Interim Decision #3041 

MATTER OF MALDONADO-CRUZ 

In Deportation Proceedings 

A-27549626 

Decided by Board January 21, 1988 

(1) A threat to harm or kill a deserter from a guerrilla organization operating in a 

country does not constitute persecution under the Refugee Act of 1980, Pub. L. 

No. 96-212,94 Stet. 102. 

(2) In analyzing a claim of persecution made in the context of a civil war, it is necessary to examine the motivation of the group threatening harm. 

(3) The threat to harm a deserter from the guerrilla organization is part of a military policy of that group, inherent in the nature of the organization, and a tool of 

discipline; thus, the threat is neither an act of persecution nor evidence of persecution by the guerrilla organization on account of political opinion, or any other 

ground set forth in the Refugee Act of 1980, 

(4) The holding of Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984), is not 

applied outside of the Ninth Circuit. 

(5) It is not persecution for the government of a country to investigate and detain 

individuals suspected of aiding or being a member of a guerrilla organization. 

CHARGE: 

Order: Act of 1952—Sec. 241(aX2) U.S.C. § 1251(uX2)] —Entered without inspce-

' don 

ON BEHALF OF RESPONDENT: 

Stevan At Rocard-hol, Require 

Wilmer, Cutler and Pickering 

2445 M Street, N_W. 

Washington, D.C. 20037-1420 

ON BEHALF OP SERVICE: 

James Ray Blinn, Jr. 

General Attorney 

BY: Milhollan, Chairman; Dunne, Morris, and Vacca, Board Members. Concurring 

Opinion: Heilman, Board Member. 

On January 14, 1987, the immigration judge found the respondent deportable as charged, denied his applications for asylum and 

for withholding of deportation under sections 208 and 243(h) of the 

Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h) 

(1982), and denied him the privilege of voluntary departure in lieu 

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Interim Decision #3041 

of deportation. The respondent has appealed from that decision. 

The appeal will be dismissed. 

The respondent is a native and citizen of El Salvador who conceded that he entered the United States without inspection on October 21, 1986. Accordingly, his deportability is established by 

clear, unequivocal, and convincing evidence. Woodby v. INS, 385 

U.S. 276 (1966). The respondent agrees that the issues presented on 

appeal are his eligibility for asylum and withholding of deportation. 

THE PROCEDURAL CONTENTIONS 

We first address the respondent's procedural arguments raised 

on appeal. The respondent claims that, due to the conditions of detention and the lack of "consistent Spa riishspeaking counsel and 

translators," he was unable to communicate "significant facts" concerning his asylum application. We fmd no evidence in the record 

to support the respondent's contention. The respondent was represented by counsel prior to, during, and subsequent to his deportation hearing. Moreover, on appeal, the respondent's case was fully 

briefed and argued by his counsel before the Board. During the deportation hearing a Spanish-language translator was utilized. We 

have considered the affidavits of the respondent and his counsel 

and we are convinced that he was given a full and fair opportunity 

to present his asylum claim. We find no prejudice to the respondent. Matter of Santos, 19 I&N Dec. 105 (BIA 1984); see also Patel v. 

INS, 803 F.2d 804 (5th Cir. 1986). 

THE RESPONDENT'S PERSECUTION CLAIM 

We also find that the immigration judge properly denied the respondent's applications for asylum and -withholding of deportation. 

The respondent bears the evidentiary burdens of proof and persuasion in any application for withholding of deportation under section 243(h) or asylum under section 208 of the Act. Matter of 

Acosta, 19 I&N Dec. 211 (BIA 1985); 8 C.F.R. §§ 208.5, 242.17(c) 

(1988). The respondent must establish the facts underlying his 

claims for such relief by a preponderance of credible, probative evidence. He must also establish that the facts proven satisfy the statutory standards of eligibility for these forms of relief. Matter of 

Acosta, supra. 

To be eligible for withholding of deportation pursuant to section 

243(h) of the Act, an alien's facts must show a clear probability of 

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Interim Decision #3041 

persecution in the country designated for deportation on account of 

race, religion, nationality, membership in a particular social group, 

or political opinion. Section 101(a)(42)(A) of the Act, 8 U.S.C. 

§ 1101(aX42)(A) (1982); section 208 of the Act. The United States Supreme Court has determined that the "well-founded fear" standard 

imposed on asylum applicants differs from the "clear probability" 

standard imposed on aliens who seek withholding of deportation 

and that the evidentiary burden for establishing entitlement to 

withholding of deportation is greater than that imposed on aliens 

who seek asylum. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). 

An applicant for asylum has established a well-founded fear if he 

shows that a reasonable person in his circumstances would fear 

persecution. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). 1 

The respondent's persecution claim consists of the following 

facts. The record indicates that the respondent entered the United 

States on three separate occasions, the last time being in 1985. He 

claims that, sometime in 1983, he and a friend were kidnapped by 

guerrillas in El Salvador. The respondent claims that, after several 

days of training, he was forced to participate in a guerrilla operation against his village. During the operation, the respondent's 

friend was killed by the guerrillas when he tried to escape. The respondent claims to have heard of his friend's death through conversations with other guerrillas. A few days later, the respondent 

managed to escape from the guerrillas and went to his parents' 

home, and, after spending a few hours there, he left for San Salvador. The respondent claims that, while waiting for a bus in San 

Salvador, he met some neighbors from his village who told him the 

guerrillas had been looking for him. A short time later, the respondent left San Salvador and went to Guatemala and eventually 

made his way to the United States. The respondent believes that 

the guerrillas will kill him for having deserted them. 

The respondent further states that the military forces of El Salvador will persecute him because of their "perceived political opinion" that he is a member of the guerrillas. 

THE CLAIM OF PERSECUTION BY THE GUERRILLAS 

The first issue in the respondent's asylum claim is whether his 

fear that he will be harmed or even killed by the guerrilla organi- 

'In his decision, the immigration judge found certain parts of the respondent's 

testimony incredible. However, he ultimately based his decision on the respondent's 

failure to establish a valid persecution claim. Accordingly, we address this issue on 

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Interim Decision #3041 

zation he was forced to join constitutes a threat of persecution, or a 

threat of some other nature not encompassed by the. Refugee Act of 

1980, Pub. L. No. 96-212, 94 Stet. 102. In other words, the issue 

does not involve questions of proof, but whether the harm the respondent fears is on account of "political opinion" as this term is 

used under section 101(a)(42)(A) of the Act. See Campos-Guardado 

v. INS, 809 F.2d 285, 291 (5th Cir. 1987). 

