Interim Decision #3209 

MATTER OF K-SIn Exclusion Proceedings 

A-29810907 

Decided by Board October 5, 1993 

In contrast to the precedential authority of the case law of a United States circuit 

court, the Board of Immigration Appeals is not bound to follow the published decision 

of a United States district court in cases arising within the same district. Matter of 

Fakalata, 18 I&N Dec. 213, 217-18 (BIA 1982); Matter of Melendez, 16 l&N Dec. 54, 55 

(BIA 1976); Matter of Harris, 15 l&N Dec. 39, 43 (BIA 1970); and Matter of Amado and 

Monteiro, 13 I&N Dec. 179, 181 (BIA 1969), modified in part. 

EXCLUDABLE: Act of 1952—Sec. 212(a)(19) [8 U.S.C. § 1182(a)(19)j—Fraud or 

willful misrepresentation of a material fact 

Sec. 212(a)(20) [8 U.S.C. § 1182(a)(20)]—No valid 

immigrant visa 

Sec. 212(a)(26) [8 U.S.C. § 1182(3)(26)1—No valid 

nonimmigrant visa 

ON BEHALF OF APPLICANT: 

Paul M. Kaplan, Esquire 

Law Offices of Alan M. Kaufman 

220 Montgomery Street, Suite 976 

San Francisco, California 94104 

ON BEHALF OF SERVICE: 

Patricia M. Mayberry 

General Attorney 

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

In a decision rendered on February 2, 1993, the immigration judge 

found the applicant excludable pursuant to the grounds set forth 

above.' Furthermore, the immigration judge denied his petitions for 

1 We point out that section 212(026) of the Immigration and Nationality Act, 8 

U.S.C. § 1182(a)(26) (1988), is not an appropriate ground for exclusion in this case. 

Where an alien has failed to establish his entitlement to status as a nonimmigrant, he is 

properly excludable under section 212(a)(20) of the Act as an immigrant without the 

requisite entry documents, rather than under section 212(a)(26) of the Act, as a 

nonimmigrant lacking the required documentation. See Matter of Healy and Goodchtbd, 

17 I&N Dcc. 22, 26 (BIA 1979). 

Although not applicable to the instant case, the grounds for exclusion were revised and 

redesignated by section 601(a) of the Immigration Act of 1990, Pub. L. No. 101-649, 104 

Stat. 4978, 5067. See Matter of Papazyan, 20 l&N Dec. 568 (BIA 1992). 

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Interim Decision #3209 

asylum under section 208(a) of the Immigration and Nationality Act, 8 

U.S.C. § 1158(a) (1988), and withholding of exclusion and deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1988 and 

Supp. IV 1992), and ordered him excluded and deported from the 

United States. The applicant, through counsel, has appealed from that 

decision, but only with respect to the denial of relief from exclusion 

and deportation. For its part, the Immigration and Naturalization 

Service contends that the decision of the immigration judge is correct. 

The appeal will be dismissed. 

The record reflects that the applicant is a 26-year-old native and 

citizen of India, who raised a persecution claim with respect to the 

authorities as well as an extremist faction in that country. In 

particular, he related that he is a Sikh from the state of Punjab who 

lived with his family. He testified that he worked as a farmer and as an 

automotive electrician. The applicant explained that he also performed various duties at a local Sikh temple, including distributing 

food, making repairs, and cleaning. He advised that while he believed 

in the creation of an independent Sikh state, i.e., Khalistan„ he was not 

politically active. 

According to the applicant, armed Sikh militants began to visit his 

family home in 1987. He recalled that they demanded entrance upon 

pain of death and informed him that if he could not otherwise support 

their struggle for Khalistan, he should at least provide them with food. 

He declared that he complied with their demand out of fear. The 

applicant recounted the militants' warning that they would return 

periodically and that he should not report their presence to the 

authorities. He testified that while he was aware of government notices 

requiring citizens to disclose such contact, he feared retaliation. 

The applicant indicated that the terrorists continued to call on him 

until finally, after some 4 to 5 months, he was arrested by the Punjab 

police. He noted that he had been implicated by one of the militants 

who had run afoul of the authorities. The applicant advised that he 

was held for 6 days and interrogated under torture. He recalled that he 

was questioned about the extremists, whether he belonged to their 

group, and why he had not reported them. He stated that he eventually 

was released due to the intervention of his father and the village 

leader. He observed that he required medical treatment because of the 

abuse that he suffered. 

