Opposition Brief — Foroglou v. Immigration & Naturalization Service

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Supreme Coort, U.S.

i | FILEQOD

AuG 6 1999

No. 98-1951 ainblintHG, BLERI

Jn the Supreme Court of the United States

EMMANUEL J. FOROGLOU, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENER

LINDA S. WENDTLAND

JOHN M. MCADAMS, JR.

Attorneys

Department of Justice

Washington, D.C. 20530-0001

202) 514-2217

QUESTION PRESENTED

Whether substantial evidence supports the Board of

Immigration Appeals’ denial of asylum and withholding

of deportation to petitioner, who opposes on philosophi-

cal grounds his government’s universal, compulsory

military service requirement.

(1)

TABLE OF CONTENTS

Opinions DelOW .......cssssessessereeseseeneeeeneensnsensensssensensnssssnennensseeneenenses

ALQUMENt ........cecccsssssosesssssesesererersenensesscenensocssesensnensessoneseneneneneneenes

TABLE OF AUTHORITIES

Cases:

Canas-Segovia v. INS:

902 F.2d 717 (9th Cir. 1990), judgment vacated on

other grounds, 502 U.S. 1086 (1992) ........sssessseesersesees

RS Ll)

Gillette v. United States, 401 U.S. 437 (1971) ........ccecseees

INS v. Aguirre-Aguirre, 119S. Ct. 1439 (1999) .........

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .........:c0

INS v. Elias-Zacarias, 502 U.S. 478 (1992) ......s0ss0

INS v. Stevic, 467 U.S. 407 (1984) ..........ccccccccsseccerseseersenes

Matter of A-G-, 19 I. & N. Dec. 502 (1987) .......-eseseseseseeeees

Matter of R-R-, 20 1. & N. Dec. 547 (1992) ......seseesssereseseeees

Mobil Oil Corp. v. Federal Power Comm’n, 417

Ue }

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

Constitution, statutes and regulations:

U.S. Comrst. Amend. I ...cccccrscscsescsscoceseresverecccnsesenseneveesocsonsossosers

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, Tit. IV, 110 Stat. 1258:

Subtit. B, 110 Stat. 1268:

§ GIGL), 110 Stat. IDGD ....cccccececceseorcsereceecsecsesevseveorenses

§ 413(g), 110 Stat. 1269 ..........ccccccerersesssessceescesesesenesees

(IIT)

Statutes and regulations—Continued:

Subtit. C, 110 Stat. 1270:

a Ee

fo 8) | ee

Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, Pub. L. No. 104-208,

Div. C, 110 Stat. 3009-546:

Tit. III, Subtit. A, 110 Stat. 3009-575:

SSBB, TOD Biek. TRG ceniccsncscerccierscmenienines

§ 309(a), 110 Stat. 3009-625 ........cccccscssssoreesersessesesssees

Tit. IV, Subtit. A, 110 Stat. 3009-689:

OGG, BOD GE. SG cecieciecetetnisctctincinsenniacnioniicisinn

§ 604(c), 110 Stat. 3009-694 oo... eceseeseseeseseseeseeseees

Immigration and Nationality Act, 8 U.S.C.

B9G8 66 BOG. cncccescevsnserusevsscrnesesstieneetennetienTenCeeeteCATTTtAeNteeTOtes

8 U.S.C. 1101(a)(42)(A) (1994 & Supp. III 1997) ......

SB UBC. TR CD ccccneereimnnnn

8 U.S.C. 1231(b)(3) (Supp. IIT 1997) ..............sccseeeeees

BS UBC. BERRI ccccescssnesserseemmnseetecmsasensmencvveaste

8 U.S.C. 1253 (1994 & Supp. ITT 1997) ............sscseeeees

SB UBC. TBI CITE) cecececsterscscrensneteesemcresnscrvenneson

Refugee Act of 1980, Pub. L. No. 96-212,

IR TUE cccinceinsischtieiinnniniissstcessaiieiaiinteiiialiiienanniaiiaabedeanias

8 C.F.R.:

8 ee

Miscellaneous:

United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Deter-

mining Refugee Status Under the 1951 Convention

and the 1967 Protocol Relating to the Status of

Refeagees (Fev. O08. Sati. UGDR) ecceceesecscscerseressensvseveseocenersocnvers

In the Supreme Court of the Gnited States

No. 98-1951

EMMANUEL J. FOROGLOU, PETITIONER

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-8) is

reported at 170 F.3d 68. The decision and order of the

Board of Immigration Appeals (Pet. App. 9-13) and the

decision and order of the immigration judge are un-

reported.’

JURISDICTION

The court of appeals entered its judgment on March

5, 1999. The petition for a writ of certiorari was filed on

June 3, 1999. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

! We have lodged a copy of the decision and order of the

immigration judge, which is not included in the appendix to the

certiorari petition, with the clerk of this Court.

