R

                                                            Interim Decision #3195




                               MATTER OF R-
                             In Exclusion Proceedings

                                    A-70105328
                   Decided by Board December 15, 1992

(1) 'The fact that a Sikh from the state of Punjab in India was beaten and threatened by
  Sikh militants because he resisted their recruitment efforts did not establish
  persecution on account of political opinion or any of the other grounds enumerated in
  the Immigration and Nationality Act.
(2) The mistreatment of a Sikh in Punjab by Indian police in the course of an
  investigation does not establish eligibility for asylum or withholding of exclusion and
  deportation where the purpose of the mistreatment was to obtain information about
  Sikh militants who sought the violent overthrow of the Indian Government rather
  than to punish him because of his political opinions or merely because he was a Sikh.
(3) While the Sikh applicant for asylum may fear returning to Punjab because of the
  mistreatment he experienced there at the hands of the Indian police, he has not
  demonstrated country wide persecution or mistreatment of Sikhs by the central
                         -


  government or other Indian groups, and therefore he has not established a well-founded fear of persecution in India.
(4) Absent a threat of persecution on a country-wide basis in India and in light of the
  factual circumstances of his case, a Sikh applicant does not merit a grant of asylum in
  the exercise of discretion even if it were assumed that he suffered past persecution in
  Punjab.
EXCLUDABLE: Act of 1952—Sec. 212(a)(5)(A)(i) [

(a)(5X/VOI—No
                                   valid labor certification
                                Sec. 212(a)(6)(C) [

(a)(6)(C)]—Fraud or
                                  willful misrepresentation of a material fact
                                Sec. 212(a)(7)(A)(i)(l) [

(a)(7)(A)(i)(I)1—
                                  No valid immigrant visa
ON BEHALF OF APPLICANT: Chanan Weinstein, Esquire
                         c/o Legal Eagles Consulting Services
                         One World Trade Center, Suite 1580
                         Long Beach, California 90831

BY: Milhollan, Chairman; Morris and Vacca, Board Members. Concurring and
    Dissenting Opinion: Dunne, Board Member. Concurring Opinion: Heilman,
    Board Member.


    In a decision rendered on January 31, 1992, the immigration judge
                                           621
Interim Decision #3195

 found the applicant excludable pursuant to sections 212(a)(5)(A)(i) and
(7)(A)(i)(I) of the Immigration and ationality Act, 

(a)(5)(A)(i) and (7)(A)(i)(I) (Sur p. III 1991), denied his
 applications for asylum under section 208(a) of the Act, 

(a) (1988), and for withholding of exclusion and deportation
under section 243(h)(I) of the Act, 

(h)(I) (Stapp. II
 1990), and ordered him excluded and deported from the United
States. The applicant, through counsel, has appealed from the denial of
his request for asylum and withholding. Tile appeal will be dismissed.
The applicant's request for oral argument before the Board is denied.
See 

(e) (1992).
   The record reflects that the applicant iis a 21-year-old native and
citizen of India, who raised a claim of past persecution, as well as a
fear of future persecution in that country ; on account of his religion
and his actual or imputed political or inions. In particular, the
applicant related that he was a Sikh from the Punjab region of India.
He indicated that in January 1991, Sikh militants, apparently members of the All India Sikh Student Federatic n, came to his family home
and demanded money to support thei: cause. In addition, the
applicant stated that the militants sought u recruit him, although he
rebuffed their efforts. He explained that wile he favored an independent Sikh state, he rejected accomplishing this goal by violence. He
also indicated that he did not want to cat se problems for his father.
   According to the applicant, his contact with these Sikhs was
reported to the local police, who arrested l im as a suspected militant.
He testified that he was interrogated about the individuals who visited
his house and subjected to brutal physical abuse by the police because
they suspected him of being one of the militant Sikhs. The police
ultimately released him without charging him or taking him before a
judge after "good people in the area" went to the police station. He
stated that upon his release, he returned tc his family home, where he
was again confronted by the Sikh militants He testified that they beat
him and told him that he must join their ranks. The applicant related
that the militants threatened to kill him and a member of his family if
he did not comply with their wishes. He indicated that, thereafter,
both the police and the militants continut d to seek him out. At one
point during his testimony, the applicant st ited that he was also beaten
by the police on June 13, 1991, but the reas Ins or circumstances of this
incident were not made clear. His testimorr suggested that this beating
occurred after another of his encounters wir h the militant Sikhs (whom
the applicant referred to as "the boys"). Fe testified that, as a result,
he went into hiding in June 1991 and departed India in September
1991. He indicated that he did not want tc return to India because he
feared the police and the militant Sikhs. He stated that the "Punjab
                                  611
                                                              Interim Decision #3195

police" are "very dirty" police who bring fake charges and kill people
in false encounters.
   The immigration judge concluded that the applicant had not
established his eligibility for either asylum or withholding of exclusion
and deportation and the applicant appealed. On appeal, it is submitted
that the applicant
   proved in his testimony and the supporting documents that if the court will not
   withhold his deportation his life will be in danger. There is a clear probability and/or
   it is more likely than not that the authorities will continue to persecute him due to his
   alleged ties to the militants. The militants will continue to harass him and perhaps
   kill him due to his refusal to join them.
   Upon our independent review of the record, we conclude that the
applicant has failed to demonstrate either past persecution or a well-founded fear of future persecution in India on account of race,
religion, nationality, membership in a particular social group, or
political opinion.' See sections 101(a)(42)(A), 208(a) of the Act, 

