Amicus Curiae Brief — INS v. Aguirre-Aguirre

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Supreme Court, U.S.

q ) Ee tp ORs es 5

JAN 21 1999

No. 97-1754

CLERK |

In The

Supreme Court of the United States

October Term, 1998

IMMIGRATION AND NATURALIZATION SERVICE,

Petitioner,

JUAN ANIBAL AGUIRRE-AGUIRRE,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF FOR AMICUS CURIAE IN

SUPPORT OF THE RESPONDENT

Iris Gomez, Esq.

Counsel of Record

Massachusetts Law Reform

Institute

99 Chauncy Street, 5th floor

Boston, MA 02111-1722

(617) 357-0700

James F. Saitn, Esq.

AMAGDA Perez, Esq.

Immigration Law Clinic

University of California

School of Law

400 Mrak Hall Drive

Davis, CA 95616-5201

(530) 752-6942

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

VI.

TABLE OF CONTENTS

INTRODUCTION .

STATEMENT OF INTERES]

STATEMENT OF THE CASI

SUMMARY OF ARGUMENT

ARGUMENT

GUATEMALAN HISTORY AND POLITICAI

CONDITIONS DEMONSTRATE THAT

AGUIRRE’S ACTIONS WERE LEGITIMATE

POLITICAL PROTEST

Weaknesses of the Guatemalan Electoral System

Stopping Dissent: The Desapa

How the Students Resisted

[he Price of Student Protest

[he Disturbios of the 1970s, 80s and 90s

[he People Versus the Transportistas

[he Rate Increases Were Extraordinary

[he Transportistas Acted Lawlessly

Why the Government Was the Target

Excessive Punishment for Involvement in Distu?

CONCLUSION

TABLE OF AUTHORIT IES

Page

Cases:

Aguirre-Aguirre v. INS, 121 F.3d 521 (9th Cir. 1997)...4 5

Allentown Mack Sal

S.Ct. 818 (1998) es and Service, Inc. v. NLRB, 118%

Bajwa v. Cobb, 727 F.Supp. 53 (D. Mass. is } | , 3 | | | .

oe v. INS, 40 F.3d 482 (Ist Cir.

$549 Kee iukwedeveukanbobise code 1, 2, 10, 22

Coriolan v. INS, 559 F.2d 993 (5th Cir. ene ee 1

Dwomoh v. Sava, 696 F.Supp. 970 (S.D.N.Y. 1988)...... 3

Matter of Chang, 20 1&N 38 _ S _ SSS aeer gue 1

Matter of Dass, 20 1&N 120 ENS ar 1

rink Ghs beds 3

wad, 788 F.2d 31 (Oth ee as” HA 98,

Matter of Mogharrabi, 19 1&N Dec. 439 (BIA ‘na | | | | | 1

Matter of S.M.J., Int. Dec. 3303 (BIA 1997)......... 1

Matter of T, 20 I&N 571 > Sr |

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

Motor Vehicle

He ats

Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) ...1,7, 8 19 13

sn ate le IT gt ce, St

iii

TABLE OF AUTHORITIES - Continued

Ramirez-Rivas v. INS, 899 F.2d 864 (9th Cir. 1990)..... 1

Ravindran v. INS, 976 F.2d 754 (ist Cir. 1992)......... 6

Regents v. Bakke, 438 U.S. 265 (1978)......--.-00+0005: 6

Universal Camera Corp. v. NLRB, 340 U.S. 474

ED dctcddnepesvcehoccecscbh cecccdteccdesseeceese

Xuncax v. Gramajo, 886 F.Supp. 162 (D. Mass. 1995) . .7, 10

Young v. INS, 759 F.2d 450 (Sth Cir. 1985)........ 13, 14

REGULATIONS AND STATUTES:

8 C.F.R. 208.16(b) and 208.13(a) (1995)...........0066. 1

BS UGC. BASRA) (ISPS) oc cccccccccccccccccccces 2

MISCELLANEOUS:

“Acute Social Unrest” (“Aguda Convulsién Social”),

(Inforpress Centroamericana), October 5, 1978

(Age. BE)... cccccccccccccevccceces 15, 16, 17, 18, 24

“AEU Campus Headquarters Dynamited,” Weekly

Briefs (CERI-GUA Guatemalan News Agency),

February 2-8, 1992, at 1-2 (App. C-8) ............. 14

“AEU Offices Bombed,” Guatemala Human Rights

Update, #20/92, (Guatemala Human Rights

Commission/USA), October 5, 1992, at 4 (App.

Dewevehob dheccebb¥ecese shes Ubeecreceteseeacces

“Alfonso Alonso: Posture of Transportation Pro-

viders Inconsistent with the Public” (“Postura de

transportistas inconsecuente con el pueblo”), Prensa

Libre, May 14, 1990 (App. B-4)............. 16, 17, 18

TABLE OF AUTHORIT IES — Continued

Alternative Media, No Nos Tientes: (Don’t Tempt

Us) The Students of Guatemala Teacher Manual,

www.alternativemedia.org/gsi___study%20

guide.html (App. C-27)......... 11, 12, 13, 14,

The Americas Watch Committee, Messengers of

Death: Human Rights in Guatemala, November

1988-February 1990 (1990) at 73 ................

Amnesty International Report (1979) ...............

Amnesty International, Guatemala: Human Rights

Violations under the Civilian Government (1989) ..

Amnesty International, Guatemala: The Human

ee GY ic dccdctdidieadee

Amnesty International, Reports Regarding Gua-

temala from Jan.-Dec. 1989 (1990) ...............

Edgar Aragon, “Economic Indicators of the Urban

Transportation Crisis” (“Jncidencia economica de

la crisis del transporte urbano”), La Hora, Decem-

wer 17, B908 (Amp. B-36....... ccc cccccececs 16,

“Attacks Against San Carlos University Con-

tinue,” Weekly Briefs (CERI-GUA Guatemalan

News Agency), April 19-25, 1992, at 2 (App.

GPE’ ob cbecvsvcccsuusetumecuhdnobdbebalabertde.

George Black et al., “Lucas Garcia: The Descent

Into Anarchy,” North American Congress on Latin

America (NACLA) Report on the Americas, Vol. 17,

Seth GB GRE vcndcasubeskasdebbuaiuanc deeces 7,

“Bomb Found in Theater,” Weekly Briefs (CERI-

GUA Guatemalan News Agency), August 2-8,

Sees GE D Qh GP has axtndeniensctecccoss:

Page

16, 19

17, 19

TABLE OF AUTHORITIES - Continued ‘

age

“Bomb Scares in High Schools Continue,” Gua-

temala Human Rights Update, #12/92, (Gua-

temala Human Rights Commission/USA) June

15, 1992, at 3 (App. C-19) ..........-. eee eee eeee 14

“Bus Companies Impose New Fares According to

Whim” (“Transportistas imponen tarifas anto-

jadizas”), La Hora, December 17, 1992 (App.

P13) ts ova osee : boned tisigs ceddbanvibeseetete 17, 19, 20

“Ceiling on Transit Fares Removed,” Jennifer Harb-

ury Letters & Information, www-per-

sonal.engin.umich.ed . . . ury/archive/cerigua/

cwb06__98b.html (App. C-28)...... 15, 16, 17, 20, 25

Center for Human Rights and Constitutional Law

and Guatemalan Support Network, Crisis Point:

Human Rights in Guatemala Under President Ser-

rano, Jan. 1991 to July 1992 (1992)...........--+05: 14

Comisién Econémica Para América Latina y el Caribe,

Centroamérica: Evolucién de Al unas Macro-

economicas [Central America: Evolution of Real

Wages] (1996) .......ccncccccccces: coccecececccees 19

“Congress Will Not eS a tae

greso no apoyard aumento a los pasajeros’ ), Siglo Vein-

tiuno, May 13, 1990 (App. B-3)........... , 17, 18, 20

“Cost of Living Protests Begin,” Jennifer Harbury

Letters & Information, www-personal.

engin.umich.ed . . . ury/archive/cerigua/

cwb09__97.html (App. C-31) ... 2.6.66. eee eee es 15, 19

“Crisis in Public Transit, an Annual Event,” Jen-

nifer Harbury Letters & Information, www-per-

sonal.engin.umich.ed . . . ury/archive/cerigua/

cwb02___97.html (App. C-30) ............-- 15, 16, 20

TABLE OF AUTHORITIES - Continued

John Dombrowski et al., Area Handbook for Gua-

temala (1970)

“Education Ministry Blames Transportation Pro-

viders” (“Ministerio de Educacién culpa a los auto-

buseros”), Siglo Veintiuno, June 5, 1990, at 12

GRID. GR ccc cudndcnsadevccimiutobed backal 16, 17,

Reese Erlich, “Guatemalan Civilians Talk Peace,

Nudge Reluctant Military,” Christian Science

Monitor, September 26, 1990

“Extrajudicial Executions,” Human Rights Update,

#9, (Guatemala Human Rights Commission /

USA), March 11, 1991, at 2 (App. C-5)............

Tom Gibb, “A Surge of Political Kidnappings,

Slayings in Guatemala,” The San Francisco

Chronicle, Sept. 23, 1989

Duncan Green, Guatemala: Burden of Paradise

(1992)

“Guatemala - Human Rights and Security,” Cen-

tral America Report (Inforpress Centro-

americana), Vol. XV, No. 34, September 2, 1988,

OR ere Gs GG cc aknasb00 cid os ccabthacec ous

“Guatemala — Repression Hits the National Uni-

versity,” Central America Report (Inforpress Cen-

troamericana), Vol. XVI, No. 36, September 15,

Sos GR: See GN Gein wcdccanndecnvbsnencens

“Guatemala — Student Killing Further Discredits

‘Hunapu’,” Central America Report (Inforpress

Centroamericana) Vol. XIX, No. 14, April 24,

1992, at 112 (App. C-13)

vii

TABLE OF AUTHORITIES - Continued

Page

Guatemalan Ministry of the Interior (Ministerio de

Gobernacién), Accord No. 66-90, Diario de Centro

America, No. 82, May 21, 1990 (App. B-5)......... 17

Guatemalan Student Initiative, Home Page,

www.alternativemedia.org/gsihome.html (App.

as vviccccnsccevcnvedtcsonendududéecenseeses 20, 25

Guatemalan Student Initiative, “About the Video No

Nos Tientes! (Don't Tempt Us) The Students of

Guatemala,” www.alternativemedia.org /

gsi3home.html (App. C-26) ........-.600e eee eens 25

“Guatemalan Students Burn Buses to Protest

Rasen.” Bienen, Fee.. 0, BeBe cccccccccsvscsscceses 20

“Guatemalans Demand Explanation of Thousands

of Kidnapings,” Reuters, Aug. 31, 1990 ........... 21

Farhan Haq, “Guatemala: U.N. Agency Finds

Impunity for Rights Abuses,” Inter Press Ser-

wice, Méaechh 13, TOSS. .....ccccccccccncccccescccses 22

“High School Students Attacked by Police, Army,”

Guatemala Human Rights Update, #9/92 (Gua-

temala Human Rights Commission/USA), May

4, 1992, at 4 (App. C-15) ........ 6. eee eens. 14, 21, 24

“Intimidation Against Students Intensifies,”

Weekly Briefs (CERI-GUA Guatemalan News

Agency), March 22-28, 1992, at 2 (App. C-9)...... 14

Susanne Jonas, The Battle for Guatemala (1991)... passim

Marjorie Miller, “Rightists Blamed for Wave of

Violence in Guatemala,” Los Angeles Times, Sept.

BE, FOU ccc nsec cncsaccnséacecodeccsceseccesecses 13

—

Viii

TABLE OF AUTHORITIES - Continued

Page

The Minnesota Lawyers International Human

Rights Committee, Justice Suspended: The Failure

of the Habeas Corpus System in Guatemala (1990) .... 23

“News Around the World,” The Dallas Morning

Peemn, AGM %, WHSOs ined ddccieveuduveitedetsees 14-15

“No Fixed Increase for Urban Transport” (“Sin

fijar alza en pasaje urbano”), Prensa Libre, Decem-

COP Fe Cie CIN Diese ions dnvedcussedscwsess 17, 18

Victor Perera, Unfinished Conquest: The Guatemalan

CORE CUPPED cavccenseencesccvsndscadaccenen’s 7,8, 9

“Police Forced Student to Swallow Chlorine,”

Guatemala Human Rights Update, #10/92 (Gua-

temala Human Rights Commission/USA), May

eS. FF Pe Be Rr eee 24

“Policemen Attack Students,” Information on Gua-

temala (Enfoprensa/USA), No. 475, May 4, 1992,

2 36 (how. C46 q i. o.0sscisdeccieaee 14, 21, 24

“Political Violence Provokes Agitation” (“Violencia

politica provoca agitacién”) (Inforpress Centro-

americana), June 14, 1990 (App. B-8)....... 11, 20, 24

“*Powerful’ Bomb Explosion at University

Reported,” Guatemala City Teleonce Television,

Mar. 26, 1992 (as reported in FBIS, Latin America

Daily Report, March 27, 1992, at 11) (App. C-10) .... 14

Pro Justice and Peace Committee of Guatemala,

“Case No. 5,” Human Rights in Guatemala, 1990

Supplement, January 1991, at 15 (App. C-4)........ 21

TABLE OF AUTHORITIES - Continued

Page

George Rodriguez, “Attacks Denounced as Part of

a Campaign of Terror,” Inter Press Service

(PeaceNet) October 9, 1992 [as reported in Cen-

tral America NewsPak (Documentation Exchange,

Austin, TX), Vol. 7, No. 18, Oct. 5-18, 1992, at 8]

GS GAD 8 oda n Wh awh civ edeeded deovessandceeess 14, 15

“Security Forces Accused of Killing Student,” Pan-

ama City ACAN, April 10, 1992 (as reported in

FBIS, Latin America Daily Report, April 14, 1992,

Oe FS CED 6 og ob vac cicresicctecctcccdavers 14

“Students Block Traffic, Protest Police Actions,”

The Miami Herald (July 25, 1992) .............00055 21

“Students, Cops Battle in Streets of Guatemala,”

The San Francisco Chronicle, May 1, 1992 .......... 21

“Students Released From Jail Show Signs of Abuse,”

Guatemala City Siglo Veintiuno, May 6, 1992, at 3 (as

reported in , Latin America, Daily Report,

May 8, 1992, at 15) (App. C-16)..............55. 21, 25

“Students Threatened by New Death Squad,” Cen-

tral America Report (Inforpress Centro-

americana), Vol. XVI, No. 9, March 3, 1989, at 70

CRB, GD oc cine ccs seceedeccevescscodivoseosveses 14

“Teachers Support Students in Their ‘Just’

Demands” (“E/ magisterio apoya a los alumnos en

sus ‘justas’ demandas”), La Hora, June 4, 1990, at

DU Bs cis evedasconccevasccbenrcevees 16, 17, 20

“Teenage Students Tortured and Threatened,”

Weekly Briefs, (CERI-GUA Guatemalan News

Agency), May 10-16, 1992, at 3 (App. C-17)....21, 25

TABLE OF AUTHORITIES - Continued

Page

“Transit System Reform, A Mixed Blessing,” Jen-

nifer Harbury Letters & Information, www-per-

sonal.engin.umich.ed . . . ury/archive/cerigua/

cwb26__98.html (App. C-29) .......... 15, 16, 17, 18

“Transportation Crisis and the Passengers’ Cross

to Bear” (“Crisis del transporte y el calvario de los

usuarios”), La Hora, December 12, 1992 (App.

DED. eer cneanceswehniosasivdus sec ines 16, 17, 18, 20

“Transportation Users Protest the Increase in Night

Fares” (“Usuarios protestan por alza de pasaje noc-

turno”), La Hora, July 18, 1991 (App. B-9).... 16, 17, 18

“Two Bombs Explode in Guatemala City,” Agence

France Presse (April 29, 1992) ..............46. 21, 24

“Two New Rates Are Fixed fer Urban Transport”

(“Fijan dos tarifas para el transporte urbano”), La

Hora, December 10, 1992 (App. B-11) ...... 16, 17, 18

“Urgent Action,” Amnesty International USA,

pany 8D, BCE CAme. CO). os caicicsacscatdecsssies 15, 23

“Urgent Action,” Amnesty International USA,

August SE, 1998 CAB. God). 6csiceccdesusescoes 15, 23

“Urgent Action Appeal,” Amnesty International,

puey D, ESSE GARR, CARs vino ss accddvcavesateessays 14

“Urgent Action Appeal,” Amnesty International,

October 8, 1992 (App. C-24) ...........cceeeeeeees 15

United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determin-

ing Refugee Status under the 1951 Convention and

the 1967 Protocol Relating to the Status of Refugees

CRaIOUEL Beet «wos cccucake dndbabaee eee te bcd wecccs: 2

TABLE OF AUTHORITIES - Continued

Page

U.S. Department of Commerce, Statistical Abstract

of the United States: The National Data Book, 117th

OE SE wh poco edbdeihevicdeesciddd sédeln vessies 11

U.S. Department of State, Country Reports on

Human Rights Practices for 1989 ...............044 22

U.S. Department of State, Country Reports on

Human Rights Practices for 1990 ............ 11, 22, 23

U.S. Department of State, Country Reports on

Human Rights Practices for 1991 ................ 11, 22

U.S. Department of State, Country Reports for

Human Rights Practices for 1992 ............ 14, 22, 23

Alvaro Vargas Llosa and Santiago Aroca, Riding

Se ROE by dae bevaws Nitctendensa¥edvbcasices’s 7

“Violence: Constant and Growing” (“Violencia:

constante y creciente”) (Inforpress Centro-

americana), May 3, 1990 (App. B-2)............... 11

James Wilkie et al., co-editors, Statistical Abstract

of Latin America, Vol. 34 (1997).................45. 19

World Bank, Poverty, World Development Indicators

SE Ge Pah si ncneneshaondnudgdatnadakdbeeseos 11

I. INTRODUCTION!

A critical question in this case is whether the Board

of Immigration Appeals [hereinafter “Board”] correctly

determined that student protests involving bus burning

and related activity were serious “nonpolitical” offenses

disqualifying Guatemalan former student activist Juan

Anjbal Aguirre-Aguirre [hereinafter “Aguirre”] from pro-

tection against persecution. Consideration of relevant

Guatemalan history and political conditions leads ines-

capably to the conclusion that Aguirre’s actions were a

form of political protest, not common criminal behavior.

