M.A. A26851062 v. U.S. Immigration & Naturalization Service , 899 F.2d 304 ( 1990 )

WILKINSON, Circuit Judge:

In this case we consider the scope of the Board of Immigration Appeals’ authority to deny an alien’s request for asylum in the context of a motion to reopen deportation proceedings. On the eve of deportation, petitioner asked that his deportation proceedings be reopened so that he could request asylum under the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102 (1980), based on his fear of persecution for refusing to serve in the Salvadoran military. An immigration judge denied petitioner’s motion to reopen because he failed to present a prima facie ease of eligibility for asylum, a reopening prerequisite. The Board of Immigration Appeals affirmed, and petitioner sought review from this court.

We hold that the Board’s decision should be reviewed under an abuse of discretion standard, and that the Board did not abuse its discretion in denying petitioner’s motion to reopen. We thus deny the petition and affirm the decision of the Board.

I.

Petitioner M.A., a 31 year-old citizen of El Salvador, entered the United States illegally in February 1982. The Immigration and Naturalization Service (INS) brought deportation proceedings against him on February 22, 1984. At his deportation hearing, M.A. admitted that he entered the United States without inspection, conceded deportability, and requested that he be allowed to depart voluntarily. Through counsel, M.A. specifically indicated that El Salvador was his country of choice for deportation and that he had no fear of returning there. The immigration judge granted M.A. voluntary departure until September 16, 1984. However, M.A. failed to leave by then, and on January 15, 1985, the INS apprehended him for failing to report for deportation.

On January 21, the day before his scheduled deportation, M.A. claimed for the first time that he feared persecution in El Salvador based on his political and moral views. Through new counsel, M.A. filed a motion to reopen deportation proceedings and applied for asylum. The motion to reopen claimed ineffective assistance of former counsel as the reason for not presenting the asylum application before the close of deportation proceedings. The motion also requested 10 days to augment the asylum claim. The following day, an immigration judge denied the motion to reopen. The Board of Immigration Appeals (BIA) affirmed. However, this court reversed the BIA, holding that respondent had given a reasonable explanation for his failure to apply for asylum earlier, and that the immigration judge abused his discretion in denying M.A. a reasonable extension of time to supplement the motion to reopen.

On remand, M.A. presented a new petition for reopening with a renewed application for asylum and additional supporting evidence. In the petition, M.A. claimed that he left El Salvador “to avoid serving in its violent military.” He alleged that the Salvadoran military, as part of the deliberate policy of the Salvadoran government, commits “systematic and widespread” human rights violations against the citizens of El Salvador. To corroborate his charges, M.A. relied heavily on numerous reports by private agencies and news organizations regarding the human rights violations perpetrated by the Salvadoran army. M.A. also claimed to have witnessed the results of this violence when he once passed through a morgue and saw “mutilated, decapitated, bruised, and gunned bodies.”

Because of his conscientious political objection to these atrocities, M.A. desires to avoid military service in El Salvador. His claim for asylum rests on his fear that if he returns to El Salvador and fails to serve in the military, he will be tortured and possibly killed as an opposition sympathizer. To substantiate this fear, M.A. reiterates his general allegations about military violence in El Salvador. He further states that three relatives have been killed in connection with the Salvadoran conflict: one cousin was killed by the army for participation in an anti-government demonstration; another cousin was killed by the guerilla army; and his brother-in-law’s brother was killed by a “death squad” for providing food to guerillas. In addition, he alleges that a member of the civilian patrol once threatened him and that he was twice beaten by soldiers.

The immigration judge denied the new motion to reopen because M.A. failed to make out a prima facie case for asylum eligibility, a prerequisite to reopening. After considering M.A.’s allegations in detail, the BIA agreed with the immigration judge and affirmed its order. The Board first noted the rule, recognized domestically and in international law, that it is not persecution for a country to require military service of its citizens. The Board then reasoned that M.A. failed to come within one of the narrow exceptions to this rule because he failed to show that the allegedly violent incidents to which he objected either represented the policy of the Salvadoran government or had been condemned by recognized governmental bodies. It also held that he failed to show that his military service would force him to be associated with the alleged atrocities, or that his refusal to serve would result in disproportionately severe punishment. Finally, the Board ruled that petitioner’s claims were insufficient to make out the prima facie case of eligibility needed to reopen his proceedings because they lacked factual support and thus were “simply too speculative.”

