Interim Decision #3040
MATTER OF A-G-
In Deportation Proceedings
A-26851062
Decided by Board December 28, 1987
(1) The respondent's government has the same right as other governments to require military service and to enforce that requirement with reasonable penalties;
and, therefore, the exercise of that sovereign right does not constitute persecution.
(2) Persecution for failure to serve in the military may be established in those rare
cases where a disproportionately severe punishment would result on account of
one of the five grounds enumerated in section 101(aX42XA) of the Immigration
and Nationality Act, § 1101(a)(42XA) (1982), or where the alien, as a result
of military service required by his government, would necessarily be required to
engage in inhuman conduct condemned by the international community as contrary to the basic rules of human conduct.
(3) The case of Matter of Salim, 18 I&N Dec. 311 (BIA 1982), is distinguishable from
the present case because the claimant in that case was refusing to serve, not in an
army controlled by his own government, but in one which was "under Soviet command."
CHARGE:
Order: Act of 1952—Sec. 241(aX2) [
8 U.S.C. § 1251(aX2)J—Entered without inspection
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
William Van Wyke, Esquire Robert S. Finkelstein
2711 Ontario Road, N.W. District Counsel
Washington, D.C. 20009
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision dated July 16, 1984, the immigration judge found
the respondent deportable as charged and granted him the only
relief requested, voluntary departure under section 244(e) of the
Immigration and Nationality Act,
8 U.S.C. § 1254(e) (1982). The respondent filed a motion to reopen proceedings to apply for asylum
under section 208(a) of the Act,
8 U.S.C. § 1158(a) (1982). The immigration judge denied that motion on January 22, 1985, and the
Board of Immigration Appeals upheld his decision. In an order
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Interim Decision #3040
dated January 14, 1986, the United States Court of Appeals for the
Fourth Circuit found that the respondent had given sufficient
reason for his failure to apply for asylum at the hearing and remanded the record for consideration of additional evidence concerning whether the respondent had made a prima facie case for
asylum. On remand, the immigration judge received additional evidence in support of the motion to reopen. Upon consideration of
the record, the immigration judge denied the motion to reopen in a
decision dated August 29, 1986. 1 The respondent appealed. The
Board granted a request for a stay of deportation pending review of
the appeal. The appeal will be dismissed.
The respondent is a 30-year-old native and citizen of El Salvador.
He entered the United_ States in March 1982 without having been
inspected. He reported that he left El Salvador because he did not
want to serve in the army on account of its violent record, but he
feared he would be tortured and possibly killed as a sympathizer of
the opposition if he refused to serve. He stated that one cousin, a
former soldier, was killed in about 1981 by the army when he participated in an anti-government demonstration and that another
cousin was drafted by the guerrillas and killed by them around
1980 after he killed a supervisor. A relative of his common -law wife
was an officer in the guerrilla army. This man was killed in about
1980. The respondent himself was recruited by a friend to be an
oreja, or spy, for the government, but he declined. A member of the
civilian patrol allegedly threatened him but was executed himself
shortly thereafter. The respondent also reported that he was
beaten up by soldiers at a roadblock in 1981 and again in 1982. The
brother of the respondent's brother -in-law was killed after the respondent had left El Salvador, apparently by a so-called death
squad, for providing food to some guerrillas.
The respondent submitted a brief in support of his motion along
with numerous reports and newspaper articles regarding the violations of human rights in El Salvador in the period 1980 through
1985 and a new Form T-589 (Request for Asylum in. the United.
States). The respondent has also invoked the Geneva Conventions
and Protocols and customary international law in support of his
claim that he should not be deported to a country at war.
A motion to reopen will not be granted unless it states new and
material facts and is supported by evidentiary material. 8 C.F.R.
§§ 3.2, 3.8 (1987); INS v. Wang,
450 U.S. 139 (1981). A prima facie
case of eligibility for the relief sought must be established before a
motion to reopen will be granted. INS v.
Wang, supra; Matter of
The decision was not transmitted to counsel until November 6, 1986.
Interim Decision #3040
Martinez-Romero, 18 I&N Dec_ 75 (BIA 1981), aff'd, Martinez-Romero v. INS,
692 F.2d 595 (9th Cir. 1982); Matter of Lam,
14 I&N
Dec. 98 (BIA 1972); see also Matter of Garcia, 16 I&N Dec- 653 (BIA
1978); Matter of Sipus,
14 I&N Dec. 229 (BIA 1972). An application
to reopen is addressed to the sound discretion of the Attorney General. Balani v. INS,
669 F.2d 1157 (6th Cir. 1982); accord Israel v.
INS,
710 F.2d 601 (9th Cir. 1983), cert. denied,
465 U.S. 1068 (1984).
Such a motion can be denied on discretionary grounds alone where
there are significant reasons for denying reopening. INS v. Rios-Pineda,
471 U.S. 444 (1985); INS v. Phinpathya,
464 U.S. 183 (1984);
INS v.