But the Board did not consider Guatemalan political con-

ditions. The Board evaluated Aguirre’s actions in a vac-

uum, as if application of controlling legal standards

would be the same whether the protests occurred in

Guatemala or anywhere else in the world.

Courts and the Board have consistently stressed the

importance of background conditions in deciding per-

secution cases.? The test which has been adopted by the

1 The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amicus Curiae, its members,

or its counsel made a monetary contribution to the preparation

and submission of this brief.

2 Coriolan v. INS, 559 F.2d 993, 1002-1003 (5th Cir. 1977);

Matter of Exame, 18 1&N Dec. 303, 305 (BIA 1982); Matter of

Mogharrabi, 19 1&N Dec. 439 (BIA 1987); Matter of Dass, 20 1&N

120 (BIA 1989); Matter of Chang, 20 1&N 38 (BIA 1989); Ramirez-

Rivas v. INS, 899 F.2d 864, 870 (9th Cir. 1990); Matter of T, 20 1&N

571 (BIA 1992); Osorio r INS, 18 F.3d 1017 (2d Cir. 1994); Cordero-

Trejo v. INS, 40 F.3d 482 (1st Cir. 1994); Matter of S.M.J., Int. Dec.

3303 (BIA 1997). Credibility determinations also depend on the

plausible context of country conditions. 8 C.F.R. 208.16(b)

Board in determining what is a “serious nonpolitical

crime”* requires an assessment of country conditions and

cannot be applied in a vacuum. Relevant factors, such as

political motive, proportionality to political objectives,

and political legitimacy of the protestor’s conduct

depend on contextual evidence.* Aguirre sought to

and 208.13(a) (1995) [regulation in effect throughout Aguirre’s

proceedings, discussed in Cordero-Trejo v. INS, 40 F.3d at

491].

3 As detailed in Respondent's Brief, the Board in Matter of

McMullen set forth the standard for determining a “serious

nonpolitical crime” under 8 U.S.C. 1253(h)(2)(C)(1994): “[iJn

evaluating the political nature of a crime, we consider it

important that the political aspects outweigh its common-law

character. This would not be the case if the crime is grossly out

of proportion to the political objective or if it involves acts of an

atrocious nature.” Matter of McMullen, 19 1&N Dec. 90, 98 (BIA

1984), aff'd, 788 F.2d 591 (9th Cir. 1986). This language is nearly

identical to language in Paragraph 152 of the United Nations

High Commissioner for Refugees’ Handbook on Procedures and

Criteria for Determining Refugee Status under the 1951 Convention

and the 1967 Protocol Relating to the Status of Refugees (Geneva,

1979). The Ninth Circuit subsequently affirmed this

interpretation: “a ‘balancing approach’ including consideration

of the offense’s ‘proportionality’ to its objective and its degree

of atrocity makes good sense.” McMullen v. INS, 788 F.2d 591,

596 (9th Cir. 1986).

4 Matter of McMullen, 19 1&N Dec. at 98; McMullen v. INS,

788 F.2d at 597-598; UNHCR Handbook, supra; Osorio v. INS, 18

F.3d at 1029-30 (Guatemalan conditions probative of

persecutor’s political motives). The Board’s analysis of the

relationship between McMullen’s actions and objectives in that

seminal case relied heavily on 37 exhibits about conditions in

Ireland, Matter of McMullen, 19 1&N Dec. at 92 n.2 and at 98. The

Board also quoted a United Nations study stating that the

legitimacy of a cause does not “in itself” legitimize certain

forms of protest, suggesting that it may be relevant in

oe A Tat Ee Ria A ile Ne tg a

compel the government to investigate and punish those

responsible for brutal assassinations of students, and to

halt the authorization of extraordinary bus fare increases.

The latter was not a trifling matter, but one that threatened

the very survival of impoverished Guatemalans. As Gua-

temalan country conditions clearly indicate, Aguirre’s

actions were proportional to these political objectives.

This Court should uphold the decision to remand,

because the Court of Appeals correctly determined that

the Board did not evaluate the character of Aguirre’s

protests in the context of country conditions, and there-

fore did not properly apply its own test.

Il. STATEMENT OF INTEREST

Amici are human rights, legal and other public inter-

est organizations that work on behalf of individuals who

fled persecution in Guatemala or other countries with

serious human rights abuses. Amici have a strong interest

in ensuring that decisions about relief from persecution

combination with other factors. Id. at 99 (citations omitted).

Legitimacy was directly addressed in Matter of Izatula, 20 1&N

149 (BIA 1990) (helping irregular armed forces overthrow a

government, though unlawful, was a legitimate form of protest

because of lack of opportunities for peaceful dissent in the

applicant’s country.) There, the Board cited a federal district

court case holding that political strictures may legitimize

unlawful conduct such as aiding a fellow dissident escape from

prison, and that legitimacy analysis requires “[a]n accurate

assessment of the political conditions existing in the particular

country at the time the political crime is committed... . ”

Dwomoh v. Sava, 696 F. Supp. 970, 979 (S.D.N.Y. 1988). Even INS

admits that context is essential. Pet. Br. at 15 and 22.

are grounded in an accurate appraisal of relevant political

conditions. Particularized statements of interest are set

forth at Appendix A.

Ill. STATEMENT OF THE CASE

Amici rely on Respondent’s Statement of Facts. The

issue of whether Aguirre injured civilians, however, war-

rants additional comment. The Immigration Judge found

that Aguirre did not hurt anyone. Administrative Record

[hereinafter “AR”] 54. This was based on his testimony,

AR 93 (lines 10-18), which the Judge found credible. AR

51. Because the BIA did not reject the credibility deter-

mination, or identify an independent record source for

contrary findings, the Court of Appeals correctly

assumed that Aguirre’s participation in bus burnings

involved damage to property, not people — and that force

was used only to protect civilians by getting them away

from the buses. See AR 93 (lines 10-11) and Aguirre-

Aguirre v. INS, 121 F.3d 521 at 523 and 524 (9th Cir. 1997).

To the extent that inaccuracies in translation and tran-

scription of Aguirre’s testimony affect the integrity of

those conclusions, the matter should be remanded to the

Board to remedy.® Even if his protests involved more than

> Respondent and Petitioner disagree, for example, about

whether students threw stones at buses or passengers. See

Motion for Remand (Appendix to Resp. Br.) and Pet. Br. at 8, 13,

14, 45, 47. This disagreement turns largely on the transcription

and translation of Aguirre’s tape-recorded testimony in Spanish

regarding the pronoun he used when testifying about throwing

stones. After careful review of the oral testimony and

transcripts, Amici agree with Respondent that the original

transcript is in error. Moreover, the corrected transcript is more

consistent with background material, discussed infra, about

property damage, the determination about whether they

were serious nonpolitical crimes required reference to

Guatemalan country conditions.

IV. SUMMARY OF ARGUMENT

The Court of Appeals correctly determined that the

Board erred in applying the serious nonpolitical crime

standard to Aguirre. Aguirre-Aguirre v. INS, 121 F.3d at

523. The Board reached the conclusion that Aguirre’s

protests between 1989-1992 constituted serious nonpoliti-

cal crimes without considering any evidence regarding

conditions in Guatemala. AR 6-10 (Board decision).

Aguirre’s Exhibit 2 contained four documents which

revealed significant constraints on political expression in

Guatemala as well as the Guatemalan government’s com-

plicity in a wide range of abuses and atrocities. AR

149-179A. Exhibit 2 supported Aguirre’s claim that his

actions did not constitute serious nonpolitical crimes

because they were politically motivated by the govern-

ment’s misconduct; were targeted at the government,

which was not an innocent party; were directly in

response to specific government practices, such as refusal

to investigate student assassinations; and were justified

by the lack of meaningful opportunity for more passive

forms of political expression in Guatemala.®

how and why bus-burning protests occurred. Bus burnings had

broad popular support and were carried out by passengers, not

just students, casting doubt on the notion that the two groups

were in conflict.

6 Try as INS might to show that substantial evidence

supported the Board’s decision, Pet. Br. at 44-48, its argument

V. ARGUMENT

GUATEMALAN HISTORY AND POLITICAL CONDI-

TIONS DEMONSTRATE THAT AGUIRRE’S ACTIONS

WERE LEGITIMATE POLITICAL PROTEST

The subjects of Juan Aguirre’s protests — the Gua-

temalan government's abysmal failure to investigate the

assassination of students and his country’s conflict-rid-

den transportation system —- as well as the form of his

protest — bus burning and incidental damaging of prop-

erty — had clear precedents in Guatemalan political his-

tory. Such protests occurred because these issues had

become extremely significant to the Guatemalan public,

whose channels for more benign forms of dissent were

severely circumscribed.”

necessarily fails. A determination reliant on excluding highly

probative evidence can be neither “substantial” nor “on the

record as a whole.” See Allentown Mack Sales and Service, Inc. v.

NLRB, 118 S. Ct. 818, 824-825 (1998) (NLRB wrong to exclude

evidence that “contributes to” satisfaction of legal standard);

Motor Vehicle Manufacturers Assn, Inc. v. State Farm Mutual

Automobile Insurance Co., 463 U.S. 29, 43 (1983) (“agency must

examine the relevant data”); and Universal Camera Corp. v.

NLRB, 340 U.S. 474 (1951).

7 The Guatemalan background material which follows is

offered to aid the Court in deciding the legal issues and

underscores the significance of Aguirre’s Exhibit 2. See Regents

v. Bakke, 438 U.S. 265, 316-17, 321-24 (1978) (extra-record

material regarding admissions policies of amici); New Jersey v.

T.L.O., 469 U.S. 325, 339 (1985) (social science material about

drugs and violence in schools); Ravindran v. INS, 976 F.2d 754,

756 (Ist. Cir. 1992) (background history of ethnic conflict

between Sinhalese and Tamils in Sri Lanka); Bajwa v. Cobb, 727

F. Supp. 53 at n.2 (D. Mass. 1989) (extra-record sources

explaining facts in record about Sikhs of India).

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Weaknesses of the Guatemalan Electoral System®

As late as 1969, when Aguirre was born in Jutiapa,

Guatemala, AR 69, his country had had virtually no expe-

rience with democratically elected civilian presidents.

Leaders were installed by irregular means and extended

their stay by force or fraud, and the military was deeply

involved, both directly and indirectly, in the nation’s

governance.’ In 1954, Jacobo Arbenz Guzman was top-

pled in a coup d'etat which marked a turning point in

Guatemalan history. Thereafter, Guatemala became

increasingly militarized’® and came to be governed pri-

marily by death squad. Under the regime of Colonel

& The sources for this general historical background section

are: AR 171-179; AR 154-170; AR 150-153 (all part of Ex. 2); John

Dombrowski et al., Area Handbook for Guatemala (1970); Alvaro

Vargas Llosa and Santiago Aroca, Riding the Tiger (1995); Victor

Perera, Unfinished Conquest: The Guatemalan Tragedy (1993);

George Black et al., “Lucas Garcia: The Descent Into Anarchy,”

North American Congress on Latin America (NACLA) Report on the

Americas, Vol. 17, No. 1 (1983); Susanne Jonas, The Battle for

Guatemala (1991); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass.

1995); and Osorio v. INS, 18 F.3d at 1023-1032.

* In 1839, Rafael Carrera became the first of Guatemala’s

dictators, ruling either directly or through puppets for the next

26 years and “set[ting] the trend of autocratic government

which characterized both Guatemala and her neighbors for the

next 100 years.” Dombrowski, supra, at 25-26.

* Colonel Carlos Castillo Armas headed the governing

junta. He was followed by Miguel Ydigoras Fuentes, a former

general, toppled in another coup; Colonel Peralta Azurdia,

Minister of Defense, took over until 1966, a period during which

the armed opposition “in response to oppression by

the previous regimes,” AR 176 (Ex. 2). The administration of

civilian president Julio César Méndez Montenegro was

“completely controlled by the military.” AR 156 (Ex. 2).

Carlos Arana Osorio, “the butcher of Zacapa” [Victor

Perera, Unfinished Conquest: The Guatemalan Tragedy (1993)

at 42], approximately 15,000 people were assassinated.

The military regime of Romeo Lucas Garcia (1978-1982)

ushered in a reign of terror which made Guatemala infa-

mous. He was followed by General Angel Anfbal

Guevara, General Efrain Rios Montt, and General Oscar

Humberto Mejia Victores.

In 1986, Vinicio Cerezo Arévalo was elected: “[flor

many Guatemalans, the election was viewed as a chance

to set Guatemala on a new path that would liberate the

country from the terror of the past.” AR 156 (Ex. 2). The

prediction, however, “never materialized,” Osorio v. INS,

18 F.3d at 1026, as “ .. . the military continued to be the

final arbiter of political and economic change.” AR 156

(Ex. 2). Although INS asserts that “freely elected civilian

governments have been in power” since 1986 and that

“peaceful transfers of power have been effected without

violence” (Pet. Br. at 9), nothing could be further from the

truth. On paper, Cerezo’s civilian government restored

Guatemala to the rule of law and a limited form of

political pluralism. In practice, the “political opening”

was a cruel hoax. Under Cerezo’s administration, politi-

cal violence increased. See discussion of human rights

violations, infra.

Under President Jorge Serrano Elias, the situation

deteriorated further, with “Guatemala again descending

into a spiral of fear and violence.” AR 176 (Ex. 2). In 1993,

fearing an end to impunity for the human rights viola-

tions of the armed forces, Serrano suspended the

Supreme and Constitutional courts to rule by decree.

Ramiro de Leén Carpio and moderate elements of the

military forced Serrano from power, and de Leén Carpio

was elected by Congress to serve out the term. Then, in

what was widely perceived as a warning to de Ledén

Carpio, his cousin Jorge Carpio Nicolle — the head of the

Unién Central Nacional party (UCN) — was assassinated

by elements of the military aligned with Serrano.

Stopping Dissent: The Desaparecidos

Between the 1960’s and the 1980’s, many popular

movements emerged in Guatemala, fueled by economic

crisis and the impact of the civil war. Susanne Jonas, The

Battle for Guatemala (1991). Inevitably, these movements

were weakened by the human rights violations which

became a persistent phenomena after the overthrow of

Arbenz. Guatemala became famous for its extensive use

of forced “disappearance” to silence political dissent.

Indeed, it was in Guatemala that the word desaparecido

(disappeared) was added to the international language of

state violence. Duncan Green, Guatemala: Burden of Para-

dise (1992) at 33. See AR 159 (Ex. 2).'! Between 1978 and

1984, over 140,000 people were killed or disappeared. AR

159 (Ex. 2). Guatemala became “an international pariah.”

AR 163 (Ex. 2).

Aguirre’s student activism (1989-1992) spanned two

administrations, Cerezo’s and Serrano’s. AR 70. Although

the level of human rights abuses declined during the first

1! During Colonel Arana’s regime, when Aguirre was still a

child, “vigilante death squadrons composed largely of ranchers

and off-duty police units” took eight thousand lives, including

those of students. Perera, supra, at 41-42; AR 176 (Ex. 2). The

Lucas Garcia regime was responsible for “the cruelest show of

violence in modern Guatemalan history.” AR 176 (Ex. 2).

two years of Cerezo’s administration, expectations that

he could curb political violence “were short-lived.” AR

176 (Ex. 2); accord, Osorio v. INS, 18 F.3d at 1026. There

were “more political assassinations in 1987 than in 1985,

“12

before Cerezo took office.

The culture of decades of disappearance and torture,

perpetrated by security forces, was revealed to the out-

side world in 1989 when Guatemalan National Police

brazenly kidnaped and tortured Sister Diana Ortiz, an

American nun. They took her to a clandestine detention

center where she was burned, beaten, sexually abused

and subjected to other horrific tortures. Years later in the

U.S., a federal court found General Hector Gramajo

legally responsible for the brutality, because he was

Cerezo’s Minister of Defense from 1987 until 1990 and

controlled both the National Police and a special security

force that answered directly to him. Xuncax v. Gramajo,

886 F.Supp. at 173-175.

Torture, attacks and illegal detentions continued

under Serrano’s administration. AR 176-177 and AR 150

(both Ex. 2). Aside from abductions and disappearances,

the official Guatemalan Human Rights Ombudsman, who

the U.S. Department of State termed the “most reliable

'2 Jonas, supra, at 163; AR 160 and 176 (Ex. 2); Cordero-Trejo

v. INS, 40 F.3d at 488 (widespread use of violence as vehicle for

intimidation); Osorio v. INS, 18 F.3d at 1023-1026 (kidnaping,

death threats, wounding, disappearances, and murders of

political dissidents — including students - between 1986 and

1990). As “security forces continued to assassinate, disappear

and harass,” AR 176 (Ex. 2), Cerezo dismissed charges of human

rights abuses, going so far as to claim that the incidents arose

from family-related violence. AR 159 (Ex. 2).

source of objective information,” listed 304 political kill-

ings in 1990 and 258 in 1991.'° The same proportion of

deaths in the U.S. population of 1998 would equal more

than 7,500 political murders in one year.'* Such violence

did not escape Jutiapa, where Aguirre lived.'° Gua-

temala’s popular movements were weakened by their

“continuing vulnerability to the endless stream of kid-

nappings, disappearances, death threats, and assassina-

tions.” Jonas, supra, at 186.

How the Students Resisted

Perhaps because of the extremism which ruled Gua-

temala and the pervasiveness of human rights abuses,

students were deeply engaged in Guatemalan politics.'®

13 U.S. Department of State, Country Reports on Human

Rights Practices for 1990, at 632, and Country Reports on Human

Rights Practices for 1991, at 614, 620-621.

14 See World Bank, Poverty, World Development Indicators

(1990), at 228 and U.S. Department of Commerce, Statistical

Abstract of the United States: The National Data Book, 117th ed.

(1997) (In 1998, the lowest range for the population projections

of the U.S. was 268.4 million).

iS App. B-2, B-8, C-5. (The Appendix includes translations

of Spanish-language articles from Guatemala; their original text

in Spanish is being lodged with the Court, together with the

translator's signed certification.)

