IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. JAIRO JONATHAN ELIAS ZACARIAS No. 90-1342 In The Supreme Court Of The United States October Term, 1990 The Solictor General, on behalf of the Immigration and Naturalization Service, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit PARTIES TO THE PROCEEDING The names of all parties appear in teh caption of the case. TABLE OF CONTENTS Question Presented Parties To The Proceeding Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion OPINIONS BELOW The amended opinion of the court of appeals, App., infra, 5a-25a, is reported at 921 F.2d 844. The initial opinion of the court of appeals is reported at 908 F.2d 1452. The opinion of the Board of Immigration Appeals denying respondent's motion to reopen his deportation proceeding, App., infra, 27a-33a, is unreported. The opinion of the Board of Immigration Appeals denying respondent's motion for reconsideration of its dismissal of respondent's appeal, App., infra, 34a-36a, is unreported. The opinion of the Board of Immigration Appeals dismissing respondent's appeal, App., infra, 37a-38a, is unreported. The oral opinion of the Immigration Judge, App., infra, 39a-42a, is unreported. JURISDICTION The judgment of the court of appeals was entered on July 23, 1990. A petition for rehearing was denied on January 10, 1991. App., infra, 26a. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Pertinent provisions of the Refugee Act of 1980, added to the Immigration and Nationality Act of 1952 as Sections 101(a)(42) and 208(a) and codified at 8 U.S.C. 1101(a)(42) and 1158(a), are reproduced at App., infra, 43a-44a. QUESTION PRESENTED The Refugee Act of 1980 requires an alien seeking asylum to demonstrate "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), 1158(a). The question presented is whether a guerrilla organization's attempt to coerce a person into performing military service necessarily constitutes persecution "on account of" that person's political opinion. STATEMENT The Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, limits eligibility for asylum to any alien the Attorney General determines to be "a refugee within the meaning of section 1101(a)(42)(A) of this title." 8 U.S.C. 1158(a). A "refugee" is defined to be any person who is unwilling to return to his native country "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). Respondent Jairo Jonathan Elias Zacarias left his native Guatemala after two masked guerrillas armed with machine guns asked him to join their army and, when he declined to join, told him to "think it (over) well." App., infra, 6a-7a. In his deportation proceeding, respondent applied for asylum and withholding of deportation on the ground that the guerillas' attempt to recruit him constituted perscution "on account of" his political opinion. The Immigration Judge and the Board of Immigration Appeals denied the requested relief because the guerrillas did not threaten to harm respondent if he refused to join them, and because any implicit threat was not "on account of" his political opinion. The Ninth Circuit reversed and found respondent eligible for asylum. It held that the Guatemalan guerrillas' practice of forcible recruitment made it reasonable for respondent to take the admonition to "think it (over) well" as a threat. App., infra, 17a. Moreover, that threat was "properly categorized as 'on account of political opinion,' because the person resisting forced recruitment is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political." Id at 12a. On the basis of its conclusion that respondent was a "refugee" within the meaning of the 1980 Act, the court of appeals remanded for the BIA to determine whether respondent should be granted asylum. Id. at 25a. 1. Respondent is a nineteen-year-old man who left his native Guatemala in March 1987, a few months after two masked guerrillas came to his home. The guerrillas were armed with machine guns and asked respondent to join their army. Respondent refused to join, even though the guerillas offered to pay him to fight for them. The guerrillas told respondent to "think it (over) well" and said that they would be back. Respondent remained at home and continued to work at his regular job for the next two months before he decided to leave Guatemala for the United States. App., infra, 6a-7a, 32a, 40a-41a; C.R. at 37. 