(a)(42)(A), 1158(a) (1988); 

 (1992);
see also INS v. Cardoza-Fonseca, 

 (1987) (holding that the
asylum standard is more generous than the withholding standard);
Matter of Chen, 

 (BIA 1989) (past persecution); 

(b)(2) (1992) ("reasonable possibility" definition of
well founded fear asylum standard). Further, we find that the appli-
     -


cant has failed to establish his eligibility for withholding under the
"clear probability" of persecution standard. INS v. Stevie, 

 (1984); see also section 243(h)(1) of the Act; 

(1992).
   As a primary matter, we find that there is no persuasive evidence in
the record to demonstrate that either the Sikh militants or the police
who confronted the applicant sought to punish him on account of one
of the grounds enumerated in the Act. As regards persecution on
account of political opinion, we note the Supreme Court recently made
clear in INS v. Elias Zacarias, 

 (1992), that
                               -


persecution must be on account of the victim's political opinion, not
the persecutor's. The Court further held that an applicant for asylum
must establish that the persecution or feared persecution is because of
that political opinion, rather than a refusal to fight for a guerrilla
group. Id Here, the record indicates that the Sikh militants were
seeking operating resources from the applicant in the form of material

   1 We have assumed, arguendo, that the applicant's testimony is worthy of belief. We
note, however, that he made no reference at all to the incidents regarding the "militant"
Sikhs on his application for asylum and specifically indicated on the application that he
had never been detained or interrogated in any country other than the United States. We
also note that the record does not support the assertion in the applicant's brief on appeal
that he was accused of being a "bad Sikh."

                                           623
Interim Decision #3195

assistance and manpower. The mere fact that the militants also may
have had a generalized political agenda is inadequate to establish that
the applicant fears persecution from them on account of political
opinion. We find no persuasive evidence, direct or circumstantial, that
the motives underlying the militants' conduct towards the applicant
were tied to the applicant's actual or imputed political opinions, rather
than to his refusal to assist them. In this regard, we note that the mere
resistance of forced recruitment is not an "expression of political
opinion hostile to the persecutor." 

 Here, in resisting recruitment,
the applicant indicated that he told the militants that his father was an
honest person and that "they" (apparently meaning the applicant and
his father) believed in creating an independent Sikh state, but not
through violent means? He stated that it was dangerous to tell the
militants this because they had killed certain people who refused to
join them. The militants then demanded money from the applicant's
family and still wanted him to join their group. On another occasion,
the militants returned and threatened to kill him and a family member
if he would not join their cause. He testified that he was beaten by the
militants on this occasion and told that he would not be beaten if he
would join them. While the circumstances the applicant found himself
in were terrible, there is no indication that the militants cared at all
about the reasons for his refusal to join. They certainly did not cease to
be interested in having him join their group because of his views. In
fact, all of the evidence reflects (and the applicant seems to largely
acknowledge on appeal) that the purpose of the threats and mistreatment by the militants was to coerce him into joining with them. The
Supreme Court has held that persecution for this reason is not
"because" of political opinion. Id. at 816.
   Similarly, there is no indication that the police actions against the
applicant extended beyond the investigation of and reaction against
those thought—rightly or wrongly—to be militants seeking the violent
overthrow of the government. Under the circumstances of this case,
the police had reasons to investigate the extent of the applicant's
knowledge of and involvement with Sikh militants. While the applicant states he was subjected to police brutality, which we certainly do
not countenance, the record reflects that the purpose of the mistreatment was to extract information about Sikh militants, rather than to
persecute the applicant "because" of his political opinions or the mere

  2 The applicant did not make it entirely clear what he specifically said to the militants.
He testified that he told them that he could not join them because his father was a "very
honest person" and because "we don't believe in this" (presumably meaning the use of
violence).

                                           624
                                                             Interim Decision #3195

fact that he was a Sikh. 3 Accordingly, the applicant has not established
his eligibility for either asylum or withholding of exclusion and
deportation. Id.
   Moreover, we do not find adequate evidence to demonstrate that
the alleged persecution in this case exists on a country-wide basis. To
establish eligibility for relief under section 208(a) of the Act, an alien
must be unable or unwilling to return to his country of nationality or
the country in which he last resided 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. Inherent
in refugee status is the concept that an individual requires international protection because his country of origin or of habitual residence is
no longer safe for him. This concept is expressed in part by the
requirement in the Act and the United Nations Protocol Relating to
the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S.
No. 6577, 606 U.N.T.S. 268 ("Protocol"), that a refugee must be
unable or unwilling to return to a particular "country." See section
101(a)(42)(A) of the Act; see also Article 1.2 of the Protocol, which
largely incorporates the definition of refugee contained in Article
 IA(2) of the United Nations Convention Relating to the Status of
Refugees, July 28, 1951, 189 U.N.T.S. 150 ("Convention"). Similarly,
the Office of the United Nations High Commissioner for Refugees,
Handbook on Procedures and Criteria for Determining Refugee Status
Under the 1951 Convention and the 1967 Protocol Relating to the
Status of Refugees para. 90, at 21 (Geneva, 1988) ("Handbook")
provides: "As long as [an applicant] has no fear in relation to the
country of his nationality, he can be expected to avail himself of that
country's protection. He is not in need of international protection and
is therefore not a refugee."
    We have construed this requirement "to mean that an alien seeking
to meet the definition of a refugee must do more than show a well-founded fear of persecution in a particular place or abode within a
country—he must show that the threat of persecution exists for him
country-wide." Matter of Acosta, 

