S-P

Interim Decision #3287

Interim Decision #3287

In re S-P-, Applicant

File A72 971 091- San Francisco

Decided June 18, 1996

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) Although an applicant for asylum must demonstrate that harm has been or would be
inflicted on account of one of the protected grounds specified in the “refugee” definition,
persecution for “imputed” reasons can satisfy that definition.
(2) In mixed motive cases, an asylum applicant is not obliged to show conclusively why perse-
cution has occurred or may occur; however, in proving past persecution, the applicant must
produce evidence, either direct or circumstantial, from which it is reasonable to believe that
the harm was motivated in part by an actual or imputed protected ground.
(3) In situations involving general civil unrest, the motive for harm should be determined by
considering the statements or actions of the perpetrators; abuse or punishment out of propor-
tion to nonpolitical ends; treatment of others similarly situated; conformity to procedures for
criminal prosecution or military law; the application of antiterrorism laws to suppress politi-
cal opinion; and the subjection of political opponents to arbitrary arrest, detention, and
abuse.
(4) Asylum was granted where the applicant was detained and abused by the Sri Lankan Gov-
ernment, not only to obtain information about the identity of guerrilla members and the loca-
tion of their camps, but also because of an assumption that his political views were
antithetical to those of the Government.

FOR APPLICANT: Judith L. Wood, Esquire, Los Angeles, California

FOR IMMIGRATION AND NATURALIZATION SERVICE: Andrew R. Arthur, General
Attorney

BEFORE: Board En Banc: SCHMIDT, Chairman; HOLMES, HURWITZ, VILLAGELIU,
ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Concurring Opin-
ion: FILPPU, Board Member, joined by DUNNE, Vice Chairman, HEILMAN, and COLE,
Board Members. Dissenting Opinion: VACCA, Board Member.

GUENDELSBERGER, Board Member:

In a decision dated April 3, 1995, an Immigration Judge found the appli-
cant to be excludable as alleged and denied his requests for asylum and with-
holding of deportation pursuant to sections 208(a) and 243(h) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h)(1994).

486
 Interim Decision #3287

The applicant appealed the denial of asylum, arguing in part that the Immi-
gration Judge abused her discretion.
On May 9, 1995, the Immigration and Naturalization Service filed a
motion requesting summary dismissal of the appeal on the grounds that the
Notice of Appeal lacked the required specificity and that the applicant had
failed to file an appellate brief. Meanwhile, on May 5, 1995, the applicant
timely filed an appellate brief which more clearly specified the reasons for
his appeal. The Service submitted a late brief on December 4, 1995. The Ser-
vice’s motion for summary dismissal is denied. The applicant’s appeal is
sustained.

I. FACTUAL BASIS FOR THE ASYLUM CLAIM
The applicant is a 34-year-old Sri Lankan national of Tamil ethnicity. He
was a welder by trade and had his own welding shop for several years. In
November 1993, the applicant and his wife relocated to a Red Cross refugee
camp near Elali in northern Sri Lanka. The Liberation Tigers of Tamil Eelam
(“LTTE” or “Tigers”) took the applicant from the refugee camp and forced
him to work for them as a welder in one of their base camps near Elali. There
were about 30 others in this camp who, like the applicant, were forced to
work for the Tigers. These workers were taken to various work sites during
the day and brought back to the Tigers’ camp in the evening. The applicant
testified that he was not mistreated by the Tigers, but that he was watched at
all times and believed he would be severely punished were he to attempt an
escape.
In March 1994, the applicant was in the Tigers’ camp when it was raided
by the Sri Lankan Army. The applicant hid in a bunker during the attack
which lasted about 3 hours. When he emerged, he was surrounded by 50 to 60
Sri Lankan soldiers. The soldiers accused him of being a Tiger and took him
and 12 other conscripted workers captured with him to the Sri Lankan Army
camp in Elali. At that camp, he and the 12 other workers were kicked and
beaten with plastic pipes and gun butts.
Two days after he was captured, the applicant and the 12 other workers
were taken by ship to Magazine Army Prison in Colombo. In Colombo, the
applicant was asked questions and his answers were written down. He then
signed a document written in Sinhala, a language he can speak but cannot
read.
The applicant was held by the Army in the Colombo prison for 6 months,
from March 25 to September 18, 1994, during which time he was mistreated
during at least eight sessions. On one occasion, he was placed in a room with
burning chilies which caused choking and smoke inhalation. On other occa-
sions, he was threatened with guns by drunken soldiers, tied up, and beaten.
On four occasions the barrel of a gun was held to his head and he was told that

487
Interim Decision #3287

if he did not tell the truth he would be killed. At various times, his head was
repeatedly dunked in a bucket of water.
The abuses described above occurred both during periods of interrogation
and during periods when no interrogation took place, i.e., after attacks by the
Tigers upon army positions, and when army officers had been drinking. Dur-
ing such sessions, the applicant was repeatedly accused of being a Tiger.
On September 18, 1994, the applicant was released after his uncle paid a
bribe to a guard. After his release, the applicant went to his uncle’s house in
Colombo, where he stayed for 8 days. During that 8 days, he only left his
uncle’s house two times to go to the temple.
On September 26, 1994, three policemen came looking for the applicant at
his uncle’s house. The applicant’s uncle told the policemen that the applicant
had returned to his own home. After this incident, the applicant moved to the
house of a friend of his uncle, where he remained until leaving Sri Lanka on
December 19, 1994. During this time, the applicant contacted a brother who
arranged for an agent to meet him in Colombo. The applicant’s father-in-law
brought him his passport. The applicant gave his passport to his agent at a
hotel on October 12 or 13, 1994.
On December 19, 1994, the applicant’s agent flew with him to Singapore,
where the applicant remained for 6 days. On December 25, 1994, the appli-
cant flew from Singapore to San Francisco, stopping for an hour in Hong
Kong. The applicant was detained by Service officers when he arrived at San
Francisco because he did not have valid entry documents.

