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Case Name:SANGHA V INS
Case Number:	Date Filed:
95-70427	01/09/97
 


FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BALJINDER SINGH SANGHA,
Petitioner,                                           No. 95-70427

v.                                                    INS No.
                                                     A-72-142-329
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

Petition for Review of an Order
of the Board of Immigration Appeals

Argued and Submitted
October 10, 1996--San Francisco, California

Filed January 9, 1997

Before: Alfred T. Goodwin, J. Clifford Wallace, and
Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Goodwin

_________________________________________________________________

SUMMARY 

The summary, which does not constitute a part of the opinion of the court, 
is copyrighted C 1994 by Barclays Law Publishers. 
_________________________________________________________________

Immigration/Deportation and Asylum

The court of appeals denied a petition for review of an
order of the Board of Immigration Appeals (BIA). The court
held that an asylum applicant must bring evidence other than
his mere refusal to fight in the context of forced recruitment
to show that his persecutor acted "on account of " his political
views.

                               191


In 1991, petitioner Baljinder Sangha, a 15-year-old Indian
national, lived on a farm in Punjab, India, with his parents and
brother. Sangha's father was a member of a political party
opposed to the Bhindrawala Tiger Force (BTF), an organiza-
tion dedicated to the creation of a separate Sikh homeland.
Members of the BTF threatened the Sangha family with death
if the father did not pay a large sum of money, give up his
political activities, and turn over his sons to the BTF. The
BTF wanted the sons to fight for the Sikh homeland and to
deprive the father of support. Sangha's father arranged for the
sons to leave India.

Sangha entered the United States illegally. He conceded
deportability and applied for asylum or withholding of depor-
tation based on past persecution on account of political opin-
ions. The immigration judge denied his application and
ordered deportation. On appeal, the BIA found that Sangha
failed to show that he was persecuted on account of his politi-
cal opinion. Sangha petitioned for review.

[1] To obtain reversal of the BIA's determination, Sangha
must show that the evidence not only supports  that conclu-
sion, but compels it.

[2] Sangha had to establish, by evidence, four facts: (a) that
he had been a victim of persecution; (b) that he held a politi-
cal opinion; (c) that his political opinion was known to or
imputed by the persecutors; and (d) his ensuing persecution
had been or will be on account of this opinion. [3] The BTF
actions were sufficient to show persecution.

[4] An applicant can establish his political opinion on the
basis of his own affirmative political views, his political neu-
trality, or a political opinion imputed to him by his persecu-
tors. [5] There was no evidence that Sangha had enunciated
any affirmative political opinion or engaged in activities asso-
ciated with affirmative political opinions. [6] Sangha did not
argue, nor did the BIA have to believe, that he was politically

                               192


neutral. There was no evidence that Sangha made a deliberate
and conscious decision to be politically neutral in the Punjab
strife. [7] There was little evidence in the record to support an
argument that the BTF imputed to Sangha his father's views.
[8] As there was no evidence to show that the BTF acted "on
account of " any political opinion it imputed to Sangha, it was
irrelevant whether or not the BTF might have imputed an
opinion to him.

[9] An applicant's refusal to fight in the context of forced
recruitment is not enough by itself to show that the persecutor
acted "on account of " his political views. The applicant must
bring other evidence to show that the persecution was based
on political opinion.

[10] Sangha offered no evidence to show that the BTF per-
secuted him "on account of " his political opinion. [11] The
BTF wanted Sangha to help fight for the Sikh homeland. This
suggested that it was acting in furtherance of its own goals,
rather than to persecute Sangha. The BTF wanted to make
Sangha unavailable to support his father. This suggested that
it wanted to punish the father, rather than persecute Sangha.
[12] The BIA had ample reasons to believe that Sangha did
not meet his burden of proof and certainly it was not com-
pelled to find otherwise.

_________________________________________________________________

COUNSEL

Virender Kumar Goswami, Charles E. Nichol, San Francisco,
California, for the petitioner.

Jeffrey J. Bernstein, United States Department of Justice,
Washington, D.C., for the respondent.

