Interim Decision #3088 

MATTER OF RODRIGUEZ-MAJANO 

In Deportation Proceedings 

A-260245I2 

Decided by Board September 28, 1988 

(1) An alien who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion is lbarred from the relief of withholding of 

deportation pursuant to the provisinns of section 243(hX2XA) of the Immigration 

and Nationality Act, 8 U.S.C. § 1253(hX2XA) (1982), and from asylum pursuant to 

the provisions of section 101(aX42XB) of the Act, 8 U.S.C. § 1101(aX42XB) (1982). 

(2) The participation or assistance of an alien in persecution need not be of his own 

volition to bar him from the relief of withholding of deportation and asylum. 

(3) While membership in an organization, even one which engages in persecution, is 

not sufficient to bar one from the relief of withholding of deportation and asylum, 

if an alien's action or inaction furthers persecution in some way, he would be ineligible for relief. 

(4) Activity related to a civil war or harm which may result from behavior directed 

toward the overthrow of a government or, alternatively, the defense of that government against an opponent, is not persecution unless it can be established that 

there is some degree of intent on the part of the persecutor to produce the harm 

that the applicant fears in order that the persecutor may overcome a belief or 

characteristic of the applicant. 

(5) Regardless of whether the respondent atcled the guerrillas voluntarily or not, the 

only harm or injury he may have inflicted arose as the natural consequence of 

civil strife and the harm resulting from such generalized civil strife is not persecution 

ON BEHALF OF RESPONDENT: 

Peter M. Upton, Esquire 

American Friends Service Committee 

1205 Sunset Drive 

South Miami, Florida 33143 

ON BEHALF OF SERVICE: 

David M. Dixon 

Appellate Counsel 

Margaret Phillbin 

General Attorney 

CHARGE: 

Order: Act of 1952—Sec. 241(aXZ) [8 U.S.C. §1251(aX2)].—Enterod without inspection 

BY: Milhollan, Chairman; Dunne, Morris„ Vacca, and Heilman, Board Members 
Interim Decision #3088 

On March 12, 1986, the immigration judge found the respondent 

deportable as charged and denied his applications for asylum and 

for withholding of deportation to El Salvador under sections 208(a) 

and 248(h) of the Immigration and Nationality Act, 8 U.S.C. 

§§ 1158(a) and 1253(h) (1982). 1The respondent has appealed from 

that decision. Oral argument was held August 18, 1987. The record 

will be remanded. 

The respondent is a 23-year-old native and citizen. of El Salvador 

who admitted that he entered the United States without having 

been inspected on May 18, 1984, and who has conceded deportability. Accordingly, his deportability is established by clear, unequivocal, and convincing evidence. See Woodby v. INS, 385 U.S. 276 

(1966). The only issue on appeal is the respondent's eligibility for 

asylum and withholding of deportation. The immigration judge 

found that the respondent was ineligible for both forms of relief because he had engaged in the persecution of others. To be eligible 

for asylum, an applicant must demonstrate that he is a refugee 

within the meaning of the Act. The immigration judge found that 

the respondent was excluded from the definition of refugee under 

section 101(a)(42) of the Act, 8 U.S.C. § 1101(aX42) (1982), and therefore was not eligible for asylum. He also found that the respondent 

was ineligible for the relief of withholding of deportation under section 243(h)(2XA) of the Act for having participated in the persecution of others. See Matter of McMullen, 191&N Dec. 90 BIA 1984), 

aff'd on other grounds, McMullen v. INS, 788 F.2d 591 (9th Cir. 

1986). The respondent contends that his activities did not constitute 

persecution or assistance in persecution and that the record should 

be remanded to the immigration judge for a determination of his 

eligibility for relief. 

In addition to his testimony in support of his applications, the respondent submitted his Request for Asylum in the United States 

(Form 1-589) and background information on El Salvador consisting of newspaper articles from the Miami Herald, the New York 

Times, the Los Angeles Times, the Washington Post, In These 

Times, Time, the Christian Science Monitor, the Boston Sunday 

Globe, the Wall Street Journal, and the National Catholic Register; 

testimony of Steward A. Baker before the House Foreign Affairs 

Committee; a transcript of testimony before the United States District Court for the Central District of California; an Amnesty InterNo decision was made regarding the application for voluntary departure under 

section 244(e) of the Act, 8 U.S.C. § 1254(e) (1982), but the immigration judge ordered 

the respondent deported. 

R19. 
Interim Decision #3088 

national statement; and Americas Watch reports dated March 

1985, September 1985, and December 1985. 

The Act provides that "[t]he term 'refugee' does not include any 

person who ordered, incited, assisted, or otherwise participated in 

the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." 