II. THE IMMIGRATION JUDGE’S DECISION
Although the Immigration Judge found the applicant to be credible, she
concluded that the abuse of the applicant by Sri Lankan army personnel “did
not rise to the level of persecution contemplated by” the Act. Subsequent por-
tions of the decision indicate that the Immigration Judge, in denying asylum,
was not concerned with the level of harm1 but with the requirement that the
motive for the persecution be “on account of” one of the five grounds set
forth in the definition of “refugee” in section 101(a)(42)(A) of the Act,
8 U.S.C. § 1101(a)(42)(A) (1994). The Immigration Judge ultimately con-
cluded that the motive for the abuse inflicted upon the applicant was the
“ongoing civil strife in Sri Lanka” and, therefore, was not on account of a
ground protected by the asylum law.

1 We find that the applicant established by way of credible testimony that he suffered harm

sufficient to constitute past persecution, to wit, a 6-month detention, beatings, and other
physical and mental abuses at the hands of the Sri Lankan Army.

488
 Interim Decision #3287

III. ISSUE ON APPEAL
The issue is whether the applicant in this case has demonstrated that the
physical and mental torture he endured was inflicted because of political
views imputed to him after he had been detained as a suspected Tamil Tiger
and, therefore, was “persecution . . . on account of political opinion” under
the definition of “refugee” in section 101(a)(42)(A) of the Act.

IV. ANALYSIS
A. Applicable Standards
An applicant for asylum bears the burden of establishing that he or she
meets the “refugee” definition of section 101(a)(42)(A) of the Act. In meet-
ing this burden, an asylum applicant must do more than simply show that he
or she was harmed or has a well-founded fear of being harmed. An applicant
must demonstrate that the harm was or would be inflicted “on account of
race, religion, nationality, membership in a particular social group, or politi-
cal opinion.” Section 101(a)(42)(A) of the Act. Harm arising from general
conditions of strife, for example, is not persecution on account of one of the
grounds protected under the Act.
Persecution for “imputed” grounds (e.g., where one is erroneously
thought to hold particular political opinions or mistakenly believed to be a
member of a religious sect) can satisfy the “refugee” definition. Matter of
A-G-, 19 I&N Dec. 502, 507 (BIA 1987). Notably, the United Nations Hand-
book on Refugees recognizes that persecution based on political opinion may
include situations in which “such opinions have come to the notice of the
authorities or are attributed by them to the applicant.” Office of the United
Nations High Commissioner for Refugees, Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the
1967 Protocol Relating to the Status of Refugees para. 80, at 19 (Geneva
1979) (emphasis added).
Persecutors may have differing motives for engaging in acts of persecu-
tion, some tied to reasons protected under the Act and others not. Proving the
actual, exact reason for persecution or feared persecution may be impossible
in many cases. An asylum applicant is not obliged to show conclusively why
persecution has occurred or may occur. Such a rigorous standard would
largely render nugatory the Supreme Court’s decision in INS v.
Cardoza-Fonseca, 480 U.S. 421 (1987), and would be inconsistent with the
“well-founded fear” standard embodied in the “refugee” definition.
The Board, recognizing the “well-founded fear” standard and the fact that
an applicant for asylum may well face difficulty in showing the exact motiva-
tion for an act or feared act of persecution, has held that “an applicant does
not bear the unreasonable burden of establishing the exact motivation of a
‘persecutor’ where different reasons for actions are possible.” Matter of

489
Interim Decision #3287

Fuentes, 19 I&N Dec. 658, 662 (BIA 1988). Rather, an asylum applicant
“bear[s] the burden of establishing facts on which a reasonable person would
fear that the danger arises on account of his race, religion, nationality, mem-
bership in a particular social group, or political opinion.” Id. Thus, in this
case the standard for review is whether the applicant has produced evidence
from which it is reasonable to believe that the harm was motivated by a pro-
tected ground.
This motivation issue involves questions of fact. The applicant, who bears
the burden of proof, must present evidence to meet this element of his or her
case. Testimonial evidence may in some instances be sufficient on this point,
but the availability of supporting documents and corroborative background
evidence must be taken into account. Matter of Dass, 20 I&N Dec. 120 (BIA
1989). Dependent upon the evidence presented by the applicant, the Service
can and should present any available evidence on this issue. Matter of
Fuentes, supra.

