IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. JOSE ROBERTO CANAS-SEGOVIA, ET AL. No. 90-1246 In The Supreme Court Of The United States October Term, 1990 The Solicitor 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 Petitioner is the Immigration and Naturalization Service. Respondents are Jose Roberto Canas-Segovia and Oscar Iban Canas-Segovia. 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 opinion of the court of appeals, App., infra, 1a-25a, is reported at 902 F.2d 717. The opinion of the Board of Immigration Appeals, App. infra, 27a-52a, is reported as Interim Decision No. 3074. The oral opinion of the Immigration Judge, App., infra, 53a-59a, is unreported. JURISDICTION The judgment of the court of appeals was entered on April 24, 1990. A petition for rehearing was denied on October 9, 1990. App., infra, 26a. On December 28, 1990, Justice O'Connor extended the time for filing a petition for a writ of certiorari to and including February 6, 1991. 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), 208(a), and 243(h), and codified at 8 U.S.C. 1101(a)(42), 1158(a), and 1253(h), are reproduced at App., infra, 60a-62a. 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 Act requires an alien seeking withholding of deportation on similar grounds to demonstrate that his "life or freedom would be threatened in (the country designated for deportation) on account of" one or more of the same five bases. 8 U.S.C. 1253(h)(1). The question presented is whether a foreign country's enforcement of a conscription law against conscientious objectors to military service constitutes persecution or a threat to life or freedom "on account of" religion or political opinion. STATEMENT The Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, authorizes asylum and withholding of deportation for refugees persecuted because of their race, religion, nationality, membership in a particular social group, or political opinion. Specifically, eligibility for asylum is limited 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); "refugee" is defined to mean any person who is unwilling to return to his native country "because of persection 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). Eligibility for withholding of deportation is likewise limited to any alien whose "life or freedom would be threatened in (the country designated for deportation) on account of" the same five bases. 8 U.S.C. 1253(h)(1). Respondents Jose Canas-Segovia and Oscar Canas-Segovia left their native El Salvador for the United States a few years before they reached the age at which they would have been subject to conscription. In their deportation proceeding, respondents applied for asylum and withholding of deportation on the ground that they were conscientious objectors to military service. Respondents contended that because El Salvador did not exempt conscientious objectors from its conscription law, enforcement of that law threatened persecution on account of their religion and political opinion. The Immigration Judge and the Board of Immigration Appeals denied the requested relief because El Salvador's conscription law applied uniformly to all draft-age males and was enforced without regard to draftees' religious or political beliefs. The Ninth Circuit reversed. It held that enforcement of a mandatory conscription law constitutes persection "if the refusal (to perform military service) is based upon genuine political, religious, or moral convictons, or other genuine reasons of conscience." App., infra, 16a. The court of appeals held that proof of El Salvador's intent to persecute conscientious objectors because of their religious or political beliefs was not a precondition to relief under the Refugee Act; rather, it is "merely one relevant consideration in the analysis of an asylum claim." Id. at 17a. 1. 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. 421, 437 (1987). 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 outbreak of the second world war, for reasons of race, religion, nationality or political opinion." IRO Constitution, Annex 1, Pt. 1, Section A1(a)-(c), 62 Stat. 3037, 3049. The IRO also defined as refugees "persons of Jewish origin or foreigners or stateless persons" who were returned to their native country by "enemy action" and became "victims of nazi persecution." IRO Constitution, 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 Constitution, 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. 150. By addressing the status of refugees generally, the Convention was intended to eliminate the need for ad hoc agreements in response to specific refugee crises. Ibid. The Convention's preamble "affirmed the principle that human beings shall enjoy fundamental rights and freedoms without dicrimination." Ibid. Like the IRO, the Convention sought to help those persons whose rights and freedoms were endangered because of their race, beliefs, or nationality. Article 1 defined "refugee" to mean any person who, as a result of events before January 1, 1951, is outside his native country "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." 