A determination by the Board of Immigration Appeals that an alien is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole. 8 U.S.C.S. § 1105a(a)(4). It can be reversed only if the evidence presented by the alien was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.
A Guatemalan native was apprehended for entering the United States without inspection and the Immigration and Naturalization Service brought proceedings to deport him. The Guatemalan conceded his deportability but requested asylum as a refugee under the Immigration and Nationality Act. In support of his request, the Guatemalan testified that two armed uniformed guerrillas had come to his home in Guatemala and asked him and his parents to join them. He also alleged that when he and his parents refused, the guerrillas asked why, said that they would be back, and told the family that they should think it over. The Guatemalan did not want to join the guerrillas because they were against the government and because he was afraid that the government would retaliate against his family. The Guatemalan further alleged that due to fear that the guerillas would return, he had left Guatemala. The Immigration Judge concluded that the Guatemalan had 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 within the terms of the law and was not eligible for asylum. The Board of Immigration Appeals (BIA) summarily dismissed the Guatemalan's appeal on procedural grounds, and denied his motion to reopen the deportation proceeding so that he could submit new evidence that the guerrillas had twice returned to his home in continued efforts to recruit him. However, the United States Court of Appeals for the Ninth Circuit, treating the BIA's second ruling as an affirmance on the merits of the Immigration Judge's decision, reversed, as the court held that acts of conscription by a nongovernmental group constitute persecution on account of political opinion and that the Guatemalan had a well-founded fear of such conscription.
Should the determination of the BIA be upheld?
The Court ruled that a guerrilla organization's attempt to coerce a person into performing military service does not necessarily constitute persecution on account of political opinion within the meaning of the law and that the determination of the BIA in the case at hand, therefore, should have been upheld. According to the Court, the record demonstrated that respondent did not have a political motive for resisting recruitment by the guerillas. Moreover, the Court posited that in finding a danger of persecution on account of political opinion, the court of appeals had improperly concluded that persecution was threatened on account of the guerillas' political opinion, rather than respondent's political opinion as required by § 101(a)(42).