After he was ordered to surrender for deportation, respondent
alien in 1977 moved to reopen the deportation proceedings, seeking
relief under § 243(h) of the Immigration and Nationality Act of
1952 (INA), which then authorized the Attorney General to withhold
deportation of an alien upon a finding that the alien "would be
subject to persecution" in the country to which he would be
deported. The Immigration Judge denied the motion without a
hearing, and was upheld by the Board of Immigration Appeals (BIA),
which held that respondent had not met his burden of showing that
there was a clear probability of persecution. Respondent did not
appeal this decision. Subsequently, in 1981, after receiving
another notice to surrender for deportation, respondent filed a
second motion to reopen, again seeking relief under § 243(h), which
in the meantime had been amended by the Refugee Act of 1980 -- in
conformity with the language of Article 33 of the 1968 United
Nations Protocol Relating to the Status of Refugees that had been
acceded to by the United States -- to provide that the Attorney
General shall not deport an alien if the Attorney General
determines that the alien's "life or freedom would be threatened"
in the country to which he would be deported. This motion was also
denied without a hearing under the same standard of proof as was
applied in the previous denial. The Court of Appeals reversed and
remanded, holding that respondent no longer had the burden of
showing "a clear probability of persecution," but instead could
avoid deportation by showing a "well-founded fear of persecution,"
the latter language being contained in a definition of the term
"refugee" adopted by the United Nations Protocol. The court
concluded that the Refugee Act of 1980 so changed the standard of
proof, and that respondent's showing entitled him to a hearing
under the new standard.
Held: An alien must establish a clear probability of
persecution to avoid deportation under § 243(h). Pp.
467 U. S.
413-430.
(a) At least before 1968, it was clear that an alien was
required to demonstrate a "clear probability of persecution" or a
"likelihood of persecution" to be eligible for withholding of
deportation under § 243(h). Relief under § 243(h) was not, however,
available to aliens at the border seeking refuge in the United
States due to persecution. They could
Page 467 U. S. 408
seek admission only under § 203(a)(7) of the INA, and were
required to establish a good reason to fear persecution. The
legislative history of the United States' accession to the United
Nations Protocol discloses that the President and Senate believed
that the Protocol was consistent with existing law. While the
Protocol was the source of some controversy with respect to the
standard of proof for § 243(h) claims for withholding of
deportation, the accession to the Protocol did not appear to raise
any questions concerning the standard to be applied for § 203(a)(7)
requests for admission, the "good reason to fear persecution"
language being employed in such cases. Pp.
467 U. S.
414-420.
(b) While the text of § 243(h), as amended in 1980, does not
specify how great a possibility of persecution must exist to
qualify an alien for withholding of deportation, to the extent a
standard can be inferred from the bare language, it appears that a
likelihood of persecution is required. The section provides for a
withholding of deportation only if the alien's life or freedom
"would" be threatened, not if he "might" or "could" be subject to
persecution. Respondent is seeking relief under § 243(h), not under
provisions which, as amended by the Refugee Act, employ the
"well-founded fear" standard that now appears in § 201(a)(42)(A) of
the INA and that was adopted from the United Nations Protocol's
definition of "refugee." Section 243(h) does not refer to §
201(a)(42)(A). Hence, there is no textual basis in the statute for
concluding that the well-founded-fear-of-persecution standard is
relevant to the withholding of deportation under § 243(h). The 1980
amendment of § 243(h) was recognized by Congress as a mere
conforming amendment, added "for the sake of clarity," and was
plainly not intended to change the standard for withholding
deportation. There is no support in either § 243(h)'s language, the
structure of the amended INA, or the legislative history for the
Court of Appeals' conclusion that every alien who qualifies as a
"refugee" under the statutory definition is also entitled to a
withholding of deportation under § 243(h). The Court of Appeals
granted respondent relief based on its understanding of a standard
which, even if properly understood, does not entitle an alien to
withholding of deportation under § 243(h). Pp.
467 U. S.
421-430.
678 F.2d 401, reversed and remanded.
STEVENS, J., delivered the opinion for a unanimous Court.
Page 467 U. S. 409
JUSTICE STEVENS delivered the opinion of the Court.
For over 30 years, the Attorney General has possessed statutory
authority to withhold the deportation of an alien upon a finding
that the alien would be subject to persecution in the country to
which he would be deported. The question presented by this case is
whether a deportable alien must demonstrate a clear probability of
persecution in order to obtain such relief under § 243(h) of the
Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h), as
amended by § 203(e) of the Refugee Act of 1980, Pub.L. 96-212, 94
Stat. 107.
I
Respondent, a Yugoslavian citizen, entered the United States in
1976 to visit his sister, then a permanent resident alien residing
in Chicago. Petitioner, the Immigration and Naturalization Service
(INS), instituted deportation proceedings against respondent when
he overstayed his 6-week period of admission. Respondent admitted
that he was deportable and agreed to depart voluntarily by
February, 1977. In January, 1977, however, respondent married a
United States citizen who obtained approval of a visa petition on
his behalf. Shortly thereafter, respondent's wife died in an
automobile accident. The approval of respondent's visa petition
was
Page 467 U. S. 410
automatically revoked, and petitioner ordered respondent to
surrender for deportation to Yugoslavia.
Respondent moved to reopen the deportation proceedings in
August, 1977, seeking relief under § 243(h) of the Immigration and
Naturalization Act, which then provided:
"The Attorney General is authorized to withhold deportation of
any alien within the United States to any country in which in his
opinion the alien would be subject to persecution on account of
race, religion, or political opinion and for such period of time as
he deems to be necessary for such reason."
8 U.S.C. § 1253(h) (1976 ed.). Respondent's supporting affidavit
stated that he had become active in an anti-Communist organization
after his marriage in early 1977, that his father-in-1aw had been
imprisoned in Yugoslavia because of membership in that
organization, and that he feared imprisonment upon his return to
Yugoslavia.
In October, 1979, the Immigration Judge denied respondent's
motion to reopen without conducting an evidentiary hearing.