An alien who succeeds in establishing a well-founded fear of 

being harmed will not necessarily be granted asylum. Thus, for example, aliens fearing retribution over purely personal matters or 

those fleeing general conditions of violence and upheaval in their 

native countries would not qualify for asylum. Such persons may 

have well-founded fears of harm but such harm would not be on 

account of their race, religion, nationality, membership in a particular social group, or political opinion. See, e.g., Sanchez-Trujillo 

v. INS, 801 F.2d 1571 (9th Cir. 1986); Contreras Aragon v. INS, 789 

F.2d 777 (9th Cir. 1986); Diaz-Escobar v. INS, 782 F.2d 1488 (9th 

Cir. 1986); Daily v. INS, 744 F.2d 1191 (6th Cir. 1984); CafuujalMunoz v. INS, 743 F.2d 562 (7th Cir. 1984); Martinez Romero v. 

INS, 692 F.2d 595 (9th Cir. 1982); Matter of Pierre, 15 I&N Dec. 461 

(BIA 1975). 

In Campos-Guardado v. INS, supra, the United States Court of 

Appeals for the Fifth Circuit observed: "The issue reduces to 

whether the political implications underlying an alien's fear of 

harm rise to the level of 'political opinion' within the meaning of 

the statute or whether, those conditions constitute the type of civil 

strife outside the intended reach of the statute." Id. at 290. In 

Matter of Acosta, supra, we observed: 

[Tihe respondent did not demonstrate that the persecution he fears is "on account 

of political opinion." The fact that the respondent was threatened by the guerrillas as part of a campaign to destabilize the government demonstrates that the 

guerrillas' actions were undertaken to further their political goals in the civil controversy in El Salvador. However, conduct undertaken to further the goals of one 

faction in a political controversy does not necessarily constitute persecution "on 

account or political opinion so as to qualify an alien as a "refugee" within the 

meaning of the Act. 

Id. at 234. 

The Ninth Circuit stated the following in Hernandez-Ortiz v. 

INS, 777 F.2d 509 (9th Cir. 1985): 

A clear probability that an alien's life or freedom is threatened, without any inclination of the basis for the threat, is generally insufficient to constitute "persecution". . . . There must also be some evidence that the threat is related to one of 

the factors enumerated in section 243(h). 

Id. at 516. The court further stated: 

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Interim Decision #3041 

[fin determining whether threats or violence constitute political persecution, it is 

permissible to examine the motivation of the persecutor; we may look to the political views and actions of the entity or individual responsible for the threats or 

violence, as well as to the victim's, and we may examine the relationship between 

the two. 

Id. Persecution will occur "only when there is a difference between 

the persecutor's views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate." Id. 

We believe that this formulation offers a practical approach to 

analyzing claims of persecution. We are unaware of any express 

discussion of this issue in the Fifth Circuit where this case arises. 

We believe, however, that Fifth Circuit cases do not conflict with 

the formulation in Hernandez-Ortiz v. INS, supra. Cf. CamposGuardado v. INS, supra. 

In analyzing a claim of persecution made in the context of a civil 

war, it is necessary to look to the motivation of the group threatening harm. Even though guerrillas may have the political strategy 

of overthrowing the government by military means, this does not 

mean that they cannot have objectives within that political strategy which are attained by acts of violence, but whose motivation is 

not related to any desire to persecute. 

Historically, civil wars or revolutions have always contained 

strong currents of violence, threats, destruction, intimidation, and 

indeed ruthlessness. Individuals harmed by such violence or 

threats of harm in a civil war situation are not necessarily persecuted "on account of" the five categories enumerated in section 

101(a)(42XA) of the Act. See Campos-Guardado v. INS, supra. 

We now turn to the facts of the respondent's case in order to determine whether he has established a well-founded fear of persecution on account of political opinion. The first encounter that the respondent had with the guerrillas was their forced recruitment of 

him. The respondent was kidnapped by the guerrillas. It does not 

appear that there were any elements of persecution in this encounter. The guerrillas did not approach him to harm him because they 

considered him to have characteristics the guerrillas found offensive or which they wished to overcome. The guerrillas wanted him 

to be a member of their group, even if his help was not provided 

willingly, or at least not volunteered. 

The nature of the respondent's initial encounter with the guerrillas is important because it reveals that he was not seen as an 

object of hatred. There was nothing about him which the guerrillas 

considered offensive, or for which they wished to punish him. From 

this we may fairly conclude that the guerrillas did not view the respondent as an object of racial, religious, or political hatred; 

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Interim Decision #3041 

indeed, they took him into their band because he was of use to 

them. 

The first encounter he had with the guerrillas does not provide 

any evidence of persecution. It is, however, directly relevant to the 

second crucial determination, which is whether the nature of his 

relationship to the guerrillas, or their perception of the respondent, 

later changed in such a way as to transform him into an object of 

persecution. The salient facts in this second examination are the 

fact of his desertion, and the guerrillas' reaction to that act by the 

respondent. 

There is no evidence in the record that the guerrillas attribute 

any political opinion to the respondent that they find offensive. 

There is also no evidence that the guerrillas have the slightest interest in the reason or reasons the respondent deserted, whether it 

was dislike for the guerrillas' political platform, dislike for life on 

the run, or fear of the government. The fact of the matter is that, 

as far as they know, he might sympathize with the guerrillas but 

have strong reasons for not wanting to be with them. 

The analysis one engages in at this point hinges to a certain 

extent on assumptions one may have concerning the nature of the 

guerrillas' struggle occurring in El Salvador and on the nature of 

guerrilla struggles in general. These assumptions, or presumptions, 

are completely legitimate bases for coming to grips with the questions presented. For example, in Hernandez-Ortiz v. INS, supra, the 

court based its decision in great part on a presumption that a government acts militarily in a particular manner: 

When a government exerts its military strength against an individual or a group 

within its population and there is no reason to believe that the individual or 

group has engaged in any criminal activity or other conduct that would provide a 

legitimate basis for governmental action, the most reasonable presumption is that 

the government's actions are politically motivated. 

Id. at 516. 

It is entirely proper to apply a presumption in this case that a 

guerrilla organization, as a military or a para-military organization, has the need to control its members, to exercise discipline. 

This is a presumption that is based on the nature of the guerrilla 

organization. It is understood in El. Salvador that guerrilla groups 

do not rely entirely on volunteers to man their military units. 2 

2 See the 1986 Country Reports on Human Rights Practices, Joint Committee of 

the Senate and House of Representatives, 100th Congress, 1st Session (1987) ("Country Reports"), which states: 

The FMLN engages in kidnaping for a variety of motives: for ransom; as a for ► 

of recruitment of new combatants, including children as young as 10 years of 

Continued 

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Interim Decision #3041 

Guerrillas depend for food and other essentials on a population 

which may not be inclined to actively assist them, or which may 

not have the means to do so. 