A panel of this court reversed the order denying reopening, holding that petitioner’s allegations established the prima facie eligibility needed to justify reopening. M.A. A26851062 v. INS, 858 F.2d 210 (4th Cir. 1988). This court granted rehearing en banc, and we now affirm the judgment of the BIA.

II.

We must address at the outset the standard that governs our review of the Board’s decision to deny M.A.’s motion to reopen his deportation proceedings. We hold that Board denials of motions to reopen for failure to establish a prima facie case of eligibility for asylum are to be reviewed under an abuse of discretion standard.

M.A. requests asylum under the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102 (1980), which amended the Immigration and Nationality Act of 1952 (“INA”), Pub.L. No. 82-414, 66 Stat. 163. The Refugee Act of 1980 established for the first time a statutory basis for the grant of asylum to refugees already within the United States. See generally Anker & Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L.Rev. 9, 11 (1981). Section 208(a) of the amended INA, 8 U.S.C. § 1158(a), provides the Attorney General and his delegates ¹ with discretion to grant asylum to an alien present in the United States if the alien satisfies the statutory definition of refugee.²

The INA defines “refugee” as one who is unable or unwilling to return to his native country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....” 8 U.S.C. § 1101(a)(42)(A).³ Thus, asylum involves a two stage process: first, the immigration authorities determine statutory eligibility based on the “well-founded fear of persecution” standard; and second, if statutory eligibility is established, the Attorney General has discretion either to grant or to deny the alien’s request for asylum. 8 U.S.C. § 1158(a).

It is significant that M.A. requested asylum in the context of a motion to reopen finalized deportation proceedings. The immigration statutes do not require or even contemplate reopening procedures; instead, the Attorney General established them through regulations promulgated in his discretion under the immigration statutes. INS v. Rios-Pineda, 471 U.S. 444, 446, 105 S.Ct. 2098, 2100, 85 L.Ed.2d 452 (1985). When the Board adjudges a motion to reopen, it considers not the merits of the underlying claim, but rather whether new developments warrant rehearing the merits of that claim.

Under the pertinent regulations, a motion to reopen “shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing.” 8 C.F.R. § 3.2 (1989); see also 8 C.F.R. § 3.8(a) (1989) (“Motions to reopen shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material”). These regulations “apply to all motions to reopen, regardless of the underlying substantive basis of the alien’s claim.” INS v. Abudu, 485 U.S. 94, 105-06 n. 10, 108 S.Ct. 904, 912, n. 10, 99 L.Ed.2d 90 (1988). In addition, a petitioner like M.A., who requests reopening on the basis of a request for asylum, must “reasonably explain the failure to request asylum prior to the completion of the exclusion or deportation proceeding.” 8 C.F.R. § 208.11 (1989). See Bahramnia v. INS, 782 F.2d 1243, 1245 (5th Cir.1986) (motion to reopen to request asylum must satisfy §§ 3.2, 3.8, and 208.11).

Pursuant to these regulations, the BIA can deny a motion to reopen on any of three grounds:

First, it may hold that the movant has not established a prima facie case for the underlying substantive relief sought.... Second, the BIA may hold that the mov-ant has not introduced previously unavailable, material evidence, 8 CFR § 3.2, or, in an asylum application case, that the movant has not reasonably explained his failure to apply for asylum initially, 8 CFR § 208.11_ Third, in cases in which the ultimate grant of relief is discretionary [including asylum cases] ... the BIA may leap ahead, as it were, over the two threshold concerns (prima facie case and new evidence/reasonable explanation), and simply determine that even if they were met, the movant would not be entitled to the discretionary grant of relief.

Abudu, 485 U.S. at 104-05, 108 S.Ct. at 911-12.

The Supreme Court has held that abuse of discretion is the appropriate standard of review for denials under the second and third grounds above. See id. at 105, 108 S.Ct. at 912. This case, though, involves the first ground stated above — a denial of á motion to reopen based on the alien’s failure to establish prima facie eligibility. The Abudu Court explicitly declined to address the standard of review for such a denial. Id. at 104, 108 S.Ct. at 911. Here we address that question directly, and for the reasons stated below, we conclude that a BIA denial of a motion to reopen for lack of prima facie eligibility should be reviewed, like denials of motions to reopen deportation proceedings based on other grounds, under an abuse of discretion standard.