(1)

STATEMENT

1. The Immigration and Nationality Act of 1952

(INA), 8 U.S.C. 1101 et seg., as amended by the Refugee

Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, provides

that an alien will be considered a “refugee” if he “is

unable or unwilling to return to” his home “because of

persecution or a well-founded fear of persecution on ‘

account of race, religion, nationality, membership in a |

particular social group, or political opinion.” 8 U.S.C.

1101(a)(42)(A) (1994 & Supp. III 1997). If the “Attor-

ney General determines” that an alien qualifies as a

refugee, the Attorney General may grant that person

asylum in the United States, 8 U.S.C. 1158(a) (1994).

An alien claiming eligibility for asylum need only

demonstrate a reasonable fear or risk of persecution.

See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-441

(1987). The alien bears the burden of proving that he is

a refugee because he has the requisite well-founded

fear of persecution. 8 C.F.R. 208.13(a). Once an alien

has established his eligibility for asylum, the decision to

grant or deny asylum falls within “the discretion of the

Attorney General.” 8 U.S.C. 1158(a).’

2 Section 604 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C,

Tit. VI, Subtit. A, 110 Stat. 3009-690, significantly revised the

INA’s asylum provision. That amendment, however, does not

govern the present case because it applies to applications for

asylum filed on or after April 1, 1997. IIRIRA § 604(c), 110 Stat.

3009-694. The changes in asylum worked by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-

132, Tit. IV, Subtit. C, § 421(a), 110 Stat. 1270, do apply to this

case, because the AEDPA amendment governs asylum deter-

Minations made on or after the amendment’s effective date of April

24, 1996. AEDPA § 421(b), 110 Stat. 1270. The AEDPA amend-

ment, however, is not pertinent to petitioner’s claim.

In addition, “if the Attorney General determines”

that an alien’s “life or freedom would be threatened” in

the country of deportation “on account of race, religion,

nationality, membership in a particular social group, or

political opinion,” the alien may be eligible for “with-

holding of deportation or return.” 8 U.S.C. 1253(h)(1)

(1994). To be entitled to relief under that provision, the

alien must demonstrate a “clear probability of persecu-

tion.” INS v. Stevic, 467 U.S. 407, 430 (1984); 8 C.F.R.

208.16(b) (applicant bears the burden of proof of

eligibility for withholding). If the alien makes such a

showing, withholding of deportation is mandatory.

8 U.S.C. 1253(h)(1).”

2.a. Petitioner is a native and citizen of Greece. Pet.

App. 2. Petitioner arrived in the United States in 1983

on a non-immigrant student visa, which was later

changed to a non-immigrant professional visa when

petitioner obtained a teaching job. Petitioner’s eligibil-

ity for that visa expired when he left the teaching job,

but he failed to inform the Immigration and Naturaliza-

tion Service (INS) of his changed status. /bid.

3 IIRIRA substantially revised the INA’s withholding-of-

deportation provisions, seé IIRIRA, Tit. III, Subtit. A, § 305, 110

Stat. 3009-602, which are now codified at 8 U.S.C. 1231(b)(3) (Supp.

III 1997). IIRIRA does not govern the present case because its

provisions apply only to withholding applications filed by aliens

who are placed in proceedings on or after April 1, 1997. IIRIRA,

Tit. III, Subtit. A, § 309(a), 110 Stat. 3009-625. AEDPA’s changes

in the withholding provision (see Pub. L. No. 104-132, Tit. IV,

Subtit. B, § 413(f), 110 Stat. 1269-1270) do apply, because the

Board’s final decision was not issued until after AEDPA’s date

of enactment. See id. § 413(g), 110 Stat. 1269; see also INS v.

Aguirre-Aguirre, 119 S. Ct. 1439, 1443 (1999). The AEDPA

amendments, however, are not pertinent to petitioner’s claim.

In October 1993, the INS commenced deportation

proceedings against petitioner. Pet. App. 2; see also

8 U.S.C. 1251(a)(1)(C)G). Petitioner conceded deport-

ability, but sought asylum and withholding of deporta-

tion based on his opposition to Greece’s compulsory

military service requirement for all males between the

ages of 18 and 50. Pet. App. 2. Petitioner claimed that,

following his arrival in the United States, he developed

a belief in “Objectivism,” a philosophy espoused by the

twentieth-century author Ayn Rand. One tenet of

Objectivism is an opposition to forced military service,

on the ground that the government lacks the authority

to compel a citizen to place his life at risk. Ibid.

Objectivism is not a pacifist ideology that opposes the

use of violence; petitioner admits that “he would not

object to serving voluntarily in the Greek military.”

Pet. 11.