[
Footnote 1] The Board of
Immigration Appeals (BIA) upheld that action, explaining:
"A Motion to reopen based on a section 243 (h) claim of
persecution must contain
prima facie evidence that there
is a clear probability of persecution to be directed at the
individual respondent.
See Cherg Kai Fu v. INS, 386 F.2d
70 (2 Cir.1967),
cert. denied, 390 U.S. 1003 (1968).
Although the applicant here claims to be eligible for withholding
of deportation which was not available to him at the time of his
deportation hearing, he has not
Page 467 U. S. 411
presented any evidence which would indicate that he will be
singled out for persecution."
App. to Pet. for Cert. 34-35. Respondent did not seek judicial
review of that decision.
After receiving notice to surrender for deportation in February,
1981, respondent filed his second motion to reopen. [
Footnote 2] He again sought relief pursuant
to § 243(h), which then -- because of its amendment in 1980 -- read
as follows:
"The Attorney General shall not deport or return any alien . . .
to a country if the Attorney General determines that such alien's
life or freedom would be threatened in such country on account of
race, religion, nationality, membership in a particular social
group, or political opinion."
8 U.S.C. § 1253(h)(1).
Although additional written material was submitted in support of
the second motion, like the first, it was denied without a hearing.
The Board of Immigration Appeals held that respondent had not shown
that the additional evidence was unavailable at the time his first
motion had been filed, and, further, that he had still failed to
submit
prima facie evidence that "there is a clear
probability of persecution" directed at respondent individually.
[
Footnote 3] Thus, the Board
applied the same
Page 467 U. S. 412
standard of proof it had applied regarding respondent's first
motion to reopen, notwithstanding the intervening amendment of §
243(h) in 1980.
The United States Court of Appeals for the Second Circuit
reversed and remanded for a plenary hearing under a different
standard of proof.
Stevic v. Sava, 678 F.2d 401 (1982).
Specifically, it held that respondent no longer had the burden of
showing "a clear probability of persecution," but instead could
avoid deportation by demonstrating a "well-founded fear of
persecution." The latter language is contained in a definition of
the term "refugee" adopted by a United Nations Protocol to which
the United States has adhered since 1968. The Court of Appeals held
that the Refugee Act of 1980 changed the standard of proof that an
alien must satisfy to obtain relief under § 243(h), concluding that
Congress intended to abandon the "clear probability of persecution"
standard and substitute the "well-founded fear of persecution"
language of the Protocol as the standard. Other than stating that
the Protocol language was "considerably more generous" or "somewhat
more generous" to the alien than the former standard,
id.
at 405, 406, the court did not detail the
Page 467 U. S. 413
differences between them and stated that it "would be unwise to
attempt a more detailed elaboration of the applicable legal test
under the Protocol,"
id. at 409. The court concluded that
respondent's showing entitled him to a hearing under the new
standard.
Because of the importance of the question presented, and because
of the conflict in the Circuits on the question, [
Footnote 4] we granted certiorari, 460 U.S.
1010 (1983). We now reverse and hold that an alien must establish a
clear probability of persecution to avoid deportation under §
243(h).
II
The basic contentions of the parties in this case may be
summarized briefly. Petitioner contends that the words "clear
probability of persecution" and "well-founded fear of persecution"
are not self-explanatory, and, when read in the light of their
usage by courts prior to adoption of the Refugee Act of 1980, it is
obvious that there is no "significant" difference between them. If
there is a "significant" difference between them, however,
petitioner argues that Congress' clear intent in enacting the
Refugee Act of 1980 was to maintain the
status quo, which
petitioner argues would mean continued application of the
clear-probability-of-persecution standard to withholding of
deportation claims. In this regard, petitioner maintains that our
accession to the United Nations Protocol in 1968 was based on the
express "understanding" that it would not alter the "substance" of
our immigration laws.
Respondent argues that the standards are not coterminous, and
that the well-founded-fear-of-persecution standard turns almost
entirely on the alien's state of mind. Respondent points out that
the well-founded-fear language was adopted in the definition of a
refugee contained in the United Nations Protocol adhered to by the
United States since 1968. Respondent
Page 467 U. S. 414
basically contends that, ever since 1968, the well-founded-fear
standard should have applied to withholding of deportation claims,
but Congress simply failed to honor the Protocol by failing to
enact implementing legislation until adoption of the Refugee Act of
1980, which contains the Protocol definition of refugee.
Each party is plainly correct in one regard: in 1980, Congress
intended to adopt a standard for withholding of deportation claims
by reference to preexisting sources of law. We begin our analysis
of this case by examining those sources of law.
III
United States Refugee Law prior to 1968
Legislation enacted by the Congress in 1950, [
Footnote 5] 1952, [
Footnote 6] and 1965 [
Footnote 7] authorized the Attorney General to withhold
deportation of an otherwise deportable alien if the alien would be
subject to persecution upon deportation. At least before 1968, it
was clear that an alien was required to demonstrate a "clear
probability of persecution" or a "likelihood of persecution" in
order to be eligible for withholding of deportation
Page 467 U. S. 415
under § 243(h) of the Immigration and Nationality Act of 1952, 8
U.S.C. § 1253(h) (1964 ed.).
E.g., Cheng Kai Fu v. INS,
386 F.2d 750, 753 (CA2 1967),
cert. denied, 390 U.S. 1003
(1968);
Lena v. INS, 379 F.2d 536, 538 (CA7 1967);
In
re Janus and Janek, 12 I. & N. Dec. 866, 873 (BIA 1968);
In re Kojoory, 12 I. & N. Dec. 215, 220 (BIA 1967).
With certain exceptions, this relief was available to any alien who
was already "within the United States," albeit unlawfully and
subject to deportation.
The relief authorized by § 243(h) was not, however, available to
aliens at the border seeking refuge in the United States due to
persecution.
See generally Leng May Ma v. Barber,
357 U. S. 185
(1958). Since 1947, relief to refugees at our borders has taken the
form of an
"immigration and naturalization policy which granted immigration
preferences to 'displaced persons,' 'refugees,' or persons who fled
certain areas of the world because of 'persecution or fear of
persecution on account of race, religion, or political opinion.'