The guerrillas need military units to operate against the government. To keep them as cohesive fighting units they must impose 

discipline; and an important form of discipline, common to military 

or Para-military organizations alike, is the punishment of deserters. This is an essential element of control in a situation which is 

at best difficult, and which may unravel if persons may simply 

decide to leave when they choose. If, for instance, the guerrilla 

group came under persistent attack, with substantial casualties, individuals might easily be tempted to desert. If sufficient numbers 

did this, then the guerrilla group would cease to exist. One way to 

prevent this is the threat of retaliation against anyone who deserts, 

and anyone who aids the deserter. See, e.g., Office of the United 

Nations High Commissioner for Refugees, Handbook on Procedures 

and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 

39-42 (Geneva, 1979) ("Handbook"). 

The present relationship of the respondent to the guerrillas, and 

their motivation to harm him, lack any indication of persecution. 

The respondent's own version of why the guerrillas were looking 

for him supports our analysis. The guerrillas were looking for hina 

because they were concerned that he had informed on them to the 

Salvadoran -military. The respondent's lengthy statement attached 

to his asylum application clearly indicates this reason. According 

to the respondent, "When I was with [the gruerrillas], I had heard 

them discuss attacks that they made and planned to make on several towns in the area, and I also thought they would fear that I 

age; to obtain workers to grow and cook food, obtain supplies, transport smuggled material, and perform other tasks. 

. . . . 

The Government prohibits forced labor. The guerrillas, however, have kidnaped 

peasants and forced them to cook, do laundry, and perform other tasks, as well as 

to become combatants. 

Clear evidence emerged in 1986 of use by the FMLN of children under the age of 

15 in combat. Following one military operation, the Government rescued children, 

one of whom was 14 years old and had been fighting with the FMLN for 4 years. 

Other information emerged about the existence of units composed of children receiving military training for integration into combat units. Still other credible reporte were received of children being kidnaped for forced recruitment into the 

FMLN and of their use of couriers and spotters, practices contrary to Geneva Convention prohibitions against the recruiting of children into armed groups or their 

participation in hostilities. 

rd. at 492, 495. 

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Interim Decision #3041 

would inform the military of this and the location of their camp." 

When the respondent escaped from the guerrillas and travelled to 

San Salvador, he met a couple from his hometown. They told the 

respondent that the guerrillas had come to his hometown to look 

for himn "The guerrillas wanted to know whether I had gone to the 

militA Ty post." 

During the deportation proceedings the respondent testified that 

he was afraid of the guerrillas because he deserted them. During 

oral argument and in a subsequent brief, the respondent now 

argues that he would be persecuted if he returned to El Salvador 

due to his "political opinion of neutrality!' The respondent relies 

upon _Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984). We 

do not find it appropriate to apply the Ninth Circuit's decision in 

that case in the Fifth Circuit, the circuit where this case arises. We 

know of no Fifth Circuit case which agrees with the rationale of 

Bolanos-Hernandez. Moreover, the facts of the instant case are inapposite to the holding of Bolanos-Hernandez. The respondent did 

not establish a principled position of neutrality such as can be 

found in Bolanos-Hernandez and its progeny. See, e.g., Lopez v. INS, 

775 F. 2d 1015, 1016-17 (9th Cir. 1985). Rather, as we have observed, 

the evidence is at variance with this contention. The respondent's 

testimony and his statement attached to his Form 1-589 (Request 

for Asylum in the United States) all show a fear based on his desertion, not "neutrality." 

The record is devoid of any evidence that the guerrillas, who initially recruited the respondent to their cause, have any motivation 

to harm him because he holds views contrary to their political objectives. The threat against the respondent is consequently part of 

a military policy of the guerrilla organization, inherent in the 

nature of the organization, and a tool of discipline necessary to the 

continued functioning of the organization_ The threat is therefore 

neither an act of perSecution nor evidence of persecution by the 

guerrilla organization against the respondent on account of political opinion, or on any other ground set forth in the Refugee Act of 

1980. See Matter of Acosta, supra, at 211. 

This Board has previously dealt with the question of retaliation 

by a political organization against an individual who had "resigned" from the organization and who later refused to carry out a 

mission Matter of McMullen, 19 I&N Dec. 90 (BIA. 1984), aff'd, 

McMullen v. INS, 788 F.2d 591 (9th Cir. 1986). The Board stated: 

The record clearly shows that the PIRA uses violence and threats of violence internally to maintain discipline and order within the rank and file of its membership. As such, the PIRA's use of violence against its members is essentially apolitical, representing an indifference to the personal views and opinions of those 

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Interim Decision *3041 

members who are subject to sanctions. We conclude that this internal use of violence by the PIRA does not constitute persecution within the meaning of the Act. 

Id. at 7. 

This characterization of the PIRA's internal operation is significant because it was based on an extensive analysis of the voluminous evidence presented at McMullen's asylum hearing. To the 

extent that one can assume basic similarities between the PIRA 

and the Salvadoran guerrilla organization to which the respondent 

belonged, McMullen does provide a strong basis for rejecting the 

view that the respondent's desertion and the guerrillas' threat constitute, on the one hand, a "characteristic" of the respondent 

coming within the refugee definition and, on the other hand, a reaction to that characteristic by the guerrillas so that the threat 

against him becomes an act of, or evidence of, persecution. 

The respondent's problem is not that the guerrillas are motivated to hate him because of political views they "impute" to him, but 

rather is that he has breached their discipline in a way that cannot 

remain unpunished. They might deal with an informer or a rapist 

in the same manner, if it suited their military or political needs. A 

guerrilla organization may therefore have a rational basis to 

punish deserters, devoid of any intent to inflict harm on account of 

political opinion. There is no reason in logic or fact to find otherwise. 

The analysis applied here is, in addition, virtually identical to 

that applied in the case of a deserter from a conventional military 

force, for example, a deserter from the Salvadoran Army. 

A country has the right to establish rules of military conduct 

and to punish those who violate them. In assessing whether the 

punishment meted out to an individual constitutes persecution or 

prosecution, it has been consistently held that there must be proof 

that the punishment is heightened by the fact the individual is of a 

race, religion, or political opinion that is considered offensive by 

the government. There has never been a presumption that the punishment is per se proof of the government's perception that the individual is opposed to the government, and that the government is 

motivated to punish the individual on that basis. There is an implicit presumption of a legitimate basis for punishment. Chao-Ling 

Wang v. Pilliod, 285 F.2d 517 (7th Cir. 1960); Matter of Liao, 11 

I&N Dec. 113 (BIA 1965). 

TILE CLAIM OF PERSECUTION R Y THE GOVERNMENT 

The respondent also contends that he will be persecuted by the 

military forces of the Government of El Salvador if he is forced to 
Interim Decision #3041 

return there, because they will "assume" that he is affiliated with 

the guerrilla group he was forced to join. We find this contention 

to be without merit. 