16 They demonstrated during the 1920's against the dictator

Estrada Cabrera (App. C-27) and were key in political battles of

the 1940’s — when the University of San Carlos community

(USAC) launched the national strike that led to dictator Ubica’s

overthrow. AR 168 (Ex. 2); Dombrowski, supra, at 32. Students

helped topple the military junta led by Ponce in 1945. App.

C-27. In the 1950's, the law school at USAC was involved in

Students participated in numerous demonstrations con-

cerning human rights and social justice. For example,

5,000 students and farmers marched in Guatemala City in

1990 demanding “an end to military-police human rights

violations.”!7 These were issues Aguirre and fellow stu-

dents in Jutiapa were also protesting at the time. AR

71-72, 80-81, 99. .

University students were at the vanguard of the

movement, AR 168 (Ex. 2), although secondary school

students figured prominently as well. AR 169 (Ex. 2) and

App. C-27 (large numbers protested fraud over Congres-

sional elections in 1962 and organized a strike in 1988).

The Price of Student Protest

Under the military regimes that ruled after the 1954

coup, as well as nominally civilian regimes controlled by

the military, the student movement suffered.!® In one

publishing critiques of the Arbenz government before his

overthrow. AR 168 (Ex. 2).

'? Reese Erlich, “Guatemalan Civilians Talk Peace, Nudge

Reluctant Military,” Christian Science Monitor, September 26,

1990.

8 App. C-27. During Ydigoras’ administration, security

forces invaded USAC law school and killed three students

during their annual Huelga de Dolores (strike of sorrows). Id.

University buildings were shot at by land and by helicopter. Id.

During the administration of Colonel Arana, security forces

prevented paraders from leaving the university during the

Huelga. AR 169 (Ex. 2). In 1978, the former dean of the USAC law

school was machine-gunned to death and two student leaders

executed. App. C-27. Violence and brutality decimated the

student movement during the Lucas Garcia and Rios Montt

regimes. Id. and AR 168 (Ex. 2).

incident in 1980, several university students were killed

for reading a list of grievances at a foreign embassy:

“li]gnoring the Embassy’s sovereign immunity, the police

burned the building, leaving just two survivors, the Span-

ish Ambassador and one of the farm workers” participat-

ing in the protest. The injured farmworker was kidnaped

from a hospital and his tortured body was found the next

day on the USAC campus - as a lesson. App. C-27. See

also Young v. INS, 759 F.2d 450, 452 (Sth Cir. 1985) (former

USAC activist seized by Guatemalan secret police during

a meeting at the university in 1981, then taken to a

clandestine detention center and beaten).

Politically motivated violence against students

increased during Cerezo’s administration. Students

reported a multitude of death threats, were beaten uncon-

cious in front of neighbors, were taken away in cars, and

were abducted in view of passing police.’

19 Osorio v. INS, 18 F.3d at 1024-1026; AR 160 and 169 (Ex. 2)

(wave of student disappearances and deaths in 1989; entire

governing council of AEU nationwide university students

association killed, disappeared, exiled, or in hiding; the killings

seemed “designed by the army as a reminder to students that

their activities were being closely watched”); AR 150 (Ex. 2)

(five students apparently executed by government officials).

Jonas, supra, at 163 (students among groups targeted by a

“macabre ‘message system,’ in which ultra right death squads

and/or security forces . . . acted against specific individuals in

order to intimidate entire constituencies”); Tom Gibb, “A Surge

of Political Kidnappings, Slayings in Guatemala,” The San

Francisco Chronicle, Sept. 23, 1989 (students active in anti-

government organizations kidnaped); Marjorie Miller,

“Rightists Blamed for Wave of Violence in Guatemala,” Los

Angeles Times, Sept. 26, 1989 (death threats); Amnesty

International, Reports Regarding Guatemala from Jan.-Dec. 1989

Students were also brutally targeted in Jutiapa,

where Aguirre lived. App. C-1. Throughout his life,

Aguirre was surrounded by evidence of government vio-

lence against students, and it became one of two main

reasons for his protests. AR 71-72, 80-81, 94.

Avenues for students to engage in political protest

were exceptionally narrow. To change the practices of

their government they faced numerous obstacles:

¢ They were attacked during meetings and

their meeting places were bombed or placed

under surveillance.?°

e They were beaten and shot at or harassed

during parades, at demonstrations or in

other public fora in which they might

express themselves.?!

(1990) at 105 (abductions in view of police); Amnesty

International, Guatemala: The Human Rights Record (1987) at

26-27, 113-115, 215-217; and the Center for Human Rights and

Constitutional Law and Guatemalan Support Network, Crisis

Point: Human Rights in Guatemala Under President Serrano, Jan.

1991 to July 1992 (1992) at 71-74 (detailed lists of disappeared,

kidnaped, and abducted students).

20 Young v. INS, 759 F.2d at 759; App. C-8, C-9, C-10, C-12,

C-19, C-22, C-23; U.S. Department of State, Country Reports for

Human Rights Practices for 1992, at 408; App. C-27 (offices

bombed 1992); Crisis Point, supra, at 71.

*1 Country Reports for 1992, supra, at 408; AR 169 (Ex. 2),

App. C-2, C-13, C-11, C-12, C-20 (harmed while preparing for or

engaging in parades such as Huelga de Dolores); App. C-3, C-14,

C-15 (students harmed, threatened or interfered with while

attempting to demonstrate); Amnesty International, Guatemala:

Human Rights Violations under the Civilian Government (1989) at

17 (student killed moments after he addressed public rally);

App. C-27 (1980 events); “News Around the World,” The Dallas

e Their other efforts to organize or engage in

relatively peaceful political activities were

met with violence or recalcitrance by the

authorities.??

The Disturbios of the 1970s, 80s and 90s

The bus burnings in which Aguirre participated

between 1989 and 1992 were not uncommon phenomena

in Guatemalan history. Disturbios (disturbances) of this

nature originated some twenty years earlier. App. B-1 and

B-12. Such events were widespread, drawing support

from students, passengers, campesinos (peasants) and

workers, and becoming regular phenomena on the Gua-

temalan political landscape. App. C-30, C-29, C-28, C-31,

B-1; Jonas, supra, at 181.

Such disturbances were inextricably linked to the

disintegration of human rights and basic economic order

which ordinary Guatemalan citizens could not escape.

One source attributed the 1970s disturbios against bus rate

increases to the crisis of the Guatemalan economy as well

as the use of force by National Police to thwart peaceful

Morning News, April 1, 1990 (three university students slain in

April 1990, after they set out to collect funds for the Huelga).

22 App. C-21 (students putting on human rights play in

1992 received bomb threat); App. C-24 (students who took legal

action against security forces for killings received death

threats); App. C-6 and C-7 (students who gave human rights

evidence to U.N. Commission harassed by police); Amnesty

International Report (1979) (efforts to negotiate rebuffed); AR 169

and App. C-23 (newspapers and other publications”

suppressed).

protest - which escalated the violence. App. B-1; see also

“Lucas Garcia: The Descent Into Anarchy,” supra, at 20-21.

Similarly, another commentator noted regarding protests

against the 1985 bus fare and price increases, that

“[aJlthough the initial call was for peaceful demonstra-

tions, the government's violent response provoked bus

burnings and riots on a scale not seen since October

1978.” Jonas, supra, at 181. See also App. C-27 (1994 pro-

tests).

The People Versus the Transportistas

Why and how the political sentiments of students,

peasants, workers and passengers became manifest in the

burning of buses had a great deal to do with the Gua-

temalan public’s valid perception of the transportation

system as a microcosm, in its abuse of power, of the

country as a whole. =

The buses were privately owned by a cadre of power-

ful companies, the transportistas, which generated profits

derived from fares, direct government subsidies, special

government subsidies for students, and a separate gov-

ernment subsidy for fuel. App. B-11, B-3, B-6, B-4, B-14,

B-7, B-9, B-12, C-29, C-28, C-30. The transportistas system-

atically ignored essential repairs and allowed vehicles to

be operated under unsafe and dangerous conditions.

App. C-29 (transportistas kept buses in permanent disre-

pair, encouraged overloading and dangling of riders,

encouraged drivers to race each other for fares, endan-

gered passenger lives and caused accidents); App. C-28

(buses a “public hazard” - two passengers killed, a third

seriously injured when driver braked suddenly, failed to

stop to attend to victims, and simply continued on his

route); App. B-12 (transportistas haven't kept promises to

improve service for twenty years, have only caused it to

deteriorate); App. B-4, B-9. Guatemalan newspapers aptly

characterized travel under such conditions as the pas-

sengers’ “Calvary” (App. B-12, B-9) —- a Roman Catholic

reference to Jesus Christ’s tortuous march to the site of

his crucifixion while carrying a heavy wood cross and

wearing a crown of thorns.

The government was extensively involved in the

transportation system. Fares were regulated by municipal

and national governments (App. C-28, B-11, B-6, B-3, B-4,

B-10, B-1); governmental commissions and agencies eval-

uated the propriety of increases (App. B-3, B-11, B-1); the

government provided funding for new buses (App. C-29,

B-14); the Ministry of Education was responsible for over-

sight of the students’ subsidy program (App. B-7); and

the government set critical policies which affected pas-

senger use (App. B-14 [tax exemptions to transportistas for

capital purchases], App. C-29 [penalties for drivers and

bus companies that violate transit regulations], App. B-13

[imposing fines and terminating concessions], App. B-12

[appointing ex-military officers to re-establish suspended

service}).

In 1990, the Cerezo administration issued a formal

decree declaring that the “collective ground transporta-

tion system of people and cargo across the entire national

territory” was a service “essential for the community”

which the Constitution authorized the state to guarantee.

App. B-5. Cerezo’s decree specifically permitted the

government to intervene to restore services and repair

vehicles. Id. But things did not improve much, even after

Aguirre left Guatemala. See App. C-29.

Against this backdrop, it was not surprising that rate

increase proposals were fiercely and widely opposed

(App. B-1, B-3, B-9, B-10, B-12); Jonas, supra, at 180-81.

Public opprobrium was further inflamed by the extraordi-

nary extent of fare increases, especially during the

1985-92 period when the economy was in chaos, as well

as by lawless methods transportistas employed to finagle

additional increases.

The Rate Increases Were Extraordinary

A central social characteristic of Guatemala was its

extreme poverty, measured by numerous social indicators

on which it ranked the worst in Central and/or Latin

America (the number of infants of low birth weight,

illiteracy rates, infant mortality, and overall life expec-

tancy). Jonas, supra, at 178-179. The Catholic Archbishop

of Guatemala City rejected the 1992 bus fare increases

because of their anticipated impact on this already strug-

gling populace. App. B-10. -

In 1990, the government authorized urban rate

increases of 100%, followed by 50% increases in 1992.

App. B-4 and B-11. During the 1989-1992 period, bus fares

increased from 10 centavos to.a minimum of 60 centavos

for older buses. App. B-11 and App. B-12. Also, bus

routes were shortened, often requiring double fares. App.

C-29. According to studies by the Guatemalan govern-

ment and university institutes, this meant that a family of

five had to spend 30% of their average income of 500

Quetzales for bus fare alone. App. B-14.% The same

studies concluded that a family of five required 754.80

Guetzales for a minimum subsistence. Id.

The situation was worse in rural areas such as

Jutiapa, in that these areas received only five percent of

the government subsidy. Although rural rates were gen-

erally lower, rural poverty was greater. App. C-27. Yet in

Quetzaltenango, bus owners increased fares from Q.0.25

to Q0.35 while continuing to receive a subsidy. App. B-13.

In 1997, when interurban fares went up more than 50%,

thousands of local campesinos in the outskirts of Chi-

chicastanengo, Quiché set up burning barricades and

stoned buses in protest against the increased rates. App.

C-31.

The Transportistas Acted Lawlessly

The transportistas exceeded even the significant lati-

tude provided them by the Guatemalan government.

They flouted rate regulations, deceived government offi-

cials, mistreated the public and engaged in other heavy-

handed tactics. In 1992, transportistas in the northwestern

city of Quetzaltenango imposed an unauthorized 25%

23 Average monthly salary of most workers in 1988, before

the sharp decline in their purchasing power, ranged between

Q.300.00 (services and office workers) and Q. 70 (domestics).

James Wilkie et al., co-editors, Statistical Abstract of Latin

America, Vol. 34 (1997), at 356 [Table 400, Evolution of Real

Wages]; Comisién Econémica Para América Latina y el Caribe,

Centroamérica: Evolucién de Algunas Macroeconémicas [Central

America: Evolution of Real Wages] (1996) at 36.

rate increase - even though they were receiving govern-

ment subsidies to provide services and despite local con-

gressional disapproval of such actions as illegal. App.

B-13. In 1990, the head of the congressional transporta-

tion commission refused to endorse a 100% rate increase

because the transportistas had misrepresented their costs,

claiming that they bought fuel at retail prices when they

received a preferential rate. App. B-3. See also App. B-12

(discussing the fiscal advantage exploited by transpor-

tistas during the 1970's by selling off more than half the

fuel they were provided by the government as a subsidy).

In 1990, transportistas imposed a de facto rate increase

of 100% on Guatemalan students by refusing to honor

discount coupons which guaranteed students a reduced

rate under federal law. App. B-6, B-7; “Guatemalan Stu-

dents Burn Buses to Protest Fares,” Reuters, Feb. 1, 1990.

The refusal to honor student coupons was denounced as

illegal by the Ministry of Education (App. B-7) as well as

the National Middle School Teachers Association (App.

B-6) and precipitated protests, including bus burnings by

high school students in the capitol in 1990. “Guatemalan

Students Burn Buses to Protest Fares,” supra. See also App.

B-8, describing machine-gunning of a middle school by

private police during one such protest. Students who

engaged in similar protests in 1992 and 1994 were gunned

down. App. C-25, C-28, C-30.

Why the Government Was the Target

By authorizing rate increases and subsidies, notwith-

standing the transportistas’ refusal to provide safe riding

conditions, by tolerating the transportistas’ illegal acts,

and by using excessive force against students and others

who protested, the Guatemalan government contributed

to and was necessarily implicated in virtually any protest

concerning the transportation system. But the fact that it

was propping up a transportation system rife with abuse

was not the only issue students had with the government.

In 1992, student protests increased in the aftermath

of police killing a student and wounding 17 others. “Two

Bombs Explode in Guatemala City,” Agence France

Presse (April 29, 1992). In the spring of that year (after

Aguirre had left Guatemala), high school students in

Guatemala City demonstrated by blocking traffic and

burning tires over the government's failure to provide

them with teachers or reasonable academic conditions.

App. C-15. When dozens of minors were arrested and

tortured as a result, other secondary school students

demonstrated.4 In the summer of 1993, students blocked

traffic and set up barricades to protest yet another

instance of governmental misconduct - police brutality

against peasants. “Students Block Traffic, Protest Police

Actions,” The Miami Herald (July 25, 1992).

Students were hamstrung in protesting human rights

abuses in less confrontational forums because the security

24 “Students, Cops Battle in Streets of Guatemala,” The San

Francisco Chronicle, May 1, 1992; App. C-14, C-16, C-17, C-18.

25 See also “Guatemalans Demand Explanation of

Thousands of Kidnapings,” Reuters, Aug. 31, 1990 (protesting

kidnapings and disappearances); App. C-4 (protesting

abduction of student leader); App. C-17 (protesting actions of

security forces during prior student uprisings).

forces did not permit it. During the years Aguirre pro-

tested student assassinations, security forces were never

held accountable for the overwhelming number of kid-

napings, disappearances, abuses and killings attributed

to them by international human rights organizations and

other informed sources.2° The Guatemalan government

did not investigate or prosecute these incidents,”” and

26 For each year Aguirre was involved in protests

concerning student disappearances [AR 71-72, 80-83], the U.S.

State Department attributed responsibility to Guatemalan

security forces, including military and police. U.S. Department

of State, Country Reports on Human Rights Practices for 1989, at

597; for 1990 at 632; for 1991 at 614; and for 1992 at 408. The 1991

report specifically found security forces involved in

disappearances and murder of students. Country Reports for

1991, supra, at 613. See also AR 159-161 (Ex. 2).

27 Guatemalan authorities were “either unable or unwilling

to apprehend or prosecute those involved in political killings,”

Country Reports for 1989, supra, at 600, and perpetrators were

“virtually never held accountable for human rights violations.”

See 1990 report, supra, at 632; 1991 report, supra, at 614; 1992

report, supra, at 408 (“security forces rarely held accountable for

human rights violations”). See also Cordero-Trejo v. INS, 40 F.3d at

488 (describing lack of response by authorities). Only one police

officer was prosecuted for human rights offenses during

1988-1990. The Americas Watch Committee, Messengers of Death:

Human Rights in Guatemala, November 1988-February 1990 (1990),

at 73-74. In 1995 the United Nations Human Rights Verification

Mission in Guatemala (MINUGUA) found that “[i]mpunity is

the most serious obstacle for the respect of human rights in

Guatemala.” The UN Report confirmed that grave human rights

violations “almost in their entirety remain without response by

the competent authorities.” Farhan Haq, “Guatemala: U.N.

Agency Finds Impunity for Rights Abuses,” Inter Press Service,

March 13, 1995.

courts and human rights tribunals were rendered impo-

tent by similar abuses perpetrated against participants in

legal proceedings.”® Consequently, the vehicles for chang-

ing the government's policy of tolerating, if not actually

committing, human rights abuses, like the vehicles for

changing other government-supported practices in Gua-

temala, were severely circumscribed. It was not surpris-

ing that students in Jutiapa, like students elsewhere,

included the impunity issue in their protests.

28 Guatemala’s judges were susceptible to intimidation and

corruption. Country Reports for 1990, supra, at 637, and for 1992

at 410. There was no resolution of cases dating back since 1985

in which the U.S. had expressed strong and continuing interest -

including the 1989 disappearance of 11 students at San Carlos

University, six of whom were later found murdered. Country

Reports for 1990, supra, at 632. See also The Minnesota Lawyers

International Human Rights Committee, Justice Suspended: The

Failure of the Habeas Corpus System in Guatemala (1990);

America’s Watch Committee, Messengers of Death, supra, at 74

(Guatemalan judiciary crippled and ineffective due to

corruption and fear of military reprisal against judges and

_ prosecutors).

Perpetrators of political killings likewise targeted human

rights monitors. AR 161 (Ex. 2); The Minnesota Lawyers

International Human Rights Committee, Justice Suspended,

supra. Individuals who tried to report on human rights

violations faced personal risk and were not guaranteed safety.

