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July 17, 1992

JAGRAJ SINGH, Petitioner

The opinion of the court was delivered by: MARILYN HALL PATEL


 Petitioner Jagraj Singh, a native and citizen of India who fled that country on October 30, 1991, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 et seq. and the Immigration and Nationality Act ("INA") § 106(B), 8 U.S.C. § 1105a(b). Petitioner asks this court to review a determination of the Board of Immigration Authority ("BIA") that petitioner is not eligible for either political asylum or withholding of deportation to India, pursuant to INA §§ 208(a) and 243(h), 8 U.S.C. §§ 1158(a) and 1253(h) respectively. The BIA found that since petitioner was not a refugee for the purposes of political asylum eligibility, he was also not eligible for withholding of deportation. Petitioner contends that he is entitled to asylum and withholding of deportation.


 The factual background for this case is undisputed. *fn1" Petitioner Jagraj Singh is a 36 year old native and citizen of India. When petitioner left India on October 30, 1991, he left behind a wife and three children. Transcript of Deportation Hearing, attached as Ex. 3 to Petition for Writ of Habeas Corpus, ("Transcript") at 3. Petitioner was a Sikh farmer in the Punjab state. Transcript at 7-8. Although petitioner was not a member of any political party, he supported the Akali Pal movement, a political party which advocates religious and economic freedom for Sikhs. Id. at 8-9.

 In February 1990, a group of armed Sikh separatists came to petitioner's home and demanded his assistance. Because he was afraid of the separatists, petitioner gave them food and the use of his jeep. Id. at 10-11. Petitioner's actions were reported to the police department. Id. at 11.

 Soon thereafter, the police came to petitioner's house. They handcuffed Singh, beat him repeatedly with a rifle, and asked him about the militants. Id. When Singh did not reveal the militants' names, *fn2" the police shot him in the leg. Id. at 12. The police then took Singh to a doctor, who bandaged his leg wound. The police proceeded to beat Singh again, threatening him with death if he did not reveal the militants' names. The police told Singh: "you know the terrorists and you have helped them, so let [us] know their names." Petitioner was held by the police for three days, until the head of his village gave the police a fifteen thousand rupee bribe. Id. at 12-13. Petitioner's testimony indicates that the police wanted the bribe not just for Singh's release but also as a means of extracting money from the terrorists. According to petitioner, "they said fifteen thousand is the cost they did, not only on me, but for the sake of the terrorists also, they were fighting." Id. at 14.

 The Sikh militants repeatedly came to petitioner's house and continued to ask him for shelter and food. When he refused to help them out of fear for his young children, they beat him. Id. at 15. Petitioner did not tell the police about the militants because he feared that they would assume he was associated with terrorists. Id. at 16. The Sikh militants continued to visit petitioner's house. Id. at 17.

 In August 1991, a group of armed men dressed as Sikh separatists visited petitioner's home. Because the men did not conduct themselves as the militants had on their previous visits, Singh believed that the men were actually policemen disguised as militants. Id. at 18. Soon after these events, the police arrested petitioner a second time. They accused petitioner of sheltering terrorists and demanded that he reveal their names. Id. at 21. The police took petitioner to the police station, where they beat and tortured him to such a degree that he could not walk. Petitioner was released when his mother paid a $ 25,000 bribe. Id. at 21-22. To recuperate from the beatings, petitioner stayed at home for fifteen or twenty days. Id. at 22.

 Petitioner eventually secured false travel documents and left India on October 30, 1991. Singh arrived at San Francisco International Airport on November 4, 1991. He was immediately detained by Immigration and Naturalization Service ("INS") officers. Since that time petitioner has been in the custody of the INS. He is presently incarcerated in the Santa Rita Jail in Dublin, CA. On November 5, 1991, petitioner gave a sworn statement to an officer of the INS. Ex. 4 to Petition for Writ of Habeas Corpus. In his statement, Singh stated that if he went back to India, he thought the police would kill him.

 On the basis of a February 7, 1992 hearing, an immigration judge ("IJ") denied petitioner's requests for asylum and withholding of deportation. The IJ found that petitioner had been persecuted on the basis of imputed political opinion, and that such persecution did not constitute a legal basis for granting asylum under I.N.S. v. Elias-Zacarias, 112 S. Ct. 812, 117 L. Ed. 2d 38 (1992). IJ Opinion, attached as Ex. 2 to Petition for Writ of Habeas Corpus. On May 14, 1992, the BIA dismissed petitioner's appeal. However, the BIA rejected the IJ's interpretation of Elias-Zacarias, holding that the case did not rule out granting asylum on the basis of imputed political opinion. BIA Opinion, attached as Ex. 1 to Petition for Writ of Habeas Corpus.

 Rather, the BIA found that Singh had not been persecuted within the meaning of the Act by the Indian police. According to the BIA, beatings and abuse during custodial interrogation or detention fall within the scope of Indian anti-terrorist laws. Id. at 5. The BIA reasoned that since the beatings and abuse occurred in order to extract information about the militants, they could not constitute persecution on the basis of political belief. The applicant's contact with Sikh militants gave the police "a legitimate right to investigate to determine whether he could provide information about these people." Id. at 7. The BIA also found that petitioner had not been persecuted on the basis of imputed political opinion by the Sikh militants. Finally, the BIA noted that "all of applicant's problems appear to be confined to the state of Punjab in India. He has not provided any evidence to establish a reason to fear persecution outside of that region." Id. at 8.


 A. Standard of Review

 Factual and legal determinations in final administrative decisions denying refugee status are reviewed under different standards. Courts review factual administrative determinations to see if they are "supported by reasonable, substantial and probative evidence on the record considered as a whole." 8 U.S.C. § 1105(a)(4). Legal determinations are reviewed de novo by the court. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

 The standard of review for mixed determinations of law and fact made by the BIA is more complex. There appear to be no Ninth Circuit cases directly on point. However, the Ninth Circuit has enunciated the general principles used to determine the standard of review for mixed questions of law and fact. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984). These principles apply to review of decisions made by administrative bodies. Gregory K. v. Longview School Dist., 811 F.2d 1307, 1310 (9th Cir. 1987) (citing McConney, 728 F.2d at 1199-1204).

 If application of a legal rule to the facts requires an inquiry that is essentially factual, the district court's determination should be considered factual. If, however, the application requires consideration of legal concepts and requires the exercise of judgment "about the values which animate legal principles," the question should be classified as legal. McConney, 728 F.2d at 1202. The McConney court noted that the application of law to fact will generally be a question of law.

  In Lazo-Majano v. I.N.S., 813 F.2d 1432, 1434 (9th Cir. 1987), the Ninth Circuit suggested that mixed questions of law and fact in deportation proceedings are ultimately questions of law. In that case, the BIA's rejection of the petitioner's claim had turned on a mixed question of law and fact: although the Board had believed the petitioner's story, it had found that the story did not meet applicable legal requirements. The Ninth Circuit noted that, given the Board's acceptance of petitioner's factual assertions, the only questions before it were legal questions, to be reviewed de novo. In addition, courts in other circuits ...

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