Opinion
03 Civ. 143 (GEL)
October 3, 2003
Stanley A. Cohen, Esq., New York, NY, for Petitioner
Michael M. Krauss, Assistant United States Attorney, (James B. Comey, United States Attorney for the Southern District of New York, on the brief), for Respondent.
OPINION AND ORDER
Petitioner Chandrasena Sudusinghe seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He argues that the Board of Immigration Appeals ("BIA") misapplied the Immigration "and Nationality Act ("INA"), Pub.L. No. 107-234, 66 Stat 163 (codified as amended at 8 U.S.C. § 1001 et seq.). to the facts of his asylum application. To the extent Sudusinghe asserts statutory and constitutional errors cognizable on a habeas corpus proceeding, those assertions lack merit, and the petition will therefore be dismissed.
BACKGROUND
On September 25, 1993, Sudusinghe, a citizen of Sri Lanka, entered the United States on a non-immigrant tourist visa, the validity of which he subsequently extended until September 24, 1994. (R 169-71). In February 1994, after his visa had expired, he applied for asylum pursuant to 8 U.S.C. § 1158(a)(1). (Id. 174.) On October 16, 1996, the Immigration and Naturalization Service ("INS") served Sudusinghe with an order to show cause. alleging that he overstayed his " visa. (Id. 186-90.) Sudusinghe conceded deportability, but renewed his claim for asylum as an affirmative defense and, in the alternative, asked for voluntary departure. (Id. 51.) On May 21, 1999, Sudusinghe appeared before an immigration judge ("IJ") for a hearing on the merits of his asylum claim. (W. 85-126.)
Sudusinghe applied for asylum in February 1994 but did not receive an initial hearing on his application until sometime in or after October 1996. (R. 178.) The record does not make clear whether the INS's order to show cause charging Sudusinghe with being a deportable alien preceded or followed an adverse determination by an asylum officer.
In his application and at the hearing, Sudusinghe stated that he feared future persecution on account of his political opinion (id. 176, 14), qualifying him as a refugee eligible for asylum. See 8 U.S.C. § 1101(a)(42)(A), 1158(b)(1) (defining refugee and giving the Attorney General discretion to grant asylum to refugees, so defined). Sudusinghe testified that he worked for the Bank of Ceylon, located in Colombo, Sri Lanka, from 1968 until 1993. (Id. 98.) He belonged to the ruling United National Party ("UNP"), but had not worked actively on a political campaign or otherwise conspicuously demonstrated his support for the UNP since 1977. (Id. 48, 117-18.)
In October 1989, a man known to Sudusinghe as "Jamis" came to the Bank of Ceylon and demanded money from him at gunpoint. (Id. 98, 101.) Jamis, a leader of the Marxist opposition party Janatha Vimukthi Peramuna ("JVP"), gave Sudusinghe a check in the amount of 250,000 Sri Lanka rupees and said that he would return to collect that sum the following Friday. (Id. 99.) Sudusinghe testified that the JVP had stolen this check from a man whom it had abducted. (Id. 100.) Fearing for his life, he agreed to Jamis's demand. Immediately after Jamis left, however, he drove to Colombo and told the Minister of State what had happened. Qd.) Acting on this tip, the police set a trap for Jamis, arresting him when he returned to the Bank to collect the money.
That night, JVP members came to the home of Sudusinghe's parents and took their guns, but neither he nor his family suffered any further acts of retaliation. (Id. 101-02.) The Minister of State provided him with police protection for about one month after Jamis's arrest. (Id. 102.) Thereafter, Sudusinghe continued to live and work in Sri Lanka. He received no threats from the JVP during this time except for one from a JVP "boss," which he perceived as "not that serious." (Id. 115.) In 1993, however, Sudusinghe learned from the police that Jamis had threatened to kill him because, he testified, "[Jamis] couldn't get money from me . . ., [and] I told the police and I trapped him and I caught him and put him in the jail." (Id. 103; see also id. 115.)
Sudusinghe told members of the UNP about this theat, and they advised him to leave Sri Lanka. Qd. 104, 116.) According to Sudusinghe, southern Sri Lanka, including Colombo, where he worked, and Matara, where his parents live, is a JVP stronghold, and JVP members had killed some of his friends and relations. Qd. 103, 106.) Even though his relatives continue to live and work in southern Sri Lanka (id. 106, 118), Sudusinghe testified that he believed the JVP would try to kill him because, he said, "people . . . inquire about me" and "nobody is there to give me protection for my life." Qd. 106.) In September 1993, Sudusinghe therefore secured a leave of absence from the Bank and traveled to the United States. Qd. 104.) According to Sudusinghe's friends and relatives, Jamis has been recaptured and presently remains incarcerated. (Id. 112, 114). Sudusinghe testified, however, that he believes other JVP supporters will harm him (id. 112) and that his mother has warned him against returning to Sri Lanka for this reason. Qd.
