Canas-Segovia v. I.N.S.

• Decision Date: 24 April 1990
• Docket Number: No. 88-7444,CANAS-SEGOVIA,88-7444
• Citation: 902 F.2d 717
• Parties: Jose Roberto; Oscar Iban Canas-Segovia, Petitioners, * v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 717

902 F.2d 717

58 USLW 2637

Jose Roberto CANAS-SEGOVIA; Oscar Iban Canas-Segovia Petitioners, ^* v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-7444.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 12, 1989.

Decided April 24, 1990.

Karen Musalo, University of San Francisco Law Clinic, San Francisco, Cal., for petitioners.

Allen W. Hausman, Office of Immigration Litigation, Washington, D.C., for respondent.

Charles R. Dougherty, Neil V. McKittrick, Boston, Mass., Paul Hoffman, David Weissbrodt, Los Angeles, Cal., for Amnesty Intern. U.S.A., amicus curiae.

Guy S. Goodwin-Gill, Susan Timberlake, United Nations High Com'r for Refugees, Washington, D.C., Ralph G. Steinhardt, George Washington University Nat. Law Center, Washington, D.C., for amicus curiae.

Petition for Review from the Board of Immigration Appeals.

Before WRIGHT, HUG, and LEAVY, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

We consider whether El Salvador's forcible conscription policy amounts to persecution under the Immigration and Nationality Act (INA) when applied to conscientious objector Jehovah's Witnesses. Both the immigration judge (IJ) and Board of Immigration Appeals (BIA) answered this query in the negative when they denied asylum and withholding of deportation relief to petitioners Jose and Oscar Canas-Segovia. We now REVERSE and REMAND with instructions to grant the requested relief.

BACKGROUND

Jose and Oscar Canas-Segovia (the Canases) are brothers and natives of El Salvador whose religious beliefs bar them from participating in military service. Both were introduced to the Jehovah's Witnesses faith as children and reared in a family setting where most family members either already were Jehovah's Witnesses or studying to be baptized into that faith. The Canases have studied the faith since their midteens, with the goal of becoming baptized and consider themselves to be Jehovah's Witnesses. The tenets of their faith prohibit them from participating in military service of any kind.

El Salvador presently has a policy of mandatory military service for all males between the ages of 18 and 30. The Salvadoran policy does not exempt conscientious objectors, on religious grounds or otherwise, and offers no alternatives to military service. The legal penalties for resisting conscription range from six months to 15 years imprisonment, depending upon individual circumstances. Fear of this policy caused the Canases to flee El Salvador at the respective ages of 16 and 17.

The Canases entered the United States illegally on January 26, 1985. Two days later, they received orders to show cause why their illegal entry should not subject them to deportation. At a joint deportation hearing held in San Francisco on December 16, 1985, they submitted petitions for asylum pursuant to section 208 of the INA, codified at 8 U.S.C. Sec. 1158(a). ¹ Their petitions raised these grounds for asylum: (1) forcible conscription in violation of their religious beliefs amounted to religious persecution, (2) refusal to serve in the military, for any reason, would expose them to extrajudicial sanctions including torture and death, and (3) refusal to serve in the military could cause them to be viewed as political enemies of the government and again expose them to extrajudicial sanctions. Pursuant to 8 C.F.R. Sec. 208.3(b), the IJ automatically considered the petitions also as requests for withholding of deportation under section 243(h) of the INA, codified at 8 U.S.C. Sec. 1253(h).

In support of their petitions, the Canases presented extensive evidence about the Salvadoran conscription policy and the consequences of refusing to submit to it. A few examples will suffice. Jose Canas testified that a friend who had fled from the military and returned to his neighborhood was taken away and not seen again. An affidavit was presented from an eyewitness to the extrajudicial torture of an Army deserter. The eyewitness, a conscript himself, first heard army officials accuse the deserter of being an antigovernment guerrilla and then watched as both of the deserter's arms were chopped off.

Affidavits and declarations were also presented by former Salvadoran military officers, a Red Cross physician working in the country, and members of the clergy working there. An affidavit from an expert on the human rights situation in El Salvador, George McHugh, stated that "[t]he government routinely rounds up youths at gun point. Those who refuse to join the armed forces for reasons of conscience are tortured and killed." ²

The IJ denied the petitions for asylum and withholding of deportation and granted the Canases voluntary departure. In an oral decision, he reasoned that the Canases could not establish either a clear probability of persecution ³ or a well-founded fear of persecution ⁴ because they had failed to show that Jehovah's Witnesses are singled out by the Salvadoran government for persecution because of their religious beliefs.

