## Facts

- Jose Antonio Barraza Rivera, a native and citizen of El Salvador, was forcibly conscripted into the Salvadoran military in December 1983 and began training in January 1984 in La Unión.
- During training, he applied for a passport while in civilian clothes and omitted his military service from the application, acting on his mother’s advice due to concern about military wrongdoing.
- After a brief deployment without combat, he returned to La Unión and was granted a short leave.
- Before leaving, a lieutenant told Barraza that upon return the unit would carry out paid assassinations and implied Barraza must either participate or be killed.
- Barraza left El Salvador for the United States on February 4, 1984, stating he fled because participating in the planned killings “wasn’t correct.”
- In removal proceedings, Barraza sought asylum and withholding of deportation, asserting fear of harm from the military (for refusing the assassinations, desertion, and suspected guerrilla ties) and from guerrillas (based on his military association).
- Barraza supported his fear with testimony including abuse of a family member by soldiers and violence against others associated with suspected guerrilla or military ties.
- The immigration judge denied asylum, withholding, and motions seeking remand and discovery related to a State Department human-rights advisory opinion; the Board of Immigration Appeals affirmed.

## Issues

1. Whether Barraza established eligibility for asylum by showing a well-founded fear of persecution on account of a protected ground where he deserted to avoid participation in ordered extrajudicial assassinations.
2. Whether the BIA’s denial of relief was supported by substantial evidence or rested on legal error, including mischaracterizing the claim as mere evasion of military service and relying on the State Department advisory opinion without adequate evaluation of the record.

## Decision

- The Ninth Circuit granted the petition for review, reversed the BIA’s order, and remanded for further proceedings.
- The court held the BIA erred by treating Barraza’s claim as a general objection to military service rather than a refusal to participate in specific unlawful killings.
- The court concluded the record supported a well-founded fear tied to Barraza’s refusal to commit inhuman acts and the resulting risk of targeting or severe punishment.
- The court reiterated that State Department advisory views may be considered but are not controlling; the agency must independently assess the full evidentiary record.

## Legal Principles

- Asylum eligibility requires showing past persecution or a well-founded fear of persecution “on account of” a protected ground; a well-founded fear may be established by a reasonable possibility of persecution supported by credible, specific evidence.
- Punishment for ordinary draft evasion or routine military offenses generally is not persecution, but punishment or targeting for refusing to participate in unlawful or inhuman acts may constitute persecution rather than legitimate prosecution.
- Adjudicators must correctly characterize the basis of the applicant’s fear and evaluate individualized evidence of risk; a decision lacking substantial-evidence support warrants reversal.
- Government advisory opinions on country conditions are relevant but nonbinding; the agency must make an independent determination based on the entire record.

## Conclusion

The Ninth Circuit held that desertion undertaken to avoid compelled participation in ordered assassinations can support a well-founded fear of persecution on a protected ground, reversed the agency’s denial that treated the case as simple draft evasion, and remanded for further proceedings.


Barraza-Rivera v. Immigr. & Naturalization Serv., 913 F.2d 1443 (9th Cir. 1990)