Court Ruling on Pacifism Overturned

SAN FRANCISCO —  Bowing to a U.S. Supreme Court ruling, a federal appeals court has overturned its own groundbreaking decision that a nation’s refusal to honor religious objections to war entitled a pacifist to political asylum in the United States.

“It’s quite disappointing and shocking,” said Karen Musalo, the attorney for two teen-agers who fled El Salvador to avoid military service, said Monday.

The ruling by the U.S. 9th Circuit Court of Appeals, issued July 10, actually did not hurt Musalo’s clients: One has obtained legal U.S. residency and the other was found to be eligible for asylum on political grounds.

But Musalo lamented the downfall of the nation’s first court ruling recognizing conscientious objection to war as a basis for asylum.

The government, on the other hand, may appeal another part of the ruling to the Supreme Court. It allows a fleeing draft refuser to claim asylum on the grounds that his government would have considered him a rebel sympathizer and persecuted him.

Justice Department spokeswoman Melissa Burns said Monday that the case is under review.

The brothers, Oscar and Jose Canas-Segovia, both Jehovah’s Witnesses, fled El Salvador in 1985 at the ages of 16 and 17. They said they had been told their religion’s objections to military service would not be recognized. Since the initial ruling, Oscar has married a U.S. citizen and gained conditional status as a legal U.S. resident.

According to an immigration judge quoted by the court, El Salvador was one of 40 countries that refused to grant conscientious objector status. But the Immigration and Naturalization Service denied asylum, saying that El Salvador’s policy was applied equally and was not persecution.

The brothers’ appeal was followed closely by human rights groups. Amnesty International and the United Nations High Commissioner for Refugees sent written arguments to the court in support of asylum for conscientious objectors.

The U.S. 9th Circuit Court, in an April, 1990, decision, relied on a U.N. refugee handbook in concluding that the threat of imprisonment or other punishment for refusing military service out of “genuine political, religious or moral convictions” was an act of religious persecution.

But the court was told to reconsider the case by the Supreme Court in February, a month after the high court had issued a ruling narrowing the grounds for political asylum.

That ruling said forced military service is not necessarily political persecution. It also said that in deciding whether the treatment an alien faced if deported would amount to persecution, a court must focus on the alleged persecutor’s motive, not that of the alien.