We have already observed that an armed rebellion or civil war 

exists in El Salvador. See Country Reports, supra. There are operating in that country armed guerrilla organi7ations whose avowed 

purpose is the overthrow of the Government of El Salvador, a government recognized by the Government of the United States. As 

this is so, and there is no evidence in the record or elsewhere to 

establish that the Government of El Salvador is anything other 

than a duly constituted and functioning government of that country, it has the internationally-recognized right to protect itself 

against the guerrillas who seek to overthrow it. The Government of 

El Salvador, therefore, has a legitimate right to investigate and 

detain individuals suspected of aiding or being a member of such 

an organization. See generally Handbook, supra, para. 175, at 41. 

If the Government of El Salvador has received information implicating the respondent as a guerrilla, then it has the legitimate 

right to seek him out and determine whether he is indeed involved 

with such an organization. See Hernandez-Ortiz v. INS, supra, at 

516. If a citizen of the United States is alleged to belong to a clandestine organization which is operating in the United States and is 

engaged in violent activity to further its political goal, federal authorities would properly seek him out. The Government of El Salvador, too, has a legitimate right to take similar action. The respondent, therefore, is not at risk of persecution for a characteristic 

enumerated in section 101(a)(42)(A) of the Act. See Campos-Guardado v. ma supra. 

For the foregoing reasons the respondent has not shown he is eligible either for asylum or withholding of deportation to El Salvador. The appeal will be dismissed. 

ORDER: The appeal is dismissed. 

CONCURRING OPINION: Michael J. Heilman, Board Member 

I respectfully concur. 

The majority, in its decision, has analyzed the claim of persecution essentially under an ad hoc approach. While I agree with the 

analysis and the conclusion reached, it seems to me that what is 

sorely needed in asylum determinations is some form of systematic 

approach, not a case-by-case analysis which seems to assume that 

asylum claims should be decided separately as if each claim presented were being examined for the first time, outside of any generally applicable context. 

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Interim Decision #3041 

This is why I would propose a second test which could be generally applied in the context of claims made by persons coming from 

countries in a state of civil war or revolution. This test would consider the claim against the standards applied in determining 

whether the "political offense exception" should be invoked where 

an individual's extradition is sought for purposes of criminal prosecution. 

In my view, this appeal represents an opportunity to deal with 

an important issue of a recurring nature. That issue is whether a 

threat of harm from a guerrilla organization constitutes a threat of 

persecution, or a threat of some other nature not encompassed by 

the Refugee Act of 1980, Pub. L. No. 96-212, 94 St,at. 102. While 

there has been much debate about the standard of proof necessary 

to substantiate a claim of persecution, little, if any attention has 

been paid to a more central issue: how to identify acts of persecution. In a great number, if not a majority of the asylum appeals 

presented to this Board, the focus of the application has been on 

the degree of harm which may be encountered by the applicant. 

Almost no attention is paid to the context in which that harm 

arises. There has been a general drift in the adjudication of asylum 

cases toward a simple and superficial risk analysis, in which the 

disposition of asylum claims has depended entirely upon whether 

the applicant has presented a convincing case that he might be 

harmed if he returned to his native land. Reduced to its most superficial level this risk analysis has reached the point that any 

harm which may be inflicted by a group with a political agenda is 

presumed to be per se persecution on account of political opinoin. 

A. The Respondent's Claim Can Also be Tested Against the 

"Political Offense Exception" to Extradition. 

In this instance the test would be applied to determine whether 

the threat levied by the guerrillas constitutes a threat of persecution. This is a test which has a long political and legal history, and 

is a determination which is neutral, factual, and consistent with 

the political ethic of the United States. 

Two determinations will be made. The first is a determination as 

to whether a state of armed rebellion or civil war exists in the 

country of claimed persecution. The second determination is whether the act of harm threatened or actually carried out is related to 

or connected with the armed rebellion. The test in essence focuses 

on the claimed agent of persecution, on the theory that the act of 

persecution cannot exist in isolation. 

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B. The Value and Utility of Applying This Test. 

A preliminary question which should be addressed at this point 

is whether it is necessary or useful to interpret the immigration 

laws relating to asylum consistently with those relating to extradition. It is obvious that they are two distinct bodies of law, and it is 

clearly understood that decisions in extradition cases and in 

asylum or withholding of deportation cases under sections 203 and 

243(h) of the Act, 8 U.S.C. §§ 1158 and 1253(h) (1982), are not res 

judicata each to the other. 

One substantial benefit of the application of the standards of the 

"political offense" exception to extradition in considering asylum 

applications lies in the fact that those standards provide a historically consistent and analytically coherent framework by which to 

judge acts committed in political struggles, and so to distinguish 

those that are a consequence of the mature of political struggles, 

from those which are based on the desire to persecute. The "politi-' 

cal offense" standard requires a factual determination to establish 

the context of the act; whether or not, for instance, a state of rebellion or civil war exists, and whether the act threatened is in furthorance of this objective and is intrinsically related to the nature 

of the struggle. Once this analysis is applied and the determinations made, then it is possible to conclude whether the act may be 

characterized as a "political offense." 

There are other substantial benefits which this test would bring 

to the consideration of asylum claims. One clear strength is that it 

allows a consistent analysis to be applied to all claims arising from 

a country in a state of armed rebellion or civil war. The test is 

ideologically neutral, and does not require value judgments as to 

the legitimacy of the political struggle. It provides a manageable 

standard, as it allows for fairly straightforward factual determinations of a somewhat limited nature. The test is not over-inclusive, 

as it does not provide carte blanche approval of all acts which may 

occur in time of civil war or armed rebellion. And finally, it is a 

standard which allows an adjudicator to take into account the reality of armed struggles. 

The law of extradition in this sense provides a useful analytical 

structure, from the perspective of examining the activities of the 

group threatening the harm. This is done under the assumption 

that persecution cannot exist in a vacuum. If one finds that an individual has a reasonable fear of persecution, then one must find 

that the group threatening the harm is an agent of persecution. If, 

however, in examining the activities of the group which threatens 

the harm, one determines that the threatened act would come 

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Interim Decision #3041 

within the "political offense" exception to extradition, then there is 

powerful reason to find that the threatened act does not constitute 

persecution. 

This reason is the fact that the "political offense" exception has 

historically been a way of granting legal and political protection, 

"political asylum," to persons who have committed violent acts in 

furtherance of a political objective during times of rebellion, revolution, or other armed struggle. In essence, if one were to find that 

all acts of political violence necessarily constituted persecution, 

then one would be placed in the awkward position of granting political asylum to those harmed by persons who have historically 

been granted a form of political asylum themselves.' 

