High Court Narrows Refugees’ Ability to Gain Asylum : Immigration: Justices rule that those fleeing forced military service are not necessarily being politically persecuted. Thousands of Central Americans will be affected.

In a ruling that will affect thousands of refugees from strife-torn Central America, the Supreme Court said Wednesday that those who fled to the United States to avoid forced military service are not entitled to political asylum.

In a 6-3 ruling, the high court said that people pressured to join either a regular army or guerrilla bands are not necessarily being “persecuted on account of . . . a political opinion,” as required for asylum under the Refugee Act of 1980.

Their decision to flee could instead stem from a desire to avoid combat, to be with relatives in the United States or for many other reasons, the court said.

The court’s ruling gives U.S. officials broader power to deny asylum requests, despite complaints that American officials have imposed a double standard that discriminates against Central Americans.

Lawyers in the case noted that Immigration and Naturalization Service officials had granted asylum to refugees fleeing forced service in the Afghan army but not to those fleeing forced service in Guatemala, El Salvador or Nicaragua.

More than 100,000 petitions for political asylum are pending before the INS. More than half are from people who fled Central America.

“This is a disturbing decision,” said Arthur C. Helton, director of the Refugee Project of the Lawyers Committee for Human Rights in New York. “The court has given the law such an exceptionally narrow construction that it will cause many of these asylum applications to be denied.”

The Justice Department said that, if the ruling had gone the other way, every young man fleeing military service could have become eligible for asylum.

The case involved Jairo Jonathan Elias-Zacarias, 18, who was at his parents’ home in Olintepeque, Guatemala, when two anti-government guerrillas with machine guns came to the house in January, 1987. They urged him to join their movement but he refused. When the guerrillas left, they said that they would return and told the young man to “think it over well.”

Elias-Zacarias fled to the United States, crossing the border near Nogales, Ariz. He was arrested by the INS.

Elias-Zacarias conceded he was subject to deportation but he applied for asylum as a refugee under the Refugee Act. The law says that an alien seeking asylum must demonstrate “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion.”

Elias-Zacarias told immigration officials that he believed he was eligible for refugee status because he had a “well-founded fear of persecution” based on his refusal to join a political movement--the anti-government guerrillas. He said that he feared the guerrillas would “take me and kill me” if he did not join.

But an immigration judge who first heard the case said that Elias-Zacarias was not entitled to asylum because his experience was not “any different from . . . other Guatemalans” fleeing the civil war.

Attorneys for Elias-Zacarias appealed the case and a three-judge panel of the U.S. 9th Circuit Court of Appeals in California took a different view.

The court unanimously concluded that young Guatemalans had a “well-founded fear of persecution” and that those fears were based on political opinions.

“Resisting forced recruitment is expressing a political opinion hostile to the persecutor,” wrote 9th Circuit Judge Betty B. Fletcher of Seattle.

The Justice Department appealed to the Supreme Court, contending that the ruling could lead to asylum requests from every person fleeing military recruitment in strife-torn nations. Siding with the government, the high court said that asylum applicants must show that their persecution clearly results from a “political motive.”

Young men such as Elias-Zacarias “might resist recruitment for a variety of reasons--fear of combat, a desire to remain with one’s family and friends, a desire to earn a better living in civilian life, to mention only a few,” Justice Antonin Scalia wrote in his ruling in the case (INS vs. Elias-Zacarias, 90-1342). Elias-Zacarias does not fear that “the guerrillas will persecute him because of a political opinion, rather than because of his refusal to fight with them.”

Justices John Paul Stevens, Harry A. Blackmun and Sandra Day O’Connor dissented. They said that the court’s “narrow, grudging construction” of the law ignores those who are fleeing because of politically inspired persecution.

Agreeing with the dissenters, San Francisco attorney Sergio Garcia-Rodriquez said that Scalia’s opinion closes the door to refugees who are fleeing political strife.

“It’s hard to imagine what an applicant is supposed to say when faced with the threat of persecution,” said Garcia-Rodriquez, who filed a brief on behalf of the American Immigration Lawyers Assn. “Should he have told the guerrillas: ‘I don’t want to join you because I like the government and don’t like you?’ ”