Wang, supra; INS v. BagaTnasbad,
429 U.S. 24 (1976); Matter
of Barocio,
19 I&N Dec. 255 (31A 1985); Matter of Reyes,
18 I&N
Dec. 249 (BIA 1982); Matter of Rodriguez-Vera,
17 I&N Dec. 105
(BIA 1979).
An alien who is seeking withholding of deportation from any
country must show that, his "life or freedom would be threatened
in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section
243(h)(1) of the Act,
8 U.S.C. § 1253(hX1) (1982). In order to make
this showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v.
Stevie,
467 U.S. 407, 413 (1984). This clear probability standard requires a showing that it is more likely than not that an alien
would be subject to persecution.
Id. at 429-30.
In order to establish eligibility for a grant of asylum, an alien
must demonstrate that he is a "refugee" within the meaning of section 101(aX42XA) of the Act,
8 U.S.C. § 1101(a)(42)(A) (1982). See section 208 of the Act. That definition includes the requirement that
an alien demonstrate that he is unwilling or unable to return to
his country because of persecution or a "well-founded fear" of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion. The meaning of the
term "well-founded fear" has been the subject of considerable controversy and litigation. In INS v. Cardoza -Fonseea, 480 US. 421
(1987), the Court held that the clear probability and well-founded
fear standards do in fact differ. The Court found that a probable
showing of persecution need not be made in order to establish a
well-founded fear of persecution. under section 208 of the Act. It
specifically declined to attempt a detailed definition of "well-founded fear" or an explanation as to how that term should be applied.
Noting that there is "obviously some ambiguity" in the term, the
Court left a more concrete definition to the process of case -by-case
adjudication.
Id. at 448. It is clear that to a large degree the mean-
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ing of "well-founded fear" can in fact only be determined in the
contexts of individual cases.
Although, as noted above, the Supreme Court did not attempt to
define "well-founded fear" in INS v. Cardoza-Fonseca, supra, it offered this guide in dictum in INS v. Stevie, supra, for the meaning
of well-founded fear: "So long as an objective situation is established by the evidence, it need not be shown that the situation will
probably result in persecution, but it is enough that persecution is
a reasonable possibility." Id. at 424-25 (emphasis added). In Cardoza-Fonseca, supra, the Court noted the "obvious focus on the individual's subjective beliefs" in assessing whether a fear is well
founded. Id. at 431.
We agree with and adopt the general approach set forth by the
Fifth Circuit; that is, that an applicant for asylum has established
a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution. Guevara Flores v. INS, 786 F.2d
1242 (5th Cir. 1986). As noted by the Second Circuit, this "reasonable person standard appropriately captures the various formulations that have been advanced to explain the well-founded fear
test." Carcamo-Flores v. INS,
805 F.2d 60, 68 (2d Cir. 1986). It is a
standard that provides a "common sense" framework for analyzing
whether claims of persecution are well founded. Moreover, a reasonable person may well fear persecution even where its likelihood
is significantly less than clearly probable. The 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 defiled to provide a plausible and coherent account of the basis
for his fear. Matter of Mogharrabi,
19 I&N Dec. 439 (BIA 1987).
The issue before us is whether the respondent has made a prima
facie case of at least a well-founded fear of persecution for one of
the listed reasons, if he returns to El Salvador. The respondent submitted a considerable body of evidence to the immigration judge on
remand, all of a general nature. The respondent argues that he
will refuse to serve in the "terrorist" military and that his refusal
is based on his political beliefs. He then contends that he would
likely suffer severe penalties including death at the hands of the
death squads for his refusal, because he would be suspected of anti-government sympathies. He also argues that it would be against
his moral values to serve in an army which has engaged in violations of human rights. Ho alleges that the immigration judge failed
to consider his argument that he was not obliged at all to serve in
an army which violates human rights. Ile argues that his position
is similar to that of the alien granted asylum in Matter of Salim,
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Interim Decision #3040
18 I&1T Dec. 311 03IA 1982), in that his claim is more than a mere
refusal to serve in his country's military.