B. Ninth Circuit Precedent
This case arises within the jurisdiction of the United States Court of
Appeals for the Ninth Circuit, which has held in numerous decisions that per-
secution resulting from erroneously imputed political opinion provides a
valid basis for asylum in the United States. Singh v. Ilchert, 63 F.3d 1501 (9th
Cir. 1995); Canas-Segovia v. INS, 970 F.2d 599 (9th Cir. 1992); Ramirez
Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), vacated on other grounds, 502
U.S. 1025 (1992).
Most recently, in Singh v. Ilchert, supra, the Ninth Circuit found persecu-
tion on account of political opinion in a situation in which Indian security
forces detained, tortured, and interrogated an Indian Sikh suspected of sup-
porting anti-government forces. Harpinder Singh was a 24-year-old male
native and citizen of India who lived and worked on his family farm. He was
not a member of any political party, but claimed to have supported the move-
ment for formation of an independent Sikh state through peaceful means. In
April 1991, militant separatists visited his farm and demanded food and shel-
ter. The next month police security forces raided the farm and detained, beat,
and interrogated Singh about the militants. This cycle of pressure from mili-
tant separatists and then imprisonment and interrogation by the police secu-
rity forces was repeated in July and August. Singh sought asylum based on a
claim of past persecution and well-founded fear of future persecution on
account of mistakenly attributed political opinion.
The Immigration Judge and the Board found that the interrogation and
abuse was intended to ferret out information in the course of a legitimate
investigation and that the applicant had failed to prove that his mistreatment
was motivated by mistakenly attributed political opinion. In reversing the
Board, the Ninth Circuit found evidence in the record that the persecution

490
 Interim Decision #3287

was at least partially motivated by political opinions mistakenly attributed to
Singh. The facts of the case indicated that the Indian authorities had reason to
believe that Singh was associated with anti-government forces.
In Singh v. Ilchert, supra, the Ninth Circuit criticized the Board for
“fail[ing] to recognize that persecutory conduct may have more than one
motive, and so long as one motive is one of the persecutory grounds, the
requirements [as to grounds] have been satisfied.” Id. at 1509. The Ninth Cir-
cuit referred to the Board’s own decision recognizing multiple motives, Mat-
ter of Fuentes, 19 I&N Dec. 658 (BIA 1988), and the following criticism of
the Board’s restrictive approach by the dissenting opinion in Matter of R-, 20
I&N Dec. 621 (BIA 1992):
[T]he majority . . . implicitly suggest[s] that an alien must prove a persecutorial motivation
anchored upon one of the enumerated grounds to the exclusion of all other possible motiva-
tions. Matter of Fuentes, however, recognized that there can be more than one possible basis
for a persecutor’s actions. The task of the alien is simply to demonstrate the reasonableness
of a motivation which is related to one of the enumerated grounds.
Singh v. Ilchert, supra (quoting Matter of R-, supra, at 629 (Dunne, concur-
ring in part and dissenting in part)).
In determining that Singh had demonstrated to the court’s satisfaction “the
reasonableness of a motivation related to one of the enumerated grounds,”
the court examined the history and context of the Sikh separatist movement
and the government reaction to that movement. It found evidence in the
record of a set of vague and wide-ranging antiterrorism laws in effect in India
along with a history of abusive application and enforcement of these laws “to
suppress political dissent and stamp out secessionist ideologies.” Singh v.
Ilchert, supra, at 1508.
The court also referred to documentary reports of widespread arbitrary
arrest and detention and abuse of persons suspected of affiliation with sepa-
ratists and found that “a review of [the aforementioned] documents reveals
that India defines ‘terrorism’ so broadly and treats those accused of suspected
terrorism so harshly, that police ‘investigations’ of many suspected terrorists
are not legitimate government functions but rather a part of a pattern of politi-
cal suppression.” Id. at 1508. Such evidence, when considered in light of the
severity of the abuse and the lack of evidence of any legitimate government
criminal prosecution of Singh, demonstrated the reasonableness of his asser-
tion that his persecution was premised upon attributed political opinion, one
of the enumerated grounds.
The Ninth Circuit held in Singh v. Ilchert, supra, that “extra-judicial pun-
ishment of suspected anti-government guerrillas can constitute persecution
on account of imputed political opinion.” Id. at 1508. This holding reiterates
well-established law in that circuit. See Maldonado-Cruz v. Dept. of Imm.
and Naturalization, 883 F.2d 788 (9th Cir. 1989); Blanco-Lopez v. INS, 858
F.2d 531 (9th Cir. 1988); Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir.
1985). Under these precedents it is clear that “[i]f there is no evidence of a

491
Interim Decision #3287

legitimate prosecutorial purpose for a government’s harassment of a person .
. . there arises a presumption that the motive for harassment is political.”
Singh v. Ilchert, supra, at 1509 (quoting Hernandez-Ortiz v. INS, supra, at
516).