At the conclusion of the hearing, the IJ denied Sudusinghe's application for asylum or withholding of removal. (Id. 7-21.) While she found Sudusinghe's testimony generally credible (id. 19), she concluded, first, that Sudusinghe failed to establish either past persecution or a well-founded fear of future persecution on account of his political opinion (see id. 14-16); and second, that even assuming the contrary, Sudusinghe failed to establish the objective reasonableness of his fear. (See id. 17-18.) As to the former, the U observed that Jamis threatened Sudusinghe, not because of his membership in the UNP or his political beliefs, but because Sudusinghe informed the police about Jamis's extortion threat, leading to Jamis's arrest and incarceration. (W. 16-17.) As to the latter, the U observed that Sudusinghe had suffered no harm from the JVP during Jamis's initial period of incarceration from 1989 to 1993; that he had not perceived the threat made by another JVP member during that time as "serious" (id. 17); that Jamis remains incarcerated and therefore incapacitated from harming him (id. 17-18); that his relatives had lived, and continue to live, undisturbed in Sri Lanka; that "[t]here is not evidence that [he] was ever arrested, detained or interrogated by the government officials in his home country or any person or body o[f] people who the government is unable or unwilling to control" (Id. 15); and that he failed to introduce background materials adequate to corroborate his assertions that the JW harms people generally or would be likely to harm him in particular. (Id. 18.) On September 18, 2002, the BIA affirmed the IJ's decision without opinion, making it the final agency determination. (Id. 2.) See 8 C.F.R. § 3.1(a)(7). Sudusinghe filed the present petition for habeas corpus on January 8, 2003, arguing that the IJ misapplied the law to the facts of his asylum application.
DISCUSSION
I. The Proper RespondentAs a threshold matter, the Government argues that Sudusinghe improperly named Attorney General Ashcroft as respondent because the Attorney General is not `the person having custody of [Sudusinghe]." 28 U.S.C. § 2243. Whether the Attorney General is the proper respondent in habeas corpus actions brought by alien detainees is a question that divides the circuits. Compare Roman v. Ashcroft 340 F.3d 314 (6th Cir. 2003), with Vasouez v. Reno, 233 F.3d 688 (1st Cir. 2000) (both holding that the Attorney General is not a proper respondent), with Amentero v. INS, 340 F.3d 1058 (9th Cir. 2003) (holding that the Attorney General is a proper respondent.) The Second Circuit canvassed the arguments for each view in Henderson v. INS. 157 F.3d 106, 124-28 (2d Cir. 1998), but concluded that analysis of this issue "evokes powerful arguments on each side — both at the doctrinal and at the practical level," and therefore that "its resolution should be avoided unless and until it is manifestly needed to decide a real case in controversy." H. at 128. With the enactment of the Homeland Security Act of 2002, Pub.L. No. 107-296, Nov. 25, 2002, 116 Stat. 2135, which abolished the INS and transferred many of its immigration responsibilities to the Department of Homeland Security, see Amentero, 340 F.3d at 1072, novel considerations may well enter into the decision calculus set forth in Henderson. See, e.g., Amentero, 340 F.3d at 1072-74 (analyzing changes to the immigration laws wrought by the Homeland Security Act in concluding that the Attorney General is a proper respondent in habeas actions brought by aliens).
The Court need not, and under the circumstances will not, resolve this question. First, the Government relegates its arguments, which are really just obseryations, to a single footnote in its brief. (G. Br. 1 n.l.) It does not mention, still less analyze, the myriad considerations flagged by the Second Circuit inHenderson. Second, the Government concedes that Edward McElroy, the Interim District Director of the New York City Office of the Bureau of Immigration and Customs Enforcement, would be a proper respondent (Id.), addresses the merits of the petition, and does not argue that the Court lacks subject matter jurisdiction or is an improper venue. Finally, because resolution of this issue would not affect the disposition of this petition, the Court heeds the Second Circuit's counsel that its resolution "should be avoided unless and until it is manifestly needed to decide a real case in controversy."Henderson, 157 F.3d at 128. The Court will therefore deem Sudusinghe's petition amended to include McElroy as a respondent.