_________________________________________________________________

                               193


OPINION

GOODWIN, Circuit Judge:

Baljinder Singh Sangha, an Indian national, petitions for
review of the decision of the Board of Immigration Appeals
("BIA"). The BIA found that Sangha failed to show that he
was persecuted on account of his political opinion. The BIA
had jurisdiction under 8 C.F.R. SS 3.1(b)(2), 242.21. We have
jurisdiction pursuant to 8 U.S.C. S 1105a(a). The petition is
denied.

I. Facts

The facts in this case are not in dispute. Baljinder Singh
Sangha, then fifteen years old, lived with his father, mother,
and older brother on a farm in Punjab, India. He attended
school and helped his father on the farm.

In June, 1991, Sangha's father, Gursewak Singh, joined the
Akali Dal Langowal party, and in July he assumed a local
leadership role. The Akali Dal party criticized the militants
and terrorists then operating in the Punjab, and it promoted
peaceful solutions to political problems. In August, 1991,
Sangha's father gave a speech criticizing the Bhindrawala
Tiger Force (BTF) for promoting violence in the Punjab. The
BTF was an organization dedicated to the creation of a sepa-
rate Sikh homeland, commonly known as Khalistan. Sangha
testified that he himself was never a member of the Akali Dal
party, "didn't know anything," but "supported his father" in
his activities.

In September, 1991, four armed men forced their way into
the Sangha home. They beat up Sangha's father until Sangha
and his brother came to protect him. The men identified them-
selves as members of the BTF. They demanded that Sangha's
father cease his political activities, pay them 100,000 rupees,
and give over Sangha and his brother. They said they wanted

                               194


the two brothers to fight for Khalistan and they wanted to
make the brothers unavailable to support the father. They
gave Sangha's father three weeks to comply.

Early the next morning, Sangha's whole family left for the
neighboring state of Uttar Pradesh to stay away until the ter-
rorists left. A month or two later, however, Sangha's father
returned to the farm only to receive a letter from the BTF.
This letter reiterated the BTF's demands and threatened to kill
the Sangha family. Sangha's father thereupon returned to
Uttar Pradesh and arranged for his two sons to leave India.

Sangha entered the United States illegally on January 29,
1992. When apprehended, he conceded deportability and
applied for asylum or withholding of deportation based on his
past persecution on account of political opinions. The immi-
gration judge denied his application and ordered deportation.
Sangha timely appealed to the BIA. The BIA affirmed the
denial, and this petition ensued.

II. Statutory Requirements

Grants of asylum are governed by Section 208(a) of the
Immigration and Nationality Act, 8 U.S.C. S 1158(a). This
section gives the Attorney General the discretion to grant asy-
lum to aliens who qualify as "refugees." A "refugee" is
defined as an alien who is unable or unwilling to return to his
home country "because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion."
S 101(a)(42)(A); 8 U.S.C. S 1101(a)(42)(A); INS v. Cardoza-
Fonseca, 480 U.S. 421, 428 n.5 (1987).

Sangha seeks asylum under the "persecution on account of
. . . political opinion" part of the section. In INS v. Elias-
Zacarias, 502 U.S. 478 (1992), the Supreme Court addressed
this section in a case factually very similar to ours. Elias-
Zacarias was recruited by guerillas, but refused to join. When

                               195


the guerillas threatened, he fled to the United States, where
the BIA refused asylum. Following the case law of our circuit,
we reversed the BIA. In Elias-Zacarias the Supreme Court
reversed.

In considering the availability of political asylum under this
section, the Court narrowed our interpretations in three ways.
First, to be eligible for asylum, the applicant must show the
persecution occurred because of his own political opinion,
and not because of the political opinions of his persecutor.
" `[P]ersecution on account of . . . political opinion' in
S 101(a)(42) is persecution on account of the victim's politi-
cal opinion, not the persecutor's." Elias-Zacarias, 502 U.S. at
482.

Second, the victim must prove causal connection. The
Court required that the applicant establish by direct or circum-
stantial evidence that the persecution was "on account of "
political opinion. Elias-Zacarias, 508 U.S. at 483. Applicants
can no longer establish that their persecution was "on account
of " political opinion by inference, unless the inference is one
that is clearly to be drawn from facts in evidence. That is, per-
secution on account of political opinion no longer can be
inferred merely from acts of random violence by members of
a village or political subdivision against their neighbors who
may or may not have divergent religious or political views.
Cf. Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.
1985). Persecution by anti-government guerillas may no lon-
ger, from that fact alone, be presumed to be "on account of "
political opinion. Cf. Arteaga v. INS, 836 F.2d 1227, 1231-32
(9th Cir. 1988). The petitioner must prove something more
than violence plus disparity of views.

