K-S

                                                             Interim Decision #3209




                              MATTER OF K-S-
                            In Exclusion Proceedings
                                     A-29810907

                     Decided by Board October 5, 1993

  In contrast to the precedential authority of the case law of a United States circuit
court, the Board of Immigration Appeals is not bound to follow the published decision
of a United States district court in cases arising within the same district. Matter of
Fakalata, 

 (BIA 1982); Matter of Melendez, 16 l&N Dec. 54, 55
(BIA 1976); Matter of Harris, 15 l&N Dec. 39, 43 (BIA 1970); and Matter of Amado and
Monteiro, 

 (BIA 1969), modified in part.
EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [

(a)(19)j—Fraud or
                        willful misrepresentation of a material fact
                                Sec. 212(a)(20) [

(a)(20)]—No valid
                                  immigrant visa
                               Sec. 212(a)(26) [

(3)(26)1—No valid
                                 nonimmigrant visa
ON BEHALF OF APPLICANT:                               ON BEHALF OF SERVICE:
 Paul M. Kaplan, Esquire                               Patricia M. Mayberry
 Law Offices of Alan M. Kaufman                        General Attorney
  220 Montgomery Street, Suite 976
  San Francisco, California 94104

BY: Milhollan, Chairman; Dunne, Morris, Vacca, awl Heilman, Board Members


  In a decision rendered on February 2, 1993, the immigration judge
found the applicant excludable pursuant to the grounds set forth
above.' Furthermore, the immigration judge denied his petitions for
  1 We point out that section 212(026) of the Immigration and Nationality Act, 

(a)(26) (1988), is not an appropriate ground for exclusion in this case.
Where an alien has failed to establish his entitlement to status as a nonimmigrant, he is
properly excludable under section 212(a)(20) of the Act as an immigrant without the
requisite entry documents, rather than under section 212(a)(26) of the Act, as a
nonimmigrant lacking the required documentation. See Matter of Healy and Goodchtbd,
17 I&N Dcc. 22, 26 (BIA 1979).
  Although not applicable to the instant case, the grounds for exclusion were revised and
redesignated by section 601(a) of the Immigration Act of 1990, 

Stat. 4978, 5067. See Matter of Papazyan, 20 l&N Dec. 568 (BIA 1992).

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Interim Decision #3209

asylum under section 208(a) of the Immigration and Nationality Act, 

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

(h) (1988 and
Supp. IV 1992), and ordered him excluded and deported from the
United States. The applicant, through counsel, has appealed from that
decision, but only with respect to the denial of relief from exclusion
and deportation. For its part, the Immigration and Naturalization
Service contends that the decision of the immigration judge is correct.
The appeal will be dismissed.
    The record reflects that the applicant is a 26-year-old native and
citizen of India, who raised a persecution claim with respect to the
authorities as well as an extremist faction in that country. In
particular, he related that he is a Sikh from the state of Punjab who
lived with his family. He testified that he worked as a farmer and as an
automotive electrician. The applicant explained that he also performed various duties at a local Sikh temple, including distributing
food, making repairs, and cleaning. He advised that while he believed
in the creation of an independent Sikh state, i.e., Khalistan„ he was not
politically active.
   According to the applicant, armed Sikh militants began to visit his
family home in 1987. He recalled that they demanded entrance upon
pain of death and informed him that if he could not otherwise support
their struggle for Khalistan, he should at least provide them with food.
He declared that he complied with their demand out of fear. The
applicant recounted the militants' warning that they would return
periodically and that he should not report their presence to the
authorities. He testified that while he was aware of government notices
requiring citizens to disclose such contact, he feared retaliation.
   The applicant indicated that the terrorists continued to call on him
until finally, after some 4 to 5 months, he was arrested by the Punjab
police. He noted that he had been implicated by one of the militants
who had run afoul of the authorities. The applicant advised that he
was held for 6 days and interrogated under torture. He recalled that he
was questioned about the extremists, whether he belonged to their
group, and why he had not reported them. He stated that he eventually
was released due to the intervention of his father and the village
leader. He observed that he required medical treatment because of the
abuse that he suffered.
   The applicant declared that during the following months, both the
militants and the police repeatedly visited his family home. He related
that the police would come by day, while the militants would arrive at
night. He advised that due to his fear of harm from both groups, he
stopped sleeping at home and kept a constant watch during the day.
The applicant stated that in 1988, he visited an agent in Delhi to assist
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                                                              Interim Decision #3209

