Foroglou v. INS

• Court: Court of Appeals for the First Circuit
• Decided: March 10, 1999
• Docket: 98-1557
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1557



                      EMMANUEL J. FOROGLOU,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                           Respondent.


ON PETITION FOR REVIEW OF AN ORDER OF



                 THE BOARD OF IMMIGRATION APPEALS


Before



                     Torruella, Chief Judge,

                                

                 Coffin, Senior Circuit Judge,

                                

                   and Boudin, Circuit Judge.


Pauline M. Schwartz with whom Paul Shearman Allen & Associateswas on brief for petitioner.

     John M. McAdams, Jr. with whom Frank W. Hunger, Assistant

Attorney General, Department of Justice, Civil Division, and Karen

Ann Hunold, Senior Litigation Counsel, Office of Immigration

Litigation, were on brief for respondent.


March 5, 1999


BOUDIN, Circuit Judge.  In this immigration appeal, the

background facts are not disputed.  Emmanuel J. Foroglou

("Foroglou"), a native and citizen of Greece, entered the United

States on a student visa in August 1983, to pursue graduate studies

in economics at Brown University.  When he left Brown to teach at

Utica University in 1987, his visa status was changed to H-1B, a

non-immigrant professional visa.  However, when Foroglou left his

job at Utica in 1989 (and thus became ineligible for an H-1B visa),

he did not inform the INS.

  After working in Chicago for several years, Foroglou

moved to Houlton, Maine.  Shortly after he moved to Houlton, he

came to the attention of the Immigration and Naturalization

Service.  In October 1993, Foroglou was served with an order to

show cause why he should not be deported--the beginning of

deportation proceedings.  See 8 C.F.R.  242.1 (1993).  Foroglou

did not dispute the facts as to entry and visa status but claimed

refugee status based on his objections to the military draft laws

of Greece.  He has no family or relatives in the United States.

  Shortly after entering the United States, Foroglou,

professedly an atheist, began to develop a belief in Objectivism,

a philosophy developed by the twentieth-century author Ayn Rand.  

He says that he now believes that the draft "negates man's

fundamental right to life and established [sic] the fundamental

principle of statism:  that a man's life belongs to the state, and

that the state may claim it by compelling him to sacrifice it in

battle."  Ayn Rand, Capitalism: The Unknown Ideal, 227 (1967)

(quoted in Foroglou's application for asylum).  Although he is

opposed to any military draft, Foroglou is not opposed to war or

fighting; his beliefs are only concerned with the fact that the

draft is involuntary.

  Based on the administrative record in this case, it

appears that under Greek law, all males between the ages of 18 and

50 are subject to military service for 24 months.  Since 1977,

draftees may choose instead to serve, for twice the usual amount of

time, in non-combatant roles.  In addition, in 1997, an alternative

civilian service option was instituted for conscientious objectors;

it is about 12-18 months longer than combatant military service,

and Foroglou would probably not qualify for this alternative

because he is not opposed to the use of weapons.

  In 1980, Foroglou had received a 10-year student

deferment of military service but he apparently did nothing in 1990

to renew it or to declare himself a conscientious objector. 

However, after the INS served its show cause order, Foroglou says

that he wrote to the Greek Consulate in May 1994, to request a

passport to replace the one being held by the INS and to declare

himself a conscientious objector.  The Greek consul responded that

it could not issue Foroglou a passport until he had completed his

military service and that Foroglou would have to deal with his

local draft office (in Greece) about declaring himself a

conscientious objector.

    The first hearing on Foroglou's deportation was held on

December 1, 1993, and thereafter continued so Foroglou could file

applications for political asylum and suspension of deportation. 

See 8 U.S.C.  1158, 1253(h).  Foroglou filed these applications

and also applied for voluntary departure in lieu of deportation,

see 8 U.S.C.  1254(e).  Testimony, consistent with the facts

described above, was completed on December 1, 1994.  The hearing

was reconvened again on September 6, 1995, and Foroglou moved to

withdraw his application for suspension of deportation.  The

immigration judge granted his motion with prejudice and proceeded

to present his decision.

  In the decision, the immigration judge found that

Foroglou had not established that he had a well-founded fear of

persecution on account of his religion, race, nationality,

membership in a particular social group, or political opinion if he

were to return to Greece, or that any punishment for failing to

comply with Greek conscription law would be disproportionately

severe on account of any one of these factors.  He denied

Foroglou's application for asylum, but granted Foroglou voluntary

departure within 30 days in lieu of deportation.

  Eight days later, Foroglou filed a notice of appeal with

the Board of Immigration Appeals.  In February 1998, before his

appeal was heard, Foroglou filed with the Board additional evidence

and a motion to remand to the immigration judge.  The new evidence

related to the new 1997 civilian service option and Foroglou's

claim that he would not qualify for this alternative service.  On

April 30, 1998, the Board dismissed Foroglou's appeal, denied his

motion to remand, and again granted him 30 days in which to

voluntarily depart.  Foroglou filed a petition for review with this

court and moved for a stay of deportation, which was granted on May

21, 1998.

  On this appeal, we begin with the Board's denial of

Foroglou's application for political asylum.  Its factual

determinations are conclusive if "supported by reasonable,

substantial and probative evidence on the record considered as a

whole."  8 U.S.C.  1105a(a)(4); see also Gebremichael v. INS, 10

F.3d 28, 34 (1st Cir. 1993).  The Board's application of the legal

standards to specific facts is also entitled to deference.  SeeRavindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992).  Abstract

rulings of law are subject to de novo review.  See Maldonado-Cruzv. INS, 883 F.2d 788, 791 (9th Cir. 1989). 

