# Amicus Curiae Brief — INS v. Aguirre-Aguirre > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0176%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 415 ## Text 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 {3 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 ii 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 iv 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 v 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 vi 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) 20 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 ix 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 x 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 a xi 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). —— es 4 babe 1 pene ‘ > Pp ola «. * ; B 7 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 9 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). 10 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). 11 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 12 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). 13 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 14 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 15 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). 16 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 17 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 18 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 19 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. 20 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, 21 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). 22 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. 23 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). 24 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 25 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 i 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 iv 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 | = Vv 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 vi APPENDIX TABLE OF CONTENTS - Continued Page App. C-22 “AEU Offices Bombed,” Guatemala App. App. App. App. App. 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, TX 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 a 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 p. 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 representati [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0176%3A09. Public record. Not legal advice.