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

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

   Reply Brief For Petitioner

   The core of the Ninth Circuit's holding in this case is that aliens
who face criminal sanctions for engaging in conduct for religious or
political reasons qualify for asylum and withholding of deportation
even though the criminal sanctions are the same for all who engage in
the forbidden conduct and are not intended to discriminate on the
basis of religious or political beliefs.  The lower court reached this
remarkable result notwithstanding the requirement in the Refugee Act
of 1980 that applicants for asylum and withholding of deportation
establish that they have a well-founded fear of persecution, or would
likely be persecuted, "on account of race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. 1101(a)(42)(A), 1253(h)(1) (emphasis added).  The court
asserted that "(n)either of these standards requires an asylum
applicant to establish the persecutor's intent or motive." Pet. App.
17a.  Instead, the court below reasoned that the asylum applicant's
reasons for violating a law can establish persecution "on account of"
religion or political opinion.  Id. at 20a.

   The Ninth Circuit's decision in this case squarely conflicts with
the en banc Fourth Circuit's decision in M.A. A26851062 v. INS, 899
F.2d 304 (1990), as well as decisions of the First and Eleventh
Circuits holding that the "on account of" language of the Refugee Act
requires proof of the persecutor's intent.  The Ninth Circuit's
reasoning reflects a profound misunderstanding of the nature of
persecution and thus of the structure of the governing statute.  It is
the persecutor who threatens t inflict harm.  Thus, only the
persecutor's state of mind is relevant to determining whether a threat
is "on account of * * * religion * * * or political opinion." Even if
limited to the context of military conscription, the lower court's
substitution of the applicant's motive (for engaging in conduct) for
that of the alleged persecutor (in threatening harm) would bestow
refugee status on every draft resister who refuses to serve "on
account of" his religious or political beliefs, regardless of the
government's reasons for requiring military service and for refusing
to make an exception in his case.

   Although respondents labor mightily to reconcile the Ninth
Circuit's analysis with the Refugee Act, Br. in Opp. 8-18, most of
that discussion does not require a response at this stage, since it is
directed to the merits of the underlying dispute rather than to the
question whether the petition should be granted.  /1/

   1. Respondents fail in their efforts to reconcile the Ninth
Circuit's decision in this case with the en banc Fourth Circuit's
decision in M.A. Br. in Opp. 18-20.  The first proposed distinction,
id. at 18 -- that M.A.'s asylum claim was made in his motion to reopen
his deportation proceeding, 899 F.2d at 307 -- is entirely irrelevant;
 indeed, respondents do not even attempt to explain what difference it
makes.  As we note in our petition, Pet. 17 n.9, the Fourth Circuit
reviewed the Board of Immigration Appeals' denial of M.A.'s motion
based on his "failure to establish prima facie eligibility" for
relief.  899 F.2d at 308.  Since the question in M.A., as here, is not
the likelihood of punishment, but whether it is "on account of"
religion or political opinion, the procedural posture of the two cases
cannot explain the difference in results.

   The second proposed distinction is that respondents are religious
conscientious objectors, while M.A. was a political conscientious
objector.  Br. in Opp. 18-19.  Again, however, respondents fail to
identify the principle that explains why religious conscientious
objectors deserve asylum and political conscientious objectors do not.
 As we note in our petition, there is no such principle.  /2/ In any
event, the Ninth Circuit held that all conscientious objectors are
eligible for asylum as long as their refusal to serve "is based upon
genuine political, religious, or moral convictions, or other genuine
reasons of conscience." Pet. App. 16a (emphases added).  Another Ninth
Circuit panel has recognized the breadth of the decision below.
Barraza Rivera v. INS, 913 F.2d 1443, 1450-1451 (1990) (the decision
below "defined conscientious objector in the asylum context broadly,"
beyond the "traditional form of conscientious objection" based on
"religious grounds").

