Jose Roberto Canas-Segovia Oscar Iban Canas-Segovia v. Immigration and Naturalization Service

matter with What’s the THE COURT: changing position counsel]

[Selas’ point? I don’t think there’s

MR. PETERSON: changing posi- wrong with

anything It seems to me

tion. doing it is all. After

little late in original trial court

representations to [Milgard representations to

and the I’m court, timely, but I don’t think it’s

/] it. say they couldn’t do going to

Transcript at 3348. previ- accept Milgard’s inclined to

We are

ous, characterization— spontaneous more late, perhaps a little change was

that Selas’ outright self-serving, hardly the little but i.e., impartial forum

attempt to abuse proscribed by behavior

the “fast and loose” Thus, Milgard’s second

Patriot Cinemas. as well.

argument fails

VIII reasons, judgment of the

For these AFFIRMED. court is

district CANAS-SEGOVIA; Roberto Oscar

Jose Petitioners,* Canas-Segovia,

Iban AND NATURALIZA

IMMIGRATION SERVICE, Respondent.

TION

No. 88-7444. Appeals, States Court of

Ninth Circuit. Dec.

Argued and Submitted April

Decided * D.C.; Amnesty Washington, support petitioners and for Internation- Briefs of amici curiae in Hoffman, of the United Nations Weiss- were filed for the Office High Paul and David al U.S.C. brodt, Refugees by Guy Network, Amnesty S. Commissioner Legal Support AIUSA Timberlake, Goodwin-Gill, California, Susan United Na- U.S.A., Angeles, Los International High Refugees, Wash- tions ington, Commissioner Dougherty Neil V. McKit- Charles R. Steinhardt, D.C., George Ralph G. Boston, trick, Barlow, Massachusetts. Hill & Center, University Washington Law National Fran San Musalo, University of Karen Francisco, Cal., for Clinic, San Law

cisco petitioners.-' Immigra- Hausman, Office Allen W. D.C., re- Washington, Litigation,

spondent. Dougherty, Charles R. Neil V. McKit- between ages of 18 and 30. The Salva- trick, Boston, Mass., Hoffman, Paul policy David doran exempt does not Weissbrodt, Angeles, Cal, Los objectors, for Amnes- grounds or other- ty U.S.A., Intern. wise, amicus curiae. offers no alternatives to legal service. The penalties resisting Guy Goodwin-Gill, Timberlake, S. Susan conscription range from six months to 15 High Nations Refugees, Com’r for years imprisonment, depending upon indi- Washington, D.C., Ralph Steinhardt, G. vidual circumstances. Pear of this George Washington University Nat. Law caused the Cañases to El flee Salvador at Center, Washington, D.C., for amicus curi- respective ages of 16 and 17. ae. The Cañases entered the States illegally on January days 1985. Two later, they received orders to show cause why illegal entry their subject should not WRIGHT, HUG, LEAVY, Before and them deportation. joint deportation At a Judges. Circuit hearing held San Francisco on December 16, 1985, they petitions submitted asy- for WRIGHT, EUGENE A. Judge: Circuit pursuant lum INA, to section 208 of the We consider whether El Salvador’s forc- 1158(a).1 codified at 8 U.S.C. peti- Their § conscription policy ible persecu- amounts to tions grounds (1) raised these asylum: for Immigration tion under the Nationality and conscription forcible in violation of their (INA) applied Act when to conscientious religious beliefs amounted religious per- objector Jehovah’s Witnesses. Both the secution, (2) refusal to in military, serve the immigration (IJ) judge and Board of Immi- any reason, expose them to ex- gration Appeals (BIA) query answered this trajudicial including sanctions torture and negative the when denied death, (3) and refusal to serve in mili- the and relief to tary could cause them to be as viewed petitioners Jose and Oscar Canas-Segovia. political government enemies of the and We now REVERSE and REMAND with again expose them extrajudicial sanc- grant instructions to the requested relief. tions. 208.3(b), to 8 Pursuant C.F.R. the § automatically IJ considered the petitions BACKGROUND requests also as for withholding deporta- Jose (the and Oscar Canas-Segovia 243(h) INA, Ca- under section codi- ñases) are brothers and El 1253(h). natives of Salva- fied at 8 U.S.C. § dor whose beliefs bar them from In support petitions, the Cañases participating in military service. Both presented extensive evidence about the Sal- were introduced to the Jehovah’s Witness- vadoran policy and conse- the es faith as children and family' reared in a quences refusing to submit to it. A few setting where family most members either examples will suffice. Jose Canas testified already were Jehovah’s Witnesses or that a friend who had fled from mili- studying baptized to be into that faith. tary and neighborhood returned to his was The Cañases have studied the faith since away taken and not again. seen An affida- midteens, with goal becoming vit was presented eyewitness from an baptized and consider themselves to be Je- the extrajudicial torture of an Army desert- hovah’s Witnesses. The tenets of their eyewitness, er. The himself, a conscript prohibit faith them from participating in first army heard officials accuse desert- service of kind. being er of antigovernment an guerrilla El Salvador presently a has and then watched as both of the deserter’s mandatory military for all males chopped arms service were off. purposes

