Interim Decision #3074
MATTER OF CANAS
In Deportation Proceedings
A-26790253
A-26790255
Decided by Board September 18, 1988
(1) Although it provides "significant guidance," 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 (Geneva, 1979) does not hove the force of law with respect to the interpretation of the United Nations Protocol Relating to the Status
of Refugees, Jan. 31, 1967, [1968j 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S.
268.
(2) Neither the terms of the Protocol nor the conduct of nations which are signatoTies to the Protocol is dispositive of the issue of whether conscientious objectors
who come from countries with compulsory military service should be regarded as
'refugees" under the Protocol.
(3) The Handbook suggests that nations may wish to extend protection to alien conscientious objectors consistent with developments in domestic laws, but this is a
policy matter separate from the traditional issue of whether an alien is a "refugee" under the Protocol; such policy questions are outside the jurisdiction of the
Board of Immigration Appeals.
(4) The motivation of an alleged persecutor is a relevant and proper consideration
when analyzing an alien's eligibility for asylum under the Refugee Act of 1980,
Pub. L. No. 96-212, 94 Stat. 102.
(5) An alien must demonstrate that there is an objective basis for his fear in order
to establish that he has a "well-founded fear of persecution" within the meaning
of the Refugee Act
(6) Absent a showing that his government enacted its conscription laws with the
intent of persecuting members of a certain religion, or that the laws are carried
out in a persecutory manner against persons with particular religious beliefs, an
alien with religious objections to military service does not establish eligibility for
asylum although he may be prosecuted for a refusal to perform military service.
Interim Decision #3074
CHARGE:
Order: Act of 1952—Sec. 241(aX2) [
8 U.S.C. §1251(a)(2)]—Entered without inspection (both respondents)
ON BEHALF OF RESPONDENTS: ON BEHALF OF SERVICE:
Karen Musalo, Esquire David Dixon
231 Franklin Street, Suite 2 Appellate Counsel
San Francisco, California 94102
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
This is an appeal from a decision dated February, 4, 1986, in
which the immigration judge denied the respondents' requests for
relief pursuant to sections 208(a) and 243(h) of the Immigration and
Nationality Act,
8 U.S.C. §§ 1158(a) and 1253(h) (1982), but granted
the respondents the privilege of voluntary departure in lieu of deportation. The respondents' appeal will be dismissed.
The respondents, natives and citizens of El Salvador, are brothers. Respondent Jose Canas-Segovia ("Jose Canes") is 18 years old.
Respondent Oscar Canas-Segovia ("Oscar Canes") is 20 years old.
The respondents entered the United States without inspection on
January 27, 1985. On the following day, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) against each
respondent, charging that they were both deportable pursuant to
section 241(a)(2) of the Act, 8 U.S.C. §1251(a)(2) (1982), because they
had entered this country without inspection.
At their deportation hearings on April 11, 1985, the respondents
conceded that they were deportable as charged in the Orders to
Show Cause. We therefore find that the respondents' deportability
has been established by clear, unequivocal, and convincing evidence as required by Woodby v. INS,
385 U.S. 276 (1966), and
8
C.F.R. § 242.14(a) (1988). On December 16, 1985, the respondents'
motion to have their deportation hearings consolidated was granted
by the immigration judge.
The respondents submitted written applications for asylum.' In
their applications, the respondents stated primarily that they
belong to the Jehovah's Witnesses religion, which forbids its members from performing military service, and that they fled El Salvador before the Government there could conscript them for military
service. Pursuant to regulation, the respondents' applications were
referred to the Department of State, Bureau of Human Rights and
I Pursuant to
8 C.F.R. § 298.3(b) (1988), a request for asylum is also regarded as a
request for withholding of deportation under the Act.
Interim Decision #3074
Humanitarian Affairs ("BHRHA") for advisory opinions. 8 C.F.R.
§ 208.10(b) (1985). The BHRHA issued brief advisory opinions concerning the respondents' applications in which it concluded that
the respondents had "failed to establish a well-founded fear of persecution upon return to El Salvador within the meaning of the
United Nations Convention and Protocol Relating to the Status of
Refugees."
After a hearing on the merits of the respondents' applications,
the immigration judge concluded that the respondents had not
demonstrated eligibility for asylum and withholding of deportation.
The immigration judge found that the respondents were credible
witnesses and that their religious convictions were bona fide. He
concluded, however, that because there was no evidence in the
record that the Salvadoran Government persecutes Jehovah's Witnesses on account of their religion or for any other reason, the Government's policy of requiring military service of all its citizens,
without allowing exceptions for conscientious objectors, did not constitute "persecution" within the meaning of the Act.
