Ram-Rajban v. Attorney General

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-20-2005
Ram-Rajban v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1050
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-1050
GANESH RAM-RAJBAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
PETITION FOR REVIEW OF A DECISION OF
THE BOARD OF IMMIGRATION APPEALS
Agency No. A79-740-885
Submitted Under Third Circuit LAR 34.1(a)
November 17, 2005
Before: BARRY and AMBRO, Circuit Judges, and POLLAK,* District Judge
(Opinion Filed: December 20, 2005)
OPINION
BARRY, Circuit Judge
Ganesh Ram-Rajban, a native and citizen of Guyana, petitions for review of a
*
The Honorable Louis H. Pollak, District Judge, United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
final order of removal of the Board of Immigration Appeals (“BIA”). We will deny the
petition.
I.
On August 26, 2001, Ram-Rajban arrived in San Juan, Puerto Rico with improper
documentation. Immigration and Customs enforcement officials detained him. After a
September 27, 2001 interview, an official found that Ram-Rajban had established a
credible fear of persecution. Ram-Rajban applied for asylum and withholding of removal
and was paroled and permitted to press his case in Newark, New Jersey. It was in
Newark on September 26, 2003 that he came before an immigration judge (“IJ”).
Ram-Rajban’s difficulties, he testified, began with the March 2001 elections in
Guyana. The People’s Progressive Party, garnering most of its support from the Indo-
Guyanese population, retained power. The opposition party, the People’s National
Congress (“PNC”), found its political base among Afro-Guyanese citizens. There was
significant post-election social unrest. Ram-Rajban testified that his status as Indo-
Guyanese and a police officer made him a target of violence by supporters of the PNC.
During the hearing, the relative importance of the two claimed bases of
persecution was explored. Ram-Rajban had the opportunity to explain why he was
targeted, particularly why he believed that Afro-Guyanese citizens would threaten him,
2
and he testified that it was “[b]ecause [he] was in the police force.” 1 Ram-Rajban’s
concerns appeared focused on those individuals he had arrested and what they would do
upon their release.
Ram Rajban testified that the threats did not begin until after the election and that
Indo-Guyanese citizens, such as himself, were targeted. He stated that the police force
was run primarily by Afro-Guyanese who did nothing about the threats against him
because he was Indo-Guyanese and a supporter of the ruling party.2 He admitted,
however, that not all the police officers attacked and killed during the post-election unrest
were Indo-Guyanese. Moreover, he indicated that relatives of his had been killed in
ethnic violence, creating an inference that he would be subject to future persecution on
account of his ethnicity.
1
See AR67 (Q: “[W]hat made you leave Guyana?” A: “Because I was threatened?”
Q: “Who was it that threatened you.” A: “The black people.” Q: “And why was it that
they threatened you?” A: “Because I was in the police force and when the PPP win the
election and after we was patrolling, that’s the reason why they would started. Make a lot
of arrests and that’s when they started [to] threaten[ ] me.”); AR68 (“Q: “Now why do
you say, you said that you were threatened by black people.” A: “Yeah.” Q: “Why is it
that you were threatened by black people?” A: “Because due to the arrests that we make,
. . . when we patrolling nights . . . .”); AR68-69 (“Q: So you were, you feel that you were
threatened by the black people because you were conducting your duties as a police
officer?” A: “Yes.”); AR71 (Q: And when you go out there, would you wear a police
uniform?” A: “Yeah.”); AR75 (Q: “What if any types of problems did you have in
Guyana because you were a police officer? What happened to you?” A: “I was
threatened several times. By the people to kill me and my family, burn my property
down. That’s the reason why I had to leave and come away here.”); AR96; AR97
(numbers those who threatened him at approximately eight people).
2
Ram-Rajban’s service with the police force was voluntary, prompting the IJ to inquire
why he did not simply resign.
3
We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of
removal. Where, as here, the BIA affirms the IJ’s order of removal without a substantive
opinion, we review the IJ’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
II.
The evidence does not compel a finding that Ram-Rajban was threatened because
he was Indo-Guyanese. The IJ referenced the racial tension and social unrest in Guyana
during the relevant period, as borne out by Ram-Rajban’s testimony and documentary
evidence. Despite such conditions, there was certainly more than sufficient evidence to
support the IJ’s determination that the threats to Ram-Rajban’s safety arose out of his
status as a police officer. See, e.g., supra note 1. Although newspaper articles found in
the record report racial tensions, they also discuss the targeting of police officers as a
group in a particularly violent region of Guyana.