Although the language through which Congress has implemented this
policy since 1947 has changed slightly from time to time, the basic
policy has remained constant -- to provide a haven for homeless
refugees and to fulfill American responsibilities in connection
with the International Refugee Organization of the United
Nations."
Rosenberg v. Yee Chien Woo, 402 U. S.
49,
402 U. S. 52
(1971).
Most significantly, the Attorney General was authorized under §
203(a)(7) of the Immigration and Nationality Act of 1952, 8 U.S.C.
§ 1153(a)(7)(A)(i) (1976 ed.), to permit "conditional entry" as
immigrants for a number of refugees fleeing from a
Communist-dominated area or the Middle East "because of persecution
or fear of persecution on account of race, religion, or political
opinion."
See also § 212(d)(5) of the Act, 8 U.S.C. §
1182(d)(5) (granting Attorney General discretion to "parole" aliens
into the United States temporarily
Page 467 U. S. 416
for emergency reasons). An alien seeking admission under §
203(a)(7) was required to establish a good reason to fear
persecution.
Compare In re Tan, 12 I. & N. Dec. 564,
569-570 (BIA 1967),
with In re Ugricic, 14 I. & N.
Dec. 384, 385-386 (Dist.Dir.1972). [
Footnote 8]
The United Nations Protocol
In 1968, the United States acceded to the United Nations
Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968]
19 U.S.T. 6223, T.I.A.S. No. 6577. The Protocol bound parties to
comply with the substantive provisions of Articles 2 through 34 of
the United Nations Convention Relating to the Status of Refugees,
189 U.N.T.S. 150 (July 28, 1951) [
Footnote 9] with respect to "refugees" as defined in
Article 1.2 of the Protocol.
Article 1.2 of the Protocol defines a "refugee" as an individual
who,
"owing to a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country; or who, not having
a nationality and being outside the country of his former habitual
residence, is unable or, owing to such fear, is unwilling to return
to it."
Compare 19 U.S.T. 6225
with 19 U.S.T. 6261
(1968).
Two of the substantive provisions of the Convention are germane
to the issue before us. Article 33.1 of the Convention
Page 467 U. S. 417
provides:
"No Contracting State shall expel or return ('refouler') a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion."
19 U.S.T. at 6276. Article 34 provides, in pertinent part: "The
Contracting States shall as far as possible facilitate the
assimilation and naturalization of refugees. . . ."
Ibid.
[
Footnote 10]
The President and the Senate believed that the Protocol was
largely consistent with existing law. There are many statements to
that effect in the legislative history of the accession to the
Protocol.
E.g., S.Exec.Rep. No. 14, 90th Cong., 2d Sess.,
4 (1968) ("refugees in the United States have long enjoyed the
protection and the rights which the protocol calls for");
id. at 6, 7 ("the United States already meets the
standards of the Protocol");
see also id. at 2; S.Exec. K,
90th Cong., 2d Sess., III, VII (1968); 114 Cong.Rec. 29391 (1968)
(remarks of Sen. Mansfield);
id. at 27757 (remarks of Sen.
Proxmire). And it was "absolutely clear" that the Protocol would
not "requir[e] the United States to admit new categories or numbers
of aliens." S.Exec.Rep. No. 14,
supra, at 19. It was also
believed that apparent differences
Page 467 U. S. 418
between the Protocol and existing statutory law could be
reconciled by the Attorney General in administration, and did not
require any modification of statutory language.
See, e.g.,
S.Exec. K,
supra, at VIII.
United States Refugee Law: 1968-1980
Five years after the United States' accession to the Protocol,
the Board of Immigration Appeals was confronted with the same basic
issue confronting us today in the case of
In re Dunar, 14
I. & N. Dec. 310 (1973). The deportee argued that he was
entitled to withholding of deportation upon a showing of a
well-founded fear of persecution, and essentially maintained that a
conjectural possibility of persecution would suffice to make the
fear "well-founded." The Board rejected that interpretation of
"well-founded," and stated that a likelihood of persecution was
required for the fear to be "well-founded."
Id. at 319. It
observed that neither § 243(h) nor Article 33 used the term
"well-founded fear," and stated:
"Article 33 speaks in terms of threat to life or freedom on
account of any of the five enumerated reasons. Such threats would
also constitute subjection to persecution within the purview of
section 243(h). The latter has also been construed to encompass
economic sanctions sufficiently harsh to constitute a threat to
life or freedom,
Dunat v. Hurney, 297 F.2d 744 (3 Cir.,
1962);
cf. Kovac v. INS, 407 F.2d 102 (9 Cir., 1969). In
our estimation, there is no substantial difference in coverage of
section 243(h) and Article 33. We are satisfied that distinctions
in terminology can be reconciled on a case-by-case consideration as
they arise."
Id. at 320.
The Board concluded that
"Article 33 has effected no substantial changes in the
application of section 243(h), either by way of burden of proof,
coverage, or manner of arriving at
Page 467 U. S. 419
decisions,"
id. at 323, [
Footnote 11] and stated that Dunar had failed to
establish
"the likelihood that he would be persecuted. . . . Even if we
apply the nomenclature of Articles 1 and 33, we are satisfied that
respondent has failed to show a well-founded fear that his life or
freedom will be threatened,"
id. at 324.
Although, before
In re Dunar, the Board and the courts
had consistently used a clear probability or likelihood standard
under § 243(h), after that case, the term "well-founded fear" was
employed in some cases. [
Footnote 12] The Court of Appeals for the Seventh
Circuit, which had construed § 243(h) as applying
Page 467 U. S. 420
only to "cases of clear probability of persecution" in a
frequently cited case decided before 1968,
Lena v. INS,
379 F.2d 536, 538 (1967), reached the same conclusion in a case
decided after the United States' adherence to the Protocol.