  The statute governing asylum, 8 U.S.C.  1158(b), states

that an alien can be granted asylum, in the discretion of the

Attorney General, if the alien is a "refugee" within the meaning of

8 U.S.C.  1101(a)(42)(A), namely, someone who is unable or

unwilling to return to his home country because of "persecution or

a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion."  The Attorney General does not resist review of the

Board's determination as to whether an applicant meets any of the

five enumerated grounds.

     To qualify for asylum, the applicant must show that he

actually fears persecution (a subjective issue), and that there is

a "reasonable possibility" that persecution would actually occur

(an objective issue), Ravindran, 976 F.2d at 758, but no more than

this is required.  See Cardoza-Fonseca, 480 U.S. at 430-32.  If the

applicant has shown no personal threat against him, he must show

that there is a practice of persecution against a group or category

of persons within the five enumerated grounds, and that he is

identified with that group.  See 8 C.F.R.  208.13(b)(2)(i);

Meguenine v. INS, 139 F.3d 25, 28 (1st Cir. 1998).

     It is not persecution for a government to require

military service of its citizens.  See Krastev v. INS, 101 F.3d

1213, 1217 (7th Cir. 1996); see also Umanzor-Alvarado v. INS, 896

F.2d 14, 15 (1st Cir. 1990).  However, a person may qualify as a

refugee if he is singled out for service because he is a member of

an enumerated group or if--when he refuses service--he is subject

to disproportionate punishment on account of his group membership. 

See M.A. AXXXXXXXX v. INS, 899 F.2d 304, 312 (4th Cir. 1990) (en

banc); Matter of R--R--, 20 I. & N. Dec. 547, 551 (1992).

     In this case, Greek law subjects all men to military

service.  There is no evidence that the Greek government has

threatened Foroglou with military service because he is an

Objectivist, nor is there any evidence that the Greek government

targets Objectivists who refuse to serve for disproportionate

punishment.  According to Foroglou's submissions, Amnesty

International apparently believes that the Greek government has

disproportionately punished Jehovah's Witnesses who refuse the

draft, but Foroglou is not a Jehovah's Witness.

     Foroglou's main argument on this appeal is built on two

related premises:  first, that under the federal statutes, it is

"persecution," without more, for a country to refuse conscientious-

objector status to a bona fide conscientious objector and instead

to punish the objector for refusing to serve; and second, that a

belief in Objectivism is as good a basis for such conscientious-

objector status as being a religious pacifist opposed to

participating in war in any form.  We once reserved judgment on the

first premise, see Umanzor-Alvarado, 896 F.2d at 15, and now think

the issue is resolved by later Supreme Court cases.

     Nothing in the language of the federal definition of

refugee (requiring persecution on one of the five enumerated

grounds) suggests that it applies when a foreign country simply

insists on universal military service for all citizens and provides

no exemptions.  In such a case, the resistor might refuse service

out of religious or political conviction; but punishment for

refusing to serve would not be "persecution" (even assuming the

that term is apt) "on account of" the objector's religious or

political opinion, see 8 U.S.C.  1101(a)(42)(A), but instead would

be "because of his refusal to fight" for the government.  INS v. 

Elias-Zacarias, 502 U.S. 478, 483 (1992).

     Some might think that refugee status should be offered to

all persons fleeing from punishment for anything done "by reason of

conscience," regardless of whether the "persecutor" singles out

victims on account of their religion, political beliefs, or the

like.  However, this country itself makes criminal various refusals

based on reasons of conscience, so it is hard to imagine an

immigration statute being cast quite so broadly.  In all events,

the refugee definition enacted by Congress is limited to

persecution "on account of" the enumerated grounds, and it is for

Congress -not the courts--to enlarge it.

     It is quite true that the Ninth Circuit once took the

opposite view in Canas-Segovia v. INS, 902 F.2d 717, 725-26 (9th

Cir. 1990) (Canas-Segovia I), relying in part upon a U.N.

"handbook" on refugee matters; but its decision was vacated by the

Supreme Court, INS v. Canas-Segovia, 502 U.S. 1086 (1992).  Nor

does it matter that the U.N. advises that it is "open [to states]

to grant refugee status" to conscientious objectors.  It is open

to Congress to adopt that course, but it has not done so here. 

Foroglou's argument thus founders on its first premise, and we need

not address the merits of his second--namely, that Objectivism

should be equated with traditional conscientious objector status.

     A different issue is raised by Foroglou's motion to

remand.  Pointing to Greece's new 1997 law providing for non-

military alternative service, he says that conventionally religious

objectors would qualify but Objectivists would not.  Why this

should matter to Foroglou is not clear, since his objection is to

any compelled service by the state.  In any event, we do not

believe that providing religious objectors an exemption constitutes

persecution of all other non-exempted Greek citizens.

     The asylum statute does not inflict on foreign

governments the obligation to construct to their own draft laws to

conform to this nation's own highly complex equal protection

jurisprudence.  Indeed, it is doubtful that the kinds of

distinctions that Foroglou attributes to the 1997 law would be

unconstitutional in this country, if Congress chose to draw them. 

See Gillette, 401 U.S. at 446-48 (requiring absolute pacifist

belief does not run afoul of equal protection concerns).  To

describe as "persecution" a set of foreign-country exemption rules

not all that different than our own is a view that would be hard to

ascribe to Congress under any reading of the refugee statute.

     Foroglou's remaining arguments need only the briefest

mention.  The Ninth Circuit's decision on remand in Canas-Segovia,

although cited by Foroglou, is not on point.  It is beside the

point whether Foroglou will be punished for draft evasion in

Greece, so long as it is routine punishment that would be inflicted

on any evader.  Finally, we agree that the immigration judge showed

considerable annoyance with Foroglou's claims, but disagreement

with Foroglou's arguments is not proof of bias. 

     Affirmed.