189 U.N.T.S. 152. Article 33.1 prohibited the return of a refugee "to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." 189 U.N.T.S. 176. The Convention's definition of "refugee" was revised in the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6224, 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). 2. Respondents are two brothers who left their native El Salvador a few years before they would have been drafted under that country's military conscription law. At the time of their departure, respondents were studying to become Jehovah's Witnesses. Jehovah's Witnesses are forbidden by their tenets to take up arms or assist the armed forces as non-combatants. El Salvador requires all men between the ages of 18 and 30 to serve in its armed forces; no exception is made for conscientious objectors. The penalty for refusing to serve is a term of imprisonment. /1/ App., infra, 2a-3a. 3. Respondents were apprehended for entering the United States without inspection. In a joint deportation hearing, respondents conceded their deportability and requested asylum and withholding of deportation. App., infra, 54a. The Immigration Judge found credible respondents' testimony that they adhered to the principles of the Jehovah's Witness Church and that Jehovah's Witnesses may not take up arms or kill another human being. App., infra, 54a-55a. He also observed that "(t)here is no suggestion by counsel or the respondents that El Salvador in any way persecutes Jehovah's Witnesses as to their religious activity." Id. at 56a. On those facts, the Immigration Judge denied the requested relief. He noted that under the Refugee Act of 1980, "an individual must show he will be singled out for persecution because of one of the five statutory reasons." App., infra, 57a-58a. Since "(t)he record shows that El Salvador's draft laws apply to all persons equally," the Immigration Judge reasoned that neither conscription of respondents nor their punishment for draft evasion "can be considered 'persecution.'" Id. at 58a-59a. The Immigration Judge noted that 39 countries do not exempt conscientious objectors from military service, and the failure to provide an exemption "does not indicate * * * that these governments are singling out persons of conscience for persecution." Id. at 58a. 4. The Board of Immigration Appeals (BIA) dismissed respondents' appeal. The BIA sustained the Immigration Judge's factual determinations that respondents were bona fide Jehovah's Witnesses, App., infra, 37a, that Jehovah's Witnesses may not render military service, ibid., and that El Salvador's conscription law does not discriminate against conscientious objectors on its face or as administered in practice, id. at 45a. /2/ Because El Salvador requires all draft-age males to render military service without regard to an individual's religious or political beliefs, the BIA reasoned that its application to respondents would not constitute persecution "on account of" religion within the meaning of the Refugee Act. The BIA stated that "a reasonable person in the position of the respondents might fear prosecution for a refusal to perform military service, but would not believe that he had been punished on account of his religious beliefs where the same penalties are applied to all violators, regardless of the reasons for the refusal to serve. Respondent Oscar Canas(-Segovia) himself testified that he did not think the Salvadoran military would care about his religious beliefs and stated that what they did care about was 'pick(ing) up people for fighting.'" App., infra, 46a. "Since the respondents have not shown that the Salvadoran government is inclined to persecute Jehovah's Witnesses or that the government is aware of the respondents' religious beliefs, * * * any punishment imposed would relate to the respondents' ultimate choice not to serve in the military, rather than the reasons or beliefs underlying the respondents' choice. In this regard, the respondents have not demonstrated that the Salvadoran government would regard the fact that the respondents have religious reasons for their refusal to serve in the military as anything but a matter of coincidence." Id. at 47a-48a. /3/ The BIA declined to accept the advice of the United Nations High Commissioner for Refugees -- "that persons such as the respondents 'may be accorded refugee status,'" App., infra, 42a -- because neither the Protocol nor the practice of the signatories held conscientious objectors to be refugees, id. at 43a; because the Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979) (App. infra, 63a-66a) was "ambiguous," id. at 42a-43a; and because the High Commissioner had taken inconsistent positions on whether conscientious objector status alone qualifies a person for refugee status, id. at 40-41 n.5. The BIA also rejected respondents' alternative contention that they have a well-founded fear of persecution based on imputed political opinion. App., infra, 49a-50a. Respondents did "not base their 'imputed political opinion' argument on