Kashani v. INS, 547 F.2d 376 (1977). In that opinion,
Judge Swygert reasoned that the "well-founded fear of persecution"
language could "only be satisfied by objective evidence," and that
it would, "in practice, converge" with the "clear probability"
standard that the Seventh Circuit had previously "engrafted onto
[§]243(h)."
Id. at 379. Other Courts of Appeals appeared
to reach essentially the same conclusion.
See e.g., Fleurinor
v. INS, 585 F.2d 129, 132, 134 (CA5 1978);
Pereira-Diaz v.
INS, 551 F.2d 1149, 1154 (CA9 1977);
Zamora v. INS,
534 F.2d 1055, 1058, 1063 (CA2 1976).
While the Protocol was the source of some controversy with
respect to the standard for § 243(h) claims for withholding of
deportation, the United States' accession did not appear to raise
any questions concerning the standard to be applied for § 203(a)(7)
requests for admission. The "good reason to fear persecution"
language was employed in such cases.
See, e.g., In re
Ugricic, 14 I. & N. Dec. at 385-386. [
Footnote 13]
Page 467 U. S. 421
IV
Section 203(e) of the Refugee Act of 1980 amended the language
of § 243(h), basically conforming it to the language of Article 33
of the United Nations Protocol. [
Footnote 14] The amendment made three changes in the text
of § 243(h), but none of these three changes expressly governs the
standard of proof an applicant must satisfy or implicitly changes
that standard. [
Footnote 15]
The amended § 243(h), like Article 33, makes no mention of a
probability of persecution or a well-founded fear of persecution.
In short, the text of the statute simply does not specify
Page 467 U. S. 422
how great a possibility of persecution must exist to qualify the
alien for withholding of deportation. To the extent such a standard
can be inferred from the bare language of the provision, it appears
that a likelihood of persecution is required. [
Footnote 16] The section literally provides for
withholding of deportation only if the alien's life or freedom
"would" be threatened in the country to which he would be deported;
it does not require withholding if the alien "might" or "could" be
subject to persecution. Finally, § 243(h), both prior to and after
amendment, makes no mention of the term "refugee"; rather, any
alien within the United States is entitled to withholding if he
meets the standard set forth.
Respondent understandably does not rely upon the specific
textual changes in § 243(h) in support of his position that a
well-founded fear of persecution entitles him to withholding of
deportation. Instead, respondent points to the provision of the
Refugee Act which eliminated the ideological and geographical
restrictions on admission of refugees under § 203(a)(7) and adopted
an expanded version of the United Nations Protocol definition of
"refugee." This definition contains the well-founded-fear language,
and now appears under § 101(a)(42)(A) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(a)(42)(A). Other provisions of the
Immigration and Nationality Act, as amended, now provide
preferential immigration status, within numerical limits, to those
qualifying as refugees under the modified Protocol definition
[
Footnote 17] and renders a
more limited class of refugees, though
Page 467 U. S. 423
still a class broader than the Protocol definition, eligible for
a discretionary grant of asylum. [
Footnote 18]
Respondent, however, is not seeking discretionary relief under
these provisions, which explicitly employ the well-founded-fear
standard now appearing in § 101(a)(42)(A). Rather, he claims he is
entitled to withholding of deportation under § 243(h) upon
establishing a well-founded fear of persecution. Section 243(h),
however, does not refer to § 101(a)(42)(A). Hence, there is no
textual basis in the statute for concluding that the
well-founded-fear-of-persecution
Page 467 U. S. 424
standard is relevant to a withholding of deportation claim under
§ 243(h).
Before examining the legislative history of the Refugee Act of
1980 in order to ascertain whether Congress nevertheless intended a
well-founded-fear standard to be employed under § 243(h), we
observe that the Refugee Act itself does not contain any definition
of the "well-founded fear of persecution" language contained in §
101(a)(42)(A). The parties vigorously contest whether the
well-founded-fear standard is coterminous with the
clear-probability-of-persecution standard.
Initially, we do not think there is any serious dispute
regarding the meaning of the clear-probability standard under the §
243(h) case law. [
Footnote
19] The question under that standard is whether it is more
likely than not that the alien would be subject to persecution. The
argument of the parties on this point is whether the
well-founded-fear standard is the same as the clear-probability
standard as just defined, or whether it is more generous to the
alien.
Petitioner argues that persecution must be more likely than not
for a fear of persecution to be considered "well founded." The
positions of respondent and several
amici curiae are
somewhat amorphous. Respondent seems to maintain that a fear of
persecution is "well-founded" if the evidence establishes some
objective basis in reality for the fear. This would appear to mean
that, so long as the fear is not imaginary --
i.e., if it
is founded in reality at all -- it is "well-founded." A more
moderate position is that, so long as an objective situation is
established by the evidence, it need not be
Page 467 U. S. 425
shown that the situation will probably result in persecution,
but it is enough that persecution is a reasonable possibility.
Petitioner and respondent seem to agree that, prior to passage
of the Refugee Act, the Board and the courts actually used a
clear-probability standard for § 243(h) claims. That is, prior to
the amendment, § 243(h) relief would be granted if the evidence
established that it was more likely than not that the alien would
be persecuted in the country to which he was being deported; relief
would not be granted merely upon a showing of some basis in reality
for the fear, or if there was only a reasonable possibility of
persecution falling short of a probability. Petitioner argues that
some of the prior case law using the term "well-founded fear"
simply used that term interchangeably with the phrase "clear
probability." Respondent agrees in substance, but argues that,
although prior cases employed the term "well-founded fear," they
misconstrued the meaning of the term under the United Nations
Protocol.
For purposes of our analysis, we may assume, as the Court of
Appeals concluded, that the well-founded-fear standard is more
generous than the clear-probability-of-persecution standard,
because we can identify no basis in the legislative history for
applying that standard in § 243(h) proceedings or any legislative
intent to alter the preexisting practice.