On appeal, the respondents argue that the immigration judge
failed to apply the proper standards to their asylum and withholding of deportation applications. They argue further, relying on 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 (Geneva, 1979) ("Handbook"), that conscientious objection to military service that is based on religious beliefs is a valid basis for obtaining refugee status under the Act. Alternatively, the respondents argue that because of their refusal to
perform military service in El Salvador, the Government will now
view them as "subversives" and subject them to "extra-judicial
sanctions." For these reasons the respondents contend that the immigration judge's decision should be reversed and that their
asylum and withholding of deportation applications should be
granted.
In INS v. Stevie, 467 U.S. 407 (1984), the Supreme Court held
that an alien establishes eligibility for withholding of deportation
under section 243(h) of the Act if he can demonstrate a "clear probability of persecution" on account of his "race, religion, nationality,
membership in a particular social group, or political opinion," if he
were returned to a designated country. In INS v. Cardoza-Fonseca,
480 U.S. 421 (1987), which was decided subsequent to the immigration judge's decision in this case, the Court did not specify the
standard governing asylum applications under section 208(a) of the
Act but did conclude that there is a significant difference between
Interim Decision #3074
the asylum and withholding of deportation standards for relief and
that an alien need not show a "clear probability of persecution" in
order to be eligible for asylum. 2
In Matter of Mogharrabi,
19 I&N Dec. 439 (BIA 1987), after reviewing decisions of the United States courts of appeals involving
the asylum standard, this Board adopted the "reasonable person"
test for the adjudication of asylum cases. We stated that an alien
demonstrates eligibility for asylum "if he shows that a reasonable
person in his circumstances would fear persecution" on account of
one of the five grounds enumerated in section 101(a)(42)(A) of the
Act. 3
Id. at 445.
The respondents here gave the following testimony in support of
their asylum and withholding of deportation applications. Respondent Jose Canes testified that he began attending Jehovah's Witnesses services at a "Kingdom Hall" in El Salvador when he was 8
years old. He added that he began to study the religion earnestly
at age 13. Although he had not been baptized as a Jehovah's Witness at the time of his deportation hearing, Jose Canes explained
that one must study the Bible in great detail in preparation for
baptism into the Jehovah's Witnesses faith. Jose Canes testified
that he had been attending a Kingdom Hall in San Francisco since
he had been in this country and that he did intend to become baptized as a Jehovah's Witness.
Respondent Jose Canes gave detailed testimony concerning the
tenets of the Jehovah's Witnesses religion. He emphasized in his
testimony that his religion forbade him from serving in the military under any circumstances. He also stated that his grandmoth-
2 The Refugee Act of 1980 revised section 243(h) of the Act and added section
,
208(a) to the Act. See sections 203(e) and 201(b) of the Refugee Act of 1980, Pub. L.
No. 96-212, 94 Stet. 102, 103. The Refugee Act also added a definition of "refugee"
to the Act. See section 201(a) of the Refugee Act,
Pub. L. No. 96-212, 94 Stat. 102. A
"refugee" is now defined in section 101(aX42XA) of the Act,
8 U.S.C. § 1101(aX42XA)
(1982), as
any person who is outside any country of such person's nationality or, in the case
of a person having no nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of that country because
of persecution or a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or politinAl opinion.
3 The respondents argue initially in their brief that the immigration judge did not
apply the proper standards to their asylum and withholding of deportation applications. As noted above, the immigration judge entered his decision in this case prior
to the Supreme Court's decision in INS v. Card,oza
Fonseca, supra. Therefore, on
-
appeal, we will apply the "clear probability" standard to the respondents' withholding of deportation applications and the less demanding "well-founded fear" standard
to their asylum applications.
700
Interim Decision #3074
er, his cousin, several of his aunts, and, overall, "the majority" of
his family members were Jehovah's Witnesses.
Respondent Jose Canes testified further that on one occasion
when he was in El Salvador, he saw the military forcibly conscript
a group of underaged males who lived in his neighborhood. He
stated that after he witnessed this incident, he was afraid to go out
of his house for fear that he too would be conscripted against his
will. The respondent also stated that he refrained from going out
with his friends, or from going to places where a group of young
men could be found, because of his fear of forcible conscription.
