelam ("LTTE"), a separatist Tamil
terrorist organization. The applicant also claimed persecution by the
L*1 1E.
Specifically, the applicant explained that he operated a grocery store
in the Jaffna area of northern Sri Lanka. He indicated that in 1986,
members of the LTTE began to visit his business and demand food
and cigarettes. He related that because they were armed, he complied
with their demands. He observed that while he agreed with the proTamil goals of the LTTE, he opposed their use of violence.
The applicant recounted that in August 1987, after the Indian
Peacekeeping Force ("IPKF") had occupied the area, he was arrested
and brought to one of its camps. He declared that despite his plea of
compulsion, he was accused of assisting the LTTE. He advised that, as
a result, he was severely beaten by elements of the Eelam People's
Revolutionary Liberation Front ("EPRLF"), a Tamil organization
opposed to the LTTE, which had allied itself with the IPKF. He noted
that he suffered a broken nose and lacerations to his body.
According to the applicant, when his wife came to beg for his release
after 3 days, the IPKF refused to free him and instead kept him
confined for 2 weeks, during which time he received medical
treatment. He stated that when he finally returned to his store, he
found that it had been ransacked.
The applicant recounted that after the withdrawal of the IPKF, the
LTTE reasserted its power in the Jaffna area. He advised that in
March 1990, the LTTE insisted that he become a process server for a
mediation office which it had created. He explained that he was
chosen for this job because, as a store owner, he was familiar with the
people in his neighborhood.
The applicant related that in late October 1991, while returning to
his home from a business trip, he encountered people fleeing the area.
He indicated that he was informed that the Sri Lankan military had
occupied the sector and that he should not return because of his work
for the LTTE. He stated that, as a result, he went to stay with relatives
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in Jaffna. According to the applicant, he decided to leave Jaffna after
10 days because of the continued advance of the Sri Lankan military.
The applicant testified that he traveled to Colombo, in southern Sri
Lanka, where he found shelter with a relative. He stated that the
members of the household were required to register his presence with
the local authorities, and that they did so on November 15, 1991. He
explained that he was afraid to remain in Colombo because the
EPRLF, as well as the Eelam National Democratic Liberation Front
("ENDLF"), were searching out LTTE supporters in conjunction with
the Sri Lankan security forces. He related that he therefore obtained
money from his brother in Canada and arranged to be smuggled out of
the country on December 4, 1991. After his departure from Sri Lanka,
the applicant learned from his brother, who had contacts in Colombo,
that the police had come to search for him.
Turning to an analysis of the applicant's persecution claim, we point
out that we have assumed, arguendo, that the factual basis of his story
is worthy of belief. However, given the complexity of the political
situation in Sri Lanka, we have carefully reviewed the applicant's
claims of persecution in light of the background materials contained in
the record. According to those documents, the applicant's claim is set
against the backdrop of a terrorist campaign conducted by the LTTE.
This group, which represents only a small portion of the ethnic Sri
Lankan Tamil population, is centered in certain portions of northern
and eastern Sri Lanka. Other major ethnic Sri Lankan Tamil groups
and political figures have been engaged in political discussions with
the Government of Sri Lanka and have agreed to a 19-point political
program aimed at accommodating the various interests of the Tamil,
Sinhalese, and Moslem populations of the country. This program was
arranged through the mediation of the Government of India, which
has taken an interest in the situation because of internal political
pressures related to the Indian State of Tamil Nadu.
It is thus crucial to an assessment of the applicant's claim to
understand that the Government of Sri Lanka has been engaged in
discussions and negotiations with ethnic Sri Lanka political leaders
concerning Tamil demands. It is against this context that the
applicant's claim of persecution "on account of his Tamil ethnicity
and political views has to be weighed.
It is also necessary to consider the historical context of the
applicant's claims. The applicant portrays himself as a member of a
"minority," but this label does not accurately convey the historical
role of ethnic Sri Lankan Tamils in Sri Lanka. During the British
colonial period, Sri Lankan Tamils were used by the British to rule Sri
Lanka. Following independence, Tamils participated fully in the
political life of the country, where universal suffrage was the standard
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Interim Decision #3187
and minority rights were protected by the constitution. For decades
after independence, various Tamil political parties played an important role in coalition governments. This participation occurred even
though there were strong Sinhalese nationalist groups who agitated for
special consideration for the Sinhalese majority, to make up for the
economic and educational disadvantages they had suffered under
colonial rule. For years, in fact, in the 1950s and 1960s, the
Government of Sri Lanka was preoccupied with the threat from leftist
Sinhalese groups who launched a violent underground struggle to
overthrow the government. Eventually, the Government was able to
suppress the violent Sinhalese groups, most prominently the Janatha
Viinukthi Peramuna ("JVP"), which had asserted a form of Sinhalese
nationalism.
In the early 1970's, some radical Sri Lankan Tamils began to agitate
for autonomy or actual separation from Sri Lanka. Indeed, a number
of Tamil parties, including the Tamil United Liberation Front
("TULF"), successfully ran candidates for parliament on separatist
platforms. The political negotiations, however, did not suit the most
radical of the Tamil separatists, who began to arm themselves with the
assistance of Tamils in the Indian State of Tamil Nadu. These radicals
began a concerted terrorist campaign in which policemen, soldiers,
political figures, and others, both Sinhalese and Tamil, were murdered.