him in leaving India. He explained that he could not relocate to
another state within the country because the danger was omnipresent
and the police could find him anywhere. He indicated that he worked
for 2 years to amass the fee required by the agent. He testified that he
departed India in November 1990 and travelled to the United States,
where he had a lawful permanent resident sister_
   Theapplicant noted that following his arrival in this country, his
family informed him that a second member of the militant group had
been apprehended by the authorities. He declared that the police
apparently learned of his continued contact with the terrorists and
warned his family to report his return?
   In addition to his own testimony, the applicant offered personal and
background documentation in support of his persecution claim. This
material included a letter from his village leader generally corroborating his story. He also submitted reports by the Department of State
and Amnesty International which discussed the human rights situation
in India, including abuses by the security forces in Punjab. The record
also contains an advisory opinion issued by the Department of State's
Bureau of Human Rights and Humanitarian Affairs ("BHRHA").
   At the conclusion of the hearing, the immigration judge denied the
applicant's petitions for asylum and withholding relief. Specifically,
she determined that the applicant had failed to establish past
persecution or the requisite fear of future persecution within the
meaning of the Act. On appeal, the applicant contests the immigration
judge's holding. He asserts, inter alia, that the facts of his case are
identical to those in Singh v. lichenl, 

 (ND. Cal.
1992), where the United States District Court for the Northern
District of California found an Indian Sikh from Punjab eligible for
asylum. Consequently, he argues that the Board must apply the
reasoning of the district court in his case. In response, the Service
concedes that this matter arises within the jurisdiction of the Singh
court. It contends, however, that the Board is not bound by the
decision of a district court in such a situation. Instead, the Service
maintains that the applicant's case is controlled by the Board's
decision in Matter of R-, 20 l&N Dec. 621 (BIA 1992), remanded sub
nom. Rana v. Moshorak, No. CV 93-0274 (C.D. Cal. July 15, 1993),
which also involved the persecution claim of a Sikh from the state of
Punjab in India.

  2 Acc,ording to the applicant, the militants, unlike the police, stopped visiting his home
after he departed India. He explained that the militants generally did not deal with a
household lacking male members. In this regard, he observed that his father had died in
1989 and that his brother was constantly travelling.

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Interim Decision #3209

 PRECEDENTIAL VALUE OF DISTRICT COURT DECISIONS
   As a primary matter, we acknowledge that pursuant to our own
holding in Matter of Amado and Monteiro, 

 (BIA
 1969), the Board is bound to follow the ruling of a United States
district court in matters arising within the same jurisdiction. Nevertheless, we conclude that the decision and its progeny 3 represent an
incorrect legal position. Consequently, we find it necessary to withdraw from those cases on this limited issue.
   We point out that the holding in Matter of Amado and Monteiro,
supra, was stated in a conclusory fashion without any supporting
analysis or authority. Although we have held that published case law
from a United States court of appeals must be followed within the
same circuit, except in unusual circumstances, see, e.g., Matter of
Anselrno, 

, 30 32 (BIA 1989), the issue of district
                                     -


court "precedent" is fundamentally different. In particular, we note
that one panel of a circuit court is bound by the unappealed published
decision of another panel unless and until the decision is modified by
the en banc court. See, e.g., Ward v. City of San Jose, 

