W. (R.D.) (Re), Convention Refugee Determination Decisions

 

W. (R.D.) (Re), Convention Refugee Determination Decisions [1990] C.R.D.D. No. 245 No. T89-03965

Immigration and Refugee Board of Canada
Convention Refugee Determination Division
Toronto, Ontario Panel: I.F. Liebich and E.R. Smith In camera Heard: October xx, 1989, January xx, 1990, February xx, 1990, March xx, 1990, March xx, 1990 Decision: June 1, 1990 El Salvador (SLV)--Negative--Males--Agents of persecution--Civil war--Detention--Exclusion clauses--Guerilla fighters--military service--Persecution for political opinion--Political parties--Political activities--(Indexed). Appearances: Jack Martin, for the claimant(s). Ann Alkok, for the Minister. Lois Figg, Refugee Hearing Officer.

REASONS FOR DECISION

This is the decision of the Refugee Division regarding the claim of a thirty-one-year-old citizen of El Salvador, to be a Convention Refugee as defined in the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.1]. The hearing into the claim took place on October xx, 1989, January xx, February xx, March xx, and March xx, 1990, at Toronto, Ontario. The claimant was present and was provided with Spanish interpretation. He was represented by Jack Martin, Barrister and Solicitor. The panel was assisted by Refugee Hearing officer, Mary Bredin, who was replaced as of January xx, 1990, by Refugee Hearing officer, Lois Figg. As the Minister was of the opinion that matters pertaining to section F of Article 1 of the Convention were raised by the claim, a Notice of Intention to Participate was filed with the Refugee Division on October xx, 1989 pursuant to section 69.1(5) (b) of the Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.181. The Minster appeared at the hearing and was represented on October xx, 1989, by William MacIntyre, and at later sittings by Ann Alkok. The claimant seeks Convention refugee status by reason of a well-founded fear of persecution on the ground of political opinion. The ground of membership in a particular social group, originally raised in the claimant's Personal Information Form, was withdrawn by counsel during his submissions. The evidence presented at the hearing included of the claimant's testimony and his Personal Information Form, as well as extensive documentary evidence dealing with the situation in El Salvador and with revolutionary groups in that country. The issue before the Refugee Division is to determine whether the claimant is a Convention refugee as defined in the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.11. That term is defined as:

"Convention refugee" means any person who

(a)by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i)is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

(ii)not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b)has not ceased to be a Convention refugee by virtue of subsection (2),

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article I thereof, which sections are set out in the schedule to this Act. Section F of Article I of the Convention reads as follows:

F.The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.

At the outset, the panel had to decide the order in which it would proceed to hear the case. After hearing arguments from the parties, the panel decided to adopt the procedure recommended by the UNHCR Handbook [Office of the United Nations High Commission for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988.] in paragraph 176, which states:

An application for refugee status by a person having (or presumed to have) used force, or to have committed acts of violence of whatever nature and within whatever context, must in the first place-like any other application-be examined from the standpoint of the inclusion clauses in the 1951 Convention.

The Handbook also states, at paragraph 156:

In applying this exclusion clause, it is also necessary to strike a balance between the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared. If a person has well-founded fear of very severe persecution, e.g., persecution endangering his life or freedom, a crime must be very grave in order to exclude him. If the persecution feared is less serious, it will be necessary to have regard to the nature of the crime or crimes presumed to have been committed in order to establish whether the applicant is not in reality a fugitive from justice or whether his criminal character does not outweigh his character as a bona fide refugee.

On this basis, the panel decided, first, to consider evidence related to inclusion, namely, to determine whether the claimant was in fact a Convention refugee. As a second step, if the claimant was determined to be a Convention refugee, the panel would consider the evidence related to exclusion and, if necessary, would "balance" it against the claimant's need for protection.