1. For the reading judi- ease of and first a time section is cited. Later citations efficiency, parallel cial citations to both the INA only U.S.C. section and U.S.C. appear only section will on the prove failed to intent had also were declarations and Affidavits government sin- part of Salvadoran by former presented persecu- working in Witnesses for gle out Jehovah’s physician officers, a Red Cross clergy provi- tion, the Handbook and members determined country, and ex- from an dispositive. An affidavit were not there. working sions El 'in rights situation the human pert argument rejected Cañases’ also It McHugh, stated George Salvador, military would refusing to serve up routinely rounds “[t]he hostile to political opinion a impute to them who refuse point. Those gun youths at exposing them to thereby government, con- for reasons forces armed join the including torture reprisals governmental and killed.”2 tortured science argument was Rejection of this death. petitions denied The IJ in which a decision upon prior BIA based granted withholding of that mere establish failed to petitioner had In voluntary departure. the Cañases military would sub- serve failure decision, he reasoned oral of Salvadoran the attention ject him to probabili- clear either establish could not squads. death fear or a well-founded persecution3 ty of failed they had because persecution4 singled Witnesses Jehovah’s show that per- for REVIEW OF STANDARD by out the religious beliefs. of their because secution confined to deci Our review 1 a document considered The IJ was If determination BIA. of the sion n for High Commissioner Nations harmless. by the IJ is correct, any then error ¡ support of (UNHCR) in Refugees Office Dep’t. v. riguez-Rivera U.S. Rod UN It cited claim. Cañases’ Naturalization, 848 F.2d & Immigration Criteria and Procedures on Handbook Cir.1988). (9th 998, 1003 (Geneva Refugee Status Determining for findings under factual We review dismissed The IJ (Handbook). 1979) and with asylum was Handbook the BIA’s denial document, lying saying that the sub Refugee Act under relief passage holding before written Ilc nations Desir v. other standard. Noting also 39 evidence of 1980. stantial Cir.1988); objector (9th 723, Arti for conscientious 726 provide hert, F.2d 840 fail 1396, the Salvado I.N.S., F.2d 1398 he 821 exemptions, concluded v. ga Turcios could mandatory case were Cir.1987). in our policy of The facts (9th ran ap turned BIA decision not amount undisputed without to all Salvadorans equally the relevant plied questions about legal solely on The Cañases religious beliefs. regard to is de review Our statutory requirements. the BIA. appealed 723; Lazo-Maja then Desir, 840 novo. (9th 1432, Cir. I.N.S., 1434 v. asylum the denial affirmed That board 1987).6 emphasized that withholding.5 It whether focused on and BIA the IJ 5. Both McHugh, George Record 2. Declaration a asylum of well- standard Cañases met 397. they de- persecution. Because fear of founded to meet this failed that the Cañases termined stan persecution" probability The "clear 3. standard, to consid- not need did a fortiori eligibility determining an alien’s used dard is difficult the more met er Stevic, v. deportation. I.N.S. for re- deportation standard withholding of 2489, 2498, 424, 407, 81 S.Ct. 104 467 U.S. persecution. probability of quires a clear I.N.S., (1984); Blanco-Lopez 858 v. 321 L.Ed.2d Cir.1988). 531, apply defer 533 urges F.2d us to The Government 6. decision, to the BIA’s of review ential standard arguing interpretation to its persecution” stan- defer we must fear of The "well-founded argument. As the reject eligibility determining alien’s the statute. dard is used Fonse I.N.S. v. 101(a)(42) noted in Cardoza Supreme Court of the asylum See section relief. for INA, authority on issue ca, final judiciary is the 1101(a)(42). ”[t]he § at 8 U.S.C. codified STATUTORY grounds. FRAMEWORK The section states in relevant part: Both the of de Attorney deport General shall not or portation provisions by were established return alien country ... if the the 1980 Refugee Congress Act in which Attorney General determines that such sought bring United States law alien’s life or freedom would be threat- conformity into with the United Nations ened in country race, such on account of Relating Protocol to the Status of Refu religion, nationality, membership in a (UN gees Protocol), 6223, 19 UST TIAS No. particular group, social political opin- or generally Stevic, See I.N.S. v. ion. 407, 421, 2489, 2496, U.S. 104 S.Ct. (1984); L.Ed.2d 321 I.N.S. v. Cardoza 1253(h)(1). 8 U.S.C. § Fonseca, 421, 436-37, 480 U.S. An eligible alien becomes 1207, 1216, (1987). 94 L.Ed.2d 434 The UN withholding by demonstrat Protocol, to which the United States acced ing a “clear persecution” ed in parties binds to the substantive account of one of grounds. these five