The reasons given by the Supreme Court for reviewing denials of reopening based on other grounds under an abuse of discretion standard apply with equal force to denials of reopening based on a lack of prima facie eligibility. First, as the language of the regulations makes manifest, reopening is an extraordinary remedy; the reopening procedures are designed to allow the Board to suspend final judgment and address the merits of an immigration claim in only the most clearly meritorious eases. Cf. INS v. Jong Ha Wang, 450 U.S. 139, 145, 101 S.Ct. 1027, 1031, 67 L.Ed.2d 123 (1981) (BIA denial of reopening should not be casually reversed since “the Government has a legitimate interest in creating official procedures for handling motions to reopen deportation proceedings so as readily to identify those cases raising new and meritorious considerations”). Accordingly, 8 C.F.R. § 3.2, which governs all motions to reopen before the Board, is phrased negatively to state that motions to reopen “shall not be granted” unless certain showings are made. As the Supreme Court has recognized, the regulation “does not affirmatively require the Board to reopen the proceedings under any particular condition.” Jong Ha Wang, 450 U.S. at 143-44 n. 5, 101 S.Ct. at 1030-31 n. 5.

Because the immigration statutes do not contemplate reopening, and because “the Attorney General’s regulations ... plainly disfavor motions to reopen,” Abudu, 485 U.S. at 110, 108 S.Ct. at 915, a denial under the reopening regulations must be reviewed with extreme deference. See Sang Seup Shin v. INS, 750 F.2d 122, 131 (D.C. Cir.1984) (Starr, J., dissenting) (“The Board’s discretion ... is at its zenith in making a discretionary procedural determination [under the reopening regulations] which Congress did not see fit to enact.”). Broad deference is especially warranted here, where the basis of the denial — failure to establish prima facie eligibility for political asylum — is itself not explicitly provided for in the regulations, but rather is the Board’s interpretation of the requirements of the regulations. See Dolores v. INS, 772 F.2d 223, 225 (6th Cir.1985). As an interpretation of its own regulations, the Board’s “prima facie” basis for denying a motion to reopen is entitled to extraordinary respect. See Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22 (1980).

The generous deference we must normally accord an agency’s interpretations of its own regulations is even more appropriate here because the regulations concern reopening of completed administrative proceedings. Motions to reopen administrative proceedings are strongly disfavored because of the threat they pose to finality. See Abudu, 485 U.S. at 107-08, 108 S.Ct. at 913; Rios-Pineda, 471 U.S. at 450-51, 105 S.Ct. at 2102-03, Jong Ha Wang, 450 U.S. at 143-44 & n. 5, 101 S.Ct. at 1030-31 & n. 5. The Abudu Court explained this “strong public interest in bringing litigation to a close” as follows:

If INS discretion is to mean anything, it must be that the INS has some latitude in deciding when to reopen a case. The INS should have the right to be restrictive. Granting such motions too freely will permit endless delay of deportation by aliens creative and fertile enough to continuously produce new and material facts sufficient to establish a prima facie case.

Abudu, 485 U.S. at 107-08, 108 S.Ct. at 913 (quoting Villena v. INS, 622 F.2d 1352, 1362 (9th Cir.1980) (en banc) (Wallace, J., dissenting)). The Abudu Court likened a motion to reopen in the deportation context to a petition for rehearing or a motion for new trial on the basis of newly discovered evidence, 485 U.S. at 107, 108 S.Ct. at 913, both of which are reviewed with extreme caution and deference. See, e.g., Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 294-96, 95 S.Ct. 438, 446-47, 42 L.Ed.2d 447 (1974) (party seeking reopening of an administrative proceeding bears a “heavy burden,” and the courts must not order reopening “except in the most extraordinary circumstances”); United States v. Tucker, 836 F.2d 334, 336 (7th Cir.1988) (new trial only if newly discovered evidence “would probably lead to an acquittal in the event of a trial”).

Finally, in reviewing the Board’s denial of a motion to reopen deportation proceedings, we must be sensitive to the inherently political nature of the decision whether or not to deport. “[T]he INS is the agency primarily charged by Congress to implement the public policy underlying [the immigration] laws” and “[appropriate deference must be accorded to its decisions.” INS v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 284, 74 L.Ed.2d 12 (1983). “INS officials must exercise especially sensitive political functions that implicate questions of foreign relations, and therefore the reasons for giving deference to agency decisions on petitions for reopening ... in other administrative contexts apply with even greater force in the INS context.” Abudu, 485 U.S. at 110, 108 S.Ct. at 195 (citation omitted).

The arguments for a deferential abuse of discretion standard are thus multitudinous and compelling. Nonetheless, petitioner and amici suggest that because the Board’s denial of a motion to reopen based on a lack of prima facie eligibility turns on application of the statutory standard of asylum eligibility, it should be reviewed de novo.