FACTS

The claimant testified that he grew up in a lower-class neighbourhood in southern San Salvador. The claimant's schooling was intermittent and he finished the ninth grade in 1978 at the age of twenty. There were seven children in the family and the claimant had to work at various jobs at an early age. In 1976, the claimant visited the homes of friends who were involved with left-wing groups. The claimant told them that he was opposed to the injustices of the government and the abuses perpetrated by the authorities, and the claimant's friends proposed that he work with them. That same year, the claimant joined the Popular Revolutionary Bloc (the BPR). He explained that the BPR was the armed wing of the Popular United Action Front (FAPU), responsible for protecting important people. His group numbered between xx and xxx members, many of whom were students. They met, illegally, in smaller groups, about twice a month or before an "operation". The claimant painted slogans on walls and distributed leaflets for the group. He also stated that he helped to organize public meetings in parks and that he spoke at those meetings. Some of the demonstrations erupted into violence, but he was never caught or arrested. At that time, the claimant stated, he was unarmed. At the same time, the claimant audited classes at the xxxxxxxx University with the purpose of meeting people from other revolutionary groups. He worked intermittently in construction but devoted three or four days a week to his BPR activities. The claimant stated that, in the mid-1970's, the BPR supported the election campaign of the Christian Democratic Party under Jose Napoleon Duarte. He stated that the BPR was advocating the overthrow of the government of General Humberto Romero, then in power. Based on his active commitment to the revolutionary groups, the BPR proposed to the claimant that he infiltrate the airborne unit of the Salvadoran army in order to provide them with confidential information. The claimant was able to enlist in the airborne unit, with the help of a friend, a Sub-Lieutenant, who never suspected his motives. The claimant presented himself for service on December xx, 1977, and was told to report for duty on xx, January 1978. The claimant then underwent three months, military training and a one-month parachute jumping course. After four months of training, the claimant began his covert activities. About once a month, he would pass information about the officers in the Parachute Division to the BPR. In xxxx November 1978, the claimant was assigned the duty of courier or messenger between the garrison and the outside world. In this capacity, he ran numerous errands outside the garrison on behalf of the officers and soldiers. The claimant stated that he became friendly with one of the air force xxxxxxxxxx who informed him that there were torture cells located under the air force base. The claimant obtained from him the names of the officers involved in torture as well as a map of the base. He intimated that before he finished his military service, three officers had been killed because of the information that he had divulged. In all, he stated, eleven officers were killed by the guerrillas on this basis. The claimant also stole weapons and uniforms from the army and provided them to the left-wing groups. He explained that the amounts involved were usually quite small, so as to avoid suspicion. He testified in some detail about how he removed the weapons from the army storehouse and what the arrangements were with the BPR members to have the weapons collected. He would, for example, take out arms in his knapsack on leaving the base, or deposit a load of ammunition in a prearranged site for the guerrillas to pick up. The claimant stated that he stole weapons from the storehouse on two or three occasions. The claimant had apparently been told by the BPR that he would be "covered" by two other infiltrators whose identity would be unknown to him. He stated that their activities were coordinated "from above" but that they did not know each other until after they had left the army. In May 1978, the claimant was involved in a five-day military operation which was labelled "survival training". He later found out that it had been an anti-guerrilla operation. He stated that, had he actually been involved in combat, he would have had to desert or fire at the soldiers. The claimant was also involved in monitoring army roadblocks. On one occasion, in September or October 1978, he allowed a couple with leftist documents hidden under their seat to go through on a bus. The claimant's military service ended on March xx, 1979. For one year afterwards, he received army benefits of 120 colones a month. He was considered to be in the reserves after leaving the army. He stated that this signified that he would be obliged to return to the army in the case of a conventional war, but would not be called up because of civil war. After leaving the army, the claimant returned to the xxxxxxxx University in San Salvador xxxxxxxxxxxxxxxxxxx weapons handling and combat training to members of leftist groups. He stated that, during six or seven months, xxxxxxxxxxxxxxxx people in all. xxxxxxxxxxx training was held at the university (although the university did not know about the training), xxxxxxxxxxxx training took place in the countryside. Part of the training dealt with how to "remove and replace,, army sentries. During this time, the claimant was also involved with the United Popular Action Front (FAPU). In addition, he worked intermittently xxxxxxxxx factory where he was engaged in union activities. When examined by the Refugee Hearing Officer, the claimant testified that between November 1979 and March 1980, he left San Salvador to become involved in front-line combat in xxxxxxxxxxxx. He subsequently qualified this statement by saying that he xxxxxxxx ''xxxxxxx'' people in the countryside. On March xx, 1980, the claimant left for Costa Rica. One of the men who had "covered" for the claimant during his time in the army had received a telegram indicating that he was to return to military duty. The man left for Costa Rica. The claimant stated that he did not wait to receive such a telegram. He thought that the army was looking for him or had found out about his covert activities, and so he left the country. When questioned by the Refugee Hearing Officer, the claimant indicated that the man in question had been a regular recruit, liable to be called back for service, while he (the claimant) had been a volunteer and therefore would not have been recalled. In Nicaragua, en route to Costa Rica, the claimant was arrested by the Sandinista Front and detained for two to three months. They had found a Salvadoran Reserve Army identity card on the claimant and considered him to be suspicious. While he was in detention in Nicaragua, the claimant's mother came to visit him. She informed him that his older brother, xxxxxxxxxxxxxxxxxxxxxxxxxxx, who had been politically active with the FPL (the Popular Liberation Front), had been killed in May 1980, (initially stated as May 1979). She told the claimant that three men in civilian clothes had attacked xxxxxxxxx at a bus stop, and, according