M.A. v. INS (M.A. II)

This case stems from an immigration judge’s (IJ) denial of an El Salvadorian citizen’s, M.A.’s, (plaintiff) motion to reopen deportation proceedings for failure to establish a prima facie case of political asylum based upon fear of persecution for refusing to serve in the Salvadorian army. On appeal, the Board of Immigration Appeals (BIA) affirmed and noted that nations were permitted to institute military drafts, and punishment for evading the draft was not deemed persecution. However, a three-judge panel of this court, the United States Court of Appeals for the Fourth Circuit, reversed the BIA. By way of review, M.A. alleged that the Salvadorian army had committed acts that were antithetical to fundamental rules of human behavior, and he would not serve in such a military. However, the IJ ruled, and the BIA affirmed, that M.A. did not present evidence that such acts were committed pursuant to the policies of El Salvador’s government or its military. M.A. did present evidence from private organizations like Amnesty International that noted (1) the military’s violent acts across the whole of Salvadorian society, such as arbitrary detentions, torture, extrajudicial killings, and killings by death squads, and (2) that alleged that such acts were pursuant to Salvadorian policy. However, the IJ found, and the BIA affirmed, that reports of private organizations do not fill the requirement of condemnation by the international community. A panel of three judges of this court reversed the BIA. The Immigration and Naturalization Service (INS) (defendant) petitioned for this court to rehear the case en banc.