Section 101(a)(42)(B) or the Act, 8 U.S.C. § 1101(0420) (1982). The 

statute also provides that withholding of deportation 

shall not apply to any ahem if the Attorney General determines that-- 

(A) the alien ordered, irtcited, assisted, or otherwise participatedin the persecution of any person on account of race, religion, nationality, membership in a 

particular social group, or political opinion. 

Section 243(hX2)(A) of the Act, 8 U.S.C. § 1253(h)(2XA) (1982). 

The respondent testified that he worked for his father, a cattle 

businessman, in 1983 in San Miguel, EI Salvador. He drove a truck 

from San Miguel to his father's store in Santa Inez a short distance 

away. He reported that he was stopped many times by guerrillas 

on the road. They demanded that he carry merchandise for them 

in order to be allowed to pass. In this way he became acquainted 

with the guerrillas in his area. At about this same time, the respondent's uncle and his cousin were kidnapped from their homes 

in San Miguel by armed men and were killed along with five other 

men in the town. It was reported they were killed by army security 

forces because they were guerrillas. 

The respondent stated that he was seized in May 1983 by the 

police and questioned about collaborating with the guerrillas. The 

chief of police released him because he knew the respondent's 

father, but he told the respondent to report to the police on the 

guerrillas' whereabouts. In June 1983, the guerrillas commandeered the respondent and several of his father's trucks, and he 

drove supplies to San Miguel for a battle with the government 

forces which lasted a. day and a half. He also transported the guerrillas out of the city. The respondent was stopped at a roadblock on 

his return and was questioned about his activities by the military. 

He admitted to them he had been forced to help the guerrillas. He 

was released, but he was threatened with death if he helped the 

guerrillas again. In September, the respondent was taken from his 

home by the guerrillas, who had acquired a new leader. He alleges 

he was forced to join them. He was taken to their training camp 

where he was given military training. He accompanied guerrillas 

on propaganda trips and once covered them with his weapon while 

they burned cars. 

The respondent reported that he deserted the guerrillas after 2 

months. Before he could turn himself over to the military, he was 
Interim Decision #3088 

arrested by the police in San Miguel and beaten. He admitted to 

them that he had been with the guerrillas. He was transferred 

after a week to the Central Police Station in San Salvador where 

he alleges he was interrogated, beaten, and tortured with electric 

shocks. He was then transferred to a maximum security facility, La 

Marion, after about 9 days. He remained there while his case 

came before a military court of investigation. He appeared before 

the court twice. About 2 and 1/2 months after he entered La Mariona he was cleared of charges and released. A directive to the director of the central penitentiary ordering his release is included in 

the record. The respondent understood that he was released 

through his lawyer's influence with the judge. He stated that the 

judge and his lawyer warned him to leave the country. The respondent left El Salvador within 2 months. The respondent said he 

fears the Government would persecute him for his involvement 

with the guerrillas and that the guerrillas would persecute him for 

deserting thern. 

The respondent argues in his brief and at oral argument that the 

immigration judge incorrectly found that the respondent had engaged in the persecution of others, rendering him ineligible for 

asylum and prohibiting from obtaining withholding of deportation. 

According to the respondent, the immigration judge failed to apply 

the proper criteria to establish persecution and the immigration 

judge failed to consider the circumstances under which the alleged 

persecution took place. In particular, the respondent argues that, 

where there is open combat, acts of warfare taken in furtherance 

of political goals are not persecutory acts_ Further, the respondent 

argues that he was never an established member of the guerrilla 

organization, and therefore cannot be held accountable for the actions of the organization. The Service agreed at oral argument that 

the respondent's actions do not constitute participation in persecution so as to disqualify him from relief. However, the Service 

argued that the immigration judge, in effect, found that the respondent lacked credibility; 2 thus, the respondent's testimony is 

not sufficient to establish his case and the appeal should be dismissed. 

The participation or assistance of an alien in persecution need 

not be of his own volition to bar him from relief. See Fedorenko v. 

United States, 449 U.S. 490 (1981). However, mere membership in 

an organization, even one which engages in persecution, is not suf2 For example, the respondent alleges that he was forcibly recruited into the guerrillas, but the immigration judge found that the background information shows forcible recruiting by the guerrillas did not begin until June 1984. 
Interim Decision #3088 

ficient to bar one from relief, but only if one's action or inaction 

furthers that persecution in some way. It is the objective effect of 

an alien's actions which is controlling. Laipenieks v. INS, 750 F.2d 

1427, 1435 (9th Cir. 1985); Matter of Fedorenko, 19 I&N 57, at 69 

(BIA 1984); see also Fedorenko v. United States, supra, at 750 n.34. 