C. Assumptions Underlying Application of This Analysis. 

The application of this analysis is based on two assumptions, 

both having a solid basis in logic and in the political and legal history of the United States. The first assumption is that acts of perm,- 

cutioxt are not protected by international or United States law, and 

are indeed condemned. The immigration laws of this country, for 

example, specifically require the exclusion or expulsion of aliens 

who have committed acts of persecution related to the Nazi Govenurtent of Germany. See sections 212(a)(83) and 241(a)(19) of the 

Act, S U.S.C. §§ 1182(a)(33) and 1251(a)(19) (1982), respectively. 

1. The Nature of Asylum. 

It would seem indisputable that the grant of asylum is an expression of fundamental values, among which are the desire to accord 

protection to the oppressed and to affirmatively promote basic 

human rights. The United States, for example, in acceding to the 

Protocol to the United Nations Convention Relating to the Status 

1 Although not directly relevant to the issue at hand, it might be useful to point 

out that application of this test would not require the United States to grant asylum 

or withholding of deportation under sections 208 and 243(h) of the Immigration and 

Nationality Act to persons whose extradition is barred. A recent extradition case 

which narrowed the political offense exception seems to have been motivated in 

part by the incorrect assumption that if the exception were applied, the United 

States would become a "safe haven" for terrorists. Eain v. Wilkes, 641 F.2d 504, 520 

(7th Cir. 1981), cert. denied, 454 U.S 894 (1981). A person whose extradition is denied 

under this exception is still subject to deportation. He is free to claim persecution, 

but must show that the punishment he fears for his political offense would be aggravated or heightened because of his political views. Kouac v. INS, 407 F.2d 102 (9th 

Cir. 1969); Sark v. INS, 346 F.2d 360 (7th Cir. 1965); Matter of Janus and Jonah, 12 

I&N Dec 866 MIA 1968). 

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Interim Decision #3041 

of Refugees in 1968 understood that the "protocol is a human 

rights document," accession to which would convey to the world 

the traditional concern of the United States "for refugees and for 

the individual human being which have long been embodied in our 

laws and consecrated in our traditions." Exec. Rep. No. 14, 90th 

Cong., 2d Sess. 4 (1968). 

Subsequently, in considering legislation which would become in 

part the Refugee Act of 1980, its chief Senate sponsor, Senator 

Kennedy, stated that the provisions gave "statutory meaning to 

our national commitment to human rights and humanitarian concerns." Senator Kennedy further stated that the bill was designed 

"for the decades to come," and would allow the American people to 

decide which. refugees would be of special concern. In this process, 

the past would "serve as a guide," as it had previously in the instances in which the United States had responded "to human 

rights concerns embodied in the Universal Declaration for Human 

Rights." S. Rep. No. 256, 96th Cong., 1st Sess. 1, 6 (1979). 

Sirnihrr language was nsed in considering the counterpart House 

bill. The Committee on the Judiciary, for instance, stated that by 

adopting a refugee standard of "special humanitarian concern," the 

Committee was emphasizing the humanitarian "plight of the refugees themselves," as opposed to national origins or political considerations. The Committee also was of the view that "past history" 

could be of some guidance in defining the factors which might be 

considered in offering refuge, among them being the "plight of the 

refugees, the pattern of human rights violations," and the "likelihood of finding sanctuary elsewhere." H. Rep. No. 608, 96th Cong., 

1st Sess. 13 (1979). 

2. The Nature of the Political Offense Exception. 

The second assumption in applying this analysis is that persecution should not be defined in such a way as to squarely conflict 

with the legal and political history of this country. If, for instance, 

the Government of the United States has historically accorded both 

political and legal protection to persons who have engaged in acts 

identical to those claimed to constitute acts of persecution, then the 

claim of persecution would have to fail. 

While it is possible to consider extradition as a narrow application of one aspect of criminal law, its significance as an expression 

of political philosophy relevant to asylum law should not be understated. When the Government of the United States refuses the extradition of a person who has committed a murder for political reasons, this is not an act that is carried out lightly. Such a refusal 

522 
Interim Decision 4t3041 

may severely strain the relations between nations. The refusal only 

makes sense if it is motivated by adherence to a fairly lofty political tradition: that violence inflicted in time of armed struggle occupies a moral and ethical plane which entitles it to protection. The 

Government of the United States hasrecognized and protected 

from pnnishment persons who have committed violent acts carried 

out in furtherance of a political agenda if the acts were committed 

in time of war, revolution, or armed rebellion. See Escobedo v. 

United States, 623 F.2d 1098, 1104 (5th Cir.), cert. denied, 449 U.S. 

1036 (1980); Karadzole v. Artukovic, 247 F.2d 198 (9th Cir. 1957). 

The protection accorded to individusis carrying out these acts of 

violence has in fact been characterized as a grant of "political 

asylum," by the Secretary of State. In a case involving the extradition of four members of a Russian revolutionary group wanted for 

murder, robbery, and arson, the Secretary of State refused extradition, after the district court had ruled against them. The Secretary 

stated: 

The Government of the United States finds itself impelled to these conclusions 

not only by generally accepted rules of international law which forbid the surrender of political fugitives, by the principles of internal jurisprudence, which, proclaimed and acted upon by the courts of this and other countries, declared that "a 

person acting as one of a number of persons engaged in acts of violence of a political character, with a political object, and as part of the political 'movement and 

rising in which he is taking part" is a political offender and so entitled to an 

asylum in this country, and by the long and consistent course of rulings in which 

the executive branch of this Government has expressly adopted and carried out 

such laws and principles—but also by the express provision of article III of the 

Extradition Treaty. . 

Matter of K-, 4 I&N Dec. 108, 115 (C.O. 1950) (quoting Case of 

Rudewitz, IV Hackforth_ Digest of International Law, 49-50) (emphasis added). 

The view that application of the political offense exception is a 

grant of political asylum has a fairly venerable history. It is generally understood that the "political offense" exception to extradition 

was developed in Belgium and first enacted into law in that country in 1833: 

The so-called "right of political asylum" was developed during the last century 

largely under the influence of Belgian practice. Belgium laid down the principle 

of non-extradition for political offenses in an Extradition Law of the year 1833. 

This provision had great influence on the development of the law of extradition. 

Many countries incorporated the Belgian principle into their extradition treaties 

verbatim, or with insignificant variations. Germany was one of those countries; 

most of the extradition treaties concluded by her Iva on that principle an far ac 

the question of political asylum is concerned. 

