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BALACHANDRAN RAJARATNAM v. MOYER

September 17, 1993

BALACHANDRAN RAJARATNAM and ARUDSHANKAR ARULANANTHAM, Petitioners,
v.
A.D. MOYER, District Director of the Immigration and Naturalization Service, Respondent.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Balachandran Rajaratnam and Arudshankar Arulanantham bring this petition for a writ of habeas corpus pursuant to ยง 106(B) of the Immigration and Nationality Act (INA), 8 U.S.C. ยง 1105a(b). Petitioners ask this court to review the Board of Immigration Appeals' (BIA) decision denying their applications for asylum and withholding of deportation. For the reasons set forth below, we reverse in part and affirm in part.

 I. Background

 The underlying facts are not in dispute. Petitioners are citizens of Sri Lanka and ethnic Tamils. *fn1" Each was detained by the INS in Chicago when their airplane flights to Canada stopped at O'Hare International Airport. The INS agents determined that petitioners were travelling on false documents and instituted exclusion proceedings. Although neither petitioner intended to stay in the United States, they applied for political asylum and withholding of deportation to prevent their return to Sri Lanka. These applications were denied by immigration judges, and the Board of Immigration Appeals affirmed both decisions. The specific facts of each petitioner's case is set forth below.

 A. Balachandran Rajaratnam

 Petitioner Balachandran Rajaratnam is twenty-eight years old. Beginning in 1987, he and his family found themselves in the midst of fighting between the Sri Lankan army and the Tamil Tigers (LTTE), a militant Tamil separatist group. During the course of an extended firefight in his hometown of Jaffna, his father was killed in cross fire, and the family's home and store were burned. The family moved to another village where, in 1988, Rajaratnam was arrested by the Indian Peacekeeping Force (IPKF) and the Eelam People's Revolutionary Liberation Front (EPRLF), organizations which acted in cooperation with the Sri Lankan government against the LTTE. Although Rajaratnam has never been a member of the LTTE, he was accused of transacting business with the LTTE, and asked to identify members of the LTTE. He was held for five or six months, during which he was routinely beaten with bamboo and coconut sticks.

 Rajaratnum returned to northern Sri Lanka when the IPKF withdrew from the region. He was approached by the LTTE, but refused to join them or fight on their behalf, so he was forced at gunpoint to dig trenches, collect firewood, and cook. He soon thereafter fled the LTTE and returned to Colombo, where he was required to sign in at the police station on a regular basis. Each time he went to sign in, he was held for two or three days, questioned about LTTE activities and membership, deprived of food, and beaten with wooden sticks. To escape the danger he routinely faced in Sri Lanka, he arranged with a relative in Canada to get false Canadian papers, and left the country for Canada in July, 1992. He was stopped at O'Hare International Airport when he presented the false documents.

 B. Arudshankar Arulanantham

 Petitioner Arudshankar Arulanantham is eighteen years old. He originally lived in Jaffna, in northern Sri Lanka, but was recruited by the EPRLF shortly after he completed tenth grade. However, he did not wish to join the EPRLF, and wanted to escape the civil strife afflicting the region, so he fled to Colombo. One week after he arrived in Colombo, he was arrested at his hotel by the police, who suspected that he was a member of the LTTE. He was held at the police station for one and one-half months, where he was repeatedly interrogated about the LTTE. The police limited the food available to him, and held his head under water for one to two minutes during his interrogations. However, he was never charged with any crimes, nor was he ever brought before a judge. He was released after his mother presented evidence that he was a student, but the police required that he sign in at the police station daily. Although he initially complied, he was afraid that he would be arrested and unable to complete his education. Ten days after his release, in October, 1992, he obtained fake Canadian papers and fled the country for Canada, where his uncle resides. He was stopped at O'Hare International Airport when he presented the false documents.

 II. LEGAL STANDARDS

 A. Standards of Review

 The BIA's factual findings and legal conclusions are subject to different standards of review. We review the BIA's factual determinations under a substantial evidence standard. Kaczmarczyk v. INS, 933 F.2d 588, 593 (7th Cir.), cert. denied, 116 L. Ed. 2d 608, 112 S. Ct. 583 (1991). By contrast, review of the BIA's legal conclusions and interpretations of the INA is de novo. Id. However, we must defer to the BIA's interpretation of the INA, so long as that interpretation is reasonable. Chevron v. Natural Resources ...


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