their particular circumstances but contend that any male who refuses to perform military service in El Salvador is subject to extra-judicial sanctions including torture and death." Id. at 49a. The BIA did not credit respondents' speculation that El Salvador would persecute them based on the mistaken assumption that they are guerrilla sympathizers: With regard to the respondents in this case, it is not reasonable to suggest that the Salvadoran government, or forces beyond that government's control, would view the respondents as subversives or guerrillas, and that the respondents would then incur the risk of punishment or harm to which subversives and guerrillas in El Salvador are exposed. The respondents here are pacifists; the government may well inquire as to the reasons for the respondents' refusal to serve in the military, but would then discover that the respondents' objectio to conscription was based on their religious beliefs. The government might then proceed to punish the respondents, in accordance with its conscription law, but there is no sound reason to believe that the government would view these respondents as possible military opponents. We therefore find no merit to the respondents' "imputed political opinion" argument. Id. at 50a. 5. The Ninth Circuit reversed and found respondents eligible for both asylum and withholding of deportation. It concluded that enforcement of a mandatory conscription policy persecutes bona fide conscientious objectors both "on account of" their religion and "on account of" a political opinion (of neutrality) imputed to them by the government. App., infra, 1a-25a. /4/ The court of appeals rejected at the outset the notion that it should defer to the BIA's interpretation of the Refugee Act, stating that "(t)he judiciary is the final authority on issue (sic) of statutory construction." App., infra, 6a n.6 (quoting INS v. Cardoza-Fonseca, 480 U.S. at 446-448). The court then criticized the BIA's reliance on "the facially neutral characteristics of the Salvadoran conscription policy." App., infra, 10a. Drawing an analogy to some of this Court's cases interpreting the First Amendment's Free Exercise Clause, see id. at 11a (citing Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Board, 450 U.S. 707 (1981); and Sherbert v. Verner, 374 U.S. 398 (1963)), the court of appeals said that the BIA's reasoning "ignores an elementary tenet of the United States constitutional law, namely, that a facilally neutral policy nonetheless may impermissibly infrige upon the rights of specific groups of persons," App., infra, 10a. The court "conclude(d) that the mere facial neutrality of the Salvadoran conscription policy does not preclude it from amounting to persecution under the INA." Id. at 11a. To determine which conscientious objectors qualify as refugees, the court turned to the Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979). App., infra, 13a. The court recognized that "(n)o specific provision is made for conscientious objectors within the INA or the UN Protocol." Id. at 12a. But it found the Handbook to be "authoritative on the subject." Id. at 13a. Based on its reading of certain paragraphs of the Handbook (reprinted at App., infra, 63a-66a), the court held that "persecution arises whenever (one's) conscience is overcome by force or punishment meted out for the refusal to betray it," id. at 16a. Accordingly, the court held that "punishment of a conscientious objector for refusal to comply with a policy of mandatory conscription" constitutes "persection * * * if the refusal (to render military service) is based upon genuine political, religious, or moral convictions, or other genuine reasons of conscience." Ibid. Continuing its focus on the burden on the conscientious objectors' belief, the court rejected the notion that the Refugee Act requires respondents "to demonstrate motive or intent to persecute on the part of the Salvadoran government." App., infra, 17a. In the court's view, "(i)ntent or motive to persecute is merely one relevant consideration in the analysis of an asylum claim," and the BIA committed reversible error when it "transformed these relevant factors into requirements." Ibid.; see id. at 19a & n.21. Applying its burden analysis to the undisputed facts, the court held that respondents were eligible for asylum and withholding of deportation. The court observed that if respondents "refuse() to do military service then they will go to prison. Any resonable person in this position would conclude that the punishment would be on account of his religious beliefs." App., infra, 20a. In the alternative, the court determined that the government of El Salvador would impute to respondents a political opinion in opposition to the government. According to the court, respondents' "refusal to do military srvice because of their religious beliefs also necessarily places them in a position of political neutrality in the Salvadoran civil conflict." App., infra, at 23a. The court spoke approvingly of the argument that "a refusal to bear arms is a uniquely political