provisions of through Articles 2 34 of the Stevic, 2498; U.S. at 104 S.Ct. at United Nations Relating Convention Blanco-Lopez (1951 Refugees Convention), Status of 189 (9th Cir.1988). The “clear probability” 28, 1951).7 (July U.N.T.S. 150 inquires standard likely whether it is “more An qualifies alien discretionary than not that the alien subject [will] granting relief under section persecution.” Stevic, 467 U.S. at 208(a) INA, codified at 8 U.S.C. 2493; Blanco-Lopez, 858 F.2d at S.Ct. at 1158(a), if he is a § within the may The standard be satisfied meaning 101(a)(42) of INA, section alien’s testimony, own credible and inde 1101(a)(42). codified at 8 U.S.C. That § pendent, persecu corroborative evidence of section, part, in relevant defines a is unnecessary light in of such credible as: testimony. Blanco-Lopez, 858 F.2d at 533. (A) any person any who is outside Although asylum withholding country of person’s ..., such nationality deportation usually relief are sought and who is unwilling unable or to return simultaneously, the two forms of relief dif to, and is unable or unwilling to avail fer in respects. several Withholding of himself or protection of, herself of the deportation mandatory once an alien es country persecution because of or a eligibility tablishes granting but the asy well-founded persecution fear of on ac- lum discretionary remains even after he race, count of religion, nationality, mem- Compare 8 U.S.C. eligibility. establishes bership particular in a group, social or 1253(h) with 8 U.S.C. 1158(a); gen see § § political opinion.... erally Fonseca, Cardoza 480 U.S. at 428 n. 1101(a)(42)(A).8 U.S.C. § 6, 107 S.Ct. at 1211 n. 6. The benefits also The withholding deportation provision, differ. Withholding deportation only 1253(h), 8 U.S.C. mandates that protects no alien § an alien from to a shall deported country specific which his country asylum while him allows or her life or freedom would be threatened adjusted have his status to that of a lawful of five Fonseca, permanent enumerated resident.9 Cardoza statutory reject construction and must admin- 8. The adopted by Congress definition of istrative contrary constructions which are section, aslyum and the bases of harm congressional 421, clear intent.” 480 U.S. 446- section, enumerated in the are vir- 48, 1207, 1220-21, 107 S.Ct. 94 L.Ed.2d 434 tually "refugee” identical the definition of (1987) (quoting Chevron U.S.A.Inc. v. Natural Fonseca, the 1951 Convention. Cardoza Council, Inc., 837, Resources 467 U.S. Defense 436-37, U.S. at 107 S.Ct. at 1216. 9, 2778, 9, 843 n. 104 S.Ct. 2781 n. 81 L.Ed.2d (1984)). provides strong 9. This incentive for aliens to seek relief in addition to 7. The party United States is not a to the 1951 Convention. go no then we need statutory grounds, 1211 n. 6 the 6, at n. 107 S.Ct. at 428 480 U.S. Dec. further. Salim, I & N (quoting Matter of (1982)). The clear 311, 315 Salva that the The BIA determined required for withhold standard