This argument lacks merit. The term “prima facie case” is not a buzzword that requires us to ignore the procedural posture of the case — a motion to reopen completed proceedings pursuant to regulations passed by the grace of the implementing agency — and go back to square one. It is true that the “prima facie” standard used to determine whether a decision should be reopened may turn on many of the same factors used to determine prima facie eligibility under the statute. However, in the reopening context the statutory language is not used to determine statutory eligibility for asylum, the purpose for which Congress enacted the “well-founded fear” standard. Instead, the immigration authorities have interpreted their reopening regulations to incorporate statutory language for a purpose specific to the regulations themselves, namely, the determination of whether new claims are sufficiently meritorious to warrant reconsidering a completed case.

The Board has made clear that the “pri-ma facie” test in the reopening context is different from the prima facie test in an original proceeding, is limited to the regulations themselves, and is more difficult to satisfy than statutory eligibility:

The prima facie showing [in the reopening context] includes not only that there is a reasonable likelihood that the statutory requirements for the relief sought are satisfied, but also a reasonable likelihood that a grant of relief may be warranted as a matter of discretion.

Marcello v. INS, 694 F.2d 1033, 1035 (5th Cir.1983) (emphasis added), citing Matter of Rodriguez, Interim Decision No. 2727 (BIA 1979); see also Matter of Reyes, 18 I & N Dec. 249 (BIA 1982). There is nothing incongruous about the Board interpreting its regulations to require that a prima facie showing in a reopening context be more demanding than the statutory standard in an original proceeding, for it is well established that under its reopening regulations “the BIA has discretion to deny a motion to reopen even if the alien has made out a prima facie case for relief.” Abudu, 485 U.S. at 105-06, 108 S.Ct. at 911-12. Indeed, even though it did not explicitly rule on the issue, the Supreme Court in Abudu recognized that “the prima facie case issue on reopening” can include discretionary factors and can be more difficult to satisfy than a prima facie case in an original proceeding. Id. at 109 n. 14, 111, 108 S.Ct. at 914 n. 14, 915.

We thus refuse to impose the proposed de novo standard of review on the Board’s denials of reopening based on “prima fa-cie” grounds. We must affirm the Board’s denial of a motion to reopen unless it “(1) was made without a rational explanation, (2) inexplicably departed from established policies, or (3) rested on an impermissible basis such as invidious discrimination against a particular race or group.” Oviawe v. INS, 853 F.2d 1428, 1431 (7th Cir.1988) (citing Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.1985)); see also Williams v. INS, 773 F.2d 8, 9 (1st Cir.1985); Balani v. INS, 669 F.2d 1157, 1161 (6th Cir.1982). This standard is not difficult to satisfy: “The [BIA’s] decision need only be reasoned, not convincing.” El-Gharabli v. INS, 796 F.2d 935, 937 (7th Cir.1986).

The principles of discretion discussed above also lead us to reject petitioner’s formulation of his evidentiary burden. Petitioner argues, and the original panel held, 858 F.2d at 216, that in considering a motion to reopen, the Board and this court must not only accept petitioner’s alleged facts as true, but must also view them in the light most favorable to him, drawing every inference in his favor. This standard, which is more akin to summary judgment than reopening, is inappropriate here. The Abudu Court stated that “an alien who has already been found deportable has a much heavier burden when he first advances his request for asylum in a motion to reopen.” 485 U.S. at 111, 108 S.Ct. at 915. Accordingly, Abudu rejected the summary judgment model in reopening procedures and disclaimed the notion “that all ambiguities in the factual averments must be resolved in the movant’s favor.” Id. at 109-10, 108 S.Ct. at 914-15. Any other rule would effectively overwhelm the immigration authorities, perhaps the most heavily burdened officers in our government, by allowing aliens to bring eleventh hour appeals in an attempt to delay deportation. See Rios-Pinada, 471 U.S. at 450, 105 S.Ct. at 2102 (aliens have substantial incentives to prolong litigation for the sake of delaying deportation). Accordingly, we reject petitioner’s argument that, in a reopening context, every inference must be drawn in his favor.

With these principles in mind, we turn to consider the Board’s decision.

III.

The Board held that M.A. failed to establish the prima facie case of a “well-founded fear of persecution” needed to warrant reopening because he failed to show that a reasonable person in his circumstances could have feared persecution if he were returned to El Salvador. We hold that the adoption of the “reasonable person” standard was entirely appropriate and that the Board did not abuse its discretion in applying the standard to the facts of M.A.’s case.