The applicant declared that during the following months, both the 

militants and the police repeatedly visited his family home. He related 

that the police would come by day, while the militants would arrive at 

night. He advised that due to his fear of harm from both groups, he 

stopped sleeping at home and kept a constant watch during the day. 

The applicant stated that in 1988, he visited an agent in Delhi to assist 

716 
Interim Decision #3209 

him in leaving India. He explained that he could not relocate to 

another state within the country because the danger was omnipresent 

and the police could find him anywhere. He indicated that he worked 

for 2 years to amass the fee required by the agent. He testified that he 

departed India in November 1990 and travelled to the United States, 

where he had a lawful permanent resident sister_ 

Theapplicant noted that following his arrival in this country, his 

family informed him that a second member of the militant group had 

been apprehended by the authorities. He declared that the police 

apparently learned of his continued contact with the terrorists and 

warned his family to report his return? 

In addition to his own testimony, the applicant offered personal and 

background documentation in support of his persecution claim. This 

material included a letter from his village leader generally corroborating his story. He also submitted reports by the Department of State 

and Amnesty International which discussed the human rights situation 

in India, including abuses by the security forces in Punjab. The record 

also contains an advisory opinion issued by the Department of State's 

Bureau of Human Rights and Humanitarian Affairs ("BHRHA"). 

At the conclusion of the hearing, the immigration judge denied the 

applicant's petitions for asylum and withholding relief. Specifically, 

she determined that the applicant had failed to establish past 

persecution or the requisite fear of future persecution within the 

meaning of the Act. On appeal, the applicant contests the immigration 

judge's holding. He asserts, inter alia, that the facts of his case are 

identical to those in Singh v. lichen l, 801 F. Supp 313 (ND. Cal. 

1992), where the United States District Court for the Northern 

District of California found an Indian Sikh from Punjab eligible for 

asylum. Consequently, he argues that the Board must apply the 

reasoning of the district court in his case. In response, the Service 

concedes that this matter arises within the jurisdiction of the Singh 

court. It contends, however, that the Board is not bound by the 

decision of a district court in such a situation. Instead, the Service 

maintains that the applicant's case is controlled by the Board's 

decision in Matter of R-, 20 l&N Dec. 621 (BIA 1992), remanded sub 

nom. Rana v. Moshorak, No. CV 93-0274 (C.D. Cal. July 15, 1993), 

which also involved the persecution claim of a Sikh from the state of 

Punjab in India. 

2Acc,ording to the applicant, the militants, unlike the police, stopped visiting his home 

after he departed India. He explained that the militants generally did not deal with a 

household lacking male members. In this regard, he observed that his father had died in 

1989 and that his brother was constantly travelling. 

717 
Interim Decision #3209 

PRECEDENTIAL VALUE OF DISTRICT COURT DECISIONS 

As a primary matter, we acknowledge that pursuant to our own 

holding in Matter of Amado and Monteiro, 13 I&N Dec. 179, 181 (BIA 

1969), the Board is bound to follow the ruling of a United States 

district court in matters arising within the same jurisdiction. Nevertheless, we conclude that the decision and its progeny 3represent an 

incorrect legal position. Consequently, we find it necessary to withdraw from those cases on this limited issue. 

We point out that the holding in Matter of Amado and Monteiro, 

supra, was stated in a conclusory fashion without any supporting 

analysis or authority. Although we have held that published case law 

from a United States court of appeals must be followed within the 

same circuit, except in unusual circumstances, see, e.g., Matter of 

Anselrno, 20 I&N Dec. 25, 30-32 (BIA 1989), the issue of district 

court "precedent" is fundamentally different. In particular, we note 

that one panel of a circuit court is bound by the unappealed published 

decision of another panel unless and until the decision is modified by 

the en banc court. See, e.g., Ward v. City of San Jose, 967 F.2d 280, 

283 (9th Cir. 1991); Centel Cable v. White Dev. Corp., 902 F.2d 905, 

908-09 (11th Cir. 1990). By contrast, district court judges are not 

bound by the published decisions of their colleagues, even in the same 

district. See Starbuck v. City & Cty. of San Francisco, 556 F.2d 450, 

45711.13 (9th Cir. 1977); Lee v. China Airlines Ltd., 669 F. Supp. 979, 

981 (C.D. Cal. 1987); In re Korean Airlines Disaster of Sept. 1, 1983, 

664 F. Supp. 1478, 1480-81 (D.D.C. 1986); Charley's Taxi Radio 

Dispatch v. Sida of Hawaii, 562 F. Supp. 712, 716-17 (D. Haw. 1983), 

affd in part and rev'd in part on other grounds, 810 F.2d 869 (9th Cir. 

