MALDONADO-CRUZ

Interim Decision #3041

MATTER OF MALDONADO-CRUZ

In Deportation Proceedings

A-27549626

Decided by Board January 21, 1988

(1) A threat to harm or kill a deserter from a guerrilla organization operating in a

country does not constitute persecution under the Refugee Act of 1980, Pub. L.

No. 96-212,94 Stet. 102.

(2) In analyzing a claim of persecution made in the context of a civil war, it is neces-

sary to examine the motivation of the group threatening harm.

(3) The threat to harm a deserter from the guerrilla organization is part of a mili-

tary policy of that group, inherent in the nature of the organization, and a tool of

discipline; thus, the threat is neither an act of persecution nor evidence of perse-

cution by the guerrilla organization on account of political opinion, or any other

ground set forth in the Refugee Act of 1980,

(4) The holding of Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984), is not

applied outside of the Ninth Circuit.

(5) It is not persecution for the government of a country to investigate and detain

individuals suspected of aiding or being a member of a guerrilla organization.

CHARGE:

Order: Act of 1952 — Sec. 241(aX2) U.S.C. § 1251(uX2)] —Entered without inspce-

' don

ON BEHALF OF RESPONDENT: ON BEHALF OP SERVICE:

Stevan At Rocard-hol, Require James Ray Blinn, Jr.

Wilmer, Cutler and Pickering General Attorney

2445 M Street, N_W.

Washington, D.C. 20037-1420

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Concurring

Opinion: Heilman, Board Member.

On January 14, 1987, the immigration judge found the respond-

ent deportable as charged, denied his applications for asylum and

for withholding of deportation under sections 208 and 243(h) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h)

(1982), and denied him the privilege of voluntary departure in lieu

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Interim Decision #3041

of deportation. The respondent has appealed from that decision.

The appeal will be dismissed.

The respondent is a native and citizen of El Salvador who con-

ceded that he entered the United States without inspection on Oc-

tober 21, 1986. Accordingly, his deportability is established by

clear, unequivocal, and convincing evidence. Woodby v. INS, 385

U.S. 276 (1966). The respondent agrees that the issues presented on

appeal are his eligibility for asylum and withholding of deporta-

tion.

THE PROCEDURAL CONTENTIONS

We first address the respondent's procedural arguments raised

on appeal. The respondent claims that, due to the conditions of de-

tention and the lack of "consistent Spa riish speaking counsel and

translators," he was unable to communicate "significant facts" con-

cerning his asylum application. We fmd no evidence in the record

to support the respondent's contention. The respondent was repre-

sented by counsel prior to, during, and subsequent to his deporta-

tion hearing. Moreover, on appeal, the respondent's case was fully

briefed and argued by his counsel before the Board. During the de-

portation hearing a Spanish-language translator was utilized. We

have considered the affidavits of the respondent and his counsel

and we are convinced that he was given a full and fair opportunity

to present his asylum claim. We find no prejudice to the respond-

ent. Matter of Santos, 19 I&N Dec. 105 (BIA 1984); see also Patel v.

INS, 803 F.2d 804 (5th Cir. 1986).

THE RESPONDENT'S PERSECUTION CLAIM

We also find that the immigration judge properly denied the re-

spondent's applications for asylum and -withholding of deportation.

The respondent bears the evidentiary burdens of proof and persua-

sion in any application for withholding of deportation under sec-

tion 243(h) or asylum under section 208 of the Act. Matter of

Acosta, 19 I&N Dec. 211 (BIA 1985); 8 C.F.R. §§ 208.5, 242.17(c)

(1988). The respondent must establish the facts underlying his

claims for such relief by a preponderance of credible, probative evi-

dence. He must also establish that the facts proven satisfy the stat-

utory standards of eligibility for these forms of relief. Matter of

Acosta, supra.

To be eligible for withholding of deportation pursuant to section

243(h) of the Act, an alien's facts must show a clear probability of

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Interim Decision #3041

persecution in the country designated for deportation on account of

race, religion, nationality, membership in a particular social group,

or political opinion. Section 101(a)(42)(A) of the Act, 8 U.S.C.

§ 1101(aX42)(A) (1982); section 208 of the Act. The United States Su-

preme Court has determined that the "well-founded fear" standard

imposed on asylum applicants differs from the "clear probability"

standard imposed on aliens who seek withholding of deportation

and that the evidentiary burden for establishing entitlement to

withholding of deportation is greater than that imposed on aliens

who seek asylum. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).

An applicant for asylum has established a well-founded fear if he

shows that a reasonable person in his circumstances would fear

persecution. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). 1

The respondent's persecution claim consists of the following

facts. The record indicates that the respondent entered the United

States on three separate occasions, the last time being in 1985. He

claims that, sometime in 1983, he and a friend were kidnapped by

guerrillas in El Salvador. The respondent claims that, after several

days of training, he was forced to participate in a guerrilla oper-

ation against his village. During the operation, the respondent's

friend was killed by the guerrillas when he tried to escape. The re-

spondent claims to have heard of his friend's death through conver-

sations with other guerrillas. A few days later, the respondent

managed to escape from the guerrillas and went to his parents'

home, and, after spending a few hours there, he left for San Salva-

dor. The respondent claims that, while waiting for a bus in San

Salvador, he met some neighbors from his village who told him the

guerrillas had been looking for him. A short time later, the re-

spondent left San Salvador and went to Guatemala and eventually

made his way to the United States. The respondent believes that

the guerrillas will kill him for having deserted them.

The respondent further states that the military forces of El Sal-

vador will persecute him because of their "perceived political opin-

ion" that he is a member of the guerrillas.

THE CLAIM OF PERSECUTION BY THE GUERRILLAS

The first issue in the respondent's asylum claim is whether his

fear that he will be harmed or even killed by the guerrilla organi-

'In his decision, the immigration judge found certain parts of the respondent's

testimony incredible. However, he ultimately based his decision on the respondent's

failure to establish a valid persecution claim. Accordingly, we address this issue on

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Interim Decision #3041

zation he was forced to join constitutes a threat of persecution, or a

threat of some other nature not encompassed by the Refugee Act of .

1980, Pub. L. No. 96-212, 94 Stet. 102. In other words, the issue

does not involve questions of proof, but whether the harm the re-

spondent fears is on account of "political opinion" as this term is

used under section 101(a)(42)(A) of the Act. See Campos-Guardado

v. INS, 809 F.2d 285, 291 (5th Cir. 1987).