 (9th Cir. 1991); Centel Cable v. White Dev. Corp., 

,
908-09 (11th Cir. 1990). By contrast, district court judges are not
bound by the published decisions of their colleagues, even in the same
district. See Starbuck v. City & Cty. of San Francisco, 

.13 (9th Cir. 1977); Lee v. China Airlines Ltd., 

 (C.D. Cal. 1987); In re Korean Airlines Disaster of Sept. 1, 1983,

 (D.D.C. 1986); Charley's Taxi Radio
Dispatch v. Sida of Hawaii, 

 (D. Haw. 1983),
affd in part and rev'd in part on other grounds, 

 (9th Cir.
 1987); Indiana Nat. Corp. v. Rich, 

, 867 68 (S.D. Ind.
                                                                  -


1982), rev'd on other grounds, 

 (7th Cir. 1983); State
Farm Mut_ Auto Ins. Co. v. Bates, 

 (ND. Ga.
1982); Hartley v. Sioux City and New Orleans Barge Lines, Inc., 

 (W.D. Pa. 1965), aff d, 37.

 (3d Cir. 1967);
White v. Baltic Conveyor Co., 

 (D.N.J. 1962).
   Moreover, the United States Supreme Court has made clear that the
Federal Government is not restricted by the doctrine of "nonmutual
collateral estoppel." See United States v. Mendoza, 

(1984). Specifically, pursuant to Mendoza, the Government's failure to
appeal from the adverse decision of a lower federal court does not bar

 3See, e.g., Matter of Fakalata, 

 (BIA 1982); Matter of
Melendez, 

 (BIA 1976); Matter of Harris, 15 1&N Dec. 39, 43 (BIA
1970, modified on other grounds, Matter of Rivers, 11 1&N Dec. 419 (BIA 1980). See
generally Matter of Anselmo, 

 (BIA 1989) (referring to circuit
court precedent, but citing to Matter of Amado and Monteiro, supra, with approval).

                                         718
                                                              Interim Decision #3209

it per se from relitigating the same question in a subsequent case
against a different party. 4 The Court noted that there may be many
reasons, besides acquiescence, as to why the Government might not
seek further review in a particular cases Id. at 160-61.
   If an agency of the Federal Government were required to follow the
decision of a district court within that tribunal's jurisdiction, other
judges from that same district would never have the opportunity to
review the issue presented. See United States v. 

(raising the concern that the development of important questions of
law might be thwarted). While the reasoning underlying a district
judge's decision must be given due consideration, particularly as other
judges will apply the "discretionary doctrine of intra-court comity,"
see, e.g., Indiana Nat. Corp. v. 

, the analysis does not
have to be followed as a matter of law. 6 We are not aware of any valid
authority of the United States Court of Appeals for the Ninth Circuit
which holds otherwise.'
   While there are a great number of cases addressing a federal
agency's obligation to follow the law of a circuit court, see, e.g., NLRB

  4 The fact situation in Mendoza involved two separate district court jurisdictions, i.e.,
the Government had failed to appeal from an adverse decision of the United States
District Court for the Northern District of California and then sought to relitigate the
same underlying issue before the United States District Court for the Central District of
California. In rendering its decision, the Supreme Court gave no indication as to
whether it would have ruled differently had the facts involved two different judges
within the same district. But see Pierre v. Rivkind, 

 (11th Cir. 1987),
and Stieberger v. Heckler, 

, 1358 n.29 (S.D.N.Y. 1985), vacated on
other grounds sub nom. Stieberger v. Bowen, 

 (2d Cir. 1986), which suggest
(Pierre by its fact pattern) that such a distinction was not material to the Supreme
Court's ruling.
  As noted in Stieberger v. 