1987); Indiana Nat. Corp. v. Rich, 554 F. Supp. 864, 867-68 (S.D. Ind. 

1982), rev'd on other grounds, 712 F.2d 1180 (7th Cir. 1983); State 

Farm Mut_ Auto Ins. Co. v. Bates, 542 F. Supp. 807, 816 (ND. Ga. 

1982); Hartley v. Sioux City and New Orleans Barge Lines, Inc., 247 F. 

Supp. 1015, 1018 (W.D. Pa. 1965), aff d, 37.9 F.2d 354 (3d Cir. 1967); 

White v. Baltic Conveyor Co., 209 F. Supp. 716, 722 (D.N.J. 1962). 

Moreover, the United States Supreme Court has made clear that the 

Federal Government is not restricted by the doctrine of "nonmutual 

collateral estoppel." See United States v. Mendoza, 464 U.S. 154 

(1984). Specifically, pursuant to Mendoza, the Government's failure to 

appeal from the adverse decision of a lower federal court does not bar 

3See, e.g., Matter of Fakalata, 18 I&N Dec. 213, 217-18 (BIA 1982); Matter of 

Melendez, 16 I&N Dec. 54, 55 (BIA 1976); Matter of Harris, 15 1&N Dec. 39, 43 (BIA 

1970, modified on other grounds, Matter of Rivers, 11 1&N Dec. 419 (BIA 1980). See 

generally Matter of Anselmo, 20 I&N Dec. 25, 30-32 (BIA 1989) (referring to circuit 

court precedent, but citing to Matter of Amado and Monteiro, supra, with approval). 

718 
Interim Decision #3209 

it per se from relitigating the same question in a subsequent case 

against a different party. 4The Court noted that there may be many 

reasons, besides acquiescence, as to why the Government might not 

seek further review in a particular cases Id. at 160-61. 

If an agency of the Federal Government were required to follow the 

decision of a district court within that tribunal's jurisdiction, other 

judges from that same district would never have the opportunity to 

review the issue presented. See United States v. Mendoza, supra, at 160 

(raising the concern that the development of important questions of 

law might be thwarted). While the reasoning underlying a district 

judge's decision must be given due consideration, particularly as other 

judges will apply the "discretionary doctrine of intra-court comity," 

see, e.g., Indiana Nat. Corp. v. Rich, supra, at 868, the analysis does not 

have to be followed as a matter of law. 6We are not aware of any valid 

authority of the United States Court of Appeals for the Ninth Circuit 

which holds otherwise.' 

While there are a great number of cases addressing a federal 

agency's obligation to follow the law of a circuit court, see, e.g., NLRB 

4The fact situation in Mendoza involved two separate district court jurisdictions, i.e., 

the Government had failed to appeal from an adverse decision of the United States 

District Court for the Northern District of California and then sought to relitigate the 

same underlying issue before the United States District Court for the Central District of 

California. In rendering its decision, the Supreme Court gave no indication as to 

whether it would have ruled differently had the facts involved two different judges 

within the same district. But see Pierre v. Rivkind, 825 F.2d 1501, 1505 (11th Cir. 1987), 

and Stieberger v. Heckler, 615 F. Supp. 1315, 1358 n.29 (S.D.N.Y. 1985), vacated on 

other grounds sub nom. Stieberger v. Bowen, 801 F.2d 29 (2d Cir. 1986), which suggest 

(Pierre by its fact pattern) that such a distinction was not material to the Supreme 

Court's ruling. 

As noted in Stieberger v. Heckler, .supra, at 1359, however: "Mendoza does not support 

(a) right (by the Government' to refuse to apply the legal rules enumerated in a circuit 

WWI decision in subsequent. cases within the same circuit." 