statement" which "requires the viewing of any conscientious objection to military service as an inherently poltical opinion." Id. at 23a & n.23. Because "persons who refuse to comply with the Salvadoran conscription policy are exposed to sever dangers, including torture and death," the court concluded that respondents would suffer "persecution on account of imputed political opinion." Id. at 23a. Judge Leavy concurred in the grant of relief on the ground that respondents faced persecution on account of an imputed political opinion. App., infra, 25a. He disagreed with the majority's holding with respect to religious persecution, however, "because it treats as irrelevant the motive of the persecutor." Ibid. That conclusion, according to Judge Leavy, "conflicts with the statutory 'on account of' language, which clearly refers to the underlying motives or reasons behind the persecution." Ibid. REASONS FOR GRANTING THE PETITION The Ninth Circuit's holding in this case -- that conscripting bona fide conscientious objectors constitutes persecution "on account of" religion within the meaning of the Refugee Act -- conflicts with the decision of the enbanc Fourth Circuit in M.A. A26851062 v. INS, 899 F.2d 304 (1990). The Ninth Circuit's additional holding -- that punishment of draft resisters constitutes persecution "on account of" an imputed political opinion of opposition to the government -- also conflicts with the Fourth Circuit's decision in M.A. Both bases for the Ninth Circuit's decision effectively eliminate the Refugee Act's requirement that persecution (or a threat to life or freedom) must be "on account of" religion, political opinion, or one of the other statutory bases. That phrase requires proof, direct or circumstantial, that the persecutor's threat is motivated by the victim's race, religion, nationality, membership in a particular social group, or political opinion. By removing the statutory intent requirement, the Ninth Circuit has made eligibility for asylum and for withholding of deportation turn entirely on the degree of the applicant's fear of threatened harm ("reasonable," with respect to asylum, and "more likely than not," with respect to withholding of deportation, App., infra, 8a), without regard to the reason for the threat. Awarding refugee status based solely on the threat of harm would convert the refugee provisions into a source of potential relief for all of those seeking to escape domestic strife in other lands and might well create a backlash against true refugees -- i.e., those persons fleeing from a threat of persecution based on their race, beliefs, or nationality. 1. The Ninth Circuit's decision conflicts with the contemporaneous decision of the en banc Fourth Circuit in M.A. A26851062 v. INS, 899 F.2d 304 (1990). Like respondents, M.A. is a citizen of El Salvador who left that country to avoid serving in its armed forces. Id. at 305-306. Like respondents, M.A. is a conscientious objector. Id. at 306. While respondents are religious conscientious objectors, M.A. is a "conscientious political object(or)" based on perceived atrocities committed by the armed forces of El Salvador. Ibid. M.A. also claimed that he would be "tortured and possibly killed as an opposition sympathizer" if forced to return to El Salvador. Ibid. /5/ The BIA, consistent with its decision in this case, held in M.A. that "it is not persecution for a country to require military service of its citizens." Ibid. The en banc Fourth Circuit affirmed the BIA's decision. 899 F.2d at 316. It noted that the "Refugee Act tightly defines the parameters of cognizable persecution. It allows eligibility for political asylum only if the persecution M.A. fears takes place 'on account of' his 'race, religion, nationality, membership in a particular social group, or political opinion.'" Id. at 311 (quoting 8 U.S.C. 1101(a)(42)(A)); see 899 F.2d at 315. The Fourth Circuit held that the BIA properly focused upon the fact that, at bottom, M.A. was a draft resister who claimed that his justified refusal to serve in the Salvadoran military would result in his persecution. International law and Board precedent are very clear that a sovereign nation enjoys the right to enforce its laws of conscription, and that penalties for evasion are not considered persecution. 899 F.2d at 312. Noting the "incentives for draftage males to raise asylum claims," id. at 315, the Fourth Circuit concluded that M.A.'s "status as a political 'neutral' is * * * irrelevant," ibid., because he "has brought forward no evidence to show that the persecution he fears -- if indeed the object of his fear can appropriately be called persecution, rather than random violence -- has anything to do with his 'neutral' political opinions." Id. at 316. /6/ M.A. would undoubtedly have been granted relief in the Ninth Circuit. First, in view of his sincere political beliefs, M.A. would have been granted relif as a political conscientious objector. The Ninth Circuit in this case "h(e)ld that punishment of a conscientious objector for refusal to comply with a policy of mandatory