C. Proving Motive
As noted above, it is often difficult to determine the exact motive or
motives for which harm has been inflicted. There are at least two distinct
areas of uncertainty in proving motive. First, in some cases, the events are
such that no particular motive is readily ascertainable. For example, an
unprovoked attack by unknown assailants may or may not have been for rea-
sons protected by the Act. Without some evidence, either direct or circum-
stantial, of the reasons for the attack, the applicant will fail to prove eligibility
for asylum.
A second area of uncertainty involves the question of motive in situations
in which evidence arguably suggests multiple motives. For example, prose-
cution for an offense may be a pretext for punishing an individual for his
political opinion. Similarly, in the instant case, the harm may have been
inflicted for reasons related to government intelligence gathering, for politi-
cal views imputed to the applicant, or for some combination of these reasons.
In adjudicating mixed motive cases, it is important to keep in mind the
fundamental humanitarian concerns of asylum law. In enacting the Refugee
Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, Congress sought to bring the
Act’s definition of “refugee” into conformity with the United Nations Con-
vention and Protocol Relating to the Status of Refugees2 and, in so doing,
give “statutory meaning to our national commitment to human rights and
humanitarian concerns.” See S. Rep. No. 256, 96th Cong., 2d Sess. 1, 4,
reprinted in 1980 U.S.C.C.A.N. 141, 144. Such an approach is designed to
afford a generous standard for protection in cases of doubt.
It is also important to remember that a grant of political asylum is a benefit
to an individual under asylum law, not a judgment against the country in
question. When the international community was considering the 1967 Refu-
gee Protocol, the U.N. General Assembly made clear that “the grant of asy-
lum by a State is a peaceful and humanitarian act and . . . as such, it cannot be
regarded as unfriendly by any other state.” Declaration on Territorial Asy-
lum, G. A. Res. 2312 (XXII), 22 U.N. GAOR, Supp. No. 16, at 81, U.N. Doc.
A/6716 (1967). A decision to grant asylum is not an unfriendly act precisely
because it is not a judgment about the country involved, but a judgment about
the reasonableness of the applicant’s belief that persecution was based on a
protected ground. This distinction between the goals of refugee law (which
2 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 1968 19 U.S.T.

6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268; United Nations Convention Relating to the Status
of Refugees, July 28, 1951, 189 U.N.T.S. 150.

492
 Interim Decision #3287

protects individuals) and politics (which manages the relations between
political bodies) should not be confused in charting an approach to determin-
ing motive. While it is prudent to exercise great caution before condemning
acts of another state, this is not a reason for narrowly applying asylum law.
In the context of this case, civil unrest in the form of an armed conflict
between the separatist Liberation Tigers of Tamil Elam and government mil-
itary forces has disrupted normal life in Sri Lanka for well over a decade.
While a portion of the Tamil population wages a violent campaign to estab-
lish a separate Tamil state, the established government of Sri Lanka seeks to
maintain the order and the integrity of the state. The conflict has involved
serious human rights violations by both sides. In this struggle, only a small
portion of the Tamil population is actively engaged in an armed struggle with
the Government. Other Tamils may sympathize with the separatist LTTE but
disagree with its use of violent tactics. Some Tamils have joined with the
Government in taking up arms against the LTTE. See Committees on Foreign
Affairs and Foreign Relations, 103d Cong., 2d Sess., Country Reports on
Human Rights Practices for 1993, 1386 (Joint Comm. Print 1994) (“Country
Reports”).
In applying asylum law in the context of the Sri Lankan conflict, it is not
an easy task to evaluate an asylum applicant’s claim that harm was inflicted
because of imputed political views rather than a desire to obtain intelligence
information. There may have been, in fact, a combination of these motives.
Matter of Fuentes, supra. The difficulty of determining motive in situations
of general civil unrest should not, however, diminish the protections of asy-
lum for persons who have been punished because of their actual or imputed
political views, as opposed to their criminal or violent conduct. As the Court
noted in INS v. Cardoza-Fonseca, supra, at 444, “Congress has assigned to
the Attorney General and his delegates the task of making these hard individ-
ualized decisions.” That abuse occurred in the context of ongoing civil strife
does not answer the question whether the abuse was on account of political
opinion.
In evaluating motive in a case in which prosecution for an offense may be
a pretext for punishing an individual for his political opinion, the Board
would examine a number of factors including “the nature of the crime and the
severity of the punishment,” as well as the applicant’s political opinion, the
motives behind his actions, the nature of the act committed, the nature of the
prosecution and its motives, and the nature of the law on which the prosecu-
tion is based." Matter of Izatula, 20 I&N Dec. 149, 157 (BIA 1990) (Vacca,
concurring). Evidence that punishment for a politically related act would be
disproportionate to the crime would indicate persecution on grounds of polit-
ical opinion rather than prosecution. Id.
In the instant case, there was no prosecution of the applicant. Therefore,
the evidence must be evaluated in the context of the ongoing civil conflict to
determine whether the motive for the abuse in the particular case was