 (BIA 1985),
modified on other grounds, Matter of Mogharrabi,      19 I&N Dec_ 439
(BIA 1987). The published cases which have dealt with this issue have

  3 We certainly do not hold that there are no circumstances under which the motive for
police abuses could be to persecute someone on account of a reason protected under the
Act, but we find no direct or circumstantial evidence that such is the case here. There is
no evidence that the police were concerned with anything other than the fact the
applicant was thought to be involved with those engaged in a violent struggle against the
government. There is nothing to indicate that, such being the case, the police cared what
the applicant's individual political opinions may or may not have been or whether he
was or was not a Sikh.

                                           625
Interim Decision #3195

involved claims of nongovernmental persecution. See, e.g., Etugh v.
INS, 

 (3d Cir. 1990); Cuadras v. INS, 

 (9th Cir. 1990); Quintanilla-Ticas v. INS, 

 (9th
Cir. 1986); Diaz-Escobar v. INS, 

 (9th Cir. 1986);
Matter of Fuentes, 

 (BIA 1988). While the
issue will ordinarily arise in these circumstances, it is not limited to
such situations. The issue similarly can arise where governmental
authorities or those with ties to the government cannot be adequately
controlled in one particular area of a country, but individuals can live
safely elsewhere in their country of nationality. The Handbook states:
   The fear of being persecuted need not always extend to the whole territory of the
   refugee's country of nationality. Thus in ethnic dashes or in cases of grave
   disturbances involving civil war conditions, persecution of a specific ethnic or
   national group may occur in only one part of the country. In such situations, a person
   will not be excluded from refugee status merely because he could have sought refuge
   in another part of the same country, if under all the circumstances it would not have
   been reasonable to expect him to do so.
Handbook, supra, para. 91, at 21-22 (second emphasis added).
   This language reflects the concept that, while it is not "always"
necessary to demonstrate a country-wide fear, it is the exception,
rather than the rule, that one can qualify as a refugee without such a
showing.
   In the instant case, the applicant's claim is focused on the state of
Punjab and the violence and police abuses there. The discord in
Punjab is well known. As the advisory opinion from the Department
of State's Bureau of Human Rights and Humanitarian Affairs
("BHRHA") relates, the "[e]thnic strife and separatist violence in the
state of Punjab has been one of India's intractable problems." 4
However, Punjab is but one of 25 states in India, and, as the BHRHA
also notes, India is "a democratic nation with strong legal safeguards
for individuals, a free press, an independent judiciary, and active civil
liberties organizations." The advisory opinion states that the Government of India "does not take action against individuals solely as a
result of their being members of the Sikh faith," and that large
numbers of Sikhs lead "tranquil and productive lives in other parts of
India."

  4 While the letter of the Department of State is advisory in nature, that agency is
charged, inter alia, with the responsibility of knowing what is going on, politically and
otherwise, in foreign countries. In the instant case, the Department of State had the
opportunity to examine and evaluate the applicant's evidence. In view of the
Department of State's knowledge of the country in question, its opinion in this case is
worthy of serious consideration in the absence of facts to the contrary. See generally,
Rojas v. INS, 

, 190 n.I (5th Cir. 1991); Asghari v. INS, 

(9th Cir. 1968).

                                          626
                                                   Interim Decision #3195

   We do not find that the applicant has adequately addressed the
issues raised by this aspect of the BHRHA opinion. The record
indicates that the situation relating to Sikh grievances is peculiar to
Punjab, a geographically small portion of India with its own unique
history. There is no evidence that similar conditions, or violent
political struggles relating to Sikhs, pertain in any other part of India.
There is simply no evidence in this record that the applicant could not
safely live in India, other than in Punjab, or that it would not be
"reasonable to expect him to do so." Handbook, supra, para. 91, at 22.
Particularly given the scrutiny under which India is examined by
human rights organizations, if there were country wide persecution or
                                                     -


mistreatment of Sikhs by government authorities in India, we would
expect there to be corroborative background evidence. See Matter of
Doss, 

 (BIA 1989).
   Therefore, even assuming that the applicant may fear returning to
Punjab, we do not fmd that he has demonstrated either a well-founded
fear or a clear probability of persecution in India. See sections
101(a)(42)(A), 208(a), 243(h)(1) of the Act; 

, 208.16
(1992); INS v. 

 INS v. 

 Assuming,
arguendo, that he previously suffered persecution in Punjab, on the
evidence of record before us, we do not find it unreasonable to expect
him to have sought refuge elsewhere in India. In view of the
unrebutted opinion of the Department of State, which has been
characterized as the "best resource the Board could look to in order to
obtain information on political situations in foreign nations," we find
that a preponderance of the evidence establishes that conditions in
India, outside Punjab, are not such that the applicant would have a
well-founded fear of returning to that country. Rojas v. INS, 

, 190 n.1 (5th Cir. 1991); see also 

(b)(1)(i) (1992).
In view of the absence of evidence of any likelihood of persecution
elsewhere in India and the factual circumstances of this case, we would
deny his application for asylum in the exercise of discretion. Matter of
Chen, supra. We recognize that it is always unfortunate when persons
are obliged to leave their homes as a result of danger or fear, but that is
not the issue here. The question is, once the decision to leave one's
home has been made, does an individual have the right to emigrate
rather than move elsewhere in his own country.
   For the reasons stated above, the appeal will be dismissed.
   ORDER:          The appeal is dismissed.