A.

As the Supreme Court has noted, the term “well-founded fear” requires an examination both of the subjective feelings of the applicant for asylum and the objective reasons for the applicant’s fear. INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). The Board applied a “reasonable person” approach to define the nature of the objective evidence that must be adduced to render the subjective fear of persecution “well-founded.” Under this approach, an applicant for asylum establishes a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution if he were returned to his native country. See Matter of Mogharrabi, Interim Decision No. 3028 (BIA 1987); Guevara Flores v. INS, 786 F.2d 1242 (5th Cir.1986).

The “reasonable person” approach is faithful to the language of the Refugee Act. The statutory requirement that M.A.’s fear be “well-founded” means that his fear “must have some basis in the reality of the circumstances; mere irrational apprehension is insufficient_” Guevara Flores, 786 F.2d at 1249; see also Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987). To validate the “well-foundedness” of his fear, M.A. must set forth specific, concrete facts. See, e.g., Sanchez-Trujillo v. INS, 801 F.2d 1571, 1574 (9th Cir.1986). These specific allegations must show a fear of “persecution.” The Refugee Act tightly defines the parameters of cognizable persecution. It allows eligibility for political asylum only if the persecution M.A. fears takes place “on account of” his “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

The Board’s “reasonable person” test is also consistent with the pronouncements of the Supreme Court. A reasonable person could set forth objective evidence of a well-founded fear of persecution without having to show that persecution will probably result. Thus the “reasonable person” approach respects the Supreme Court’s admonition that “[o]ne can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.” Cardoza-Fonseca, 480 U.S. at 431, 107 S.Ct. at 1213. See also INS v. Stevic, 467 U.S. 407, 424-25, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984) (“[S]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.”).

Finally, this circuit has already adopted much the same approach to the term “well-founded fear” as the Board:

[T]he “well-founded fear” test requires the alien to establish that he has a subjective fear of returning and that this fear has enough of a basis in specific facts to be considered “well-founded” upon objective evaluation. The alien must offer “specific facts ” detailing a “good reason ” to fear persecution, or establishing an objectively reasonable “expectation of persecution.”

Cruz-Lopez v. INS, 802 F.2d 1518, 1522 (4th Cir.1986) (citations omitted) (emphasis added).⁴ See also Carcamo-Flores v. INS, 805 F.2d 60, 68 (2d Cir.1986); Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984).

B.

The Board did not abuse its discretion in denying M.A.’s motion to reopen for failure to establish prima facie eligibility for political asylum. It properly focused upon the fact that, at bottom, M.A. was a draft resister who claimed that his justified refusal to serve in the Salvadoran military would result in his persecution. International law and Board precedent are very clear that a sovereign nation enjoys the right to enforce its laws of conscription, and that penalties for evasion are not considered persecution. See Selective Draft Law Cases, 245 U.S. 366, 378, 38 S.Ct. 159, 162, 62 L.Ed. 349 (1918). See also Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status § 167 (Geneva, 1979) (“Handbook ”).⁵

The Board also properly acknowledged that an exception to this rule will be recognized and an alien will be considered eligible for asylum in those rare cases in which either (1) the alien would be associated with a military whose acts are condemned by the international community as contrary to the basic rules of human conduct, or (2) refusal to serve in the military results not in normal draft evasion penalties, but rather in disproportionately severe punishment on account of one of the five grounds enumerated in section 1101(a)(42)(A) of the Refugee Act. See Handbook §§ 169, 171. As we show in the remainder of this subsection and in the next, the Board was clearly acting within its discretion in ruling that M.A.’s allegations fell short of the prima facie showing needed to come within either exception.

M.A. claims that the military in which he might be forced to serve has committed acts that are contrary to the basic rules of human conduct. The Board was within its discretion in rejecting this claim based on M.A.’s failure to present cognizable evidence that the alleged atrocities he wanted to avoid were perpetrated as a result of the policies of the Salvadoran military or government. Misconduct by renegade military units is almost inevitable during times of war, especially revolutionary war, and a country as torn as El Salvador will predictably spawn more than its share of poignant incidents. Without a requirement that the violence be connected with official governmental policy, however, any male alien of draft age from just about any country experiencing civil strife could establish a well-founded fear of persecution. The Refugee Act does not reach this broadly. See Sanchez-Trujillo v. INS, 801 F.2d at 1577.