conscription may amount to persecution within the meaning of the INA, if the refusal is based upon genuine political, religious, or moral convictions, or other genuine reasons of conscience." App., infra, 16a (emphasis added). /7/ Second, the Ninth Circuit would have granted M.A. relief based on a political opinion of neutrality imputed to M.A. by the government. Even more than respondents "refusal to do military service because of * * * religious beliefs," M.A.'s refusal to serve because of political beliefs places him "in a position of political neutrality in the Salvadoran civil conflict." App., infra, 23a. Under the Ninth Circuit's reasoning, "(s)uch a perspective naturally requires the viewing of any conscientious objection to military service as an inherently political opinion." Ibid. (emphasis added). This analysis is as applicable to M.A. as to respondents. /8/ Apart from the differing constructions of the Refugee Act adopted by the Ninth and Fourth Circuits, there is no basis for explaining respondents' eligibility for asylum and withholding of deportation, on the one hand, and M.A.'s deportation to El Salvador, on the other. /9/ 2. The Ninth Circuit's determination that "(i)ntent or motive to persecute is merely one relevant consideration" rather than, as the BIA held, a precondition for asylum and withholding of deportation, App., infra, 17a, ignores the "on account of" requirement in the Refugee Act and fails to give deference to the reasonable interpretation of that phrase by the BIA. a. As Judge Leavy explained in his separate concurrence, "the statutory 'on account of' language * * * clearly refers to the underlying motives or reasons behind the persecution." App., infra, 25a. A "well-founded fear of persection on account of race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. 1101(a)(42)(A) (emphasis added), and a "threat()" to 'life or freedom * * * on account of" the same beliefs or characteristics, 8 U.S.C. 1253(h)(1), plainly requires an intent to discriminate against a person because of one or more of those beliefs or characteristics. When the question involves persecution "on account of" a religious or political belief, refugee status requires more than a threat of harm and the notion that the threat burdens that belief. /10/ The Ninth Circuit's reasoning that the motivation of the persecutor is "merely one relevant consideration," App., infra, 17a, would make refugee status available to one whose religion or political creed requires him to steal, and who fears that if he returns to his country, he will be arrested for stealing. The flaw in this analysis is evident: one whose religious or political beliefs subject him to the threat of penal laws that do not discriminate on the basis of those beliefs is simply not the victim of political or religious persecution. Cf. Employment Div. Dep't of Human Resources v. Smith, 110 S. Ct. 1595, 1600 (1990). b. The international agreements from which the definition of "refugee" in the 1980 Refugee Act was drawn support the reading of "on account of" as a requirement of intent or motive. The 1946 IRO Constitution, the 1951 United Nations Convention, and the 1967 United Nations 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, see pp. 3-4, supra, were not just victims of war's dislocation; they were made to suffer for their race, their beliefs, or their nationality. Courts of the United Kingdom (a party to the 1951 Convention) agree that eligibility for refugee status requires proof of the persecutor's intent. As Judge Kennedy of the Queen's Bench explained in R v. Secretary of State for the Home Department ex parte Zia Mehmet Binbasi, (1989) Imm AR 595: "In 1951 those who drafted the Convention were not seeking to guarantee all human rights. They had a more modest aim, namely to protect those who are genuinely fearful that if they returned to their homeland they will be persecuted simply because of who they are or what they have done." The Immigration Appeal Tribunal of the United Kingdom, interpreting the "for reasons of" language in the Convention as incorporated into British statutory law, accordingly rejected the asylum claim of a Jehovah's Witness who faced "a long term of imprisonment for contravention of the law on conscription" if he returned to his native Greece and refused to serve in its armed forces. The rationale of that tribunal is directly applicable to the situation faced by respondents: In our view there is no doubt that the appellant has a well-founded fear of being punished if he has to return to Greece. * * * The question remains: In this case is it persecution for reasons of religion or political opinion? We do not think that it is. The immediate cause of the persecution is a refusal to obey the law of the land, and the fact that such refusal may be due to religious beliefs or political opinion is in our view only the secondary cause. If the Jehovah's Witnesses in Greece were being persecuted for reasons of religion one would expect that their teachings and meetings would be proscribed. This is evidently not the