II. The Scope and Standard of Review
The Government raises a second threshold issue: the proper scope and standard of review. INS v. St. Cyr, 533 U.S. 289 (2001), established that "neither the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (`IIRIRA') . . . nor the Antiterrorism and Effective Death Penalty Act of 1996 (`AEDPA') . . . repealed federal habeas corpus jurisdiction [for aliens] under 28 U.S.C. § 2241."Liu v. INS, 293 F.3d 36, 37 (2d Cir. 2002). In Sol v. INS. 274 F.3d 648 (2d Cir. 2001), the Second Circuit held that habeas review of a petition challenging a decision by an U or the BIA "does not extend to review of discretionary determinations."Id. at 651; see also Liu, 293 F.3d at 41 (same). Recently, it held that the Constitution does "require habeas review to extend to claims of erroneous application or interpretation of statutes." Wang v. INS. 320 F.3d 130, 143 (2d Cir. 2003) (citing St. Cry, 533 U.S. at 302; emphasis in original). Beyond this, the law remains unclear. In Wang, the court acknowledged that "the standard of review of a BLVs decision in a habeas case is generally more limited than on direct review,"but declined to delineate "the precise standard to adopt for reviewing a BLVs application of law to fact pursuant to a § 2241 petition." 320 F.3d at 143: see also Heikkila v. Barber, 345 U.S. 229, 235-36 (1953) (distinguishing judicial review from habeas review);Henderson, 157 F.3d at 119, 122 (agreeing with the Government's assertion that AEDPA and HRIRA were "intended to make [IJ and BIA] administrative decisions nonreviewable to the fullest extent possible under the Constitution," but concluding that neither statute could have constitutionally divested the federal courts of authority to review constitutional claims and certain statutory claims, those "affecting the substantial rights of aliens"). It is therefore clear that the Court retains authority on habeas to review claims that an U or the BIA misapplied the law to the facts. Wang, 320 F.3d at 143. But it is equally clear that the Court does not have the authority to reweigh the evidence or review administrative findings of fact and credibility. Sol 274 F.3d at 651.
Contrary to the Government's contention, however, Sudusinghe does not ask the Court to reweigh evidence or engage in fact-intensive review "beyond the scope of habeas jurisdiction." (G. Br. 10.) Nor does he dispute the IPs essential factual findings. He claims principally that the U misapplied the law to the facts in several respects. Such claims,Wang establishes, are cognizable on habeas corpus. The Court need not resolve the question left open in Wang — the standard of review applicable on habeas to an alien's claims that an IJ or the BIA misapplied the law to the facts — because, as inWang, the claims at issue would fail even under a de novo standard. See 320 F.3d at 143.
III. Sudusinghe's Claims
The INA vests the Attorney General with discretion to grant asylum to refugees. 8 U.S.C. § 1158(b)(1). A refugee is a person outside the country of his or her nationality who is "unable or unwilling to return to . . . or to avail himself or herself of the protection of that country because of a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion." Id. § 1101(a)(42)(A); Abankwah v. INS, 185 F.3d 18, 22 (2d Cir. 1999.) Sudusinghe claims he is a refugee on account of political C opinion, and he argues that the IJ misapplied the law to the facts of his application in concluding otherwise.
First, he asserts, the U erred because she observed that Sudusinghe had not been arrested, yet "persecution does not require an arrest." (Pet. 2.) That is true but irrelevant. Persecution, while not defined by statute, "clearly contemplates that harm or suffering must be inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome." Matter of Acosta, 191. N. Dec. 211, 222-23 (BIA 1985), rev'd in part on other grounds, Matter of Moefaarrabi, 191. N. Dec. 439 (1987); accord Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). The U mentioned an arrest as one example of the kind of harm that could qualify as persecution; she did not state or imply that persecution does not exist absent an arrest.
The IJ also did not err in applying the definition of a refugee to the facts of Sudusinghe's application. Fear of persecution is "well-founded," qualifying a person for asylum, if it is based on past persecution, 8 C.F.R. § 208.13(b)(1), or a well-founded fear of future persecution. M. § 208.13(b)(2). Sudusinghe failed to show that he suffered any past persecution. In 1989, Jamis threatened Sudusinghe because Sudusinghe happened to be an employee of the Bank of Ceylon. The U did not find, nor did Sudusinghe testify, that Jamis tried to extort money from him because of his political beliefs. Hence, even if this past harm is properly characterized as persecution, as opposed to a simple crime, no evidence suggests that Jamis targeted Sudusinghe for the infliction of this harm on account of his political opinion. (R. 17.)Cf. Molina-Morales v. Ins, v. INS. 237 F.3d 1048, 1051-52 (9th Cir. 2001) (sustaining the BIA's denial of asylum to petitioner where the alleged acts of persecution were motivated by a "personal vendetta" arising out of his report of an alleged rape, not by any political opinion, actual or imputed).
In his reply submission, Sudusinghe argues that Jamis and the JVP imputed an anti-JVP political opinion to him. (Reply 6.) Persecution on account of an imputed political opinion can be a valid basis for asylum.See In re S-P-, 21 L. N. Dec. 486, 490 (BIA 1996). But whether the JVP in fact imputed a political opinion to Sudusinghe is a question of fact and the IJ found insufficient evidence to support this assertion.