2. Respondent was apprehended for entering the United States without inspection. In his deportation hearing, respondent conceded his deportability and requested asylum and withholding of deportation. App., infra, 40a. The Immigration Judge denied the requested relief. "Considering all the evidence," the Immigration Judge determined that "it does not appear that the respondent has established that he is a refugee within the meaning of 101(a)(42) of The Act" because he has "failed to demonstrate persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." App., infra, 41a-42a. 3. The Board of Immigration Appeals (BIA) summarily dismissed respondent's appeal when his counsel failed to file a brief or statement on his behalf. App., infra, 38a. Respondent then moved the BIA to reconsider its dismissal. The BIA denied the motion for reconsideration; treating the motion as one to reopen respondent's deportation proceeding, it denied the motion because "there has been no evidentiary showing by the respondent that would warrant the relief originally requested, or that the decision of the immigration judge would be reversed." Id. at 36a. Respondent then moved the BIA to reopen his deportation proceeding and to consider new evidence in support of his appeal. The new evidence was a letter from respondent's father saying that the guerillas visted the family's home twice since respondent left Guatemala: once in January 1988, and again in April 1988. In the January visit, the guerrillas asked for respondent's father and left when they found that the father was not at home. In the April visit, the guerrillas asked for the respondent, but were told that he was in the United States. Both visits were for the purpose of attempting to recruit respondent. App., infra, 31a. The BIA determined that the letter from respondent's father "not only has failed to sustain his burden for reopening, * * * but also has failed to produce evidence that would establish a well-founded fear of persecution under the Act." App., infra, 31a. "Even though the respondent alleges that he was threatened by the guerrillas, the evidence of record does not bear this out"; "there was no threat made to the respondent that he would be harmed if he refused to join them." Id. at 32a. Even if the guerrillas threatened respondent, the BIA held, it was for the purpose of satisfying their need for soldiers and not "on account of" any political opinion held by respondent: (I)n our decisions in Matter of Virgil, Interim Decision 3050 (BIA 1988), and Matter of Maldonado, Interim Decision 3041 (BIA 1988), we opined that when a guerrilla organization attempted to recruit someone, the initial encounter was important to examine in order to determine the motivations of the guerrillas. In this case, the guerrillas wanted the respondent to join them, and according to respondent's father, even offered to pay the respondet for his services. In respondent's brief in support of his latest motion, he acknowleges that the subsequent visits by the guerrillas were also an attempt to recruit him in order for him to assist the guerrillas in their attempt to violently overthrow the Guatemalan Government. It can hardly be said that the guerrillas, in any of their visits, sought to harm the respondent for having opinions they found offensive. Id. at 32a-33a. The BIA concluded that respondent "failed to show, by his new evidence, a prima facie eligibility for asylum or that the results of respondent's deportation hearing would be changed." Id. at 33a. Accordingly, it denied the motion to reopen. Ibid. 4. The Ninth Circuit reversed. App., infra, 5a-25a. It found respondent eligible for asylum, based on the evidence presented to the immigration judge, on the ground that the guerrillas' attempt to recruit him constituted perscution "on account of" his political opinion. Id. at 6a. At the same time, the court held that the letter from respondent's father did not require the BIA to reopen the deportation proceeding with respec to his withholding of deportation claim. Ibid. /1/ At the suggestion of petitioner's counsel, the court of appeals treated the BIA's final ruling as both an affirmance of the Immigration Judge's denial of relief and as a denial of respondent's motion to reopen his deportation proceeding. App., infra, 6a & n.2. The court first reviewed the BIA's affirmance of the decision of the Immigration Judge. The court noted that the record before the Immigration Judge included an advisory opinion from the State Department on the merits of respondent's application for relief. Id. at 7a. Although the letter advised that respondent was not a refugee, id. at 7a, the court read it to support respondent's claim that "the guerrillas engage in forced recruitment." Id. at 8a. "Because nongovernmental groups lack legitimate authority to conscript persons