INTERIM DECISION #3187: MATTER OF T-
Volume 20 (Page 571)
MATTER OF T-In Exclusion Proceedings
Decided by Board October 13, 1992
(1) The Government of Sri Lanka does not persecute ethnic Sri Lankan Tamils
on the basis of their ethnicity or "on account of" their championing of Tamil
interests or political rights.
(2) Neither the relief of asylum nor of withholding of deportation provides
for refuge "on account of" human rights abuses unconnected to the grounds
enumerated in the Immigration and Nationality Act, i.e., race, religion,
nationality, membership in a particular social group, or political opinion.
(3) An ethnic Tamil alien from Sri Lanka who was forced to assist the Liberation
Tigers of Tamil Eelam ("LTTE"), a separatist Tamil terrorist group, under
threat of harm, did not establish that the LTTE was motivated to punish him
because of his political views or persecute him on account of any of the
other grounds enumerated in the Act.
(4) In light of the historical context of the Sri Lankan civil war, an ethnic
Tamil alien suspected of having ties to the terrorist group LTTE failed to
demonstrate that the human rights abuses he suffered at the hands of the
Sri Lankan security forces, Indian Peacekeeping Force, and allied Tamil organizations
in reaction to LTTE terrorism amounted to persecution on account of any of
the grounds enumerated in the Act.
EXCLUDABLE: Act of 1952 - Sec. 212(a)(6)(C)(i) [8 U.S.C. § 1182(a)(6)(C)(i)]
- Fraud or willful misrepresentation of a material fact
Sec. 212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I)] - No valid
ON BEHALF OF APPLICANT: ON BEHALF OF SERVICE:
Daniel H. Smith, Esquire Thomas P. Molloy
MacDonald, Hoague & Bayless General Attorney
1500 Hoge Building
705 Second Avenue
Seattle, Washington 98104-1745
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman,
In a decision dated March 6, 1992, the immigration judge found the applicant
excludable on the grounds set forth above, based upon his admissions. Furthermore,
the immigration judge denied his applications for asylum under section 208(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1988), and
for withholding of exclusion and deportation under section 243 (h)(1) of
the Act, 8 U.S.C. § 1253(h)(1) (Supp. II 1990), and ordered him excluded
and deported from the United States. The applicant, through counsel, has
appealed from that decision with respect to the denial of relief from exclusion
and deportation. The appeal will be dismissed. The applicant's request for
oral argument before for the Board is denied. See 8 C.F.R. § 3.1(e)
The record reflects that the applicant is a 37-year-old native and citizen
of Sri Lanka, who is a member of the Tamil ethnic group. He claimed persecution
by the Government of Sri Lanka and by various groups allied with the Government
because of his association with the Liberation Tigers of Tamil Eelam ("LTTE"),
a separatist Tamil terrorist organization. The applicant also claimed persecution
by the LTTE.
Specifically, the applicant explained that he operated a grocery store in
the Jaffna area of northern Sri Lanka. He indicated that in 1986, members
of the LTTE began to visit his business and demand food and cigarettes. He
related that because they were armed, he complied with their demands. He
observed that while he agreed with the pro-Tamil goals of the LTTE, he opposed
their use of violence.
The applicant recounted that in August 1987, after the Indian Peacekeeping
Force ("IPKF") had occupied the area, he was arrested and brought to one
of its camps. He declared that despite his plea of compulsion, he was accused
of assisting the LTTE. He advised that, as a result, he was severely beaten
by elements of the Eelam People's Revolutionary Liberation Front ("EPRLF"),
a Tamil organization opposed to the LTTE, which had allied itself with the
IPKF. He noted that he suffered a broken nose and lacerations to his body.
According to the applicant, when his wife came to beg for his release after
3 days, the IPKF refused to free him and instead kept him confined for 2
weeks, during which time he received medical treatment. He stated that when
he finally returned to his store, he found that it had been ransacked.
The applicant recounted that after the withdrawal of the IPKF, the LTTE reasserted
its power in the Jaffna area. He advised that in March 1990, the LTTE insisted
that he become a process server for a mediation office which it had created.
He explained that he was chosen for this job because, as a store owner, he
was familiar with the people in his neighborhood.
The applicant related that in late October 1991, while returning to his home
from a business trip, he encountered people fleeing the area. He indicated
that he was informed that the Sri Lankan military had occupied the sector
and that he should not return because of his work for the LTTE. He stated
that, as a result, he went to stay with relatives in Jaffna. According to
the applicant, he decided to leave Jaffna after 10 days because of the continued
advance of the Sri Lankan military.