M.A. did, of course, bring forth evidence from prominent private organizations such as Amnesty International and Americas Watch. These organizations have condemned the Salvadoran military and security forces for committing violent acts against all sectors of Salvadoran society. They report that the Salvadoran military engages in “extrajudicial execution on noncombatant civilians, individual death squad-style killings, ‘disappearances,’ arbitrary detention and torture.” Moreover, they contend that the military violence is carried out pursuant to a deliberate policy of the Salvadoran government designed to further that government’s political interests.

The Board refused to recognize these private reports and instead suggested, consistent with the Handbook § 171 (violent action must be “condemned by the international community as contrary to basic rules of human conduct”), that such condemnation must at a minimum come from “recognized international governmental bodies.” Petitioner and amici argue, however, and the panel agreed, 858 F.2d at 218, not only that the atrocities need not be the policy of the Salvadoran government, but also that an alien need not wait for official condemnation by governmental bodies of any kind before the atrocities can be considered as the basis for a “well-founded fear.”

We disagree. A standard of asylum eligibility based solely on pronouncements of private organizations or the news media is problematic almost to the point of being non-justiciable. Neither petitioner nor ami-ci state the extent of general violence by military units needed to be reported by private groups in order to constitute “international condemnation.” We do not know how courts are expected to evaluate the proffered explanations for various incidents of military activity or to gauge the extent to which such activity may or may not implicate official policies. We are also uncertain of the criteria by which courts would analyze the reports of private groups. Presumably, if any private organization condemns the acts of some members of the military in a country at war, these condemnations would serve as the basis for asylum eligibility. Although we do not wish to disparage the work of private investigative bodies in exposing inhumane practices, these organizations may have their own agendas and concerns, and their condemnations are virtually omnipresent. Taken alone, they do not suffice to overturn the Board’s judgment in M.A.’s case.⁶ See Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir.1987) (“documentary evidence on the tragic and widespread danger of violence and human rights violations affecting all Salvadorans ... is not enough to establish persecution”).

It is, of course, the role of private organizations and news reports to energize the political branches.' But that is quite a different thing from requiring the courts in each instance to evaluate independently the accusations of private organizations to determine whether they set forth conditions adequate to overturn the Board’s discretionary judgment. This responsibility would require us to make immigration decisions based on our own implicit approval or disapproval of U.S. foreign policy and the acts of other nations. Courts could be put in the position of ruling, as a matter of law, that a government whose actions have not been condemned by international governmental bodies engages in persecution against its citizens. “[T]o accept the claim of someone to qualify for refugee status is publicly to accuse some other state of engaging in persecution.” Whelan, Principles of U.S. Immigration Policy, 44 U.Pitt.L.Rev. 447, 479-80 (1983). Such a role for the courts would transform the political asylum process from a method of individual sanctuary left largely to the political branches into a vehicle for foreign policy debates in the courts.

The federal courts lack the expertise, and, more importantly, the constitutional authority, to assume such a role. Numerous Supreme Court decisions recognize the intimate connection between immigration decisions and foreign policy, and, based on separation of powers principles, reject a significant role for the courts in these political matters. See, e.g., Abudu, 485 U.S. at 110, 108 S.Ct. at 914; Hampton v. Mow Sun Wong, 426 U.S. 88, 101-02 n. 21, 96 S.Ct. 1895, 1904-05, 48 L.Ed.2d 495 (1976); Kleindienst v. Mandel, 408 U.S. 753, 767, 92 S.Ct. 2576, 2584, 33 L.Ed.2d 683 (1972); Lem Moon Sing v. United States, 158 U.S. 538, 547, 15 S.Ct. 967, 970, 39 L.Ed. 1082 (1895); Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 1022, 37 L.Ed. 905 (1893). Many of the same “ ‘constitutional’ underpinnings” that inform the act of state doctrine, see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423, 84 S.Ct. 923, 937, 11 L.Ed.2d 804 (1964), which restrains federal courts from examining the validity of the public acts of a sovereign government executed within its territory, see Restatement (Third) of Foreign Relations Law § 443 (1987), apply here. See Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986) (rejecting an asylum claim similar to M.A.’s because “[ajbsent exceptional circumstances, it is not the place of the judiciary to evaluate the political justifications of the actions of foreign governments”).