into their armies, their acts of conscription are tantamount to kidnapping and constitute persecution." Id. at 12a. "The persecution is properly categorized as 'on account of political opinion,'" according to the court, "because the person resisting forced recruitment is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political." Ibid. (citing, inter alia, Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989)). Turning to the facts of the case before it, the court of appeals found that respondent was eligible for asylum but not for withholding of deportation. App., infra, 16a. "(I)n light of the guerrillas' practice of using force to recruit people, it certainly was reasonable for a person in (respondent's) situation to take the statements (to 'think it (over) well') as threats." Id. at 17a. "Finally, the threat to (respondent) was for political as opposed to personal reasons; the Board did not suggest that the individual guerrillas who appeared at his door had a personal quarrel with (respondent), and in any event, there was no evidence to rebut the common sense inference that the guerrillas were interested in recruiting (respondent) to further the group's political goals. There was thus a reasonable possibility, based on the evidence presented (to the Immigration Judge), that the guerrillas would return and take (respondent) by force, thereby persecuting him on account of political opinion." Id. at 18a. The court noted that respondent's evidence "failed to prove the 'clear probability' of persecution necessary to obtain withholding of deportation." App., infra, 18a. It further observed that the letter from petitioner's father "did not cure the key deficiency in his withholding of deportation claim" -- i.e., the lack of specific evidence demonstrating that "forced recruitment was more than a reasonable possibility." Id. at 25a. Accordingly, the court upheld the BIA's denial of respondent's application for withholding of deportation, but remanded the case so that the BIA could exercise its discretion whether to grant respondent's asylum application. Ibid. /2/ REASONS FOR GRANTING THE PETITION The Ninth Circuit in this case held that forced recruitment by guerrillas is "persecution on account of * * * political opinion," and that recruits are eligible for asylum on that basis. 8 U.S.C. 1101(a)(42)(A). This holding -- which the court applied in the absence of any evidence that the recruitment was intended to inflict harm on the recruit for his political opinions, rather than simply to enlist soldies -- conflicts with the decision of the Eleventh Circuit in Perlera-Esobar v. Executive Office for Immigration, 894 F.2d 1292 (1990) (per curiam). The Ninth Circuit's holding disregards the Refugee Act's requirement that persecution be "on account of * * * political opinion." 8 U.S.C. 1101(a)(42)(A). The quoted phrase requires proof, direct or circumstantial, that the persecutor's act is motivated by the desire to inflict harm on the victim "on account of" a "political opinion" to which the persecutor objects. The statutory eligibility requirement is not satisfied by the observation that the alleged persecutor is politically motivated. The fact that the guerrillas intended to conscript respondent in order to further their political goal of overthrowing the government of Guatemala, see App., infra, 12a, 18a, does not qualify as "persecution on account of * * * political opinion." By expanding that phrase to encompass forced conscription by political factions, the Ninth Circuit has opened eligibility for asylum to every candidate for military service in countries torn by domestic strife. Needless to say, the class of such persons is large. The looming burden for the INS in processing applications from such individuals, and for the Nation in assimilating them into society, necessitates this Court's review. /3/ 1. The Ninth Circuit's decision in this case conflicts with the decision of the Eleventh Circuit in Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292 (1990). Escobar was a deserter from a guerrilla force who feared punishment for his defection. Id. at 1294. Initially, Escobar had sought the guerrillas' protection for a Salvadoran "death squad." Ibid. According to Escobar, the guerrillas took him to their camp "where, against his will, he was trained and 'incorporated' into the guerrilla group." Ibid. During his nine months with the guerrillas, Escobar witnessed the execution of two guerrillas suspected of attempting to escape. Ibid. Nevertheless, Escobar deserted because he was "politically neutral" and did not want to