Ram-Rajban takes issue with the IJ’s statements during the hearing and his
observation that the population of Guyana “seems to be evenly split” between Indo-
Guyanese and Afro-Guyanese. These statements, however, appear to be the IJ’s way of
discussing relative demographic parity between the relevant groups, rather than any
finding that the country was comprised only of those two groups in equal number. We
question the IJ’s suggestion that the ineluctable consequence of relative parity is that the
winning party must have received support from opposition party members. (See A89 (“If
you have 50-50, it’s impossible to win an election if you only have the support of your
4
own group.”)) One group may have higher voter turnout, the groups may be essentially
equal in size but not exactly so, or there could be splinter parties. It is not, however,
apparent how, if at all, the IJ’s discourse on this point during the hearing was integrated
into his analysis, and we do not believe that it calls into question his ultimate finding
regarding the basis of the threats, namely, that they arose from Ram-Rajban’s position as
a police officer and not his ethnicity.
Having so found, the IJ determined that Ram-Rajban was not entitled to asylum.
To obtain asylum, an applicant must “demonstrat[e] that she has a well-founded fear of
future persecution by showing that she has a genuine fear, and that a reasonable person in
her circumstances would fear persecution if returned to her native country.” Gao, 299
F.3d at 272. The persecution must be on “account of” a statutorily protected ground. The
statutorily protected grounds are “race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).
Relying on Matter of Fuentes, 19 I. & N. Dec. 658 (B.I.A. 1988), the IJ found that
status as a police officer did not fall within the scope of any of the statutorily protected
grounds. In Matter of Fuentes, the BIA found that “perils arising from the nature of
[police] employment and domestic unrest” fall outside the scope of statutory protections.
Id. at 661.3 That reasoning is consistent with our adoption of a definition of “social
3
The BIA did find that under certain circumstances status as a former police officer –
an immutable characteristic – might fall within the protections of the statute. Fuentes, 19
I. & N. Dec. at 662. Ram-Rajban directs us to no evidence that he would be persecuted
5
group” that has at its core “an immutable characteristic . . . that the members [of the social
group] cannot or should not have to change because it is fundamental to their identity.”
Fatin v. INS, 12 F.3d 1233, 1239 (3d Cir. 1993). Ram-Rajban argues that his case is
distinguishable from Matter of Fuentes because he was not persecuted solely because he
was a police officer. He contends here, as he did before the IJ, that the primary reason he
was threatened was his ethnicity. The IJ rejected that contention, finding that the “most
important salient element of the application is the fact that [he] was a police officer.”
(A30-31.)
Ram-Rajban, in his attempt to move the analysis into the realm of legal
interpretation, in essence characterizes the IJ’s determination as a ruling as a matter of
law that status as a police officer precludes relief. It would be legal error for the IJ to
have found that, despite persecution based on ethnicity, simple status as a police officer
would prevent a grant of asylum or withholding of removal. The asylum applicant is not
required to establish that the persecution stemmed exclusively from a protected ground;
rather, he or she must show only that “a reasonable person would fear that the danger
arises on account of his race, religion, nationality, membership in a particular social
group, or political opinion." Matter of Fuentes, 19 I. & N. Dec. at 662. Even if he was
targeted because he was a police officer, Ram-Rajban could succeed if it were reasonable
to believe that the threats were “also motivated, at least in part,” by a protected ground.
because of past association with the police force.
6
Chang v. INS, 119 F.3d 1055, 1065 (3d Cir. 1997). The IJ did not find that Ram-Rajban’s
status as a police officer per se precluded relief; rather, he determined that the specific
dangers Ram-Rajban faced arose out of his activities as a police officer. In sum, the IJ
was not convinced that Ram-Rajban’s difficulties were because he was Indo-Guyanese or
because he was an Indian police officer.4 The evidence does not compel a different
finding.
IV.
We will deny the petition for review.
4
Cf. Naul v. Ashcroft, 106 Fed. Appx. 791, 797 (3d Cir. 2004) (recounting that Indo-
Guyanese petitioner testified that “the cause of the . . . encounter was his ethnicity,
perhaps in combination with his profession” as “specifically indicated” by “his Afro-
Guyanese assailants” who “did not want an Indian mechanic working in their village”)
(emphasis in original).
7