493
Interim Decision #3287

directed toward punishing or modifying perceived political views, as
opposed to punishment for criminal acts; was part of the violence inherent in
an armed conflict (i.e., lawful acts of war); or, was motivated by some other
reason unrelated to asylum law. As suggested by the analysis in Singh v.
Ilchert, supra, the following elements, among others, may be considered in
identifying motive:
1. Indications in the particular case that the abuse was directed toward modifying or punish-
ing opinion rather than conduct (e.g., statements or actions by the perpetrators or abuse out
of proportion to nonpolitical ends);
2. Treatment of others in the population who might be confronted by government agents in
similar circumstances;
3. Conformity to procedures for criminal prosecution or military law including developing
international norms regarding the law of war;3
4. The extent to which antiterrorism laws are defined and applied to suppress political opin-
ion as well as illegal conduct (e.g., an act may broadly prohibit “disruptive” activities to per-
mit application to peaceful as well as violent expressions of views);
5. The extent to which suspected political opponents are subjected to arbitrary arrest, deten-
tion, and abuse.
This is certainly not an exhaustive list of factors to be taken into account in
assessing motive. The list merely identifies some of the factors to be consid-
ered in the totality of the circumstances.
We pointed out in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987),
(in the context of proving a well-founded fear of future persecution) that in
addition to establishing the fact that an applicant for asylum has a belief or
characteristic offensive to the alleged persecutor, the applicant must prove
that the alleged persecutor has the inclination and capacity to punish the alien
for that belief or characteristic. Here we must examine the record for direct or
circumstantial evidence from which it is reasonable to believe that those who
harmed the applicant were in part motivated by an assumption that his politi-
cal views were antithetical to those of the government.
As indicated in INS v.Elias-Zacarias, 502 U.S. 478 (1992), when the issue
is whether persecution is “on account of . . . political opinion,” an applicant
for asylum “cannot be expected to provide direct proof of his persecutors’
motives.” There the Court specifically stated that “[w]e do not require [direct
proof]. But since the statute makes motive critical, [the applicant] must pro-
vide some evidence of it, direct or circumstantial.” Id. at 482-83.

3 See, e.g., Common article 3 of the Geneva Convention which, in the context of civil wars,

prohibits “violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture” as well as “outrages upon personal dignity, in particular humiliating and
degrading treatment.” Although the Board has ruled that violations of the Geneva Conventions
do not create an independent basis for asylum, Matter of Medina, 19 I&N Dec. 734 (1988),
there may be situations in which the severity of the violations of the Geneva Convention may
support an inference that the abuse is grounded in one of the protected grounds under the
asylum law.

494
 Interim Decision #3287

In presenting evidence related to the factors listed above, the alien “does
not bear the unreasonable burden of establishing the exact motivation of a
‘persecutor’ where different reasons for actions are possible.” Matter of
Fuentes, supra, at 662. The task of the alien is “to demonstrate the reason-
ableness of a motivation which is related to one of the enumerated grounds.”
Matter of R, supra, at 629 (Dunne, concurring in part and dissenting in part).
In some fact situations, the evidence may reasonably suggest mixed motives,
at least one or more of which is related to a protected ground. See Osario v.
INS, 18 F.3d 1017, 1028 (2d Cir. 1994) (“[T]he plain meaning of the phrase
‘persecution on account of the victim’s political opinion,’ does not mean per-
secution solely on account of the victim’s political opinion.”)
D. Motivation in the Instant Case
In analyzing motive in the context of this case we first note that the State
Department Country Reports indicate that the Sri Lankan Army operates
under a “Prevention of Terrorism Act” (PTA) and Emergency Regulations
(ER), which give security forces wide powers such as preventive and incom-
municado detention. “Country Reports, supra, at 1389. While noting recent
efforts by the Sri Lankan Government to improve its human rights record, the
Country Reports indicate that ”[m]any Sri Lankans were detained without
trial in 1993, though the number continued to decline. Torture and mistreat-
ment of detainees were routinely practiced by both government forces and
the LTTE." Id. at 1387.
In this case, the record includes no indication that the applicant was
charged with any crime. Nor was the harm inflicted during the course of or on
the heels of an armed conflict. A suspected guerrilla might understandably be
interrogated concerning details of the makeup and location of opposing
forces. As time passes, however, harm inflicted is less likely associated with
reconnaissance motives.
During his detention and interrogation, the applicant was accused of being
an LTTE member and was questioned about the identity and location of
LTTE members for whom he had worked. However, the harm inflicted upon
the applicant in this case went well beyond the bounds of legitimate question-
ing for intelligence gathering and continued long after questioning for this
purpose had ended. In fact, the record here is clear that the applicant was
harmed in situations unrelated to intelligence gathering.
In this case, the Department of State’s Bureau of Democracy, Human
Rights, and Labor, in a publication entitled Sri Lanka: Comments on Country
Conditions and Asylum Claims (Jan. 1995), reports that young Tamil males
are routinely targeted as suspects in security incidents. This suggests that a
young Tamil male captured in an LTTE camp could readily be assumed to
have political views antithetical to those of the Government.
Taking into account the context of the Sri Lankan conflict, the information
in the State Department Country Reports, and the circumstances, duration