fight against his fellow countrymen. Id. at 1294 & n.1. Two months after his escape, two guerrillas told Escobar that "the guerrilla commander had issued orders for his arrest." Id. at 1294. The guerrillas were still looking for Escobar after he had entered the United States. Ibid. At his deportation hearing, Escobar testified that "he would be killed by the military upon arrival in San Salvador because the army knew he was a guerrilla, and that he would be killed by the guerrillas because of his desertion." Ibid. The Board of Immigration Appeals concluded that Escobar was not eligible for asylum because the punishment Escobar feared was not "persecution on account of political opinion"; "there was no evidence that the guerrillas' motivations to harm him are other than the need to discipline and deter desertion by its members." 894 F.2d at 1295. The Eleventh Circuit agreed that the guerrillas' efforts to field and retain combat troops did not constitute "persecution on account of * * * political opinion" and affirmed the BIA's denial of relief to Escobar. 894 F.2d at 1296-1299. The court noted at the outset its "oblig(ation)" to defer to the BIA's "construction of the phrase 'on account of . . . political opinion' * * * if that interpretation is reasonable." Id. at 1296. The court observed that "(t)he meaning and scope of the phrase 'on account of . . . political opinion' is not defined by the Act, nor does it appear from the legislative history that Congress unambiguously expressed an intent that the term should be construed in a particular way." Ibid. Since the Refugee Act did not define the statutory phrase, the court concluded that it must give "considerable weight" to the BIA's interpretation and may not substitute its own construction for the reasonable interpretation of the BIA. Ibid. (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), and INS v. Cardoza-Fonseca, 480 U.S. at 448). The Eleventh Circuit found reasonable "(t)he BIA's determination that the need to discipline and silence deserters is not persecution on account of 'political opinion' within the meaning of the Act." 894 F.2d at 1298. The court reasoned that "(a) finding of persecution requires some degree of intent on the part of the alleged persecutor to harm the applicant in order to overcome a belief of the applicant." Ibid. No such intent was established by Escobar: In the absence of any evidence that the guerrillas are interested in him for political reasons, the BIA inferred from the record that Escobar is nothing more than a deserter. The record makes it apparent that the guerrillas are a paramilitary organization exercising control and discipline over its members. It is also apparent that the guerrillas often rely on coercion to recruit soldiers who would not otherwise join them. From these facts the BIA inferred that in order to maintain order and promote loyalty from its members, the guerrillas must discipline deserters. Without such measures the guerrillas would perish when, as is inevitably the case, the spirit of its fighters wanes. In this respect the guerrillas are similar to any military organization that punishes deserters in order to maintain unity. Moreover, the guerrillas also have an interest in preventing Escobar from divulging their secrets to the government or government-backed groups. Even Escobar admits that the guerrillas are interested in him because of what he knows. Simply, the guerrillas care not what Escobar thinks or believes; rather their interest in him stems from their need to preserve unity and order in their ranks and to ensure the secrecy of their operations. Ibid. (emphasis added). The Eleventh Circuit rejected the contention -- accepted by the Ninth Circuit in this case -- that because the guerrillas have political objectives, the statutory requirement that persecution be "on account of * * * political opinion," id. at 1299, is satisfied; to accept that argument, the Eleventh Circuit pointed out, "would entitle almost anyone in a war torn county to meet the statutory requirements for a grant of asylum." Id. at 1299 n.5. /4/ The reasoning of the Ninth and Eleventh Circuits is diametrically opposed. The Ninth Circuit held that "(t)he persecution is properly categorized as 'on account of political opinion,' because the person resisting forced recruitments is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political." App., infra, 12a (citing, inter alia, Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989)). The Eleventh Circuit flatly rejected that analysis when it held that "the fact that * * * the guerrillas are fighting to achieve political objectives does not imbue every act committed by them with political significane. Escobar may well fear persecution on account of what he believes to be political opinion. However, in the context of civil war where fear permeates the life of every citizen, the motiviation of the persecution becomes the linchpin of the analysis." 