Foroglou v. I.N.S., 98-1557

• Decision Date: 05 January 1999
• Docket Number: No. 98-1557,98-1557
• Citation: 170 F.3d 68
• Parties: Emmanuel J. FOROGLOU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 68

170 F.3d 68

Emmanuel J. FOROGLOU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-1557.

United States Court of Appeals First Circuit.

Heard Jan. 5, 1999.

Decided March 5, 1999.

Pauline M. Schwartz with whom Paul Shearman Allen & Associates was on brief for petitioner.

John M. McAdams, Jr. with whom Frank W. Hunger, Assistant Attorney General, Department of Justice, Civil Division, and Karen Ann Hunold, Senior Litigation Counsel, Office of Immigration Litigation, were on brief for respondent.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

In this immigration appeal, the background facts are not disputed. Emmanuel J. Foroglou ("Foroglou"), a native and citizen of Greece, entered the United States on a student visa in August 1983, to pursue graduate studies in economics at Brown University. When he left Brown to teach at Utica University in 1987, his visa status was changed to H-1B, a non-immigrant professional visa. However, when Foroglou left his job at Utica in 1989 (and thus became ineligible for an H-1B visa), he did not inform the INS.

After working in Chicago for several years, Foroglou moved to Houlton, Maine. Shortly after he moved to Houlton, he came to the attention of the Immigration and Naturalization Service. In October 1993, Foroglou was served with an order to show cause why he should not be deported--the beginning of deportation proceedings. See 8 C.F.R. § 242.1 (1993). Foroglou did not dispute the facts as to entry and visa status but claimed refugee status based on his objections to the military draft laws of Greece. He has no family or relatives in the United States.

Shortly after entering the United States, Foroglou, professedly an atheist, began to develop a belief in Objectivism, a philosophy developed by the twentieth-century author Ayn Rand. He says that he now believes that the draft "negates man's fundamental right to life and established [sic] the fundamental principle of statism: that a man's life belongs to the state, and that the state may claim it by compelling him to sacrifice it in battle." Ayn Rand, Capitalism: The Unknown Ideal, 227 (1967) (quoted in Foroglou's application for asylum). Although he is opposed to any military draft, Foroglou is not opposed to war or fighting; his beliefs are only concerned with the fact that the draft is involuntary.

Based on the administrative record in this case, it appears that under Greek law, all males between the ages of 18 and 50 are subject to military service for 24 months. Since 1977, draftees may choose instead to serve, for twice the usual amount of time, in non-combatant roles. In addition, in 1997, an alternative civilian service option was instituted for conscientious objectors; it is about 12-18 months longer than combatant military service, and Foroglou would probably not qualify for this alternative because he is not opposed to the use of weapons.

In 1980, Foroglou had received a 10-year student deferment of military service but he apparently did nothing in 1990 to renew it or to declare himself a conscientious objector. However, after the INS served its show cause order, Foroglou says that he wrote to the Greek Consulate in May 1994, to request a passport to replace the one being held by the INS and to declare himself a conscientious objector. The Greek consul responded that it could not issue Foroglou a passport until he had completed his military service and that Foroglou would have to deal with his local draft office (in Greece) about declaring himself a conscientious objector.

The first hearing on Foroglou's deportation was held on December 1, 1993, and thereafter continued so Foroglou could file applications for political asylum and suspension of deportation. See 8 U.S.C. §§ 1158, 1253(h). Foroglou filed these applications and also applied for voluntary departure in lieu of deportation, see 8 U.S.C. § 1254(e). Testimony, consistent with the facts described above, was completed on December 1, 1994. The hearing was reconvened again on September 6, 1995, and Foroglou moved to withdraw his application for suspension of deportation. The immigration judge granted his motion with prejudice and proceeded to present his decision.

In the decision, the immigration judge found that Foroglou had not established that he had a well-founded fear of persecution on account of his religion, race, nationality, membership in a particular social group, or political opinion if he were to return to Greece, or that any punishment for failing to comply with Greek conscription law would be disproportionately severe on account of any one of these factors. He denied Foroglou's application for asylum, but granted Foroglou voluntary departure within 30 days in lieu of deportation.

Eight days later, Foroglou filed a notice of appeal with the Board of Immigration Appeals. In February 1998, before his appeal was heard, Foroglou filed with the Board additional evidence and a motion to remand to the immigration judge. The new evidence related to the new 1997 civilian service option and Foroglou's claim that he would not qualify for this alternative service. On April 30, 1998, the Board dismissed Foroglou's appeal, denied his motion to remand, and again granted him 30 days in which to voluntarily depart. Foroglou filed a petition for review with this court and moved for a stay of deportation, which was granted on May 21, 1998.

On this appeal, we begin with the Board's denial of Foroglou's application for political asylum. Its factual determinations are conclusive if "supported by reasonable, substantial and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4); see also Gebremichael v. INS, 10 F.3d 28, 34 (1st Cir.1993). The Board's application of the legal standards to specific facts is also entitled to deference. See Ravindran v. INS, 976 F.2d 754, 758 (1st Cir.1992). Abstract rulings of law are subject to de novo review. See Maldonado-Cruz v. U.S. Department of Immigration and Naturalization, 883 F.2d 788, 791 (9th Cir.1989).

The statute governing asylum, 8 U.S.C. § 1158(b), states that an alien can be granted asylum, in the discretion of the Attorney General, if the alien is a "refugee" within the meaning of 8 U.S.C. § 1101(a)(42)(A), namely, someone who is unable or unwilling to return to his home country because of "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." The Attorney General does not resist review of the Board's determination as to whether an applicant meets any of the five enumerated grounds. ¹

To qualify for asylum, the applicant must show that he actually fears persecution (a subjective issue), and that there is a "reasonable possibility" that persecution would actually occur (an objective issue), Ravindran, 976 F.2d at 758, but no more than this is required. See Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. If the applicant has shown no personal threat against him, he must show that there is a practice of persecution against a group or category of persons within the five enumerated grounds, and that he is identified with that group. See 8 C.F.R. § 208.13(b)(2)(i); Meguenine v. INS, 139 F.3d 25, 28 (1st Cir.1998).

It is not persecution for a government to require military service of its citizens. See Krastev v. INS, 101 F.3d 1213, 1217 (7th Cir.1996); see also Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1st Cir.1990). However, a person may qualify as a refugee if he is singled out for service because he is a member of an enumerated group or if--when he refuses service--he is subject to disproportionate punishment on account of his group membership. See M.A. A26851062 v. INS, 899 F.2d 304, 312 (4th Cir.1990) (en banc); Matter of R--R--, 20 I. & N. Dec. 547, 551 (1992).

In this case, Greek law subjects all men to military service. There is no evidence that the Greek government has threatened Foroglou with military service because he is an Objectivist, nor is there any evidence that the Greek government targets Objectivists who refuse to serve for disproportionate punishment. According to Foroglou's submissions, Amnesty International apparently believes that the Greek government has disproportionately punished Jehovah's Witnesses who refuse the draft, but Foroglou is not a Jehovah's Witness.

Foroglou's main argument on this appeal is built on two related premises: first, that under the federal statutes, it is "persecution," without more, for a country to refuse conscientious-objector status to a bona fide conscientious objector and instead to punish the objector for refusing to serve; and second, that a belief in Objectivism is as good a...