Court Urges Asylum for Salvadoran in Unusual Case

In a significant immigration law decision, the U.S. 9th Circuit Court of Appeals in San Francisco on Thursday unanimously ordered the attorney general not to deport an El Salvadoran man who sought political asylum on grounds that he would be persecuted in his native country because he is politically neutral.

The decision reversed a ruling by the federal Board of Immigration Appeals and could have broad ramifications, according to immigration law experts.

“The importance of this decision is that the Board of Immigration Appeals ruling that was overturned had been used to deny asylum to thousands of political refugees across the country,” said Kate McGrath, an attorney with the asylum appeals program of the San Francisco Lawyers Committee for Urban Affairs.

Judge Thomas Tang ruled that the immigration board applied criteria that were too narrow on what qualifies a person for asylum.

Presents Question

He said the case presented the following legal question: “If an alien is forced to join a band of guerrillas, but escapes, and the alien then fears persecution by the guerrillas and by the foreign government’s military, is the fear of persecution on account of ‘political opinion’ within the meaning” of the federal law that sets qualifications for asylum?

“The BIA (Board of Immigration Appeals) answered this question in the negative. We disagree and reverse.”

The case had its genesis nearly six years ago in El Salvador, according to Tang’s opinion, which was joined by appeals court judges Mary M. Schroeder and J. Clifford Wallace.

The court recounted the facts of the case as follows:

Juan Maldonado was working in the fields near his hometown of La Reyna one day in the fall of 1983 when a guerrilla group of 25 men apprehended him and forced him to go to a guerrilla camp.

At the camp, he was subjected to two days of political indoctrination.

“The guerrillas then forced Maldonado to accompany them to La Reyna on a raid for food and supplies. Maldonado was forced to stand guard over stolen supplies,” the opinion said.

The following night, Maldonado escaped from the guerrilla camp, reached his home in the middle of the night, stayed there three hours and went to the capital, San Salvador. There, he met some neighbors who told him the guerrillas had been looking for him. Maldonado immediately decided to leave the country and headed for Guatemala.

After working at various temporary jobs in Guatemala, Maldonado migrated to Reno, Nev., where he had relatives. On July 20, 1986, while working as a busboy there, he was arrested for possession of a concealed knife, pleaded guilty and was sentenced to 16 days in jail. The arrest brought him to the attention of Immigration and Naturalization Service officials, who, in September, 1986, charged him with unauthorized entry into the United States. He was then transported to the Federal Detention Center in Oakdale, La.

In October, 1986, Maldonado requested that an immigration judge declare that he was eligible for political asylum as a refugee. He said the basis of his request was “fear of political persecution” from either the guerrillas or--because of two days of forced guard duty--the El Salvador military.

The federal asylum statute provides that the attorney general can grant asylum to a person “who is unable or unwilling to return to” his native country “because of a persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”

Judge Denies Request

The judge denied Maldonado’s request in January, 1987. He was then transferred to a detention facility in El Paso, Tex., appealed to the Board of Immigration Appeals and lost. He then appealed to the 9th Circuit Court of Appeals. While the appeal was pending, he was released on bond and returned to Nevada. Subsequently, he moved to Atlantic City and is now working there as a busboy.

The decision Thursday said the fact that Maldonado had not aligned himself politically with either the guerrillas or the military in El Salvador was not the critical issue in determining whether he had a fear of persecution.

Judge Tang noted that in an earlier opinion the 9th Circuit Court had held that choosing “to remain neutral is no less a political decision than is choosing to affiliate with a particular political faction.”

Maldonado’s refusal to join the guerrillas “was a manifestation of his neutrality, which is a recognized political opinion,” Tang said, citing two earlier 9th Circuit cases. He said that Maldonado also had a valid fear of persecution from the military “because of his supposed association with the guerrillas.”

In summary, the judge said, “the record here demonstrates a clear probability of persecution,” noting that the guerrillas had sought him at his home after his escape.

The 9th Circuit Court of Appeals does not have the power to grant asylum to Maldonado, now 25. However, the judges remanded the case to the Board of Immigration Appeals with a recommendation that the board grant him asylum.

“I’m elated,” said Steven M. Rosenthal of the Washington firm of Wilmer, Cutler & Pickering who handled Maldonado’s case on a pro bono basis. He said Maldonado was “very happy in New Jersey” and had no desire to return to El Salvador.

“There are a lot of Salvadorans in this country who were dragooned into service by both sides there,” fled to the United States and have been seeking asylum, Rosenthal said.

Marshall T. Golding, the Justice Department lawyer who handled the case, said he was not sure whether the department will appeal the decision.