894 F.2d at 1299. /5/ The fact that respondent was threatened with forcible recruitment, while Escobar was threatened with punishment for desertion, does not distinguish the two cases. /6/ Both men faced threats of harm for failing to comply with a guerrilla group's demand to serve in its armed forces. Both threats were motivated by the guerrillas' desire to field a military force to achieve the group's political objectives, not by a desire to harm the aliens "on account of" any "political opinion." If the threat to respondent was "on account of * * * political opinion," so too was the threat to Escobar. /7/ Indeed, the death threat to Escobar was far more grave, and more credible (in light of the two executions Escobar witnessed and the guerrilla leader's order to arrest him), than the threat that prompted respondent to flee Guatemala. 2. The Ninth Circuit's expansion of asylum eligibility -- from aliens facing "persecution on account of * * * political opinion" to aliens facing a threat of harm motivated by political objective -- overrides the statutory limit on refugee status and trenches on the deference owed to the BIA's reasonable interpretation of the Refugee Act. a. A "well-founded fear of persecution on account of * * * political opinion," 8 U.S.C. 1101(a)(42)(A), plainly requires an intent to discriminate against a person because of his political beliefs. /8/ A guerrilla group's impressment of soldiers is not necessarily motivated by that intention. It is true that forcible conscription by a guerrilla group has a political goal. It is also true that a person confronted with a credible threat of forcible conscription may have a well-founded fear of physical injury or worse if he does not go voluntarily. But those two facts, which, at best, are all the respondent established in this case, do not satisfy the statutor requirement that limits eligibility for asylum to persons with a "well-founded fear of persecution on account of * * * political opinion." 8 U.S.C. 1101(a)(42)(A). The Ninth Circuit reasoned that "(t)he persecution is properly categorized as 'on account of political opinion,' because the person resisting forced recruitment is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political." App., infra, 12a. Because "there was no evidence to rebut the common sense inference that the guerrillas were interested in recruiting (respondent) to further the group's political goals," respondent would be persecuted "on account of political opinion." Id. at 18a. If the Ninth Circuit means that a threat made to achieve a political objective is equivalent to persecution on account of political opinion, that is simply not true. A person might be entirely sympathetic to the goals of the guerrillas, and share every one of their political beliefs, but not want to serve in their army. That person is faced with the same threat of forcible conscription as one who is entirely hostile to the guerrillas' program. Conversely, a person might share none of the guerrillas' views but be happy to sign for a decent wage. It should be obvious that neither of those persons has any fear of "persecution on account of * * * political opinion." If the Ninth Circuit is suggesting that a threat must be presumed to be on account of political opinion unless the INS presents evidence to the contary, such a presumption (or inference /9/ ) likewise has no basis in fact and is contrary to the Refugee Act. Section 208(a) of the Act vests in the Attorney General the authority to establish an asylum procedure, 8 U.S.C. 1158(a), and the procedure he has established requires the alien to bear the burden of proving his eligibility for relief, 8 C.F.R. 208.13. Since a guerrilla group may well seek to recruit young men in order to field a fighting force, not to persecute those men for their political opinions, the Attorney General's refusal to recognize such a presumption is plainly appropriate. /10/ b. The flaw in the Ninth Circuit's opinion in this case is not simply a matter of words; it goes to the heart of the purpose of the Refugee Act. It was the goal of that statute to extend eligibility for asylum not to all victims of coercion, or even terror, but only to those who were threatened with persecution