We thus reject petitioner’s invitation to join the political branches in the articulation of foreign policy under the rubric of discerning a “well-founded fear of persecution.” The Board’s suggestion that the violence be condemned at a minimum by international governmental bodies renders inapplicable the cases cited by M.A. which hold that a showing of persecution by the government is unnecessary if the government cannot control the group perpetrating the violence. See, e.g., Bolanos-Hernandez v. INS, 767 F.2d 1277, 1284 (9th Cir. 1985); McMullen v. INS, 658 F.2d 1312, 1315 n. 2 (9th Cir. 1981). Unless the government’s non-action has been condemned by a recognized public governmental body, the inquiry into the government's “control” over forces within its borders would place us in precisely the political posture that we have attempted to avoid.

It is well, in dealing with what is essentially an evidentiary matter, that the standards laid down by courts not be hard and fast. It would be imprudent for us to suggest that an absence of official international condemnation must invariably defeat each and every claim for political asylum. Similarly, we do not hold that the presence of such condemnation will automatically establish such a claim. To speak in such absolutes would be to substitute our judgment for that of the Board. To formulate general legal prescriptions for all the claims of asylum that might conceivably arise would also preempt the Board in assessing the evidence in such cases. The term “well-founded fear ... can only be given concrete meaning through a process of case-by-case adjudication,” and “the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the statutory program.” Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. at 1221. The fact that the Attorney General has ultimate discretion to deny an application for asylum thus does not detract from our duty to pay proper deference to his judgments — and those of his delegates — concerning asylum eligibility. Here we decline to disturb their method of assessing M.A.’s grievances about the Salvadoran government.

C.

The Board finally rejected M.A.’s petition on the ground that it failed to bring forth evidence to show that his refusal to serve in the army would result in persecution. As the Board stated the matter, “[ajlthough [M.A.] has presented evidence to show that many have been murdered by so-called death squads for suspected anti-government sympathies, he has not supported the contention that mere failure to serve in the military is the kind of activity which draws the attention of the persons who carry out these killings.”

In short, M.A. has failed to show that he would be singled out for his refusal to serve. See Sanchez-Trujillo, 801 F.2d at 1574; Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984). He presents no evidence whatsoever that either the government or the guerillas have a particular interest in him. At most, his claims amount to a fear that he may be the object of the general violence incidental to the civil war in El Salvador. However, the Refugee Act of 1980 does not provide asylum eligibility for anyone who may be subject to violence in his home country. Rather, the persecution for which the Act provides asylum must be “on account of” one of five impermissible reasons. 8 U.S.C. § 1101(a)(42)(A). For this reason, courts have consistently rejected applications for political asylum based on fear grounded in general violence or unrest in one’s native country. See, e.g., Mendez-Efrain, 813 F.2d 279, 282 (9th Cir.1987); Kaveh-Haghigy, 783 F.2d at 1323.

M.A.’s own allegations make clear that his fear is grounded in nothing more than the generally violent conditions extant in El Salvador. In substantiating the basis for his “well-founded fear,” M.A. noted that he had relatives killed by both the Salvadoran army and the guerillas. The threat he fears thus appears endemic to the entire Salvadoran population; it certainly does not amount to a specific threat directed towards him on account of an impermissible statutory factor. Similarly, M.A.’s alleged beatings, though deeply unfortunate, do not constitute persecution as it has been defined by the Congress in 8 U.S.C. § 1101(a)(42)(A) (recognizing asylum eligibility only for persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion”). We have no quarrel, of course, with M.A.'s assertion that “the significance of a specific threat to an individual's life or freedom is not lessened by the fact that the individual resides in a country where the lives and freedom of large numbers of people are threatened,” citing Bolanos-Hernandez, 767 F.2d at 1285. What we reject is the notion, pressed by petitioner and accepted by the panel, that assertions like M.A.’s of general violence alone can satisfy the requirement of an individualized threat of persecution. See Ganjour v. INS, 796 F.2d 832, 837 (5th Cir.1986) (general information about violent conditions no substitute for “specific information relating to ... fear of persecution”). M.A.’s petition fails to allege an individualized threat of persecution with even the specificity of the petitioner in Cruz-Lopez, whose asylum eligibility claim, in a procedural posture much more favorable to the alien than here, we rejected. 802 F.2d at 1522.