Finally, the Court narrowed the scope of review of asylum
decisions. The Court held that the BIA's determination that an
applicant is not eligible for asylum "can be reversed only if
the evidence presented . . . was such that a reasonable fact-
finder would have to conclude that the requisite fear of perse-

                               196


cution existed." Elias-Zacarias, 502 U.S. at 481. The Court
continued, "[t]o reverse the BIA finding we must find that the
evidence not only supports that conclusion, but compels it."
Id. at 481 n.1.

We discuss Sangha's petition for asylum based on persecu-
tion on account of political opinion under the new standards
set forth by Elias-Zacarias, as elaborated by our subsequent
cases.

III. Standard of Review

[1] In this case, we review for legal error the determination
of the BIA that Sangha was not eligible for asylum. We
review factual determinations of an applicant's statutory eligi-
bility under a "substantial evidence" standard. Elias-Zacarias,
502 U.S. at 481. To obtain reversal, petitioner must show that
"the evidence not only supports that conclusion, but compels
it." Id., at 481 n.1.

IV. Burden of Proof

The applicant bears the burden of establishing his eligibility
under the Act. 8 C.F.R. S 208.13(a); Ghaly v. INS, 58 F.3d
1425, 1428 (9th Cir. 1995). The applicant must establish his
case by "credible, direct, and specific evidence " in the record.
Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995) (citation
omitted). Because asylum cases are inherently difficult to
prove, an applicant may establish his case through his own
testimony alone. Bolanos-Hernandez v. INS, 767 F.2d 1277,
1285 (9th Cir. 1984).

V. Elements of Petitioner's Case

[2] After Elias-Zacarias, an asylum seeker claiming to be
a victim of persecution on account of his or her political opin-
ion must establish, by evidence, four facts: (a) that he or she
has been a victim of persecution; (b) that he or she holds a

                               197


political opinion; (c) that this political opinion is known to or
imputed by the persecutors; and (d) the ensuing persecution
of the victim has been or will be on account of this opinion.

(a) Persecution

Sangha's testimony established that he suffered past perse-
cution. "Persecution" means "the infliction of suffering or
harm upon those who differ . . . in a way regarded as
offensive." Sagermark v. INS, 767 F.2d 645, 649 (9th Cir.
1985), cert. denied, 476 U.S. 1171 (1986) (quoting Kovac v.
INS, 407 F.2d 102, 107 (9th Cir. 1969)). "Persecution" may
be inflicted either by the government or by persons or organi-
zations which the government is unable or unwilling to con-
trol. McMullen v. INS, 658 F.2d 1312, 1315 (9th Cir. 1981).
Sangha's father suffered violence, Sangha suffered threats of
violence.

[3] The BTF is a terrorist group the government is unable
to control. The BTF wanted to recruit Sangha and threatened
him with death. These BTF actions are sufficient to show per-
secution under the Act. See Arteaga, 836 F.2d at 1232
("Forced recruitment by a revolutionary army is tantamount
to kidnapping, and is therefore persecution.")

(b) Political Opinion

Sangha must next establish that in 1991-92 he had a politi-
cal opinion. A number of our asylum cases decided before
1992 broadly defining persecution on account of political
opinion, based on the political opinion of the persecutors,
have been weakened by Elias-Zacarias. See, e.g., Mendoza
Perez v. INS, 902 F.2d 760, 762 (9th Cir. 1990); Desir v.
Ilchert, 840 F.2d 723, 727 (9th Cir. 1988); Arteaga, 836 F.2d
at 1232 n.8; Zayas-Marini v. INS, 785 F.2d 801, 806 (9th Cir.
1986); Hernandez-Ortiz, 777 F.2d at 516.