to the claimant, "people knew they were from the army". From 1980 to 1984, the claimant stayed in Costa Rica where he continued his activities with the BPR and with other revolutionary groups. He participated in secret meetings and in public demonstrations against the injustices in El Salvador. The claimant stated that he returned to El Salvador in March 1984, because his brother was "close to dying". He later explained that he was referring to an incident which had occurred in 1982, where a drunken soldier had shot at his brother, xxxxxxx and at xxxxxxx's sixteen-year-old friend, killing the latter. The claimant stated that xxxxxxx is still alive today and working with xxxxx as an electrician in San Salvador. In his later testimony, the claimant reiterated on several occasions that he returned to El Salvador in spite of his alleged fear of the military because "I was worried about my family... and I wanted to go home to see my family..." He also stated that he had to find out who had killed his brother, xxxxxxxxx. In March 1984, when the claimant returned to El Salvador, he stayed with his older sister xxxxxx, for about four or five months. In his testimony-in-chief, the claimant said he worked at a xxxxxx factory during this period. Later, under examination by the Refugee Hearing Officer, the claimant stated that he actually did not work while at xxxxxx's but stayed home instead. During this period, he played soccer and socialized with his political friends from the Popular Block and went to church with xxxxxx and her family. In August 1986, the claimant moved to the home of his younger sister, xxxxxxxxxxx. At one point in his examination by the Refugee Hearing Officer, he said he stayed there until he left El Salvador in March 1985. When reminded by the Refugee Hearing Officer that he had earlier said that he joined the guerillas in the mountains in October 1984, the claimant changed his testimony and said that he stayed at xxxxxxxxxxx's from August 1984 to October 1984. During this period the claimant said that he continued to go to church and that he worked at the xxxxxx factory. Between October and December 1984, the claimant joined the FPL in the mountains in xxxxxxx. He stated that they would go to the neighbouring towns for food and would encounter the army. Under examination by the Refugee Hearing officer, the claimant stated that he did not know what prompted him to decide to rejoin the guerillas: "Maybe my daily relations with my friends. Besides I was a young person. I didn't think about what I wanted or what I had. my ideas were a little bit vague." When asked again by the Refugee Hearing Officer why he left his sister's home to go to the mountains after two or three months, the claimant replied, "Well I don't know. Maybe I had enough of being with them too." In January 1985, the claimant returned to the home of his sister, xxxxxxxxxxx. He remained there for the next three months. During this time he returned to work for one month. He stopped working because it interfered with his socializing and soccer playing. The claimant also continued going to church during this three-month period. The claimant left El Salvador on March xx, 1985, because things were "getting hotter" and many of his friends, who were involved in the guerilla movement, were getting killed. The claimant admitted, however, that they were at greater risk than he was, because they were working at their militant activities on a daily basis, while he was not. The claimant also stated that he left El Salvador on his mother's advice. This was partly based on information she had given the claimant when she visited him while he was still in Costa Rica. At that time, she told him of a visit by the police to her home in 1982, stating that they came looking for the claimant at the time of the incident involving his brother, xxxxxxx. In response to a question from the Refugee Hearing officer, the claimant was unable to explain why the police would be looking for him two years after he had left El Salvador. When asked by the Refugee Hearing Officer why the police would "go away so docilely after just asking a question", the claimant replied that it was because he was not there. He then testified that his father's brother, Colonel xxxxxxx, was the xxxxxx in command of the National Police in San Salvador and that due to this connection, this "...didn't allow them to bother our family...''. In his testimony-in-chief, the claimant alluded to two police visits to his mother's home in November or December 1984, when the police were allegedly looking for him. Under examination by the Refugee Hearing Officer, the claimant omitted to mention these visits as reasons for leaving El Salvador in 1985. When asked by the panel and the Refugee Hearing officer why he would have only mentioned the 1982 incident as the reason his mother wanted him to leave El Salvador, he replied, "...there are so many things I have to remember; as well, I've been in many places." The claimant went to Mexico, where his younger brother was staying, via Guatemala. In mid-April 1985, while travelling in Mexico, he was stopped as an illegal, put in jail, and then deported to Guatemala. He re-entered Mexico that same day and worked for three months on a banana plantation in xxxxxxxxx, Mexico. The claimant initially stated that he spent six months in Mexico, but later appeared uncertain about the length of time. The claimant entered the United States on July xx, 1985. He was unsure how long after his entry into the United States his arrest on a criminal charge took place, suggesting it may have been ten months, one month, or five weeks later. He stated that he was arrested in Texas in July 1985 (August xx, 1985, according to the Personal Information Form) on a charge of sexual indecency xxxxxxxxxxxx. He spent fifty-three days in jail before going to court. On January xx, 1986, (or alternately, September 1985), he entered a plea of nolo contendere [Latin phrase meaning "I will not contest it", a plea in a criminal case which has a similar legal effect as pleading guilty (Black's Law Dictionary).]. The claimant stated that he stayed in Texas one more month and then spent three months in South Carolina. He then moved on to xxxxxxxx. Virginia. After three or four months there, he called his father, who had left El Salvador for the United States in 1982. His father referred him to his (the father's) brother-in-law in Washington, D.C., where the latter was working for the xxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx(xxxxxxxxx). The father's brother-in-law told the claimant that he could give him some references for Canada and that he would be legal there. On July xx, 1986, the claimant entered Canada and made a refugee claim. In Canada, he also used the name, xxxxxxxxxxxxxxx, when arrested in a speakeasy in Toronto in xxxxx or xxxxxx 1988. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. If returned to El Salvador, the claimant stated that the army would kill him as he thought his name was on a blacklist. He stated that the army was already looking for him before he left in 1985, since xxxxxxx officers had died because of the information that he had given out to the guerillas.

