The opinion of the court was delivered by: DICKINSON R. DEBEVOISE
DEBEVOISE, Senior District Judge
Petitioner, Balarangini Ratnam, challenges the failure of the United States Department of Justice to grant her either asylum or withholding of deportation and seeks the issuance of a writ of habeas corpus. On April 28, 1995, I held a hearing on petitioner's application. Thereafter, the respondent, Warren A. Lewis, District Director, Immigration and Naturalization Service, filed the entire administrative record, which I have reviewed. For the reasons set forth below, the petition will be granted.
I. The Administrative Proceedings
A. The INS Hearing: Petitioner, a native of Sri Lanka, arrived in New York on September 22, 1994. She did not appear to be admissible to the United States and was placed in exclusion proceedings by the issuance of a Notice to Applicant for Admission Detained for a Hearing before an Immigration Judge. The Notice charged petitioner with excludability under Sections 212(1)(7)(B)(i)(II), 212(1)(7)(B)(i)(I) and 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act. Petitioner was detained in custody.
In November 1994, with the assistance of counsel, petitioner filed a Request for Asylum in the United States. The request recited that petitioner was born on March 18, 1959 in Northern Sri Lanka, that her race/ethnic or tribal group is Tamil and that her religion is Hindu.
In response to the question about political membership she stated: My husband was first a member of the Tamil United Liberation Front. Then, he joined the Liberation Tigers of Tamil Eelam and worked in their propaganda section.
In September 1988 my husband and I were arrested by the IPKF [the Indian Peace Keepers Force] and the EPRLF [the Eelam People's Revolutionary Liberation Front, a Tamil group opposed to the Liberation Tigers of Tamil Eelam], detained and abused. We were detained till May 1989.
In November 1992 my husband and I were arrested again by the Sri Lankan armed forces, detained and tortured. We were released in August 1994.
Attached to the Request was a detailed recital of the events leading to the two detentions, the brutality which occurred during the periods of detention, and the circumstances of petitioner's flight from Sri Lanka and her husband's abortive flight. The Request recited that "since my departure, the opposition leader has been assassinated. After the assassination hundreds of Tamil youth in Colombo have also been arrested on the [suspicion] that they are members or supporters of LTTE [Liberation Tigers of Tamil Eelam]."
On November 11, 1994, petitioner attended an asylum prescreening interview. The interviewer's worksheet and recommendation summarized petitioner's account of what had happened to her and her husband. The interviewer concluded that petitioner's "story of two lengthy imprisonments are not detailed enough as to her treatment or experience so as to be credible." However, the interviewer also reported:
Assume the evidence is credible: Has applicant shown a significant possibility of qualifying as a refugee? Specify reasons.
If deemed credible, applicant experienced past persecution due to her imputed political opinion or membership in the Tamil ethnic minority.
A hearing was held before Immigration Judge Esmeralda Cabrera on January 18, 1995. There were marked in evidence petitioner's application for political asylum and an advisory opinion of the Department of State's Bureau of Human Rights and Humanitarian Affairs. In addition, petitioner's attorney submitted an extensive package of documents from various sources describing conditions in Sri Lanka and the country's history of ethnic and political strife. The hearing was devoted principally to petitioner's testimony. The account which follows is derived from that testimony (with certain dates derived from her Asylum Request).
Petitioner, a Tamil who lived in the Jaffna area in Northern Sri Lanka, married in 1981. She became a housewife -- her husband was a farmer who cultivated vegetables and a rice paddy. He owned land and acquired additional acreage with the dowry which petitioner brought to the marriage. Ultimately, his land was seized by the Sri Lankan Army.
In 1983, there occurred communal riots in which members of the Tamil minority were attacked by terrorist groups. After this development, petitioner's husband joined, the Liberation Tigers of Tamil Eelam (the "LTTE" or "Tamil Tigers"), a group seeking an independent Tamil state within the area of Sri Lanka in which the Tamil population predominated.
Petitioner's husband worked in the political section of the Tamil Tigers, canvassing for the group, writing in the newspapers and preparing newsletters. He asked people to attend meetings and contribute food.
At 5:30 in a morning in September 1988, elements of the Indian Peace Keeping Forces ("IPKF") and representatives of Belam People's Revolutionary Liberation Front ("EPRLF") appeared at the home of petitioner's husband's parents, where petitioner and her husband were living. The EPRLF representatives informed the IPKF that petitioner and her husband supported and helped the Tamil Tigers. Both were arrested and taken to a detention camp.
Petitioner's husband was subjected to the same treatment. Both were detained from September 1988 until May of 1989. In May one of petitioner's uncles spoke to the EPRLF and made a payment to the organization. The organization then interceded with the Indian Peace Keeping Forces, and petitioner and her husband were released. Both were warned not to help the Tamil Tigers or to do any type of work for them. Each promised not to assist the Tamil Tigers, and petitioner's husband ceased having any association with that group.