[4] Since Elias-Zacarias, our cases have instead focused on
the political opinions of the victims. Under our case law, and

                               198


unchanged by Elias-Zacarias, an applicant can establish his
political opinion on the basis of his own affirmative political
views, his political neutrality, or a political opinion imputed
to him by his persecutors. We consider each in turn as they
apply to Sangha.

(b1) Political Opinion--Affirmative

The first way an applicant can establish a "political
opinion" is to show his affirmative political beliefs. He can
establish his political beliefs by testimony, Rodriguez-Roman
v. INS, 98 F.3d 416, 419 (9th Cir. 1996) (applicant "harbored
life-long anti-Communist sympathies"), or as evidenced by
his past activities, Gomez-Saballos v. INS, 79 F.3d 912, 917
(9th Cir. 1996) (applicant was member of Sandinistas and
political appointee in their government).

[5] In this case, Sangha did not establish that he held an
affirmative political belief of his own. He testified that he was
never a member of the Akali Dal Party, and he "didn't know
anything." At the time of his persecution, he was living at
home, going to school, and helping his father on the family
farm. There is no evidence to show that Sangha had enunci-
ated any affirmative political opinion or engaged in activities
associated with affirmative political opinions. Sangha has
therefore not established under the Act that he had his own
affirmative political opinion.

(b2) Political opinion--Hazardous Neutrality

A second way an applicant can establish a "political
opinion" under the Act is to show political neutrality in an
environment in which political neutrality is fraught with haz-
ard, from governmental or uncontrolled anti-governmental
forces. We have held that political neutrality can be a political
opinion under the Act. See, e.g , Maldonado-Cruz v. INS, 883
F.2d 788, 791 (9th Cir. 1989); Arteaga, 836 F.2d at 1231-32.
"Political neutrality" may include the absence of any political

                               199


opinion. Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th
Cir. 1991). An applicant can establish his political neutrality
by pronouncement, id. at 414; Bolanos-Hernandez, 767 F.2d
at 1286-87, or by his actions, Ramos-Vasquez v. INS, 57 F.3d
857, 863 (9th Cir. 1995) (applicant deserts rather than ille-
gally shoot deserters).

We have held that an applicant's political neutrality must
be the product of his conscious, deliberate choice. Bolanas-
Hernandez, 767 F.2d at 1286. Further, the applicant "must not
merely avow his political neutrality, however, but must also
show that this opinion was articulated sufficiently for it to be
the basis of his past or anticipated persecution. " Ramos-
Vasquez, 57 F.3d at 863.

In a series of cases, we have held that an applicant can
establish political neutrality by refusing in the face of threats
to join guerilla or illegal government forces. See, e.g., Del
Valle v. INS, 776 F.2d 1407, 1413-14 (9th Cir. 1985);
Arteaga, 836 F.2d at 1231-32; Desir, 840 F.2d at 728;
Maldonado-Cruz, 883 F.2d at 791. This reasoning was ques-
tioned, but not overruled, in Elias-Zacarias, where the Court
said it would distinguish political neutrality "from such quite
different concepts as indifference, indecisiveness, and risk
averseness." Elias-Zacarias, 502 U.S. at 483. Recently, we
have found political opinion based on neutrality when an
applicant deserted from the military forces rather than be
forced to shoot deserters illegally. Ramos-Vasquez, 57 F.3d at
863.

[6] In this case, Sangha has not argued, nor did the BIA
have to believe, that he was politically neutral. There is no
evidence that Sangha made a deliberate and conscious deci-
sion to be politically neutral in the Punjab strife. There is no
evidence that Sangha ever articulated political neutrality. His
only action which might evidence political neutrality was his
refusal to join and fight with the BTF. Under Elias-Zacarias,
accordingly, it is doubtful that this single refusal could estab-

                               200


lish political neutrality. A reluctance to leave the family farm
and go fight a cause he knew nothing of proves nothing about
political opinion.

Nonetheless, we do not decide whether Sangha was politi-
cally neutral under our case law. As discussed below, his case
fails because he produced no evidence that the BTF perse-
cuted Sangha "on account of " any political view he might
have held. It was therefore irrelevant whether or not Sangha
was politically neutral.

