M.A. A26851062 v. INS (M.A. I)

This case is an appeal from Matter of A-G- in which a citizen of El Salvador sought asylum after being apprehended by the Immigration and Naturalization Service (INS) (defendant). M.A. (plaintiff) left El Salvador to avoid serving in the Salvadorian military. M.A. indicated that his refusal to serve could result in being viewed as supportive of the opposition and being killed. M.A. filed a motion to reopen his deportation proceedings so that he could apply for political asylum, which an immigration judge (IJ) denied. After an appeal to the Board of Immigration Appeals (BIA), which affirmed, and to the United States District Court for the Fourth Circuit, which remanded, the IJ considered additional evidence and determined that M.A. had failed to establish a prima facie case for asylum. M.A. appealed to the BIA, which ruled that M.A. had not shown that refusing to join the military would result in M.A. being punished in a manner that was disproportionately severe on grounds listed in § 101(a)(42) of the Immigration and Nationality Act of 1952 (the act). The BIA ruled that M.A. had not established that incidents of atrocities, alleged to be widespread, were the policy of El Salvador or that he would have to commit acts that have been denounced by the international community. For these reasons, the BIA dismissed M.A.’s appeal, and M.A. appealed to the United States Court of Appeals for the Fourth Circuit. A panel of three judges considered that Paragraph 171 of the United Nations High Commission for Refugees Handbook indicates that refugee status may be premised upon refusal to serve in a nation’s military if it can be shown that an individual would be required to commit acts against the individual’s convictions or conscience. Also, if the military acts that an individual does not wish to perform have been denounced by the international community as antithetical to fundamental rules of human behavior, penalties for evading the draft or for desertion could be deemed persecution.