ANALYSIS

In his submissions, counsel for the claimant indicated that he was withdrawing the ground of membership in a particular social group, and retaining the ground of political opinion, as the basis for the claimant's well-founded fear of persecution in El Salvador. Counsel stated that the claimant had given ample evidence of his political opinion throughout the hearing and that this political opinion would place the claimant at serious risk in El Salvador. Counsel also submitted that the claimant's arms smuggling and informing activities while in the army constitute one of the reasons why he fears returning to his country. He is afraid that he may suffer reprisals for having committed these illegal activities. Counsel also submitted that these activities were politically motivated and that the penalty, therefore, would constitute persecution, rather than prosecution. The panel was prepared to consider the possibility that a member of a left-wing guerrilla movement who had infiltrated the army as an informer could potentially be at serious risk from the authorities. However, each refugee claim has to be judged on its own merits. Therefore, the individual circumstances of the claimant's own experiences would have to be closely examined in order to determine whether a well-founded fear of persecution existed in his case. In this case, the panel has had to consider the following questions: is the claimant's fear well-founded, that is, does the evidence indicate that the army or other authorities had, at any time, become aware of the claimant's covert activities? Are there good grounds for thinking that the authorities could, in the future, become aware of the claimant's activities? Let us review the relevant facts. The claimant testified that he voluntarily enlisted with the airborne unit of the army and that he served from January xx, 1978, until March xx, 1979, when his term of service officially ended. Although the claimant was engaged in guerrilla xxxxxxxx activities after his military duty ended, he nonetheless collected a monthly pension from the army for a one-year period after being discharged. The claimant provided no evidence to indicate that, during or since that time, anyone had learned of his covert activities. When questioned as to his reasons for leaving El Salvador on March xx, 1980, the claimant stated that a friend of his, who had also been a guerrilla informer in the army, had received a telegram summoning him back to service. The claimant stated that he did not wait to receive such a telegram, he left the country instead. The panel, however, is perplexed as to why the claimant expected to receive such a telegram at all, since he had been a volunteer and, as such, was liable to be called up only for conventional war, while his friend had been officially recruited, and thus could be called back at any time. No evidence was provided as to whether the army ever sent such a telegram to the claimant, or whether they even looked for him at that time. In March, 1984, the claimant returned to El Salvador. In the panel's view, the claimant's return to his country is not consistent with a well-founded fear of persecution. The claimant offered no evidence that the army had learned of his covert activities. Indeed he stated that he returned by airplane from Guatemala, because he did not think at the time that the authorities would have his name on a list. Moreover, the reasons that the claimant provided as motivating his return, leave the panel somewhat perplexed. The claimant testified that he returned at that time because his brother was "close to dying". When questioned, however, the claimant indicated that, in 1982, his brother had been involved in an incident with two drunken policemen in which the brother's sixteen-year-old friend was shot to death. If the incident involving his brother had really prompted the claimant to return to El Salvador, why did he wait two years to do so? Alternately, if the claimant already had a well-founded fear of persecution, surely this incident would have discouraged him from returning. In response to subsequent questioning, the claimant stated that perhaps he returned to El Salvador in March 1984, because he was "worried about his family". However, in view of the claimant's testimony with respect to his father's brother, Colonel xxxxxxx, the claimant's extreme concern for his family, which allegedly prompted his return to El Salvador, seems somewhat incomprehensible. Let us now turn to the nature of the claimant's activities in El Salvador during the period of his return, from March 1984 to March 31, 1985. The claimant stated that he did not return to live at his mother's home. Instead, from March to August 1984, he lived with his sister, xxxxxx, in San Salvador. He originally said that, during this time, he worked occasionally doing installation for a xxxxxxxxxxxx factory; later he changed his testimony and said he worked at the factory between August and October 1984. In any event, he stated that since