(b3) Political opinion--Imputed

The third way an applicant can establish a "political
opinion" under the Act is to show an imputed political opin-
ion. An imputed political opinion is a political opinion attri-
buted to the applicant by his persecutors. In Elias-Zacarias
the Supreme Court left open the possibility that an applicant
could claim asylum based on persecution based solely on the
prosecutor's erroneous beliefs. Elias-Zacarias, 502 U.S. at
482. In Canas-Segovia we held that imputed political belief
was still a viable form of relief after Elias-Zacarias. Canas-
Segovia v. INS, 970 F.2d 599, 601-02 (9th Cir. 1992).

In establishing an imputed political opinion, the focus of
inquiry turns away from the views of the victim to the views
of the persecutor. Id. at 601-02. We consider, however, not
the persecutor's own political opinions, but rather the political
views the persecutor rightly or in error attributes to his vic-
tims. If the persecutor attributed a political opinion to the vic-
tim, and acted upon the attribution, this imputed view
becomes the applicant's political opinion as required under
the Act.

To establish an imputed political opinion, the applicant
must show that his persecutors actually imputed a political
opinion to him. Arriaga-Barrientos, 937 F.2d at 414; Abedini
v. INS, 971 F.2d 188, 192 (9th Cir. 1992). We have found an

                               201


imputed political opinion in several different contexts. For
example, one party to a conflict may insist to the victim that
the victim is aligned with the other side. See , e.g., Singh v. Il-
chert, 63 F.3d 1501, 1509 (9th Cir. 1995); Singh v. Ilchert, 69
F.3d 375, 379 (9th Cir. 1995); Maldonado-Cruz, 883 F.2d at
792. Or, the victim may have publicly expressed political
views which could easily have been known to his persecutors.
Nasseri v. Moschorak, 34 F.3d 723, 729-30 (9th Cir. 1994),
overruled on other grounds by Fisher v. INS, 79 F.3d 955
(9th Cir. 1996) (en banc). We have found imputed political
neutrality where the applicant has refused to join a non-
governmental guerilla group. See Alonzo v. INS, 915 F.2d
546, 549 (9th Cir. 1990); Arteaga, 836 F.2d at 1227-31. We
have also found imputed political opinion where the applicant
is a member of a large, politically active family many of
whom have already been persecuted for their political beliefs.
Ramirez Rivas v. INS, 899 F.2d 864, 865-66 (9th Cir. 1990).
In each of these situations, we have considered it likely that
the persecutors will attribute the political views of others to
the applicants.

In this petition, Sangha argues that he should fall under the
doctrine of imputed political belief. Sangha argues, but with-
out proof, that the BTF imputed to him his father's Akali Dal
party views. Past persecution of family members is routinely
considered as evidence of possible imputed political opinion.
See, e.g., Gonzalez v. INS, 82 F.3d 903, 909-10 (9th Cir.
1996). In considering such evidence, the trier of fact must
examine how close a relationship exists between the persecu-
tion of family members and the situation of the applicant.
Arriaga-Barrientos, 937 F.2d at 414.

[7] Because Sangha did not raise this argument before the
BIA, we do not have its findings to review. Even if he did,
however, there is little evidence in the record to support
Sangha's argument. The BTF never expressly said that it was
recruiting Sangha because of his father's views. The BTF
claimed two different motivations. It claimed it was recruiting

                               202


Sangha to help it gain Khalistan, and to deprive his father of
his support. The BTF's actions do not suggest that the BTF
imputed to Sangha his father's political views. Indeed, the
BTF's actions suggest the contrary. When the BTF came to
the Sangha house, it sought only Sangha's father and beat up
only Sangha's father. If the BTF had imputed the Akali Dal
political views to Sangha, it seems likely that the BTF would
also have sought and beat up Sangha. The fact that the BTF
ignored Sangha suggests that it did not believe that Sangha
held his father's views.

Sangha argues that the BTF would impute his father's
views to him because of their family relationship. Unlike the
applicant in Ramirez Rivas, where we found an imputed polit-
ical opinion based on family relationships, Sangha was not a
member of a large, historically politically active family.
Instead, the Sangha family numbered only four, and only one
had just recently become politically active. In this case,
Sangha needed proof to establish that the BTF would impute
the views of his father to him.

