Can I get asylum in the U.S. if I was a soldier in my country?

Whether a military deserter may be barred from asylum as a persecutor of others.

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Question

I am a citizen of El Salvador who was forcefully recruited into the military when I was 15. This was in the late 1980s and there was a terrible war in my country. My job in the military was to recruit other young men. I did this by visiting parks and soccer fields with other solders and forcing whoever was there to join the army. Before fleeing to the U.S. I brought in close to ten recruits. Am I able to get asylum in the U.S.?

Answer

Despite the fact that you entered the military by no choice of your own, you cannot be considered a refugee if you are a persecutor. This means that you are barred from receiving asylum if you have persecuted anyone on account of his or her race, religion, nationality, membership in a particular social group, or political opinion (see the Immigration and Nationality Act at I.N.A. Section 101(a)(42)).

You will be considered a persecutor of others if you participated in the persecution in any way. To understand whether your role in the military is persecution, an Immigration Judge or Asylum Officer will ask you questions about your time in the military. They may ask you to describe your duties and whether you captured people and questioned them, and whether you knew what ultimately happened to those you recruited.

If you never harmed anyone you captured or questioned, you could still be considered a persecutor if a prisoner was targeted because of his or her race, religion, nationality, membership in a particular social group, or political opinion and you knew that the person was eventually tortured or killed. If you knew that a person you captured was persecuted, you can be found to have assisted in the persecution of others. Assisting in the persecution of others makes you a persecutor as well.

Forcefully recruiting young men to the military is a negative factor in your case. However, from your description, it seems as though you did not recruit these young men on account of any of the five grounds in the I.N.A. If you can convince the Immigration Judge or Asylum Officer that you recruited whoever was in the park and you did not target anyone because of his or her race, religion, nationality, membership in a particular social group, or political opinion, you will probably not be considered a persecutor.

It is important that you submit an affidavit with your asylum application explaining why you are not a persecutor. You should also include the details of your own recruitment in the affidavit since that explains why you were in the military to begin with.

Granting asylum is in the discretion of the judge or officer. This means that the judge or officer can still deny your application even if he or she finds you are not a persecutor. It is possible that a judge or officer will consider the forceful recruitment of young men to be a negative factor and deny asylum even though you are not, legally speaking, a persecutor.

If there is any chance that you might be viewed as a persecutor, it is a good idea to consult with an attorney experienced in asylum and refugee law before deciding to file an application for asylum.

by: , J.D., LL.M.

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