CONCURRING IN PART AND DISSENTING IN PART:
Mary Maguire Dunne, Board Member

  I respectfully concur in part and dissent in part.

                                   627
Interim Decision #3195

   In its decision, the majority dismisses the applicant's appeal from
the immigration judge's denial of asylum and withholding of exclusion
and deportation. As noted by the majority, the record reflects that the
applicant is a Sikh from the Punjab region of India, who raised a claim
of past persecution, as well as a fear of future persecution, on account
of his religion and his actual or imputed political opinions. The
majority's factual summary of the applicant's persecution claim, which
I adopt, shows that he was abused by Sikh militants, apparently
members of the All India Sikh Student Federation, who sought to
recruit him into their ranks and to force him to contribute material
assistance to their cause. Although the applicant favored the creation
of an independent Sikh state, he refused to join the militants, as he
rejected their use of violence.
   The majority also notes that the applicant's contact with the
militants was reported to the Indian police and that, consequently, he
was arrested as a suspected subversive. The majority summarily
acknowledges that the applicant was subjected to "brutal physical
abuse" by the police. I would add that the specific torture endured by
the applicant included having his arms and legs stretched, being
stripped and whipped with a leather belt, being beaten with batons,
and being denied food.
  Turning to an analysis of the applicant's persecution claim, I concur
with the majority's view that the decision of the United States
Supreme Court in INS v. Elias-Zacarias, 

 (1992), controls
that aspect of his claim dealing with the Sikh militants. That decision
specifically found that forced recruitment by a rebel faction per se does
not amount to persecution within the meaning of the Immigration and
Nationality Act. 

 I strongly disagree, however, with the majority's
position that the abuse meted out to the applicant by the Indian police
was not on account of religion and/or political opinion. I also reject the
majority's alternate holding that the applicant's claim with respect to
the Indian police should be denied because he has not shown a well-founded fear of persecution on a country-wide basis.
   In regard to the underlying merits of the applicant's persecution
claim concerning the Indian police, the majority finds that "the
purpose of the mistreatment was to extract information about Sikh
militants, rather than to persecute the applicant 'because' of his
political opinions or the mere fact that he was a Sikh." In arriving at
this conclusion, the majority has ignored relevant precedent of the
United States Court of Appeals for the Ninth Circuit. As this case
arises within the jurisdiction of that court, we are bound by its
decisions. See Master of Anselmo, 

 (BIA 1989).
Specifically, the Ninth Circuit has ruled that while a government has
the right to prosecute individuals accused of criminal activity, such as

                                   628
                                                           Interim Decision #3195

supporting a guerrilla faction, when violence or threats of violence
usurp legal procedure, then persecution on the basis of political
opinion exists. See, e.g., Blanco-Lopez v. INS, 

 (9th
Cir. 1988).
   In addition, the majority has ignored the principle enunciated in the
Board's own precedent of Matter of Fuentes, 

(BIA 1988), that an alien does not bear the unreasonable burden of
establishing the exact motivation of a persecutor where different
grounds for actions are possible. In this light, I find improper the
majority's confident conclusion that the persecution suffered by the
applicant at the hands of the Indian police was not premised upon one
of the protected grounds.
   In reality, the majority employs a standard diametrically opposed to
that set forth in Matter of Fuentes, supra, by implicitly suggesting that
an alien must prove a persecutorial motivation anchored upon one of
the enumerated grounds to the exclusion of all other possible motivations. Matter of Fuentes, however, recognized that there can be more
than one possible basis for a persecutor's actions. The task of the alien
is simply to demonstrate the reasonableness of a motivation which is
related to one of the enumerated grounds. Concomitantly, it is
irrelevant whether the majority's interpretation of the events is
reasonable; the proper focus is whether the applicant's interpretation is
reasonable.
   Under the facts of this case, it is logical to assume that religious and
political considerations' may have been the critical factors driving the
Indian security apparatus to persecute the applicant. See Singh v.
Ilchert, 

 (N.D. Cal. 1992). In this regard, I
would point out that the present turmoil in the Punjab region of India
is based upon religious as well as political differences, that the
organization the applicant was suspected of belonging to, the All India
Sikh Student Federation, is a religious/political organization, and that
the inhumane conduct experienced by the applicant was disproportionate to any measured government reaction that could be expected
as a response to anti-government activity. See INS v. 

 at 483 84 (holding that direct evidence of a persecutor's motive
                -


is not required, and that circumstantial evidence may suffice).
   For a variety of reasons, I also strongly disagree with the majority's
  'In many instances, the grounds of persecution may overlap. See Office of the United
Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating
to the Status of Refugees para. 67, at 17 (Geneva, 1988); see also INS v. Carrio4a-
Fonseca, 

, 439 rt. 22 (1987) (noting that the Handbook provides "significant
guidance").