, however: "Mendoza does not support
(a) right (by the Government' to refuse to apply the legal rules enumerated in a circuit
WWI decision in subsequent. cases within the same circuit."
  5 In its brief, the Service acknowledges that the Government withdrew its appeal from
the decision in Singh' v. Eckert, supra. The Service represents, however, that the
withdrawal was mandated by reasons other than acquiescence. Presumably, the
Government's decision was motivated by "institutional" or "policy" concerns of the
type described in United States v. 

 at 160 61, rather than solely by a
                                                             -


general fear of establishing adverse precedent.
  6 AS a practical matter, of course, the greater the number of judges who ascribe to a
particular ruling, the less tenable the Federal Government's opposition in that district
becomes. If the holdings were consistently unfavorable, one would reasonably expect the
Government either to acquiesce or to appeal, rather than to delay until all or a vast
majority of the judges within the district had ruled against it. We note, for example, that
the Northern District of California Is composed of some 13 sitting judges. See 816 F.
Supp. VII, XX (Judges of the Courts).
  7 As this matter arises within the jurisdiction of the Ninth Circuit, we would be bound
by the pertinent decisions of that court. See Matter of Anselmo, supra.

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Interim Decision #3209

v. Ashkenazy Prop. Mgmt. Corp., 

 (9th Cir. 1987); Spraic v.
United States R.R. Retirement Bd., 

 (9th Cir.
1984); Ithaca College v. NLRB, 

, 228 (2d Cir.), cert.
denied, 

 (1980), there are virtually none addressing the
issue with respect to the ruling of a district court. Reason would
suggest that this would not be the case if the principles concerning the
precedential value of circuit court decisions also applied to district
court decisions. In fact, because of the large volume of district court
decisions, one would expect a significant number of relevant cases to
exist if the position stated in Matter of Amado and Monteiro, supra,
were correct.
   We have been able to uncover only two federal court cases which
contain language directly contradicting the position which we adopt
today: Hillhouse v. Harris, 

 (W.D. Ark. 1982),
aff'd, 

 (8th Cir. 1983), and Flores v. Seer. of Health,
Educ. and Welfare, 

 (D.P.R. 1964). Neither
matter arose within the Northern District of California or the Ninth
Circuit. Further, Floras did not cite any authority in support of its
holding. While the judge in Flores admonished the subject federal
agency for having failed to appeal from the adverse district court
decision at issue, see 

, as noted in United States v. 

, there may be reasons besides acquiescence to explain
why an agency might not seek reversal or modification of a particular
ruling. With respect to Hillhouse v. Harris, supra, we consider that the
relevant analyses of both the district court and the reviewing circuit
court are dicta. Additionally, they cite to supporting authority which
pertains solely to the obligation of an agency to follow the law of the
circuits Id.

    MERITS OF THE APPLICANT'S PERSECUTION CLAIM
   After careful review, we find that the applicant has failed to
establish eligibility for either asylum or withholding of exclusion and
deportation.9 See sections 208(a) and 243(h) of the Act; section
101(a)(42)(A) of the Act, 

(a)(42)(A) (1988); 

, 208.16 (1993); see also 

(b)(2) (1993)
(setting forth "reasonable possibility" requirement of well-founded
fear asylum standard); INS v. Cardoza-Fonseca, 

 (1987)
(holding that asylum standard is more generous than withholding
standard); INS v. Stevic, 

 (1984) (defining withholding
  gThis Board has not followed a practice of nonacquiescence in circuit court decisions
in cases arising within the same jurisdiction. See Matter of Anselmo, supra, at 30-31.
  9 We have assumed, arguendo, that the factual basis of the applicant's persecution
claim is worthy of belief.

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                                                             Interim Decision #3209

standard); Matter of Chen, 

 (BIA 1989) (defining past
persecution).
   Specifically, having withdrawn from Matter of Amado and Monteiro, supra, and its progeny, we do not find ourselves obliged to follow
the ruling of the district court in Singh v. 

 with respect to
the merits of the applicant's persecution claim. While we have
carefully examined the reasoning of the court, we respectfully disagree
with its conclusions. See Matter of R , supra.    -