Respondent Jose Canes testified that he became even more
afraid of being conscripted by the military after he learned that
the Government was planning to implement a new conscription
policy. According to the respondent, the Government planned to
send draft notices to all 18-year-old males in El Salvador, and if the
draftee did not respond after having received three notices, then
the Government planned to go to the home of the draftee and force
him to join the military. The respondent stated that he left El Salvador 1 year after he learned of the new conscription policy. He
was 15 years old when he left El Salvador.
The respondent testified that the reason he left El Salvador was
that he was afraid that he would be forced to join either the Salvadoran Army or the Salvadoran guerrillas, and he could not fight
with either side because of his religious beliefs. The respondent
stated that neither the guerrillas nor the army approached him
and asked him to join them, and he did not receive a draft notice
prior to his departure from El Salvador. The respondent also stated
that he did not know whether the guerrillas or the army were
aware that he was studying the Jehovah's Witnesses faith, but he
did testify that neither group had come to the Kingdom Hall when
the respondent was worshiping there. Finally, respondent Jose
Canes testified that members of a guerrilla group known as the
"Popular Revolutionary Block" ("BPR") came to his school and
asked some of the students to distribute leaflets and pamphlets. He
stated that the group members were not interested in him because
he was too young. He stated further that they did not ask him to
do anything on their behalf.
Respondent Oscar Canes' testimony was similar to that of his
brother Jose. Oscar Canes testified that he too had attended a
"Kingdom Hall" in El Salvador since he was 8 years old. He testified that he had not been baptized as a Jehovah's Witness, but that
he was studying the religion in order to become baptized. Respondent Oscar Canas testified that 15 of his relatives were either offinni
Interim Decision 4* 3074
cially recognized as Jehovah's Witnesses or were studying to
become Jehovah's Witnesses.
Respondent Oscar Canes also testified in detail about the tenets
of the Jehovah's 'Witnesses religion. He stated that he could not
serve in the military because of his religious beliefs and that he
would not render any service that was related to the furtherance of
a war effort. He also stated that he could not fight along with the
Salvadoran guerrillas because of his religious principles.
Oscar Canes stated that his family lived in an area in El Salvador where there were often battles between the guerrillas and the
Salvadoran Army. The respondent stated that in 1981 and 1982,
there were several battles in which the respondent heard gunfire
so close to his house that he threw himself on the floor inside the
house. The respondent also stated that he remained in his house
while these battles occurred and that none of the combatants approached him during the battles.
Respondent Oscar Canes testified that he had also witnessed an
incident in which members of the Salvadoran Army forcibly conscripted underaged males. The respondent stated that he and his
friends were playing basketball when some soldiers arrived in a
yellow pickup truck. The respondent stated further that he and his
friends immediately left the area, but that as they looked back
they saw soldiers taking away some of the young men that had remained behind. The respondent also testified that the legal age for
conscription in El Salvador was 18, but that the army would take
youths who appeared capable of serving in the military regardless
of their age.
Like his brother Jose, Oscar Canes testified that he stayed indoors after he had seen the soldiers forcibly conscripting other
young males. When he learned of the Government's new conscription policy, the respondent testified that he feared he would no
longer be able to avoid conscription by simply remaining at home.
He testified that he too left El Salvador because he was afraid that
he would be forced to join either the army or the guerrillas. When
asked by counsel as to how he believed officials of the Salvadoran
Army would respond if he told them that he could not serve in the
military because of his religious beliefs, the respondent stated: "I
don't think they would care about what my religious beliefs were.
What they care about is [whether] they can pick up people for
fighting." Oscar Canas stated further that he left El Salvador with
his brother before the Government's new conscription policy went
into effect, that he was 16 years old when he left El Salvador, and
that the army did not order him to report for military service
before he left there.
7119.
Interim Decision #3074
Respondent Oscar Canas also testified that in 1980 or 1981, members of a guerrilla group known as the "BPR" came to his school
and asked all the students to join their cause and "to go out and
distribute leaflets." The respondent stated that the guerrillas did
not threaten the students directly, but told the students that
"something bad" would happen to those who did not cooperate. The
respondent also stated that he stopped attending the school for
"half a year" because he was afraid of what the guerrillas might do
to him if he refused to aid them. The respondent later testified that
the guerrillas had asked all the students at his school to distribute
leaflets, but that the guerrillas did not return with materials for
the students to distribute; and he did not have any further contact
with the guerrillas after he left the school. The respondent also testified that he did not tell the guerrillas, nor did it become known to
them, that he was studying the Jehovah's Witnesses religion.