The principal motivation for the enactment of the Refugee Act of
1980 was a desire to revise and regularize the procedures governing
the admission of refugees into the United States. The primary
substantive change Congress intended to make under the Refugee Act,
and indeed, in our view, the only substantive change even relevant
to this case, was to eliminate the piecemeal approach to
admission of refugees previously existing under §
203(a)(7) and § 212(d)(5) of the Immigration and Nationality Act
and § 108 of the regulations, and to establish a systematic scheme
for admission and resettlement of refugees. S.Rep. No. 96-256, p. 1
(1979) (S.Rep.); H.R.Rep. No. 96-608, pp. 1-5 (1979) (H.R.
Page 467 U. S. 426
Rep.). The Act adopted, and indeed, expanded upon, the Protocol
definition of "refugee," S.Rep. at 19; H.R.Rep. at 9-10, and
intended that the definition would be construed consistently with
the Protocol, S.Rep. at 9, 20. It was plainly recognized, however,
that
"merely because an individual or group of refugees comes within
the definition will not guarantee resettlement in the United
States. The Committee is of the opinion that the new definition
does not create a new and expanded means of entry, but instead
regularizes and formalizes the policies and practices that have
been followed in recent years."
H.R.Rep. at 10. The Congress distinguished between discretionary
grants of refugee admission or asylum and the entitlement to a
withholding of deportation if the § 243(h) standard was met.
See id. at 17-18. [
Footnote 20]
Page 467 U. S. 427
Elimination of the geographic and ideological restrictions under
the former § 203(a)(7) was thought to bring the United States'
scheme into conformity with its obligations under the Protocol,
see S.Rep. at 4, 15-16, [
Footnote 21] and, in our view, these references are to
the United States' obligations under Article 34 to facilitate the
naturalization of refugees within the definition of the Protocol.
There is, as always, some ambiguity in the legislative history --
the term "asylum," in particular, seems to be used in various ways,
see, e.g., S.Rep. at 9, 16, but that is understandable,
given that the same problem with nomenclature has been evident in
case law as well.
See In re Lam, Interim Dec. No. 2857, p.
5 (BIA, Mar. 24, 1981).
Page 467 U. S. 428
Going to the substance of the matter, however, it seems clear
that Congress understood that refugee status alone did not require
withholding of deportation, but rather, the alien had to satisfy
the standard under § 243(h), S.Rep. at 16. The amendment of §
243(h) was explicitly recognized to be a mere conforming amendment,
added "for the sake of clarity," and was plainly not intended to
change the standard. H.R.Rep. at 17-18.
The Court of Appeals' decision rests on the mistaken premise
that every alien who qualifies as a "refugee" under the statutory
definition is also entitled to a withholding of deportation under §
243(h). We find no support for this conclusion in either the
language of § 243(h), the structure of the amended Act, or the
legislative history. [
Footnote
22]
Page 467 U. S. 429
We have deliberately avoided any attempt to state the governing
standard beyond noting that it requires that an application be
supported by evidence establishing that it is more
Page 467 U. S. 430
likely than not that the alien would be subject to persecution
on one of the specified grounds. This standard is a familiar one to
immigration authorities and reviewing courts, and Congress did not
intend to alter it in 1980. We observe that, shortly after adoption
of the Refugee Act, the Board explained:
"As we have only quite recently acquired jurisdiction over
asylum claims, we are only just now beginning to resolve some of
the problems caused by this addition to our jurisdiction, including
the problem of determining exactly how withholding of deportation
and asylum are to fit together."
In re Lam, Interim Dec. No. 2857, p. 6, n. 4 (BIA, Mar.
24, 1981). Today we resolve one of those problems by deciding that
the "clear probability of persecution" standard remains applicable
to § 243(h) withholding of deportation claims. We do not decide the
meaning of the phrase "well-founded fear of persecution" which is
applicable by the terms of the Act and regulations to requests for
discretionary asylum. That issue is not presented by this case.
The Court of Appeals granted respondent relief based on its
understanding of a standard which, even if properly understood,
does not entitle an alien to withholding of deportation under §
243(h). Our holding does, of course, require the Court of Appeals
to reexamine this record to determine whether the evidence
submitted by respondent entitles him to a plenary hearing under the
proper standard.
The judgment of the Court of Appeals is reversed, and the cause
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
[
Footnote 1]
The Immigration Judge's decision stated:
"The policy of restricting favorable exercise of discretion to
cases of
clear probability of persecution of the particular
individual has been sanctioned by the courts (Lena v. Immigration
and Naturalization Service, 379 F.2d 536[,] 538 (7th
Cir.1967)). The respondent has submitted no substantial evidence
that he would be subjected to persecution as that term is defined
by the court."
Brief for Respondent 6-7.
[
Footnote 2]
He did not voluntarily respond to that notice; moreover, after
his apprehension, he unsuccessfully tried to escape from custody.
These events gave rise to a habeas corpus petition raising separate
issues that are not before us now.
[
Footnote 3]
The opinion of the BIA stated, in part:
"Accordingly, we find that the respondent has failed to comply
with the provisions of 8 CFR 3.2 in that there has been no showing
that the submitted material was not available nor could not have
been discovered or presented at a former hearing."
"In addition, we also conclude that the respondent has failed to
make out a
prima facie showing that he will be singled out
for persecution if deported to Yugoslavia. A motion to reopen based
on a section 243(h) claim of persecution must contain
prima
facie evidence that there is a clear probability of
persecution to be directed at the individual respondent.
See
Cheng Kai Fu v. INS, 386 F.2d 750 (2 Cir.1967),
cert.
denied, 390 U.S. 1003 (1968);
Matter of McMullen,
Interim Decision 2831 (BIA 1981)."
"In the instant case, the many journalistic articles submitted
by the respondent are of a general nature, referring to political
conditions in Yugoslavia, but not specifically relating to the
respondent. The affidavits and petitions contained in the file,
while they conclude that the respondent will be imprisoned if he
returns to Yugoslavia, do not contain any supporting facts. They
express an opinion but provide no direct evidence to link the
respondent's activities in this country and the probability of his
persecution in Yugoslavia."