case and they appear to be free to worship as they please. We do not consider that the relevant law is discriminatory, because it appears to us that other religious orders with similar views as to military service (Quakers for example) and indeed persons with no religious beliefs at all but whose conscience compelled them to refuse service, would all be treated in the same way. Looked at in this way the law in question does not discrimiate against those breaking it any more than does the Theft Act in this country discriminate against thieves: and the fact that the only persons so affected happen to be Jehovah's Witnesses seems to us to be no more than a matter of geographical and cultural accident. Doonetas v. Secretary of State for the Home Department, as quoted, approved, and applied to Atibo v. Immigration Officer, London (Heathrow) Airport, (1978) Imm. AR 93. c. Congress would not have intended that, in circumstances such as these, religious or political conscientious objectors would qualify for asylum or withholding of deportation under the Refugee Act of 1980. Indeed, such a result is especially remarkable in view of the fact that this Court has never construed the First Amendment to require that conscientious objectors be exempted from military conscription. See Gillette v. United States, 401 U.S. 437, 461-462 (1971) ("Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government. * * * The conscription laws, applied to such persons as to others, are not designed to interfere with any religious ritual or practice, and do not work a penalty against any theological position."); Welsh v. United States, 398 U.S. 333, 356 (1970) (Harlan, J., concurring in result) ("Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors."); Selective Draft Law Cases, 245 U.S. 366, 378-390 (1918) ("(t)o do more than state the proposition is absolutely unnecessary"); cf. Employment Div. Dep't of Human Resources v. Smith, 110 S. Ct. at 1600. Under the Ninth Ciruit's theory, members of American draft boards would be engaged in religious persecution /11/ if they were required to administer a conscription law like that in effect in this country during World War I, since that law did not countenance a refusal, on any ground, to accept noncombatant service in support of the armed forces. Selective Draft Act of May 18, 1917, ch. 15, Section 4, 40 Stat. 76, 76; Selective Draft Law Cases, 245 U.S. at 376. /12/ d. The Ninth Circuit's alternative holding -- that respondents would suffer persecution on account of "imputed political opinion," App., infra, 21a -- simply seeks to convert conscientious objection (whatever the reason) from a basis of religious persecution to a basis for political persecution. Since it attempts to infer the alleged persecutors' intent solely from their enforcement of the conscription law, it is vulnerable on precisely the same ground as the principal holding -- namely, that a facilly neutral and uniformly applied conscription law does not persecute respondents "on account of" political opinion. As Judge Leavy recognized in his separate concurrence, the "imputed political opinion" theory is wholly at odds with the majority's rejection of an intent requirement. By relying on an inference that the persecutor imputes to the victim a political opinion (of neutrality), the theory recognizes what the court below elsewhere denied -- the centrality of the alleged persecutor's motivation. /13/ e. The Ninth Circuit erred in giving "authoritative" weight to the Handbook on Procedures and Criteria for Determining Refugee Status (Geneva 1979). App., infra, 13a. As the BIA correctly observed, some paragraphs of the Handbook suggest that religious conscientious objectors "may be able to establish a claim to refugee status," Paragraph 172, while others imply the opposite, see Paragraphs 167, 173. See App., infra, 40a-44a. The United Nations High Commissioner for Refugees has himself appeared on both sides of the debate. In a February 15, 1982 letter, he opined: Conscientious objectors may . . . be considered as refugees and be granted asylum if they fulfill the normal criteria of refugee status, i.e. if they have a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. In applying these criteria to conscientious objectors, it should be borne in mind that fear of prosecution or punishment for objection to military services, desertion or draft evasion, is not a reason for granting refugee status unless there are also elements indicating a well-founded fear of persecution under the refugee definition. App., infra, 40a-41a n.5 (emphasis added). In any event, the Handbook is not law, see INS v. Cardoza-Fonseca, 480 U.S. at 439 n.22, and the Ninth Circuit erred in finding it to be "authoritative," App., infra, 13a, rather than simply to provide "significant guidance," INS v. Cardoza-Fonseca, 480 U.S. at 439 n.22. The silence of the Refugee Act and the Protocol on the eligibility of conscientious objectors for asylum and withholding of deportation leaves a gap to be filled not by the staff of an international agency but by the domestic agency responsible for administering the immigration laws. See ibid. f. In light of the silence of the Refugee Act (and the international agreements as well) on the question of refugee status for conscientious objectors, the Ninth Circuit should have determined whether the BIA's interpretation of the "on account of" language was based on a permissible construction of the statute. