Interim Decision #3122 

MATTER OF DASS 

In Deportation Proceedings 

A-24287341 

Decided by Board September 6, 1989 

(1) As an asylum applicant bears the evidentiary burden of proof and persuasion, where 

there are significant, meaningful evidentiary gaps, the applications ordinarily will be 

denied for failure of proof. 

(2) While we adhere to the holding in Matter of Mogharrabt, 19 I&N Dec. 439 (BIA 

1987), that the lack of corroboration for an asylum applicant's testimony will not 

necessarily be fatal to his application, this does not mean that the introduction of 

supporting evidence is purely an option with an asylum applicant in the ordinary case; 

the general rule is that such evidence should be presented if it is available. 

(3) Background evidence may be needed to evaluate the credibility of an asylum 

applicant's testimony; as the basis for an asylum claim becomes less focused on 

specific events involving Me alien personally and instead is more directed to broad 

allegations regarding general conditions in the alien's country of origin, corroborative 

background evidence to establish a plausible context for the claim may become 

essential, or alternatively an acceptable explanation for the absence of such evidence 

may become necessary. 

(4) It was proper to conclude that the asylum applicant failed to establish a well-founded 

fear of persecution where his persecution claim was based on sweeping claims about 

persecution by the Government of India, as well as on the alien's testimony regarding 

his own circumstances, and he did not provide background evidence to corroborate 

the claims about the Government of India. 

CHARGE: 

Order: Act of 1952—Sec. 241(a)(2) [8 U.S.C. § 1251(x)(2)1—Entered without inspection 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Eric Beaudikofer, Esquire Joseph M. Ragusa 

910 South Fourth Street General Attorney 

El Centro, California 92243 

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members 

In a decision dated January 18, 1984, an immigration judge found 

the respondent deportable as charged; denied his applications for 

asylum under section 208 of the Immigration and Nationality Act, 

8 U.S.C. § 1158 (1982), and withholding of deportation under section 

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243(h) of the Act, 8 U.S.C. § 1253(h) (1982); denied a request for the 

privilege of voluntary departure under section 244(e) of the Act, 8 

U.S.C. § 1254(e) (1982); and ordered that the respondent be deported 

to India. The respondent has appealed. The appeal will be dismissed. 

The respondent is a 30-year-old native and citizen of India. At 

deportation proceedings convened on November 17, 1983, he conceded deportability under section 241(a)(2) of the Act, 8 U.S.C. 

§ 1251(a)(2) (1982), on the ground that he entered the United States 

without inspection on or about October I I, 1983. Proceedings were 

then continued to allow for the filing of an application for asylum. An 

application was filed and the immigration judge requested an advisory 

opinion from the Bureau of Human Rights and Humanitarian Affairs 

("BHRHA") of the Department of State. Deportation proceedings 

reconvened on January 17, 1984, to consider the respondent's 

applications for asylum, withholding of deportation, and, in the 

alternative, voluntary departure. 

To establish eligibility for withholding of deportation pursuant to 

section 243(h) of the Act, an alien's facts must show a clear probability 

of persecution in the country designated for deportation on account of 

race, religion, nationality, membership in a particular social group, or 

political opinion. INS v. Stevic, 467 U.S. 407 (1984). This means that 

the alien's facts must establish that it is more likely than not that he 

would be subject to persecution for one of the grounds specified. Id. 

To establish eligibility for asylum under section 208 of the Act, an 

alien must meet the definition of a "refugee," which requires him to 

show persecution or a well-founded fear of persecution on account of 

race, religion, nationality, membership in a particular social group, or 

political opinion. Section 101(a)(42)(A) of the Act, 8 U.S.C. 

§ 1101(a)(42)(A) (1982); section 208 of the Act. The burden of proof 

required to establish eligibility for asylum is lower than that required 

for withholding of deportation. INS v. Cardoza-Fonseca, 480 U.S. 421 

(1987). An applicant for asylum has established that his fear is "well 

founded" if he shows that a reasonable person in his circumstances 

would fear persecution. Matter of ogharrabi, 19 I&N Dec. 439 (BIA 

1987). Further, asylum, unlike withholding of deportation, may be 

denied in the exercise of discretion to an alien who establishes 

statutory eligibility for the relief. INS v. Cardoza-Fonseca, supra; 

Matter of Mogharrabi, supra. 

The respondent's persecution claim is based upon his claimed 

membership in a political party known as the "Dal Khalsa."" 

The BHRHA advisory opinion states that the "Akali Dal" and the "Dal Khalsa" are 

both factions of the largest Sikh party in India. These names, which were spelled 

phonetically in the transcript, were used interchangeably at the hearing. 