An alien who succeeds in establishing a well-founded fear of

being harmed will not necessarily be granted asylum. Thus, for ex-

ample, aliens fearing retribution over purely personal matters or

those fleeing general conditions of violence and upheaval in their

native countries would not qualify for asylum. Such persons may

have well-founded fears of harm but such harm would not be on

account of their race, religion, nationality, membership in a par-

ticular social group, or political opinion. See, e.g., Sanchez-Trujillo

v. INS, 801 F.2d 1571 (9th Cir. 1986); Contreras Aragon v. INS, 789

F.2d 777 (9th Cir. 1986); Diaz-Escobar v. INS, 782 F.2d 1488 (9th

Cir. 1986); Daily v. INS, 744 F.2d 1191 (6th Cir. 1984); Caf uujal-

Munoz v. INS, 743 F.2d 562 (7th Cir. 1984); Martinez Romero v.

INS, 692 F.2d 595 (9th Cir. 1982); Matter of Pierre, 15 I&N Dec. 461

(BIA 1975).

In Campos-Guardado v. INS, supra, the United States Court of

Appeals for the Fifth Circuit observed: "The issue reduces to

whether the political implications underlying an alien's fear of

harm rise to the level of 'political opinion' within the meaning of

the statute or whether, those conditions constitute the type of civil

strife outside the intended reach of the statute." Id. at 290. In

Matter of Acosta, supra, we observed:

[Tihe respondent did not demonstrate that the persecution he fears is "on account

of political opinion." The fact that the respondent was threatened by the guerril-

las as part of a campaign to destabilize the government demonstrates that the

guerrillas' actions were undertaken to further their political goals in the civil con-

troversy in El Salvador. However, conduct undertaken to further the goals of one

faction in a political controversy does not necessarily constitute persecution "on

account or political opinion so as to qualify an alien as a "refugee" within the

meaning of the Act.

Id. at 234.

The Ninth Circuit stated the following in Hernandez-Ortiz v.

INS, 777 F.2d 509 (9th Cir. 1985):

A clear probability that an alien's life or freedom is threatened, without any incli-

nation of the basis for the threat, is generally insufficient to constitute "persecu-

tion". . . . There must also be some evidence that the threat is related to one of

the factors enumerated in section 243(h).

Id. at 516. The court further stated:

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Interim Decision #3041

[fin determining whether threats or violence constitute political persecution, it is

permissible to examine the motivation of the persecutor; we may look to the polit-

ical views and actions of the entity or individual responsible for the threats or

violence, as well as to the victim's, and we may examine the relationship between

the two.

Id. Persecution will occur "only when there is a difference between

the persecutor's views or status and that of the victim; it is oppres-

sion which is inflicted on groups or individuals because of a differ-

ence that the persecutor will not tolerate." Id.

We believe that this formulation offers a practical approach to

analyzing claims of persecution. We are unaware of any express

discussion of this issue in the Fifth Circuit where this case arises.

We believe, however, that Fifth Circuit cases do not conflict with

the formulation in Hernandez-Ortiz v. INS, supra. Cf. Campos-

Guardado v. INS, supra.

In analyzing a claim of persecution made in the context of a civil

war, it is necessary to look to the motivation of the group threaten-

ing harm. Even though guerrillas may have the political strategy

of overthrowing the government by military means, this does not

mean that they cannot have objectives within that political strate-

gy which are attained by acts of violence, but whose motivation is

not related to any desire to persecute.

Historically, civil wars or revolutions have always contained

strong currents of violence, threats, destruction, intimidation, and

indeed ruthlessness. Individuals harmed by such violence or

threats of harm in a civil war situation are not necessarily perse-

cuted "on account of" the five categories enumerated in section

101(a)(42XA) of the Act. See Campos-Guardado v. INS, supra.

We now turn to the facts of the respondent's case in order to de-

termine whether he has established a well-founded fear of persecu-

tion on account of political opinion. The first encounter that the re-

spondent had with the guerrillas was their forced recruitment of

him. The respondent was kidnapped by the guerrillas. It does not

appear that there were any elements of persecution in this encoun-

ter. The guerrillas did not approach him to harm him because they

considered him to have characteristics the guerrillas found offen-

sive or which they wished to overcome. The guerrillas wanted him

to be a member of their group, even if his help was not provided

willingly, or at least not volunteered.

The nature of the respondent's initial encounter with the guerril-

las is important because it reveals that he was not seen as an

object of hatred. There was nothing about him which the guerrillas

considered offensive, or for which they wished to punish him. From

this we may fairly conclude that the guerrillas did not view the re-

spondent as an object of racial, religious, or political hatred;

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Interim Decision #3041

indeed, they took him into their band because he was of use to

them.

The first encounter he had with the guerrillas does not provide

any evidence of persecution. It is, however, directly relevant to the

second crucial determination, which is whether the nature of his

relationship to the guerrillas, or their perception of the respondent,

later changed in such a way as to transform him into an object of

persecution. The salient facts in this second examination are the

fact of his desertion, and the guerrillas' reaction to that act by the

respondent.

There is no evidence in the record that the guerrillas attribute

any political opinion to the respondent that they find offensive.

There is also no evidence that the guerrillas have the slightest in-

terest in the reason or reasons the respondent deserted, whether it

was dislike for the guerrillas' political platform, dislike for life on

the run, or fear of the government. The fact of the matter is that,

as far as they know, he might sympathize with the guerrillas but

have strong reasons for not wanting to be with them .

The analysis one engages in at this point hinges to a certain

extent on assumptions one may have concerning the nature of the

guerrillas' struggle occurring in El Salvador and on the nature of

guerrilla struggles in general. These assumptions, or presumptions,

are completely legitimate bases for coming to grips with the ques-

tions presented. For example, in Hernandez-Ortiz v. INS, supra, the

court based its decision in great part on a presumption that a gov-

ernment acts militarily in a particular manner:

When a government exerts its military strength against an individual or a group

within its population and there is no reason to believe that the individual or

group has engaged in any criminal activity or other conduct that would provide a

legitimate basis for governmental action, the most reasonable presumption is that

the government's actions are politically motivated.

Id. at 516.

It is entirely proper to apply a presumption in this case that a

guerrilla organization, as a military or a para-military organiza-

tion, has the need to control its members, to exercise discipline.

This is a presumption that is based on the nature of the guerrilla

organization. It is understood in El. Salvador that guerrilla groups

do not rely entirely on volunteers to man their military units. 2

2 See the 1986 Country Reports on Human Rights Practices, Joint Committee of

the Senate and House of Representatives, 100th Congress, 1st Session (1987) ("Coun-

try Reports"), which states:

The FMLN engages in kidnaping for a variety of motives: for ransom; as a for ►

of recruitment of new combatants, including children as young as 10 years of

Continued

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Interim Decision #3041

Guerrillas depend for food and other essentials on a population

which may not be inclined to actively assist them, or which may

not have the means to do so.