persecution cannot constitute conscription policy doran to meet more difficult deportation is ing of to all applies equally persecution because re standard fear the well-founded than race, reli regard to without Salvadorans Fonseca, 480 asylum. Cardoza quired membership particu in a nationality, gion, 1222; at 107 S.Ct. at U.S. opinion. We group political or social lar 2498; at Stevic, 467 U.S. disagree. Blanco-Lopez, Conscription & Persecution ANALYSIS weight great gave The BIA issues: primary four presents appeal This the Salva facially neutral characteristics the Salvadoran (i) application whether near conscription policy.10 Because doran perse- to the Cañases policy appear fa conscription policies ly all (ii) consci- INA; whether cution under reasoning neutral, effec the BIA’s cially qualify for may objectors entious policy can ever tively means no such relief; (iii) withholding of meaning of within result requiring BIA erred whether elemen ignores an INA. Such a result and motive intent to demonstrate States constitutional tary tenet of United govern- by the Salvadoran persecute facially neutral law, namely, (iv) the merits ment; and infringe may impermissibly nonetheless to relief. entitle them claims pers Cañases’ groups of rights specific upon the issues seriatim. these address partic deemed This tenet has been ons.11 religion is conc important

ularly where I erned.12 Yoder, the example, For in Wisconsin deporta- withholding of asylum and Both regulation that “a Supreme Court wrote cloth the common cut from

tion relief applica- may, face upon its neutral or persecution, Absent persecution. tion, the constitutional race, offend nonetheless it, of alien’s fear of neutrality if it requirement membership par- in a nationality, religion, reli- of the free exercise unduly burdens opinion, an political group, or social ticular 1526, 220, 205, 92 S.Ct. 406 U.S. gion.” form of re- for either qualify cannot alien Similarly, the (1972). 15 1535, L.Ed.2d 32 conscrip- Here, application if of the lief. personal exempted has Court Supreme amount does not policy from religious motivations born choices or more account of one persecution suggest States that I.N.S., United we do not While Artiga v. Turcios See deportation relief. binding upon the Salvado- law is 720, (9th Cir.1987). constitutional F.2d 724 829 believe government, we do ran analysis of jurisprudence is relevant States opinion, BIA stated: page 12 of its 10. At refugee Here law. States new issues United that the respondents not also do claim [t]he are enti- solely we consider applied conscription are laws ... Salvodoran refu- States under United to relief afforded tled upon an discriminates based in a manner that gee law. “race, nationality, religion, mem- individual’s politi- group, or bership particular social in is at work principle also Although the opinion." cal cases dif- jurisprudence, those equal protection 15, Similarly, page BIA stated: at religion cases crucially freedom fer position of the person in the reasonable [A] requires equal protection clause a re- might persecution for respondents fear Village E.g., discriminatory intent. proof of but would perform service fusal to Dev., Housing Metropolitan Heights Arlington v. punished on had been he not believe that 563-66, 555, 265-70, 252, 50 S.Ct. 97 429 U.S. where beliefs account his v, Davis, (1977); Washington 426 violators, L.Ed.2d 450 applied to all penalties same regardless 2040, 2047, 229, 239, L.Ed.2d 48 S.Ct. 96 U.S. refusal to for the the reasons (1976). 597 serve. 724 regula-