                                          629
Interim Decision #3195

alternate finding that the applicant's persecution claim with respect to
the Indian authorities should be denied, as he failed to show a well-founded fear of persecution on a country-wide basis. First, I note that
the majority grounds this determination on a statement set forth in the
advisory opinion of the Department of State's Bureau of Human
Rights and Humanitarian Affairs ("BHRHA") that "large numbers of
Sikhs are leading tranquil and productive lives [outside of the Punjab]
in other parts of India." Although the BHRHA advisory opinion is
physically contained in the record and the immigration judge generally
referred to it in his decision, it apparently was never entered into
evidence, contrary to regulation. See 

(c) (1992). The
Act "provides that all evidence which is pertinent to determinations
made during deportation [or exclusion] proceedings ... must be
adduced in the hearing before the immigration judge." Matter of
Fedorenko, 

 (BIA 1984) (footnote omitted).
   Second, the issue of country-wide persecution was never raised at
the hearing below, in the immigration judge's decision, or on appeal.
Under these circumstances, the majority's finding that the applicant
failed to "adequately address" the question is fundamentally unfair.
Clearly, the applicant did not have a meaningful opportunity to
respond to the critical aspect of the BHRHA advisory opinion upon
which the majority relies. See 

(c) (1992); Matter of
Saban, 

 (BIA 1981). As a practical matter, this
lapse of due process is especially egregious when one considers the fact
that this case has been designated as a precedent decision. The Board
is basing its finding upon a factual assumption which has not been
properly developed.
   Third, as noted above, this matter arises within the jurisdiction of
the Ninth Circuit and we are bound to follow the precedent of that
court. It is highly doubtful that the Ninth Circuit would countenance
the use of the principle of country-vvide persecution where, as here, an
alien has been persecuted by one component of a government's
security apparatus, the overall organization of which "would presumably be capable of locating [the alien] in other regions of India." Singh
v. 

 at 321 (citing to Ninth Circuit precedent); see also
Beltran-Zavala v. INS, 

 (9th Cir. 1990).
   Fourth, I find that the majority's country-wide persecution analysis
is premised upon a factual conclusion by the BHRHA which is highly
suspect. For example, the BHRHA does not explain whether the "large
numbers of Sikhs" who lead "tranquil and productive lives" outside of
the Punjab include those who, like the applicant, have previously run
afoul of the Indian police. Concomitantly, it fails to mention whether a
Sikh's "ability to avoid further persecution by relocating inconspicuously may be limited by his manner of religious dress and his inability

                                  630
                                                  Interim Decision #3195

to speak the languages or dialects of other regions of India." Singh v.
Ikhert, supra, at 321.
   Moreover, although the BHRHA purportedly based its opinion on
the Department of State's annual Country Reports on Human Rights
Practices, it fails to comment on highly relevant information set forth
in those materials. See, e.g., Committees on Foreign Relations and
Foreign Affairs, 102d Cong., 1st Sess., Country Reports on Human
Rights Practices for 1990 1425 (Joint Comm. Print 1991) ("Country
Reports"). In particular, the Country Reports note that over 3,000
Sikhs were killed during anti-Sikh rioting in New Delhi and elsewhere
in India following the 1984 assassination of Indira Gandhi by her Sikh
bodyguards. Id. at 1426. Furthermore, they reflect that only a small
percentage of those charged with instigating or participating in the
rioting were actually convicted, and that most of these were found
guilty of minor offenses. Id. The Country Reports also refer to
allegations that "the principal instigators of the riots are protected
from prosecution by their high political visibility, and that none of
those arrested were major figures in the mass killing of Sikhs." Id.
Additionally, an earlier report indicates that "a large number- of Sikhs
fled from other parts of India to the Punjab as a result of the riots.
Committees on Foreign Relations and Foreign Affairs, 99th Cong., 2d
Sess., Country Reports on Human Rights Practices for 1985 1221, 1221
(Joint Comm. Print 1986).
   As a fmal concern, I would note that the legal analysis employed by
the majority in conjunction with the principle of country-wide
persecution is seriously flawed. In the context of a past persecution
scenario, the majority concludes that the applicant's failure to
establish country wide persecution mandates that his applications for
                 -


asylum and withholding be denied. The majority has pointed to no
direct statutory or regulatory authority for such a conclusion. On the
contrary, pursuant to 

(b)(1)(i) (1992), once past
persecution is established, an alien is presumed to have a well founded
                                                               -


fear of future persecution if he were to return to his homeland, and the
burden is on the Immigration and Naturalization Service to show
otherwise by a preponderance of the evidence.
   Therefore, in the matter at hand, the burden is on the Service to
disprove the existence of country-wide persecution rather than on the
applicant to prove it. See Singlyv. 

. A problematic
one-sentence reference in a BHRHA opinion is insufficient to meet the
Service's burden. See generally Matter of Doss, 

 (BIA 1989) (concerning the necessity of presenting adequate
background. documentation). Moreover, even if the Service were to
prove that the applicant could safely live in regions of India outside of
the Punjab, the applicant still may be granted asylum in the exercise of
                                   631
 Interim Decision #3195

discretion if he shows "compelling reasons" for not returning, such as
the severity of his past persecution. See 

(b)(1)(ii)
(1992); Matter of Chen, 

 (BIA 1989).
    Accordingly, having carefully reviewed the record and relevant
authority, I conclude that the applicant has demonstrated statutory
eligibility for asylum.2 Since I find no basis in the record for an adverse
discretionary determination, I would sustain the appeal and grant the
application for asylum.