The IJ considered a document from the United Nations High Commissioner for Refugees Office (UNHCR) in support of the Canases' claim. It cited to the UN Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979) (Handbook). The IJ dismissed the document, saying that the Handbook was written before passage of the Refugee Act of 1980. Noting also that 39 other nations fail to provide for conscientious objector exemptions, he concluded that the Salvadoran policy of mandatory conscription could not amount to persecution because it applied equally to all Salvadorans without regard to religious beliefs. The Canases then appealed to the BIA.

That board affirmed the denial of asylum and withholding. ⁵ It emphasized that the Canases had failed to prove intent on the part of the Salvadoran government to single out Jehovah's Witnesses for persecution, and determined the Handbook provisions were not dispositive.

It also rejected the Canases' argument that refusing to serve in the military would impute to them a political opinion hostile to the government, thereby exposing them to governmental reprisals including torture and death. Rejection of this argument was based upon a prior BIA decision in which a petitioner had failed to establish that mere failure to serve in the military would subject him to the attention of Salvadoran death squads.

This appeal followed.

STANDARD OF REVIEW

Our review is confined to the decision of the BIA. If its determination was correct, then any error by the IJ is harmless. Rodriguez-Rivera v. U.S. Dep't. of Immigration & Naturalization, 848 F.2d 998, 1003 (9th Cir.1988).

We review factual findings underlying the BIA's denial of asylum and withholding of deportation relief under the substantial evidence standard. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988); Artiga Turcios v. I.N.S., 821 F.2d 1396, 1398 (9th Cir.1987). The facts in our case were undisputed and the BIA decision turned solely on legal questions about the relevant statutory requirements. Our review is de novo. Desir, 840 F.2d at 723; Lazo-Majano v. I.N.S., 813 F.2d 1432, 1434 (9th Cir.1987). ⁶

STATUTORY FRAMEWORK

Both the asylum and withholding of deportation provisions were established by the 1980 Refugee Act in which Congress sought to bring United States refugee law into conformity with the United Nations Protocol Relating to the Status of Refugees (UN Protocol), 19 UST 6223, TIAS No. 6577. See generally I.N.S. v. Stevic, 467 U.S. 407, 421, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984); I.N.S. v. Cardoza Fonseca, 480 U.S. 421, 436-37, 107 S.Ct. 1207, 1216, 94 L.Ed.2d 434 (1987). The UN Protocol, to which the United States acceded in 1968, binds parties to the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees (1951 Convention), 189 U.N.T.S. 150 (July 28, 1951). ⁷

An alien qualifies for discretionary granting of asylum relief under section 208(a) of the INA, codified at 8 U.S.C. Sec. 1158(a), if he is a refugee within the meaning of section 101(a)(42) of the INA, codified at 8 U.S.C. Sec. 1101(a)(42). That section, in relevant part, defines a refugee as:

(A) any person who is outside any country of such person's nationality ..., 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 political opinion....

8 U.S.C. Sec. 1101(a)(42)(A). ⁸

The withholding of deportation provision, 8 U.S.C. Sec. 1253(h), mandates that no alien shall be deported to a country in which his or her life or freedom would be threatened on account of any of five enumerated grounds. The section states in relevant part:

The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. Sec. 1253(h)(1).

An alien becomes eligible for withholding of deportation by demonstrating a "clear probability of persecution" on account of one of these five grounds. Stevic, 467 U.S. at 424, 104 S.Ct. at 2498; Blanco-Lopez v. I.N.S., 858 F.2d 531, 533 (9th Cir.1988). The "clear probability" standard inquires whether it is "more likely than not that the alien [will] be subject to persecution." Stevic, 467 U.S. at 414, 104 S.Ct. at 2493; Blanco-Lopez, 858 F.2d at 533. The standard may be satisfied by the alien's own credible testimony, and independent, corroborative evidence of persecution is unnecessary in light of such credible testimony. Blanco-Lopez, 858 F.2d at 533.

Although asylum and withholding of deportation relief are usually sought simultaneously, the two forms of relief differ in several...