The Greek government permits draftees who oppose

military service to serve in non-combatant roles, albeit

for twice the time commitment of routine draftees.‘ In

addition, the Greek government offers an alternative

civilian service for conscientious objectors that lasts

from 12 to 18 months longer than combatant military

service. Pet. App. 2-3. The conscientious objector ex-

- ception, however, appears to be limited to those (unlike

petitioner) who oppose the use of weapons. /d. at 3.

b. Following a hearing, the immigration judge found

that petitioner had failed to demonstrate a well-founded

fear of persecution on account of his race, religion,

nationality, membership in a particular social group, or

political opinion. The immigration judge concluded that

any imprisonment petitioner might face upon his return

to Greece would result from his refusal to comply with

4 Ordinarily, military service lasts for 24 months. Pet. App. 2.

Greece’s universal military service requirement, and

not because of his particular beliefs or views about that

requirement. Pet. App. 3. The immigration judge

accordingly denied petitioner’s requests for asylum and

withholding of deportation, but granted him voluntary

departure to Greece. /d. at 3-4.

The Board of Immigration Appeals affirmed. Pet.

App. 9-13. The Board explained that a government

does not engage in persecution merely by requiring its

citizens to perform military service. /d. at 10-11.

Consequently, the Board continued, draft evasion does

not give rise to a well-founded fear of persecution

unless the failure to serve in the military would result

in disproportionately severe punishment on account of a

protected characteristic or the individual would be

required to engage in inhuman conduct. /d. at 11

(citing Matter of R-R-, 20 Il. & N. Dec. 547 (1992);

Matter of A-G-, 19 I. & N. Dec. 502 (1987)). The Board

concluded that petitioner failed to “establish[{] that

* * * any potential punishment could constitute

persecution” or that “he will be disproportionately

punished on account of one of the statutorily protected

grounds for refusing to serve in the military.” Jd. at 10,

12.

3. The court of appeals affirmed. Pet. App. 1-8. The

court agreed with the Board that “(i]t is not persecution

for a government to require military service of its

citizens.” Jd. at 5. The court explained:

Nothing in the language of the federal definition of

refugee (requiring persecution on one of the five

enumerated grounds) suggests that it applies when

a foreign country simply insists on universal mili-

tary service for all citizens and provides no exemp-

tions. In such a case, the resistor might refuse

service out of religious or political conviction; but

punishment for refusing to serve would not be

“persecution” (even assuming [] that term is apt)

“on account of” the objector’s religious or political

opinion, * * * but instead would be “because of his

refusal to fight for the government.”

Id. at 6 (citing INS v. Elias-Zacarias, 502 U.S. 478, 483

(1992)). The court of appeals found no evidence in the

record that the Greek government had threatened

petitioner with military service because he is an

Objectivist. Nor was there evidence that the Greek

government targeted Objectivists who refuse to serve

for disproportionate punishment. Pet. App. 5. Further,

the court rejected petitioner’s claim that his imprison-

ment would represent disproportionate treatment

because Greece allows only religious objectors and not

secular Objectivists to qualify for the alternative

civilian service. The court first observed that it was not

clear why the alleged distinction mattered to petitioner,

because he objected to any compelled government

service, whether military or civilian. Jd. at 7. Second,

the court of appeals explained that the INA does not

categorize as persecution every failure of a foreign

government to construct its own draft laws to conform

to the “highly complex equal protection jurisprudence”

of the United States. /d. at 7-8. Noting that it was

“doubtful” that the distinctions petitioner attributes to

the Greek draft exemptions would be unconstitutional

in this country, id. at 8 (citing Gillette v. United States,

401 U.S. 437, 446-448 (1971)), the court of appeals

declined to categorize as “‘persecution’ a set of foreign-

country exemption rules not all that different than our

own.” Ibid.

Finally, the court rejected petitioner’s contention

that the immigration judge demonstrated “bias” against

him, concluding that the immigration judge had evinced

only “annoyance” and “disagreement” with petitioner’s

arguments. Pet. App. 8.

ARGUMENT

1. Petitioner contends (Pet. 6-12) that the court of

appeals erred in holding that substantial evidence

supports the Board’s rejection of his claim of per-

secution. That claim does not merit this Court’s review.

First, the task of determining whether an agency’s

decision is supported by substantial evidence belongs

“primarily” to the court of appeals. “This Court will

intervene only in what ought to be the rare instance

when the standard appears to have been misappre-

hended or grossly misapplied.” Mobil Oil Corp. v.

Federal Power Comm’n, 417 U.S. 283, 310 (1974); see

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

491 (1951). That principle should apply with particular

force when, as here, both levels of the administrative

agency and the court of appeals concurred in their

analysis of the record and their application of the

governing law to the record.

