Blog Post by Professor Karen Musalo, Professor and Chair in International Law, Director of the Center for Gender & Refugee Studies, University of California, College of the Law, San Francisco. This post is part of the blog series on the application of refugee law in military service-related cases.
It is difficult to conceive of a belief more fundamental to one’s conscience than the conviction that it is wrong to harm or take the life of another human being. Individuals who are subject to military recruitment or those who face coercion to join criminal gangs have the strength of their beliefs challenged. They are confronted with the Hobson’s choice of violating their conscience or facing punitive consequences – prosecution and punishment or worse for refusal to serve in the military, and beatings, torture or death for defying gang recruitment. Often the only real choice these individuals have, is to flee their country and seek refugee protection.
Regrettably, if they do flee, they are likely to face denials of protection. Refugee law, especially as it has developed in the United States, has often found such claims to be outside the parameters of protection. These denials are troubling on a jurisprudential as well as ethical and moral level; as a society, if we value a principled aversion to killing, we should uphold protections for those who act in accordance with their conscience on matters of life and death. Instead, as discussed below, the jurisprudence around claims by those refusing military service, and gang recruitment in the United States has resulted in the denial of protection in even the most compelling of cases.
Refusal to serve in the Military
The UNHCR Handbook addresses claims based on refusal to serve in the military in a chapter entitled ‘Special Cases.’ It begins by acknowledging that because states have the sovereign right to require military service, those who face prosecution and punishment for refusing to serve are generally not recognized as refugees (¶167). But there are exceptions to that rule, including when the individual objects to participation for reasons of conscience. The objection could be to all wars, regardless of why or how they are being fought (absolute objector) or could be to particular conflicts (partial objector). In these cases, a successful claim may lie where there is no conscientious objector exemption or possibility of suitable alternative service, and the person faces prosecution and punishment (¶170).
The Handbook also recommends that individuals who would be required to participate in military action ‘condemned by the international community as contrary to basic rules of human conduct’ (¶171), or whose refusal to serve would result in disproportionately severe punishment on account of race, religion, nationality, membership of a particular social group or political opinion may qualify for refugee status (¶169).
The Handbook’s recommendations were first put to the test in the United States in the late 1980s, when a brutal civil war was being waged in El Salvador. Two Jehovah’s Witness (JW) brothers, Jose and Oscar Canas-Segovia, fled their country to seek asylum in the United States. A central tenet of the JW faith is abstention from military service in any form. At the time the Canas-Segovia brothers left their country, El Salvador had a policy of mandatory military service for all males between 18 and 30, with no exemptions for conscientious objectors or possibility of performing alternative service. Men who refused to comply with calls to serve faced six months to 15 years imprisonment. In Canas-Segovia v. INS, 902 F. 2d 717 (9th Cir. 1990) the federal appellate court which heard their case, ruled that forcing young men to perform military service contrary to their religious beliefs, or punishing them for refusal to do so constituted persecution on account of religion, a position aligned with Handbook recommendations.
Subsequently to the appeal court’s decision in Canas-Segovia, the U.S. Supreme Court issued a ruling in another case, INS v. Zacarias, 502 U.S. 478 (1992) that ’on account of‘ – the language addressing nexus between the harm and the protected ground – requires proof of the persecutor’s intent. As many scholars have noted, this interpretation runs counter to UNHCR guidance, and the practice of peer states, and stands as a significant barrier to protection.
On the basis of its decision in Zacarias, the Supreme Court vacated and remanded the Canas-Segovia case to the federal appellate court, directing it to apply the proof of intent principle. Because El Salvador’s conscription law was facially neutral, applying to all who refused military service, the appellate court could no longer find that punishment of the Canas-Segovia brothers constituted religious persecution: (Canas-Segovia v. INS, 970 F. 2d 599 (9th Cir. 1992)).
The Canas-Segovia precedent continues to apply to all claims for asylum based on religion or other reasons of conscience; individuals can only prevail if they bring their case within the two other UNHCR recommended exemptions – namely that the military service violates international norms, or that the individual would suffer disproportionate punishment due to one of the five Convention grounds.
It is true that other countries have denied claims based on reasons of conscience alone, as the US did in Canas-Segovia, but the stated rationale in the non-US cases was that the right to conscientious objection had not yet been recognized as a fundamental human right. This rationale was articulated by the House of Lords in Sepet v. Secretary of State for the Home Department: Bulbul v. Secretary of State for the Home Department [2003] UKHL 15, and was relied upon by a Canadian federal court in Lebedev v. Canada (Minister of Citizenship and Immigration), 2007 FC 728.
