Silva-Jacinto

ORDER

The Memorandum disposition filed on March 5, 2002 is withdrawn. An amended Memorandum will be submitted for simultaneous filing with this Order.

The panel having amended the disposition, the Petition for Rehearing is DENIED. Judge Noonan voted to grant the Petition for Rehearing.

MEMORANDUM

This petition for review challenges the INS’s rejection of Silva-Jacinto’s asylum petition on the basis that his fear of future persecution was not objectively reasonable. Both the Immigration Judge and the Board of Immigration Appeals found that Silva-Jacinto had a subjective fear of persecution and that his testimony was credible, reliable and consistent. 2 That testimony established that Silva-Jacinto was forcibly recruited into the Guatemalan armed forces, served honorably, but refused assignment to the G-2 division, an intelligence unit notorious for its human rights violations. The record compels the conclusion that Silva-Jacinto’s refusal was based on his conscience and religious beliefs. The G-2 did not accept Silva-Jacinto’s refusal and pursued him, even after his tour of military duty ended. The pursuit continued even after Silva-Jacinto moved to another city to avoid the…

dissenting.

Silva-Jacinto refused to serve in G-2 because of his religious beliefs and his unwillingness to torture and “kill people for no apparent reason.” No evidence was presented that G-2 was aware of these beliefs. The record indicates only that Silva-Jacinto told military authorities that he didn’t wish to serve because “I wanted to return to civilian life. I wanted to live with my wife in Bananera.” G-2 persecution might have been based on simple refusal to serve, not a protected ground.

The case should be remanded to the BIA for further findings on whether such persecution would have been “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101 (a)(42)(A). Neither the Immigration Judge nor the BIA made a finding on this question.