"With regard to the respondent's allegation that he will be
persecuted by Albanian ethnics in Gnjilane, we find that there is
nothing to stop the respondent from going to another town in
Yugoslavia should he feel threatened in his hometown. A respondent
is deported to country [
sic,] not a city or province.
Lavdas v. Holland, 235 F.2d 955 (3 Cir.1956);
Cantisani v. Holton, 248 F.2d 737 (7 Cir.1957)."
App. to Pet. for Cert. 30a-31a.
[
Footnote 4]
Compare Rejaie v. INS, 691 F.2d 139 (CA3 1982),
with Reyes v. INS, 693 F.2d 597 (CA6 1982) (relying on
decision under review).
[
Footnote 5]
Section 23 of the Subversive Activities Control Act of 1950
amended § 20 of the Immigration Act of February 5, 1917, to rewrite
the deportation provisions and specifically to add a new § 20(a)
which provided in part as follows:
"No alien shall be deported under any provisions of this Act to
any country in which the Attorney General shall find that such
alien would be subjected to physical persecution."
64 Stat. 1010.
[
Footnote 6]
Section 243(h) of the Immigration and Nationality Act of 1952
provided as follows:
"The Attorney General is authorized to withhold deportation of
any alien within the United States to any country in which in his
opinion the alien would be subject to physical persecution and for
such period of time as he deems to be necessary for such
reason."
66 Stat. 214.
[
Footnote 7]
That amendment read as follows:
"(f) Section 243(h) is amended by striking out 'physical
persecution' and inserting in lieu thereof 'persecution on account
of race, religion, or political opinion.'"
§ 10, 79 Stat. 918.
The provision as revised in 1965 is quoted in the text,
supra at
467 U. S.
410.
[
Footnote 8]
Notably, during this period of time, neither immigration judges
nor the Board of Immigration Appeals had jurisdiction over asylum
claims under § 203(a)(7). While the Board had jurisdiction over §
243(h) requests for withholding of deportation, § 203(a)(7) claims
for asylum rested in the jurisdiction of Immigration and
Naturalization Service District Directors.
See generally In re
Lam, Interim Dec. No. 2857, p. 5, n. 4 (BIA, Mar. 24,
1981).
[
Footnote 9]
The United States is not a signatory to the Convention
itself.
[
Footnote 10]
Article 32.1 of the Convention provides: "The Contracting States
shall not expel a refugee lawfully in their territory save on
grounds of national security or public order." 19 U.S.T. at 6275.
It seems plain that respondent could not invoke Article 32, since
he was not lawfully in the country when he overstayed his period of
admission. United Nations Economic and Social Council, Report of Ad
Hoc Committee on Statelessness and Related Problems 47 (Mar. 2,
1950) (U.N.Doc. E/1618/Corr.1; E/AC.32/5/Corr. 1) ("The expression
lawfully within their territory' throughout this draft
Convention would exclude a refugee who while lawfully admitted has
overstayed the period for which he was admitted or was authorized
to stay or who has violated any other condition attached to his
admission or stay"); see also United Nations Economic and
Social Council, Report of Ad Hoc Committee on Statelessness and
Related Problems, Second Session 11, � 20 (Aug. 25, 1950) (U.N.Doc.
E/1850; E/AC.32/8). Accord, In re Dunar, 14 I. &
N.Dec. 310, 315-318 (BIA 1973) (citing additional
authority).
[
Footnote 11]
The Board observed that the Attorney General had consistently
granted withholding under § 243(h) when the required showing was
made.
Id. at 321-322.
[
Footnote 12]
See, e.g., Fleurinor v. INS, 585 F.2d 129, 132-134 (CA5
1978) ("well-founded fear" used by Immigration Judge; "likelihood"
and "probable persecution" used by court);
Martineau v.
INS, 556 F.2d 306, 307, and n. 2 (CA5 1977) ("
clear
probability' of persecution" and "likelihood of persecution");
Henry v. INS, 552 F.2d 130, 131-132 (CA5 1977) ("probable
persecution," "reason to fear persecution" and "well-grounded fear
of political persecution"); Pereira-Diaz v. INS, 551 F.2d
1149, 1154 (CA9 1977) ("well-founded fear"); Coriolan v.
INS, 559 F.2d 993, 997, and n. 8 (CA5 1977) ("well-founded
fear that . . . lives or freedom will be threatened" used by
Board); Zamora v. INS, 534 F.2d 1055, 1058 (CA2 1976)
("likelihood of persecution" used by court, "well-founded fear"
used by Board); Daniel v. INS, 528 F.2d 1278, 1279 (CA5
1976) ("probability of persecution"); Paul v. INS, 521
F.2d 194, 200, and n. 11 (CA5 1975) ("well-founded fear of
political persecution"); Gena v. INS, 424 F.2d 227, 232
(CA5 1970) ("likely to be persecuted"); Kovac v. INS, 407
F.2d 102, 105, 107 (CA9 1969) ("probability of persecution" and
"likelihood"); In re Williams, 16 I. & N. Dec. 697,
700-702, 704 (BIA 1979) ("well-founded fear," "`probable
persecution'" and "likelihood of persecution"); In re
Francois, 15 I. & N. Dec. 534, 539 (BIA 1975)
("well-founded fear that . . . life or freedom will be
threatened"); In re Mladineo, 14 I. & N. Dec. 591, 592
(BIA 1974) ("well-founded . . . fear of persecution"); In re
Maccaud, 14 I. & N. Dec. 429, 434 (BIA 1973) ("reasonable
fear" and "well-founded fear"); In re Bohmwald, 14 I.
& N. Dec. 408, 409 (BIA 1973) ("well-founded fear of
persecution").
[
Footnote 13]
The ideological and geographic restrictions of § 203(a)(7)
itself were not altered after the United States' accession to the
Protocol. The Attorney General continued during this period to use
his authority under § 212(d) to parole refugees into the United
States. Moreover, in 1974, the Attorney General, acting pursuant to
his general authority under 8 U.S.C. § 1103, published regulations
permitting applications for asylum to be made to an INS District
Director or American consul. 8 CFR § 108.1 (1976). The regulations
did not explicitly adopt a standard for the exercise of discretion
on the application, but did provide that a denial of an asylum
application
"shall not preclude the alien, in a subsequent expulsion
hearing, from applying for the benefits of section 243(h) of the
Act and of Articles 32 and 33 of the Convention Relating to the
Status of Refugees."