The respondent has introduced considerable evidence documenting continued violations of human rights by elements supporting
the Government of El Salvador. It is important to recall that an
alien must support his motion with evidence to show some likelihood of individual persecution to himself or to the class to which
he belongs, and that his predicament is appreciably different from
the danger facing all the population. Zepeda-Mekndez v. INS, 741
F.2d 285 (9th Cir. 1984). Evidence of a general climate of violence is
insufficient. Mendez-Efrain v. INS,
813 F.2d 279 (9th Cir. 1987);
Chavez v. INS,
723 F.2d 1431 (9th Cir. 1984); Martinez-Romero v.
INS,
692 F.2d. 595 (9th Cir. 1982).
We hold to the long- accepted position that it is not persecution
for a country to require military service of its citizens. Kaveh-Haghigy v. INS,
783 F.2d 1321 (9th Cir. 1986) (per curiam); Villegas
v. O'Neill 626 F. Stipp. 1241 (S.D. Tex. 1986); Glavic v. Beechie, 225
F. Su.pp. 24 (S_a Tex. 1962), aff'd, 340 F 2c1 91 (5th (ir_ 1964);
Matter of Ugricic,
14 I&N Dec. 384 (D.D. 1972); see also Delgado-Corea v. INS,
804 F.2d 261 (4th Cir. 1986); Rejaie v. INS,
691 F.2d
139 (3d Cir. 1982). Exceptions to this rule may be recognized in
those rare cases where a disproportionately severe punishment
would result on account of one of the five grounds enumerated in
section 101(a)(42XA) of the Act, or where the alien would necessarily be required to engage in inhuman conduct as a result of military
service required by the government. See 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 39-
41 (Geneva, 1979). We conclude that the respondent has not
brought forward evidence that his refusal to serve would result in
disproportionately severe punishment for an impermissible reason
or that the activity in which he might be involved has been condemned by the international community as contrary to the basic
rules of human. conduct.
The respondent contends that his refusal to serve is a valid political opinion and a moral conviction which is supported by international law. He asserts that the actions of the Salvadoran Army violate international law and have been condemned by the international community. Although incidents involving the Salvadoran
Army have been reported, which undoubtedly involve the violation
of the rights of noncombatants and international law, there is no
evidence that these incidents represent the policy of the Salvadoran Government or that the respondent would be required to engage
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Interim Decision *3040
in such actions as a member of the armed forces. The statements of
opinion of Americas Watch to the contrary in the record may
indeed be the belief of those who represent that organization. Such
statements of opinion of private unofficial bodies do not constitute
evidence of condemnation by recognized international governmental bodies, which would be necessary at a minimum for us to accept
this argument. For an example of a statement of opinion of a recognized international governmental 'body, see the resolution concerning the status of persons refusing service in military or police
forces used to enforce apartheid. G.A. Res. 33/165, 33 U.N. GAOR
Stipp. (No. 45) at 154, U.N. Doc. A/33/45 (1979). Thus, the Government of El Salvador has the same right as other governments to
require military service and to enforce that requirement with reasonable penalties. The case of the claimant in Matter of Salim,
supra, is distinguishable from that of the respondent because the
former was refusing to serve, not in an army controlled by his own
government, but in one which was "under Soviet command." Id. at
313.
The respondent further asserts that the penalty for failure to
serve in the military is not imprisonment after trial but is likely to
be torture and death at the hands of the death squads. Although he
has presented evidence to show that many have been murdered by
so-called death squads for suspected anti-government sympathies,
he has not supported the contention that mere failure to serve in
the military is the kind of activity which draws the attention of the
persons who carry out these killings.
Neither has the respondent shown factual support for the assertion that a period of time spent outside El Salvador produces retaliation for supposed political beliefs. His own family experience
shows that individuals on both sides of the war have been killed for
a variety of reasons. There is nothing in the respondent's own ex-
-
perience which would lead. him to a reasonable fear that he would
be in greater danger than any other member of the general population in El Salvador. The incidents in which he was threatened or
abused were isolated incidents without further consequences. The
respondent's arguments are simply too speculative. Therefore, even
under the lesser standard of proof for asylum set by INS v. Cardoza-Fonseca, supra, the respondent has failed to make a prima
facie case of a well-founded fear of persecution. Necessarily, then,
he has failed to make a prima facie case of a clear probability of
persecution.
The respondent has not cited to any specific provision of international law which would support his claim that he cannot be deported to a country at war. We note only that the United Nations ProSA7
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tocol Relating to the Status of Refugees, January 31, 1967, [1968] 19
U.S.T. 6223, No. 6577, 606 U.N.T.S. 268, and the Universal
Declaration of Hurnan Rights, G.A. Res. 217, 3 U.N. GAOR, U.N.
Doc. 1/777 (1948), are not self-executing and are binding on the
United States only as provided by law. See Haitian Refugee Center,
Inc. v. Gracey, 600 P. Supp. 1396 (D.D.C. 1985), aff'd, 509 F.2d 794
(D.C. Cir. 1987). Farther, the courts of the United States do not
generally evaluate the political justifications of the actions of foreign governments. Kaveh-Haghigy v. INS, supra.
Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.