 CONCURRING OPINION: Michael J. Heilman, Board Member

   I respectfully concur.
   The dissenting opinion contains a number of statements that should
not go unchallenged. First, the statement that the "present turmoil in
the Punjab region of India is based upon religious as well as political
differences" is completely at odds with the history of India. Punjab,
which is a state, not a region, has experienced violence instigated solely
by Sikh extremists who have attacked fellow Sikhs, Hindus, and
Moslems in furtherance of their plan to establish an independent Sikh
state. The dissenting opinion would lead one to believe that the
"turmoil" in Punjab resulted from some sort of religions "differences"
for which the Hindus and Moslems bear responsibility, and that the
Hindus and Moslems first attacked or repressed the Sikhs. This
statement has absolutely no basis in fact.
   There have been since the early 1980's in Punjab demands by some
Sikhs over the sharing of the state capital at Chandigarh with Haryana,
and grievances over land disputes and water rights pertaining to the
Sutlez -Umana Canal. The Government of India was willing to discuss
these issues with Sikh political figures and did so, in a series of
negotiations. Unfortunately for all concerned, a small but highly
vicious band of extremists had decided that Punjab had to become an
independent Sikh state, despite the fact that almost 40 percent of the
population is Moslem and Hindu. These extremists armed themselves
and began a campaign of terror, which in 1984 led to the infamous
battle at the "Golden Temple," the subsequent murder of Prime
Minister Gandhi, and anti-Sikh violence in some parts of India. It is
Sikh-inspired violence that is the historical context for this claim, not
any campaign against the Sikhs led by the government or any other
religious group, to which the Sikhs are responding.
   The dissenting opinion finds that the Government of India

  2 1 find it necessary to point out that the separate concurring opinion in this case has
misinterpreted various aspects of my legal and factual analysis. In lieu of a direct reply,
however, I am content to let the careful reader draw his or her own conclusions.

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persecutes Sikhs on the basis of religion.. The history of India does not
disclose any support whatsoever for this view. Sikhs constitute less
than 2 percent of the population of India, but have occupied high
positions in the Indian Government and military. India is, by terms of
its 1976 constitution, a secular state. In 1982, a Sikh, Giani Singh, was
elected President of India, and at present another Sikh, Man Singh, is
Minister of Finance. It would strike me as quite odd that members of a
"persecuted" religious group would be chosen for such high posts. The
Nazis did not have a Jewish minister of finance.
    I know of no information in this record or from any other source
that would support the dissenting member's opinion that the Government of India persecutes Sikhs on account of their religion or is happy
to allow others to do so. It is clear to me that there is no historical basis
at all for such a view. This asylum claim has no plausible context.
    It might be useful in regard to this issue to point out that the
violence in Punjab has occurred during a period when many other
communal and separatist conflicts have occurred, none of which had
anything to do with Sikhs. These conflicts led the Indian Government
to introduce police and military forces and suspend local governments,
as happened in Punjab. In the 1980's and up to the present, there has
been agitation or violence in Goa, Assam, Karnataka, Tamil Nadu,
Gujarat, Rajasthan, Bihar, Uttar Pradesh, Madhya Pradesh, Kashmir,
and West Bengal. Is the fact that Moslems and Hindus and Gurkhas
and Nepalese were killed in all of these places evidence that the
Government of India persecutes them as well?
    The dissenting opinion would have us believe that the anti-Sikh
violence that occurred after Prime Minister Gandhi's murder is
evidence of religious persecution of Sikhs that shows Sikhs are
persecuted all over India. If this is so, then the intermittent violence
against Hindus and Moslems and Nepalese and Bengalis in other parts
of India shows persecution of those persons as well. As Hindus and
Moslems constitute over 90 percent of the population of India, we
would have an enormous number of people who could make the same
claim of religious persecution, many of them on the basis of attacks by
Sikhs. Communal and religious violence is a sad fact of Indian history,
beginning with the partition of India and Pakistan. There is no
evidence, however, that the Government of India supports or engages
in this violence, although the Government has a checkered history in
its responses to clashes or attacks by one group against another. But
these occurrences show failings on the part of the Government, not
any policy of religious persecution.
    "lhe dissenting opinion also comes to unsubstantiated conclusions
regarding purported mistreatment of the asylum applicant by the
police as evidence of persecution on account of religious belief. It is