AR 161; Amnesty International, Guatemala: Human Rights

Violations under the Civilian Government, at 7. Guatemala was

“one of the most dangerous places in the world to be a human

rights activist, topping the list of murdered human rights

monitors in 1990.” AR 159 (Ex. 2). See also App. C-6 and C-7

(students threatened for testifying before human rights

tribunals).

Excessive Punishment for Involvement in Disturbios

Students and other Guatemalans involved in distur-

bios were punished exactly like political dissidents — by

irregular detention methods, physical mistreatment, tor-

ture, and even death. During the protests of 1974, police

retaliated by shooting at civilians, App. B-1, a precedent

repeated during the 1978 bus fare riots by the Lucas

Garcia administration. “Lucas Garcia: Descent into Anar-

chy,” supra at 21. During the 1985 bus burnings and riots,

the government's violence produced twelve deaths and

fifty injuries. Jonas, supra, at 181.

Students have been special targets of excessive vio-

lence from formal and informal security forces during

these types of protests. In 1990, private police machine-

gunned a high school student during a student protest

over the transportation system problems. App. B-8. In

April of 1992, more than 100 minors were arrested during

bus burnings, window-breakings and traffic stops that

broke out in the capitol in response to security forces

killing a student and wounding others, as well as to

academic problems which reached crisis proportions. AR

151; “Two Bombs Explode in Guatemala City,” Agence

France Presse, April 29, 1998. Some protesting students

were beaten and left without medical assistance by order

of the police. App. C-15, C-14, C-18. Thirteen-year-old

Amado Estuardo Lépez was beaten during the protest

and forced to drink chlorine in detention, which caused

injuries requiring surgery. AR 151; App. C-14, C-18, C-15.

There was evidence that these young people were tor-

tured: a juvenile court judge who visited the boys in

detention observed that they “had match burns on their

faces and backs,” contusions on their legs and com-

plained of having had “a red powder” thrown on them

which caused vomiting and allergic reactions. AR 151;

App. C-16. Some students were removed to isolated loca-

tions where authorities “then threatened to kill them.”

App. C-17.

These forms of extrajudicial punishment were

repeated in subsequent years, when students engaged in

similar protests. Abner Ariel Hernandez, a high school

student, was gunned down, App. C-25 (photo of students

carrying Hernandez’ coffin); police shot and killed uni-

versity student Mario Alioto Sanchez Lopez during pro-

tests in 1994, App. C-28. The long arm of repression has

even reached into the United States, where students who

produced a video about the Guatemalan student move-

ment, including the events of the 1990's, have been

unable to respond to e-mail messages because of fear of

reprisals. App. C-26.

VI. CONCLUSION

As the conditions clearly demonstrate, in the context

of Guatemalan history, it is impossible to characterize

Aguirre’s actions as “nonpolitical.” The judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

Iris Gomez, Esq.

Counsel of Record

James F. Situ, Esq.

AMAGDA Perez, Esq.

January 1999

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: Organizational Statements of Interest ...P. 1

APPENDIX B: Translations of Spanish language

newspaper articles from Guatemala

App. B-1 “Acute Social Unrest” (“Aguda Con-

vulsién Social”), Inforpress, Cen-

troamericana (October 5, 1978)......... P. 8

App. B-2. “Violence: Constant and Growing”

(“Violencia: constante y creciente”),

Inforpress, Centroamericana May 3,

PRA nkegds chobane Sagbarbadcetsecues ses P. 12

App. B-3 “Congress Will Not Support Fare

Increase” (“El Congreso no apoyara

aumento a los pasajeros”), Siglo Vein-

GCeeeme, BER BD, TIPO. wc wcvevcssccceuces P. 16

App. B-4 “Alfonso Alonso: Posture of Trans-

portation Providers Inconsistent with

the Public” (“Postura de transpor-

tistas inconsecuente con el pueblo”),

Prensa Libre, May 14, 1990 ............ P. BF

App. B-5 Guatemalan Ministry of the Interior

(Ministerio de Gobernacién), Accord

No. 66-90, Diario de Centro America,

3 § ff % eyes P. 18

App. B-6 “Teachers Support Students in Their

‘Just’ Demands” (“El magisterio apoya

alos alumnos en sus ‘justas’

demandas”), La Hora, June 4, 1990, at 5 ..P. 23

APPENDIX TABLE OF CONTENTS - Continued

App. B-7

App. B-8

App. B-9

App. B-10

App. B-11

App. B-12

App. B-13

Page

“Education Ministry Blames Trans-

portation Providers” (“Ministerio de

Educacién culpa a los autobuseros”),

Siglo Veintiuno, June 5, 1990, at 12 ....P. 24

“Political Violence Provokes Agita-

tion” (“Violencia politica provoca agita-

cién”) (Inforpress Centroamericana),

June 14, 1990 ........ 6... cece cere eens P. 26

“Transportation Users Protest the

Increase in Night Fares” (“Usuarios

protectan por alza de pasaje nocturno’ ), :

La Hora, July 18, 1991........---+++++> P. 3

“No Fixed Increase for Urban Trans-

port” (“Sin fijar alza en pasaje urbano”),

Prensa Libre, December 7, 1992 .......-- P. 33

“Two New Rates Are Fixed for Urban

Transport” (“Fijan dos tarifas para el

transporte urbano”), La Hora, Decem-

ee PPP P. 35

“Transportation Crisis and the Pas-

sengers’ Cross to Bear” (“Crisis del

transporte y el calvario de los usuarios”),

La Hora, December 12, 1992.....-.---- P. 37

“Bus Companies Impose New Fares

According to Whim” (“Transportistas

imponen tarifas antojadizas”), La Hora,

December 17, 1992.......--+0s+e++550% P. 39

ee ee

APPENDIX TABLE OF CONTENTS - Continued

Page

App. B-14 Edgar Aragon, “Economic Indicators

of the Urban Transportation Crisis”

(“Incidencia economica de la crisis del

transporte urbano”), La Hora, Decem-

DOE Bre OE bc cho do hwo a el chew cieac, P. 40

APPENDIX C: English language material

App. C-1

App. C-2

App. C-3

App. C-4

App. C-5

App. C-6

“Guatemala - Human Rights and

Security,” Central American Report,

(Inforpress Centroamericana), Vol.

XV, No. 34, September 2, 1988, at

ET Tr re P. 47

“Students Threatened by New Death

Squad,” Central America Report (Infor-

press Centroamericana), Vol. XVI, No.

Dp NOE. Dy SOUR, BE FO. on ce ccvccssnce P. 51

“Guatemala — Repression Hits the

National University,” Central America

Report (Inforpress Centroamericana),

Vol. XVI, No. 36, September 15, 1989,

Oe BN nid onc gh dons dees canbe bes P. 53

Pro Justice and Peace Committee of

Guatemala, “Case No. 5,” Human

Rights in Guatemala, 1990 Supplement,

RN I oS ra he bos Se oS odes es P. 58

“Extrajudicial Executions,” Human

Rights Update, #9 (Guatemala Human

Rights Commission/USA), March 11,

EE Mes Us dhs Ce cmedetsawistedaccs P. 59

“Urgent Action,” Amnesty Interna-

tional USA, July 19, 1991.............. P. 62

APPENDIX TABLE OF CONTENTS -— Continued

App. C-7

App. C-8

App. C-9

App. C-10

App. C-11

App. C-12

App. C-13

App. C-14

Page

“Urgent Action,” Amnesty Interna-

tional USA, August 30, 1991........... P. 66

“AEU Campus Headquarters Dyna-

mited,” Weekly Briefs (CERI-GUA Gua-

temalan News Agency), February 2-8,

Me Perro Tere ry Pri rere P. 69

“Intimidation Against Students Inten-

sifies,” Weekly Briefs (CERI-GUA Gua-

temalan News Agency), March 22-28,

SOU OD. Sniccasaseubcasbeorienriniass P. 70

“‘Powerful’ Bomb Explosion at Uni-

versity Reported,” Guatemala City

Teleonce Television, Mar. 26, 1992 (as

reported in FBIS, Latin America Daily

Report, March 27, 1992, at 11.......... P. 71

“Security Forces Accused of Killing

Student,” Panama City ACAN, April

10, 1992 (as reported in FBIS, Latin

America Daily Report, April 14, 1992,

OO DRED s i inc chon CEE EEG ee a kA ee oy 72

“Attacks Against San Carlos Univer-

sity Continue,” Weekly Briefs (CERI-

GUA Guatemalan News Agency),

April 19-25, 1992, at 2...........++.-- P. 77

“Guatemala — Student Killing Further

Discredits ‘Hunapu,” Central America

Report (Inforpress Centroamericana),

Vol XIX, No. 14, April 24, 1992, at 112 . .P. 78

“Policemen Attack Students,” Infor-

mation on Guatemala (Enfoprensa/

USA), No. 475, May 4, 1992, at 3-4....P. 81

An + A allem tc | =

APPENDIX TABLE OF CONTENTS - Continued

App. C-15

App. C-16

App. C-17

App. C-18

App. C-19

App. C-20

App. C-21

Page

“High School Students Attacked by

Police, Army,” Guatemala Human

Rights Update, #9/92 (Guatemala

Human Rights Commission/USA),

Wh Sa OE kb Sen ceed wsvasiene sik P. 82

“Students Released From Jail Show

signs of Abuse,” Guatemala City Siglo

Veintiuno, May 6, 1992, at 3 (as

reported in FBIS, Latin America Daily

Report, May 8, 1992, at 15)............ P. 83

“Teenage Students Tortured and

Threatened,” Weekly Briefs (CERI-

GUA Guatemalan News Agency),

a fo eee ee P. 85

“Police Forced Student to Swallow

Chlorine,” Guatemala Human Rights

Update, #10/92 (Guatemala Human

Rights Commission/USA), May 18,

Sees Ge Be OC USis chad obec Meda te hc nse P. 86

“Bomb Scares in High Schools Con-

tinue,” Guatemala Human Rights

Update, #12/92, (Guatemala Human

Rights Commission/USA), June 15,

Py GE Oh dbbdens cad aberstudebaca yeckcc P. 86

“Urgent Action Appeal,” Amnesty

International, July 9, 1992.............. P. 87

“Bomb Found in Theater,” Weekly

Briefs (CERI-GUA Guatemalan News

Agency), August 2-8, 1992, at 3....... P. 90

APPENDIX TABLE OF CONTENTS - Continued

Page

App. C-22 “AEU Offices Bombed,” Guatemala

App.

C-23

C-24

C-25

C-26

C-27

C-28

Human Rights Update, #20/92, Gua-

temala Human Rights Commission/

USA, October 5, 1992, p. 4............ P. 90

George Rodriguez, “Attacks

Denounced as Part of a Campaign of

Terror,” Inter Press Service (Peace-

Net) October 9, 1992 [as reported in

Central America NewsPak, Volume 7,

No. 18, October 5-18, 1992, at 8]...... P. 91

“Urgent Action Appeal,” Amnesty

International, October 8, 1992.......... P. 94

Guatemalan Student Initiative, Home

Page, www.alternativemedia.org /

EME T PPT T Ter TTT Tee P. 99

Guatemalan Student Initiative,

“About the Video No Nos Tientes! (Don't

Tempt Us: The Students of Guatemala”),

www.alternativemedia.org/gsi3

DR ss 6 ube cc aetnacdenetens tee se P. 101

Alternative Media, No Nos Tientes:

(Don't Tempt Us) The Students of Gua-

temala Teacher Manual, www.alter-

nativemedia.org/gsi study %20

BUGC DIA. Foi cvccncesesvenscccecses P. 106

“Ceiling on Transit Fares Removed,”

Jennifer Harbury Letters & Information,

www-personal.engin.umich.ed...ury /

archive/cerigua/cwb06 98b.html ..... P. 135

Vii

APPENDIX TABLE OF CONTENTS - Continued

App. C-29

App. C-30

App. C-31

Page

“Transit System Reform, a Mixed

Blessing,” Jennifer Harbury Letters &

Information, www-personal.engin.

umich.ed...ury/archive/cerigua/

EE PUREE o. 0b dhescncceSctexenscss P. 137

“Crisis ‘n Public Transit, an Annual

Event,” Jennifer Harbury Letters &

Information, www-personal.engin.

umich.ed...ury/archive/cerigua/

EE PPS 60 Cvwwaeecacecésccvccs P. 138

“Cost of Living Protests Begin,” Jen-

nifer Harbury Letters & Information,

www-personal.engin.umich.ed...ury /

archive/cerigua/cwb09 97.html....... P. 140

Ae nee tats

P. 1

APPENDIX A

ORGANIZATIONAL STATEMENTS OF INTEREST

National Organizations:

Guatemala Human Rights Commission/USA

Guatemala Human Rights Commission/USA (GHRC/

USA) is a non-profit, humanitarian organization founded

to monitor, document and report on the human rights

situation in Guatemala. GHRC/USA also promotes advo-

cacy for and aid to victims of human rights violations. In

addition to publishing a bi-weekly human rights update,

GHRC/USA provides funds for Guatemalan refugees to

give testimony before human rights tribunals about

human rights conditions in their country, trains lay peo-

ple to assist with mental health support for refugees, and

works with a coalition it helped found to end torture and

support survivors. GHRC/USA’s projects and its constit-

uents’ rights will be affected by a decision on the issues

raised in this case.

Maryknoll Office of Global Concerns — Washington DC

The Maryknoll Office of Global Concerns (MOGC) works

for peace, social justice and integrity of creation through

education and advocacy, in cooperation with other

Maryknoll departments and other institutions and orga-

nizations. This work includes policy advocacy on human

rights issues to the United Nations, the United States

government, and other governments. The work of the

MOGC (a collaborative ministry of the Maryknoll Sisters

Congregation, the Maryknoll Fathers and Brothers and

the Maryknoll Mission Association of the Faithful) also

P. 2

includes education and support for Maryknoll overseas

missioners, many of whom are in Central America.

Because of Maryknoll’s historic commitment to the

human rights issues in Guatemala, it will be affected by a

decision on the issues raised in this case.

Network in Solidarity With the People of Guatemala

(NISGUA) - Washington DC

Network in Solidarity With the People of Guatemala

(NISGUA) exists to link Guatemalan communities and

people in the United States in their support for the

human rights and socio-economic needs of Guatemalan

people. NISGUA educates North Americans to work for

justice in Guatemala, supports Guatemala’s grassroots

movements, and seeks to impact US policy towards Gua-

temala towards improving human and socio-economic

rights for all Guatemalans. NISGUA’s projects include

sponsoring of Guatemalan grassroots leaders to speak in

the United States, alerting local and national Guatemala

support groups in the United States about human rights

issues, campaigning for US policy forwarding peace and

socio-economic development in Guatemala, and publica-

tion of informational materials. NISGUA’s projects and its

constituents’ rights will be affected by a decision on the

issues raised in this case.

Washington Office on Latin America

Washington Office on Latin America (WOLA) promotes

human rights, democracy and social and economic justice

in Latin America by facilitating dialogue between govern-

mental and non-governmental actors, monitoring the

—

P. 3

impact of policies of governments and international orga-

nizations, and promoting alternatives through reporting,

education, training and advocacy. Founded in 1974 by a

coalition of religious and civic leaders, WOLA works

closely with civil society organizations and government

officials in Latin America. WOLA’s projects and the

human rights of Guatemalans with whom WOLA con-

cerns itself will be affected by a decision on the issues

raised in this case.

Local Organizations:

Atanasio Tzul “Guatemala Support Network” — Houston,

The Atanasio Tzul “Guatemala Support Network” (GSN)

serves the large Guatemalan expatriate population in the

Houston, Texas area. GSN advocates for the rights of

Guatemalans by working with other support groups

including the Atanasio Tzul Guatemalan Refugee Net-

work. GSN produces and distributes a monthly newslet-

ter, initiates forums and workshops, brings Guatemalan

speakers to share their experience with popwlar and

human rights organizations, and advocates on behalf of

exploited Guatemalan refugees. GSN’s projects and con-

stituents’ rights will be affected by a decision on the

issues raised in this case.

Central American Refugee Center (CARECEN) — Hemp-

stead, NY

The Central American Refugee Center (CARECEN) is a

non-profit organization meeting the large and growing

needs of the large Central American refugee community

P. 4

in the New York City and Long Island area. In addition to

community education work, CARECEN represents a high

volume of immigrant and refugee families in immigration

proceedings, with a particular emphasis on the needs of

asylum seekers. Its legal and paralegal staff work on

behalf of actual and potential Guatemalan asylum-

seekers whose rights will be affected by a decision on the

issues raised in this case.

Central American Resource Center (CARECEN) - Los

Angeles, CA

The Central American Resource Center (CARECEN) is a

non-profit organization meeting the large and growing

needs of the large Central American refugee community

in the Los Angeles, CA area. In addition to community

education work, CARECEN represents a high volume of

immigrant and refugee families in immigration proceed-

ings, with a particular emphasis on the needs of asylum

seekers. Its legal and paralegal staff work on behalf of

actual and potential Guatemalan asylum seekers whose

rights will be affected by a decision on the iss..es raised

in this case.

Casa de Proyecto Libertad — Harlingen, Texas

Casa de Proyecto Libertad in Harlingen, Texas, is a non-

profit organization that serves Central American refugees

passing through the Texas border area. Its mission is to

ensure that refugees, immigrants, and citizens receive the

civil and human rights protection guaranteed to them by

international and domestic law, as well as by moral and

humanitarian standards. To date, Proyecto Libertad has

P. 5

served over 15,000 clients, meeting their immigration

legal service needs and advocating for an accountable,

fair and dignified immigration system. Its staff work on

behalf of actual and potential Guatemalan asylum-

seekers whose rights will be affected by a decision on the

issues raised in this case.

Guatemaltecos Unidos en Accién of Rhode Island

(GUARI)

Guatemaltecos Unidos en Accién of Rhode Island

(GUARI) is a nonprofit organization comprised of indi-

viduals and groups throughout the state of Rhode Island

who are concerned about the welfare of Guatemalan

immigrants and refugees, and to that end work with

immigrant and refugee families to help them attain legal

status, and otherwise educate and provide activities for

this immigrant community. Its members work on behalf

of actual and potential Guatemalan asylum-seekers

whose rights will be affected by a decision on the issues

raised in this case.