   Instead, we find that the analysis of the applicant's persecution
claim is controlled by Matter of R-, supra. As we acknowledged in that
ruling, extrajudicial police actions and separatist violence are, unfortunately, common occurrences in the Indian state of Punjab. /d. at 626.
Nevertheless, as indicated by the United States Supreme Court in INS
v. Elias Zacarias, 

 (1992), an alien must do more than
simply show physical abuse or civil rights or human rights violations in
order to demonstrate persecution within the meaning of the Act."' See
also Martinez-Romero v. INS, 

 (9th Cir_ 1982) (concerning general civil strife).
   With respect to the applicant's fear of harm at the hands of Sikh
extremists, we find that there is no persuasive evidence to show that
their demands for material support implicated any of the protected
grounds. See Matter of R-, supra, at 623 -24. The mere fact that the
terrorists may have had a generalized political agenda is insufficient to
establish that they interpreted any hesitancy on the part of the
applicant as a sign of opposition to their ultimate political goals. Id
Indeed, like the militants, the applicant favored the creation of an
independent Sikh state. Moreover, we consider that he ultimately
complied with their requests for food. His fear of retaliation as a
perceived informer is not based upon any of the protected grounds.
See supra note 10.
  10 0n appeal, the applicant cites to the Ninth Circuit's decision   in Montecino v. INS,

 (9th Cir. 1990), in support of his case. Pursuant to the Ninth Circuit's
analysis, an ex-soldier's objectively reasonable fear of reprisal by guerrilla forces in a
civil war setting automatically establishes eligibility for asylum. We find that the Ninth
Circuit's reasoning has been effectively overruled by the decision of the Supreme Court
in INS v. Elias 

 For example, the mere existence of a generalized
political motivation underlying the actions of one side to a civil war is insufficient to
establish persecution on account of political opinion for purposes of the Act. 

.
There must be some direct or persuasive circumstantial showing that the persecutor's
specific motives regarding the targeted individual are reasonably premised upon one of
the protected grounds. 

.
  In the alternative, we find that the applicant's situation is distinguishable from
Montecino v. INS, .supra, at 520, insofar as he indicated that the Punjab police and Sikh
extremists viewed him as an active participant in the hostilities, as opposed to one who
had abandoned his role.

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Interim Decision #3209

   In regard to the applicant's confrontations with the Indian security
apparatus, the expert BHRHA advisory opinion notes that the
authorities do not take action against individuals "solely as a result of
their being members of the Sikh faith." It explains that "[i]ndividual
Sikhs have been arrested and charged with involvement in specific
violent acts, but not simply because they are members of that faith."
   While we condemn the brutal methods of the Punjab police, the
applicant has failed to establish that he was targeted on account of his
political opinion or the mere fact that he was a Sikh. See Matter of R-,
supra, at 624-25. There is no convincing evidence that the police
interest in him involved anything more than the investigation of and
reaction against those thought—rightly or wrongly—to be militants
seeking the violent overthrow of the government. Id. Indeed, the
record reveals that the applicant had ongoing contact with extremists.
   In the alternative, we consider that the applicant's problems were
confined to Punjab. Id. at 625-27. According to the BHRHA, large
numbers of Sikhs lead "tranquil and productive lives in other parts of
India." The applicant failed to cite to any persuasive background
documentation in rebuttal. See Matter of Dass, 20 l&N Dec. 120
124-25 (BIA 1989). Rather, he simply offered his conclusory observation that he faces danger throughout India and that the police could
find him anywhere.
   Consequently, the applicant has failed to demonstrate either a well-founded fear or a clear probability of persecution on a country-wide
basis, so as to establish statutory eligibility for asylum or withholding
of exclusion and deportation, respectively. See Matter of R-, supra, at
10. Further, even assuming that the applicant suffered past persecution
in Punjab on account of one of the protected grounds, he does not
merit asylum in the exercise of discretion in view of the absence of a
threat of persecution throughout India and the factual circumstances
of his case. Id.
   Accordingly, the appeal will be dismissed.
  ORDER:          The appeal is dismissed.




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