Since Sepet & Bulbul and Lebedev, there have been significant developments towards recognizing conscientious objection as a fundamental right. Article 10(2) of the Charter of Fundamental Rights of the European Union, which came into effect in 2009, proclaims that the ‘right to conscientious objection’ is an exercise of the universally accepted right to freedom of thought, conscience and religion. The European Court of Justice reached the same conclusion in Bayatyan v. Armenia [2011] ECHR, a case which, similar to Canas-Segovia, involved a Jehovah’s Witness.
The growing development of an international consensus that conscientious objection is a human right should lead to grants of asylum in countries that pointed to the absence of such a right as the reason to deny asylum. However, it will be irrelevant in the US where the denials are untethered to the issue of conscientious objection as a human right, and are based wholly on the lack of nexus.
As noted above, those who refuse military service for reasons of conscience may still be granted in the US if their claims are based on arguments that the military action is ‘condemned by the international community as contrary to basic rules of human conduct.’ But some US courts have required a condemnation by international bodies – tantamount to requiring a UN resolution – in order to meet this criteria; a standard far higher than set by the Court of Justice of the European Union in EZ v. Bundesrepublik Deutschland, CJEU Case C-238/19 (2020) or by tribunals of other states such as Canada in Lebedev, or New Zealand in Refugee Appeal No. 75378 (October 19, 2005) which simply look to the relevant evidence of how the war is being conducted in order to make the determination.
The combination of the US interpretation of nexus, and the requirement of condemnation by an international body by some US courts has made it quite difficult for individuals of conscience to prevail in their claims for refugee protection. However, even more difficult are the claims of young men, who for reasons of conscience, resist joining murderous gangs. It is to those cases that we now turn.
Gang resistance based on Reasons of Conscience
In recent years an increasing number of claims for asylum in the US have been brought by young people resisting recruitment into criminal gangs in El Salvador, Honduras and Guatemala. The gangs are known for their brutality, resulting in these three countries having the highest per capita murder rates in the world over the past decade. Understandably young men and women of conscience do not want to be forced to participate in acts of violence, including killing, of their fellow citizens.
The issue of forced gang recruitment is different from, as well as similar, to that of conscription into the military. It is different in that, as UNHCR’s 2014 Guidelines on Claims to Refugee Status related to Military Service note ‘only States can require military conscription’ and non-state actors are not entitled to ‘recruit on a compulsory or forced basis.’ (¶7). And forced gang recruitment is similar in that, notwithstanding the fact that gangs are non-state actors, they have amassed such power and territorial control that they constitute the de facto government in large parts of the countries where they operate.
Young people who the gangs attempt to recruit are given two choices – join and participate in extortion, rape and murder, or become a victim of gang violence for resisting. Faced with this choice, it is no wonder that many chose to flee. Unfortunately, although the US deplores the violence of the gangs, it has consistently refused the claims of those who resist forced recruitment.
The three Convention grounds most frequently invoked in these gang resistance cases are religion, political opinion, and particular social group. Various rationales are provided for the denials – with the most common being: 1) the refusal to recognize anti-gang opinion as political opinion, 2) the continued requirement of proof of intent to establish nexus, and 3) the imposition of a tripartite test to establish the cognizability of a particular social group. Following are examples of cases in which one or more of these rationales justified the denial of relief.
Gang opposition as political opinion
The relatively recent decision in Zelaya-Moreno v. Wilkinson, 989 F. 3d 190 (2d Cir. 2021) is illustrative of the bias against recognizing anti–gang opinion as political opinion within the meaning of the Convention. On two occasions, the Salvadoran asylum seeker, Douglas Zelaya-Moreno, refused to heed gang demands to join, telling them that he believed gangs were bad for his small hometown, and bad for his country. As a result, he was brutally beaten, kidnapped by corrupt police working with the gangs, and told that he would be killed unless he changed his mind and joined. He fled El Salvador several months later.
Zelaya-Moreno asserted that the reason he was beaten and threatened with death was because of his anti-gang political opinion, which he expressed directly to his persecutors. The federal court rejected his claim, ruling that because the gangs are criminal organizations, and not political entities, his views about them did not constitute a ‘political’ opinion.