The applicant testified that he traveled to Colombo, in southern Sri Lanka,
where he found shelter with a relative. He stated that the members of the
household were required to register his presence with the local authorities,
and that they did so on November 15, 1991. He explained that he was afraid
to remain in Colombo because the EPRLF, as well as the Eelam National Democratic
Liberation Front ("ENDLF"), were searching out LTTE supporters in conjunction
with the Sri Lankan security forces. He related
that he therefore obtained money from his brother in Canada and arranged
to be smuggled out of the country on December 4, 1991. After his departure
from Sri Lanka, the applicant learned from his brother, who had contacts
in Colombo, that the police had come to search for him.
Turning to an analysis of the applicant's persecution claim, we point out
that we have assumed, arguendo, that the factual basis of his story is worthy
of belief. However, given the complexity of the political situation in Sri
Lanka, we have carefully reviewed the applicant's claims of persecution in
light of the background materials contained in the record. According to those
documents, the applicant's claim is set against the backdrop of a terrorist
campaign conducted by the LTTE. This group, which represents only a small
portion of the ethnic Sri Lankan Tamil population, is centered in certain
portions of northern and eastern Sri Lanka. Other major ethnic Sri Lankan
Tamil groups and political figures have been engaged in political discussions
with the Government of Sri Lanka and have agreed to a 19-point political
program aimed at accommodating the various interests of the Tamil, Sinhalese,
and Moslem populations of the country. This program was arranged through
the mediation of the Government of India, which has taken an interest in
the situation because of internal political pressures related to the Indian
State of Tamil Nadu.
It is thus crucial to an assessment of the applicant's claim to understand
that the Government of Sri Lanka has been engaged in discussions and negotiations
with ethnic Sri Lanka political leaders concerning Tamil demands. It is against
this context that the applicant's claim of persecution "on account of" his
Tamil ethnicity and political views has to be weighed.
It is also necessary to consider the historical context of the applicant's
claims. The applicant portrays himself as a member of a "minority," but this
label does not accurately convey the historical role of ethnic Sri Lankan
Tamils in Sri Lanka. During the British colonial period, Sri Lankan Tamils
were used by the British to rule Sri Lanka. Following independence, Tamils
participated fully in the political life of the country, where
universal suffrage was the standard and minority rights were protected by
the constitution. For decades after independence, various Tamil political
parties played an important role in coalition governments. This participation
occurred even though there were strong Sinhalese nationalist groups who agitated
for special consideration for the Sinhalese majority, to make up for the
economic and educational disadvantages they had suffered under colonial rule.
For years, in fact, in the 1950s and 1960s, the Government of Sri Lanka was
preoccupied with the threat from leftist Sinhalese groups who launched a
violent underground struggle to overthrow the government. Eventually, the
Government was able to suppress the violent Sinhalese groups, most prominently
the Janatha Vimukthi Peramuna ("JVP"), which had asserted a form of Sinhalese
In the early l970's, some radical Sri Lankan Tamils began to agitate for
autonomy or actual separation from Sri Lanka. Indeed, a number of Tamil
parties, including the Tamil United Liberation Front ("TULF"), successfully
ran candidates for parliament on separatist platforms. The political negotiations,
however, did not suit the most radical of the Tamil separatists, who began
to arm themselves with the assistance of Tamils in the Indian State
of Tamil Nadu. These radicals began a concerted terrorist campaign in which
policemen, soldiers, political figures, and others, both Sinhalese and Tamil,
were murdered. Terrorist bombings were a favorite tactic. In l983, partly
in response to the ambush killings of government soldiers by the LTTE, and
partly because of the heated atmosphere generated by national elections,
Sinhalese in the city of Colombo rioted and attacked Tamils. The Government
was able to suppress the disturbances after about a week.
After that, the situation in northern Sri Lanka continued to deteriorate
as the radical Tamil groups escalated the level of violence. There was also
a concerted effort by the LTTE to destroy rival Tamil groups, and attacks
were carried at great loss of life against the Tamil Eelam Liberation Organization
("TELO"), and the EPRLF in l986. These groups had shown a desire to negotiate
a peaceful resolution to the conflict. The LTTE objective, in addition to
destroying rival Tamil groups, was to drive out all the institutions of the
state, and, of course, police and military forces were a major target. The
LTTE forces systematically engaged in horrible atrocities in order to establish
a reign of terror. Initially, this campaign was aimed at government personnel,
but quickly came to include innocent persons murdered and driven from their
homes solely because of their Sinhalese ethnicity. According to the Amnesty
International reports in the record, among the more atrocious acts of the
LTTE were the bombings of bus stations and buses and armed attacks on buses,
in which hundreds of people were butchered. The terrorism also was directed
at ethnic Tamils who did not support the radical groups and more recently
has been aimed at Moslems, in order to create ethnically pure Tamil
In l987, the Government of India forced the Government of Sri Lanka to accept
the assistance of the IPKF in order to monitor the 19-point political program
which the Government of India had brokered. This force was sent into northern
Sri Lanka to begin the supervised disarming of the various Tamil groups.