[8] Nonetheless, although we find little evidence that the
BTF might have erroneously imputed a political opinion to
Sangha, we do not decide if the BTF attributed the Akali Dal
views to Sangha. As we discuss below, there is no evidence
to show that the BTF acted "on account of  " any political
opinion it imputed to Sangha. We therefore conclude it is
irrelevant whether or not the BTF might have attributed a
political opinion to Sangha.

(c) Causation--"On account of "

Sangha must next show by direct or circumstantial evi-
dence that his persecution occurred "on account of " his polit-
ical beliefs. Fisher, 79 F.3d at 962. Before Elias-Zacarias, we
held that where, as here, an applicant refused to fight with
guerillas, that refusal in itself established that the persecutors
were acting "on account of " the applicant's political views.

                               203


See, e.g., Maldonado-Cruz, 883 F.2d at 791; Arteaga, 836
F.2d at 1231-32; Hernandez-Ortiz, 777 F.2d at 516-17; Del
Valle, 776 F.2d at 1413-14; Bolanos-Hernandez, 767 F.2d at
1286. In these cases, the victim was recruited by a political
group. The victim refused, and the political group threatened
death if he did not comply. We reasoned in those cases that
the victim's refusal showed his political neutrality, which was
the equivalent of a political opinion, and that the persecutor's
threats were persecution on account of that political opinion.

[9] In Elias-Zacarias the Supreme Court instructed us to
change course. It held that an applicant's refusal to fight in the
context of a forced recruitment is not enough by itself to show
that the persecutor acted "on account of " his political views.
Elias-Zacarias, 502 U.S. at 482-83. The Supreme Court held
that to qualify under the Act, the applicant must bring other
evidence to show that the persecution was based on political
opinion. See Singh, 63 F.3d at 1507, citing Elias-Zacarias,
502 U.S. at 482.

Elias-Zacarias left open, however, what type of direct or
circumstantial evidence might suffice to show motivation.
Since Elias-Zacarias, we have found persecution on account
of political opinion when the persecutors say they are acting
because of the victim's political beliefs. See, e.g., Singh, 69
F.3d at 379. We have also found such persecution when there
is no other logical reason for the persecution. See, e.g.,
Nasseri, 34 F.3d at 729; Rodriguez-Roman, 98 F.3d at 429-30.
We have also found persecution based on political opinion
where a government persecutes a victim in the absence of any
actual, legitimate criminal prosecution. See, e.g., Singh, 69
F.3d at 379; Singh, 63 F.3d at 1508. When the victim claims
persecution based on his own actual political opinion, we fur-
ther require him to show that the persecutor was aware of
those beliefs. Arriaga-Barrientos, 937 F.2d at 413-14.

[10] In this case, the petitioner offered no evidence to show
that the BTF persecuted Sangha "on account of " Sangha's

                               204


political opinion. We agree with the BIA that Sangha failed
to provide direct or circumstantial evidence to show that the
BTF sought forcibly to recruit him on account of his political
opinion. On this record, it is equally likely that the BTF acted
for other reasons.

[11] As noted earlier, the BTF gave two reasons why it
wanted to recruit Sangha. First, it wanted Sangha to help fight
for Khalistan. This reason suggests that it was acting in fur-
therance of its own goals, rather than to persecute Sangha for
any views he might hold. Second, the BTF wanted to make
Sangha unavailable to support his father. This reason suggests
that it wanted to punish Sangha's father, rather than to perse-
cute Sangha for his political beliefs.

If the BTF imputed political neutrality to Sangha, there is
no evidence that the BTF singled him out because he was
neutral and sought to recruit him because of it. Similarly, if
the BTF imputed the Akali Dal party views of Sangha's father
to Sangha, there is no evidence that it chose to recruit him
especially because he had such views. To the contrary, it
seems unlikely that the BTF would deliberately seek out those
who opposed it in order to fill its ranks.

[12] In this context, the BIA found no reason to believe that
the BTF was motivated by Sangha's political opinion. On the
other hand, the proof tended to show that the BTF was not
motivated by his political opinion. We agree that the BIA had
ample reasons to believe that Sangha did not meet his burden
of proof. Certainly, it was not compelled to find otherwise.

PETITION DENIED

                               205


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