for certain reasons. Refusal to serve in someone's army is not one of those reasons. The international agreements from which Congress drew the definition of "refugee" in the 1980 Refugee Act support the reading of "on account of * * * political opinion" as a limitation on asylum eligibility to those who are harmed or threatened with harm for their political beliefs. The definition of "refugee" in the 1980 Refugee Act originated in the 1946 Constitution of the International Refugee Organization (IRO). See INS v. Cardoza-Fonseca, 480 U.S. at 437. Responding to persecution perpetrated by the fascist powers before and during World War II, the IRO defined as "refugees" those persons who were outside their native country and were "victims of the nazi or fascist regimes or of regimes which took part on their side in the second world war"; "Spanish Republicans and other victims of the Falangist regime in Spain"; and "persons who were considered refugees before the second world war, for reasons of race, religion, nationality or political opinion." IRO Const., Annex 1, Pt. 1, Section A1(a)-(c), 62 Stat. 3049. The IRO also defined as refugees "persons of Jewis origin or foreigners or stateless persons" who were returned to their native country by "enemy action" and became "victims of nazi persecution." IRO Const., Annex 1, Pt. 1, Section A3, 62 Stat. 3049-3050. The IRO allowed refugees to decline to be repatriated to their native country if, among other reasons, they claimed "persecution, or fear, based on reasonable grounds of persecution because of race, religion, nationality or political opinions." IRO Const., Annex 1, Pt. 1, Section C1(a)(i), 62 Stat. 3050. The IRO definition of refugee was incorporated in the United Nations Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 152, whose definition of "refugee" was in turned revised in the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, art. I, 19 U.S.T. 6225, T.I.A.S. No. 6577, to apply to persons who became refugees after January 1, 1951. The United States acceded to the Protocol in 1968. 19 U.S.T. 6257. In 1980, Congress, in enacting the Refugee Act, conformed the definition of "refugee" in United States immigration law to that in the 1967 Protocol. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. at 436, 437; S. Rep. No. 256, 96th Cong., 1st Sess. 4 (1979); S. Conf. Rep. No. 590, 96th Cong., 2d Sess. 19 (1980). The 1946 Constitution of the IRO, the 1951 United Nations Convention, and the 1967 United Nation Protocol all require that persecution be "for reasons of," "based on," or "because of" the victim's race, beliefs, or nationality. The drafters of these instruments had in mind the many victims of fascist racial and ideological persecution. Refugees, as defined by the examples in these instruments, were not just the unwilling conscripts of the respective national combatants, or the victims of war's dislocation; they were instead those who were made to suffer for their race, their beliefs, or their nationality. c. Even if it were fair ground for debate whether harm inflicted or threatened in order to achieve a political objective qualifies as "persecution on account of * * * political opinion" -- and we think it is not -- the Ninth Circuit should have limited its consideration to the question whether the BIA's interpretation of that phrase was based on a permissible construction of the statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 842-843. As the Eleventh Circuit explained in Perlera-Escobar, "(t)he meaning and scope of the phrase 'on account of . . . politicl opinion' is not defined by the Act, nor does it appear from the legislative history that Congress unambiguously expressed an intent that the term should be construed in a particular way." 894 F.2d at 1296. In that situation, the Ninth Circuit plainly erred in giving no weight to the BIA's determination -- developed in several cases, see id. at 1297; App., infra, 32a-33a -- that forcible conscription by a guerrilla group is not necessarily "persecution on account of * * * (the conscript's) political opinion." See 894 F.2d at 1296. /11/ By itself filing any gap left by Congress in the Refugee Act, the Ninth Circuit arrogated to itself the authority to make immigration policy and usurped the role of the agency to which Congress delegated that responsibility. See, e.g., Pension Benefit Guaranty Corp. v. LTV Corp., 110 S. Ct. 2668, 2672-2681 (1990); Fort Stewart Schools v. FLRA, 110 S. Ct. 2043, 2046 (1990); Sullivan v. Everhart, 110 S. Ct. 960, 964 (1990); Massachusetts v. Morash, 490 U.S. 107, 114-118 (1989); INS v. Cardoza-Fonseca, 480 U.S. at 448; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. at 844. 