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not clear to me at all why it is assumed that the police in Punjab are
not Sikhs, but Hindus or Moslems. There is no evidence in the record
to support this assumption. Recent news articles about Punjab have
related accounts of the murder of Sikh policemen and their families by
extremist Sikhs. It would appear that it is convenient for the dissent to
assume that the police in Punjab are not Sikhs, or else the religious
persecution theory makes no sense. As it is clear that Sikhs are
policemen, it would seem elementary to make some inquiry into the
percentage of policemen in Punjab who are Sikh, and whether they too
mistreat Sikhs who fall into their hands. The proposition that Sikh
policemen mistreat Sikhs on account of their common religion is
implausible on its face.
    As to the dissenting view that mistreatment of Sikhs occurs on
account of "political differences," a like number of unfounded
assumptions come into play. It is the case in India, as it is in many
countries, that the police sometimes exercise their powers in ways that
are objectionable. In most instances, beatings and arrests are considered abuses of police authority, not forms of persecution_ For instance,
the recent beating of Rodney King in Los Angeles was perceived as
police misconduct, not persecution of Mr. King. What do we have in
India that makes the situation different?
   Again, as with religion, it is necessary to look to the underlying
context of the claim to determine whether there is a history of
persecution of Sikhs in India on account of political opinion. This
record shows none. It seems entirely specious to assume that all Sikhs
even have the same opinions on political issues of interest to Indian
citizens. The only category of Sikhs that appears to have any relevance
here is those who have desires relating to the governance of Punjab.
Yet we know that Sikhs freely elect persons in Punjab who represent
their views on such matters in the state assembly, as well as to the
national government, through the medium of Sikh-based political
parties. In 1985, in fact, after the battle at the Golden Temple, the
Indian Government negotiated a political settlement over a number of
issues relating to Sikh demands and established governmental commissions to carry out the agreement At that time and after, the
Government of India has discussed Sikh concerns and negotiated on
matters of mutual concern.
   So where in the recent history of India is there evidence of
"persecution" of Sikhs on account of political opinion, and what
political opinion? Are we in the realm of fantasy here? Did Hitler
negotiate differences with Jews, did Stalin negotiate differences with
the "kulaks," did Pol Pot negotiate with his political opposition?
There is no history in this record, or outside of it, of the Government
of India persecuting Sikhs for peacefully expressing their views

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through the Indian political process. There is no evidence that while
the Government has been negotiating with Sikh moderates for over a
decade it has been persecuting them at the same time. So, it appears
clear to me that the "political opinion" the dissent alludes to cannot be
the political opinion of asserting Sikh views on matters of government.
   Let us be clear on what we mean. Who is in danger and for what
reason? In my estimation, the category "at risk" is those Sikhs
suspected, rightly or wrongly, of being associated with the terrorist
Sikh organizations, of providing them assistance. This is an extremely
narrow category of persons. The dissenting opinion, I would note, does
not define the "political opinion" that it sees being attacked by the
police, so that is left purely to conjecture. If the dissent sees the
political opinion as being Sikh separatism, then of course, there is no
basis for this, as there is no evidence that peaceful expression of this
program through the Indian political system places anyone at risk.
   Is, however, the "political opinion" envisioned by the dissenting
opinion the violent separation of Punjab from India through a
program of murder and terrorism, and the creation of a "pure" Sikh
state, with Hindus and Moslems to be driven out? If it is, I absolutely
reject the notion that this is a form of political opinion protected by
the Refugee Act of 1980, 

 Stat. 102.
   Unlike the dissenting opinion, I do not find all political opinion to
be equal, or protected under the term "political opinion" as used in the
Refugee Act of 1980. I am well aware, of course, that persecution is
generally defined as the infliction of harm on account of a "differing"
political opinion, one which the supposed agent of persecution finds
"offensive." But this is a theory that is surely filled with dangerous
pitfalls, if all opinions are treated as equal. If the political program of
Sikh extremists includes the murder of policemen and government
officials, as well as judges and political figures, is this not a program
that one should differ with and try to overcome? Surely the opposite is
not possible, that one should support it and grant asylum for it.
   Violent expression of political opinion was at the heart of a claim
that an Irish national wished to make to this Board. The Attorney
General refused to let the claim be made, and the Supreme Court
affirmed that decision. INS v. Doherty, 

 (1992). In that
instance, an Irish nationalist had murdered a British Army officer and
claimed that he was persecuted on account of his political opinion of
Irish nationalism. In that case, as in the present, an identifiable group
of people with political grievances, nationalist sentiments, and a
particular religion had rejected the peaceful political process and opted
for violent confrontation. Both that claim and this occur against a
backdrop of alleged police misconduct.
   We know that the Sikh extremists, as well as the violent Irish

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nationalists, have a political program that, in their minds, justifies
violence. What the Sikh extremists want and how they operate is no
mystery to the Indian public, and most certainly not to the Indian
police, who know how many policemen have been killed and the
suffering that the extremists have caused. The police did not start this
violence; the police did not one day decide to start killing Sikhs and
drive them out of Punjab. How incredibly odd that the dissenting
opinion assigns them the onus of "persecution. - What a remarkable
juxtaposition of victim and killer.
   And here I will be as blunt as possible: Given the viciousness with
which the extremists have murdered so many persons, among them
many policemen and their families, would one realistically expect
gentle treatment? It ill behooves us to label as agents of persecution the
very people the Sikh extremists murder with abandon when they have
the opportunity. We know from our own history that policemen who
consider themselves targets of extremists understandably react in ways
that have little to do with constitutional theory, or conventional police
procedures. Let us remember the fate of the Symbionesc Liberation
Army in Los Angeles and the Black Panthers in Chicago.
   The dissenting opinion is correct in one respect in citing Blanco-Lopez v. INS, 

 (9th Cir. 1988), in support of the
proposition that mistreatment by the police is viewed in the Ninth
Circuit as a form of persecution. That decision found as persecution
supposedly threatened mistreatment of a former employee of the
Salvadoran Government who had been accused of gun running on
behalf of Salvadoran guerrillas who were attempting to overthrow the
Government of El Salvador through a program of violence and
murder, acts universally considered to constitute treason or sedition.
The Ninth Circuit found that the Salvadoran Government "believed
him to be a guerrilla and attempted to persecute him for it," that he
faced "persecution based on Blanco-Lopez's perceived political belief." 