he had little to do at home, he would meet with his left-wing friends and play soccer, or that he would attend church. From August 1984 to March xx, 1985, he stayed with his sister, continuing to work on occasion, to play soccer and to accompany his niece to church. From October to December 1984, he was with the guerrillas at xxxxxxx in the mountains. He provided different versions of his activities there, alternately indicating that he had been involved in fighting or picking up food and medical supplies. one of the reasons given by the claimant for returning to his sister home was that it was more comfortable than being in the mountains. The claimant referred to a police visit, (although at times he referred to more than one visit), to his mother's house. At one point, he stated that the last police visit took place just after his brother xxxxxxx's incident in 1982, and that "they were looking for me". He was unable to explain why the police were looking for him. According to his account, the visit appears to have been routine in nature, probably linked to the incident involving his brother; the police did not say anything beyond asking for the claimant and left immediately afterwards. Had the police been looking for him because of his previous activities, it is unlikely that they would have limited themselves to a perfunctory house visit. In the sitting of March xx, 1990, the Refugee Hearing Officer reminded the claimant, that in his examination-in-chief, he had stated that the police continued to come to his mother's house while he was in the mountains. The claimant replied, "Now that you remind me, they came twice looking for me, between November and December 1984". If this is indeed the case, the panel is surprised that the claimant had to be reminded by the Refugee Hearing Officer of such an event. Again, the claimant was able to provide no information about the nature of the police visit, but felt that it was due to his previous covert activities while in the army, some four years before. However, he was unable to offer a reason for his opinion. When questioned by the Refugee Hearing officer if he had ever been pursued by the army, the claimant stated that they came once in 1982 to his mother's home. When asked why they came, the claimant stated, "maybe they had the telegram, maybe they wanted me to go back to work in the army". If the claimant truly felt that the army or police had found out about his covert activities and were looking for him, why did he not go into hiding and how could he take the risk of engaging in visible activities in San Salvador? He left his sister's house to go to work. He went out to attend church. He also played soccer with his friends: an activity involving him with other young, able-bodied men, and potentially exposing him to a random "sweep" by the army. When questioned as to his reasons for leaving El Salvador again on March xx, 1985, the claimant stated that he was afraid because the situation was getting "hotter". He also stated that his mother asked him to leave the country because she was afraid that he might be killed. The panel tried to ascertain if there were any significant changes in the situation between the claimant's first and second departure from El Salvador. Did specific events occur prior to his second departure, that would have given rise to a well-founded fear of persecution in the mind of the claimant? On the basis of the claimant's testimony, the panel was unable to distinguish any such events. The issue of the police or army visit(s) is unclear for two reasons. First, the relevant information was only given in response to questioning by the Refugee Hearing Officer. Secondly, if the alleged visits did occur, the claimant's behaviour at the time was not consistent with a well-founded fear of persecution. The major events pertinent to the refugee claim took place in 1978-1979. We are now in 1990. The panel must ask itself whether it is reasonable to believe, after some eleven years, that the claimant's activities have come to light and that he may be at risk now or in the future. The evidence provided by the claimant in this regard did not satisfy the panel. Upon his return to El Salvador in 1984-1985, he lived, with no apparent problems, at his sisters' homes. He was not able to indicate any specific incidents that would have accounted for his fear, other than a subjective feeling of apprehension which would be natural, given the kind of covert activity in which he had been involved. The panel has examined and accepts as credible and trustworthy the documentary evidence which refers to human rights violations and death squad activities in El Salvador. However, on the basis of the evidence adduced at the hearing, and notably on the basis of the claimant's own testimony, the panel is unable to find that there exists a reasonable chance that the claimant could face persecution, if he were to return to El Salvador. The panel therefore determines xxxxxxxxxxxxxxx not to be a Convention Refugee.

