Jose Roberto Canas-Segovia Oscar Iban Canas-Segovia v. Immigration and Naturalization Service

We consider whether El Salvador’s forcible conscription policy amounts to persecution under the Immigration and Nationality Act (INA) when applied to conscientious objector Jehovah’s Witnesses. Both the immigration judge (IJ) and Board of Immigration Appeals (BIA) answered this query in the negative when they denied asylum and withholding of deportation relief to petitioners Jose and Oscar Canas-Segovia. We now REVERSE and REMAND with instructions to grant the requested relief.

BACKGROUND

Jose and Oscar Canas-Segovia (the Ca-ñases) are brothers and natives of El Salvador whose religious beliefs bar them from participating in military service. Both were introduced to the Jehovah’s Witnesses faith as children and reared in a family' setting where most family members either already were Jehovah’s Witnesses or studying to be baptized into that faith. The Cañases have studied the faith since their midteens, with the goal of becoming baptized and consider themselves to be Jehovah’s Witnesses. The tenets of their faith prohibit them from participating in military service of any kind.

El Salvador presently has a policy of mandatory military service for all males between the ages of 18…

902 F.2d 717 58 USLW 2637 Jose Roberto CANAS-SEGOVIA; Oscar Iban Canas-Segovia, Petitioners, * v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 88-7444. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 12, 1989. Decided April 24, 1990. Karen Musalo, University of San Francisco Law Clinic, San Francisco, Cal., for petitioners. Allen W. Hausman, Office of Immigration Litigation, Washington, D.C., for respondent. Charles R. Dougherty, Neil V. McKittrick, Boston, Mass., Paul Hoffman, David Weissbrodt, Los Angeles, Cal., for Amnesty Intern. U.S.A., amicus curiae. Guy S. Goodwin-Gill, Susan Timberlake, United Nations High Com'r for Refugees, Washington, D.C., Ralph G. Steinhardt, George Washington University Nat. Law Center, Washington, D.C., for amicus curiae. Petition for Review from the Board of Immigration Appeals. Before WRIGHT, HUG, and LEAVY, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 We consider whether El Salvador's forcible conscription policy amounts to persecution under the Immigration and Nationality Act (INA) when applied to conscientious objector Jehovah's Witnesses. Both the immigration judge (IJ) and Board of Immigration Appeals…

special concurrence:

I concur in Part IV.B of the opinion which holds that the Cañases are qualified for withholding of deportation and refugee status based on an imputed” political opinion. We have held that persecution “on account of” political opinion includes persecution not only on account of political opinions that the petitioner actually holds, but also on account of opinions that the persecutor falsely attributes to the petitioner. See Rivas v. INS, 899 F.2d 864, 867 (9th Cir.1990); Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.1985).

I cannot agree with the majority’s analysis of religious persecution, however, because it treats as irrelevant the motive of the persecutor. Rather than stating that the persecutor’s motive in persecuting is insignificant, the cases cited by the majority support the opposite proposition. See Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987) (petitioner persecuted “for her political opinion”); Hernandez-Ortiz, 111 F.2d at 516 (“persecution” is oppression inflicted on individuals “because of a difference that the persecutor will not tolerate”). The majority’s conclusion also conflicts with the statutory “on account of” language,…