The guerrillas need military units to operate against the govern-

ment. To keep them as cohesive fighting units they must impose

discipline; and an important form of discipline, common to military

or Para-military organizations alike, is the punishment of desert-

ers. This is an essential element of control in a situation which is

at best difficult, and which may unravel if persons may simply

decide to leave when they choose. If, for instance, the guerrilla

group came under persistent attack, with substantial casualties, in-

dividuals might easily be tempted to desert. If sufficient numbers

did this, then the guerrilla group would cease to exist. One way to

prevent this is the threat of retaliation against anyone who deserts,

and anyone who aids the deserter. See, e.g., Office of the United

Nations High Commissioner for Refugees, Handbook on Procedures

and Criteria for Determining Refugee Status under the 1951 Con-

vention and the 1967 Protocol Relating to the Status of Refugees,

39 - 42 (Geneva, 1979) ("Handbook").

The present relationship of the respondent to the guerrillas, and

their motivation to harm him, lack any indication of persecution.

The respondent's own version of why the guerrillas were looking

for him supports our analysis. The guerrillas were looking for hina

because they were concerned that he had informed on them to the

Salvadoran -military. The respondent's lengthy statement attached

to his asylum application clearly indicates this reason. According

to the respondent, "When I was with [the gruerrillas], I had heard

them discuss attacks that they made and planned to make on sev-

eral towns in the area, and I also thought they would fear that I

age; to obtain workers to grow and cook food, obtain supplies, transport smug-

gled material, and perform other tasks.

....

The Government prohibits forced labor. The guerrillas, however, have kidnaped

peasants and forced them to cook, do laundry, and perform other tasks, as well as

to become combatants.

Clear evidence emerged in 1986 of use by the FMLN of children under the age of

15 in combat. Following one military operation, the Government rescued children,

one of whom was 14 years old and had been fighting with the FMLN for 4 years.

Other information emerged about the existence of units composed of children re-

ceiving military training for integration into combat units. Still other credible re-

porte were received of children being kidnaped for forced recruitment into the

FMLN and of their use of couriers and spotters, practices contrary to Geneva Con-

vention prohibitions against the recruiting of children into armed groups or their

participation in hostilities.

rd. at 492, 495.

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Interim Decision #3041

would inform the military of this and the location of their camp."

When the respondent escaped from the guerrillas and travelled to

San Salvador, he met a couple from his hometown. They told the

respondent that the guerrillas had come to his hometown to look

for himn "The guerrillas wanted to know whether I had gone to the

militA Ty post."

During the deportation proceedings the respondent testified that

he was afraid of the guerrillas because he deserted them. During

oral argument and in a subsequent brief, the respondent now

argues that he would be persecuted if he returned to El Salvador

due to his "political opinion of neutrality!' The respondent relies

upon _Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984). We

do not find it appropriate to apply the Ninth Circuit's decision in

that case in the Fifth Circuit, the circuit where this case arises. We

know of no Fifth Circuit case which agrees with the rationale of

Bolanos-Hernandez. Moreover, the facts of the instant case are in-

apposite to the holding of Bolanos-Hernandez. The respondent did

not establish a principled position of neutrality such as can be

found in Bolanos-Hernandez and its progeny. See, e.g., Lopez v. INS,

775 F. 2d 1015, 1016-17 (9th Cir. 1985). Rather, as we have observed,

the evidence is at variance with this contention. The respondent's

testimony and his statement attached to his Form 1-589 (Request

for Asylum in the United States) all show a fear based on his de-

sertion, not "neutrality."

The record is devoid of any evidence that the guerrillas, who ini-

tially recruited the respondent to their cause, have any motivation

to harm him because he holds views contrary to their political ob-

jectives. The threat against the respondent is consequently part of

a military policy of the guerrilla organization, inherent in the

nature of the organization, and a tool of discipline necessary to the

continued functioning of the organization_ The threat is therefore

neither an act of perSecution nor evidence of persecution by the

guerrilla organization against the respondent on account of politi-

cal opinion, or on any other ground set forth in the Refugee Act of

1980. See Matter of Acosta, supra, at 211.

This Board has previously dealt with the question of retaliation

by a political organization against an individual who had "re-

signed" from the organization and who later refused to carry out a

mission Matter of McMullen, 19 I&N Dec. 90 (BIA. 1984), aff'd,

McMullen v. INS, 788 F.2d 591 (9th Cir. 1986). The Board stated:

The record clearly shows that the PIRA uses violence and threats of violence in-

ternally to maintain discipline and order within the rank and file of its member-

ship. As such, the PIRA's use of violence against its members is essentially apo-

litical, representing an indifference to the personal views and opinions of those

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Interim Decision *3041

members who are subject to sanctions. We conclude that this internal use of vio-

lence by the PIRA does not constitute persecution within the meaning of the Act.

Id. at 7.

This characterization of the PIRA's internal operation is signifi-

cant because it was based on an extensive analysis of the volumi-

nous evidence presented at McMullen's asylum hearing. To the

extent that one can assume basic similarities between the PIRA

and the Salvadoran guerrilla organization to which the respondent

belonged, McMullen does provide a strong basis for rejecting the

view that the respondent's desertion and the guerrillas' threat con-

stitute, on the one hand, a "characteristic" of the respondent

coming within the refugee definition and, on the other hand, a re-

action to that characteristic by the guerrillas so that the threat

against him becomes an act of, or evidence of, persecution.

The respondent's problem is not that the guerrillas are motivat-

ed to hate him because of political views they "impute" to him, but

rather is that he has breached their discipline in a way that cannot

remain unpunished. They might deal with an informer or a rapist

in the same manner, if it suited their military or political needs. A

guerrilla organization may therefore have a rational basis to

punish deserters, devoid of any intent to inflict harm on account of

political opinion. There is no reason in logic or fact to find other-

wise.

The analysis applied here is, in addition, virtually identical to

that applied in the case of a deserter from a conventional military

force, for example, a deserter from the Salvadoran Army.

A country has the right to establish rules of military conduct

and to punish those who violate them. In assessing whether the

punishment meted out to an individual constitutes persecution or

prosecution, it has been consistently held that there must be proof

that the punishment is heightened by the fact the individual is of a

race, religion, or political opinion that is considered offensive by

the government. There has never been a presumption that the pun-

ishment is per se proof of the government's perception that the in-

dividual is opposed to the government, and that the government is

motivated to punish the individual on that basis. There is an im-

plicit presumption of a legitimate basis for punishment. Chao-Ling

Wang v. Pilliod, 285 F.2d 517 (7th Cir. 1960); Matter of Liao, 11

I&N Dec. 113 (BIA 1965).

