## Facts

- M.A., a citizen of El Salvador, was in deportation proceedings and moved to reopen the case so he could apply for political asylum.
- M.A. claimed he feared persecution if returned to El Salvador because he refused to serve in the Salvadoran army.
- He asserted that the Salvadoran military committed widespread abuses and that he would not serve in a force that engaged in conduct he described as contrary to basic rules of human behavior.
- To support his motion, M.A. submitted materials from private organizations, including Amnesty International, describing country conditions and reporting abuses such as arbitrary detention, torture, extrajudicial killings, and death-squad activity.
- M.A. also relied on the submitted materials to argue that the abuses were not isolated misconduct but reflected Salvadoran policy.
- The immigration judge (IJ) denied the motion to reopen, concluding that M.A. failed to make a prima facie showing of eligibility for asylum on the theory presented.
- The IJ reasoned that a nation may impose compulsory military service and punish those who evade a draft, and that such punishment is not, without more, “persecution” for asylum purposes.
- The IJ further found that M.A. had not shown that the alleged atrocities were committed pursuant to the policies of El Salvador’s government or its military.
- The Board of Immigration Appeals (BIA) affirmed, agreeing that draft evasion penalties are generally not persecution and concluding that M.A.’s evidence did not establish the required connection between the feared harm and a basis for asylum.
- The BIA also discounted the private-organization reports as not meeting what it described as a requirement of condemnation by the international community.
- A three-judge panel of the Fourth Circuit reversed the BIA, and the INS petitioned for rehearing en banc.

## Issues

1. Did the BIA abuse its discretion in denying M.A.’s motion to reopen for failure to establish a prima facie case of eligibility for asylum based on refusal to serve in the Salvadoran army?
2. When can punishment for draft evasion (or refusal of military service) amount to “persecution” rather than ordinary enforcement of conscription laws?
3. What showing must an applicant make, at the motion-to-reopen stage, to connect alleged military abuses to official government or military policy when claiming asylum based on refusal to serve?
4. How may the agency evaluate and weigh country-condition materials from private organizations when deciding whether an applicant has made a prima facie asylum showing?

## Decision

- The Fourth Circuit granted rehearing en banc.
- The en banc court vacated the panel decision.
- The en banc court upheld the BIA’s decision and left in place the denial of M.A.’s motion to reopen deportation proceedings.

## Legal Principles

- A motion to reopen is an extraordinary procedural request; the BIA may deny reopening when the movant does not make a prima facie showing that the underlying relief (here, asylum) is available on the facts asserted.
- Enforcement of a generally applicable military draft, including punishment for evasion, does not by itself constitute persecution under asylum law.
- A claim based on refusal of military service requires more than opposition to conscription; the applicant must show a qualifying connection between the feared harm and a protected ground, or show circumstances such as punishment that is disproportionately severe or tied to the applicant’s protected status or beliefs.
- When an applicant argues that refusal to serve would expose him to punishment because the military engages in condemned conduct, the applicant must present evidence sufficient to support the asserted link between the alleged abuses and official policy or official tolerance, not merely generalized reports of violence.
- Country-condition reports from private organizations may be submitted and considered, but the agency retains authority to assess their weight when determining whether the applicant has made the required prima facie showing.

## Conclusion

*M.A. v. INS (M.A. II)* arose from M.A.’s effort to reopen deportation proceedings to seek asylum based on fear of harm for refusing military service in El Salvador, supported by private-organization reports describing severe abuses by the Salvadoran military. The IJ and BIA denied reopening because M.A. did not make a prima facie showing that draft-evasion punishment would amount to persecution or that the alleged abuses were sufficiently tied to official policy for his refusal-to-serve theory. After a panel reversed, the Fourth Circuit reheard the case en banc, vacated the panel decision, and upheld the BIA’s denial of the motion to reopen.


M.A. v. INS (M.A. II), 899 F.2d 304 (1990)