8 CFR § 108.2 (1976).
In 1979, these regulations were amended to provide that a
request for asylum made by an alien after commencement of
deportation proceedings, or after completion of deportation
proceedings, would be considered as a request for withholding or a
request to reopen, respectively, "under section 243(h) of the Act
and for the benefits of Articles 32 and 33 of the Convention
Relating to the Status of Refugees." 8 CFR §§ 108.3(a) and (b)
(1980). This amendment had the effect of conferring jurisdiction
over asylum requests on the Board for the first time.
See In re
Lam, Interim Dec. No. 2857, p. 5, n. 4 (BIA, Mar. 24, 1981).
While rejection of an asylum request by an INS District Director or
American consul still did not
"preclude the alien, in a subsequent expulsion hearing, from
applying for the benefits of section 243(h) of the Act and of
Articles 32 and 33 of the Convention Relating to the Status of
Refugees,"
8 CFR § 108.2 (1980), it appears that requests for asylum were
to be judged by the same likelihood-of-persecution standard
applicable to § 243(h) claims.
Compare § 108.1
with § 108.3(a), § 108.3(b), and § 242.17(c).
[
Footnote 14]
Compare supra at
467 U. S. 411
with supra at
467 U. S.
416-417.
[
Footnote 15]
The amendment (1) substituted mandatory language for what was
previously a grant of discretionary authority to the Attorney
General to withhold deportation after making the required finding;
(2) substituted a requirement that the Attorney General determine
that the "alien's life or freedom would be threatened" for the
previous requirement that the alien "would be subject to
persecution," and (3) broadened the relevant causes of persecution
from reasons "of race, religion or political opinion" to encompass
"nationality" and "membership in a particular social group" as
well.
The removal of the Attorney General's discretion to withhold
deportation after persecution was established with the requisite
degree of certainty relates to the consequences of meeting the
standard, and not to the standard itself.
While it might be argued that the second and third changes in
the text altered the substantive grounds one needs to establish to
be entitled to withholding of deportation,
contra, infra
at
467 U. S.
425-428, neither indicates any diminution in the degree
of certainty with which those grounds must be established .
[
Footnote 16]
Notwithstanding the amendment of § 243(h), the regulation
governing withholding of deportation claims remains substantively
the same: in order to be entitled to a withholding of deportation,
the alien "has the burden of satisfying the special inquiry officer
that he would be subject to persecution . . . ," 8 CFR § 242.17(c)
(1983), and the Board of Immigration Appeals, of course, continues
to apply a clear-probability or likelihood-of-persecution standard
with respect to such claims, as it did in this case.
[
Footnote 17]
Under an amended § 207, the Attorney General may, within
numerical limits, permit aliens who are overseas to immigrate into
the United States on the ground of their status as refugees under §
101(a)(42). 8 U.S.C. § 1157. Refugees admitted under § 207, after
one year of residence and successful reinspection, attain permanent
resident alien status under § 209 of the amended Act. 8 U.S.C. §
1159.
[
Footnote 18]
A new § 208(a) directed the Attorney General to establish
procedures permitting aliens either in the United States or at our
borders to apply for "asylum." 8 U.S.C. § 1158(a). Under § 208(a),
in order to be eligible for asylum, an alien must meet the
definition of "refugee" contained in § 101(a)(42)(A), a standard
that also would qualify an alien seeking to immigrate under § 207.
Meeting the definition of "refugee," however, does not entitle the
alien to asylum -- the decision to grant a particular application
rests in the discretion of the Attorney General under § 208(a).
After passage of the Refugee Act, regulations relating to asylum
previously contained in 8 CFR § 108 were repealed, and regulations
were promulgated under the new § 208 of the Act. Those regulations,
like the statute, expressly provide that a "well-founded fear of
persecution" renders an alien eligible for a discretionary grant of
asylum under § 208. 8 CFR § 208.5 (1983).
We note that, when such asylum requests are made after the
institution of deportation proceedings, they "shall
also
be considered as requests" under § 243(h). 8 CFR § 208.3(b) (1983)
(emphasis supplied). This does not mean that the well-founded-fear
standard is applicable to § 243(h) claims. Section 208.3(b) simply
does not speak to the burden of proof issue; rather, it merely
eliminates the need for filing a separate request for § 243(h)
relief if a § 208 claim has been made. We further note that a §
243(h) request is not automatically also considered as a § 208
request under the regulations. Indeed, the alien may be barred from
asserting a § 208 claim while still allowed to invoke § 243(h).
See 8 CFR § 208.11 (1983).
[
Footnote 19]
The term "clear probability" was used interchangeably with
"likelihood"; the use of the word "clear" appears to have been
surplusage. We think there is no merit to the suggestion that the
Board was applying a "clear and convincing" standard to the
persecution issue.
See generally Addington v. Texas,
441 U. S. 418,
441 U. S.
423-425 (1979). The Board is, of course, quite familiar
with the clear-and-convincing standard, since the Government is
held to that standard in deportation proceedings.
Wood by v.
INS, 385 U. S. 276
(1966).
[
Footnote 20]
The House Judiciary Committee Report stated:
"
Asylum and Withholding of Deportation"
"Since 1968, the United States has been a party to the United
States Refugee Protocol which incorporates the substance of the
1951 U.N. Convention of Refugees and which seeks to insure fair and
humane treatment for refugees within the territory of the
contracting states."
"Article 33 of the Convention, with certain exceptions,
prohibits contracting states from expelling or returning a refugee
to a territory where his or her life or freedom would be threatened
on account of race, religion, nationality, membership in a
particular social group or political opinion.