6 Whiteman, M., Digest of International Law 801 (Department of 

State, 1968). 

rnn 
Interim Decision *3041 

This discussion of the character of the "political offense" exception as constituting a grant of "political asylum" is drawn from an 

extradition case considered by the Supreme Court of Germany in 

1933. This position has also been adopted by the Government of 

Great Britain. In considering whether to accede to the United Nations Convention on Genocide in 1962, the British Government 

stated that due to the "breadth. and imprecision" of certain articles, relating to the extradition of persons charged with offenses of 

genocide, it could not accede to the Convention, because to do so 

would be "a derogation from this country's traditional right to 

grant political asylum which the Government do not think it right 

to accept." 6 Whiteman, M., supra, at 846. 

The magnitude and power of -these philosophical underpimiings 

of the political offense exception have been recognized in a recent 

decision which forcefully defended that concept. In Quinn v. Robinson, 783 F.2d 776, 792-93 (9th Cir. 1986), the court pointed out that 

the political offense exception is now "almost universally accepted 

in extradition law," and that the exception 

is premised on a number of justifications. First, its historical development suggests that it is grounded in the belief that individuals have a "right to resort to 

political activism to foster political change." . . . This justification is consistent 

with the modern consensus that political crimes have greater legitimacy than 

common crimes. 

These justifications are in turn based on the political histories of 

the United States, France, and Great Britain, and have been articulated. as principles of political philosophy. Id. at 792. 

The court further stated, as have others before it, that the political offense exception "was designed to protect those engaged in internal or domestic struggles over the form or composition of their 

own government, including, of course, struggles to displace an occupying power,"and to "protect revolutionary activity." Id. at 807-08 

n.33. In stating these conclusions, the court noted that some courts 

have favored narrowing the exception because certain "modem 

revolutionary tactics which include violence directed at civilians 

are not politically 'legitimate! " (Emphasis in original.) The court 

found this assumption to contain an "inherent conceptual shortcoming" because it sought to impose on "other nations and cultures 

our own traditional notions of how internal political struggles 

should be conducted." Id. at 804. The court clearly rejected this 

view, finding that 

[l]t is understandable that Americans)are offended by the tactics used by many of 

those seeking to change their goveruLuents. Often these tactics are employed by 

persons who do not share our cultural and social values and mores. Sometimes 

they are employed by those whose views of the nature, importance, or relevance 

of individual human life differ radically from ours. Nevertheless, it is not our 

524 
Interim Decision #3041 

place to impose our notions of civilized strife on people who are seeking to overthrow the regimes in control of their countries in contexts and circumstances that 

we have not experienced, and with which . we can identify only with the greatest 

difficulty. It is the fact that the insurgents are seeking to change their governments that makes the political offense exception applicable, not their reasons for 

wishing to do so or the nature of the acts of the acts by which they hope to accomplish that goal. Politically motivated violence,, carried out by dispersed forces, and 

directed at private sector institutions, structures, or civilians, is often undertaken—like the more organized, better disciplined violence of preceding revolutions—

as part of an effort to gain the right to self-government. . . We believe the tactics that are used in such internal political struggles are simply irrelevant to the 

question whether the political offense exception is applicable. 

Id. at 804-05. 

Viewed in this light, juxtaposing determinations relating to persecution with those determinations made in applying the political 

offense exception in extradition cases serves as a logical control, if 

one assumes that an act of violence cannot be at the same time legitimate and illegitimate. This is particularly the case if one in addition accepts the idea that the asylum provisions and the political 

offense exception reflect basic views of American society regarding 

armed political rebellion and also reflect a basic moral or ethical 

judgment on the nature of acts considered acceptable and unacceptable. If one is tempted to find that someone is a -victim of persecution because of violence inflicted during an armed rebellion, then 

one should also pause to reflect on the reaction one would. have to 

the purported agent of persecution if he in turn were in the United 

States seeking legal and political protection from the government 

of the country in which he had committed his act of political violence. 2 

D. Asylum and the Political Offense Exception Should be Applied 

in a Consistent Manner. 

In the face of the protection accorded politically motivated violence, which is considered a legitimate expression of self-determination, regardless of the tactics employed, there is no Meter/cal or 

legal basis to find at the same time that the victims of the violence 

have been persecuted. Persecution is by definition an illegitimate 

act, universally condemned. There would appear to be no logic, or 

historical or legal sense to be found in parallel determinations 

which would on the one hand find that an individual is a victim of 

persecution, a totally illegitimate act outside the sphere of protec2 The reference to both "legal" and "political" protection is intentional, as extradition may be and has been refused by the Secretary of State after an extradition 

order by a court has been granted. 
Interim Decision #3041 

tion of universally accepted legal and political principles, while at 

the same time finding that the agent of the violence is also entitled 

to legal and political protection. 

E. Application of the Political Offense Exception Test to This Case. 

The act of violence threatened in this instance happens to be 

identical to the harm actually inflicted by the subjects of the seminal case in United States extradition law, In re Ezeta, 62 F. 972 

(N.D. Cal. 1894). There, among other offenses charged by the Government of El Salvador, four individuals were charged with multiple murders and bank robbery. After determining that the four individvAls had been on the losing side in a revolution in that country, and that they had probably committed most of the offenses alleged, the court invoked the "political exception" clause to the extradition treaty, and denied the extradition request. In so doing the 

court found that the individuals killed had been persons who had 

refused to give their essistance to one side of the revolt or the 

other, an alleged spy, and an officer who had purportedly gone 

over to the opposition. The crucial question in the court's view was 

whether, neon the facts, it is clear that the man was acting as one of a number of 

persons engaged in acts of violence of a political character with a political object, 

and as part of the political movement and rising in which he was taking part. 

Id. at 999 (quoting the Castioni Case, 1 Q.B. 149 (1891)). 

The court stated that applying the principle of the Castioni Case, 

"the conclusion follows that the crimes charged here, associated as 

they are with the actual conflict of armed forces, are of a political 

nature." hz re Rzeta, supra, at 999. The court did not reach this 

conclusion lightly, as it recognized fully that during the revolution, 

"crimes may have been committed by the contending forces of the 

most atrocious and inhuman nature." Id. at 997. The court also recognized, as had the British courts before it that 

everybody knows there are many acts of a political character done without 

reason, done against all reason, but at the same time one cannot look too hardly, 

and weigh in golden scales the acts of men hot in their political excitement. We 

know that in heat, and in heated blood, men often do things which are against 

and contrary to reason; but none the less the act of this description may be done 

for the purpose of furthering and in furtherance of a political rising, even though 

it is an act which may be deplored and lamented, as even. cruel and against all 

reason, by those who can calmly reflect upon it after the battle is over. 

Id. at 999 (quoting the Castioni Case). 