The respondents have submitted documents and affidavits into
the record in support of their asylum applications. Among the documents included in the record is a United Nations ("U.N.") report
on conscientious objection to military service. This report indicates
that according to Salvadoran law, all males between the ages of 18
and 30 are required to perform military service exceptions are —
permitted only for health and family reasons. The report also indicates that the Salvadoran Government does not allow for exemptions from military service for conscientious objectors. Furthermore, the report provides that conscientious objectors in El Salvador may be imprisoned and punished as deserters. The evidence in
the record also indicates that Jehovah's Witnesses are categorically
opposed to participation in war and service in the military.
The Service has not filed a brief on appeal in this case. At oral
argument, however, the Service stated that its present position is
that an alien who belongs to a "sect" such as the Jehovah's Witnesses, which historically has opposed all wars, and who comes
from a country which does not allow exemptions from military
service for conscientious objectors should be eligible for asylum in
the United States. 4 The Service requested, however, that the
record be remanded in this case so that the immigration judge
could further inquire into the genuineness of the respondents' religious convictions. Based upon our review of the record, we find
that the respondents came forward with sufficient testimony to
demonstrate that their religious convictions are genuine. Accordingly, we will proceed to a consideration of the respondents' argu-
4 The Service did not offer any authority at oral argument in support of this position.
17110
Interim Decision #3074
ments on appeal with the assumption that the respondents possess
the religious beliefs of bona fide Jehovah's Witnesses.
The respondents' chief contention on appeal is that, pursuant to
the guidelines set forth in the United Nations High Commissioner
for Refugees ("UNHCR") Handbook, they have demonstrated eligibility for asylum under the 1980 Refugee Act. Congress enacted the
Refugee Act in part to make the domestic refugee laws conform to
the 1967 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 ("Protocol"), to which the United States had acceded
in 1968. See INS v. Cardoza Fonseca, supra, at 436- 37; INS v. Stevie,
-
supra, at 426-27. The Supreme Court stated in INS v. Cardoza Fon- -
seca, supra, at 439 n.22, that the Handbook provides "significant
guidance" with respect to interpretation of the Protocol. The Court
also stated, in the context of its decision concerning the evidentiary
standard in asylum cases:
We do not suggest ... that the explanation in the U.N. Handbook has the force of
law or in any way binds the INS with reference to the asylum provisions of
§ 208(a). Indeed, the Handbook itself disclaims such force, explaining that "the determination of refugee status under the 1951 Convention and the 1967
Protocol ... is incumbent upon the Contracting State in whose territory the refugee finds himself "
Id.; see also Matter of Acosta,
19 I&N Dec. 211, at 220 (BIA 1985)
(modified on other grounds in Matter of Mogharrabi, supra, at 446-
47).
In the brief in support of their appeal, the respondents have
cited paragraphs 170 and 172 of the Handbook to support their argument that they qualify for asylum. These paragraphs provide as
follows:
170. There are ... cases where the necessity to perform military service may be
the sole ground for a claim of refugee status, i.e., when a person can show that
the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to
valid reasons of conscience.
172. Refusal to perform military service may ... be based on religious convictions.
If an applicant is able to show that his religious convictions are genuine, and that
such convictions are not taken into account by the authorities of his country in
requiring him to perform military service, he may be able to establish a claim to
refugee status. Such a claim would, of course, be supported by any additional indications that the applicant or his family may have encountered difficulties due to
their religious convictions.
Handbook, supra, at 40.
In addition, the respondents submitted into evidence a letter,
dated January 30, 1986, from Joachim Henkel, a UNHCR Deputy
Representative, addressed to the respondents' counsel. In the letter,
Mr. Henkel writes:
704
Interim Decision #3074
Paragraph 170 of the Handbook addresses the situation of a person whose sole
basis for a claim to refugee status is that the performance of military service
would have required his participation in military action "contrary to his genuine
political, religious or moral convictions, or to valid reasons of conscience." State
practice on this issue is not uniform. UNHCR takes the view, however, that, especially where no alternative to military service exists, significant punishment for
refusal to perform military service, based on strong religious or moral convictions,
or on political opinion, may be considered persecution. Therefore, assuming that
the religious, moral or political conviction advanced is reasonably credible, and
surrounding circumstances of the case do not argue otherwise, a draft evader or
deserter of that description may be accorded refugee status even though the punishment he faces does not differ substantially from that meted out generally for
this offense because of a simple disinclination to serve.