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According to his testimony, he joined that party when he was 17 years 

old, was a party member in India for 2 years, and was still a party 

member. His father also was a member of the party and had been so 

for approximately 20 years. Neither had ever been an officer of the Dal 

Khalsa. The objective of the party was to obtain independence for the 

State of Punjab in India. The respondent testified that the party did 

not advocate violence and that he and other party members were not 

involved in violent demonstrations. As a member of this party, he 

went to various villages with several other members and gave speeches 

to persuade people to join the party and assist in the efforts to obtain 

independence for Punjab. The respondent did this on more than 50 

occasions. Approximately "six months or a year" before he left India, 

the respondent was arrested along with 10 other party members after 

giving a speech in a town in the district where he lived. They were told 

they were arrested for advocating violence "and if we stop they won't 

say anything to us." They denied that they were advocating violence. 

They were kept in jail overnight and were released because the 

authorities "were convinced that we didn't do anything wrong." He 

testified that based on information published in government newspapers, he believed that he would be kept in jail longer the next time if he 

continued his party activities. He continued making speeches after his 

arrest, but loft India when the arrests became more frequent. He stated 

that he feared being arrested, jailed, or even killed if he returned to 

India. He indicated that his wife, who was also a party member, had 

not been harmed by the Government but stated that she was "probably 

lying at this time that she isn't [a party member]." He acknowledged 

that there had been violent demonstrations in India "with quite a 

destruction" in August 1982 but stated that the Akali Dal had not been 

responsible. He also testified that party members had been blamed for 

putting cows' heads in Hindu temples in May 1982 and for hijacking 

an airline flight in September 1981 but stated that others were doing 

this and blaming the Akali Dal. 

The respondent further testified that he had received letters from 

his family stating that things in India were very bad. The last letter he 

received (approximately 7 months before the hearing) indicated that 

his father had been arrested. The respondent assumed that his father 

had been arrested on account of his political activities, but the letter 

did not explain why his father had been arrested or by whom. He did 

not have any of these letters in his possession and introduced no 

documentary evidence other than the asylum application itself. 

The respondent also requested the privilege of voluntary departure 

in lieu of deportation in the event that his other requests were denied. 

During his testimony in this regard, he admitted that he had paid a 

smuggler $400 to cross the border from Mexico to the United States. 

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A BHRHA advisory opinion on the respondent's persecution claim 

was obtained pursuant to the requirements of 8 C.F.R. § 208.10(b) 

(1983). The opinion, which was expressed in a letter dated December 

15, 1983, is that the respondent has not established a well-founded fear 

of persecution in India within the meaning of the United Nations 

Convention and Protocol Relating to the Status of Refugees. 2According to a background statement attached to this letter, the campaign to 

win greater autonomy for Punjab is occurring within the framework of 

India's democratic institutions. Prior to the date of the advisory 

opinion, there had been very few arrests, even among the handful of 

extreme secessionists, and those arrests took place only in response to 

acts of violence. The background statement indicates that the Dal 

Khalsa faction, to which the respondent allegedly belongs, is an 

extreme fringe of this movement. It demands an independent Punjab 

state and advocates violence to achieve this end. Five members of this 

faction hijacked an Indian Airlines domestic flight to Lahore in 

September of 1981, for which they were awaiting trial in Pakistan. In 

May of 1982, the Government of India banned the Dal Khalsa after it 

placed severed cows' heads in Hindu temples, deliberately provoking 

mob violence. Dal Khalsa members have also been arrested on charges 

of murder. Nevertheless, constitutional safeguards protect everyone in 

India. The background statement concludes by stating that even the 

extremists arrested for alleged criminal acts receive the full protection 

of the law. 

The immigratioh judge concluded that the respondent had not met 

his burden of proof with regard to asylum under section 208 of the Act 

or for withholding of deportation under section 243(h) and denied the 

respondent's applications for relief from deportation under those 

provisions of the Act. In this regard, the immigration judge observed 

that the respondent had not presented any objective evidence in 

support of his claims and and that his application was solely supported 

by his own testimony. The immigration judge also denied the 

respondent's request for voluntary departure in lieu of deportation. He 

found that the respondent had failed to establish that he was willing to 

leave the United States and additionally concluded that the respondent was unworthy of such discretionary relief in view of the fact that 

he had entered the United States surreptitiously with the assistance of 

a professional smuggler. 

The respondent appealed, challenging the denial of his applications 

for asylum and withholding in very general terms, and submitting that 

2 united Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 

U.N.T.S. 150; 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. 