otherwise valid and neutral state Although the BIA considered the E.g., Bd., Thomas v. Review tion. 450 U.S. provisions, relevant Handbook it dismissed 707, 1425, (1981) 67 624 L.Ed.2d ambiguous them as dispositive.13 and not (Jehovah’s employment Witness entitled to We disagree. The unambig Handbook benefits job weapons when he left plant uously supports the Cañases’ claims. religious convictions); Sherbert v. due Verner, 1790, 374 U.S. 83 S.Ct. Objectors Conscientious & Persecution (1963) (Seventh L.Ed.2d Day Adventist published by Handbook is the Office religion prevented whose Saturday work on High United Nations receiving employment barred from Commissioner ben- (UNHCR) efits). for Refugees for the purpose of providing guidance governments about Applying principle in these embodied “procedures and determining criteria for cases, we conclude mere facial refugee status.” UN Handbook Preface neutrality of the requirements Because for establish- preclude does not it from amounting ing status, prerequisite persecution under the INA. Whether gaining asylum relief, are identical those in given depends results case for establishing entitlement on the circumstances and characteristics deportation,14 the Handbook’s instruc- the affected aliens. We next consider the tion is useful in determining asylum both circumstances and characteristics of the af- claims. fected aliens this case. Both Supreme Court and this court II have looked to guidance the Handbook for The Cañases application assert determining status, and consider conscription policy to them results in it to be E.g., subject. authoritative on the persecution because of religion’s re- Fonseca, Cardoza 480 U.S. at 438-39 & n. quirement pacifism. They argue that (Handbook 107 S.Ct. at 1216-17 22& n. and withholding provides “significant guidance in constru- provisions afford relief to aliens such as Turcios, Protocol”); Artiga ing F.2d genuine religious, themselves whose moral (using procedures Handbook in evalu- or other beliefs dictate ating impact of alien’s false statements objectors ser- upon refugee status); Hernandez-Ortiz vice. I.N.S., (9th Cir.1985) (Handbook’s specific provision guidance No in determining im- made for consci- objectors puted political entious within McMullen v. opinion); or INA the UN Protocol with which the Cir.1981) and with- holding provisions (citing are meant proposition to conform. Handbook for that refu- Cañases, however, The gees ability contend that are limited in present consci- to evi- objectors entious are nevertheless dence of persecution). encom- BIA The looks also passed within the relief afforded those to the E.g., Mat- guidance. Handbook for provisions. They rely upon the UN Hand- ter Vigil, (BIA 1980); Int. Dec. 3050 of support to argument. book their A.G., Matter (BIA 1987); Int. Dec. 3040 of 13. We note that the IJ ing Refugee declined to follow Program: the UN Oversight Hearings U.S. published Handbook because it prior had been Immigration, Before the Subcommittee on Ref- passage Refugee the to concern was of the 1980 Act. The IJ's ugees, and International Law of the House unfounded, however, Comm, because Con- Judiciary, Cong., the on 97th Sess. 1st gress knowledge had of the standards contained (1981) (Memorandum from Theodore B. in the UN passed Handbook at the it time the Olson, General, Attorney Assistant of Le- Office Refugee Act. See M.A. A26851062 v. U.S. Counsel, gal Crossland, to David General Coun- (4th Cir.1988). n. 214-15 sel, Immigration Service)). and Naturalization Justice, Department too, The of has noted the Congress likelihood that the intended standards Compare 1253(h) 8 U.S.C. § with 8 U.S.C. the within pretive guide UN Handbook to serve as an inter- 1101(a)(42). § Refugee (cit- to the 1980 Act. Id. “may accord- respondents be (BIA as the such Acosta, Int. Dec. 2986 Matter of protocol. refugee under the ed status” 1985). omitted). ap- (footnotes paragraphs Opinion at BIA relevant Handbook The entitled a section heading of pear under paragraph 172 This construction military avoiding persons “Deserters the burden of upon imposes 167-174. paragraphs service,” include to demonstrating previous difficulties due em- toto, section this entire read in When they can religious before convictions their military perform to refusal that phasizes reli refugee on basis gain status genuine reasons service a Imposition of such gious persecution. refugee sta- a may be basis conscience preclude illogical as would is burden tus.15 time reli experiencing persons first those 172 reads: paragraph example, For refugee gaining persecution from gious military service perform Refusal to sen reading of the last A natural status. convic- may also be based other diffi evidence of tence indicates that to show is able applicant If an tions. religious persecu stemming culties genu- are religious convictions his that such claim but lack of a buttress are not convictions ine, and that such it. does bar evidence country in his by ... into account taken ambiguous, it if this Even sentence military ser- perform him to requiring liberally, not restric- should be construed a claim establish vice, may he be able paragraph light body tively, in would, a claim refugee status. Such example, For relevant sections. other by any additional course, supported be there are cases states that paragraph 170 his fami- applicant or that the indications perform necessity to which “the due difficulties may have encountered ly claim ground for a may the sole service religious convictions. their i.e., can status, person when last sen- read the apparently BIA The ser- performance that the show upon as a limitation paragraph 172 tence his required participation have vice opined: It paragraph. of the rest contrary his military action make show- did not respondents convictions, or religious or moral political, had “en- family members ing that of conscience.” reasons valid be- in El Salvador difficulties” countered BIA’s persuasive the Nor do we find Thus, religious beliefs. cause paragraph Handbook that conclusion argument is respondent’s core of left this issue be mandates pro- “refugees” under they are rath- governments legislation individual ob- they are conscientious tocol legal rights being question than er from a nation with who come jectors sim- Paragraph 173 Protocol.16 under decline military service. We compulsory granting of suggests that ply con- refugee definition construe the objectors is all the status in such a broad protocol tained growing light reasonable more has ad- manner, although the UNHCR recognition law of in international persons trend position vised exempted from mili- of conscience sons upon dislike of the mere Only refusal based service, entirely subject to their rejected or tary as either fear of combat is service or civilian) (i.e. service. refugee performing ¶ status. See Handbook for alternative basis legislation or admin- of such The introduction Paragraph 173 reads: subject the regulations has also been istrative per- objection question to whether as agen- by international of recommendations of con- forming military for service reasons developments, it light of these the cies. In give to refu- to a valid claim can rise science gee States, Contracting open to the would light also be considered status should object to persons who grant status developments in field. An recent of more increasing genuine rea- military service for performing introduced of States have number of conscience. sons regulations legislation or administrative omitted). (footnote genuine rea- whereby persons can invoke who Thus, objector standard, status. it too The BIA has utilized a similar supports the Cañases’ claims.17 stating that a persecu- well-founded fear of tion is established applicant when an conclude that the BIA We erred as that a person reasonable in his “show[s] a matter determining of law in that consci persecution.” circumstances would fear objectors punishment entious who face as a Mogharrabi, Matter Int. Dec. 3028 at 9 perform result of their refusal (BIA 1987).18 persecution service cannot demonstrate meaning within the of the INA. A consci of these standards re Neither objector entious is one whose actions are quires asylum applicant an the establish governed conscience, by persecution persecutor’s intent or motive. Intent or arises whenever that conscience over persecute motive to merely one relevant by punishment come force or meted out for analysis asylum consideration of an betray the refusal it. We hold that claim. E.g., Lazo-Majano v. punishment objector of a conscientious for 1435; Hernandez-Ortiz, comply refusal to with a of mandato Here, however, at 516. the BIA trans ry conscription may persecution amount to formed these relevant meaning INA, requirem within factors into of the if the re upon genuine political, fusal is based ents.19 reli gious, convictions, or genu moral or other example, page For opinion, 14 of its