495
Interim Decision #3287

and extent of the abuse inflicted, we find that the applicant has produced evi-
dence from which it is reasonable to believe that those who harmed him were
in part motivated by an assumption that his political views were antithetical
to those of the Government. The record indicates that the applicant was
detained and abused not only to obtain information about the identity of
LTTE members and location of their camps but also because the capture of
the applicant in an LTTE camp led Sri Lankan authorities to believe that the
applicant was a political opponent. Thus, the applicant has met his burden of
proving that he was subjected to past persecution in Sri Lanka.4
Matter of B-, 21 I&N Dec. 66 (BIA 1995), is particularly instructive as to
the application of the reasonableness standard in a mixed motive case. The
applicant in Matter of B- had helped the mujahidin in Afghanistan by posting
up mujahidin fliers. The applicant testified that his brother was a member of
the mujahidin and that Afghan secret police searched his home to find the
brother. Although the brother was away at the time, the authorities found a
supply of mujahidin fliers in the home. The agents beat the applicant and his
father with the butts of their guns and asked where the applicant’s brother
was. The applicant and his father were then arrested and taken to secret police
quarters. There the applicant was subjected to further interrogation sessions
concerning the location of his brother and the source of the fliers. “[T]he first
session began with nonviolent questioning about who gave him the
mujahidin fliers, where his brother was, and where the mujahidin who sup-
plied the fliers were. The applicant testified that he responded that he did not
know, but his interrogators insisted that he did know about the mujahidin
because he was helping them. He stated that the KHAD agents thereafter sub-
jected him to sleep deprivation, beatings, and electric shocks applied to his
fingers. He said that he was often rendered unconscious by the abuse and
would wake up back in his cell. According to the applicant, the interrogations
occurred once or twice a week.” Id. at 67. After 3 months, the applicant was
transferred to prison where he was no longer interrogated. After 10 months in
prison he was sent involuntarily to the army. Id.
The Board had little difficulty in finding that under these facts the appli-
cant in Matter of B-, supra, was subjected to past persecution on account of
political opinion. The Board reasoned as follows:
The record indicates that the applicant was arrested in 1988 not only to obtain information
from him about his brother, who was a mujahidin member, but also because the discovery of
mujahidin fliers in his house led authorities to suspect that the applicant and his father were
involved with the mujahidin too. During his interrogation by the [secret police], the

4 In Matter of T-, 20 I&N Dec. 571, 577 (BIA 1992), we concluded that 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.” (Emphasis added.) In this case, the
applicant has done so by showing that he suffered mistreatment at the hands of the Sri Lankan
Army “on account of” wrongly attributed political opinion. Accordingly, Matter of T- is not
controlling in this case.

496
 Interim Decision #3287

applicant was accused of helping the mujahidin and was questioned about the identity and
whereabouts of the mujahidin members who supplied the fliers. After 3 months of interro-
gation and physical abuse at [secret police quarters], he was transferred to a prison, where
he remained for 10 more months before being sent to serve in the army. The applicant’s
detention and imprisonment for his support of the mujahidin constituted persecution on
account of political opinion.
Id. at 9.
As in Matter of B-, the applicant in the instant case was interrogated and
abused because of his suspected support of a separatist group engaged in a
military conflict with the government. Although there was interrogation and
an attempt to gain information in each case, an additional underlying reason
for the abuse was the belief that the victim held political views opposed to the
government. Notably, the Board in Matter of B- did not become entangled in
the impossible task of determining whether harm was inflicted because of the
applicant’s acts or because of his beliefs underlying those acts. See also Mat-
ter of Izatula, supra (holding that punishment the Afghan Government might
impose on account of support for the mujahidin would be persecution on
account of political opinion).

V. CONCLUSION
Having established past persecution, the applicant is presumed to have a
well-founded fear of persecution unless a preponderance of the evidence
establishes that since the time the persecution occurred, conditions in Sri
Lanka 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) (1995). No such evidence of substantial changes in country
conditions has been submitted in this case. Large-scale arrests of young
Tamil males and abuse of detainees continue to occur. See Sri Lanka: Com-
ments on Country Conditions and Asylum Claims (Jan. 1995).
There being no adverse factors of record, we will favorably exercise dis-
cretion in this case in order to grant the request for asylum. Because the appli-
cant’s asylum application will be approved, we need not address his
application for withholding of deportation pursuant to section 243(h) of the
Act. Matter of Mogharrabi, supra. Accordingly, the following order will be
entered.
ORDER: The appeal is sustained. The applicant is granted asy-
lum and admitted to the United States as an asylee.
CONCURRING OPINION: Lauri S. Filppu, Board Member; in
which Mary Maguire Dunne, Vice Chairman, Michael J. Heilman,
and Patricia A. Cole, Board Members, joined.
Asylum claims involving persons who have been abused in their home-
lands during periods of civil strife often raise difficult issues of fact and law.
This case is no exception. It is further complicated because it arises within the