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). The Ninth Circuit plainly erred in reviewing the BIA's determination de novo. App., infra, 6a n.6. See generally Pension Benefit Guaranty Corp. v. LTV Corp., 110 S. Ct. 2668, 2676-2681 (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 principal holding in this case makes all conscientious objectors eligible for asylum and withholding of deportation as long their objection is "based upon genuine political, religious, or moral convictions, or other genuine reasons of conscience." App., infra, 16a. Given the number of draft-age males in countries like El Salvador, and the "incentives for draft-age males to raise asylum claims," M.A. A26851062 v. INS, 899 F.2d at 315, it is not unreasonable to expect a flood of such claims from those placed in deportation proceedings in the Ninth Circuit. The troublesome implications of the Ninth Circuit's alternative holding are even more far-reaching. By suggesting that "a refusal to bear arms is a uniquely political statement" which "requires the viewing of any conscientious objection to military service as an inherently political opinion," and that punishment for that refusal is ipso facto "on account of" an imputed political opinion of neutrality, App., infra, 23a & n.23, the court has made relief available to any draft resister subject to punishment for refusing to serve. /14/ 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 303 of that Act provides "special temporary protected status" for Salvadorans who register by June 30, 1991. Section 303(b)(1)(C), 104 Stat. 5036 (to be codified at 8 U.S.C. 1254a note). But that status expires 18 months after January 1, 1991, at which time Salvadorans registered under Section 303 will be placed in deportation proceedings (unless the Attorney General designates El Salvador for temporary protected status under Section 302 of the Immigration Act of 1990). Section 303(a)(2), (d), 104 Stat. 5036-5037. The protected status afforded by the 1990 Act's moratorium on deportation is only temporary and is thus no substitute for withholding of deportation. Cf. City of Los Angeles v. Lyons, 461 U.S. 95, 100-101 (1983) (administrative moratorium on police chokehold for indefinite period did not moot challenge to practice). Moreover, 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. Finally, the moratorium affects only Salvadorans, while the Ninth Circuit's rationale (as the Fourth Circuit's) is broadly applicable to any aliens seeking asylum or withholding of deportation. 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/ The term of imprisonment is unclear. Before the Board of Immigration Appeals, respondents cited a Library of Congress report stating that the punishment for draft resistance is one to three years' imprisonment. App., infra, 49a n.13. The court of appeals indicated, without citation to authority, that the legal penalty for draft resistance ranges "from six months to 15 years imprisonment, depending upon individual circumstances." Id. at 3a. /2/ (T)here is nothing in this record which indicates that the Salvadoran conscription law does not offer exceptions from mandatory service to conscientious objectors because the intent of the law is to persecute Jehovah's Witnesses, or members of any other religious group which is opposed to military service and war. Nor is there evidence that the conscription laws were enacted or are applied in a discriminatory manner; (e.g., with only those with religious objections being punished for their refusal to join the military). App., infra, 45a. /3/ Although the BIA construed the Refugee Act to require proof that persecution is "on account of" one of the five statutory bases, it pointed out that "(a)sylum applicants need not prove a government's 'subjective' intent to persecute, although there may be evidence of such intent in some cases. Reasonable inferences can be drawn from governmental or individual actions." App., infra, 47a n.11. /4/ The court stated that "becuse the facts are undisputed," remand to the BIA "for application of the identified legal standards * * * would serve no purpose." App., infra, 20a. One found eligible for withholding of deportation is entitled, without more, to that relief. One 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. at 428 n.5; INS v. Stevic, 467 U.S. 407, 423 n.18 (1984). /5/ Indeed, unlike respondents here, M.A. offered evidence that he himself had been threatened by a civilian patrol and had been twice beaten by soldiers. 