In March 1990, the IPKF left Sri Lanka and returned to India. For three months peace prevailed between the Tamil Tigers and Sri Lankan armed forces. In June 1990, fighting resumed. The Sri Lankan forces bombarded Jaffna, the city where petitioner and her husband and his family lived, from air, land and sea. In July 1991, petitioner's home and neighborhood were destroyed. The Sri Lankan forces could not determine who were members of the Tamil Tigers and, therefore, did "awful things to all the public and everybody."
After losing their home, petitioner and her family lived in bunkers and eventually found refuge in a church. They stayed there for about five months, then found another home which also was subjected to a bombardment.
Petitioner, her husband and petitioner's in-laws concluded that they could no longer remain in the Jaffna area, which is in the north of Sri Lanka where the Tamil people are in the majority. They decided to move south to Colombo, the capital of Sri Lanka. They arrived in November, 1992. Petitioner, her husband and her in-laws rented space in a lodge.
Three days after the family arrived in Colombo, six or seven Sri Lankan soldiers arrived at the lodge. They inspected petitioner's and her husband's identification cards, which disclosed that they were from Jaffna and were Tamils. The soldiers struck petitioner and her husband, accusing them of being Tamil Tigers. Both were arrested and taken to a police station.
Interrogators took petitioner to a separate room, showed her photographs and asked if she recognized them. They attacked petitioner and burned her with cigarette butts. This continued for five or six hours.
Thereafter, petitioner was taken to a Sri Lankan Army detention camp. Water and food were inadequate, and petitioner was subjected to periodic torture. Asked to describe the torture, she testified:
They tied my hands behind and they told me to put my neck under the table and they were hitting with something on my leg. They then removed my head from the table -- from the table -- removed the neck from the table and I was bleeding. Then I started crying then they put a plastic pipe filled with sand and they were hitting with that.
At no time was petitioner taken before a judge or allowed to see a lawyer. She was fingerprinted and photographed.
Petitioner remained in custody for a year and nine months. On August 1994, her father-in-law was able to bribe an Inspector to arrange petitioner's release. Petitioner described the event as follows:
Q. Can you explain the circumstances of your release?
A. One is -- Inspector came in the night, he brought some clothes for me. He gave me the clothes and he told me to wear those clothes and come along with him. So I wore the clothes and went with him. He took me in a jeep alone and dropped me a place called Gold Fish near the sea and there, there was a taxi standing. He gave me hundred Tubus (phonetic sp.) in my hand and told the driver to take me to the lodge.
Q. What did you do after that?
A. So I went to the lodge -- we got scared to stay in the lodge -- we changed another lodge.
Q. Why were you scared, because you were released earlier, so why were you scared now?
Q. Ma'am, when you say that you -- we were scared -- who is we?
A. My mother-in-law, my father-in-law and myself.
The next day petitioner's husband was released under similar circumstances.
Shortly afterwards petitioner's father-in-law learned from the manager of a lodge where they had previously lived that members of the armed forces were again looking for petitioner and her husband.
In response to the Immigration Judge's question why, if she were having problems in Colombo, petitioner did not move elsewhere in Sri Lanka, petitioner explained, "in Sri Lanka all the other places they are owned by Sri Lankan Sinhalese Forces-Sri Lankan Sinhalese Police and all Sinhalese people are living in all the other areas." As for Jaffna, in the north, "there is also fighting is going on; in the mean time [if] we feel that we want to go to Jaffna, there are several barriers, army barriers out there so we can't cross those barriers and go to Jaffna."
In these circumstances, petitioner's father-in-law advised her and her husband to leave the country. The father-in-law made the necessary arrangements for their departure. Not long after their release from confinement petitioner and her husband proceeded to the airport with her in-laws. She was feeling ill, and her husband left the airport to obtain food for her. He never returned. Petitioner and her family heard shooting noises.
After three hours the time came for petitioner to board her plane. Her in-laws pushed her on and she departed without her husband. To this day she does not know what happened to him.
Petitioner testified that she fears to return to Sri Lanka: "I don't have any guarantee of my life and they have all the information about me; their photographs; their fingerprints. When I land there they'll arrest me and they will take me." When the Immigration Judge asked petitioner why she believed that she would be arrested or killed, petitioner replied, "I am Tamil and while they were talking they told all the Tamils are Tigers and all the Tamils has to be killed and if a child is born for you also that is also a Tiger. They will be also killed. And my information are there. Therefore, I am scared they will kill me."
After petitioner completed her testimony, the Immigration Judge took a brief recess and then returned to deliver her oral decision. It is apparent that she could not have reviewed the extensive assemblage of documents which petitioner's attorney offered into evidence at the commencement of the hearing -- documents which provide an extensive background of the racial and political events of Sri Lanka and which required several days for me to review.
B. Decision of the Immigration Judge: The Immigration Judge noted at the outset of her opinion that petitioner conceded that she is excludable under § 212(1)(7)(B)(i)(II) (applicant not in possession of a valid unexpired nonimmigrant visa), § 212(1)(7)(B)(i)(I) (applicant not in possession of a valid unexpired travel document and not exempt from the presentation of the same), and § 212(1)(7)(i)(I) (an applicant appearing to be an immigrant not in possession of a valid unexpired immigrant visa and not exempt from the presentation of the same). The only issues for determination, therefore, were whether petitioner's request for asylum and for withholding of deportation to Sri Lanka pursuant to 8 C.R.F. § 208.1, et seq. should be granted.