Thus, the respondents argue that the performance of military service in El Salvador would be contrary to their religious convictions,
and that any punishment which they would receive while adhering
to their convictions would amount to religious persecution.
We begin our analysis by emphasizing that there is no provision
in the Protocol which declares that conscientious objectors from nations with compulsory military service are per se refugees, nor is
there any indication of a consensus among the signatories to the
Protocol that persons similarly situated to the respondents qualify
as refugees under the terms of the Protocol. To the contrary, the
above-cited letter written by a UNHCR Deputy Representative indicates that "State practice on this issue is not uniform." 5 The re-
5 The U.N. report on conscientious objection that the respondents submitted into
evidence reflects that on December 4, 1981, the U.N. Secretary-General addressed a
request for comments concerning conscientious objection to military service to various governmental and nongovernmental organizations. The majority of the 11 governments that responded to this request for information took the position that while
persons who objected to military service for reasons of conscience could apply for
asylum, their applications would be considered on a case-by-case basis. The UNHCR.
which also responded to the Secretary-General's request, stated the following in its
reply, dated February 15, 1982:
Conscientious objectors may... be considered as refugees and be granted asylum
if they fulfill the normal criteria of refugee status, i.e., if they have a well -founded
fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. In applying these criteria to conscientious
objectors, it should be borne in mind that fear of prosecution or punishment for
objection to military service, desertion or draft evasion, is not a reason for granting refugee status unless there are also elements indicating a well-founded fear of
persecution under the refugee definition. Whether such elements exist must of
course be determined according to the circumstances of the particular case.
Thus, although the record reflects in this case that the UNHCR apparently no
longer subscribes to this view, the UNHCR previously indicated, in its written response to the Secretary-General's inquiry, that a conscientious objector would not
qualify as a refugee if he demonstrated only that he feared prosecution for his objection to military service.
•9•0111.0
Interim Decision #3074
spondents have relied on the Handbook as the basis for their
asylum requests, but the Handbook paragraphs cited by the respondents do not have the "force of law" and, in our view, are not
dispositive of the issue in this case. Handboo k paragraphs 170 and
172 do suggest that a refusal to perform military service which is
grounded in religious belief may be a basis for obtaining refugee
status. Paragraph 172 adds that "[s]uch a claim would ... be supported by any additional indications that the applicant or his
family may have encountered difficulties due to their religious convictions." The respondents did not make any showing that their
family members had "encountered difficulties" in El Salvador because of their religious beliefs. Thus, the core of the respondents'
argument is that they are "refugees" under the Protocol because
they are conscientious objectors who come from a nation with compulsory military service.° We decline to construe the refugee definition contained in the Protocol in such a broad manner, although
the UNF1CR has advised that its position is that persons such as
the respondents "may be accorded refugee status" under the Protocol.
The Handbook itself suggests that the issue of extending protection to conscientious objectors is a matter of stele prerogative
rather than legal right under the Protocol. Paragraph 173 of the
Handbook, which the respondents have not cited in their brief, provides:
The question as to whether objection to performing military service for reasons of
conscience can give rise to a valid claim to refugee status should also be considered in the light of more recent developments in this field. An increasing number
of States have introduced legislation or administrative regulations whereby persons who can invoke genuine reasons of conscience are exempted from military
service, either entirely or subject to their performing alternative (i.e. civilian)
service. The introduction of such legislation or administrative regulations has also
been the subject of recommendations by international agencies. In the light of
these developments, it would be open to Contracting States, to grant refugee status
to persons who object to performing military service for genuine reasons of conscience.
Handbook, supra, at 40-41 (emphasis added). This passage provides
that nations may wish to extend protection to aliens consistent
with developments in domestic laws, and it also suggests that the
decision concerning whether to offer such protection would be a
policy matter separate from the traditional issue of whether an
alien is a victim of "persecution" under the Protocol. The question
of whether these respondents should be offered protection as a
6 According to the U.N. report in the record, which was prepared in 1983, 40 countries had conscription without providing any alternative to military service.
ring
Interim Decision #3074
matter of policy, and for reasons separate from the interpretation
of the Protocol and the Refugee Act, will be discussed below. Neither the explicit terms of the Protocol nor the practice of signatories to the Protocol, however, resolves the issue of whether the respondents here are "refugees." The Handbook is not controlling authority with respect to this issue and, in this instance, the guidance
set forth in the Handbook is not free from ambiguity. We will
therefore turn to a consideration of whether the respondents are
"refugees" under this nation's asylum laws.