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the immigration judge "erroneously ignored my testimony that the 

lives of Dal IChalsa's are in danger only because I could not provide 

government publications." It is stated on the Notice of Appeal (Form 

I-290A) that "[b]ecause of my incarceration I could not produce them 

and such publications are widely known." The respondent also 

challenged the denial of voluntary departure and indicated that, if 

given the opportunity, he "could arrange for other countries to accept 

me since Indians can enter many nations without entry visas." 

Before turning to the particular facts of this respondent's case, we 

note two preliminary matters. First, the general rule regarding the 

consideration of asylum applications by immigration judges and the 

Board, as with other matters in deportation and exclusion proceedings, 

is that they must be evaluated based on matters of record (i.e., based 

on the evidence introduced by the parties to the case under consideration). As the asylum applicant bears the evidentiary burden of proof 

and persuasion, where there are significant, meaningful evidentiary 

gaps, applications will ordinarily have to be denied for failure of proof. 

8 C.F.R. §§ 208.5. 242.17(c) (1988). 

Secondly, in determining whether an asylum applicant has met his 

burden of proof, we have recognized the difficulties that may be faced 

by aliens in obtaining documentary or other corroborative evidence to 

support their claims of persecution. Consequently, in Mauer of 

Mogharrabi, supra, we held that the lack of such evidence will not 

necessarily be fatal to an application. We noted, as have various courts 

of appeals, that an alien's own testimony may in 'some cases be the 

only evidence available, and it can suffice where the testimony is 

believable, consistent, and sufficiently detailed to provide a plausible 

and coherent account of the basis for his alleged fear. See, e.g., 

Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984); Matter of 

Mogharrabi, supra. These cases, however, do not stand for the 

proposition that the introduction of supporting evidence is purely an 

option with an asylum applicant in the ordinary case. Rather, the 

general rule is that such evidence should be presented where available. 

See Bolanos-Ifernandez v. INS, 767 F.2d 1277, 1285-86 (9th Cir. 1984) 

(comparing "lack of direct corroboration of specific threats" to general 

corroboration of "whether there is reason to take the threat seriously"); Sarvia -Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985); 

Carvajal-Munoz v. INS, supra; Sanchez v. INS, 707 F.2d 1523, 1529 

(D.C. Cir. 1983); Matter of Mogharrabi, supra. If an intelligent 

assessment is to be made of an asylum application, there must be 

sufficient information in the record to judge the plausibility and 

accuracy of the applicant's claim. Without background information 

against which to judge the alien's testimony, it may well be difficult to 

evaluate the credibility of the testimony. We note that this problem is 

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addressed in the 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. 42 (Geneva, 1979) 

(handbook'), which includes the following observations: 

The applicant's statements cannot, however, be considered in the abstract, and must 

be viewed -in. the context of the relevant background situation. A knowledge of 

conditions in the applicant's country of origin—while not a primary objective—is an 

important element in assessing the applicant's credibility. 

The Handbook further notes that an asylum applicant should "[m]ake 

an effort to support his statements by any available evidence and give 

a satisfactory explanation for any lack of evidence." Id. at para. 

205(a)(ii). 

Particularly when the basis of an asylum claim becomes less focused 

on specific events involving the respondent personally and instead is 

more directed to broad allegations regarding general conditions in the 

respondent's country of origin, corroborative background evidence 

that establishes a plausible context for the persecution claim (or an 

explanation for the absence of such evidence) may well be essential. 

The more sweeping and general a claim, the clearer the need for an 

asylum applicant to introduce supporting evidence or to explain its 

absence. Furthermore, there is a greater likelihood that corroborative 

evidence will be available if the claim is of longstanding, widespread 

persecution. 

In addressing this respondent's appeal from the denial of his 

application for asylum, we note that there are two aspects to his 

testimony. First, he testified to factual matters involving himself 

personally (e.g., his activities and his arrest). Secondly, he testified in a 

far more general and conclusory manner regarding the situation, or his 

views of the general situation, concerning Dal Khalsa/Akali Dal 

members in India. As noted by the immigration judge, no supporting 

documentation or evidence of any kind was introduced in support of 

the claim. 

The respondent clearly failed to establish a well-founded fear of 

persecution based on the evidence regarding his own circumstances. 