The LTTE was the only major Tamil guerrilla group to refuse to participate,
and it launched assaults on the IPKF, which responded with powerful military
attacks against the LTTE. This struggle culminated in the seizure of Jaffna,
the major LTTE stronghold.
In l990, the IPKF withdrew from Sri Lanka, but the LTTE continued its attacks.
The Government of Sri Lanka employed its security forces to counter the LTTE
and in this undertaking had the assistance of several major ethnic Sri Lankan
Tamil groups, among them TELO, the EPDP, and the EPRLF.
Viewed in light of these facts, the applicant's assertions regarding his
claim of persecution "on account of" his ethnicity and his political views
are remarkably simplistic and misleading. First, the Government of Sri Lanka
works with major Tamil organizations who seek a peaceful resolution of the
situation. Second, major Tamil organizations provide military assistance
to the Government in its efforts to combat the only major terrorist group
which has refused to renounce violence.
We are satisfied from the record that the Government of Sri Lanka does not
persecute ethnic Sri Lankan Tamils on the basis of their ethnicity. This
claim is in fact contradicted by the political and military cooperation shared
by the Government and major Tamil groups, and the history of participation
by Tamils in the Government of Sri Lanka.
Second, it is clear that the Government of Sri Lanka does not persecute Tamils
"on account of" their championing of Tamil interests or political rights.
In fact, it appears the Government has tried in the most difficult of circumstances
to reach a mutually agreeable accommodation by peaceful negotiations. The
Government even went so far as to allow the Government of India (historically
sympathetic and helpful to Tamil groups) to use its political and military
might in Sri Lankan territory. But even the Indians found themselves viciously
attacked by the LTTE. The record establishes that the violence in Sri
Lanka was begun by terrorist Tamil forces and continues because of terrorist
Tamil forces. It is not the Government of Sri Lanka that attacked Tamils,
and it is not the Government Sri Lanka that wishes the violence to continue.
It is clear that in the course of this violent decade in Sri Lanka, innocent
Tamils have been killed by security forces, and human rights abuses have
occurred. The LTTE has set out to create an atmosphere of violence and terror
and in so doing has consciously tried to incite Sri Lankan and rival Tamil
groups to retaliate. This is a common tactic of guerrilla organizations.
Thus, Amnesty International, in its report, "Sri Lanka-The Northeast," states
that the LTTE captured and executed hundreds of Sri Lankan officers and "disappeared"
others. Amnesty International, Sri Lanka-The Northeast, AI Index: ASA 37/14/91,
at 7 (Sept. 1991). The LTTE also killed hundreds of Sinhalese, Moslems, and
Tamils. All of the LTTE's opponents in turn retaliated with attacks of their
It also appears indisputable that human rights abuses occur on a large scale.
This does not mean, however, that these abuses, standing alone, translate
into persecution as defined in the Act. The applicant here, for instance,
complains of mistreatment at the hands of the Tamil group, EPRLF, which is
aligned with the Government against the LTTE. But the EPRLF is a Tamil organization,
and it also supports Tamil claims, so it could not be persecuting the applicant
on account of his shared Tamil ethnicity or political views.
The same logical failure results with his assertions regarding the IPKF.
That force went to Sri Lanka to enforce a political program favorable to
Tamil demands and was sent by a government sympathetic to Tamil claims. The
applicant has failed to show that the IPKF was transformed into an anti-Tamil
force once it was in Sri Lanka. The applicant's claims vis-a-vis the other
Tamil group, the ENDLF, also fail. This group was both aligned with the Government
and supported the Tamil claims supposedly supported by the LTTE and the applicant.
As to the government forces, at least the ethnic Sinhalese members, it appears
that they have engaged in human rights abuses. But the Amnesty International
report shows that these abuses have also been directed against ethnic Sinhalese
groups, in particular the JVP. Our reading of the Amnesty International report
indicates that the Government of Sri Lanka has said it "would deal with the
LTTE in the same manner as it had recently dealt with the JVP in the south."