The issue before this Board, then, is whether aliens who refuse to
perform military service in their native country for genuine religious reasons, and who would be subject to prosecution for that refusal, qualify as "refugees" within the meaning of the Refugee
Act. 7 The respondents urge that they do qualify as "refugees," although they have not shown, and apparently do not claim, that the
Salvadoran Government has the inclination to persecute Jehovah's
Witnesses for any reason unrelated to the respondents' argument
concerning conscription. The respondents also do not claim that
the Salvadoran Government has enacted its conscription laws with
a persecutory intent, or that the conscription laws are applied in a
persecutory manner based on an individual's "race, religion, nationality, membership in a particular social group, or political opinion." 8
As the United States Court of Appeals for the Ninth Circuit has
stated, the motivation of an alleged persecutor is a relevant and
proper consideration when analyzing an alien's eligibility for
asylum. See Lazo Majano v. INS,
- 813 F.2d 1432, 1435 (9th Cir.
1987); Zayas-Marini v. INS,
785 F.2d 801, 806 (9th Cir. 1986); Hernandez-Ortiz v. INS,
777 F.2d 509, 516 (9th Cir. 1985); see also
Matter of Maldonado, 19 MN Dec_ 509, at 513 (111A 1988). An examination of the motivation of the alleged persecutor in this case,
7 The respondents presented evidence and gave testimony concerning the Salvadoran Army's forcible conscription of youths who had not yet reached the age of 18.
The respondents are now over 18 years old and would be subject to lawful conscription in El Salvador. The respondents testified that the Government's intention to
mail draft notices to 18-year-old males, which in itself is certainly a lawful process,
was what prompted them to leave El Salvador. The issue of whether the Salvadoran
Government's forcible and extralegal conscription of underaged males constitutes
"persecution" is not presented by this appeal. We note, though, that the evidence in
this case indicates that both the Salvadoran Army and the guerrillas have engaged
in the indiscriminate, forcible recruitment of young males in El Salvador. Because
of its indiscriminate nature, this forcible recruitment would appear to be a risk inherent in a civil war, rather than a risk of "persecution." See Campos•Guardado v.
INS,
809 F.2d 285, 290 (5th Cir. 1987).
See infra note 12.
Interim Decision #3074
the Salvadoran Government, reveals that the Government has not
"singled out" the respondents for persecution because of their religious beliefs. The Salvadoran Government has been involved in an
ongoing struggle in which it has sought to overcome the armed resistance in El Salvador. As a means to this end, the Salvadoran
Government has required that all males between the ages of 18
and 30 perform military service. The Government has not allowed
for exemptions from military service for conscientious objectors.
This is most likely because the Government has determined that it
needs as many able-bodied men as possible to pursue its military
objectives. But there is nothing in this record which indicates that
the Salvadoran conscription law does not offer exceptions from
mandatory service to conscientious objectors because the intent of
the law is to persecute Jehovah's Witnesses, or members of any
other religious group which is opposed to military service and
war.9 Nor is there evidence that the conscription laws were enacted or are applied in a persecutory manner, e.g., with only those
with religious objections being punished for their refusal to join the
military. See Handbook, supra, para. 59.
The respondents argue that from their perspective, the Salvadoran Government's actions are tantamount to religious persecution,
because they would be punished for a refusal to perform military
service that was based on religious convictions. 10 This argument ignores the well-settled requirement in cases involving interpretation
of the Refugee Act that there must be an objective basis to an
alien's fear before that fear will be considered "well founded." See,
e.g, Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986); Cardoza-Fonseca v. INS,
767 F.2d. 1448, 1453 (9th Cir. 1985), aff'd,
480
U.S. 421 (1987); Carvajal-Munoz v. INS,
743 F.2d 562, 574 (7th Cir.
1984); Matter of Mogharrabi, supra, at 444. That is, a reasonable
person in the position of the respondents might fear prosecution for
9Although the Service stated its view at oral argument that an alien would be
eligible for asylum if he could show that he belonged to a "sect" such as the Jehovah's Witnesses which opposes all wars, and that he comes from a country which
requires military service from all its male citizens, we do not agree that such an
alien qualifies as a "refugee," as defined in section 101(aX42XA) of the Act, absent
some indication that his government is inclined to persecute members of his religious group.