The court also relied on the findings in other extradition cases 

involving the United States and Mexico and Canada. In those cases 

it was held that persons who had committed violent offenses in the 

course of participating in. armed uprisings were immune from ex526 
Interim Decision 4t3041 

tradition. This included a Canadian extradition request for the 

leader of an armed band of 600 to 1,500 men which had committed 

arson, robbery, and the murder of an individual who had refused to 

obey their orders. Id. at 1000. 

In a recent example directly pertinent to the respondent's situation, one Janelli, who had been a member of a Fascist group carrying out operations against partisan groups in Italy in 1944, deserted, went over to the partisans, and subsequently returned to the 

Fascists. He was ordered shot by Ficorrilli, whose extradition from 

Switzerland was sought by Italy in 1951: 

The Federal Tribunal has previously decided that one must regard as a political 

offense an offense which is the consequence and manifestation of an extraordinary agitation. or tension between political parties, and of disturbances which lead 

the participants to use methods of violence against their opponents, causing disorders and large numbers of crimes of violence; and any act which, even considered 

in isolation, mast be considered to be a consequence of reprisals in a general political uprising and struggle for power, not as the carrying into effect of personal 

motives and private aims. 

In the present case there was armed conflict between two parties struggling for 

power, the partisans and the neo-fascists. Recourse was had to violence and to 

military or pseudomilitary operations . . . 

6 Whiteman, M., supra, at 828. Extradition wax refused on these 

grounds. 

A third pertinent example of extradition being denied under the 

political offense exception is found. in Ramos v. Diaz, 179 F. Supp. 

459, 462-63 (S.D. Fla. 1959). There, an American court refused the 

request of the newly installed Cuban Government to turn over two 

men who had killed a prisoner. The two men had been military 

members of the victorious Cuban revolutionary forces who had 

been assigned to guard prisoners during the days the new government was consolidating its power: 

At the time of the shooting neither Cruzata nor Diaz knew the prisoner who was 

shot. It was a standing order of the Castro army that anyone guarding a prisoner 

who permitted him to escape was himself subject to summary execution. At the 

time of the shooting there existed much turmoil and excitement with remnants of 

the Batista regime fighting with the victorious Castro troops and arrests and executions were commonplace. 

• " 

[T]he Defendants were members of a revolutionary movement. . . . [Title crime 

allegedly committed by them took place in the early days of the victory of the 

revolutionary forces, and as a part of a political uprising and disturbance. The 

Defendants bare no ill will or malice toward their victim, who was just one of the 

many political prisoners captured in furtherance of the political rising. The Defendants were under the command of revolutionary forces engaged in mopping up 

operations as a part of the revolution. 

Id. at 463. 
Interim Decision #3041 

These decisions are consistent with the views expressed in Quinn 

v. Robinson, supra, that revolutionary violence, whether aimed at 

civilian or military targets, is protected activity. As the court 

stated: 

The "incidental to" component, like the incidence test as a whole, must be applied 

in an objective, nonjudgmental manner_ It is for the revolutionaries, not the 

courts, to determine what tactics may help further their chances of bringing down 

or changing the government All that the courts should do is determine whether 

the conduct is related to or connected with the insurgent activity. It is clear that 

various "non-military" offenses, including acts as disparate as stealing food to sustain the combatants, killing to avoid disclosure of strategies, or killing simply to 

avoid capture, may be incidental to or is furtherance of an uprising. To conch/de 

that attacks on the military are protected by the exception, but that attacks on 

private sector institutions and civilians are not, ignores the nature and purpose of 

the test we apply, as well as the realities of contemporary domestic revolutionary 

struggles. 

Id. at 810. 

It is clear that the "realities of contemporary struggles" may be 

rather grim. 3In describing, for example, the Algerian war for independence, one historian has estimated that about 80,000 Muslim civilians were killed by the Algerian nationalist forces, as opposed to 

approximately 3,000 European civilians. Both the European and 

Muslim organisations engaged hi. widespread violence which vr4fas 

aimed at achieving their political objectives. The Europeans, particularly, the Secret Army Organization ("OAS") set out to terrorize the Muslim population by bombings and executions, as did the 

Muslim nationalists against the Europeans. Both sides attacked 

without mercy persons they suspected of aiding their opponents, or 

even persons they simply suspected of insufficient enthusiasm for 

their cause. At one point, the OAS killed postmen, pharmacists, 

railway workers, flower vendors, and maids, each on different days 

of the week. Toward the end of the war, the OAS adopted a 

"scorched earth" strategy, blowing up or burning down libraries, 

2As to whether this type of activity is "contemporary," it is instructive to consider the description offered in 1890 by a Colombian official of the nature of revolutions in South America: 

In the revolutions, as we conduct them in our countries, the common offenses are 

necessarily mixed up with the political in many cases. A revolutionist has no resources. My distinguished colleague General Caamano [of Ecuador] knows how we 

carry on wars. A revolutionist needs horses for moving, beef to feed his troops, 

etc.; and since he does not go into the public markets to purchase those horses 

and that beef, nor the arms and saddles to mount and equip his forces, he takes 

them from the first pasture or shop he finds at hand. This is called robbery everywhere, and is a common offense in time of peace, but in time of war it is a circumstance closely allied to the manner of waging it. 

In re Ezeta, supra, at 1000 (quoting International American Conference, vol. 2, at 

615). 

528 
Interim Decision #3041 

hospitals, schools, laboratories, public buildings, and economic targets. In a statement that could have, for the most part, been echoed 

by the nationalist forces, a leader of the OAS said: 

The overall target was to paralyze the powers that be and make it impossible for 

them to exercise authority. Brutal actions will be generalized over the whole territory. They will aim at influential personalities of the Communist Party, at works 

of art, and all that represents the exercise of authority, in a manner to lead towards the maximum of general insecurity and the total paralysis of the country. 

Horne, A., A Savage War of Peace 135, 259-60, 516-17, 530 (Viking 

Press, 1978). 

The Spanish Civil War of 1936-1989 also offers an object lesson 

in the use of violence on a grand scale, by all parties to the struggle, anarchists, communists, socialists, and falangists, alike Part of 

Nationalist Spain in July 1936, during the war, has been described 

as follows. 

All political parties which had supported the Popular Front were banned. Political life ceased. Even the old right-wing and Center parties, including the CEDA, 

vanished. The only active political groups were the Falange and the Carlists, and 

these were "movements" rather than parties. The cases del pueblo and the leftwing newspaper offices were closed down. Strikes were made punishable by death. 

Private rail and road movement was banned. Throughout nationalist Spain, freemasons, members of Popular Front parties, members of trade unions, and, in 

some areas, everyone who had even voted for the Popular Front in the elections of 

February, were arrested and many shot. 