The Committee
Amendment conforms United States statutory law to our obligations
under Article 3 in two of its provisions:"
"(1)
Asylum. -- The Committee Amendment establishes for
the first time a provision in Federal law specifically relating to
asylum. . . ."
"Currently, United States asylum procedures are governed by
regulations promulgated by the Attorney General under the authority
of section 103 of the Immigration and Nationality Act (
see
8 CFR 108), which grants the Attorney General authority to
administer and enforce laws relating to immigration. No specific
statutory basis for United States asylum policy currently exists.
The asylum provision of this legislation would provide such a
basis."
"The Committee wishes to insure a fair and workable asylum
policy which is consistent with this country's tradition of
welcoming the oppressed of other nations and with our obligations
under international law, and feels it is both necessary and
desirable that United States domestic law include the asylum
provision in the instant legislation. . . ."
"(2)
Withholding of Deportation. -- Related to Article
33 is the implementation of section 243(h) of the Immigration and
Nationality Act. That section currently authorizes the Attorney
General to withhold the deportation of any alien in the United
States to any country where, in his opinion, the alien would be
subject to persecution on account of race, religion, or political
opinion."
"
Although this section has been held by court and
administrative decisions to accord to aliens the protection
required under Article 33, the Committee feels it is desirable, for
the sake of clarity, to conform the language of that section to the
Convention. This legislation does so by prohibiting, with
certain exceptions, the deportation of an alien to any country if
the Attorney General determines that the alien's life or freedom
would be threatened on account of race, religion, nationality,
membership in a particular social group, or political opinion. . .
."
"
As with the asylum provision, the Committee feels that the
proposed change in section 243(h) is necessary so that U.S.
statutory law clearly reflects our legal obligations under
international agreements."
H.R.Rep. at 17-18 (emphasis supplied).
[
Footnote 21]
"As amended by the Committee, the bill establishes an asylum
provision in the Immigration and Nationality Act for the first time
by improving and clarifying the procedures for determining asylum
claims filed by aliens who are physically present in the United
States. The substantive standard is not changed; asylum will
continue to be granted only to those who qualify under the terms of
the United Nations Protocol Relating to the Status of Refugees, to
which the United States acceded in November [1968]."
S.Rep. at 9.
[
Footnote 22]
Nor is there any merit to respondent's argument that this
construction is inconsistent with the Protocol. Existing domestic
statutory law in 1968 was largely consistent with the Protocol.
Under the Protocol, however, attaining the status of "refugee" was
essential in order for an alien to assert his right under Article
33 to avoid deportation, and then he was protected only against
deportation to a territory where his "life or freedom" would be
threatened. Under our statutory scheme, on the other hand, no alien
in the United States would be deported to a country where he was
likely to be "persecuted," a seemingly broader concept than threats
to "life or freedom." In addition, the alien would qualify for
withholding even if he might not be a "refugee" under the Protocol
because, for example, he was not outside his country of nationality
owing to a fear of persecution.
Cf. Rosenberg v. Yee Chien
Woo, 402 U. S. 49,
402 U. S. 57
(1971). Moreover, the domestic statute and regulations provided
many additional procedural safeguards as well, including a right to
be represented by counsel and a right to judicial review.
While refugee status was not essential to avoid withholding of
deportation, it was essential under domestic law to qualify for
preferential immigration status. Our definition of a "refugee"
under § 203(a)(7) was, of course, consistent with the Protocol.
Indeed, the relevant statutory language virtually mirrored the
Protocol definition. The geographic and ideological limitations
were limits on admission. That was not inconsistent with the
Protocol -- the Protocol did not require admission at all, nor did
it preclude a signatory from exercising judgment among classes of
refugees within the Protocol definition in determining whom to
admit. Article 34 merely called on nations to facilitate the
admission of refugees
to the extent possible; the language
of Article 34 was precatory, and not self-executing. The point is
not, however, that the Senate was merely led to believe accession
would work no substantial change in the law; the point is that it
did not work a substantial change in the law.
There were, of course, differences between the Protocol and the
text of domestic law. The most significant difference was that
Article 33 gave the refugee an entitlement to avoid deportation to
a country in which his life or freedom would be threatened, whereas
domestic law merely provided the Attorney General with discretion
to grant withholding of deportation on grounds of persecution. The
Attorney General, however, could naturally accommodate the Protocol
simply by exercising his discretion to grant such relief in each
case in which the required showing was made, and hence no amendment
of the existing statutory language was necessary. There were other
differences between the Protocol and the text of domestic statutory
law in 1968 --
e.g., the Protocol provides protection for
those persecuted on grounds of nationality and membership in social
groups, as well as race, religion, or political opinion. Given our
existing statutory provisions and the considerable discretion an
administrator such as the Attorney General possesses in
interpreting and implementing such statutory provisions, once
again, no amendment of the statute was necessary. Finally, the
Protocol required a showing that the "refugee's life or freedom
would be threatened," while § 243(h) required that the alien would
be subject to "persecution." Although one might argue that the
concept of "persecution" is broad enough to encompass matters other
than threats to "life or freedom" -- deprivations of property, for
example -- and therefore that the Protocol was narrower than the
coverage of the section, we perceive no basis for concluding that
the particular mention of the alien's interest in "life or freedom"
made the Protocol any more generous than domestic law.
In summary, then, to the extent that domestic law was more
generous than the Protocol, the Attorney General would not alter
existing practice; to the extent that the Protocol was more
generous than the bare text of § 243(h) would necessarily require,
the Attorney General would honor the requirements of the Protocol,
and hence there was no need for modifying the language of § 243(h)
itself. As the Secretary of State
correctly explained at
the time of consideration of the Protocol:
"[F]oremost among the rights which the Protocol would guarantee
to refugees is the prohibition (under Article 33 of the Convention)
against their expulsion or return to any country in which their
life or freedom would be threatened. This article is comparable to
Section 243(h) of the Immigration and Nationality Act . . . , and
it can be implemented within the administrative discretion provided
by existing regulations."
S.Exec. K, 90th Cong., 2d Sess., VIII (1968).