497
Interim Decision #3287

jurisdiction of the United States Court of Appeals for the Ninth Circuit,
which has an extensive body of asylum case law that is binding on us.
An alien must be a “refugee” to qualify for asylum under section 208 of
the Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). “Refugee” sta-
tus requires in part that the past or feared future persecution arise “on account
of” a qualifying ground, specifically “race, religion, nationality, membership
in a particular social group, or political opinion.” Section 101(a)(42) of the
Act, 8 U.S.C. § 1101(a)(42) (1994). It is both the protected characteristic of
the victim, and the motivation of the persecutor to harm the victim because of
the victim’s protected characteristic, that are key to the “on account of”
requirement. INS v. Elias-Zacarias, 502 U.S. 478 (1992).
As the majority explains, the applicant was captured by the Sri Lankan
Army after an attack on a military camp operated by the Liberation Tigers of
Tamil Eelam (“Tigers”). The applicant is of Tamil heritage and was discov-
ered in a Tiger bunker in a Tiger camp at the conclusion of an armed engage-
ment. Not surprisingly, the Sri Lankan Army thought he was a Tiger. The
applicant was detained for about 6 months, during which he experienced the
torture and other abuses described by the majority. He was not prosecuted.
After a detailed review and analysis of the evidence, the majority con-
cludes that the record in its entirety reasonably shows that those who harmed
the applicant were in part motivated by political views they attributed to the
applicant. It seems, however, that the applicant likely would be considered to
be a “refugee” under Ninth Circuit law in any event. It appears that a pre-
sumption of politically motivated persecution arises in the Ninth Circuit
when, in a civil war context, government forces torture a suspected guerrilla
sympathizer and fail to pursue a legitimate investigation or prosecution.
Singh v. Ilchert, 63 F.3d 1501, 1508-09 (9th Cir. 1995); Maldonado-Cruz v.
Dept. of Imm. & Naturalization, 883 F.2d 788 (9th Cir. 1989); Blanco-Lopez
v. INS, 858 F.2d 531 (9th Cir. 1988); see also Gomez-Saballos v. INS, 79 F.3d
912, 917 (9th Cir. 1996).1 The majority’s approach may not be wrong under
Ninth Circuit law. Its detailed discussion and application of Singh v. Ilchert,
however, seems unnecessary, unless we first identify evidentiary inferences
that would overcome this presumption. Consequently, there is no need to
engage in, or to adopt, the majority’s analysis in order to find the applicant
eligible for asylum.

DISSENTING OPINION: Fred W. Vacca, Board Member
I respectfully dissent.
I am amazed that in a case where credibility is a most crucial factor, nei-
ther the decision of the majority nor the concurring opinion address in mean-
ingful terms the plausibility and believability of the applicant’s asylum
1 Singh v. Ilchert, supra, at 1509, indicates that at least this aspect of those earlier decisions

has survived the Supreme Court’s ruling in INS v. Elias-Zacarias, supra.

498
 Interim Decision #3287

claim. In my view, the applicant’s testimony is untruthful as to his status at
the time he was seized by the Sri Lankan Army. I find this to be determinative
of the applicant’s asylum claim. Unlike the majority’s decision, which con-
tains a terse footnote in which it finds the applicant’s testimony credible, and
the concurring opinion, which is silent on the subject, I have examined and
evaluated the applicant’s testimony to determine its veracity. As a starting
point, I reviewed the Immigration Judge’s decision to determine how she
treated the issue of credibility. I note that the applicant is the only witness
who gave testimony in these proceedings. In the second full paragraph of
page 5 of the Immigration Judge’s decision, I find the singular reference to
the credibility of the applicant. The Immigration Judge stated as follows:
After carefully observing the demeanor of the Applicant and considering his testimony, the
Court believes that what he testified to may have happened the way he says it did and, of
course, the Court will not impugn his character in any way. (Emphasis added.)

This finding of the Immigration Judge is ambiguous, tentative, and less
than helpful to me in determining the truthfulness of the applicant’s testi-
mony. The Immigration Judge gave no reasons, either analytical or specific,
for her conclusions and leaves this member wondering what she observed or
relied upon in making her findings. The alien submitted copies of various
news clippings and reports of country conditions in Sri Lanka which have
been made a part of the record. However, the applicant did not offer the testi-
mony of other witnesses, nor is there specific corroboration of his testimony.
Therefore, the applicant’s asylum claim rises or falls depending on the truth-
fulness and materiality of his testimony.
The applicant is a 34-year-old ethnic Tamil male who tells a story of being
a married man and a welder by trade who lived and worked near Elali in the
northern part of Sri Lanka. He claims that sometime after November of 1993
he was physically taken under duress by members of a guerrilla organization
known as the Liberation Tigers of Tamil Eelam (“LTTE” or “Tigers”) to a
clandestine Tiger camp in a rural area of northern Sri Lanka for the purpose
of performing forced labor, i.e., welding, in the service of the guerrillas. He
testified that in March of 1994, the Tiger camp was overrun in a military
assault by soldiers of the Sri Lankan Army. Because of the incoming shells,
presumably mortar, and rifle fire, he stated that he sought protection in one of
the bunkers built in the Tiger camp. He informed the Immigration Judge that
he was discovered hiding in the bunker by 50 or more soldiers who took him
and 12 other young Tamils who also were hiding in bunkers and brought
them to an army encampment where they were beaten and interrogated. Inter-
estingly, at least three times during his testimony, he referred to being
“caught” by the Sri Lankan soldiers. The applicant further testified that he
was later transferred to an army prison in or near Colombo, the capital of Sri
Lanka, and further beaten, threatened with rifles, and choked in a room filled
with irritating smoke from burning chilis. During the entire period of 6