Guatemalan Maya Center, Inc. — Lake Worth, FL

The Guatemalan Maya Center is a community based

organization dedicated to providing culturally enriched

education, health care, immigration and other support

services for a large number of primarily Mayan Gua-

temalan refugees in Southern Florida. Its multiethnic staff

works to meet the many and growing needs of displaced

Guatemalan refugees whose rights will be affected by a

decision on the issues raised in this case.

P. 6

Massachusetts Law Reform Institute

The Massachusetts Law Reform Institute is a statewide

legal services center that provides advocacy, training,

information and legal support for the benefit of low

income people, including immigrants, on a variety of

issues. These issues include asylum law and the process

by which administrative agencies make decisions. MLRI

has an ethnically diverse constituency representing many

nationalities, including Guatemalans, and is frequently

involved in matters affecting Guatemalan asylum-

seekers. MLRI has been involved in cases about the effect

of political conditions evidence on persecution claims and

in training pro bono attorneys about using such evidence

in their cases. MLRI's projects, clients and other constitu-

encies will be affected by a decision on the issues raised

in this case.

School of Law of the University of California at Davis,

Immigration Law Clinic

The School of Law of the University of California at Davis

established the Immigration Law Clinic in 1981 and rep-

resents indigent immigrants in deportation hearings

including political asylum cases. In addition to suc-

cessfully representing hundreds of Guatemalan asylum

seekers, the clinic also served as co-counsel in the case of

Xuncax v. Gramajo, 886 F. Supp. 162 (1995) in which the

Clinic’s clients obtained a default judgment of $47.5 mil-

lion against General Gramajo in favor of the plaintiffs.

The Clinic has also prepared and distributed a report on

the plight of Guatemalan Mayan refugees and current

conditions in Guatemala (“The Genocide of the Mayan

P. 7

Indians of the Villages of Western Guatemala”) and has

been involved in other human rights work related to

Guatemala. Its projects and cases will be affected by a

decision on the issues in this case.

P. 8

APPENDIX B-1

“Acute Social Unrest” [“Aguda Convulsién Social”|

(Inforpress Centroamericana), October 5, 1978

Violent actions of protest began in Guatemala City on

October 2nd and 48 hours later police forces were still unable

to contain them. An increase in urban transportation fares was

the cause of the protest that unleased the discontent expressed

by workers from various sectors, students, and citizens, which

followed an agreement reached by the President of the Repub-

lic, other executive officials, the Metropolitan Council and

representatives of the transportation companies. Nevertheless,

the protests are part of a period in which various methods of

discontent include acts that frequently end in violence in the

Capitol City as well as in the provinces and rural areas. In the

interior of the country more than one municipal mayor has

been forced to resign after receiving threats of being lynched.

In the rural areas land disputes are common and threats of

confrontations between litigants, with the consequence of army

intervention, have led to well known incidents. In various

cities, the inefficiency of the urban projects and of the mainte-

nance of services, including the scarcity of drinkable water,

insufficient drainage systems which cause floods, the shortage

of housing, the lack of resources directed to the growing stu-

dent population and the miserable state of the hospital system

are permanent cause for discontent. The labor conflicts have

advanced to the point that the takeover of factories is already a

common practice and when workers’ demands are not met, they

resort to other means of pressure, like hunger strikes carried

out in the streets or as in the case of the recent conflict of

“Duralita”, which resulted in the extreme measure of the take

over of the Swiss embassy (see the article in this edition of

P.9

INFORPRESS). These changes in the conduct of the country’s

inhabitants are occurring in an era considered an “economic

takeoff” in which rising export prices, returning capital depos-

ited in foreign banks, and a marked increase in public invest-

ment all support the modernization of agriculture, the growth

of the manufacturing industries and mainly, the expansion of

commercial activity. A representative characteristic of this

“takeoff” is the constant increase in the price of basic necessi-

ties and services at a rate considerably greater than the

increase in wages. In most cases, price increases cause only

isolated discontent, because there exists the personal option of

reducing or eliminating consumption. Transportation, how-

ever, is a service of such great importance for urban activities

that fare increases occasion many protests and in the last

decades all attempts to raise transportation fares have been

unsuccessful in Guatemala. Decisions in that respect have

caused violent protests which forced the revocation of fare

increases.

A. - PEACEFUL PROTEST, REPRESSION AND VIO-

LENCE. The protests against the fare increases began on

February 28 in the freeway known as the “Periphery

Ring” when neighbors from the area stopped traffic for 15

minutes. Afterwards, peaceful student protests took place

on September 29th when a group of secondary school

students gathered in front of the capitol’s municipal

building, and were then dispersed by the threatened use

of force by the National Police. On October 2nd, in the

neighborhoods of zone 19 and surrounding areas, neigh-

bors impeded the passing of vehicles and the presence of

the “Model Squad” caused confrontations that resulted in

beatings by both sides and numerous tear gassed individ-

uals. Soon after, the violent protests spread to other areas

P. 10

of the capitol and two days later, it was reported that an

indeterminate number of protestors were killed or shot,

several buses were destroyed, there was material damage

to many commercial establishments, a total suspension of

transportation services by the urban service companies,

reduction of small business operations, cessation of some

factory and state agency activity and it was estimated

that the country would see a decline in tourism. The

activity of protest groups has proved to be more innova-

tive than in the past. Generally, the disturbances are

restricted to the center of the city and damage suffered by

businesses is indiscriminate; but in this case, the distur-

bances originated in the surrounding neighborhoods and

the destruction of physical assets has affected a consider-

able number of businesses, though estimates of losses

have not yet been precisely calculated. In addition, fac-

tory labor unions in the city of Almatitlan, situated 28

kilometers from the capitol, stopped traffic and when

subdued by the police, three people suffered gun-shot

wounds, which in return, the groups of workers threat-

ened that if any of the wounded protestors died they

would stop production entirely.

B. - THE ATTEMPT TO REESTABLISH ORDER. Sev-

eral divisions of the National Police, which act as antiriot

forces, have resorted to violent methods not seen in pre-

vious encounters. Government spokespersons continue to

insist that the peace officers have not used firearms and

that they have express orders from the President of the

Republic to disband the protesters using other means.

Nevertheless, numerous photographs published by the

press and television news film footage show police shoot-

ing at groups of civilians. Of all the public protests staged

P. 11

by students and workers in the last ten years, there has

been only one known incident where firearms were used

during a protest, in May 1974, that occurred because of

the results of the presidential elections that year. During

the last decade disturbances in the streets have been

sporadic although always characterized by their inten-

sity; including the protest of the teachers movement in

April 1973 (see INFORPRESS, No. 38) and July of the

same year (see INFORPRESS, No. 50 and 52) as well as

the violent actions against urban buses in December and

January 1974. The fact that police have resorted to the use

of firearms in this most recent protest may have origi-

nated in the fact that the means used to dissolve the

August 4th protest of this year were not effective. (see

INFORPRESS, No. 305). In any case, the rejection of

armed repression has provoked widespread repudiation.

An editoriai in the “Nuevo Diario” on October 4th

affirms: “One saw the protest come but without even an

attempt to counter it verbally, but instead the intent was

to resolve the problem with gunshots and for this, the

capitol’s citizens today will be burying along with their

dead, their respect for authority.”

Cc. - LABOR DEMAND, MUNICIPAL INTERVEN-

TION AND FARE INCREASE. The increase in fares was

the culmination of a series of administrative failures to

resolve the transportation crisis. On July 13th, workers

from the bus companies began a labor stoppage to

demand an increase in wages (see INFORPRESS, No.

300). By governmental decree, the municipal government

convened a multilateral commission in an attempt to find

a solution to the conflict (see INFORPRESS, No. 301). On

P. 12

August 16th, the Metropolitan Council agreed with the

intervention of urban transportation, pursuant to the

prior resolution by the Labor Minister, to fix a minimum

salary for workers (see INFORPRESS, No. 305). On

August 24th, the failure of the municipal measure was

publicly recognized, and since that time urban transpor-

tation has returned to normal. (see INFORPRESS, No.

306). On September 26th an agreement was signed by the

President of the Republic, the Metropolitan Council and

representatives of the Association of Urban Bus Com-

panies to raise fares 100% over what they had been

before, from Q0.05 to Q0.10. Official commission studies

from previous years showed that the transportation crisis

originated from ineffective business organization and

that fare increases “would cause grave social, political

and economic consequences to the system that could

force the central government to settle matters by taking

drastic and irreparable measures against the existing

institutional system.” [(see INFORPRESS No. 306)].

APPENDIX B-2

“Violence: Constant and Growing” [“Violencia: con-

stante y creciente”| (Inforpress Centroamericana), May

3, 1990

The time period between the 17th and 30th of April

established a continued increase in violence that has

swept the country and has worsened in the last few

months (Inforpress 875, 881, 882). Again, San Marcos

P. 13

was the main stage for the most violent events, with the

highest number of people that were assassinated and

with signs of having been tortured, kidnaped, or with

bullet wounds. Within this context, the accounts of com-

mon violence were also part of the circumstances, char-

acterized by the economic crisis and electoral struggle.

During that particular period, a singular event occurred,

that being the capture of several police agents who were

accused of being “torturers and kidnappers.”

San Marcos, Center of Violence. In this context of

electoral and guerrilla struggle and the economic crisis,

the wave of violence continued severely impacting differ-

ent sectors of society but especially the campesino popu-

lation. The violent events, that because of their nature are

considered political, were concentrated for the most part

in the province of San Marcos, a region that for years has

been severely hit by drug trafficking and war.

That department reported 6 of a total of 18 deaths

that the press made known, which constitutes 33% of the

reported cases, while the department of Quezaltenango

was in second with 5 deaths, or 28%, making this depart-

ment also known for the confrontations between the mili-

tary and guerrillas that have taken place, especially in the

coastal area. Nevertheless, the numbers have tended to

diminish insofar as the previous reports that Inforpress

has obtained.

These same characteristics also explain why San

Marcos was the focus of almost the total number of

kidnaping cases that took place in the country. Thus, of

the ten kidnapings reported by the written press, 9 of

them took place in that department, which represents

P. 14

90% of the reported cases. It should be mentioned that in

the case of San Marcos, in the shorter period of February

19 —- April 17, the numbers surpassed the reported figures

totaling 8 kidnapings, thus showing the drastic increase

in the number of kidnapings throughout the country

Among the last accounts of violence presented by the

press is the assassination of José Maria Ixcayat, the direc-

tor of the Runujel Junam Ethnic Community Council

(CERJ] -—- Consejo de Comunidades Etnicas Runujel

Junam), which took place in the district of Pojopil, Solold,

at the moment he was getting ready to travel to the

capital to participate in the commemoration of the labor

day. Also, there was news of the death of a student from

the University of San Carlos of Guatemala (San Marcos

section), Victor Heriberto Velasquez Fuentes, after having

been kidnaped on April 24; his body was found with

several bullet wounds in different parts of his body. To

this information one must add the accusations made by

the Mutual Support Group (GAM - Grupo de Apoyo

Mutuo), that in the first four years of the Christian Demo-

cratic government, there have been 4 thousand political

assassinations, 1300 kidnapings, and 600 wounded in

attempted murders (El Grafico 2/5/90).

Police Involved In Common Violence. To this political

violence one must include the common violence that

deepens during economic crisis (and with increased

unemployment), and as the presidential election nears

Those factors would demonstrate why the majority of

these acts, deaths as well as kidnapings, are concentrated

in the capital, most of these acts are being provoked by

as‘ aults and attempted robberies, and reflecting the level

of dense population of the capital.

Ki Om Oe Ss ae ee

P15

In the same manner it is reported in the same time

period studied that 29 people were assassinated, equiva-

lent to two people a day of which nine cases occurred in

the capital, representing 31% of the total. Nevertheless

common violence extended to departments, such je

Jutiapa, where the second-most number of cases, 8 assas-

sinations, occurred (28% of total). In addition, the capital

reported 6 of the 8 kidnappings which occurred (75% of

total), and 7 of the 17 of the wounded reported. Among

the published information stands out the “Diario Si lo

XXI” (4/30/90), that stated that between April 28th and

29th there were 60 deaths and 108 wounded. Among

those cases was the assassination of two Sulvedemnens

pans a currency exchange after robbing them of

The information that Stands out the most was the

capture of 9 police agents accused of being “torturers and

rapists”, among them the head of the Office of Profes-

sional Responsibility (OPR), (formerly “Internal Affairs”)

Commissioner Eli Gonzales, (this office is in charge a

monitoring the actions of police agents), who along with

another agent is accused of torturing two members of the

Seventh Corps of the police. In this respect, information

from Geovanni Valerio Cardenas, the General Director of

the Police, indicates that between June of 1989 and April

of 1990, more than 150 agents have been fired finchedine

It should be noted that the cases reported here are not

es . { ' ne t r lea: e man , case =] t ” .

P. 16

» vr

chiefs and subchiefs) equivalent to 15 per month,

external and internal criminal acts.

APPENDIX B-3

“Congress Will Not Support Fare incsnes. 5S —_

greso no apoyara aumento a los pasajes |, Siglo Vein

tiuno, May 13, 1990

“ , « and

The Congress of the Republic has taken a st :

r1inst the new proposed fare increase for urban trans

. advocated by the Asso-

portation, rejecting the position | Sao nl

‘ation of Urban Transportation Companies, as as

= ' > 7 > >

sckmail they exercise to achieve their

. 7 > > >

ative Rafael Arriaga Martinez, Pre sident

ommittee of Communication,

pressure and bli

goals. Represent

) anaes ne

of the Congressiona >

: » legisia

Transportation and Public Works, stated that the leg

<4 ; ' : .

tive body will not back the transportation provide rs wh

» representatives

have formally solicited support from the represen

for a 100% fare increase

fe new

in Congress, Arriaga stated, we oppose a

: sti le and

increase in urban fares because it is not justifiab

> ° - Z ,

attempt to raise fares to 40 cents.

Inflated Costs

Although urban transportation providers have pre-

| ic ity w an

sented the Congress and the Municipality with

ee ae

ie.

P. 17

estimate of the increases in their operational costs, which

resulted from the economic crisis, the Chairman of the

Communications Committee pointed out that a new fare

increase on urban transportation is not justifiable. Rafael

Arriaga stated in his estimate that the transportation

providers contend that they acquire fuel at the same price

as common citizens, when in reality, they acquire it at a

preferential price of 2.76 quetzales. Aside from that, they

claim that they must buy new sets of tires every three

months, when it is known that they purchase new tires no

more than every nine months, because they retread all

tires twice before getting new ones. Arriaga stated that, in

this way, transportation providers are inflating their costs

to justify their claims when they continue to make large

monthly profits despite the economic crisis.

APPENDIX B-4

“Alfonso Alonso: Posture of Transportation Providers

Inconsistent with the Public” [“Postura de transpor-

tistas inconsecuente con el pueblo”| Prensa Libre, May

14, 1990

“The posture of the urban transportation service pro-

viders is inconsistent with the most economically needy

classes” said representative Alfonso Alonso, Christian

Democrat of the René de Leén Schlotter wing, when

commenting on the petition of the representatives of that

service, as they negotiate the authorization to increase the

P. 18

transportation fare to 40 centavos. He said ponding vee’

portation providers not only raised fares by 100% but ' -

they have enjoyed government subsidies as well, and stil

there is no guarantee that the population can count on

better service.

“It's impossible that the popular sector could pay

such a huge increase; this will come to brutally aggravate

the extreme poverty of the people”, he said lastly.

APPENDIX B-5

Guatemalan Ministry of the Interior, [Ministerio de

Gobernacién], Accord No. 66-90, Diario de Centro Amer-

ica, No. 82 May 21, 1990.

THE MINISTRY OF THE INTERIOR

It is hereby declared that the collective ground

transportation system of people and cargo across va

entire national territory is essential for the community

and as a consequence the provision of such services

cannot be suspended.

GOVERNMENT AGREEMENT

NUMBER 466-90

National Palace, Guatemala, May 21, 1990.

THE PRESIDENT OF THE REPUBLIC

CONSIDERING:

That some of the urban collective transportation

owners, in adopting certain measures, paralyzed public

iliac tes agen a POT

P. 19

transportation services, seriously prejudicing state secu-

rity, the public order, the national economy and the citi-

zens’ freedom to travel;

CONSIDERING:

That in accordance with the Political Constitution of

the Republic of Guatemala, the state is obligated to guar-

antee liberty, security and peace to the inhabitants of the

Republic. And so that this obligation may be met, it is

necessary for the state to adopt appropriate measures in

order to reinstate the essential public services for the

community;

CONSIDERING:

That the Political Constitution of the Republic of

Guatemala grants the State broad authority, in cases of

overriding crisis and strictly for the period necessary, to

take control of companies that provide essential public

services when their operations are interrupted

THEREFORE:

In the exercise of the authority conferred by section

(e) of article 183, of the Political Constitution of the

Republic of Guatemala, based on Articles 2 and 120 of the

Political Constitution of the Republic of Guatemala,

Under Ministerial Consultation

IT IS HEREBY AGREED:

ARTICLE 1. For compelling reasons, it is declared that the

collective ground transportation of people and of cargo

across the entire national territory is a public service

essential to the community and that it cannot be sus-

pended.

P. 20

ARTICLE 2. To take control of companies who deliver the

service of collective public transportation of people and

cargo across the entire national territory who have sus-

pended or intend to suspend said services.

ARTICLE 3. In order to make effective the measure stated

in the previous article, the municipalities of the nation as

provided in the Municipal Code, shall take control of

these companies and such take over will be communi-

cated to the Minister of the Interior, in coordination with

the Ministry of Communication, Transportation and Pub-

lic Works and from that time the authorities that have

effected the take overs shall act under direct orders from

The Minister of the Interior.

ARTICLE 4. The Minister of the Interior is expressly

authorized to do the following:

a). He shall use the public force to facilitate

and maintain the renewal and continuation of

service, public order, the citizens’ right to travel

freely, and to assure the protection of the integ-

rity, the people and their property.

b). He may employ all personnel that may be

necessary in order to make the intended take

overs effective.

c). He may direct all workshops of the State to

undertake the review and repair of all transpor-

tation units that, for whatever reason, are not

being utilized.

d). To finance costs resulting from the take

overs, with the profits of the enterprises that

have been taken over and should that not be

sufficient the Minister of Public Finance and the

pertinent Municipality are authorized to make

P. 21

any legal adjustments as may be appropriate to

make any payments necessary by billing Urban

Transportation’s Subsidiary funds and to estab-

lish an extraordinary fund specifically for that

purpose.