Terrorist bombings were a favorite tactic. In 1983, partly in response to
the ambush killings of government soldiers by the LTTE, and partly
because of the heated atmosphere generated by national elections,
Sinhalese in the city of Colombo rioted and attacked Tamils. The
Government was able to suppress the disturbances after about a week.
After that, the situation in northern Sri Lanka continued to
deteriorate as the radical Tamil groups escalated the level of violence.
There was also a concerted effort by the LTTE to destroy rival Tamil
groups, and attacks were carried at great loss of life against the Tamil
Eelam Liberation Organization ("TELO"), and the EPRLF in 1986.
These groups had shown a desire to negotiate a peaceful resolution to
the conflict. The LTTE objective, in addition to destroying rival Tamil
groups, was to drive out all the institutions of the state, and, of course,
police and military forces were a major target. The LTTE forces
systematically engaged in horrible atrocities in order to establish a
reign of terror. Initially, this campaign was aimed at government
personnel, but quickly came to include innocent persons murdered and
driven from their homes solely because of their Sinhalese ethnicity.
According to the Amnesty International reports in the record, among
the more atrocious acts of the LTTE were the bombings of bus stations
and buses and armed attacks on buses, in which hundreds of people
were butchered. The terrorism also was directed at ethnic Tamils who
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Interim Decision #3187
did not support the radical groups and more recently has been aimed
at Moslems, in order to create ethnically pure Tamil districts.
In 1987, the Government of India forced the Government of Sri
Lanka to accept the assistance of the IPKF in order to monitor the 19-
point political program which the Government of India had brokered.
This force was sent into northern Sri Lanka to begin the supervised
disarming of thi various Tamil groups. The LTTE was the only major
Tamil guerrilla group to refuse to participate, and it launched assaults
on the IPKF, which responded with powerful military attacks against
the LTTE. This struggle culminated in the seizure of Jaffna, the major
LTTE stronghold.
In 1990, the IPKF withdrew from Sri Lanka, but the LTTE
continued its attacks. The Government of Sri Lanka employed its
security forces to counter the LTTE and in this undertaking had the
assistance of several major ethnic Sri Lankan Tamil groups, among
them TELO, the EPDP, and the EPRLF.
Viewed in light of these facts, the applicant's assertions regarding
his claim of persecution "on account of his ethnicity and his political
views are remarkably simplistic and misleading. First, the Government of Sri Lanka works with major Tamil organizations who seek a
peaceful resolution of the situation. Second, major Tamil organizations provide military assistance to the Government in its efforts to
combat the only major terrorist group which has refused to renounce
violence.
We are satisfied from the record that the Government of Sri Lanka
does not persecute ethnic Sri Lankan Tamils on the basis of their
ethnicity. This claim is in fact contradicted by the political and
military cooperation shared by the Government and major Tamil
groups, and the history of participation by Tamils iu the Government
of Sri Lanka.
Second, it is clear that the Government of Sri Lanka does not
persecute Tamils "on account of their championing of Tamil interests
or political rights. In fact, it appears the Government has tried in the
most difficult of circumstances to reach a mutually agreeable accommodation by peaceful negotiations. The Government even went so far
as to allow the Government of India (historically sympathetic and
helpful to Tamil groups) to use its political and military might in Sri
Lankan territory. But even the Indians found themselves viciously
attacked by the LTTE. The record establishes that the violence in Sri
Lanka was begun by terrorist Tamil forces and continues because of
terrorist Tamil forces. It is not the Government of Sri Lanka that
attacked Tamils, and it is not the Government Sri Lanka that wishes
the violence to continue.
It is clear that in the course of this violent decade in Sri Lanka,
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innocent Tamils have been killed by security forces, and human rights
abuses have occurred. The LTTE has set out to create an atmosphere
of violence and terror and in so doing has consciously tried to incite
Sri Lankan and rival Tamil groups to retaliate. This is a common tactic
of guerrilla organizations. Thus, Amnesty International, in its report,
"Sri Lanka-The Northeast," states that the LTTE captured and
executed hundreds of Sri Lankan officers and "disappeared" others.
Amnesty International, Sri Lanka-The Northeast, AI Index: ASA
37/14/91, at 7 (Sept. 1991). The LTTE also killed hundreds of
Sinhalese, Moslems, and Tamils. All of the LTTE's opponents in turn
retaliated with attacks of their own.
It also appears indisputable that human rights abuses occur on a
large scale. This does not mean, however, that these abuses, standing
alone, translate into persecution as defined in the Act. The applicant
here, for instance, complains of mistreatment at the hands of the
Tamil group, EPRLF, which is aligned with the Government against
the LTTE. But the EPRLF is a Tamil organization, and it also supports
Tamil claims, so it could not be persecuting the applicant on account
of his shared Tamil ethnicity or political views.