. . . These atrocities had a special purpose. Though the rebels were determined 

and often well-armed, they were few in number. In places such as Seville and 

Granada, the large working-class population had to be terrified into acquiescence 

of the new order before the nationalist commanders could sleep peaceably in their 

beds. Hence, not only did the rebels act ruthlessly toward their enemies, but, they 

had to act openly, and expose the bodies of those whom they killed to public gaze. 

The repression was an act of policy, decided upon by a group of men who knew 

their original plans had gone awry. . . . "It is necessary to spread an atmosphere 

of terror. We have to create the impression of mastery. . . ." 

Thomas, H., The Spanish Civil War 258-60 (Harper and Row, 3d 

ed. 1977). 

It is of course not really necessary to look beyond the United 

States for an example of the violence and brutality which is generated in a revolutionary war. The following account has been offered of the patriots' activities during the American Revolution in 

March 1776 and after: 

Triumphant, the patriots rushed into the city [Boston] that had been the center 

and symbol of the rebellion. Now it was the Tory property that went under the 

auctioneer's hammer. Now it was Tory homes that sometimes went up in flames 

while the owners were stripped, tarred, feathered and ridden out of town on a 

rail. No one hates more than hostile brothers, and even the British themselves 

were not hated so venomously as were those Loyalists whom Howe was forced to 

leave behind. 

9C1 
Interim Decision #3041 

From Maine to South Carolina they were lashed through the streets, pelted with 

rotten eggs or forced to go down on their knees to damn the King and his ministers.. . . Washington himself wanted the more notorious Tories hung as an example to the rest, and Governor Livingston of New Jersey said: "A Tory is an incorrigible animal: And nothing but the Extinction of Life will extinguish his malevolence against liberty." Before the war was ever the patriots were forcing all secret 

Tories to declare themselves by imposing oaths of loyalty to the United States. 

Those who refused were fined, imprisoned, deprived of civil rights or, as the new 

states seized upon this handy means of raising revenue, dispossessed. 

1 Leckie, R., The Wars of America 134-35 (Harper and Row, 1968). 

When the British in turn marched to New York that same year, 

the favor was returned: 

The moment the redcoats marched into the town at the foot of Manhattan Island, 

they were overwhelmed by throngs of weeping, shouting Loyalists. . . . 

Then the witch hunt began. Rebels or suspected rebels were rounded up, especially those who had been over-heard to vow that they would set fire to the town 

rather than allow the British to occupy it. 

In the early morning of September 21, by accident or design—history does not 

know—New York was burning. By the time the alarm was given the fire was out 

of control. . . . Meanwhile, mob frenzy had overcome the Tories. They seized suspects and strung them up without trial. Some were even thrown screaming into 

the flames. 

_Td_ at 148-49 

The British also made effective use of their Indian allies. In 1778: 

On July 4—to mock American independence—Colonel Sir John Butler struck at 

the Wyoming Valley in Pennsylvania. Hundreds perished. Men were burnt at the 

stake or thrown on beds of coals and held down with pitchforks while their horrified families were forced to witness their torment. Others were placed in a circle 

while a half-breed squaw called Queen Esther danced chanting around them to 

chop off their heads. Soon the entire frontier was in flames, with Washington 

unable to come to its rescue. 

Id. at 187. 

That is not to say, however, that revenge was not eventually 

taken upon the British Indian allies. In the summer of 1779, Washington sent an army to destroy Iroquois Indian towns. Forty were 

destroyed and crops and orchards destroyed. "In the cruel winter of 

1779-80 which followed, hundreds of Indian families starved to 

death." Id. at 190. 

It would be hard to deny that these accounts of civil war or revolution reveal a great deal of brutality and ruthlessness. It would be 

equally hard to simply characterize these upheavals as vast acts of 

persecution; certainly in the American example, neither history, 

nor tradition, cast either General Howe or General Washington as 

men who had engaged in the persecution of their opponents. Yet it 

is obvious that they each directed and led men to kill their political 

opponents and destroy their property. Unless one is to engage in 

530 
Interim Decision 4P3041 

total historical revisionism, there is absolutely no basis to conclude 

that Howe and Washington committed acts of persecution. Rather, 

they directed acts altogether typical of civil war and in their view, 

necessary, to achieve their political and military objectives. 

In the case presently under consideration, there is no reason to 

conclude that the respondent is anything other than a victim of 

civil war, or that the guerrillas in El Salvador are conducting 

themselves any differently than guerrillas have conducted themselves throughout history. The guerrillas in El Salvador have set 

out to overthrow the existing government and social order. 4They 

have chosen to achieve their objective in great part by force of 

arms and by forcing a sometimes reluctant population to provide 

them with the resources they need to sustain their struggle. 

Among the methods they have chosen is the forced recruitment of 

laborers and combatants Since they cannot afford to allow persons 

to desert their cause with impunity, they have imposed a drastic 

form of military discipline on deserters. 

F. Conclusion 

In applying the political offense exception test to this application 

for asylum, then, it is clear that the first element exists: a guerrilla 

war is occurring in El Salvador. It is also clear that the guerrilla 

organisation from which the respondent deserted is an active participant in this war. This is evident from the respondent's testimony and front the Department of State report on conditions in El 

Salvador. 

As to the second element, whether the threat of death for desertion is an act "incidental to" that war, we may rely again on information indicating that the guerrillas forcibly recruit persons to 

their armed forces, both as combatants and as persons who provide 

labor of various types. Again, we can rely on the respondent's testimony and the Department of State report for this information. We 

may also draw on historical information relating to revolutionary 

struggles in general. If the guerrillas need to forcibly recruit persons, then it is fair to assume, given the nature of the struggle in 

El Salvador, and of guerrilla struggles in general, that the guerrillas cannot tolerate desertion from their ranks. If this were to 

happen, they could experience such a loss of vital military or logistical support that their ability to engage in military operations 

would be severely affected. Because of this, and because the guer4 An objective which has been recognized and protected under the political offense 

exception, regardless of what one may think of the ultimate political and social 

goals of the Salvadoran guerrillas. See Quinn v. Robinson, supra, at 807-08 n.33. 

531 
Interim Decision #3041 

rills organization is a military organization by nature, it must 

exert strong discipline over its members, voluntary or not, and it 

can effectively use the threat of severe punishment, even death, to 

maintain the stability of its organization. As both Swiss and United 

States courts have found, the infliction of severe punishment for 

desertion is an act almost necessarily inherent in the nature of a 

revolutionary or civil struggle. 

In total, then, applying the standards of the political offense exception, the threat of death for desertion faced by the respondent 

does not constitute an act of persecution, but rather an act of 

armed political struggle. Politically motivated though the threat 

may be, in the end analysis, it is not a threat of harm for which 

asylum should be granted. 

For this reason also, I would dismiss the appeal. 

532