. The court, however, through oversight or design,
never defined what the "political beliefs" of a guerrilla might be. It
would appear that the Ninth Circuit holds the entirely novel view that
the violent overthrow of a democratically elected government is a
"political opinion" like any other and that no government may object
to its expression. If a guerrilla organization arose in this country aimed
at the violent overthrow of the Federal Government through a
program of murder of government and law enforcement officials and
federal judges, it would appear that governmental suppression of this
organization would be an act of persecution in the Ninth Circuit. After
all, if that court could find that the Government of El Salvador
"persecuted" Blanco-Lopez because it believed him "to be a guerrilla,"
then it is clear that "being" a guerrilla is somehow a form of "political

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opinion," regardless of the actual objectives of the guerrillas and their
methods. If this is so, then that court could not logically object to the
murder of federal judges by "guerrillas" who are only acting out their
"political opinion," whether it be a form of Marxism or "Aryan
supremacy."
   I am aware that the Ninth Circuit arrived at the conclusion that
"being" a guerrilla is a form of political opinion by constructing a
syllogism. In this syllogism, the court applied two premises. The first is
that the mistreatment Blanco-Lopez feared was not a "legitimate
criminal prosecution." Blanco-Lopez v. INS, supra, at 534. No one of
course had said that it was. The court's second premise was that if the
feared police actions were not prosecution, then they constituted
"persecution." This is a faulty, unfounded second premise, more in the
nature of a slogan than a statement of fact. It is not a legal or logical
principle that anything that is not prosecution is therefore persecution.
"Illegitimate" police actions may be many things: simple acts of
criminality, abuses of authority, or acts of sadism. If it follows, as the
Ninth Circuit assumes, that all that is not prosecution is persecution,
then an ill-treated burglar or rapist could claim persecution on account
of "being" in a social group of burglars or rapists.
  But this logical failing aside, if it is true that "being" a guerrilla is
the acting out of a political opinion that policemen should be killed, I
would still reject the proposition that this is a form of "political
opinion" protected by the asylum laws. If a "political opinion" of this
type is protected, then so is the view that Jews should be killed because
they are believed to control the world, or that federal judges should be
murdered because they are considered an instrument of repression of
Caucasian Christians.
   It is clear to me that such an application of the term "persecution"
was untenable even before INS v. Elias-Zacarias, 

 (1992).
But now, there is surely no life whatsoever in the Blanco-Lopez
analysis. It is inconceivable that any person could claim that he is
persecuted "on account" of suspicion of "being" a gun-running
guerrilla. "Being" a guerrilla is not a form of political opinion. "Being"
a guerrilla means being engaged in acts of violence and illegality. I
know of no legal principle or form of logic that states that "being"
engaged in such acts automatically transforms the "political opinions"
that drive those acts into a form of political opinion protected by
United States law. Under this theory, Serbian guerrillas who wish to
"cleanse" Bosnia of Moslems would obtain asylum in the Ninth
Circuit.
   The applicant here, for substantial reasons, was suspected of helping
members of an extremist organization which has murdered many
persons, including policemen, in furtherance of the political goal of

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independence of "Khalistan." If caught, he faces the distinct possibility of being mistreated. I can only assume that the dissenting member
would consider this person an obi ect of persecution, on account of the
facts that Indian policemen wish to "overcome" or disagree with the
"political opinion" that policemen should be killed, and that they
might abuse him if they catch hint. How marvelous. Perhaps we could
offer asylum to a Sikh who has bombed a bus and killed innocent men,
women, and children of several religions, Sikhs included, on the
ground that he risks certain death if caught for such an outrageous act.
    One faces the remarkable possibility under Blanco-Lopez that the
more egregious the act and the greater the outrage, the higher the
probability of being granted asylum, on the ground that claimed police
mistreatment will be on "account of political opinion," not human
failings, vengeance, or anger provoked by the extremists' acts. It never
occurred to the court in Blanco-Lopez,after all, that the police officials
of El Salvador might reasonably be angered by their well-founded
belief that he was providing guns to persons who killed soldiers and
Policemen, not by his "political opinion," which, of course, they had
shown no interest in whatsoever prior to their receipt of information
that he was gun-running. This interpretation would be directly
contrary to the holding of INS v. 

    In the present case, there is simply no basis in history or logic to
find persecution of the applicant on account of religion, or on the basis
of political opinion protected by the Refugee Act of 1980, supra. If the
dissenting member wishes to accord asylum to persons who are
thought to have helped violent Sikli terrorist organizations which have
murdered Hindu, Moslem, and Sikh men, women, and children, then
it should be openly stated. If this is the "political opinion" in question,
and I can see no other that applies, then our asylum law would be put
to an entirely unintended use by such an application. If the applicant
here succeeds, then those Sikhs who have in fact committed acts of
violence and murder would be entitled to asylum also, on the simple
ground that they have either been mistreated by the police, or fear such
mistreatment. What a perverse application of laws intended to accord
sanctuary to the persecuted of the world.
    For these reasons and those stated by the majority I would also
dismiss the appeal.




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