499
Interim Decision #3287

months he was asked specific questions about his involvement with Tamil
Tigers and the Tigers’ operations. He claims that he was released from the
army’s detention after his uncle paid a substantial bribe to one of the soldiers.
Overall, I find that his testimony is lacking in important detail. Absent
from his testimony were any details of the daily routine of the Tiger camp,
how many Tigers were present in the camp, and what he observed of guerrilla
activities and operations. There is little or no information about his alleged
fellow captives, i.e. the 12 young Tamils found hidden in the bunkers. There
is also no specific information about the identity and behavior of the Tamil
Tigers. The applicant was silent as to whether Tigers fled or were caught in
the army assault on the camp. He testified that he only saw the other 12
“forced laborers” after the assault. Presumably he was held captive by the
Tigers from November 1993, when he was taken from his home, to March of
1994, when the soldiers “caught” him. I know precious little of what hap-
pened between these two events.
In the course of his testimony the applicant revealed that this brother was a
Tiger from 1983 to 1987. The applicant would have you believe that, despite
the compromising circumstances of his presence and capture in a clandestine
Tiger camp, he was not a Tiger, but a prisoner of the Tigers: one who was
forced by the Tigers to act as a slave for them by performing welding tasks.
The applicant would ask you to ignore the fact that in profound ways he
meets the exact profile of a Tamil Tiger. He is an ethnic Tamil, a male, and
one who fits the age description of a Tiger. Especially noteworthy is the fact
that the applicant comes from a region which is heavily concentrated with
Tigers. Indeed, the applicant’s brother was a Tiger. The applicant testified
that his brother terminated his membership in the Tigers in 1987. Would a
guerrilla group as violent and as fanatical as the Tigers permit the applicant’s
brother to unilaterally quit the Tigers? In an area where many young Tamil
males, including the applicant’s brother, were recruited by the Tigers, one
has to ask why the Tigers overlooked recruiting the applicant. According to
the applicant’s testimony, the Tigers knew of him and where he lived and
worked. Why would they take him as a forced laborer and not recruit him as a
Tiger. The applicant testified that while in the Tiger camp he was unre-
strained and treated well by the Tigers. He testified that he was watched
while in the camp to see that he and other slave laborers did not escape. If that
is the case, where were the guards at the time of the army assault on the
camp? In fact, where were the Tigers? The applicant testified that at the time
of the army assault, he was captured along with 12 other slave laborers. He
did not mention whether Tigers were in the camp or whether they were cap-
tured by the Sri Lankan soldiers. Did the Tigers leave the slave laborers alone
in the camp before the assault? Did the Tigers successfully flee the camp at
the time of the assault, leaving the laborers to fend for themselves, or were the
applicant and the young Tamils who were found hiding in the bunkers of the
Tiger camp actually Tigers?

500
 Interim Decision #3287

The applicant and the other young Tamils were taken prisoner, interro-
gated at a local army camp, and then transferred to a central army prison in
Colombo. The subject of the ongoing interrogation of the applicant was the
Tigers. He was believed to be a Tiger and was treated as one. The army was
most interested in knowing the identity of other Tigers and everything that
the applicant could tell them about the Tiger organization and its operations.
I have reviewed the transcript of the minutes of the hearing and examined
the testimony of the applicant from start to finish. In my view, the applicant’s
denial that he is a Tiger is highly implausible and not believable. When the
elements of his story are examined, it is logical and reasonable to infer that he
is indeed a Tiger who was caught by the Sri Lankan Army in the most com-
promising and compelling circumstances. In such circumstances, the appli-
cant has the burden of coming forward with evidence to show that he is not a
Tiger. Apart from his repeated denials, he did not submit evidence that would
demonstrate that he is not a Tiger. The applicant’s denial is contrary to every
aspect of what is known abut the Tigers and their activities.
The Tamil Tigers are an insurgent organization in Sri Lanka that engages
in violent terrorist activities. Its targets are military and police personnel and
installations in the northern and eastern regions of Sri Lanka. However, it
also is responsible for the killing, maiming, and displacing of thousands of
Sinhalese and Muslims in the civilian population. These terrorist activities
began in 1983. In 1991, two bombings in Colombo left the State Defense
Minister and scores of civilians dead. Also during 1991 the bodies of more
than 300 police, previously captured by the Tigers in June 1990, were found.
The Tigers, with use of anti-personnel mines, caused indiscriminate death or
injury to many persons in the northeast. In 1993 a Tiger suicide bomber
assassinated the President of Sri Lanka and 23 others at a public rally. The
most recent information from the Country Reports published by the Depart-
ment of State for the Congress reveals that the Tigers continue to kill Sinha-
lese and Muslims and use torture on a routine basis. See Committees on
Foreign and International Relations, 104th Cong., 2d Sess., Country Reports
on Human Rights Practices for 1995 1352 (Joint Comm. Print 1996).
Clearly, the Tigers are a terrorist guerrilla organization. They target the
Government of Sri Lanka and terrorize and persecute the Sinhalese and Mus-
lims in Sri Lanka as well. The applicant has failed to come forward with evi-
dence to show that he is not a Tiger. Having found the applicant to be a Tiger,
I conclude that the applicant is ineligible for asylum and withholding of
deportation as one who is a member of a terrorist group that ordered, incited,
assisted or otherwise participated in the persecution of persons on account of
race, religion, nationality, membership in a particular social group, or politi-
cal opinion. See section 243(h)(2)(A) of the Immigration and Nationality
Act, 8 U.S.C. § 1253(h)(2)(A) (1994); Fedorenko v. United States, 449 U.S.
490 (1981); Matter of McMullen, 19 I&N Dec. 90, 96 (BIA 1984); Matter of
Fedorenko, 19 I&N Dec. 57 (BIA 1984); 8 C.F.R. § 208.13(c) (1995).

501
Interim Decision #3287

Accordingly, I would deny the applications for asylum and withholding of
deportation and dismiss the appeal.

502