We agree with the respondent and the Service that the respondent is not ineligible for relief. We find that the immigration judge 

in this case gave too expansive a definition to the statutory term 

"persecution." The only evidence on the issue of persecution of 

others in this record is the respondent's own testimony and the 

background information submitted by the respondent. The evidence 

of record does not indicate that the guerrillas here referred to engaged in persecution. 

The argument was made by respondent's counsel that activities 

directly related to a civil war are not persecution. We agree. By 

this statement we mean that harm which may result incidentally 

from behavior directed at another goal, the overthrow of a government or, alternatively, the defense of that government against an 

opponent, is not persecution. In analyzing a claim of persecution in 

the context of a civil war, one must examine the motivation of the 

group threatening harm. Matter of Maldonado, 19 184N Dec. 509 

(BIA 1988). A finding of persecution requires some degree of intent 

on the part of the persecutor to produce the harm that the applicant fears in order that the persecutor may overcome a belief or 

characteristic of the applicant. See Matter of Acosta, 19 I&N Dec. 

211 (BIA 1985), modified, Matter of Mogharrabi, 19 I&N Dec. 439 . 

(BIA 1987). Thus, the drafting of youths as soldiers, the unofficial 

recruiting of soldiers by force, the disciplining of members of a 

rebel group, or the prosecution of draft dodgers are necessary 

means of achieving a political goal, but they are not forms of persecution directed at someone on account of one of the five categories 

enumerated in section 101(a)(42)(A) of the Act. See e.g., RodriguezRivera v. United States, INS, 848 F.2d 998 (9th Cir. 1988); KavehHaghigy v- INS, 783 F.2d 1821, 1323 (9th Cir. 1986); Sarkis v. Sava, 

599 F. Supp. 724 (E.D.N.Y. 1984); Matter of Fuentes, 19 I&N Dec. 

658 (BIA 1988); Matter of Vigil, 19 I&N Dec. 572 (BIA 1988); Matter 

of Maldonado, supra; Matter of A-G-, 19 I&N Dec- 502 (BIA 1987). 

We would include in this list the engaging in military actions, the 

attacking of garrisons, the burning of cars, and the destruction of 

other property as actions outside the limits of the term "persecution." 

The evidence suggests that the respondent engaged only in military activities of a type normal in such conflicts. The military 

action in San Miguel in which the respondent took en indirect part 
Interim Decision #3088 

is a typical example of military tactics designed to overthrow the 

government which the guerrillas oppose. As such, it cannot be said 

to constitute persecution. The other activities in which the respondent participated, such as burning cars, are also actions typically 

within the nature of civil wars. Of course, the respondent must 

have been aware that the guerrillas engaged in forcible recruiting, 

as he alleges he was a victim of this practice. We have already determined that forcible recruiting by dissident groups engaged in a 

civil war is not persecution because it is not motivated by a desire 

to harm one the guerrillas find offensive or who has characteristics 

they wish to overcome. Matter of Fuentes, supra; Matter of Vigil, 

supra; Matter of Maldonado, supra; see also Matter of McMullen, 

supra, at 95 (Blik. 1984). But see Arteaga v. INS, 886 F.2d 1227 (9th 

Cir. 1988). Therefore, it is not shown by the record that the respondent engaged in or assisted in any persecution by the guerrillas on account of nationality, race, religion, social group, or political opinion. 

Were we to hold that practices such as attacking military bases, 

destroying property, or forcible recruiting constitute persecution, 

members of armed opposition groups throughout the world would 

be barred from seeking haven in this country. As the concept of 

what constitutes persecution expands, the group which is barred 

from seeking haven in this country also expands, so that eventually all resistance fighters would be excluded from relief. We do not 

believe Congress intended to restrict asylum and withholding only 

to those who had taken no part in armed conflict. Regardless of 

whether the respondent aided the guerrillas voluntarily or not, the 

only harm or injury he may have inflicted arose as the natural 

consequence of civil strife. Harm resulting from generalized civil 

strife is not persecution. Martinez-Romero v. INS, 692 F.2d 595 (9th 

Gr. 1982); Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA 

1985); Matter of Acosta, supra, at 222. Thus, those who inflict such 

harm are not engaging in persecution. 

Because the immigration judge did not determine whether the 

respondent had demonstrated either a clear probability or a wellfounded fear of persecution in El Salvador, the record must be remended for consideration of these issues. 

Accordingly, the record will be remanded to the immigration 

judge. 

ORDER: The immigration judge's decision is vacated and the 

record is remanded to the immigration judge for the entry of a new 

decision. 

816