3. The Ninth Circuit's holding would, in the words of the Eleventh Circuit in Perlera-Escobar, "entitle almost anyone in a war torn country to meet the statutory requirements for a grant of asylum." 894 F.2d at 1299 n.5. Given the number of draft-age males in countries like Guatemala, and the "incentives for draft-age males to raise asylum claims," M.A. A26851062 v. INS, 899 F.2d 304, 315 (4th Cir. 1990) (en banc), it is not unreasonable to expect a flood o such claims from those placed in deportation proceedings in the Ninth Circuit. /12/ 4. The importance of this case has not been diminished by passage of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978. Section 302 of that Act, 104 Stat. 5030, authorizes the Attorney General to extend "temporary protected status" to aliens who are nationals of a country that he finds, inter alia, to be in a state of "ongoing armed conflict" such that deportation to that country would pose a "serious threat" to the personal safety of the affected aliens. Section 302(b)(1)(A), 104 Stat. 5031 (to be codified at 8 U.S.C. 1254(a). But that status depends on particular country designations that have not been made, see INS v. Cardoza-Fonseca, 480 U.S. at 426 n.3 (asylum application not rendered moot by immigration law that was "not self-executing" and the procedures for which were "not yet in place"); the protected status is, as its name implies, "temporary," see Section 302(b)(2)(B), 104 Stat. 5032 (initial period of designation is "not less than 6 months and not more than 18 months"); cf. City of Los Angeles v. Lyons, 461 U.S. 95, 100-101 (1983) (administrative moratorium on police choke-hold for indefinite period did not moot challenge to practice); and temporary protected status is not the equivalent of asylum, since the Attorney General may adjust the status of an alien granted asylum to that of lawful permanent resident after one year; see 8 U.S.C. 1159; INS v. Cardoza-Fonseca, 480 U.S. at 427 n.3. The "temporary protected status" authorized by the 1990 Immigration Act bears on the interpretation of the 1980 Refugee Act in one respect only. By authorizing the temporary withholding of deportation that "would pose a serious threat to (the alien's) personal safety," Section 302(b)(1)(A), 104 Stat. 5031, the 1990 Act seeks an objective far broader than that of the Refugee Act: it seeks to provide a sanctuary -- albeit a temporary one -- from the dangers of living in a country divided by civil war. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General DAVID L. SHAPIRO Deputy Solicitor General STEPHEN J. MARZEN Assistant to the Solicitor General FEBRUARY 1991 /1/ An alien found eligible for withholding of deportation is entitled, without more, to that relief. An alien found eligible for asylum may still be denied that status in the discretion of the Attorney General. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987); INS v. Stevic, 467 U.S. 407, 423 n.18 (1984). /2/ Before denying a petition for rehearing, App., infra, 26a, the panel issued an order amending its opinion, id. at 2a-5a. The opinion reprinted in the Appendix, id. at 5a-25a, incorporates these amendments. /3/ In another pending case, Immigration and Naturalization Service v. Canas-Segovia, No. 90-1246 (filed Feb. 6, 1991), we have petitioned for certiorari from a decision of the Ninth Circuit holding that a conscientious objector who fears punishment by the government of El Salvador for resisting universal military service is eligible for both asylum and withholding of deportation. Like this case, Canas-Segovia raises an important question of the meaning of "on account of" in the Refugee Act. But the issues are in substantial respects sufficiently different -- here, the significance of the political objective of a guerrilla group and in Canas-Segovia the significance of the conscript's conscientious objection to government-required military service -- that we believe both decisions warrant plenary review. Moreover, a decision in either case would not necessarily govern disposition of the other case. For example, an opinion in Canas-Segovia holding that the "on account of" language requires proof of the persecutor's intent may not be determinative on the question whether an intent to pursue a political objective, which the Ninth Circuit found in the decision below, constitutes an intent to persecute on account of a "political opinion" within the meaning of the Refugee Act. /4/ The Eleventh Circuit noted that its holding -- that the guerilla group's pursuit of Escobar for desertion was not "persecution on account of * * * political opinion" -- did not disqualify all former guerrillas from eligibility for asylum. 