ine reasons of conscience. says: the BIA [Although respondents may view

Ill any penalty receive for their The Cañases applied contend the BIA an punishment refusal to serve as for their assessing incorrect standard in their claims religious beliefs, we do not consider that required when it the Cañases to demon- punishment persecution, to constitute strate persecute motive or intent to on the within meaning Refugee Act part government. of the Salvadoran We Act, interpreting cases agree. showing absence govern- ment's imposing motivation Intent & Motive to Persecute punishment respon- stems We have stated previously that a dent’s .... beliefs showing of requires well-founded fear ex added.) (Emphasis amination of both the seeker’s sub page On it states: jective persecution fear of as well as an respondents Since have not shown that objective examination of the nature of the government is inclined articulated reason underlying the fear. persecute Jehovah’s Witnesses or that Rodriguez-Rivera, 848 F.2d at 1001. In government short, respon- is aware of the subjective component requires religious beliefs, the alien’s fear dent’s to be while the objective component requires presumably punish would respon- the fear be reasonable. Id. at 1003. just punish dents as it other correctly point The Cañases also establishing out that fear” standard for claim paragraph posed 173 has never before an ob- separate and did not devote consideration application stacle to the pro- BIA’s of Handbook ap- claim. This visions to claims draft resisters. proach appropriate petitioner was because if a satisfy cannot dard, the easier well-founded fear stan- express opinion 18. about whether the certainly satisfy then he cannot the more person” BIA’s"reasonable standard is consistent difficult clear stan- two-part with our Rodriguez- test articulated in required deportation. dard Rivera, 848 F.2d at 1001. That issue is not (9th v. Diaz-Escobar 1491 before us. Cir.1986). opinion primarily The BIA's 19. addressed the Cañases met the "well-founded undisputed. are the facts purpose comply with to who refused Salvadoran Dep’t. v. Immi- Maldonado-Cruz See process ... conscription Naturalization, gration & added). (emphasis Cir.1989). (9th n. 7 paragraph same sentence The last reads: not Merits respondents have regard, the this