The Immigration Judge set forth the principles of law applicable to asylum and withholding of deportation applications. She summarized petitioner's testimony accurately and in full detail. Further, the Immigration Judge found "... this applicant's testimony is credible. She testified in a straightforward and consistent manner. Throughout the course of the proceeding at times she's become visibly upset when discussing the events surrounding her detention in Sri Lanka and the treatment she received during her detention." (Opinion at 11, 12).
Relying upon petitioner's testimony and in part upon the Department of State's Bureau of Human Rights and Humanitarian Affairs ("BHRHA") report, the Immigration Judge concluded that "applicant has presented insufficient objective facts to support an inference of past persecution or a risk to her of future persecution based upon her alleged political opinion or any imputed political opinion" and that "applicant has failed to establish a well-founded fear of persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion ...." (Opinion at 15).
The reasons which the Immigration Judge gave in support of these conclusions were:
1. "There's no evidence of any personal experiences or objective events which demonstrate that the applicant holds a political opinion which the government seeks to punish." (Opinion at p. 12).
2. For a period between her first and second periods of detention, petitioner was free to travel back and forth, and her in-laws have remained in Sri Lanka.
3. The BHRHA states that conditions in northern Sri Lanka constitute armed conflict between the government of Sri Lanka and the LTTE, in which both sides have inflicted casualties upon the other, and in which "both sides mistreat prisoners and arrest suspected opponents on an arbitrary basis." (Opinion at p.13). "...Congress did not intend to confer eligibility for asylum on all persons who suffer from civil strife or civil disturbances. While the applicant's fear and desire to avoid the horrendous situation in Sri Lanka appear to be genuine, it is evident they do not stem from a fear of persecution but rather from a fear of the diversities (sic) of civil unrest and human rights abuses that are recurring in Sri Lanka." (Opinion at 15).
4. Although 18% of Sri Lanka's population is Tamil and 74% is Sinhalese, "clearly the profiles submitted by the Department of State does [sic] not support a conclusion that Tamil's [sic], because of their ethnicity, or their political opposition, are persecuted in Sri Lanka." (Opinion at 14).
The Immigration Judge determined that because petitioner failed to establish a well-founded fear of persecution on account of her race, religion, nationality, membership in a particular social group, or political opinion necessary to be eligible for asylum, it was unnecessary to consider whether she merited such relief as a matter of discretion. Further, the Immigration Judge ruled that because petitioner failed to establish eligibility for asylum, she had also failed to meet the higher standard of proof necessary for withholding deportation to Sri Lanka.
Pursuant to her opinion, the Immigration Judge ordered that petitioner's request for asylum under § 208 be denied, that petitioner's application for withholding of deportation to Sri Lanka under § 243(h) be denied and that petitioner be excluded and deported from the United States under § 212(a)(7)(B) of the Immigration and Naturalization Act.
C. Opinion of Board of Immigration Appeals: Petitioner appealed to the Board of Immigration Appeals ("BIA"). In an opinion dated April 13, 1995, the BIA dismissed the appeal.
In its opinion, the BIA summarized petitioner's account of her husband's membership in the LTTE, her two lengthy detentions, her and her husband's treatment while both were detained, and their flight to avoid further arrests or worse.
The opinion noted that petitioner had submitted extensive background material describing events and conditions in Sri Lanka over the course of the years of conflict there and further noted the BHRHA report. The BIA gave the following reasons for dismissing the appeal:
2. Under the circumstances, the authorities had the legitimate right to investigate to determine the extent, if any, of the applicant's knowledge of and participation in terrorist activities. It has not been shown that the government's actions in this regard were based on political opinion or the applicant's status as a northern province Tamil. (Opinion at 5).
3. In addition, the applicant has not shown that the physical abuse she suffered at the hands of the Sri Lankan army and the IPKF amounted to persecution on account of any of the grounds enumerated in the Act, including that of the purported particular social groups of northern province Tamils and of her family. The historical context of the applicant's claim reflects that the Government of Sri Lanka does not persecute Tamils on account of their ethnicity or their political opinion, as there has been cooperation between the government and various major Tamil groups and a history of participation by Tamils in the government. (Opinion at 5).
4. The violence in Sri Lanka was begun by terrorist Tamil forces and continues because of those forces. Id. Although human rights violations do occur on a large scale in Sri Lanka, proof of human rights violations is not enough to establish persecution on account of one of the five grounds protected under the Act. Id. Thus, while there may be a "pattern or practice" of human rights abuses in Sri Lanka, those abuses have not been shown to constitute persecution for one of the five grounds specified in the Act. We note that the evidence reflects that government forces have dealt with Sinhalese terrorists as harshly as it has with the LTTE. (Opinion at 5).
5. In addition, the applicant has not established a well-founded fear of persecution on the basis of the violent situation in Sri Lanka which resulted in the destruction of two houses in which her family was living. Conditions of political upheaval which affect the populace as a whole are ...