Interim Decision #3088
MATTER OF RODRIGUEZ-MAJANO
In Deportation Proceedings
A-260245I2
Decided by Board September 28, 1988
(1) An alien who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion is lbarred from the relief of withholding of
deportation pursuant to the provisinns of section 243(hX2XA) of the Immigration
and Nationality Act, 8 U.S.C. § 1253(hX2XA) (1982), and from asylum pursuant to
the provisions of section 101(aX42XB) of the Act,
8 U.S.C. § 1101(aX42XB) (1982).
(2) The participation or assistance of an alien in persecution need not be of his own
volition to bar him from the relief of withholding of deportation and asylum.
(3) While membership in an organization, even one which engages in persecution, is
not sufficient to bar one from the relief of withholding of deportation and asylum,
if an alien's action or inaction furthers persecution in some way, he would be ineligible for relief.
(4) Activity related to a civil war or harm which may result from behavior directed
toward the overthrow of a government or, alternatively, the defense of that government against an opponent, is not persecution unless it can be established that
there is some degree of intent on the part of the persecutor to produce the harm
that the applicant fears in order that the persecutor may overcome a belief or
characteristic of the applicant.
(5) Regardless of whether the respondent atcled the guerrillas voluntarily or not, the
only harm or injury he may have inflicted arose as the natural consequence of
civil strife and the harm resulting from such generalized civil strife is not persecution
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Peter M. Upton, Esquire David M. Dixon
American Friends Service Committee Appellate Counsel
1205 Sunset Drive Margaret Phillbin
South Miami, Florida 33143 General Attorney
CHARGE:
Order: Act of 1952—Sec. 241(aXZ) [
8 U.S.C. §1251(aX2)].—Enterod without inspection
BY: Milhollan, Chairman; Dunne, Morris„ Vacca, and Heilman, Board Members
Interim Decision #3088
On March 12, 1986, the immigration judge found the respondent
deportable as charged and denied his applications for asylum and
for withholding of deportation to El Salvador under sections 208(a)
and 248(h) of the Immigration and Nationality Act,
8 U.S.C.
§§ 1158(a) and 1253(h) (1982). 1 The respondent has appealed from
that decision. Oral argument was held August 18, 1987. The record
will be remanded.
The respondent is a 23-year-old native and citizen. of El Salvador
who admitted that he entered the United States without having
been inspected on May 18, 1984, and who has conceded deportability. Accordingly, his deportability is established by clear, unequivocal, and convincing evidence. See Woodby v. INS,
385 U.S. 276
(1966). The only issue on appeal is the respondent's eligibility for
asylum and withholding of deportation. The immigration judge
found that the respondent was ineligible for both forms of relief because he had engaged in the persecution of others. To be eligible
for asylum, an applicant must demonstrate that he is a refugee
within the meaning of the Act. The immigration judge found that
the respondent was excluded from the definition of refugee under
section 101(a)(42) of the Act,
8 U.S.C. § 1101(aX42) (1982), and therefore was not eligible for asylum. He also found that the respondent
was ineligible for the relief of withholding of deportation under section 243(h)(2XA) of the Act for having participated in the persecution of others. See Matter of McMullen, 191&N Dec. 90 BIA 1984),
aff'd on other grounds, McMullen v. INS,
788 F.2d 591 (9th Cir.
1986). The respondent contends that his activities did not constitute
persecution or assistance in persecution and that the record should
be remanded to the immigration judge for a determination of his
eligibility for relief.
In addition to his testimony in support of his applications, the respondent submitted his Request for Asylum in the United States
(Form 1-589) and background information on El Salvador consisting of newspaper articles from the Miami Herald, the New York
Times, the Los Angeles Times, the Washington Post, In These
Times, Time, the Christian Science Monitor, the Boston Sunday
Globe, the Wall Street Journal, and the National Catholic Register;
testimony of Steward A. Baker before the House Foreign Affairs
Committee; a transcript of testimony before the United States District Court for the Central District of California; an Amnesty Inter-
No decision was made regarding the application for voluntary departure under
section 244(e) of the Act, 8 U.S.C. § 1254(e) (1982), but the immigration judge ordered
the respondent deported.
R19.
Interim Decision #3088
national statement; and Americas Watch reports dated March
1985, September 1985, and December 1985.
The Act provides that "[t]he term 'refugee' does not include any
person who ordered, incited, assisted, or otherwise participated in
the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion."