The same logical failure results with his assertions regarding the
IPKF. That force went to Sri Lanka to enforce a political program
favorable to Tamil demands and was sent by a government sympathetic to Tamil claims. The applicant has failed to show that the IPKF was
transformed into an anti-Tamil force once it was in Sri Lanka. The
applicant's claims vis-a-vis the other Tamil group, the ENDLF, also
fail. This group was both aligned with the Government and supported
the Tamil claims supposedly supported by the LTTE and the
applicant.
As to the government forces, at least the ethnic Sinhalese members,
it appears that they have engaged in human rights abuses. But the
Amnesty International report shows that these abuses have also been
directed against ethnic Sinhalese groups, in particular the JVP. Our
reading of the Amnesty International report indicates that the
Government of Sri Lanka has said it "would deal with the LTTE in the
same manner as it had recently dealt with the JVP in the south."
Amnesty International, supra, at 7. This reference to the JVP relates to
the government suppression of the attempt in recent years by that
ethnic Sinhalese group to overthrow the government, as the JVP had
tried to do several decades ago. As the Amnesty International report
also makes clear, the Government has pledged to stop these human
rights abuses and has accepted recommendations made by Amnesty
International on this subject. At the same time Amnesty International
has recognized that these human rights abuses (which their report
nowhere terms "persecution") have "taken place in the context of
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armed conflict between government security forces and the LTTE.
Amnesty International appreciates the particularly difficult law and
order situation this has created." Id. at I.
This Board in turn appreciates the awful circumstances in which the
Sri Lankan Government and large numbers of the inhabitants of that
country find themselves. But if we were to accept the applicant's
assessment of human rights violations as constituting persecution
under the Act, Tamils, Moslems, and Sinhalese alike would all be
persecuted in Sri Lanka. Neither the relief of asylum nor of withholding of deportation provides for refuge "on account of human rights
abuses unconnected to the grounds enumerated in the Act, i.e., race,
religion, nationality, membership in a particular social group, or
political opinion. See sections 208(a), 243(h)(1) of the Act; section
101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1988).
We have carefully reviewed the entire record on a de novo basis.'
We conclude that the applicant has failed to establish past persecution
or a well-founded fear of future persecution in Sri Lanka on account of
any of the grounds enumerated above. See sections 101(a)(42)(A),
208(a) of the Act;
8 C.F.R. § 208.13 (1992); see also INS v. CardozuFonseca,
480 U.S. 421 (1987) (holding that the asylum standard is
more generous than the withholding standard);
8 C.F.R.
§ 208.13(b)(2) (1992) ("reasonable possibility" definition of well-founded fear asylum standard).
Moreover, contrary to the assertions of the applicant regarding his
asylum claim, we find that the reasoning set forth by the United States
Supreme Court in INS v. Elias-Zacarias, 502 U.S. 478 (1992), is
controlling in this matter. With respect to the LTTE, we are not
persuaded that the forced donation of goods and services was premised
upon any of the enumerated grounds. For instance, despite the general
political agenda of the LTTE, it appears that this organization sought
out the applicant simply to help satisfy its need for supplies and
manpower. See id. at 816. There is no convincing evidence that the
militants were motivated to punish him because of his political views,
inter alia. Indeed, there would be no reason to do so. He testified that
he agrees with the group's goals. •
This rationale also applies to that aspect of the applicant's claim
dealing with the IMF, the EPRLF, the ENDLF, and the Sri Lankan
security forces. Specifically, in order to prove persecution "on account
of one of the enumerated grounds, an alien must do more than show
mistreatment by the government or a particular group.
'Pursuant to regulation, the record also contains an advisory opinion issued by the
Department of State's Bureau of Human Rights and Humanitarian Affairs. 8 C.F.R.
208.11(b)-(c) (1992).
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Interim Decision #3187
Whether voluntarily or involuntarily, the applicant directly associated with the LTTE, a Tamil extremist group which bears primary, if
not sole, responsibility for continuing and escalating the violence in Sri
Lanka. Unlike moderate Tamil organizations, the LTTE refused to
participate in political settlements worked out by the government.
Reacting to the brutal tactics of the LTTE, the Sri Lankan security
forces, the IPKF, and the allied Tamil groups sought out LTTE cadres
in an attempt to end the violence and preserve the government. The
applicant was swept up in this effort.
It may well be that the organizations seeking to curb the LTTE were
driven to acts of revenge as a result of the militants' terrorism, but this
is in the nature of civil war. Harm arising from general civil strife does
not amount to persecution within the meaning of the Act. See, e.g.,
Martinez-Romero v. INS, 692 F.2d 595 (9th Cir. 1982).
Inasmuch as the applicant cannot demonstrate statutory eligibility
for asylum, it follows that he cannot establish statutory eligibility for
withholding. See generally Rodriguez-.Rivera v. INS, 848 F.2d 998,
1007 (9th Cir. 1988). The evidence does not demonstrate that it is
more likely than not that if the applicant were now to return to Sri
Lanka, he would be persecuted within the meaning of the Act. See
section 243(h)(1) of the Act; INS v. Stevic, 467 U.S. 407 (1984);
8
C.F.R. § 208.16 (1992).
• Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
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