5In its brief, the Service acknowledges that the Government withdrew its appeal from 

the decision in Singh' v. Eckert, supra. The Service represents, however, that the 

withdrawal was mandated by reasons other than acquiescence. Presumably, the 

Government's decision was motivated by "institutional" or "policy" concerns of the 

type described in United States v. Mendoza, supra, at 160-61, rather than solely by a 

general fear of establishing adverse precedent. 

6AS a practical matter, of course, the greater the number of judges who ascribe to a 

particular ruling, the less tenable the Federal Government's opposition in that district 

becomes. If the holdings were consistently unfavorable, one would reasonably expect the 

Government either to acquiesce or to appeal, rather than to delay until all or a vast 

majority of the judges within the district had ruled against it. We note, for example, that 

the Northern District of California Is composed of some 13 sitting judges. See 816 F. 

Supp. VII, XX (Judges of the Courts). 

7As this matter arises within the jurisdiction of the Ninth Circuit, we would be bound 

by the pertinent decisions of that court. See Matter of Anselmo, supra. 

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Interim Decision #3209 

v. Ashkenazy Prop. Mgmt. Corp., 817 F.2d 74 (9th Cir. 1987); Spraic v. 

United States R.R. Retirement Bd., 735 F.2d 1208, 1211 (9th Cir. 

1984); Ithaca College v. NLRB, 623 F.2d 224, 228 (2d Cir.), cert. 

denied, 449 U.S. 975 (1980), there are virtually none addressing the 

issue with respect to the ruling of a district court. Reason would 

suggest that this would not be the case if the principles concerning the 

precedential value of circuit court decisions also applied to district 

court decisions. In fact, because of the large volume of district court 

decisions, one would expect a significant number of relevant cases to 

exist if the position stated in Matter of Amado and Monteiro, supra, 

were correct. 

We have been able to uncover only two federal court cases which 

contain language directly contradicting the position which we adopt 

today: Hillhouse v. Harris, 547 F. Supp. 88, 91-93 (W.D. Ark. 1982), 

aff'd, 715 F.2d 428, 430 (8th Cir. 1983), and Flores v. Seer. of Health, 

Educ. and Welfare, 228 F. Supp. 877, 878 (D.P.R. 1964). Neither 

matter arose within the Northern District of California or the Ninth 

Circuit. Further, Floras did not cite any authority in support of its 

holding. While the judge in Flores admonished the subject federal 

agency for having failed to appeal from the adverse district court 

decision at issue, see id. at 878, as noted in United States v. Mendoza, 

supra, at 160-61, there may be reasons besides acquiescence to explain 

why an agency might not seek reversal or modification of a particular 

ruling. With respect to Hillhouse v. Harris, supra, we consider that the 

relevant analyses of both the district court and the reviewing circuit 

court are dicta. Additionally, they cite to supporting authority which 

pertains solely to the obligation of an agency to follow the law of the 

circuits Id. 

MERITS OF THE APPLICANT'S PERSECUTION CLAIM 

After careful review, we find that the applicant has failed to 

establish eligibility for either asylum or withholding of exclusion and 

deportation.9 See sections 208(a) and 243(h) of the Act; section 

101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1988); 8 C.F.R. 

§§ 208.13, 208.16 (1993); see also 8 C.F.R. § 208.13(b)(2) (1993) 

(setting forth "reasonable possibility" requirement of well-founded 

fear asylum standard); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 

(holding that asylum standard is more generous than withholding 

standard); INS v. Stevic, 467 U.S. 407 (1984) (defining withholding 

gThis Board has not followed a practice of nonacquiescence in circuit court decisions 

in cases arising within the same jurisdiction. See Matter of Anselmo, supra, at 30-31. 

9We have assumed, arguendo, that the factual basis of the applicant's persecution 

claim is worthy of belief. 

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Interim Decision #3209 

standard); Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (defining past 

persecution). 

Specifically, having withdrawn from Matter of Amado and Monteiro, supra, and its progeny, we do not find ourselves obliged to follow 

the ruling of the district court in Singh v. Ilchert, supra, with respect to 

the merits of the applicant's persecution claim. While we have 

carefully examined the reasoning of the court, we respectfully disagree 

with its conclusions. See Matter of R-, supra. 