With respect to future persecution, a well-founded fear "involves both a subjective and an objective component." Melendez v. Dep't of Justice, 926 F.2d 211, 215 (2d Cir. 1991); accord. Singh v. Iicheit, 69 F.3d 375, 378 (9th Cir. 1995). Subjectively, the applicant must establish his "genuine apprehension or awareness of danger in another country." Acosta, 191. N. Dec. at 221. The applicant's testimony alone, if credible, may suffice to establish the subjective veracity of his fear. Abankwah, 185 F.3d at 22. Objectively, the applicant must establish that his fear is "grounded in reality," Melendez, 926 F.2d at 215, and "[t]o this end, [he] must present credible, specific, and detailed evidence . . . that a reasonable person in [his] position would fear persecution if returned to [his] native country." Abankwah. 185 F.3d at 22.
The U credited Sudusinghe's testimony. (R. 19.) She did not question that, subjectively, he fears being returned to Sri Lanka. Id. 16.) `But she found that "his unwillingness to return is not related to any of the grounds stated in the [TNA] in the sense that the harm that he fears is not on account of his political opinion or any of the [other protected] grounds." (Id.) The Court cannot reweigh the evidence in support of the IJ's findings of fact, Sol, 274 F.3d at 651, but in any event, those findings appear to be correct: Jamis has been recaptured and presently remains incarcerated. None of Sudusirighe's relations has been harmed or threatened since 1989: they continue to live in southern Sri Lanka without fear of persecution. The sole bases Sudusinghe expressed for his fear of future persecution is that he has now learned of Jamis's threat and that his mother has warned him not to return to Sri Lanka. The IJ did not misapply the law to these facts. First, she found that Jamis's threat, even if credible, would not qualify as "persecution" because, according to Sudusinghe's own testimony, Jamis wanted to harm Sudusinghe in retaliation for the 1989 incident (R. 16-17), not because he held any particular political belief. See Grava v. INS, 205 F.3d 1177, 1181 n. 3 (9th Cir. 2000) (`Purely personal retribution is, of course, not persecution on account of political opinion.') Second, while fear of future persecution can be based on threats from non-governmental actors, persecution on this basis exists only where the government is unable or unwilling to control such actors.Bartesaehi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 2002);M.A. A26851062 v. INS. 858 F.2d 210, 218 (4th Cir. 1988) (collecting cases). The U found no evidence that the Sri Lankan government is unable or unwilling to protect Sudusinghe from Jamis or the JVP generally. (R. 15.) To the contrary, Jamis has been rearrested, and the Sri Lankan government has shown its willingness to furnish Sudusinghe with police protection from the JVP in the past.
Nor, finally, did the LT err by relying on, among other factors, evidence that Sudusinghe's family continues to live undisturbed in southern Sri Lanka or Sudusinghe's failure to furnish sufficient background documentation to corroborate the nature and extent of the alleged threat posed by the JVP. Each of these factors, standing alone, may not be sufficient. See Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994) (family circumstances); Diallo v. INS, 232 F.3d 279, 288 documentation)., But it is perfectly appropriate to consider them as factors in determining the objective reasonableness of the applicant's fear. See,e.g., Melear de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding "evidence that [the applicant's] own mother and daughters continued to live in El Salvador after [the applicant] emigrated without harm cuts against her argument that she has a well-founded fear of persecution"); Diallo, 232 F.3d at 285 ("While consistent, detailed, and credible testimony may be sufficient to carry the alien's burden, evidence corroborating his story, or an explanation for its absence, may be required where it would reasonably be expected."). Whether an applicant's fear of persecution is well-founded and objectively reasonable, qualifying him or her for asylum, depends on an appraisal of the totality of his or her circumstances. Yang v. McElroy, 277 F.3d 158, 164 (2d Cir. 2002): see also M.A. v. INS, 899 F.2d 304, 311 (4th Cir. 1990). The IJ's well-reasoned decision makes clear that she correctly applied this standard in adjudicating Sudusinghe's asylum application, and while evidence may not be reweighed on habeas, the Court would note that the record amply supports the IJ's findings of fact.
Sudusinghe does not qualify for asylum, which requires that he prove a "well-founded" fear or persecution. His application for withholding of removal, which would require him to meet the more stringent standard of showing that it is more likely than not that he would suffer the persecution he fears, therefore likewise fails. See INS v. Stevic, 467 U.S. 407, 429 (1984); Saleh v. Deo't of Justice, 962 F.2d 234, 240 (2d Cir. 1992).
CONCLUSION
Because the IJ correctly stated and applied the law to the facts of Sudusinghe's asylum application, his petition for a writ of habeas corpus is denied.SO ORDERED.