Amnesty International, supra, at 7. This reference to the JVP relates to
the government suppression of the attempt in recent years by that ethnic
Sinhalese group to overthrow the government, as the JVP had tried to do several
decades ago. As the Amnesty International report also makes clear, the Government
has pledged to stop these human rights abuses and has accepted recommendations
made by Amnesty International on this subject. At the same time Amnesty International
has recognized that these human rights abuses (which their report nowhere
terms "persecution") have "taken place in the context of armed conflict between
government security forces and the LTTE. Amnesty International appreciates
the particularly difficult law and order situation this has created." Id.
This Board in turn appreciates the awful circumstances in which the Sri Lankan
Government and large numbers of the inhabitants of that country find themselves.
But if we were to accept the applicant's assessment of human rights violations
as constituting persecution under the Act, Tamils, Moslems, and Sinhalese
alike would all be persecuted in Sri Lanka. Neither the relief of asylum
nor of withholding of deportation provides for refuge "on account of" human
rights abuses unconnected to the grounds enumerated in the Act, i.e., race,
religion, nationality, membership in a particular social group, or political
opinion. See sections 208(a) , 243 (h)(1) of the Act; section 101(a)(42)
of the Act, 8 U.S.C. § 1101(a)(42) (1988).
We have carefully reviewed the entire record on a de novo basis. 1/ We conclude
that the applicant has failed to establish past persecution or a well-founded
fear of future persecution in Sri Lanka on account of any of the grounds
enumerated above. See sections 101(a)(42)(A), 208(a) of the Act; 8 C.F.R.
§ 208.13 (1992); see also INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)
(holding that the asylum standard is more generous than the withholding standard);
8 C.F.R. § 208.13(b)(2) (1992) ("reasonable possibility" definition
of well-founded fear asylum standard).
Moreover, contrary to the assertions of the applicant regarding his asylum
claim, we find that the reasoning set forth by the United States Supreme
Court in INS v. Elias-Zacarias, 502 U.S. 478 (1992), is controlling in this
matter. With respect to the LTTE, we are not persuaded that the forced donation
of goods and services was premised upon any of the enumerated grounds. For
instance, despite the general political agenda of the LTTE, it appears that
this organization sought out the applicant simply to help satisfy its need
for supplies and manpower. See id. at 816. There is no convincing evidence
that the militants were motivated to punish him because of his political
views, inter alia. Indeed, there would be no reason to do so. He testified
that he agrees with the group's goals.
This rationale also applies to that aspect of the applicant's claim dealing
with the IPKF, the EPRLF, the ENDLF, and the Sri Lankan security forces.
Specifically, in order to prove persecution "on account of" one of the enumerated
grounds, an alien must do more than show mistreatment by the government or
a particular group.
Whether voluntarily or involuntarily, the applicant directly associated with
the LTTE, a Tamil extremist group which bears primary, if not sole, responsibility
for continuing and escalating the violence in Sri Lanka. Unlike moderate
Tamil organizations, the LTTE refused to participate in political settlements
worked out by the government. Reacting to the brutal tactics of the LTTE,
the Sri Lankan security forces, the IPKF, and the allied Tamil groups sought
out LTTE cadres in an attempt to end the violence and preserve the government.
The applicant was swept up in this effort.
It may well be that the organizations seeking to curb the LTTE were driven
to acts of revenge as a result of the militants' terrorism, but this is in
the nature of civil war. Harm arising from general civil strife does not
amount to persecution within the meaning of the Act. See, e.g., Martinez-Romero
v. INS, 692 F.2d 595 (9th Cir. 1982).
Inasmuch as the applicant cannot demonstrate statutory eligibility for asylum,
it follows that he cannot establish statutory eligibility for withholding.
See generally Rodriguez-Rivera v. INS, 848 F.2d 998, 1007 (9th Cir. 1988).
The evidence does not demonstrate that it is more likely than not that if
the applicant were now to return to Sri Lanka, he would be persecuted within
the meaning of the Act. See section 243 (h)(1) of the Act; INS v. Stevic,
467 U.S. 407 (1984); 8 C.F.R. § 208.16 (1992).
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
FOOTNOTES FOR INTERIM DECISION #3187
1/ Pursuant to regulation, the record also contains an advisory opinion issued
by the Department of State's Bureau of Human Rights and Humanitarian Affairs.
8 C.F.R. §§ 208.11(b) -(c) (1992).