   The third proposed distinction is the lower court's suggestion,
Pet. App. 22a, that respondents presented evidence that they would be
tortured and killed while MA. did not.  Br. in Opp. 20.  To repeat,
however, the question in these cases is not the likelihood -- or
severity -- of harm, but whether it is "on account of" religion or
political opinion.  /3/ On the latter point, respondents' evidence was
no better than M.A.'s.  In fact, one of the respondents candidly
admitted:  "I don't think they would care about what my religious
beliefs were.  What they care about is (whether) they can pick up
people for fighting." Pet. App. 35a (brackets in original).  The Ninth
Circuit held that respondents' status as conscientious objectors,
without more, satisfied the statutory "on account of" language;  en
banc Fourth Circuit held that it did not.  /4/ The conflict between
the two circuits could not be more direct.

   2. The Ninth Circuit also held that conscientious objection to
military service constitutes an "expression of political neutrality."
Pet. App. 23a.  Respondents contend that this holding is
"non-essential to the Ninth Circuit's decision." Br. in Opp. 21.  In
one sense, respondents are correct.  The Ninth Circuit's alternative
holding simply seeks to convert conscientious objection (whatever the
reason) from a basis of religious persecution to a basis for political
persecution.  It is therefore vulnerable on precisely the same ground
as the principal holding.  See Pet. 22.

   At the same time, the Ninth Circuit's alternative holding
obliterates any basis for distinguishing religious from political
conscientious objectors (if religious conscientious objection
constitutes a political opinion of neutrality, it follows that
political conscientious objection must as well).  It also brings the
Ninth Circuit into conflict with the First and Eleventh Circuits, both
of which hold that the Refugee Act requires proof the persecutor's
intent to discriminate "on account of" political opinion.  See Pet. 16
& n.8.  To that charge, respondents say only that "(i)t is
questionable" whether the decisions conflict.  Br. in Opp. 21.  Not
so.  The Eleventh Circuit held that "the motivation of the persecutor
becomes the linchpin of the analysis," Perlera-Escobar v. Executive
Office for Immigration, 894 F.2d 1292, 1299 (1990) (per curiam), and
the First Circuit noted that, in view of the conflict between the
analysis of the Eleventh Circuit and that of the court below, 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' f the analysis,"
Alvarez-Flores v. INS, 909 F.2d 1, 8 n.6 (1990).  /5/ By holding that
the Refugee Act does not require respondents "to demonstrate motive or
intent to persecute on the part of the Salvadoran government," Pet.
App. 17a, the Ninth Circuit put is ship "at some distance from the
main fleet" Mendoza-Perez v. INS. 902 F.2d 760, 768 (9th Cir. 1990)
(Sneed, J., concurring).

   3. The Ninth Circuit's misreading of the statutory "on account of"
language is not simply unfaithful to the Refugee Act, it also poses a
severe administrative burden for the adjudication of asylum cases.  By
holding that the applicant's reasons for engaging in criminal conduct
can establish that imposition of the corresponding penalties are "on
account of * * * religion * * * or political opinion," the Ninth
Circuit has made any "conscientious objector" to military conscription
eligible for asylum and withholding of deportation.  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.  Moreover, by making eligibility for asylum turn on the
applicant's reasons for draft evasion, the Ninth Circuit has
propounded an interpretation of the Refugee Act that is peculiarly
susceptible to manipulation and abuse.

   Respondents insist that the court below ruled only that two
Jehovah's Witnesses were refugees under the Refugee Act.  Br. in Opp.
23.  Respondents were more candid in their opposition to our petition
for rehearing en banc, where they brushed aside the "floodgate
argument" with the response that the court should adopt their view of
the Refugee Act "irrespective" of its "effect on potential numbers of
successful claims." Resp. C.A. Reply 1 n.1.

   For the foregoing reasons and those stated in our petition, the
petition for a writ of certiorari should be granted.