The distinction the court drew between criminal and political does not withstand scrutiny when considered within the relevant context. In El Salvador (similar to Guatemala and Honduras) gangs have assumed the role of quasi-state actors, with power, territorial control, and clear political goals. This fact was expressly recognized by a Tribunal in the UK in EMAP v. Secretary of State for the Home Department [2022] UKUT 00335 (IAC). In its decision, the court found that the gangs had a presence in virtually all of El Salvador’s municipalities, maintained ‘vast’territorial control, and that the key political players ‘engaged the gang leadership in dialogue and negotiations aimed at delivering to them identifiable political aims.’ Within this context, it is clear that the gangs can simultaneously exist as criminal as well as political entities.
However, even if it was not the case that gangs were political actors, there is still a solid argument that anti-gang opinions are political opinions. UNHCR and leading scholars such as Guy Goodwin-Gill define a ‘political opinion’ as ‘any opinion on any matter in which the machinery of State, government, and policy, may be engaged.’ Certainly the state is ‘engaged’ in responding to gang activity, such that citizen opinions about gangs constitute political opinions.
Religiously-motivated gang opposition
Cases involving religiously-motivated resistance to gang recruitment generally fail as a result of the US nexus requirement of proof of intent, which was explained in relation to the Canas-Segovia decision discussed above. An example of how nexus defeats religious-based gang resistance claims is provided by the federal court decision Bueso-Avila v. Holder, 663 F.3d 934 (7th Cir. 2011).
At the age of 15, the Honduran asylum seeker, Erlin Bueso-Avila, joined an evangelical Christian church group. He participated in its proselytizing activities, walking throughout his neighborhood with Bibles, encouraging young people to come to their meetings, and reject gang life. He testified that their ‘purpose . . . was to get young people to see the ways of God, and to start doing good things instead of smoking marijuana, robbing, and killing people like the gang members did.’
The gang members did not look fondly on the church group’s activities, resulting in threats and attacks, as well as attempts to recruit its members. Erlin was the target of four separate violent incidents intended to force him to join the gang; he fled after the last, and most serious of these attacks.
Although Erlin Bueso-Avila refused to join the gang because of his religion, and suffered the consequences for his refusal, the court rejected his claim of persecution on account of religion. Invoking the rule requiring proof of persecutor’s intent, the court ruled that the gang members harmed him for his refusal to join, and not for his religion. However, as discussed above, the US approach to nexus is unduly restrictive, and contrary to UNHCR guidance and the practice of peer states.
Opposition to gangs based on particular social group
Claims based on particular social group have fared no better than those on political opinion and religion. This is a result not only of the US’s heightened nexus requirement, but of its exceedingly restrictive requirements for establishing membership in a particular social group. Whereas in its 2002 Social Group Guidelines, UNHCR recommended that a social group be recognized if it is defined by immutable or fundamental requirements (protected characteristics approach) or alternatively if it is perceived as a group by society (social perception approach), the US requires groups to meet both of these criteria simultaneously (although it uses slightly different nomenclature – referring to ‘social perception’ as social visibility or social distinction), as well as a third requirement of particularity. As a result of the imposition of this tripartite test, courts have rejected innumerable particular social groups, including those formulated around resistance to gang recruitment based on reasons of conscience.
In Matter of S-E-G–, 24 I&N Dec. 579 (BIA 2008) a decision by the BIA, three Salvadoran siblings – two brothers and their sister – sought asylum after gang members harassed and beat the brothers and threatened to rape their sister, if they did not join. The proposed social group was Salvadoran youth who resist joining gangs because of their ‘personal, moral and religious opposition to the gang’s values and activities.’ Their claim was rejected with the BIA ruling that the group lacked both social visibility and social distinction. The holding in S-E-G- was not an anomaly, but is representative of the majority of claims based on refusal to serve for reasons of conscience.
Conclusion
The United States’ restrictive interpretation of asylum law is inconsistent with UNHCR guidance and state practice. As a result of requiring proof of intent to establish nexus, statements by international bodies to establish violations of humanitarian law, and the imposition of a tripartite social group test, the US fails those acting on deeply held moral and ethical convictions. Whether they refuse to kill on behalf of an established military or a brutal gang, the outcome is the same – they are found to be outside the realm of refugee protection.
The developing international consensus recognizing conscientious objection as a fundamental human right and the parallels between forced military and gang participation should compel a reevaluation of the US approach. A more principled and expansive interpretation, consistent with UNHCR guidance and the practice of peer states, is essential to ensuring that persons of conscience receive the protection they deserve. Upholding such standards would not only affirm the United States’ commitment to human rights but encourage other states to do likewise.
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