His testimony in this regard reflects that he was a member of the Dal 

Khalsa from the age of 17 until he left India in 1982. He was active in 

giving speeches and encouraging party membership. Over the entire 

period of his activities in India, the only incident with the police in 

which he was involved arose when he was accused of advocating 

violence along with 10 others, was detained overnight, and was 

released when the authorities were satisfied that he had not done 

anything wrong. Six months to a year later, he left India with nothing 

having occurred to him in the interim. He testified that he considered 

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articles in government newspapers threatening but did not indicate 

with any specificity what those articles stated. He testified that other 

party members were being arrested prior to his departure but provided 

no specific information on the reasons, circumstances, or consequences of such arrests. While denying any responsibility on the part 

of the Dal Khalsa or the Akali Dal, he acknowledged that inflammatory acts and violence were occurring in India in 1981 and 1982, acts 

which could cause legitimate governmental concern over those who 

were advocating or thought to be advocating violence. The respondent 

further testified that after he left India he received a letter advising 

him that his father had been arrested, but the letter did not reflect why 

the arrest occurred or who had arrested his father. He, in fact, had no 

evidence that any family member had been subjected to mistreatment 

by the Government. Even if his testimony were deemed "believable", 

it does not demonstrate facts on which a reasonable person would fear 

persecution on account of a basis protected by the Act. 3 

We do not find this application enhanced by the respondent's 

general allegations regarding conditions in India. He has not providcd 

background evidence of any kind to corroborate his sweeping claim 

that the Government of India persecutes members of the Dal Khalsa 

or Akali Dal. This is, in fact, the sort of factual claim, which, if true, 

one would expect could be supported by corroborative evidence. The 

unexplained absence of such information may well indicate an 

exaggerated or unfounded claim. Moreover, we do not find any 

credible explanation for the absence of such supporting evidence in 

this case. The respondent states in his appeal statement that he could 

not get corroborating evidence, which includes, by his description, 

"widely known" government publications, because he was detained. 

3We note that there are major gaps or inconsistencies in the chronology of events 

testified to by the respondent. The respondent testified that he was born in India in 

April 1959. He stated that he joined the Dal Khalsa when he was 17 years old (1976 or 

1977), was a member of the party for 2 years in India, and was still a party member at 

the time of the deportation proceedings. He testified that he had been arrested about 6 

months to a year before he left India in July or August 1982 The arrest would have 

been, at the earliest, in 1981, and the respondent would have been a member of the party 

for some 5 or 6 years when he left India, purportedly out of fear of persecution based on 

his then party membership. Additionally, the respondent testified that he lived in the 

village where he was born for 17 or 18 years and then was in Greece for 2 years or 18 

months before coming to the United States via Mexico in 1983. He indicated on his 

asylum application that he was in Greece and Mexico for a total of some 19 to 20 

months prior to his entry into the United States in October 1983. Alternatively, he 

stated on the Biographic Information (Form G -325A), filed with his asylum application, 

that he resided in his hometown in India from 1959 to 1983. These various stories leave 

unexplained gaps in his chronology from months, in some instances, to many years in 

others. 

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Respondent's counsel, however, entered an appearance in his case on 

October 14, 1983. The initial hearing was conducted on November 17, 

1983, during which a continuance was granted to permit the filing of 

an application for asylum. The hearing on the merits was not 

conducted until January 17, 1984. Not only does the record not 

include any "widely known" supporting evidence, it does not reflect 

that any effort was ever made to obtain such information. Moreover, 

the information provided by the Department of State indicates to the 

contrary that members of the Dal Khalsa are punished only for 

criminal conduct and that this is done in accordance with the 

constitutional protections of the Indian system of criminal justice. 

We conclude that the respondent has failed to establish a wellfounded fear of persecution on account of his alleged political 

activities, and, therefore, that he has not established eligibility for 

asylum under section 208 of he Act. Matter of Mogharrabi, supra. We 

find further that in view of his failure to satisfy that burden of proof 

with respect to asylum, he also has failed to satisfy the higher burden 

of proof for withholding of deportation under section 243(h) of the 

Act. Id. 

The respondent also has contended that his request for the 

voluntary departure privilege was denied erroneously on the basis of 

his unwillingness at the time of the hearing to leave immediately. He 

claims that he appeared unwilling to leave at that time because he was 

too ill to travel, and he anticipated that his asylum application would 

be granted. According to the respondent, he can arrange for his 

acceptance by some country, other than India, which will accept 

Indian nationals without entry visas. 

The appeal from the denial of voluntary departure, however, does 

not address the immigration judge's discretionary denial of that relief. 

The record reflects that the respondent entered the United States with 

the assistance of a professional smuggler, and he has not established 

equities in his behalf -which would warrant a favorable exercise of 

discretion in view of that serious adverse factor. See Matter of Rojas, 

15 I&N Dec. 492 (BIA 1975). Consequently, we affirm the immigration judge's discretionary denial of the respondent's request for the 

privilege of voluntary departure. 

Accordingly, the following order will be entered. 

ORDER: The appeal is dismissed. 

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