1 ° In support of this position, the respondents have cited a 1962 decision of the
West German Federal Administrative Court, in which that court stated:
[A] conscientious objector on groin. is of religion is involved in a conflict between
two duties. On one hand, the State requires him to perform military service; on
the other hand his religion requires him to refrain from such service for reasons
of conscience. If the State takes action against the person involved in such a conflict, the effect as far as he is concerned is persecution because of his religion.
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Interim Decision #3074
a refusal to perform military service but would not believe that he
had been punished on account of his religious beliefs where the
same penalties are applied to all violators, regardless of the reasons for the refusal to serve. Respondent Oscar Canas himself testified that he did not think the Salvadoran military would care
about his religious beliefs and stated that what they did care about
was "pickling] up people for fighting." Although the respondents
may view any penalty that they receive for their refusal to serve as
punishment for their religious beliefs, we do not consider that punishment to constitute persecution within the meaning of the Refugee Act and cases interpreting that Act," in the absence of a showing that the Government's motivation for imposing the punishment
stems from the respondents' religious beliefs, or that the Government's conscription laws are carried out in a manner which punishes a person because of his particular religious beliefs or his religious affiliation."
Since the respondents have not shown that the Salvadoran Government is inclined to persecute Jehovah's Witnesses or that the
Government is aware of the respondents' religious beliefs, the Govenunent would presumably punish the respondents just as it would
punish any other Salvadoran who refused to comply with the conscription process. The Salvadoran Government may penalize the respondents for their decision concerning military service, but it is
apparent that any punishment imposed would relate to the respondents' ultimate choice not to serve in the military, rather than
the reasons or beliefs underlying the respondents' choice. In this
In their brief, the respondents cite Sarkis v. Sava, 599 F. Supp. 724 (E.D.N.Y.
1984), in support of their contention that an alien can demonstrate eligibility for
asylum by showing that military service would be contrary to his "political, religious, or moral convictions." The court's use of this language in that case was mere
dictum, however, as the court ultimately concluded that the petitioners had not
even alleged an objection to military service that was based on reasons of conscience.
Id. at 726 27; see also Sarkis v. Nelson,
585 F. Supp. 235 (E.D.N.Y. 1984).
-
The respondents also rely on Matter of Salim, 18 I&N Dec. 211 (BIA 1982), for the
proposition that aliens who object to military service may be eligible for asylum. In
Matter of A-G-, .
19 I&N Dec. 502 (BIA 1987), we clarified the holding in Matter of
Salim, supra, by pointing out that the Afghan national in Salim did not object to
performing military service for his own government, but instead for an army that
was under a foreign government's control. See also Handbook pares. 165.
'2 Asylum applicants need not prove a government's "subjective" intent to persecute, although there may be evidence of such intent in some cases. Reasonable inferences can be drawn fund governmental or individual actions. If, for example, a law
provided exceptions for all but those with particular religious beliefs, or was neutral
on its face but enforced only against those with particular religious convictions,
such cases would be presented in a very different light from this one. See Handbook,
supra, para. 56-60.
Interim Decision #3074
regard, the respondents have not demonstrated that the Salvadoran Government would regard the fact, that the respondents have
religious reasons for their refusal to serve in the military as anything but a matter of coincidence.
To conclude that the application of the Salvadoran Government's
conscription law to Jehovah's Witnesses inherently amounts to
"persecution" would require that we condemn the Salvadoran Government for not allowing the same exemptions from military service which this nation has allowed." Although the Salvadoran Government's conscription process may not be es advanced or enlightened as the process in this country or other countries has been, the
respondents have not shown that the Salvadoran Government's
motivation in establishing or carrying out this process is the persecution of Jehovah's Witnesses, or persons generally with religious
objections to military service. Thus, we conclude that the respondents have not demonstrated eligibility for asylum by virtue of their
conscientious objection to military service argument.
The respondents also advance the argument on appeal that if
they were returned to El Salvador and refused to perform military
service, the Government would regard them as "subversives" or
"guerrilla sympathizers" and subject them to "extra judicial sanc- -
tions." The respondents therefore argue that they are eligible for
asylum because the Government would "impute" the political opinions of "subversives" or "guerrilla sympathizers" to the respondents and then persecute the respondents for those opinions.