Section 101(a)(42)(B) or the Act, 8 U.S.C. § 1101(0420) (1982). The
statute also provides that withholding of deportation
shall not apply to any ahem if the Attorney General determines that--
(A) the alien ordered, irtcited, assisted, or otherwise participatedin the persecution of any person on account of race, religion, nationality, membership in a
particular social group, or political opinion.
Section 243(hX2)(A) of the Act,
8 U.S.C. § 1253(h)(2XA) (1982).
The respondent testified that he worked for his father, a cattle
businessman, in 1983 in San Miguel, EI Salvador. He drove a truck
from San Miguel to his father's store in Santa Inez a short distance
away. He reported that he was stopped many times by guerrillas
on the road. They demanded that he carry merchandise for them
in order to be allowed to pass. In this way he became acquainted
with the guerrillas in his area. At about this same time, the respondent's uncle and his cousin were kidnapped from their homes
in San Miguel by armed men and were killed along with five other
men in the town. It was reported they were killed by army security
forces because they were guerrillas.
The respondent stated that he was seized in May 1983 by the
police and questioned about collaborating with the guerrillas. The
chief of police released him because he knew the respondent's
father, but he told the respondent to report to the police on the
guerrillas' whereabouts. In June 1983, the guerrillas commandeered the respondent and several of his father's trucks, and he
drove supplies to San Miguel for a battle with the government
forces which lasted a. day and a half. He also transported the guerrillas out of the city. The respondent was stopped at a roadblock on
his return and was questioned about his activities by the military.
He admitted to them he had been forced to help the guerrillas. He
was released, but he was threatened with death if he helped the
guerrillas again. In September, the respondent was taken from his
home by the guerrillas, who had acquired a new leader. He alleges
he was forced to join them. He was taken to their training camp
where he was given military training. He accompanied guerrillas
on propaganda trips and once covered them with his weapon while
they burned cars.
The respondent reported that he deserted the guerrillas after 2
months. Before he could turn himself over to the military, he was
Interim Decision #3088
arrested by the police in San Miguel and beaten. He admitted to
them that he had been with the guerrillas. He was transferred
after a week to the Central Police Station in San Salvador where
he alleges he was interrogated, beaten, and tortured with electric
shocks. He was then transferred to a maximum security facility, La
Marion, after about 9 days. He remained there while his case
came before a military court of investigation. He appeared before
the court twice. About 2 and 1/2 months after he entered La Mariona he was cleared of charges and released. A directive to the director of the central penitentiary ordering his release is included in
the record. The respondent understood that he was released
through his lawyer's influence with the judge. He stated that the
judge and his lawyer warned him to leave the country. The respondent left El Salvador within 2 months. The respondent said he
fears the Government would persecute him for his involvement
with the guerrillas and that the guerrillas would persecute him for
deserting thern.
The respondent argues in his brief and at oral argument that the
immigration judge incorrectly found that the respondent had engaged in the persecution of others, rendering him ineligible for
asylum and prohibiting from obtaining withholding of deportation.
According to the respondent, the immigration judge failed to apply
the proper criteria to establish persecution and the immigration
judge failed to consider the circumstances under which the alleged
persecution took place. In particular, the respondent argues that,
where there is open combat, acts of warfare taken in furtherance
of political goals are not persecutory acts_ Further, the respondent
argues that he was never an established member of the guerrilla
organization, and therefore cannot be held accountable for the actions of the organization. The Service agreed at oral argument that
the respondent's actions do not constitute participation in persecution so as to disqualify him from relief. However, the Service
argued that the immigration judge, in effect, found that the respondent lacked credibility; 2 thus, the respondent's testimony is
not sufficient to establish his case and the appeal should be dismissed.
The participation or assistance of an alien in persecution need
not be of his own volition to bar him from relief. See Fedorenko v.
United States,
449 U.S. 490 (1981). However, mere membership in
an organization, even one which engages in persecution, is not suf-
2 For example, the respondent alleges that he was forcibly recruited into the guerrillas, but the immigration judge found that the background information shows forcible recruiting by the guerrillas did not begin until June 1984.
Interim Decision #3088
ficient to bar one from relief, but only if one's action or inaction
furthers that persecution in some way. It is the objective effect of
an alien's actions which is controlling. Laipenieks v. INS, 750 F.2d
1427, 1435 (9th Cir. 1985); Matter of Fedorenko,
19 I&N 57, at 69
(BIA 1984); see also Fedorenko v. United
States, supra, at 750 n.34.