In Salvadoran that demonstrated efficiency, we consid for In our concern fact that regard the would the more claims under first the Cañases’ er reasons religious respondents have probability of stringent clear in the serve refusal to for their depor required for standard of conscience. a but matter anything as can more standard If this difficult tation. added.) (Emphasis generous well-found met, more then the be will required for excerpts indicate that fear standard ed These Bolanos-Hernandez, demonstrate to the Cañases met a fortiori. required be BIA part of on the persecute to or motive F.2d 1322. intent rea good No government. requirement such a impose to son exists Religious Persecution A. refu fide Bona refugee claimants. upon the IJ that both record reveals problems already logistical face gees had that the Cañases BIA determined and being out to their evidence due gathering prevent which religious convictions alleged per country where side of the military service. performing from them Bolanos-Hernan See occurred. secution that the Salvadoran reveals The record also 1316, 1325 Cir. I.N.S., 749 F.2d dez exemption for no policy allows able rarely are 1984) (“authentic refugees re serve refusal to and religious reasons specific direct corroboration offer imprisonment. Un punishment intent sults proof of threats.”).20 Evidence if conscription policy, the Salvadoran hard der particularly would be motive service, do proof of refuse involve the Cañases both provide because Any reason prison. go said We have will of mind. then state persecutor’s pro position would conclude hardly likely person “[persecutors able that attesting be on account with affidavits would punishment their victims vide 1325. Id. at persecution.” his beliefs. acts that the Cañases requirement The BIA’s follow that if the Cañases The result intent or motive proof of demonstrate mili to do refuse religious beliefs unsup- was an erroneous persecute imprisonment. service, they will suffer tary re- precedent and from ported departure perse up to a clear adds This error.21 versible be religious beliefs cution Stevic, not,” likely than it is “more cause IV 2493; Blanco- atU.S. Lopez, legal the BIA’s Having corrected reli due to their imprisonment suffer applica remand errors, now could we ¶1¶167- Handbook See gious convictions. Re legal standards. identified tion of the however, case, serve in this mand opinion, 11 of in footnote suggests We note that Similarly, the UN Handbook applicants need "[ajsylum be too should not the BIA states "requirement of evidence proof ‘subjective’ intent difficulty of government’s strictly applied prove in view which an be special situation inferences can Reasonable persecute inherent applicant ... himself.” status finds ac- individual governmental or drawn 197; (applicant state- ¶ accord Handbook ¶ Although a correct statement this is tions.” as to given benefit of doubt ments should law, text of the with the at odds we find difficulty of corrobora- credibility because opinion. tion). Imputed sequences military B. of Po- either of refusal to do Persecution on Account Opinion perceived service or of a refusal to do. it. litical Matter A-G the alien in also assert that their refus- Nor did of present argue punish- evidence or perform military service be his al refusing military ment for to serve in the political opposition govern- to the viewed as Indeed, that, religious persecution. constituted argue possessors They ment. as specifically although the BIA noted imputed political opinion opposed an that is generally requirement that a is true government, exposed will be military persecution, ex- service is extra-judicial including sanctions torture ception exists in: and death. disproportion- rare those cases where a rejecting In their claim of punishment ately severe result on imputed political opinion,