EXCLUSION CLAUSE

Notwithstanding the above finding, the panel wishes to address briefly the issue of the possible invoking of Section F of Article 1 of the Convention, in particular paragraph (b). The purpose of this paragraph is to exclude from the provisions of the Immigration Act "...any person with respect to whom there are serious reasons for considering that... he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee…". The only evidence which the minister's representative was able to provide on this matter was a copy of a conviction from the State of Texas, in the United States, for "sexual indecency xxxxxxxxxx'', for which the claimant had entered a plea of nolo contendere. In addition, the claimant had breached the ensuing probation order and was therefore the subject of an arrest warrant. We accept the argument of counsel for the claimant that the two offences referred to above are equivalent to the offences described in Section 173(2) and 740(l) of the Canadian Criminal Code and which are punishable on summary conviction. It is the opinion of the panel that the concept of "serious non-political crimes", as envisaged by the authors of the 1951 Convention Relating to the Status of Refugees, includes only major crimes of a particularly grave nature, such as those inflicting bodily harm on another person. Even if the claimant had been found to be a Convention refugee, on the basis of the evidence brought forward by the Minister's representative, the panel would not have been able to conclude that the claimant should be excluded from the Convention refugee definition by the Application of Section F(b) of Article 1 of the Convention. Dated at Toronto, Ontario, this 1st day of June, 1990. ''I. F. Liebich" CONCURRED IN BY: ''E. Ricardo Smith''