TILE CLAIM OF PERSECUTION R Y THE GOVERNMENT

The respondent also contends that he will be persecuted by the

military forces of the Government of El Salvador if he is forced to

Interim Decision #3041

return there, because they will "assume" that he is affiliated with

the guerrilla group he was forced to join. We find this contention

to be without merit.

We have already observed that an armed rebellion or civil war

exists in El Salvador. See Country Reports, supra. There are operat-

ing in that country armed guerrilla organi7ations whose avowed

purpose is the overthrow of the Government of El Salvador, a gov-

ernment recognized by the Government of the United States. As

this is so, and there is no evidence in the record or elsewhere to

establish that the Government of El Salvador is anything other

than a duly constituted and functioning government of that coun-

try, it has the internationally-recognized right to protect itself

against the guerrillas who seek to overthrow it. The Government of

El Salvador, therefore, has a legitimate right to investigate and

detain individuals suspected of aiding or being a member of such

an organization. See generally Handbook, supra, para. 175, at 41.

If the Government of El Salvador has received information impli-

cating the respondent as a guerrilla, then it has the legitimate

right to seek him out and determine whether he is indeed involved

with such an organization. See Hernandez-Ortiz v. INS, supra, at

516. If a citizen of the United States is alleged to belong to a clan-

destine organization which is operating in the United States and is

engaged in violent activity to further its political goal, federal au-

thorities would properly seek him out. The Government of El Sal-

vador, too, has a legitimate right to take similar action. The re-

spondent, therefore, is not at risk of persecution for a characteristic

enumerated in section 101(a)(42)(A) of the Act. See Campos-Guar-

dado v. ma supra.

For the foregoing reasons the respondent has not shown he is eli-

gible either for asylum or withholding of deportation to El Salva-

dor. The appeal will be dismissed.

ORDER: The appeal is dismissed.

CONCURRING OPINION: Michael J. Heilman, Board Member

I respectfully concur.

The majority, in its decision, has analyzed the claim of persecu-

tion essentially under an ad hoc approach. While I agree with the

analysis and the conclusion reached, it seems to me that what is

sorely needed in asylum determinations is some form of systematic

approach, not a case-by-case analysis which seems to assume that

asylum claims should be decided separately as if each claim pre-

sented were being examined for the first time, outside of any gen-

erally applicable context.

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Interim Decision #3041

This is why I would propose a second test which could be gener-

ally applied in the context of claims made by persons coming from

countries in a state of civil war or revolution. This test would con-

sider the claim against the standards applied in determining

whether the "political offense exception" should be invoked where

an individual's extradition is sought for purposes of criminal pros-

ecution.

In my view, this appeal represents an opportunity to deal with

an important issue of a recurring nature. That issue is whether a

threat of harm from a guerrilla organization constitutes a threat of

persecution, or a threat of some other nature not encompassed by

the Refugee Act of 1980, Pub. L. No. 96-212, 94 St,at. 102. While

there has been much debate about the standard of proof necessary

to substantiate a claim of persecution, little, if any attention has

been paid to a more central issue: how to identify acts of persecu-

tion. In a great number, if not a majority of the asylum appeals

presented to this Board, the focus of the application has been on

the degree of harm which may be encountered by the applicant.

Almost no attention is paid to the context in which that harm

arises. There has been a general drift in the adjudication of asylum

cases toward a simple and superficial risk analysis, in which the

disposition of asylum claims has depended entirely upon whether

the applicant has presented a convincing case that he might be

harmed if he returned to his native land. Reduced to its most su-

perficial level this risk analysis has reached the point that any

harm which may be inflicted by a group with a political agenda is

presumed to be per se persecution on account of political opinoin.

A. The Respondent's Claim Can Also be Tested Against the

"Political Offense Exception" to Extradition.

In this instance the test would be applied to determine whether

the threat levied by the guerrillas constitutes a threat of persecu-

tion. This is a test which has a long political and legal history, and

is a determination which is neutral, factual, and consistent with

the political ethic of the United States.

Two determinations will be made. The first is a determination as

to whether a state of armed rebellion or civil war exists in the

country of claimed persecution. The second determination is wheth-

er the act of harm threatened or actually carried out is related to

or connected with the armed rebellion. The test in essence focuses

on the claimed agent of persecution, on the theory that the act of

persecution cannot exist in isolation.

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Interim Decision #3041

B. The Value and Utility of Applying This Test.

A preliminary question which should be addressed at this point

is whether it is necessary or useful to interpret the immigration

laws relating to asylum consistently with those relating to extradi-

tion. It is obvious that they are two distinct bodies of law, and it is

clearly understood that decisions in extradition cases and in

asylum or withholding of deportation cases under sections 203 and

243(h) of the Act, 8 U.S.C. §§ 1158 and 1253(h) (1982), are not res

judicata each to the other.

One substantial benefit of the application of the standards of the

"political offense" exception to extradition in considering asylum

applications lies in the fact that those standards provide a histori-

cally consistent and analytically coherent framework by which to

judge acts committed in political struggles, and so to distinguish

those that are a consequence of the mature of political struggles,

from those which are based on the desire to persecute. The "politi-'

cal offense" standard requires a factual determination to establish

the context of the act; whether or not, for instance, a state of rebel-

lion or civil war exists, and whether the act threatened is in fur-

thorance of this objective and is intrinsically related to the nature

of the struggle. Once this analysis is applied and the determina-

tions made, then it is possible to conclude whether the act may be

characterized as a "political offense."

There are other substantial benefits which this test would bring

to the consideration of asylum claims. One clear strength is that it

allows a consistent analysis to be applied to all claims arising from

a country in a state of armed rebellion or civil war. The test is

ideologically neutral, and does not require value judgments as to

the legitimacy of the political struggle. It provides a manageable

standard, as it allows for fairly straightforward factual determina-

tions of a somewhat limited nature. The test is not over-inclusive,

as it does not provide carte blanche approval of all acts which may

occur in time of civil war or armed rebellion. And finally, it is a

standard which allows an adjudicator to take into account the re-

ality of armed struggles.

The law of extradition in this sense provides a useful analytical

structure, from the perspective of examining the activities of the

group threatening the harm. This is done under the assumption

that persecution cannot exist in a vacuum. If one finds that an in-

dividual has a reasonable fear of persecution, then one must find

that the group threatening the harm is an agent of persecution. If,

however, in examining the activities of the group which threatens

the harm, one determines that the threatened act would come

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Interim Decision #3041

within the "political offense" exception to extradition, then there is

powerful reason to find that the threatened act does not constitute

persecution.