Instead, we find that the analysis of the applicant's persecution 

claim is controlled by Matter of R-, supra. As we acknowledged in that 

ruling, extrajudicial police actions and separatist violence are, unfortunately, common occurrences in the Indian state of Punjab. /d. at 626. 

Nevertheless, as indicated by the United States Supreme Court in INS 

v. Elias Zacarias, 502 U.S. 478 (1992), an alien must do more than 

simply show physical abuse or civil rights or human rights violations in 

order to demonstrate persecution within the meaning of the Act."' See 

also Martinez-Romero v. INS, 692 F.2d 595 (9th Cir_ 1982) (concerning general civil strife). 

With respect to the applicant's fear of harm at the hands of Sikh 

extremists, we find that there is no persuasive evidence to show that 

their demands for material support implicated any of the protected 

grounds. See Matter of R-, supra, at 623-24. The mere fact that the 

terrorists may have had a generalized political agenda is insufficient to 

establish that they interpreted any hesitancy on the part of the 

applicant as a sign of opposition to their ultimate political goals. Id 

Indeed, like the militants, the applicant favored the creation of an 

independent Sikh state. Moreover, we consider that he ultimately 

complied with their requests for food. His fear of retaliation as a 

perceived informer is not based upon any of the protected grounds. 

See supra note 10. 

100n appeal, the applicant cites to the Ninth Circuit's decision in Montecino v. INS, 

915 F.2d 518 (9th Cir. 1990), in support of his case. Pursuant to the Ninth Circuit's 

analysis, an ex-soldier's objectively reasonable fear of reprisal by guerrilla forces in a 

civil war setting automatically establishes eligibility for asylum. We find that the Ninth 

Circuit's reasoning has been effectively overruled by the decision of the Supreme Court 

in INS v. Elias Zacarias, supra. For example, the mere existence of a generalized 

political motivation underlying the actions of one side to a civil war is insufficient to 

establish persecution on account of political opinion for purposes of the Act. Id. at 482. 

There must be some direct or persuasive circumstantial showing that the persecutor's 

specific motives regarding the targeted individual are reasonably premised upon one of 

the protected grounds. Id. at 482-84. 

In the alternative, we find that the applicant's situation is distinguishable from 

Montecino v. INS, .supra, at 520, insofar as he indicated that the Punjab police and Sikh 

extremists viewed him as an active participant in the hostilities, as opposed to one who 

had abandoned his role. 

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Interim Decision #3209 

In regard to the applicant's confrontations with the Indian security 

apparatus, the expert BHRHA advisory opinion notes that the 

authorities do not take action against individuals "solely as a result of 

their being members of the Sikh faith." It explains that "[i]ndividual 

Sikhs have been arrested and charged with involvement in specific 

violent acts, but not simply because they are members of that faith." 

While we condemn the brutal methods of the Punjab police, the 

applicant has failed to establish that he was targeted on account of his 

political opinion or the mere fact that he was a Sikh. See Matter of R-, 

supra, at 624-25. There is no convincing evidence that the police 

interest in him involved anything more than the investigation of and 

reaction against those thought—rightly or wrongly—to be militants 

seeking the violent overthrow of the government. Id. Indeed, the 

record reveals that the applicant had ongoing contact with extremists. 

In the alternative, we consider that the applicant's problems were 

confined to Punjab. Id. at 625-27. According to the BHRHA, large 

numbers of Sikhs lead "tranquil and productive lives in other parts of 

India." The applicant failed to cite to any persuasive background 

documentation in rebuttal. See Matter of Dass, 20 l&N Dec. 120 

124-25 (BIA 1989). Rather, he simply offered his conclusory observation that he faces danger throughout India and that the police could 

find him anywhere. 

Consequently, the applicant has failed to demonstrate either a wellfounded fear or a clear probability of persecution on a country-wide 

basis, so as to establish statutory eligibility for asylum or withholding 

of exclusion and deportation, respectively. See Matter of R-, supra, at 

10. Further, even assuming that the applicant suffered past persecution 

in Punjab on account of one of the protected grounds, he does not 

merit asylum in the exercise of discretion in view of the absence of a 

threat of persecution throughout India and the factual circumstances 

of his case. Id. 

Accordingly, the appeal will be dismissed. 

ORDER: The appeal is dismissed. 

722