899 F.2d at 306. /6/ The dissenting judges, relying on the same paragraphs of the Handbook as did the Ninth Circuit, see 899 F.2d at 321, criticized the majority for "virtually eliminat(ing) the recognition of conscientious objection as a basis for political asylum." Id. at 321-322. /7/ Later in its opinion, the Ninth Circuit attempted to distinguish the BIA's decision in M.A. on the grounds that M.A.'s evidence did not link refusal to do military service with torture and death, and that M.A. did not raise a claim of religious persecution. App., infra, 22a (discussing Matter of A-G). Neither of these grounds can be sustained. With respect to the second, the Ninth Circuit's holding expressly extends relief to political conscientious objectors; no basis for distinguishing political from religious conscientious objectors appears in the opinion. See Barraza Rivera v. INS. 913 F.2d 1443, 1450-1451 (9th Cir. 1990) (Canas-Segovia "defined conscientious objector in the asylum context broadly," beyond the "traditional form of conscientious objection" based on "religious grounds"); cf. Welsh v. United States, 398 U.S. 333, 356 (1970) (Harlan, J., concurring in result); Cohen & Greenspan, Conscientious Objection, Democratic Theory, and the Constitution, 29 U.Pitt. L. Rev. 389, 403 (1968); Mansfield, Conscientious Objection -- 1964 Term, 1965 Relig. & Pub. Ord. 3, 76. Nor would M.A.'s supposedly lesser evidence of threatened harm (but see note 5, supra) dictate a different outcome. The question in these cases is not whether the threat of harm is credible but whether it is "on account of" religion or political opinion. M.A. (like respondents) faces imprisonment for draft evasion. Under the Ninth Circuit's reasoning, that punishment is "on account of" religion or political opinion; under the Fourth Circuit's reasoning, it is not. /8/ It also conflicts in principle with decisions of the First and Eleventh Circuits requiring proof that persecution is intended to punish a political opinion. See Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1st Cir. 1990) ("Insofar as this evidence shows that the Government (of El Salvador) 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."); Perlera-Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1299 (11th Cir. 1990) ("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 motivation of the persecutor becomes the linchpin of the analysis."); see also Alvarez-Flores v. INS, 909 F.2d 1, 8 n.6 (1st Cir. 1990) (noting that in view of the conflicting analyses in Perlera-Escobar and in the decision in this case, the Ninth and Eleventh Circuits "appear divided on the issue" whether "persecution on account of political neutrality requires that the intention of the persecutor be the 'linch-pin' of the analysis"). /9/ M.A. first applied for asylum in his motion to reopen his deportation proceeding, 899 F.2d at 307, and thus the question in the Fourth Circuit was whether the BIA had abused its discretion, id. at 310. But that procedural posture would not have barred an award in the Ninth Circuit. The BIA denied the motion to reopen based on M.A.'s "failure to establish prima facie eligibility" for relief. Id. at 308. Thus, the crux of the case was not whether M.A. faced a credible threat of punishment for draft evasion, but whether that punishment was "on account of" political opinion. See note 7, supra. The Ninth Circuit would not have reached a different result had it reviewed respondents' application under an abuse of discretion standard. /10/ Consistent with this analysis, commentators addressing the "on account of" language conclude that persecution under the INA requires a showing of "invidious persecution," Helton, Persecution on Account of Membership in a Social Group As a Basis for Refugee Status, 15 Colum. Hum. Rts. L. Rev. 39, 59 (1983), that the "alien (was) 'singled out' for persecution," Preston, Asylum Adjudications: Do State Department Advisory Opinions Violate Refugees' Rights and U.S. International Obligations?, 45 Md. L. Rev. 91, 124 (1986), or that "the persecutor seeks to punish (the alien) for holding a specific political belief," 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). /11/ See App., infra, 48a n.12; cf. 8 U.S.C. 1101(a)(42) ("refugee" does not include "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion"); 8 U.S.C. 1253(h)(2)(A) (same with respect to withholding of deportation). /12/ The beliefs of Jehovah's Witnesses do not permit them to render such non-combatant service. See App., infra, 32a, 34a; R. 585. /13/ The court also asserted that respondents would suffer "disproportionately severe punishment" for their refusal to be "forcibly conscripted," because respondents would be forced to "sacrifice their religion's fundamental principle of pacifism." App., infra, 22a-23a. This is simply another way of saying that, without regard to intent, even-handed enforcement of a nondiscriminatory law may so burden religious or political beliefs as to amount to persecution under the Act. /14/ 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 Statistical Yearbook of the INS at xxviii, Aug. 1989. Significantly, the number of asylum applications by Salvadorans increased from 2,684 in 1987, to 27,048 in 1988. APPENDIX