This reason is the fact that the "political offense" exception has

historically been a way of granting legal and political protection,

"political asylum," to persons who have committed violent acts in

furtherance of a political objective during times of rebellion, revo-

lution, or other armed struggle. In essence, if one were to find that

all acts of political violence necessarily constituted persecution,

then one would be placed in the awkward position of granting po-

litical asylum to those harmed by persons who have historically

been granted a form of political asylum themselves.'

C. Assumptions Underlying Application of This Analysis.

The application of this analysis is based on two assumptions,

both having a solid basis in logic and in the political and legal his-

tory of the United States. The first assumption is that acts of perm,-

cutioxt are not protected by international or United States law, and

are indeed condemned. The immigration laws of this country, for

example, specifically require the exclusion or expulsion of aliens

who have committed acts of persecution related to the Nazi Gov-

enurtent of Germany. See sections 212(a)(83) and 241(a)(19) of the

Act, S U.S.C. §§ 1182(a)(33) and 1251(a)(19) (1982), respectively.

1. The Nature of Asylum.

It would seem indisputable that the grant of asylum is an expres-

sion of fundamental values, among which are the desire to accord

protection to the oppressed and to affirmatively promote basic

human rights. The United States, for example, in acceding to the

Protocol to the United Nations Convention Relating to the Status

1 Although not directly relevant to the issue at hand, it might be useful to point

out that application of this test would not require the United States to grant asylum

or withholding of deportation under sections 208 and 243(h) of the Immigration and

Nationality Act to persons whose extradition is barred. A recent extradition case

which narrowed the political offense exception seems to have been motivated in

part by the incorrect assumption that if the exception were applied, the United

States would become a "safe haven" for terrorists. Eain v. Wilkes, 641 F.2d 504, 520

(7th Cir. 1981), cert. denied, 454 U.S 894 (1981). A person whose extradition is denied

under this exception is still subject to deportation. He is free to claim persecution,

but must show that the punishment he fears for his political offense would be aggra-

vated or heightened because of his political views. Kouac v. INS, 407 F.2d 102 (9th

Cir. 1969); Sark v. INS, 346 F.2d 360 (7th Cir. 1965); Matter of Janus and Jonah, 12

I&N Dec 866 MIA 1968).

521

Interim Decision #3041

of Refugees in 1968 understood that the "protocol is a human

rights document," accession to which would convey to the world

the traditional concern of the United States "for refugees and for

the individual human being which have long been embodied in our

laws and consecrated in our traditions." Exec. Rep. No. 14, 90th

Cong., 2d Sess. 4 (1968).

Subsequently, in considering legislation which would become in

part the Refugee Act of 1980, its chief Senate sponsor, Senator

Kennedy, stated that the provisions gave "statutory meaning to

our national commitment to human rights and humanitarian con-

cerns." Senator Kennedy further stated that the bill was designed

"for the decades to come," and would allow the American people to

decide which. refugees would be of special concern. In this process,

the past would "serve as a guide," as it had previously in the in-

stances in which the United States had responded "to human

rights concerns embodied in the Universal Declaration for Human

Rights." S. Rep. No. 256, 96th Cong., 1st Sess. 1, 6 (1979).

Sirnihrr language was nsed in considering the counterpart House

bill. The Committee on the Judiciary, for instance, stated that by

adopting a refugee standard of "special humanitarian concern," the

Committee was emphasizing the humanitarian "plight of the refu-

gees themselves," as opposed to national origins or political consid-

erations. The Committee also was of the view that "past history"

could be of some guidance in defining the factors which might be

considered in offering refuge, among them being the "plight of the

refugees, the pattern of human rights violations," and the "likeli-

hood of finding sanctuary elsewhere." H. Rep. No. 608, 96th Cong.,

1st Sess. 13 (1979).

2. The Nature of the Political Offense Exception.

The second assumption in applying this analysis is that persecu-

tion should not be defined in such a way as to squarely conflict

with the legal and political history of this country. If, for instance,

the Government of the United States has historically accorded both

political and legal protection to persons who have engaged in acts

identical to those claimed to constitute acts of persecution, then the

claim of persecution would have to fail.

While it is possible to consider extradition as a narrow applica-

tion of one aspect of criminal law, its significance as an expression

of political philosophy relevant to asylum law should not be under-

stated. When the Government of the United States refuses the ex-

tradition of a person who has committed a murder for political rea-

sons, this is not an act that is carried out lightly. Such a refusal

522

Interim Decision 4t3041

may severely strain the relations between nations. The refusal only

makes sense if it is motivated by adherence to a fairly lofty politi-

cal tradition: that violence inflicted in time of armed struggle occu-

pies a moral and ethical plane which entitles it to protection. The

Government of the United States has recognized and protected

from pnnishment persons who have committed violent acts carried

out in furtherance of a political agenda if the acts were committed

in time of war, revolution, or armed rebellion. See Escobedo v.

United States, 623 F.2d 1098, 1104 (5th Cir.), cert. denied, 449 U.S.

1036 (1980); Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957).

The protection accorded to individusis carrying out these acts of

violence has in fact been characterized as a grant of "political

asylum," by the Secretary of State. In a case involving the extradi-

tion of four members of a Russian revolutionary group wanted for

murder, robbery, and arson, the Secretary of State refused extradi-

tion, after the district court had ruled against them. The Secretary

stated:

The Government of the United States finds itself impelled to these conclusions

not only by generally accepted rules of international law which forbid the surren-

der of political fugitives, by the principles of internal jurisprudence, which, pro-

claimed and acted upon by the courts of this and other countries, declared that "a

person acting as one of a number of persons engaged in acts of violence of a politi-

cal character, with a political object, and as part of the political 'movement and

rising in which he is taking part" is a political offender and so entitled to an

asylum in this country, and by the long and consistent course of rulings in which

the executive branch of this Government has expressly adopted and carried out

such laws and principles—but also by the express provision of article III of the

Extradition Treaty. .

Matter of K-, 4 I&N Dec. 108, 115 (C.O. 1950) (quoting Case of

Rudewitz, IV Hackforth_ Digest of International Law, 49-50) (em-

phasis added).

The view that application of the political offense exception is a

grant of political asylum has a fairly venerable history. It is gener-

ally understood that the "political offense" exception to extradition

was developed in Belgium and first enacted into law in that coun-

try in 1833:

The so-called "right of political asylum" was developed during the last century

largely under the influence of Belgian practice. Belgium laid down the principle

of non-extradition for political offenses in an Extradition Law of the year 1833.

This provision had great influence on the development of the law of extradition.

Many countries incorporated the Belgian principle into their extradition treaties

verbatim, or with insignificant variations. Germany was one of those countries;

most of the extradition treaties concluded by her Iva on that principle an far ac

the question of political asylum is concerned.

