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Published online by Cambridge University Press: 27 February 2017
On remand after reversal of a prior denial of a motion to reopen deportation proceedings and a final order of deportation, petitioner, a native and citizen of El Salvador, presented a renewed application for political asylum as a refugee under section 208(a) of the Immigration and Nationality Act (8 U.S.C. §1158(a) (1982)) (INA or Act). The Immigration Judge found that petitioner had failed to present a prima facie case for eligibility under section 208(a) of the INA, a prerequisite to reopening his deportation proceedings for a hearing on the merits of the asylum claim, and therefore denied petitioner’s motion to reopen and issued another final order of deportation. Petitioner appealed, and the Board of Immigration Appeals (BIA) affirmed. On petition for review of the BIA’s decision, the U.S. Court of Appeals for the Fourth Circuit (per Winter, J.) reversed the order denying the motion to reopen, remanded the case for determination on the merits of whether petitioner is eligible to be granted political asylum, and held: that petitioner had made a prima facie case that he merits refugee status and thus consideration for political asylum on the basis of his sincere refusal to participate in actions of the Salvadoran Armed Forces condemned by the international community and the likelihood that he would be punished for his refusal to serve with those forces. Judge Murnaghan filed a concurring opinion. On January 5, 1989, the Fourth Circuit granted the Justice Department’s request for a rehearing en banc based on the Department’s position that the decision presented an issue of “exceptional importance” and could have “an enormous potential impact” on U.S. asylum law.
1 Alvarez v. INS, No. 85-1221 (4th Cir. Jan. 24, 1986).
2 858F.2d210, 216.
3 Id. at 218 (quoting the BIA Interim Decision).
4 W. at 214.
5 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, UN Doc. HCR/PRO/4 (1979).
6 858 F.2d at 216.
7 Id.
8 Id. at 220 (Murnaghan, J., concurring).
9 Id. at 218.
10 Id.
11 Id.
12 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.
13 858 F.2d at 219.
14 See, e.g., Meron, The Geneva Conventions as Customary Law, 81 AJIL 348 (1987).
15 858 F.2d at 218 (quoting Handbook, supra note 5, para. 171).
16 GA Res. 217A (III), UN Doc. A/810, at 71 (1948).
17 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, Un Doc. A/6316 (1966).
18 858 F.2d at 219 n.7.
19 Nor did the court consider their possible status as jus cogens. See Meron, On a Hierarchy of International Human Rights, 80 AJIL 1,15 (1986).
20 858 F.2d at 219 n.7.
21 See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert, denied sub nom. Ferrer-Mazorra v. Meese, 107 S.Ct. 289 (1986); Agora: May the President Violate Customary International Law?, 80 AJIL 913 (1986); Agora: May the President Violate Customary International Law? (Cont'd), 81 AJIL 371 (1987).
22 See Lillich, The Role of Domestic Courts in Enforcing International Human Rights Law, in Guide to International Human Rights Practice 223, 236–38 (H. Hannum ed. 1984).