ARTICLE 5. The Comptroller General in charge of

accounts should undertake audits of the companies that

have been taken over in order to determine the correct

amount, application and necessity of the subsidies that

they have received from the state and equivalent -

actions will be undertaken by the Director of Fiscal

Inspections of the Ministry of Public Finances.

ARTICLE 6. The municipalities, in coordination with the

Public Ministry, will initiate civil actions and penalties

which correspond to the suspension of collective land

transport services of people and cargo.

ARTICLE 7. In order to facilitate this agreement the Civil

and Military authorities will lend all cooperation neces-

sary to the Minister of the Interior.

ARTICLE 8. The take overs undertaken pursuant to this

ministerial agreement will cease the moment that the

transportation companies normalize services.

ARTICLE 9. This agreement will take effect immediately

and will be published in the Diario Oficial.

MARCO VINICIO CEREZO AREVALO

Licenciado ROBERTO CARPIO NICOLLE,

Vicepresidente de la Republica

he SIGFRIDO MENDIZABAL G,

Ministro de Comunicaciones, Transporte

y Obras Publicas.

P. 22

Dr. CARLOS GEHLERT MATA,

Ministro de Salud Publica y Asistencia Social,

General de Brigada

JUAN LEONEL BOLANOS CHAVEZ,

Ministerio de la Defensa Nacional,

Ing. Agr. CARLOS DE LEON PRERA, ~

Ministro de Agricultura, Ganaderia y Alimentacion

CARLOS RENE ESCOBAR MONTENEGRO,

Ministro de Educacién.

Lic. CARLOS AUGUSTO MORALES VILLATORO,

Ministro de Gobernacién.

MARIO ALVEREZ GILL,

Encargado del Despacho.

Dr. CARLOS ENRIQUE SOTO M.

Ministro de Asuntos Especificos.

Lic. JOSE RODOLFO MALDONADO RUIZ,

Ministro de Trabajo y Provisién Social.

Lic. ANTONIO PALLARES BUONAFINA,

Viceministro de Relaciones Exteriores

Encargado del Despacho.

MARTA REGINA DE FAHSEN,

Viceministra de Cultura y Deportes,

Encargada del Despacho.

Lic. OSCAR HUMBERTO PINEDA ROBLES,

Ministro de Economia

JUAN FRANCISCO PINTO C.

Ministro de Finanzas Publicas.

Ing. RAUL EDUARDO CASTANEDA ILLESCAS,

Ministro de Energia y Minas

P. 23

APPENDIX B-6

“Teachers Support Students in Their ‘Just’ Demands”

(“El magisterio apoya a los alumnos en sus ‘justas’

demandas”|, La Hora, June 4, 1990, at 5

Teachers unconditionally support the students in

their just demands that transportation providers accept

the School Voucher and insists that they respect the law,

since the voucher is regulated by the Legislative Decree

8-90, which was reported today to LA HORA by Raul

Montenegro of the Advisory Board of the National Asso-

ciation of Secondary Education. [ANEEM]

“The consequences of the student's discontent cannot

be foreseen, possibly leading to disturbances and a

serious social conflict, all because of the whims of the

transportation providers in not accepting the voucher,”

he-said.

“Clearly this voucher specifies its validity as bus

fare, that is 20 cents, making illegal the attempt to charge

students 10 cents more for each ticket,” he indicated.

THE NORMAL COURSE OF THE SCHOOL YEAR

WILL BE AFFECTED

“This problem will affect the course of the normal

school year,” Montenegro added, “having negative conse-

quences on the planned course work of each subject.

Already today the classes were suspended after the stu-

dents left school to participate in a peaceful march of

protest.” They will be missing out on their education,

especially as the mid-year exams approach, however it is

P. 24

not their fault, but the caprice of the transportation pro-

viders,” he added.

ANEEM ANALYZES THE PROBLEM

“ANEEM is analyzing the School Voucher problem,

observing it with great concern and awaiting the inter-

vention of the authorities in favor of the students’ inter-

ests,” Montenegro said. “Once again,” he added, “the

transportation providers are creating problems, but not

for the government, but rather in this case, for the stu-

dents, all from the social classes most in need, who are

always the most affected.”

APPENDIX B-7

“Education Ministry Blames Transportation Providers”

|“Ministerio de Educacién culpa a los autobuseros”|,

Siglo Veintiuno, June 5, 1990, at 12

Julio Batres, the Viceminister of Education, criticized

urban transportation providers, holding them responsible

for obstructing the school year when they rejected the

student school vouchers for urban transportation. “The

transportation providers are acting with resentment in an

immature way and all indications are that they are not

looking for anyone to whom they are obligated but for

someone to pay them”, said the public official, demand-

ing a rapid solution to the conflict that began after the

rejection of the school vouchers.

» ao

He said that the Education Ministry has followed

through with all requirements in order to avoid problems

with secondary school students, but the transportation

problem is beyond the power of this branch, thus requir-

ing the cooperation of the owners of collective transpor-

tation.

When asked about the possibilities of the paralyzing

of the school year, Viceminister Batres called upon the

sensibility of the students and teachers to not let them-

selves be taken advantage of by interested parties that

only want to capitalize on the student movement for the

purpose of creating a climate of instability.

“I believe the students have acted maturely and are

right to protest the lack of service that is guaranteed to

them by the government through school subsidies. Now

the question is whether the transportation providers will

respect the legal dispositions in order to avoid greater

conflicts,” he emphasized.

Batres continued saying, “Teachers are able to

develop a study program by means of homework assign-

ments in order for students to take full advantage of their

time and achieve greater progress. I regret the time loss in

the teaching-learning process, first due to the transporta-

tion work stoppage for two weeks, and now because of

the refusal to accept the student fare vouchers, and in

addition, the shortening of the school year due to elec-

tions, which will advance the end of classes.”

P. 26

APPENDIX B-8

“Political Violence Provokes Agitation” [“Violencia

politica provoca agitacién”] (Inforpress Cen-

troamericana), June 14, 1990

Constant violence in the country has continued dur-

ing the last months, with the tendency to increase in June

(Inforpress 883). Among the many cases, the ones that

stand out are the actions committed against organized

sectors of human rights organizations and displacees,

which have caused international protests and actions to

that effect. In the midst of one of these protests, like the

taking over of an International Red Cross Center, the

Mutual Support Group (GAM) renewed the demand for

the President of the Republic to follow through on his

numerous offers to create an Investigation Commission,

which he has never complied with.

Cases of violence in May and June. Over the past few

days, violence has increased noticeably; 15 assassinations

have been reported in the first four days of the month.

Standing out among these acts are the appearance of

victims in places near the capital that have traditionally

been used to dispose of cadavers. In Villa Canales, Mixco

and Amatitlan there have appeared in this time period

seven cadavers, in some cases with evidence of torture,

with their hands tied and shot or wounded with a knife.

Another case that occurred in the capital was the

assassination of Otto Salvador Herndndez, who was get-

ting ready to leave the country after having received

death threats.

P. 27

In the meantime, it become known that two patrollers

and a military commissioner who were responsible for

the assassination of Maria Mejia, Director of the Council

of Ethnic Communities “Runujel Junam” (CERJ, Consejo

de Comunidades Etnicas, Runujel Junam) were released

in Santa Cruz del Quiché. The above mentioned were

arrested after Mejid’s husband, who witnessed the assas-

sination, filed accusations. Nevertheless, the judiciary

ruled that there was not sufficient evidence to prosecute

the accused perpetrators.

Another act of violence that occurred on the first of

this month was the machine-gunning at the middle

school institute, Rafael Aqueche, by alleged private

police, who took such action during the time of a student

protest because of problems caused by the urban city

transport service.

In the month of May, 45 assassinations and two kid-

napings, were registered. The majority of these acts were

in Guatemala (14 cases), Solol4, San Marcos and Jutiapa

(6 cases in each). Also in this month, six cadavers

appeared, with evidence of violence, in a land fill, a

“traditional dumping grounds”, near the capital.

In the same manner was found on May 1 the body of

university student Victor Heriberto Velasquez, who had

been kidnaped a week before. In the neighborhood of

Pojopil, Solold, a director of CERJ was assassinated on

May 1 by armed men who broke into his house in the

early morning hours.

At the end of May, a union representative from the

company Tipic, S.A, Filiberto Ramirez, took refuge in the

P. 28

Guatemalan Red Cross Center with his family after

armed men tried to kidnap him from inside his home.

Political violence is also surfacing in the electoral

scene. Since the first week of May, Luis Angel Lopez

Salguero, the Secretary of Organization of the party

branch of the National Center Union (UCN, Union del

Centro Nacional), of Jutiapa, is disappeared. Likewise, in

San Andrés Itzapa, Chimaltenango, four members of this

same party were wounded by a grenade that was hurled

at them by unidentified persons. Among the attacked,

according to directors of the UCN, were various sur-

vivors of the El Aguacate massacre of November of last

year.

Violence provokes protests and demands. The event

that caused the most repercussions was the kidnaping of

Luis Miguel Solis Pajarito, the member of the Guatemalan

National Board of Dismissed Workers (CONDEG, Con-

sejo Nacional de Desplazados de Guatemala), who partic-

ipated in the National Negotiations as a representative of

the refugees. Solis, whose father and brothers were also

missing, was threatened at the end of April, and on May

3, he was kidnaped in the Capital. After the act, CON-

DEG demanded that the President of the National Recon-

ciliation Comission (CNR) intercede for the appearance of

Solis before responsible entities, since as of May 27, there

had never been a protest by the CNR.

At the end of May, CONDEG released a report stating

that on the 23rd of that month, the patrollers Salvador

Tifio, Enrique Chich and two other persons tried to kid-

nap a director of CONDEG in Santa Cruz del Quiché.

P. 29

The most impressive event that resulted from the

kidnaping of Solis was the take over of the headquarters

of the International Red Cross Center from May 29 to

June 1, by the Mutual Support Group (GAM). The occu-

pants demanded the live appearance of various missing

persons, among them Solis Pajarito and Rumualda

Camey, (kidnaped the previous year) as well as the cre-

ation of the Investigating Commission, which the present

government has been promising since 1985.

It is important to remember that after constant pres-

sure by GAM, the commission was agreed upon but it

never came to life. According to Claudia Arenas, the

presidential spokeswomen, this was due to the fact that

the previous Human Rights Ombudsman, Gonzalo Men-

éndez de la Riva, refused to participate in the Commis-

sion. Afterwards, the government promised to reactivate

the commission in March 1988, when it signed the agree-

ments with the Organization of Labor Union and Popular

Action (UASP, Unidad de Accién Sindical y Popular), but

once again this promise was not met.

GAM abandoned their premises with a letter in hand

from the Vice-President of the Republic, Roberto Carpio,

in which he committed to respond to their demands. In

the first meetings with the official, that still have not

concluded, it became known that the Human Rights

Ombudsman Ramiro de Leén Carpio refused to partici-

pate in the commission, because the members of GAM

announced that they would agree to keep the commission

together only if the commission was comprised solely of

Executive representatives.

P. 30

Together with these events, international signs of

solidarity with the sectors affected by violence continued

to be manifested. In early May, representatives of the

Organization of Continental Latin American Students

(OCLAE, Organizacién Continental Latinoamericana de

Estudiantes) and the Interamerican Student Union (UIE,

Union Interamericana de Estudiantes) visited the country

with the purpose of investigating the reports of harass-

ments against the student sector. The UIE and the Univer-

sity Student Association (AEU, Asociacién de Estudiantes

Universitarios), will try to establish in Guatemala a group

of observers of student and academic rights, whose seat

will be in Guatemala.

For their part, Canadian students asked their govern-

ment to suspend aid to the Guatemalan regime until it

investigates the kidnaping and assassination of university

students.

Finally, the Interamerican Commission on Human

Rights of the Organization of American Students (CIDH,

Comisién Interamericana de Derechos Humanos de la

Organizacién de Estados Americanos), released a report

in which they affirmed the existence of organizations of

hired assassins that provide their service to politicians

and that are protected by an impenetrable shield of

anonymous impunity. The report adds that presently in

Guatemala violence is increasing drastically, and that the

government's reputation is tarnished due to the inade-

quate system of justice.

P. 31

APPENDIX B-9

“Transportation Users Protest the Increase in Night

Fares” |“Usuarios protestan por alza de pasaje noc-

turno”|, La Hora, July 18, 1991

Public urges fare standardization, since

— microbuses charge as much as Q1.50 per

Patrons of urban transport, who are unhappy at con-

tinual increases in fares for night service, renewed their

protests this morning. Residents of zones 7, 11, 12, 18 and

19 of the capital have indicated an urgent need for munic-

ipal regulation of night time bus fares as soon as possible,

because otherwise the transportation companies will con-

tinue to increase the fares to serve their own whims,

prejudicing the interests of the residents.

According to these affected, the biggest problem

comes from the microbuses whose fares between 8 and 9

at night oscillate between Q1.25 and Q1.50 per trip - a

price which they find inconceivable — thus they are at the

mercy of the transportation providers who take advan-

tage of the public’s need for access to transportation in

order to get home at night.

Such fares would be justified if the service were

efficient but it is exactly the opposite. The day time

service leaves much to be desired and the nighttime

journeys are essentially a cross to bear (“un calvario”)

that the passengers have to endure.

The problem also exists among bus companies, which

have at least taken the care to post visible fliers on the

buses that warn the public about the 100% increase in

P. 32

night-time fares, but the problem is more prominent in

microbus companies.

Such fare is now a tolerable 80 cents, which when all

is said and done, they indicated is tolerable, given no

legal regulation of fares. In contrast, to pay as much as

Q1.50 for a night-time fare on a microbus, which arrives

only once every hour or hour and a half, with passengers

obliged to ride with only the minimum of security pre-

cautions, thereby endangering their lives, is intolerable,

the residents pointed out.

As a consequence, those affected are demanding

municipal regulation of nocturnal service of the buses

and especially the microbuses that provide urban trans-

portation.

It is not fair that transportation providers try to take

advantage of consumers’ need to depend on the night

service by charging high fees according to their whim in

order to raise their profits while seriously hurting the

public, they indicated.

Just as there is regulation for day time fares there

should be, and without delay, for night time fares, which

has a higher demand, said the complainants.

Otherwise, consumers will suffer increased econc~ ‘~

harm as a result of paying almost 400% more for bus

fares, they concluded.

P. 33

APPENDIX B-10

“No Fixed Increase for Urban Transport” [“Sin fijar alza

en pasaje urbano”|, Prensa Libre, December 7, 1992

New Fares to Take Effect the 16th of This

Month

Nine days until the termination of subsidization for

urban transportation, the Guatemala City Municipality

and representatives of the Urban Transport Coordinator

have been unable to reach an agreement as to a new fare

increase, it was reported.

The round of talks intended to fix the amount of the

increase have been going on for months and have now

stalled completely due to each side arguing that there are

different reasons for them to not compromise and accept

the other’s position.

Mayor Oscar Berger Perdomo has maintained the

position that he will not authorize new fares because the

increase sought by the transportation providers is far too

high, and has made it known that he hopes the commis-

sion appointed by the Executive will favor the municipal

corporation’s proposal.

The local government asked the government to invest

in urban transportation, so that they can authorize new

fares, and as a separate matter, asked for the completion

of the second phase of the freeway which runs periph-

erally around the city, the construction of separate lanes

for buses, the change in starting times in the work place

and voucher to workers in the public and private sectors.

P. 34

e The Voucher is Rejected

After analyzing the municipal proposal, the commis-

sion authorized the graduation of starting times only, but

rejected the idea of the voucher. With regards to the latter,

Berger has said that the Minister of Public Finance, Rich-

ard Aitkenhead Castillo, has indicated that the resources

don’t exist to grant said voucher which is why the pro-

posed salary increase was also rejected.

e New Fares

The local government maintains its position with

regard to three possible prices; Q0.50, Q0.60, and Q1.00

while the bus owners continue to ask that fares be raised

to Q0.80 and Q1.25. _—

Gamaliel Chin of the Office of the Coordinator has

declared that starting the 16th of December, the fares will

have to increase, which they have placed announcements

in the buses about, explaining the increase to the public

as due to bus companies no longer affording to operate at

a loss since the supplies and parts they use are imported

and they acquire them at high prices.

e The Church Rejects It

The archbishop Préspero Panados de Barrio rejected

the fare increase for urban services and said that the

municipal authorities need to understand the severe pov-

erty that exists in the country, a situation that may upset

the public more.

P. 35

APPENDIX B-11

“Two New Rates Are Fixed for Urban Transport” [“Fijan

dos tarifas para el transporte urbano”|, La Hora, Decem-

ber 10, 1992

“Fares are set at 60 and 85 for normal

service and preferred service, respectively.

The Municipal Corporation of Guatemala resolved to

definitively fix two rates for the urban transportation

service of the City of Guatemala after a careful study of

the companies’ financial state.

The new fares are set at 60 centavos for regular

service and 85 centavos for preferential bus service: both

increases are substantial enough to guarantee adequate

financial earnings for transportation providers.

The study done by the Council determined that with

a rate of 60 centavos transportation providers will be able

to earn a net profit of 22%, thus any attempt to raise rates

any higher would be improvident.

The Municipal Corporation submitted the study for

consideration at last night’s session after determining

definitively that fares should not be raised any higher

than those mentioned, which should protect the interests

of the public.

In addition said fares grant a sufficient margin of

gain for transportation providers, thereby automatically

guaranteeing they will have to provide their services.

This means that the rate for regular service would go

up from 40 to 60 centavos for each fare, in other words,

P. 36

an increase of 20 centavos, and the preferential from 75 to

80 centavos, or five centavos difference.

Earlier municipal studies have concluded that in

order for urban transport to maintain a profit, fares could

not be lower than 55 centavos and no higher than 80

centavos.

These studies have since been subject to a number of

later analyses throughout this year in which the final

decision of the acceptable bus fare was finally ready

according to which two fares were established and clearly

defined which cannot be exceeded by the transportation

providers.