6 Whiteman, M., Digest of International Law 801 (Department of

State, 1968).

rnn

Interim Decision *3041

This discussion of the character of the "political offense" excep-

tion as constituting a grant of "political asylum" is drawn from an

extradition case considered by the Supreme Court of Germany in

1933. This position has also been adopted by the Government of

Great Britain. In considering whether to accede to the United Na-

tions Convention on Genocide in 1962, the British Government

stated that due to the "breadth. and imprecision" of certain arti-

cles, relating to the extradition of persons charged with offenses of

genocide, it could not accede to the Convention, because to do so

would be "a derogation from this country's traditional right to

grant political asylum which the Government do not think it right

to accept." 6 Whiteman, M., supra, at 846.

The magnitude and power of -these philosophical underpimiings

of the political offense exception have been recognized in a recent

decision which forcefully defended that concept. In Quinn v. Robin-

son, 783 F.2d 776, 792-93 (9th Cir. 1986), the court pointed out that

the political offense exception is now "almost universally accepted

in extradition law," and that the exception

is premised on a number of justifications. First, its historical development sug-

gests that it is grounded in the belief that individuals have a "right to resort to

political activism to foster political change." . . . This justification is consistent

with the modern consensus that political crimes have greater legitimacy than

common crimes.

These justifications are in turn based on the political histories of

the United States, France, and Great Britain, and have been ar-

ticulated. as principles of political philosophy. Id. at 792.

The court further stated, as have others before it, that the politi-

cal offense exception "was designed to protect those engaged in in-

ternal or domestic struggles over the form or composition of their

own government, including, of course, struggles to displace an occu-

pying power,"and to "protect revolutionary activity." Id. at 807 - 08

n.33. In stating these conclusions, the court noted that some courts

have favored narrowing the exception because certain "modem

revolutionary tactics which include violence directed at civilians

are not politically 'legitimate! " (Emphasis in original.) The court

found this assumption to contain an "inherent conceptual short-

coming" because it sought to impose on "other nations and cultures

our own traditional notions of how internal political struggles

should be conducted." Id. at 804. The court clearly rejected this

view, finding that

[l]t is understandable that Americans)are offended by the tactics used by many of

those seeking to change their goveruLuents. Often these tactics are employed by

persons who do not share our cultural and social values and mores. Sometimes

they are employed by those whose views of the nature, importance, or relevance

of individual human life differ radically from ours. Nevertheless, it is not our

524

Interim Decision #3041

place to impose our notions of civilized strife on people who are seeking to over-

throw the regimes in control of their countries in contexts and circumstances that

we have not experienced, and with which . we can identify only with the greatest

difficulty. It is the fact that the insurgents are seeking to change their govern-

ments that makes the political offense exception applicable, not their reasons for

wishing to do so or the nature of the acts of the acts by which they hope to accom-

plish that goal. Politically motivated violence,, carried out by dispersed forces, and

directed at private sector institutions, structures, or civilians, is often undertak-

en like the more organized, better disciplined violence of preceding revolutions—

—

as part of an effort to gain the right to self-government. . . We believe the tac-

tics that are used in such internal political struggles are simply irrelevant to the

question whether the political offense exception is applicable.

Id. at 804-05.

Viewed in this light, juxtaposing determinations relating to per-

secution with those determinations made in applying the political

offense exception in extradition cases serves as a logical control, if

one assumes that an act of violence cannot be at the same time le-

gitimate and illegitimate. This is particularly the case if one in ad-

dition accepts the idea that the asylum provisions and the political

offense exception reflect basic views of American society regarding

armed political rebellion and also reflect a basic moral or ethical

judgment on the nature of acts considered acceptable and unaccept-

able. If one is tempted to find that someone is a victim of persecu-

-

tion because of violence inflicted during an armed rebellion, then

one should also pause to reflect on the reaction one would. have to

the purported agent of persecution if he in turn were in the United

States seeking legal and political protection from the government

of the country in which he had committed his act of political vio-

lence. 2

D. Asylum and the Political Offense Exception Should be Applied

in a Consistent Manner.

In the face of the protection accorded politically motivated vio-

lence, which is considered a legitimate expression of self-determina-

tion, regardless of the tactics employed, there is no Meter/cal or

legal basis to find at the same time that the victims of the violence

have been persecuted. Persecution is by definition an illegitimate

act, universally condemned. There would appear to be no logic, or

historical or legal sense to be found in parallel determinations

which would on the one hand find that an individual is a victim of

persecution, a totally illegitimate act outside the sphere of protec-

2 The reference to both "legal" and "political" protection is intentional, as extra-

dition may be and has been refused by the Secretary of State after an extradition

order by a court has been granted.

Interim Decision #3041

tion of universally accepted legal and political principles, while at

the same time finding that the agent of the violence is also entitled

to legal and political protection.

E. Application of the Political Offense Exception Test to This Case.

The act of violence threatened in this instance happens to be

identical to the harm actually inflicted by the subjects of the semi-

nal case in United States extradition law, In re Ezeta, 62 F. 972

(N.D. Cal. 1894). There, among other offenses charged by the Gov-

ernment of El Salvador, four individuals were charged with multi-

ple murders and bank robbery. After determining that the four in-

dividvAls had been on the losing side in a revolution in that coun-

try, and that they had probably committed most of the offenses al-

leged, the court invoked the "political exception" clause to the ex-

tradition treaty, and denied the extradition request. In so doing the

court found that the individuals killed had been persons who had

refused to give their essistance to one side of the revolt or the

other, an alleged spy, and an officer who had purportedly gone

over to the opposition. The crucial question in the court's view was

whether, neon the facts, it is clear that the man was acting as one of a number of

persons engaged in acts of violence of a political character with a political object,

and as part of the political movement and rising in which he was taking part.

Id. at 999 (quoting the Castioni Case, 1 Q.B. 149 (1891)).

The court stated that applying the principle of the Castioni Case,

"the conclusion follows that the crimes charged here, associated as

they are with the actual conflict of armed forces, are of a political

nature." hz re Rzeta, supra, at 999. The court did not reach this

conclusion lightly, as it recognized fully that during the revolution,

"crimes may have been committed by the contending forces of the

most atrocious and inhuman nature." Id. at 997. The court also rec-

ognized, as had the British courts before it that

everybody knows there are many acts of a political character done without

reason, done against all reason, but at the same time one cannot look too hardly,

and weigh in golden scales the acts of men hot in their political excitement. We

know that in heat, and in heated blood, men often do things which are against

and contrary to reason; but none the less the act of this description may be done

for the purpose of furthering and in furtherance of a political rising, even though

it is an act which may be deplored and lamented, as even. cruel and against all

reason, by those who can calmly reflect upon it after the battle is over.

Id. at 999 (quoting the Castioni Case).

