finding no persecution on account of an enumerated ground where guerillas pursued petitioner because she refused to contribute her skills, not because of her political stance
How later courts described this case
- finding no persecution on account of an enumerated ground where guerillas pursued petitioner because she refused to contribute her skills, not because of her political stance
- acknowledging and applying the doctrine of "hazardous neutrality” as the law of this circuit although questioning in dictum its validity
- per Aldisert, J., sitting by designation
Written by the judges who cited it.
The opinion
MICHAEL DALY HAWKINS, Circuit Judge,
specially concurring: '
Quite frankly, the disposition of this appeal requires no more than an unpublished memorandum, as the result reached, with which I agree, involves a routine application of our asylum law. Judge Aldisert, however, has chosen to write an opinion 'that applies our law while casting doubt on its legitimacy. The opinion suggests that our court’s established law of “hazardous neutrality” conflicts with the Supreme Court’s decision in Elias-Zacarias. See Majority Opinion at 5405-06 (“We adhere to this precept notwithstanding the statement of the Supreme Court in [Elias-Zacarias].”). However, we have already noted that our neutrality doctrine, though questioned in Elias-Zacarias, was not overruled. See Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir.1997).
The Supreme Court -said in Elias-Zaca-rias that the failure to take sides in a dispute is no.t, “ordinarily” the expression of a political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). But it did not state that an affirmative expression of neutrality could not amount to a political opinion especially “in an environment in which political neutrality is fraught with hazard.” Sangha , 103 F.3d at. 1488. This latter circumstance is the basis for our “hazardous neutrality” doctrine, and it is inaccurate to suggest that the doctrine conflicts with Supreme Court precedent.
The law of our circuit, therefore, remains firmly in place. Our duty while writing the opinions of this circuit is to apply that law, not to cast doubt on its viability. If an .individual judge dislikes our precedent, he or she may so state in a separate opinion; it is inappropriate to express such individual concerns, however subtly, in an opinion that purports to speak for our court.
On the merits of the case, the majority opinion implies that Rivera-Moreno’s nine-day forced recruitment immediately following her expression of neutrality did not constitute persecution.- See Majority Opinion at 487 (“Although she was forced to contribute her nursing skills to them for nine days until she escaped, the Perquin guerrillas did not pursue her and they did not punish her.”). We have held, however, that forced recruitment by a revolutionary army is “a deprivation of liberty” that “would amount to persecution.” Arteaga v. INS, 836 F.2d 1227, 1231-32 (9th Cir.1988). I thus would hold that the forced recruitment, as well as the attempted recruitment by bombing and threat eight years later, qualified as persecution.
*488 I nevertheless concur in the result because Rivera-Moreno has failed to establish a causal connection between her expression of neutrality and her forced or attempted recruitment. In Scmgha, 103 F.3d at 1487 , we held that an applicant for asylum cannot establish that her “persecution was ‘on account of political opinion by inference, unless the inference is one that is clearly to be drawn from the facts in evidence.” Rivera-Moreno has presented no evidence, direct or circumstantial, that would compel an inference that the guerrillas recruited or attempted to recruit her because of her neutrality; it is equally or more likely that they recruited her to serve their own independent purposes. I accordingly concur in the judgment.