The municipal resolution is adopted a week before

transportation providers began charging increased fares,

claiming an increase in operational costs, as they have

announced on flyers placed inside buses.

Discontent has been manifest even as they are

unaware of the rate to be fixed for fares. But the resolu-

tion of the Municipal Council is determinative with

respect thereto, as it is based on financial studies of the

state of the urban transportation system in Guatemala

City.

However, transportation providers have unofficially

let it be known that the rates they have proposed are 80

centavos per fare for regular service and one quetzal and

ten centavos for preferred service.

P. 37

APPENDIX B-12

“Transportation Crisis and the Passengers’ Cross to

Bear” (“Crisis del transporte y el calvario de los usu-

arios”|, La Hora, December 12, 1991

* This grave problem goes back years.

The current urban transportation crisis in Guatemala

City is a dramatic inheritance from the unfortunate his-

tory of the service that has greatly impacted the thou-

sands of people that need the service every day.

The roots of this crisis go back almost 20 years,

resulting from the deterioration of this service which is

the direct fault of transportation providers who have

never made good on the promise to improve it and

instead have provided the public with a service becoming

increasingly deficient and unsatisfactory.

The first recent crisis came in December of 1973 when

urban transport, skillfully manipulated by political ten-

dencies, in light of the proximity of the presidential elec-

tions the following year, decided to create problems for

the municipal administration of the lawyer Manuel

Colom Argueta.

Demanding an increase in fares, transportation pro-

viders stopped service a few days before Christmas, tak-

ing advantage of the high demand for transportation

common during this season.

However, the mayor took over the companies and

named as intervenors ex-military officers, succeeding in

reestablishing service almost immediately.

P. 38

Two new work stoppages occurred during the follow-

ing municipal administration led by the lawyer Leonel

Ponciano Leén from 1974-1978: always a result of pressure

from transportation providers who were not content with

the fact that fares had remained at 5 centavos.

During the administration of lawyer and colonel

Abundio Maldonado, the pressure applied by transporta-

tion providers motivated intervention by general Romeo

Lucas Garcia, due to grave disturbances, but despite

everything they succeeded in getting bus fares raised to

10 centavos, at the cost of numerous injuries to mostly

innocent victims.

Always exerting pressure based on their eternal dis-

content, transportation providers managed to gain two

almost consecutive fare increases during the municipal

government of Alvaro Arzu. The fares rose from 10 to 20

centavos and finally from 20 to 40 centavos.

Now they are seeking an increase of 100% — from 40

to 80 centavos for the so-called “regular” service “and an

increase from 80 centavos to Q1.10 for “preferential ser-

vice”, including the metrobus, which is incorporated with

the Urban Transport Coordinator.

Transportation providers exert constant pressure,

arguing losses in a business which provides an excellent

yield. In fact, business is so profitable that in the decade

of the 70’s urban transport permitted itself the luxury of

selling to El Salvador more than half of the diesel that the

government provided to them subsidized; before the

approval of the monetary subsidy of millions which is

currently at Q72,000,000 per year.

P. 39

APPENDIX B-13

“Bus Companies Impose New Fares According to

Whim” [“Transportistas imponen tarifas antojadizas”|,

La Hora, December 17, 1992

* Normal service in spite of work stoppage in

the capitol

In Quezaltenango City urban transportation com-

panies have not stopped service, nevertheless they have

increased the 25 centavo rate to 35 centavos, although

they still count on a subsidy, the representative for the

western department, lawyer Luis Lépez Maldonado

announced this morning.

Congressman Luis L6pez Maldonado, who is also the

first Vice President of the Republic’s Congress, indicated

that presently the Mayor of that province, Roberto Pérez

Maidonado, at the moment has not adopted any measure

to prevent the urban transport providers from arbitrarily

and illegally raising fares.

Lépez Maldonado recalled that during his time as

mayor in Quezaltenango which is the second most impor-

tant city in Guatemala, when the city was faced with a

similar problem, namely the paralysis that in these

moments is being lived by the metropolitans, they imme-

diately dealt with it by imposing fines and terminating

concessions.

However, the current Municipal Chief continues to

not take action, although the situation in Quetzaltenango

is less complicated than at the capitol in that the number

of transportation companies numbers only 100, stated

P. 40

Pérez Maldonado, meaning that the municipal govern-

ment has much more control over the transportation com-

panies and their subsequent fares, so that the mayor

Robert Pérez Maldonado should put an end to the situa-

tion.

“In Quezaltenango City the urban transportation

companies have increased fares in an arbitrary and illegal

manner in spite of the subsidization they receive. How-

ever the anomalies do not stop there — the drivers who

handle these units do not extend the respective ticket and

are calmly charging 35 centavos,” explained Lépez Mal-

donado.

The Congressman of the Christian Democratic Con-

gress of Guatemala (DCG) concluded that, according to

his sources, urban transport is providing normal service;

nevertheless, in the face of a probable work stoppage,

that will undoubtedly be illegal, adding to the arbitrary

fare increase already mentioned, the local government

should act quickly and with force.

APPENDIX B-14

Edgar Aragén, “Economic Indicators of the Urban

Transportation Crisis” |“Incidencia economica de la

crisis del transporte urbano”| La Hora, December 17,

1992

The urban transport crisis has had an eco-

nomic effect on the entire population to the

P. 41

extent that public transport is needed by

approximately two and a half million people

pay ap The economic impact of this service

can be easily quantified by its cost to the users

and their rejection of a service that does not

satisfy transportation demands.

Dissatisfaction with Demands

The inability of the urban transportation system to

meet the needs of customers who live in Guatemala City

is a painful problem of the recent crisis. The number of

buses in circulation does not adequately meet the public’s

daily transportation needs to go to their jobs every day.

According to statistics from the Municipality of Gua-

temala there are between 29 and 32 companies that

operate approximately 1,370 average vehicles of transpor-

tation in the capital city every day.

Of these companies 16 are bus companies who oper-

ate an estimated 1,270 vehicles to provide transportation

to about 1,500,000 users each day.

There are 13 microbus companies, also known as

cruising taxis, that according to municipal estimates pro-

vide transportation fo, about 1,500,000 people every day.

The demand for such methods of transport has

reached a saturation point. According to the city hall, in

1990 the population of the metropolitan area was deter-

mined to be 1,825,834 which is the estimate of the Asso-

ciation For the Well Being of the Family (APROFAM).

According to City Hall, the population has increased to

2,074,562 Guatamalans in the past two years.

P. 42

Such statistics highlight the fact that the transporta-

tion system is clearly insufficient to meet the needs of the

inhabitants, and on the contrary, results in a deficit since

the number of users exceeds the total number of inhabi-

tants in the metropolitan area.

However, it must be noted that many of the people

who use the public transportation system make more

than a single trip each day, thus logically resulting in the

number of users exceeding the population.

Redirection of subsidy

The thorny nature of the price of urban transporta-

tion in relation to the elimination of the state subsidy has

revitalized the issue of rechanneling of the subsidy, a

matter that has remained pending, as a practical matter,

for more than half a year.

The rechanneling is contemplated by the Decree

29-92 of the Congress of the Republic on April 28th of this

year, which provided that the Executive branch, repre-

sented by the Minister of Public Finance, should have

programmed in the Income and Expense Budget for 1993,

Q72,000,000 to be channelled through the Capital Munici-

pality to urban transport provided in the following terms:

The transportation system must designate Q20,000,000

for bus passes for employees of the Executive, Legislative

and Judicial Bodies, for 25 quetzales per month for each

worker, and for municipal employees whose monthly sal-

aries are less than Q800.

P. 43

This was intended to directly subsidize the workers

and allow them to face, albeit barely, the monthly cost of

transportation.

The Congress has also allocated an additional

Q25,000,000 to the Capital Municipality to invest in the

termination of the construction work of the “Peripheral

Ring” in Guatemala City and the construction of alterna-

tive routes intended to alleviate the tremendous amount

of vehicular traffic.

As an additional measure of rechanneling the sub-

sidy is intended to counteract the economic impact of the

demand for public transportation, particularly at peak

hours.

Behind the Trusteeship

Another intention of the rechanneling of the subsidy

was the support of trusteeships who will be offering

credit, to various urban transportation companies, for

Q17,000,000.

Supposedly this is being allocated for such trustee-

ships and is expected to provide enough credit to com-

panies that they will be able to acquire new buses, repair

old ones, improve the overall maintenance of those still in

circulation and generally improve the deficiencies in the

services.

The Municipality maintains that they could acquire

400 new buses exempt from taxes, importation fees, etc.

P. 44

The Level of Costs

The level of costs for the services rendered is also an

important consideration with respect to urban transport

problems. Certainly, the price of maintaining the buses,

including repairs and spare parts, has increased, but sub-

sidization has financed at least part if not all of the cost of

the service.

Meanwhile, the bus companies maintain that the sub-

sidy is not working in their favor in that when it com-

menced it was equivalent to 9.7 centavos for each bus

ticket sold, but due to the devaluation of the Quetzal its

value has been reduced to 6.9 centavos, causing bus

companies to operate at a loss.

For their part, the Labor Union of Drivers of

Motorized Vehicles (SPAS) insists that earnings are

important and will not occur without subsidy and a

higher fare.

For each service unit charging 80 centavos per trip,

the transportation providers would obtain a daily net

earning of Q161,879.35 and 80,879.35 if they charge 55

centavos per trip.

According to the Bank of Guatemala, however, this

past June urban transport companies had purchased a

total of 213 millions of tickets.

Local analysts estimate that this data from the central

bank, which was obtained in turn from the Municipality

of Guatemala, is a short term economic indicator that

demonstrates the profitability of the service.

P. 45

Effects of the New Fares

The economic problem of urban transportation

affects the cost of obtaining essential services because it

increases the difficulties in satisfying minimum subsis-

tence necessities. The Department of Economic Statistics

of the Bank of Guatemala reports that on December 4,

1992, inflation was at 13.32% and that the total index of

prices for the consumer was at 519.9, from a base of 100,

much higher than the figures for December 4, 1991 which

saw a total index of 458.8 (11.66% inflation rate).

The implication of such statistics suggests that the

inflation rate will continue to rise until the end of the

year. Meanwhile wages will stay as they are and will be

unable to keep pace with prices for food and services.

The Institute for Social and Economic Study at the

University of San Carlos (IIES), citing statistics from the

National Institute of Statistics (INE), shows that until

1990 the minimum daily cost of feeding the average fam-

ily of five was Q12.65 with a monthly total of Q379.38.

These numbers refer to a basic nourishment, and do not

take into account basic services like health care, housing,

clothing or transportation.

The minimum amount of money required to sustain a

family of five for a single day was Q25.16 with a monthly

cost of Q754.80. In the past two years however, those

figures have tripled while wages remain at levels that are

insufficient to cover the basic needs of a family.

The IIES states that forecasts of economic activity

show the average salary is currently at Q11.60 a day and

Q500 a month.

P. 46

The increase in fares for urban transportation will

have a negative impact on families who use public trans-

portation. Studies show that a family of five will spend a

minimum average of Q150 each month on public trans-

portation alone.

If one takes into account the costs of daily living and

the average wage for workers based on the above statis-

tics one will conclude it will be difficult for most of the

2.5 million users to confront the increased fare.

According to the National Center for Economic Study

(CIEN), the subsidization of the transportation systems

has until now, kept the price of bus tickets as low as

possible by providing Q6,300,000 in aid every month or

the equivalent of Q72,000,000 each year. Ninety-five per-

cent of the subsidy was allocated to the nation’s capita!

and five percent went to the rest of the country.

The CIEN and other entities are in favor of eliminat-

ing the subsidy and deregulating fares with the idea that

it will be an incentive for new transportation companies

to participate and thereby broaden the existing system,

increasing competition, stimulate efficiency and to

improve the quality and diversity of service.

Thus, the task is to reconcile interests, on the one

hand taking into account the limited economic capacity of

the public to pay higher fares, and on the other the

transportation sector must assume responsibility to effec-

tively improve its services, guaranteeing that they will be

rendered adequately without mishap now that a great

part of the country’s economic activity largely depends

on its transportation system to mobilize daily an elevated

percentage of the economically active population.

P. 47

APPENDIX C-1

“Guatemala - Human Rights and Security,” Central

America Report (Inforpress Centroamericana, Gua-

temala City, Guat.), Vol. XV, No. 34, September 2, 1988,

at 269-270

Guatemala

Human rights and security

United Nations human rights expert Héctor Gross

Spiel notes “enormous progress” in the government's

efforts to improve human rights conditions. Within the

country, however, charges of rights violations are on the

rise.

Human Rights: For International Consumption Only?

The Christian Democratic government of Vinicio Cerezo

has undertaken a vigorous campaign over the last two-

and-a-half years to improve the country’s image within

international forums. Diplomatic efforts by government

delegations contributed to Guatemala’s removal from the

UN’s list of serious offenders in 1987 (CAR XIV 14). The

mandate of UN rappateur Lord Colville was terminated,

and since then UN specialists have made periodic visits

to the country to monitor conditions.

During a brief stay earlier this month, Gross Spiel

stated that Guatemala has “come a long way” in terms of

human rights protection and that rights violations are no

longer official policy. He said he had visited refugee

resettlement areas in Huehuetenango and E] Quiché and

was impressed by the work of the Guatemalan repatria-

tion commission (CEAR).

In an interview published by the Salvadoran daily E/

Mundo, however, Gross Spiel affirmed that “kidnappings,

torture and extrajudicial killings continue” in Guatemala.

P. 48

A similar assessment was released recently by the

Guatemala-based Center for the Investigation, Study and

Promotion of Human Rights (CIEPRODH).* In a strongly-

worded report, CIEPRODH claims that the “climate of

institutionalized violence and insecurity” in Guatemala

accentuated markedly between April and June, with

threats, harassment and assassination attempts directed

at “leaders of popular organizations.” The CIEPRODH

report states that military control over the country per-

sists and that forced recruitment into civil defense patrols

(CAR XV 33) inhibits the population’s freedom of move-

ment.

CIEPRODH goes on to charge that “in the name of

national security, counterinsurgency and low-intensity

warfare, human rights violations in Guatemala are esca-

lating.” For the first six months of 1988, the center docu-

mented 803 cases, of which half were killings. The

violence is tabulated by region: the central region

(departments of Guatemala, Chimaltenango, Sacatepé-

quez and El Progreso), with 39% of the cases (95% of

those in Guatemala); the northern region (El Quiché, Alta

Verapaz, Baja Verapaz, Izabal and Petén), with 24%, par-

ticularly in El Quiché; the southern region (Santa Rosa

and Escuintla), with 12%, the western region (San

Marcos, Huehuetenango, Retalhuleu and Suchitepéquez),

with 15%; and the eastern region (Zacapa, Chiquimula,

* CIEPRODH is directed by Factor Méndez, a former law

professor at the national university who spent several years in

exile. Earlier this year the center held a forum on human rights

in Santa Cruz del Quiché.

P. 49

Jutiapa and Jalapa), with 9%. Nearly one-third of the

cases involve students, according to CIEPRODH.

Violence on the Upswing. Local press reports over the

past two months indicate a steady rise in the level of

violence.** Incidents follow the familiar patterns: on

August 16 in the municipality of Mixco, near the capital,

the bodies of two Indian women were found with signs of

torture. The two, Martha de Leén and Victoria Girén, had

disappeared on July 18. According to the Guatemalan

daily La Hora (August 19) the two women had previously

gone to judicial authorities in Mixco to denounce death

threats received by Martha de Leon, a native of El

Quiché.

Family members of mechanic Walter Domingo Sam-

ayoa charged that he was kidnapped from his home by

several armed men driving a vehicle with polarized win-

dows. And three brothers, Luis Arturo, Julio Rodolfo and

César Amilcar Arroyo Donis, and a friend, César Bar-

rientos, were murdered in the capital on August 17. Wit-

nesses stated the four were abducted by uniformed

police, one of whom wore a badge marked “805.”

National Police spokesman Carlos Chen denied police

involvement in the murders, claiming that the badge

allegedly worn by one of the abductors had been “lost”

over a year ago. Chen added that the Arroyo brothers

were fugitives from justice, after the recent discovery of

an arms cache in their houses.

** In an upcoming issue CAR will publish tally of political

violence for the last trimester.

P. 50

Chichicastenango continues to be a focus of human

rights denunciations. Violence and threats there have

intensified since residents revealed the location of “clan-

destine” cemeteries used to bury the victims of massacres

in the early 1980s (CAR XV 9). The Committee for Cam-

pesino Unity (CUC) and the Mutual Support Group

(GAM) each recently released statements charging that

the Catholic priest in Chichicastenango, Father Ventura

Lux Herrera, was expelled by the army. The statements

claim that the military commander in Santa Cruz del

Quiché ordered local residents to participate in a demon-

stration against the priest, with the presence of the civil

patrol and soldiers dressed as civilians. The priest was

accused of being a “communist and guerrilla collabora-

tor” and had received death threats in the past (CAR XV

21).

More Vigilance, Less Security. On August 8, the same

day the Guatemalan Labor and Popular Action Unity

(UASP) initiated a partially successful general strike, the

government implemented its new security system, the

Civil Protection System (SIPROCI). SIPROCI is to be coor-

dinated by all security forces, including the Mobile Mili-

tary Police (under the direction of the Ministry of

Defense), the National Police and the Treasury Police

(under the jurisdiction -f the Interior Ministry), and the

*** An apparent goal of SIPROCI is to avoid further

intenecine battles within the security forces, such as that which

occurred between ex-National Police chief Colonel Julio

Caballeros and ex-Treasury Police director Oscar Diaz Urquizu

over the death van case.

y. St

security forces were installed in strategic public buildings

such as the Post Office, Immigration and Congress.

International human rights organizations continue to

insist, however, that so long as the perpetrators of rights

violations go unpunished, increased police aid, modern-

ization and coordination will not generate an improved

atmosphere of security for the population. Thus, with

Interior Minister Roberto Valle Valdizan’s recent suspen-

sion of the case of the “death van,” linking 27 Treasury

Police agents to kidnappings and killings earlier this year,

Guatemalans have little reason to feel more secure.