We agree with the respondent and the Service that the respondent is not ineligible for relief. We find that the immigration judge
in this case gave too expansive a definition to the statutory term
"persecution." The only evidence on the issue of persecution of
others in this record is the respondent's own testimony and the
background information submitted by the respondent. The evidence
of record does not indicate that the guerrillas here referred to engaged in persecution.
The argument was made by respondent's counsel that activities
directly related to a civil war are not persecution. We agree. By
this statement we mean that harm which may result incidentally
from behavior directed at another goal, the overthrow of a government or, alternatively, the defense of that government against an
opponent, is not persecution. In analyzing a claim of persecution in
the context of a civil war, one must examine the motivation of the
group threatening harm. Matter of Maldonado, 19 184N Dec. 509
(BIA 1988). A finding of persecution requires some degree of intent
on the part of the persecutor to produce the harm that the applicant fears in order that the persecutor may overcome a belief or
characteristic of the applicant. See Matter of Acosta,
19 I&N Dec.
211 (BIA 1985), modified, Matter of Mogharrabi,
19 I&N Dec. 439 .
(BIA 1987). Thus, the drafting of youths as soldiers, the unofficial
recruiting of soldiers by force, the disciplining of members of a
rebel group, or the prosecution of draft dodgers are necessary
means of achieving a political goal, but they are not forms of persecution directed at someone on account of one of the five categories
enumerated in section 101(a)(42)(A) of the Act. See e.g., Rodriguez-Rivera v. United States, INS,
848 F.2d 998 (9th Cir. 1988); KavehHaghigy v INS,
783 F.2d 1821, 1323 (9th Cir. 1986); Sarkis v. Sava,
-
599 F. Supp. 724 (E.D.N.Y. 1984); Matter of Fuentes,
19 I&N Dec.
658 (BIA 1988); Matter of Vigil,
19 I&N Dec. 572 (BIA 1988); Matter
of Maldonado, supra; Matter of A-G-, 19 I&N Dec- 502 (BIA 1987).
We would include in this list the engaging in military actions, the
attacking of garrisons, the burning of cars, and the destruction of
other property as actions outside the limits of the term "persecution."
The evidence suggests that the respondent engaged only in military activities of a type normal in such conflicts. The military
action in San Miguel in which the respondent took en indirect part
Interim Decision #3088
is a typical example of military tactics designed to overthrow the
government which the guerrillas oppose. As such, it cannot be said
to constitute persecution. The other activities in which the respondent participated, such as burning cars, are also actions typically
within the nature of civil wars. Of course, the respondent must
have been aware that the guerrillas engaged in forcible recruiting,
as he alleges he was a victim of this practice. We have already determined that forcible recruiting by dissident groups engaged in a
civil war is not persecution because it is not motivated by a desire
to harm one the guerrillas find offensive or who has characteristics
they wish to overcome. Matter of Fuentes, supra; Matter of Vigil,
supra; Matter of Maldonado, supra; see also Matter of
McMullen,
supra, at 95 (Blik. 1984). But see Arteaga v. INS,
886 F.2d 1227 (9th
Cir. 1988). Therefore, it is not shown by the record that the respondent engaged in or assisted in any persecution by the guerrillas on account of nationality, race, religion, social group, or political opinion.
Were we to hold that practices such as attacking military bases,
destroying property, or forcible recruiting constitute persecution,
members of armed opposition groups throughout the world would
be barred from seeking haven in this country. As the concept of
what constitutes persecution expands, the group which is barred
from seeking haven in this country also expands, so that eventually all resistance fighters would be excluded from relief. We do not
believe Congress intended to restrict asylum and withholding only
to those who had taken no part in armed conflict. Regardless of
whether the respondent aided the guerrillas voluntarily or not, the
only harm or injury he may have inflicted arose as the natural
consequence of civil strife. Harm resulting from generalized civil
strife is not persecution. Martinez-Romero v. INS,
692 F.2d 595 (9th
Gr. 1982); Matter of Sanchez and Escobar,
19 I&N Dec. 276 (BIA
1985); Matter of Acosta, supra, at 222. Thus, those who inflict such
harm are not engaging in persecution.
Because the immigration judge did not determine whether the
respondent had demonstrated either a clear probability or a wellfounded fear of persecution in El Salvador, the record must be remended for consideration of these issues.
Accordingly, the record will be remanded to the immigration
judge.
ORDER: The immigration judge's decision is vacated and the
record is remanded to the immigration judge for the entry of a new
decision.
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