   Respectfully submitted

   KENNETH W. STARR

      Solicitor General

   MAY 1991

   /1/ Two brief observations are appropriate, however.  First,
respondents rely heavily on the Handbook on Procedures and Criteria
for Determining Refugee Status (Geneva 1979), published by the United
Nations High Commissioner for Refugees.  See Br. in Opp. 3-5, 11-13.
But since respondents concede that the Handbook provides at most
"significant guidance," Br. in Opp. 3, in construing the Refugee Act,
respondents seem to agree with the government that the Ninth Circuit
erred in giving "authoritative" weight to the Handbook.  Pet. App.
13a.  Respondents also appear to concede that the Handbook's author,
the High Commissioner for Refugees, has taken inconsistent positions
on the eligibility of conscientious objectors for refugee status based
solely on failure to comply with universal conscription laws.
Respondents claim that the High Commissioner's latest position, which
differs from her position in 1982, see Pet. 22-23, returns to the one
she espoused in 1981, Br. in Opp. 12 n.6.  If so, the High
Commissioner has switched sides not once, but twice.  Thus, by
respondents' own analysis, id. at 15-18, the High Commissioner's views
provide little guidance in interpreting the Refugee Act.  More
fundamentally, the High Commissioner's latest position on
conscientious objectors conflicts with other paragraphs of the
Handbook, which recognize (correctly) that "(i)f the prosecution
pertains to a punishable act committed out of political motives, and
if the anticipated punishment is in conformity with the general law of
the country concerned, fear of such prosecution will not in itself
make the applicant a refugee." Handbook Paragraph 84;  see id.
Paragraph 56.

   Second, respondent err in claiming, Br. in Opp. 16 n.12, that the
agency's construction of the Refugee Act is not entitled to deference.
 This Court has held that the traditional deference rules apply.  See
INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987).

   /2/ See Welsh v. United States, 398 U.S. 333, 356 (1970) (Harlan,
J., concurring in result) (Congress "cannot draw the line between
theistic or nontheistic religious beliefs on the one hand and secular
beliefs on the other");  Cohen & Greenspan, Conscientious Objection,
Democratic Theory, and the Constitution, 29 U. Pitt. L. Rev. 389, 403
(1968) ("Nothing is more repugnant to a sense of fairness than the
rejection of the claim of a conscientious objector because he does not
believe in a transcendent reality.");  Mansfield, Conscientious
Objection -- 1964 Term, 1965 Relig. & Pub. Ord. 3, 76 ("(T)here are
really no convincing reasons why the religious objector should be
exempt and not the non-religious conscientious objector.").

   /3/ For this reason, the Handbook's recommendation (Paragraph 169)
of refugee status for "a deserter or draft evader" subject to
disproportionate punishment has no bearing on this case.  Like the
Refugee Act, that paragraph focuses on whether the punishment is "on
account of" race, religion, nationality, membership in a particular
social group or political opinion -- i.e., "above and beyond the
punishment for desertion" or draft evasion.  Pet. App. 64a (reprinting
Handbook Paragraph 169).  The Ninth Circuit found the punishment to be
"disproportionate" not because Jehovah's Witnesses receive a more
severe penalty than other draft resisters, but because they would
suffer more if (contrary to their convictions) they took up arms
rather than went to jail.  Pet. App. 22a-23a.

   /4/ As a factual matter, the Ninth Circuit was wrong to assert that
respondents faced a more serious threat than did M.A.  M.A. offered
evidence that he had been threatened by a civilian patrol and had been
twice beaten by soldiers.  899 F.2d at 306.  Respondents entered the
United States before they reached the age of conscription, and the
Salvadoran government was not even aware they were Jehovah's
Witnesses.

   /5/ Contrary to respondents' contention, Br. in Opp. 22 n.15, the
First Circuit in Umanzor-Alvarado v. INS, 896 F.2d 14, 15 (1990), did
not suggest that conscientious objectors are eligible for asylum.
Judge Breyer wrote that evidence "that the Government may punish
simply because (the applicant) will not serve" in the military "does
not show that the Government will persecute him because of his
political opinion." Ibid.  Not only do respondents elide Judge
Breyers's emphases, Br. in Opp. 21-22 n.15, but they err in trying to
draw comfort from the statement in another paragraph that "the matter
might well be different" if the applicant were a genuine pacifist.
Ibid.  The earlier sentence, as well as a later opinion by Judge
Breyer, establish that the matter would not be different in the First
Circuit.  See Novoa-Umania v. INS, 896 F.2d 1, 3 (1990) (claim of
persecution based on political neutrality requires proof of
persecutor's intent in one of three forms).  The sentence quoted by
respondents simply paraphrases the Ninth Circuit case cited
immediately thereafter;  we agree that in the Ninth Circuit "the
matter might well be different."