In addition, M.A. fails to present any evidence that he is a member of a group that faces some likelihood of persecution. He does not claim to be a member of any political organization, and concedes that he has “not ... engaged in a lot of political activity.” Moreover, his potential membership in the class of draft-eligible males does not suffice. The Board’s decision is consistent with numerous court of appeals decisions that reject claims by military-age males that they constitute a “particular social group” within the meaning of the Refugee Act. See, e.g., Sanchez-Trujillo, 801 F.2d at 1575-77. These decisions reflect the courts’ concern over both the incentives for draft-age males to raise asylum claims and the impact on our relations with foreign nations if we were to overrule the Board’s decision and shelter aliens seeking to avoid military obligations abroad. See id. at 1576-77 (rejecting claim that military age males qualify for asylum as a social group because to so hold “would be tantamount to extending refugee status to every alien displaced by general conditions of unrest or violence in his or her home country”).

Finally, M.A. claims that he is “not ... strongly politically oriented” and does “not want to fight for either side in this civil war.” His status as a political “neutral” is, however, irrelevant. It is unclear whether neutrality can be considered a “political opinion” within the meaning of the Refugee Act. The Ninth Circuit has ruled that it can in some circumstances, see Bolanos-Hernandez, 767 F.2d at 1286, and this circuit has declined either to accept or reject the position, Cruz-Lopez, 802 F.2d at 1520 n. 3. However, even the Ninth Circuit requires that a person seeking to establish a “well-founded fear” on account of an opinion of neutrality must show that he has affirmatively made a decision to remain neutral, and has received some threat or could be singled out for persecution on account of the opinion of neutrality. See Arteaga v. INS, 836 F.2d 1227, 1231-32 & n. 8 (9th Cir.1988); see also Matter of Vigil, Interim Decision No. 3050 (BIA 1988). M.A. has brought forward no evidence to show that the persecution he fears — if indeed the object of his fear can appropriately be called persecution, rather than random violence — has anything to do with his “neutral” political opinions.

IV.

In essence, M.A.’s claims reflect a distaste for the Salvadoran government and a fear of the general violence in that country as a result of its civil conflict. In rejecting his claims, we do not mean to minimize the conditions existing in El Salvador, or the suffering that civil strife has brought upon the people of that country. One may sympathize with M.A.’s desire not to return to war-torn El Salvador, see Cruz-Lopez, 802 F.2d at 1519, but the Refugee Act does not recognize asylum eligibility for those in his situation.

V.

For the foregoing reasons, this petition for review is denied and the decision of the Board of Immigration Appeals is AFFIRMED.

1 . Pursuant to Congressional authorization in 8 U.S.C. § 1103, the Attorney General has delegated his authority and discretion to reopen deportation proceedings to the Commissioner of the INS, 8 C.F.R. § 2.1, and to immigration judges, 8 C.F.R. § 242.8(a), whose decisions are reviewable by the BIA, 8 C.F.R. § 242.21.

2 . Title 8 U.S.C. § 1158(a) provides:

The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.

3 .Title 8 U.S.C. § 1101(a)(42)(A) defines the term "refugee” to mean:

any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ....

4 . Although Cruz-Lopez was decided prior to the Supreme Court decision in Cardoza-Fonseca, it analyzed the requirement of "objective reasonableness” inherent in the term "well-founded fear” on the basis of the "generous” standard of proof later accepted in Cardoza-Fonseca. See 802 F.2d at 1521-22 & n. 5.

5 . The Handbook provides "significant guidance” in construing the United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577 (1967), compliance with which was a "primary purpose[ ]” of the Refugee Act of 1980. Cardoza-Fonseca, 480 U.S. at 436, 107 S.Ct. at 1216. Although the Handbook is not legally binding, the Board and the courts frequently rely on it when interpreting the Refugee Act. Id. at 438-39 & n. 22, 107 S.Ct. at 1217 & n. 22.

6 . The dissent’s charge that the majority considers the reports of private organizations to be "biased, standardless, and of little probative value," infra page 323 n. 9, is wholly misplaced. We respect the role of these organizations in documenting human rights abuses, but we are not about to use these reports as the basis for overturning the judgment of the Board or for issuing judicial condemnations of the conduct of foreign governments, especially where the Board itself found no evidence of international governmental condemnation in this case. As to "standardlessness," we have never said that the reports themselves are standardless, but rather that the use of these reports to overturn the Board here would leave judges in a world that is barren of guidance for the legal judgments they purport to reach. As to the probativeness of this evidence, we do not say that the Board should not consider it, only that its method of evidentiary assessment did not constitute the abuse of discretion that would justify our overturning its judgment. The dissent persists in ignoring the fact that this case comes to us in a reopening posture. More fundamentally, in issuing its invitation to correct what it perceives as "the politicization of the asylum process,” infra page 319, the dissent ignores the difference between political declarations proffered by the judicial branch and those of the Congress and the Executive.