The government argues that petitioner's problem is confined to the Punjab and that he would not face similar problems in other areas of India.
However, under the plain language of INA Section 208(a), a showing of past persecution is sufficient in and of itself for asylum eligibility. There is no need to show threat of future persecution. In Desir, the Ninth Circuit noted that if an alien establishes past persecution, he or she is eligible for asylum under section 208(a), and no showing that he or she would be persecuted is required. Desir, 840 F.2d at 729 (citing Supreme Court and Ninth Circuit cases).
The government points to several Ninth Circuit cases which have used the possibility of relocation to another part of the country to defeat claims of asylum eligibility. In Quintanilla-Ticas v. I.N.S, 783 F.2d 955, 957 (9th Cir. 1986), the court rejected the asylum claim of a family of foreign nationals whose father was threatened by an anonymous note. The court noted that since the risk to petitioner appeared to be confined to his hometown, he could avoid danger by relocating within El Salvador. Similarly, in Cuadras v. I.N.S., 910 F.2d 567, 571 n.2 (9th Cir. 1990), the court considered the petitioner's ability to avoid danger by escaping from his hometown as one factor in deciding whether the petitioner had a well-founded fear of persecution.
These cases are distinguishable from the instant case. In both Quintanilla-Ticas and Cuadras, there was no clear finding of past persecution. In Quintanilla-Ticas, the court emphasized that the single threat which had been directed at the petitioner was based simply on his wearing a military uniform. Quintanilla-Ticas, 783 F.2d at 957. In addition, since the petitioner had left the military and no longer wore his military uniform, even that threat had dissipated. In Cuadras, the court found that petitioner had not established a case for past persecution within the meaning of the INA. Cuadras, 91 F.2d at 571.
Moreover, neither Quintanilla-Ticas nor Cuadras involved threats from groups, governmental or non-governmental, which operated nationwide. In Beltran-Zavala v. I.N.S, 912 F.2d 1027, 1030 (9th Cir. 1990), the Ninth Circuit found that the petitioner had established a well-founded fear of persecution by an El Salvadoran death squad. The court rejected the INS argument that, under Quintanilla-Ticas, the petitioner could be deported to another part of El Salvador; the court noted that the threat in Quintanilla-Ticas came from a single individual. Id.
In this case, petitioner's past persecution was most likely directed by the national police, or at least by a police force controlled by the national government. As the December 1991 State Department report on India notes, paramilitary and police forces controlled by the national government's Union Ministry for Home Affairs are deployed in Punjab. See State Department Report, Ex. A to Respondent's Appendix of Exhibits in Support of Opposition to Petition for Habeas Corpus ("Report") at 1425. The national police force would presumably be capable of locating petitioner in other regions of India.
However, India is a much larger, more diverse country than the countries involved in the Ninth Circuit cases discussed above. On the other hand, petitioner's ability to avoid further persecution by relocating inconspicuously may be limited by his manner of religious dress and his inability to speak the languages or dialects of other regions of India. In Damaize-Job v. Immigration and Naturalization Service, 787 F.2d 1332 (9th Cir. 1986), the Ninth Circuit held that the fact that Nicaragua's persecution of the petitioner's Miskito Indian tribe was concentrated in an area far from where the petitioner lived did not defeat his asylum claim. One factor upon which the court relied was that the petitioner could be readily identified as a Miskito wherever he went. Id. at 1336-37.
The court therefore concludes that the petitioner has established his eligibility for asylum. The BIA erred as a matter of law in finding the petitioner ineligible.
C. Exercise of Discretion
Once asylum eligibility on the basis of past persecution has been established, evidence that little likelihood of present persecution exists becomes relevant to the exercise of administrative discretion. Such evidence can be used to defeat the presumption of an exercise of administrative discretion in favor of asylum. Matter of Chen (Interim Decision #3104), April 25, 1989. ("Where past persecution is established by the applicant, the Service ordinarily will have to present, as a factor militating against the favorable exercise of discretion, that there is little likelihood of present persecution.")
In Matter of Chen, the BIA justified this shifting of the burden by noting that the plain language of the statute as well as various Ninth Circuit cases established past persecution as sufficient grounds for asylum eligibility.
Similarly, the INS itself has recognized that if an applicant establishes "past persecution, he shall be presumed also to have a well-founded fear of persecution unless a preponderance of the evidence establishes that since the time the persecution occurred conditions in the applicant's country . . . have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted were he to return." 8 C.F.R. § 208.13 (b)(1)(i). The INS has not offered any evidence that petitioner would not be persecuted in other regions of India. The general State Department comment that "Sikhs are leading tranquil and productive lives in other regions of India," Report at 1426, does not address petitioner's ability to live peaceably in another region of India. As discussed above, petitioner endured several distinct incidents of severe beatings and torture. Petitioner was persecuted on the basis of imputed political views, not simply because he is a Sikh.
Under the applicable law, evidence regarding whether petitioner will be safe elsewhere in India is necessary for proper exercise of the BIA's administrative discretion over petitioner's asylum claim. The court therefore remands petitioner's case to the BIA with instructions to hear additional evidence regarding whether petitioner will be safe in other regions of India. See Najaf-Ali v. Meese, 653 F. Supp. 833, 839 (N.D. Cal. 1987); Sarkis v. Nelson, 585 F. Supp. 235 (E.D.N.Y. 1984). As discussed below, this evidence is also relevant to a determination of whether the petitioner is entitled to withholding of deportation.
II. Petitioner's Withholding of Deportation Request
Since petitioner has established past persecution, he is entitled to withholding of deportation if he can prove that he faces clear probability of persecution elsewhere in India. See Desir, 840 F.2d at 730. Conversely, the government can defeat a claim for withholding of deportation if it can show than it is more likely than not that petitioner would be safe in other regions of India. See 8 C.F.R. § 208.16 (b)(2). The court remands the case to the BIA for further proceedings on this question. Desir, 840 F.2d at 730.
For the reasons given above, the court finds that petitioner is statutorily eligible for asylum. It remands the proceedings back to the BIA for the taking of additional testimony on the question of whether petitioner will be safe from political persecution in other regions of India. Evidence that petitioner will be safe in other regions is necessary to defeat the presumption of a favorable exercise of discretion on petitioner's asylum claim. If petitioner proves clear probability of persecution in other regions of India, he is entitled to withholding of deportation.
The record of such proceedings should be filed with this court within 120 days of the date of filing of this order. If the parties cannot file this record within 120 days, they must provide this court with reasons for extending the 120-day period. Unless the record is filed within 120 days or reasons for extending this period are given, the petition for a writ of habeas corpus will be granted by a further order of this court. Execution of deportation proceedings is stayed pending completion of the administrative proceedings on remand and any further consideration by the court.
IT IS SO ORDERED.
Dated: JUL 17 1992
MARILYN HALL PATEL
United States District Judge