The court also relied on the findings in other extradition cases

involving the United States and Mexico and Canada. In those cases

it was held that persons who had committed violent offenses in the

course of participating in. armed uprisings were immune from ex-

526

Interim Decision 4t3041

tradition. This included a Canadian extradition request for the

leader of an armed band of 600 to 1,500 men which had committed

arson, robbery, and the murder of an individual who had refused to

obey their orders. Id. at 1000.

In a recent example directly pertinent to the respondent's situa-

tion, one Janelli, who had been a member of a Fascist group carry-

ing out operations against partisan groups in Italy in 1944, desert-

ed, went over to the partisans, and subsequently returned to the

Fascists. He was ordered shot by Ficorrilli, whose extradition from

Switzerland was sought by Italy in 1951:

The Federal Tribunal has previously decided that one must regard as a political

offense an offense which is the consequence and manifestation of an extraordi-

nary agitation. or tension between political parties, and of disturbances which lead

the participants to use methods of violence against their opponents, causing disor-

ders and large numbers of crimes of violence; and any act which, even considered

in isolation, mast be considered to be a consequence of reprisals in a general polit-

ical uprising and struggle for power, not as the carrying into effect of personal

motives and private aims.

In the present case there was armed conflict between two parties struggling for

power, the partisans and the neo-fascists. Recourse was had to violence and to

military or pseudomilitary operations . . .

6 Whiteman, M., s upra, at 828. Extradition wax refused on these

grounds.

A third pertinent example of extradition being denied under the

political offense exception is found. in Ramos v. Diaz, 179 F. Supp.

459, 462-63 (S.D. Fla. 1959). There, an American court refused the

request of the newly installed Cuban Government to turn over two

men who had killed a prisoner. The two men had been military

members of the victorious Cuban revolutionary forces who had

been assigned to guard prisoners during the days the new govern-

ment was consolidating its power:

At the time of the shooting neither Cruzata nor Diaz knew the prisoner who was

shot. It was a standing order of the Castro army that anyone guarding a prisoner

who permitted him to escape was himself subject to summary execution. At the

time of the shooting there existed much turmoil and excitement with remnants of

the Batista regime fighting with the victorious Castro troops and arrests and exe-

cutions were commonplace.

•"

[T]he Defendants were members of a revolutionary movement. . . . [Title crime

allegedly committed by them took place in the early days of the victory of the

revolutionary forces, and as a part of a political uprising and disturbance. The

Defendants bare no ill will or malice toward their victim, who was just one of the

many political prisoners captured in furtherance of the political rising. The De-

fendants were under the command of revolutionary forces engaged in mopping up

operations as a part of the revolution.

Id. at 463.

Interim Decision #3041

These decisions are consistent with the views expressed in Quinn

v. Robinson, supra, that revolutionary violence, whether aimed at

civilian or military targets, is protected activity. As the court

stated:

The "incidental to" component, like the incidence test as a whole, must be applied

in an objective, nonjudgmental manner_ It is for the revolutionaries, not the

courts, to determine what tactics may help further their chances of bringing down

or changing the government All that the courts should do is determine whether

the conduct is related to or connected with the insurgent activity. It is clear that

various "non-military" offenses, including acts as disparate as stealing food to sus-

tain the combatants, killing to avoid disclosure of strategies, or killing simply to

avoid capture, may be incidental to or is furtherance of an uprising. To conch/de

that attacks on the military are protected by the exception, but that attacks on

private sector institutions and civilians are not, ignores the nature and purpose of

the test we apply, as well as the realities of contemporary domestic revolutionary

struggles.

Id. at 810.

It is clear that the "realities of contemporary struggles" may be

rather grim. 3 In describing, for example, the Algerian war for inde-

pendence, one historian has estimated that about 80,000 Muslim ci-

vilians were killed by the Algerian nationalist forces, as opposed to

approximately 3,000 European civilians. Both the European and

Muslim organisations engaged hi. widespread violence which vr4fas

aimed at achieving their political objectives. The Europeans, par-

ticularly, the Secret Army Organization ("OAS") set out to terror-

ize the Muslim population by bombings and executions, as did the

Muslim nationalists against the Europeans. Both sides attacked

without mercy persons they suspected of aiding their opponents, or

even persons they simply suspected of insufficient enthusiasm for

their cause. At one point, the OAS killed postmen, pharmacists,

railway workers, flower vendors, and maids, each on different days

of the week. Toward the end of the war, the OAS adopted a

"scorched earth" strategy, blowing up or burning down libraries,

2 As to whether this type of activity is "contemporary," it is instructive to consid-

er the description offered in 1890 by a Colombian official of the nature of revolu-

tions in South America:

In the revolutions, as we conduct them in our countries, the common offenses are

necessarily mixed up with the political in many cases. A revolutionist has no re-

sources. My distinguished colleague General Caamano [of Ecuador] knows how we

carry on wars. A revolutionist needs horses for moving, beef to feed his troops,

etc.; and since he does not go into the public markets to purchase those horses

and that beef, nor the arms and saddles to mount and equip his forces, he takes

them from the first pasture or shop he finds at hand. This is called robbery every-

where, and is a common offense in time of peace, but in time of war it is a circum-

stance closely allied to the manner of waging it.

In re Ezeta, supra, at 1000 (quoting International American Conference, vol. 2, at

615).

528

Interim Decision #3041

hospitals, schools, laboratories, public buildings, and economic tar-

gets. In a statement that could have, for the most part, been echoed

by the nationalist forces, a leader of the OAS said:

The overall target was to paralyze the powers that be and make it impossible for

them to exercise authority. Brutal actions will be generalized over the whole terri-

tory. They will aim at influential personalities of the Communist Party, at works

of art, and all that represents the exercise of authority, in a manner to lead to-

wards the maximum of general insecurity and the total paralysis of the country.

Horne, A., A Savage War of Peace 135, 259-60, 516-17, 530 (Viking

Press, 1978).

The Spanish Civil War of 1936-1989 also offers an object lesson

in the use of violence on a grand scale, by all parties to the strug-

gle, anarchists, communists, socialists, and falangists, alike Part of

Nationalist Spain in July 1936, during the war, has been described

as follows.

All political parties which had supported the Popular Front were banned. Politi-

cal life ceased. Even the old right-wing and Center parties, including the CEDA,

vanished. The only active political groups were the Falange and the Carlists, and

these were "movements" rather than parties. The cases del pueblo and the left-

wing newspaper offices were closed down. Strikes were made punishable by death.

Private rail and road movement was banned. Throughout nationalist Spain, free-

masons, members of Popular Front parties, members of trade unions, and, in

some areas, everyone who had even voted for the Popular Front in the elections of

February, were arrested and many shot.