Second, the record-bound and case-specific deter-

mination of whether petitioner’s evidence demon-

strated a clear probability of persecution presents no

question of broad or recurring importance meriting this

Court’s review.

Third, the immigration judge, the Board, and the

court of appeals all correctly determined that peti-

tioner’s evidence of persecution falls short of the mark.

This Court held in JNS v. Elias-Zacarias, 502 U.S. 478

(1992), that the consequences an individual faces as a

result of resistance to military recruitment do not, by

themselves, establish a well-founded fear of persecu-

tion. Jd. at 482-483. That is because such evidence

leaves unanswered the question whether the individual

is being persecuted because of a protected characteris-

tic “rather than because of his refusal to fight.” Jd. at

483. Even supporters of a military organization, the

Court explained, “might resist recruitment for a variety

of reasons—fear of combat, a desire to remain with

one’s family and friends, a desire to earn a better living

in civilian life, to mention only a few.” Jd. at 482.

Furthermore, an individual is a refugee only if he es-

tablishes a well-founded fear that he will be persecuted

“on account of” his race, religion, nationality, member-

ship in a particular social group, or political opinion.

8 U.S.C. 1101(a)(42)(A); see Elias-Zacarias, 502 U.S. at

482. Here, petitioner offered no evidence to support his

claim that the Greek government would treat him dif-

ferently than any other draft resistor because of his Ob-

jectivist beliefs:

In this case, Greek law subjects all men to mili-

tary service. There is no evidence that the Greek

government has threatened [petitioner] with mili-

tary service because he is an Objectivist, nor is

there any evidence that the Greek government

targets Objectivists who refuse to serve for

disproportionate punishment.

Pet. App. 5. While petitioner claims that he would be

ineligible for the two alternatives to routine military

conscription, that does not change the fact that the

motivation for the Greek government to punish

petitioner would remain his failure to comply with the

draft law, rather than his philosophical or political

views. Moreover, the fact that the Greek government

has adopted humanitarian alternatives to combat

service does not transform the consistently applied

term of imprisonment for those who refuse service of

any kind (see Immigration Judge Dec. at 10) into the

type of persecution condemned by the INA.

2. Petitioner claims (Pet. 13) that the court of

appeals’ decision conflicts with the Ninth Circuit’s

decision in Canas-Segovia v. INS, 970 F.2d 599 (1992),

because in the latter case, the court of appeals held that

punishment for draft resistance could qualify as per-

secution, within the meaning of the INA, if the govern-

ment falsely imputes a political opinion to the individual

as a result of his refusal to join the military. /d. at 602.

But that case is of no assistance to petitioner. Peti-

tioner offered no evidence that the Greek government

would falsely impute a political opinion to him as a

result of his draft resistance. To the contrary, he re-

peatedly relies on his actual opinion regarding involun-

tary governmental conscription.

Petitioner also seeks review (Pet. 13-15) on the

ground that the court of appeals failed to follow 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 (rev.

ed. Jan. 1992) (Handbook), which leaves it “open to

Contracting States[] to grant refugee status to persons

who object to performing military service for genuine

reasons of conscience.” /d. para. 173, at 41. As the

court of appeals explained, however, that discretionary

language leaves it “to Congress to adopt that course,

but it has not done so here.” Pet. App. 7. In any event,

the Handbook “is not binding on the Attorney General,

the BIA, or United States courts.” JNS v. Aguirre-

Aguirre, 119 S. Ct. 1439, 1447 (1999); see also INS v.

Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987).°

3. Finally, petitioner claims (Pet. 15-18) that certain

comments made by the immigration judge during his

hearing violated the First Amendment’s guarantee of

freedom of conscience. The court of appeals properly

rejected that claim, explaining that, while the immigra-

tion judge showed “considerable annoyance with [peti-

tioner’s] claims, * * * disagreement with [petitioner’s]

arguments is not proof of bias.” Pet. App. 8. In any

event, the necessarily record-bound determination of

alleged individualized bias presents no question of

broad or recurring importance that merits an exercise

of this Court’s certiorari jurisdiction.

® Petitioner’s additional contention (Pet. 14) that the court of

appeals “mistakenly compared” Greece’s draft law to that of the

United States is also unavailing. The court of appeals simply made

the unremarkable observation that it is highly unlikely that Con-

gress would have intended sanctions permitted by United States

law to constitute the type of persecution proscribed by the INA.

See Pet. App. 8. Petitioner is simply wrong, moreover, in suggest-

ing that the court’s reference to United States law conflicts with

the Ninth Circuit’s mode of analysis. See Canas-Segovia v. INS,

902 F.2d 717, 723 n.11 (1990) (“United States jurisprudence is

relevant to analysis of new issues of United States refugee law.”),

judgment vacated on other grounds, 502 U.S. 1086 (1992).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.