APPENDIX C-2

“Students Threatened by New Death Squad,” Central

America Report (Inforpress Centroamericana, Gua-

temala City, Guat.), Vol. XVI No. 9, March 3, 1989, at 70

STUDENTS THREATENED BY NEW

DEATH SQUAD

Flyers dispersed by a March 1 “pamphlet-bomb”

explosion in front of University Students’ Association

(AEU) headquarters in Guatemala City contained death

threats against a dozen student leaders. The communi-

qués bore the by-line of the new “Double J” death squad

(CAR XVI 7). Since the incident, the AEU charges it has

received threatening phone calls, and leaders have been

watched and followed by unidentified men.

Two blood-spattered letters were disseminated. The

first was addressed to the AEU, and targeted Edin

Boanerges Hernandez, Héctor Salvatierra and Aharon

P. 52

Ochoa." It accused them of being members of the Gua-

temalan Workers Party (PGT) “6 de Enero” group (CAR

XVI 8) and of trying to “confuse and deceive the student

population and the people of Guatemala” through the

upcoming Huelga de Dolores, an annual student activity

parodying the government and other Guatemalan institu-

tions and events. “We are watching you,” the Double J

said, “and it would be better for you to stop what you're

doing; . . . there is still time to save your lives.”

'n a post script, the writers added that they had sent

copies of the letter to army intelligence and the US

Embassy.

The second letter was addressed to 12 AEU members,

who it said were on a death list. “We are free to act,” the

authors warned, “and we will act.”

Interior Minister Roberto Valle Valdizan has encour-

aged the student leaders to utilize the investigative ser-

vices under his command. “The young people of the

AEU, who we know fulfill an important role benefitting

student interests, should have confidence in the govern-

ment and openly explain their problem, so that we can

investigate it,” he said, claiming that the regime is a

guarrantor of respect for human rights.

* Shortly after the threats were received, Ochoa’s house

was sprayed with gunfire.

P. 53

APPENDIX C-3

“Guatemala — Repression Hits the National University,”

Central America Report (Inforpress Centroamericana,

Guatemala City, Guat.), Vol. XVI No. 36, September 15,

1989, at 281-282

Guatemala

Repression hits the national university

In a climate of increasing political violence in Gua-

temala, the San Carlos national university becomes a

target, with eleven students kidnapped since mid August.

Four of the kidnapping victims have turned up dead. The

Asociacién de Estudiantes Universitarios (AEU) blames

the government, who in turn points the finger at sectors

of the extreme right it says are trying to destabilize the

democratic process.

Urban Violence Brings Back Shades of the Past. It is

common these days to see Guatemalans grouped around street

corner newspaper stands, commenting with hushed voices on

the daily headlines that announce what has become a tangible

rise in urban political violence in the last few weeks. Many

agree with labor spokesman Juan Francisco Alfaro Mijangos

that the spate of bombings and assassinations of public figures

and popular sector leaders raises memories of the late 1970s

and early 1980s, when it was standard fare.

The kidnapping of eleven university students in 20 days is

the most recent incident to capture press headlines. On Sep-

tember 10, the bodies of four students were found on the

outskirts of the university grounds. The bodies were identified

as: Carlos Humberto Cabrera Rivera, 45, a teacher, humanities

student, member of the teachers union’s national assembly and

P. 54

of the leftist Unidad de Accién Estudiantil (UNASE), kid-

napped two days before; husband and wife, Victor Hugo

Rodriguez Jaramillo, 35, and Silvia Maria Guadalupe Azurdia,

29, former members of the also leftist Movimiento Estudiantil

Universitario (MEU) kidnapped on August 21; and Carlos

Leonel Chutd Camey, 27, a law student, AEU finance secretary

and leader of another leftist student group, AVANZADA,

kidnapped on September 9. The four bodies showed signs of

torture, including needle marks, with the cause of death

determined to be multiple stabbings.*

Alongside the bodies appeared flyers claiming the

killings were aimed at “dignifying” the AEU. The sheets

charged Chutd with stealing 35,000 quetzals from the

student association, denounced Cabrera as an opponent

of university reform, and accused Rodriguez of being a

government spy. Student spokespersons concede there

may be a grain of truth to the charges of corruption and

division within the AEU, but say such rumors have been

blown out of proportion to serve as a cover-up for the

murders. Meanwhile, following the discovery of the four

bodies, two more students were kidnapped, one from the

law school and the other from the chemistry and phar-

macy school.

* This is not the first time in the last few years student

organizations have faced acts of intimidation. In March 1989,

the entire AEU governing council received death threats (CAR

XVI9), while in July 1988, the AEU secretary of cultural and

sports affairs, Oscar Monterroso and another student were

attacked in Guatemala city’s Zone 5 by 20 armed men in four

vehicles. Monterroso escaped but his friend, Adria4n Guerra

Roca, was kidnapped and found shot to death later that night

(CAR XV 29).

P. 55

The AEU has organized several protest marches.**

Leaders say the killings are part of a plan to crush the

student movement. Authorities from the regional Consejo

Universitario Centroamericano (CSUCA) travelled to

Guatemala to investigate the crime. They did not accuse

anyone but expressed concern that the government did

not seem interested in solving the case.

The student kidnappings are not the only incident to

cause alarm among Guatemala City residents. On Sep-

tember 5, mortar shells were fired at the third floor of the

national telephone company’s headquarters in the capi-

tal’s downtown district, while on September 9 a bomb

was set off at the Camino Real Hotel in the well-to-do

Zone 10 district. Minutes earlier another bomb exploded

in a nearby shopping center. A total of 27 deaths are

attributed to political violence in the first two weeks of

September. _

The government's response has been to deploy its

combined security force SIPROCI in the capital and to

increase spot checks of automobiles, buses and pedes-

trians. The Catholic Church is promoting the formation of

a citizen's front against repression, while business groups

are calling for the replacement of the interior minister. The

congressional human rights commission has requested

that a UN human rights envoy be sent to the country, and

** During the first demonstration, students captured a

plainclothes police agent participating in the march. Two other

security agents identified by the students fled the scene. In

addition, leaders denounced that following the march two

students were detained by police, although they were released

hours later through international pressure.

P. 56

the US State Department this week issued a hard travel

advisory on Guatemala in response to the rising violence.

The warning, which took Guatemalans by surprise,

advises US citizens to take precautions when traveling in

the country because of the increased violence. The advi-

sory was much broader than the previous warning and

mentioned specifically terrorist bombings in the capital

and highway robberies on the road to Panajachel, Gua-

temala’s major tourist spot on Lake Atitlan. In addition, it

mentioned continuing guerrilla activity in the departments

of Petén, Quiché, Huehuetenango, Solol4, Chimaltenango

and Escuintla.

Political Terror Again the Motive. The question of just

who is behind the violence is a hot topic. The Christian

Democrats say it is the extreme right, which they claim is

trying to achieve through force of arms what it can no

longer get at the ballot box. According to this view,

rightist sectors are mounting a destabilization campaign

designed to expose the weakness and corruption of the

regime. It has been hinted in the press that former head

of state General Efrain Rios Montt and ex-Foreign Minis-

ter Fernando Andrade Diaz-Durdn, would favor a mili-

tary coup.

The official position was expounded upon by

Defense Minister General Héctor Gramajo. Speaking at a

roundtable sponsored by the Centro de Estudios

Estratégicos para la Estabilidad Nacional (ESTNA), a

civilian-military think tank, Gramajo warned that democ-

racy in Guatemala is threatened by those sectors who still

adhere to the national security doctrine in vogue prior to

1982. This doctrine, the defense minister explained,

sought to combat Marxist penetration by any means

P. 57

available, which inevitably led to extreme social polariza-

tion in the early 1980s. In the wake of the 1982 coup, the

army has taken a different approach, moving from the

doctrine of national security to the doctrine of national

stability, which seeks harmony between the various

power blocs in the country. But there are still those to

whom this change has been “traumatic,” Gramajo contin-

ued, such as the military and business figures behind the

1988 and 1989 coup attempts. These groups believe the

only way to combat subversion is through an iron hand

policy.

_ Nevertheless, the government is under fire from all

sides for not doing enough to stem the violence. Another

view is that of the URNG guerrillas: the Cerezo adminis-

tration has not taken a more aggressive stance in punish-

ing those responsible because actions like kidnappings of

students come from G-2 army intelligence.

P. 58

APPENDIX C-4

Pro Justice and Peace Committee of Guatemala, “Case

No. 5” Human Rights in Guatemala, 1990 Supplement

(1991) at 15

HUMAN RIGHTS IN GUATEMALA

SUPPLEMENT

1990

Case No. 5

Name: Orlando Estuardo

Alvarado Merales

Place: Guatemala City

Incident: Extrajudicial execution preceded

by kidnapping

Date: October 20, 1990

Responsible: Paramilitary groups

Orlando Estuardo Alvarado Morales, teacher, ex-stu-

dent leader and student of Anthropology and History at

the San Carlos University, was kidnapped by armed men

dressed as civilians. The incident occurred while the vic-

tim was attending mass at the Metropolitan Cathedral,

only a few meters from the National Palace and the

Presidential Palace an area heavily guarded by military

and police. Alvarado was then taken away while helpless

onlookers stood by. Many of Alvarado’s colleagues and

students from the government institute “Maria Luisa

Samayoa Lanuza” and “Colegio Miguel de Cervantes”, in

addition to others, held a massive demonstration

demanding Alvarado’s live-appearance. However, his

corpse appeared floating on Lake Amatitlan showing

P. 59 -:

signs of bullet wounds and torture. In 1980, the victim's

brother was kidnapped and executed; Orlando Estuardo

was a student leader at the University of San Carlos at

the time.

APPENDIX C-5

“Extrajudicial Executions,” Human Rights Update, #9

(Guatemala Human Rights Commission/USA), March

11, 1991, at 2

EXTRAJUDICIAL EXECUTIONS

The body of SERGIO GONZALEZ BARCO was found on

February 25 in La Trocha, 8th Street and 11th Avenue,

Nueva Concepcion, Escuintla. He had been shot.

Three members of the Florian Villatoro family were extra-

judically executed on March 2-3. LUCAS FLORIAN VIL-

LATORO (17) was abducted by unidentified men on

March 2 in Cuyotenango, Suchitepequez, while he was

headed in the direction of his home. (The family lives in

Sector Salama, La Maquina II, San Andres Villaseca,

Retalhuleu.) The same day, while his mother was report-

ing his detention-disappearance to the authorities, a

group of heavily armed men in a pickup truck arrived at

the Florian home, broke down the door and then stran-

gled and shot to death Lucas Florian’s brother, ANA-

CLETO FLORIAN VILLATORO (22), in the presence of

P. 60

his father and his younger brother, ELIAS FLORIAN VIL-

LATORO (13). The men then abducted Elias. The next

day, the bodies of Lucas and Elias Florian Villatoro were

found in two different locations in La Maquina II, with

signs of torture and strangulation and bullet wounds to

the head [“tiro de gracia”].

The decapitated body of ARNOLDO CARDONA CON-

TRERAS (37) was found on March 3 near km 6.5 of the

road between Antigua Guatemala and Santa Maria de

Jesus, Sacatepequez. Cardona Contreras, who was a stu-

dent in Guatemala City, had been abducted several days

earlier, and his family had reported his detention-disap-

pearance to the “Abductions and Extortion” branch of the

Criminal Investigations Department. The victim was

identified by means of documents found on his headless

and decomposing body. Cardon Contreras was a native of

Jutiapa.

The body of ALFONSO AREVALO CHAJON (23) was

found on March 3 near km 4 of the road between Cuilapa

and Chiquimulilla, Santa Rosa. He had been shot several

times. Arevalo Chajon had been abducted by armed men

on January 25 at his home in Canton La Quebrada, Bar-

berena, Santa Rosa.

GONZALO GARCIA DIVAS (18) was shot to death on

March 3 by a group of unidentified men, in a street in

Guasacapan, Santa Rosa.

JOSE ANTONIO LOPEZ ROCA was shot to death on

March 3 in a street in Agua Blanca, Jutiapa, by a group of

armed men who attacked him while he was on his way to

work.

P. 61

RUBEN OSORIO MORATAYA was shot on March 3 by a

group of unidentified men in Santa Maria Ixhuatan, Santa

Rosa. He died in the hospital in Cuilapa.

ANTONIO DE JESUS RECINOS LEMUS (40) was shot to

death on March 3 by a group of unidentified men, on a

dirt road connecting Asuncion Mita and Guevara,

Jutiapa.

The body of farmworker SANTIAGO CARMELINO

REYNOSO (38) was found on March 3, with stab wounds,

bruises and fractures in the right leg. He had disappeared

on February 11 after leaving his home in Santa Lucia

Talahi, Tajumulco, San Marcos to sell clothing in Taj-

umulco.

The body of PABLO FLORES VALENZUELA (28) was

found on March 4 under the Poza del Tempisque bridge

in Quezada, Jutiapa. He had been shot several times.

Flores Valenzuela had been abducted by armed men on

February 25 at his home in Quezada.

* * »

P. 62

APPENDIX C-6

“Urgent Action”, Amnesty International USA, July 19, 1991

LOGO

, ) AMNESTY INTERNATIONAL USA

URGENT ACTION PROGRAM OFFICE e P.O. BOX 1270 e

Nederland, CO 80466-1270 e 303-440-0913 e

FAX: 303-258-7881

UA 247/91 Fear for Physical Safety 19 July 1991

GUATEMALA: Otto PERALTA, student leader

Carmen REYNA, (f) student leader

Amnesty International is concerned for the safety of Otto

Peralta and Carmen Reyna, two leaders of the Asociacion

de Estudiantes Universitarios (AEU), University Students

Association, of the University of San Carlos (USAC) fol-

lowing three incidents in which men who identified

themselves as members of the National Police called on

their homes and interrogated their families. The men

questioned the families about the participation of Otto

Peralta and Carmen Reyna in February 1991 at the 47th

General Assembly of the United Nations (UN) Human

Rights Commission in Geneva, Switzerland, where they

both gave evidence to the Human Rights Commission on

the human rights situation in Guatemala.

On 29 June 1991, a man dressed in plain clothes called at

the Guatemala City home of AEU leader Carmen Reyna.

Carmen Reyna was not at home. The caller showed the

family a police badge and said he was a member of the

Departamento de Investigaciones Criminolégicas de la

Policia Nacional (Criminal Investigations Department of

the National Police). He asked the family detailed ques-

tions about Carmen Reyna’s visit to Geneva to attend the

UN. He wanted to know who had sponsored the visit of

the AEU delegation, why the delegation went there and

P. 63

what they did there. The family stated that the man filled

in what seemed like an official police questionnaire. He

also had details of the flights the delegation had taken to

Geneva and how long they had stayed there. When the

family asked why the police needed this information,

they were told it was for Carmen Reyna’s protection.

Following the incident, Otto Peralta, Secretary General of

the AEU, as well as USAC Rector Alfonso Fuentes met on

12 July 1991 with the Minister of the Interior, Fernando

Hurtado Prem. The Minister assured them that no investi-

gation had been ordered by the National Police. On that

same day, a man answering the same description as the

one who went to Carmen Reyna’s house visited the home

of Otto Peralta. He was not at home at the time, but the

caller again identified himself as being from the National

Police and asked similar questions of Otto Peralta’s fam-

ily. On the following day, 13 July 1991, the same man

called again at Carmen Reyna’s house, this time in the

company of three other men dressed in plain-clothes and

driving a four wheel drive vehicle with foreign plates.

They again asked the same questions of the family, and

again insisted that the investigation was being carried out

for the protection of Carmen Reyna and Otto Peralta.

Amnesty International is concerned for the safety of Car-

men Reyna and Otto Peralta and is calling on the govern-

ment to investigate these incidents.

BACKGROUND INFORMATION

The AEU leadership and membership has been continu-

ally targeted under successive regimes in Guatemala.

Amnesty International has documented scores of cases of

students and their leaders who have been extrajudicially

P. 64

executed or “disappeared” under military and civilian

governments over the past 30 years. In August and Sep-

tember 1989, at least 12 students and staff from the USAC

were “disappeared”, seven of whom were subsequently

found dead. A number of the victims were reportedly

leaders of the AEU.

Since the new government of President Jorge Serrano

Elias came to power in January 1991, Amnesty Interna-

tional has learned of increasing numbers of trade union

leaders and members of popular movements, including

the AEU, who have been subjected to threats, harassment,

attempted abduction and possible extrajudicial execution.

The choice of the victim and the manner in which these

abuses have been carried out suggest the involvement of

the security forces in the guise of the so-called “death

squads”. Many trade unionists and members of popular

movements have been forced to leave the country.

RECOMMENDED ACTION: Telegrams/telexes/faxes/

express and airmail letters:

~ expressing concern that individuals apparently posing

as members of the National Police have been harassing

Otto Peralta and Carmen Reyna in circumstances which

raise fears for their safety;

~ also expressing concern that these visits were made

because of their legitimate work in monitoring the human

rights situation in Guatemala;

- asking for an investigation into the incidents men-

tioned above, and that those found responsible be

brought to justice.

P. 65

APPEALS TO: [Suggested Salutation

Jorge Serrano Elias [Excelentisimo Sr. eat

Presidente de la Republica de Guatemala

Palacio Nacional (Telexes: 305 5331 CAPRES GU)

Guatemala, Guatemala

(Telegrams: Presidente Serrano, Guatemala, Guatemala)

(Faxes: 011 502 2 537472; 011 502 2 519702)

(Tel No: 011 502 2 21212; 011 502 2 22266)

Lic. Fernando Hurtado Prem ini

Ministro de Gobernacién papsdconmesien

Despacho Ministerial

Meme ne a 8, yes Nivel (Faxes: 011 502 2 518105)

alacio Naciona (Telexes: 305 5085

Guatemala, Guatemala aa pn ee asa

(Telegrams: Ministro Gobernaci6n,

Guatemala, Guatemala

(Tel No: 011 502 2 21212, ext 500; 011 1910545

Cnel. Julio Enrique Paiz Bolafios [Sefior Director}

Director General de la Policia Nacional

6 Avenida 13-71

Zona 1, Guatemala, Guatemala

(Tel No: 011 502 (2) 20221; 515158)

(Telegrams: Director Policia, Guatemala, Guatemala)

Sra. Maria Luisa Beltranena de Padilla [Sef ini

Ministro de Educacién a

Ministerio de Educacién

Palacio Nacional

Guatemala, Guat

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