. . . These atrocities had a special purpose. Though the rebels were determined

and often well-armed, they were few in number. In places such as Seville and

Granada, the large working-class population had to be terrified into acquiescence

of the new order before the nationalist commanders could sleep peaceably in their

beds. Hence, not only did the rebels act ruthlessly toward their enemies, but, they

had to act openly, and expose the bodies of those whom they killed to public gaze.

The repression was an act of policy, decided upon by a group of men who knew

their original plans had gone awry. . . . "It is necessary to spread an atmosphere

of terror. We have to create the impression of mastery. . . ."

Thomas, H., The Spanish Civil War 258-60 (Harper and Row, 3d

ed. 1977).

It is of course not really necessary to look beyond the United

States for an example of the violence and brutality which is gener-

ated in a revolutionary war. The following account has been of-

fered of the patriots' activities during the American Revolution in

March 1776 and after:

Triumphant, the patriots rushed into the city [Boston] that had been the center

and symbol of the rebellion. Now it was the Tory property that went under the

auctioneer's hammer. Now it was Tory homes that sometimes went up in flames

while the owners were stripped, tarred, feathered and ridden out of town on a

rail. No one hates more than hostile brothers, and even the British themselves

were not hated so venomously as were those Loyalists whom Howe was forced to

leave behind.

9C1

Interim Decision #3041

From Maine to South Carolina they were lashed through the streets, pelted with

rotten eggs or forced to go down on their knees to damn the King and his minis-

ters.. . . Washington himself wanted the more notorious Tories hung as an exam-

ple to the rest, and Governor Livingston of New Jersey said: "A Tory is an incor-

rigible animal: And nothing but the Extinction of Life will extinguish his malevo-

lence against liberty." Before the war was ever the patriots were forcing all secret

Tories to declare themselves by imposing oaths of loyalty to the United States.

Those who refused were fined, imprisoned, deprived of civil rights or, as the new

states seized upon this handy means of raising revenue, dispossessed.

1 Leckie, R., The Wars of America 134-35 (Harper and Row, 1968).

When the British in turn marched to New York that same year,

the favor was returned:

The moment the redcoats marched into the town at the foot of Manhattan Island,

they were overwhelmed by throngs of weeping, shouting Loyalists. . . .

Then the witch hunt began. Rebels or suspected rebels were rounded up, especial-

ly those who had been over-heard to vow that they would set fire to the town

rather than allow the British to occupy it.

In the early morning of September 21, by accident or design—history does not

know—New York was burning. By the time the alarm was given the fire was out

of control. . . . Meanwhile, mob frenzy had overcome the Tories. They seized sus-

pects and strung them up without trial. Some were even thrown screaming into

the flames.

_Td_ at 148-49

The British also made effective use of their Indian allies. In 1778:

On July 4—to mock American independence—Colonel Sir John Butler struck at

the Wyoming Valley in Pennsylvania. Hundreds perished. Men were burnt at the

stake or thrown on beds of coals and held down with pitchforks while their horri-

fied families were forced to witness their torment. Others were placed in a circle

while a half-breed squaw called Queen Esther danced chanting around them to

chop off their heads. Soon the entire frontier was in flames, with Washington

unable to come to its rescue.

Id. at 187.

That is not to say, however, that revenge was not eventually

taken upon the British Indian allies. In the summer of 1779, Wash-

ington sent an army to destroy Iroquois Indian towns. Forty were

destroyed and crops and orchards destroyed. "In the cruel winter of

1779-80 which followed, hundreds of Indian families starved to

death." Id. at 190.

It would be hard to deny that these accounts of civil war or revo-

lution reveal a great deal of brutality and ruthlessness. It would be

equally hard to simply characterize these upheavals as vast acts of

persecution; certainly in the American example, neither history,

nor tradition, cast either General Howe or General Washington as

men who had engaged in the persecution of their opponents. Yet it

is obvious that they each directed and led men to kill their political

opponents and destroy their property. Unless one is to engage in

530

Interim Decision 4P3041

total historical revisionism, there is absolutely no basis to conclude

that Howe and Washington committed acts of persecution. Rather,

they directed acts altogether typical of civil war and in their view,

necessary, to achieve their political and military objectives.

In the case presently under consideration, there is no reason to

conclude that the respondent is anything other than a victim of

civil war, or that the guerrillas in El Salvador are conducting

themselves any differently than guerrillas have conducted them-

selves throughout history. The guerrillas in El Salvador have set

out to overthrow the existing government and social order. 4 They

have chosen to achieve their objective in great part by force of

arms and by forcing a sometimes reluctant population to provide

them with the resources they need to sustain their struggle.

Among the methods they have chosen is the forced recruitment of

laborers and combatants Since they cannot afford to allow persons

to desert their cause with impunity, they have imposed a drastic

form of military discipline on deserters.

F. Conclusio n

In applying the political offense exception test to this application

for asylum, then, it is clear that the first element exists: a guerrilla

war is occurring in El Salvador. It is also clear that the guerrilla

organisation from which the respondent deserted is an active par-

ticipant in this war. This is evident from the respondent's testimo-

ny and front the Department of State report on conditions in El

Salvador.

As to the second element, whether the threat of death for deser-

tion is an act "incidental to" that war, we may rely again on infor-

mation indicating that the guerrillas forcibly recruit persons to

their armed forces, both as combatants and as persons who provide

labor of various types. Again, we can rely on the respondent's testi-

mony and the Department of State report for this information. We

may also draw on historical information relating to revolutionary

struggles in general. If the guerrillas need to forcibly recruit per-

sons, then it is fair to assume, given the nature of the struggle in

El Salvador, and of guerrilla struggles in general, that the guerril-

las cannot tolerate desertion from their ranks. If this were to

happen, they could experience such a loss of vital military or logis-

tical support that their ability to engage in military operations

would be severely affected. Because of this, and because the guer-

4 An objective which has been recognized and protected under the political offense

exception, regardless of what one may think of the ultimate political and social

goals of the Salvadoran guerrillas. See Quinn v. Robinson, supra, at 807 08 n.33.

-

531

Interim Decision #3041

rills organization is a military organization by nature, it must

exert strong discipline over its members, voluntary or not, and it

can effectively use the threat of severe punishment, even death, to

maintain the stability of its organization. As both Swiss and United

States courts have found, the infliction of severe punishment for

desertion is an act almost necessarily inherent in the nature of a

revolutionary or civil struggle.

In total, then, applying the standards of the political offense ex-

ception, the threat of death for desertion faced by the respondent

does not constitute an act of persecution, but rather an act of

armed political struggle. Politically motivated though the threat

may be, in the end analysis, it is not a threat of harm for which

asylum should be granted.

For this reason also, I would dismiss the appeal.

532