account of grounds account of one of the five enu- Mat- upon BIA its earlier decision in relied in merated ... the Act.... A-G, (BIA 1987), ter Int. Dec. 3040 Id. at 6. said: Mat- rejected argument a similar This is one of those rare cases. A Salva- ter A-G. In that that a case we found prefers doran who not to serve in the mili- that he would Salvadoran who claimed tary amounting for reasons not by squads” if tortured or killed “death (for example, reasons of conscience fear returned ... had not established that combat) disproportionately does not suffer military “mere failure to serve is greater punishment when his will is over- activity the kind of which draws the at- by being forcibly conscripted. By come persons carry tention of the who out however, comparison, the Cañases suffer killings.” these disproportionately punishment severe when forced to serve because that (citations Opinion BIA at 17 and footnote service would cause them to sacrifice their omitted). religion’s principle paci- fundamental Matter A-Gof upon The BIA’s reliance fism. First, misplaced. the Cañases are enti- tled to a determination of the The Cañases’ refusal to do mili themselves, persecution of not of others. tary service because of their be I.N.S., Kovac v. 407 F.2d necessarily places posi liefs also them in a Cir.1969). summarized, merely The BIA political neutrality tion of in the Salvadoran footnote, by petition- the evidence offered Bolanos-Hernandez, civil conflict.23 Opinion ers. BIA at 16 n. 3. It drew no expression political An F.2d at 1324-25. attempt- conclusions from the evidence and neutrality expression politi is no less an analysis.22 ed no opinion cal than is the decision to affiliate Second, Matter A-G faction. Vides- distinguish- organized political with an able. That evidence Vides v. presented alien 1466-67 n. linking (9th Cir.1986) (desire a failure join to serve in the neither side A-G, with torture or Matter “political opinion”). death. Int. was “Just as a na Instead, Dec. presented 3040 at n. 7. he politi tion’s decision to remain neutral is a only general one, so is an individual’s.” Bolanos- evidence of torture and execu- cal Hernandez, tions by (citing carried out “death 749 F.2d at 1324-25 Id. squads.” Here, nearly Neutrality all of the Ca- Act of 441- U.S.C. §§ directly (1982)). ñases’ evidence relates to the con- 465 argument, govern- political At oral counsel for the statement. UNHCR Brief 31-36. argued ment that the BIA was entitled to take perspective naturally requires Such a the view judicial notice of the facts in Matter A-G. ing objection military argument reject This is nonsensical and we it. inherently political opinion. service as an Ac Bolanos-Hernandez, 1324-25; cord argu- 23. We are also influenced the UNHCR’s Vides, Vides- 1466-67 n. 2. uniquely ment that a refusal to bear arms is a opin- political imputed” on an status based clearly have the Cañases Because “on persecution held have that ion. We neutrality, it political adopted a stance perse- includes political opinion of” account us to determine only for remains opin- political only on account cution that such presented indicates the evidence holds, actually but petitioner probability ions that in a results clear a stance perse- opinions that the it does. also on account that conclude We persecution. petitioner. to the falsely attributes cutor and voluminous presented The Cañases 864, (9th INS, F.2d v. See Rivas re who persons convincing evidence INS, 777 Cir.1990); v. Hernandez-Ortiz con comply with fuse to Cir.1985). (9th 516-17 F.2d severe dan exposed to are scription policy analy- majority’s spe agree The I cannot with and death. including torture gers, however, be- p. religious persecution, earlier, supra sis of see forth were set cifics the motive it treats as irrelevant This evi cause repeated. not be and need stating that than persecutor. Rather a clear demonstrates dence persecuting motive political persecutor’s imputed account on majori- cited insignificant, refusal cases the Cañases’ opinion because opposite proposition. See support the likely ty than “more military will in the serve INS, Lazo-Majano sanctions. v. extrajudicial them to subject not” Cir.1987) persecuted “for (petitioner vic, 467 U.S. Ste Hernandez-Ortiz, opinion”); political her 2493; Blanco-Lopez, oppres- (“persecution” at 516 CONCLUSION aof on individuals “because sion inflicted to- persecutor will not that the difference established record We hold on also lerate”). conclusion majority’s and with- qualify for account of” statutory “on with the conflicts deportation relief holding of un- clearly to the refers language, which military is based refusal to serve per- behind the or reasons derlying motives and because conscience reasons of 1101(a)(42)(A), 8 U.S.C. secution. See §§ likely than not sub- will more such refusal 1253(h)(1). possibly and imprisonment, ject them to reli- of their death and torture opinion. imputed political and

gious beliefs part upon holding large

We base UN Handbook provisions

relevant status granting of urge the INC., ENERGY, and In re NUCORP coun- objectors when Debtors, Debtors. Affiliated exemp- conscription policy allows try’s military service and tions or alternatives MILCHEM, INC., Delaware perform ser- refusal when the Appellant, corporation, of con- genuine reasons upon is based vice science. Co-Liquidating FREDMAN, Milton asy- denial the BIA’s REVERSE Liquidating Nucorp Trustee relief lum Trust, Appellee. deporation instruct No. 89-55219. the ease REMAND granted. We relief be Appeals, with discretion BIA to exercise its States Court asylum relief. Ninth Circuit. respect to the 7, 1990. March Argued and Submitted LEAVY, Judge, special Circuit 26, 1990. April Decided concurrence: opinion in Part IV.B I concur qualified holds that

which withholding of

Case Details

Case Name: Jose Roberto Canas-Segovia Oscar Iban Canas-Segovia v. Immigration and Naturalization Service

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 24, 1990

Citation: 902 F.2d 717

Docket Number: 88-7444

Court Abbreviation: 9th Cir.