The respondents do not base their "imputed political opinion" argument on their particular circumstances but contend that any
male who refuses to perform military service in El Salvador is subject to extra judicial sanctions including torture and death." We
13 We note too that a finding that these respondents are victims of religious persecution would require a concomitant finding that the persons who enacted or who
carry out the Salvadoran conscription laws have "ordered, . . . assisted, or otherwise participated in the persecution" of others "on account of . . . religion," thereby rendering all such persons ineligible for asylum pursuant to section 101(aX42)B)
of the Act. See Matter of Fuentes,
19 I&N Dec. 638, at 661-62 (BIA. 1988).
14 The respondents have submitted affidavits in support of this argument. Several
of the affiants state that those who refuse to join the military in El Salvador are
tortured or killed. Others state that those who resist induction into the military are
regarded as guerrillas or guerrilla sympathizers by the army. A former lieutenant
colonel in the Salvadoran Army states:
If a man were ordered to report for the draft and did not show up, he would be
subject to court martial. Refusal to join the Army would result in a jail term. If
the person becomes vocal in his opposition, he would become a real target for government persecution.
Continued
710
Interim Decision #3074
rejected a similar argument in Matter of A-G-, supra. In that
case, we found that a Salvadoran who claimed that he would be
tortured or killed by "death squads" if returned to El Salvador had
not established 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." Id. at 507.
With regard to the respondents in this case, it is not reasonable
to suggest that the Salvadoran Government, or forces beyond that
Government's control, would view the respondents as subversives
or guerrillas, and that the respondents would then incur the risk of
punishment or harm to which subversives and guerrillas in El Salvador are exposed. The respondents here are pacifists. The Government may well inquire as to the reasons for the respondents' refusal to serve in the military, but would then discover that the respondents' objection to conscription was based on their religious beliefs. The Government might then proceed to punish the respondents, in accordance with its conscription law, but there is no sound
reason to believe that the Government would view these respondents as possible military opponents. We therefore find no merit to
the respondents' "imputed political opinion" argument. 15
Because we conclude that the respondents have not shown that
reasonable persons in their positions would fear persecution in El
Salvador, we conclude that the respondents are not "refugees"
within the meaning of the Refugee Act and that they are not eligible for asylum under the Act. Because the respondents also have
not demonstrated a "clear probability" of "persecution" on account
of their religious beliefs, or any of the other grounds enumerated
in section 243(h) of the Act, we conclude that the respondents are
not eligible for withholding of deportation.
A remaining consideration in this case is whether the Government may wish to extend protection to the respondents, and to persons similarly situated, as a matter of national policy. See Handbook, supra, para. 173. The Service has not taken a formal position
on appeal in this case, and the rationale for the Service's oral position has not been made clear. As noted above, we do not agree
According to a Library of Congress report concerning military service in El Salvador, which is attached to the respondents' brief in support of their appeal, persons
who fail to report for military duty in time of war are subject to 1 to 3 years' imprisonment.
1 ° The respondents have also sot shown that they can reasonably fear permeation
from the guerrillas in El Salvador. Although Oscar Canes testified that the guerrillas came to his school and asked him and all his classmates to help the guerrillas by
distributing leaflets, the respondent did not show that he was harmed or threatened
by the guerrillas because of a political new or religious belief which he possessed.
Interim Decision #3074
with, and are not bound by, the Service's contention at oral argument that aliens similarly situated to the respondents who demonstrate that their religious beliefs are bona fide are "refugees"
within the meaning of the Refugee Act. If, however, the Service is
suggesting that as a matter of policy certain aliens who refuse to
perform military service for religious reasons should not be returned to countries with compulsory military service, then such a
policy should be implemented by regulation so that its contours
can be defined and the policy can be openly announced and uniformly applied. See section 103(a) of the Act, 8 U.S.C. § 1103(a)
(1982);
8 C.F.R. § 2.1 (1988);
28 C.F.R. § 0.105(b) (1988). Implementation of such policy matters, however, is outside this Board's jurisdiction.
The Board's jurisdiction in this case is limited to a review of the
immigration judge's decision and the determination as to whether
these respondents qualify as "refugees" under the Refugee Act. See
8 C F.R §3.1(b)(2) (1988). For the reasons set forth above, we have
concluded that the respondents do not so qualify. Accordingly, because there is no relief available to the respondents under the Refugee Act, their appeal will be dismissed. The following orders will
be entered.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's
order and in accordance with our decision in Matter of Chouliaris,
16 I&N Dec. 168 (BIA 1977), the respondents are permitted to
depart from the United States voluntarily within 30 days from the
date of this order or any extension beyond that time as may be
granted by the district director; and in the event of failure so to
depart, the respondents shall be deported as provided in the immigration judge's order.