894 F.2d at 1299. The applicant for asylum need only "demonstrate through evidence in the record, that the guerrillas pursue him to overcome a recognized political opinion." Ibid. /5/ The conflict between the Ninth and Eleventh Circuits is reflected in their use of authority. The Eleventh Circuit, 894 F.2d at 1297, spoke approvingly of the BIA's decisions in In re Maldonado-Cruz, Interim Dec. 3041 (1988), rev'd, 883 F.2d 788 (9th Cir. 1989), and In re Vigil, Interim Dec. 3050 (1988), and the BIA relied on those decisions in this case, App., infra. 32a. The Ninth Circuit reversed the BIA in this case and relied on its opinion reversing the BIA in Maldonado-Cruz, App., infra, 12a. The Eleventh Circuit said that the BIA's opinion in Maldonado-Cruz -- and not the Ninth Circuit's -- is still "persuasive" in the Eleventh Circuit. 894 F.2d at 1297 n.4. /6/ Although the Eleventh Circuit mentioned that "Escobar was not forcibly recruited," 894 F.2d at 1297 n.4, it spoke approvingly of the BIA's decision in In re Vigil, Interim Dec. 3050 (1988), which held that "forced recruitment by either the guerrillas or the government does not constitute fear of persecution 'on account of political opinion.'" 894 F.2d 1297. /7/ The Ninth Circuit's determination that respondent is eligible for asylum also conflicts in principle with decisions of the First Circuit requiring proof that persecution is intended to punish a political opinion. See Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1990) ("Insofar as this evidence shows that the Government (of El Savador) may punish (the applicant) simply because he will not serve in the Army, however, it does not show that the Government will persecute him because of his political opinion."); see also Alvarez-Flores v. INS, 909 F.2d 1, 6 n.4 (1st Cir. 1990) ("Apparently only the Ninth Circuit has determined that mere refusal to join the guerrillas is itself a manifestation of neutrality within the meaning of the (Refugee) Act."). /8/ See Note, A Refugee By Any Other Name: An Examination of the Board of Immigration Appeals' Actions in Asylum Cases, 75 Va. L. Rev. 681, 700 (1989) (Refugee Act requires that "the persecutor seeks to punish (the alien) for holding a specific political belief"). /9/ In response to the government's petition for rehearing, which questioned the panel's use of a presumption, Gov't Reh'g Pet. 7, the panel deleted the word "presumption" and substituted the word "inference." See App., infra, 5a. Compare 908 F.2d at 1458 with App., infra, 18a. /10/ Another panel of the Ninth Circuit has read the decision below as "recogniz(ing)" that an alien may establish presecution from a non-governmental guerrilla group "'on account of' political opinion without any expression of political belief greater than a mere refusal to join the group." Alonzo v. INS, 915 F.2d 546, 549 (1990). The panel described the decision here as one of a series in which the Ninth Circuit has "regularly presumed that an alien's refusal to join a guerilla group, without more, constitutes an expression of political neutrality sufficient to alert the guerillas of the alien's political beliefs." Ibid. The panel criticized this rule because it "ignores the possible existence of other reasons for refusing to join a guerilla group which are not on 'account of' political or religious reasons," including "cowardice, or a desire to invest in his business." Ibid. For this reason, the panel refused to extend it to cases of government conscription, but it could not reject it for cases of conscription by non-governmental groups. Ibid. /11/ Judge Sneed, in describing the Ninth Circuit's "departure from the general rule of deference to administrative decisions," Mendoza Perez v. INS, 902 F.2d 760, 766 (1990) (concurring specially), quoted Perlera-Escobar at length and concluded: "We of the Ninth Circuit do not speak in thos tones," 902 F.2d at 767. /12/ The number of aliens in a position to claim such relief is undoubtedly large. Over 60,000 aliens applied for asylum in 1988, more than twice as many as applied in 1987. 1988 Y.B. INS xxvii (Aug. 1989). The number of asylum applications from Guatemala alone increased more than ten-fold in one year. Ibid. Approximately 56% of asylum applications are filed in the Immigration and Naturalization Service's Western Region, which lies within the jurisdiction of the Ninth Circuit. See id. at 58. APPENDIX