480 U.S. 421, 452 (1987)
In 1979 respondent Cardoza-Fonseca, a thirty-eight-year-old Nicaraguan citizen, entered the United States as a visitor.1
She remained longer than permitted and declined an offer of voluntary departure from the Immigration and Naturalization Service, prompting the Service to commence deportation proceedings against her.2
She conceded that she was present illegally but applied for withholding of deportation under section 243(h) and for asylum under section 208(a).3 Her evidence centered on her brother's political activities in Nicaragua, which had resulted in his torture and imprisonment by the Sandinistas, together with her own testimony that she would be interrogated and tortured upon return because of her association with him and her own political opposition.4
The Immigration Judge applied the same standard to both claims, found that she had not shown a clear probability of persecution, and denied relief.5 The Board of Immigration Appeals affirmed, concluding that she had failed to establish persecution within the meaning of either statutory provision.6
Respondent appealed only the asylum ruling to the Court of Appeals for the Ninth Circuit.7 That court held that the governing standards differ and remanded the asylum claim for reconsideration under the proper standard.8 The Supreme Court granted certiorari to resolve a conflict among the circuits.9
Whether the standard for establishing eligibility for asylum under section 208(a) of the Immigration and Nationality Act is identical to the standard for establishing eligibility for withholding of deportation under section 243(h)?10
Section 208(a) authorizes discretionary asylum for an alien with a well-founded fear of persecution, while section 243(h) mandates withholding only upon a showing that life or freedom would be threatened, a standard interpreted in Stevic as requiring proof that persecution is more likely than not.11
No. The statutes employ distinct language, with the subjective element of fear in the asylum provision contrasting the objective would-be-threatened test of withholding.12
The legislative history of the 1980 Act confirms Congress adopted the broader UN Protocol definition for asylum eligibility while retaining the stricter standard for withholding.13
In the established facts, the Immigration Judge and Board of Immigration Appeals applied the clear-probability standard to both of Cardoza-Fonseca's claims based on her brother's persecution and her own feared interrogation, an approach the Ninth Circuit correctly rejected as conflating the two provisions.14
The standards are not identical; the asylum standard is more generous and does not require proof that persecution is more likely than not.15
Related opinions on this issue
Justice Blackmun joined the Court's opinion and judgment.16 He accepted the narrow conclusion that the Immigration Judge and the BIA were incorrect in holding that the standards for withholding of deportation and granting asylum are identical.17
In accordance with this holding, the Court eschewed any attempt to give substance to the term well-founded fear and left that task to the process of case-by-case adjudication by the INS.18
Blackmun wrote separately to emphasize his understanding that the Court had directed the INS to the appropriate sources from which the agency should derive the meaning of the well-founded fear standard.19 These sources include the very language of the term, which demands an examination of the subjective feelings of an applicant coupled with an inquiry into the objective nature of the articulated reasons for the fear.20
The Court also noted that the Act's definition of refugee tracks the language of the United Nations Protocol, which has a rich history of interpretation in international law and scholarly commentaries.21 Blackmun observed that the well-reasoned opinions of the Courts of Appeals, which almost uniformly rejected the INS's misreading, provide an admirable example of the case-by-case adjudication needed for development of the standard.22
Justice Scalia agreed with the Court that the plain meaning of well-founded fear and the structure of the Immigration and Nationality Act clearly demonstrate that the well-founded fear standard and the clear probability standard are not equivalent.23
He concurred in the judgment rather than joining the Court's opinion for two reasons.24 First, despite reaching the above conclusion, the Court undertook an exhaustive investigation of the legislative history of the Act.25 Scalia viewed this inquiry as an ill-advised deviation from the principle that if the language of a statute is clear, that language must be given effect.26
Second, he was troubled by the Court's discussion of whether the INS's interpretation of well-founded fear is entitled to deference under Chevron.27 Since the Court concluded that the INS's interpretation is clearly inconsistent with the plain meaning and structure of the Act, there was no need or justification for discussing deference.28 Scalia viewed the Court's discussion as flatly inconsistent with the established interpretation of Chevron and as an unwarranted reformulation of administrative law principles unnecessary to decide the case.29
Joined by The Chief Justice And Justice White
Justice Powell dissented, contending that the BIA's interpretation of the statute is reasonable.30 He examined the BIA's approach in Acosta in detail.31
Under that analysis, an immigration judge first determines the underlying historical facts by a preponderance of the evidence.32 The judge then decides whether those facts meet the definition of refugee, focusing on whether the fear is well-founded.33
The BIA adhered to its prior interpretation requiring some objective evidence showing a realistic likelihood of persecution.34 Powell noted that the BIA eschewed mathematical probabilities and adopted a four-part test requiring proof of facts demonstrating a realistic likelihood of persecution.35
The BIA concluded that as a practical matter the facts in asylum and withholding cases rarely produce clear-cut instances where fine distinctions between likely and more likely than not can be meaningfully made.36 Powell argued that the language of the Act is ambiguous on the precise evidentiary threshold and that the BIA's expert judgment, formed by the entity to whom Congress committed the question, is entitled to deference.37 He would have reversed the Court of Appeals and upheld the BIA's denial of Cardoza-Fonseca's claim.38
Whether an alien seeking asylum must prove that persecution is more likely than not to demonstrate a well-founded fear of persecution?39
An alien establishes a well-founded fear by showing a reasonable possibility of persecution, a standard satisfied when objective evidence supports either past persecution or good reason to fear future persecution, without needing to prove that persecution is more probable than not.40
No. Ordinary meaning of well-founded fear permits a fear to be well founded even when the chance of persecution is less than fifty percent, as illustrated by the example of one-in-ten risk.41
The 1980 Act incorporated a broader refugee definition drawn from the UN Protocol that does not require proof of clear probability.42
In the established facts, Cardoza-Fonseca presented evidence of her brother's torture and imprisonment together with her own testimony of anticipated interrogation due to family association, which the lower courts wrongly evaluated under the stricter more-likely-than-not test rather than the proper well-founded fear inquiry.43
An alien need not prove that persecution is more likely than not; a reasonable possibility suffices to establish eligibility for asylum consideration.44
Related opinions on this issue
Justice Blackmun joined the Court's opinion and judgment. He accepted the narrow conclusion that the Immigration Judge and the BIA were incorrect in holding that the standards for withholding of deportation and granting asylum are identical.
In accordance with this holding, the Court eschewed any attempt to give substance to the term well-founded fear and left that task to the process of case-by-case adjudication by the INS.
Blackmun wrote separately to emphasize his understanding that the Court had directed the INS to the appropriate sources from which the agency should derive the meaning of the well-founded fear standard. These sources include the very language of the term, which demands an examination of the subjective feelings of an applicant coupled with an inquiry into the objective nature of the articulated reasons for the fear.
The Court also noted that the Act's definition of refugee tracks the language of the United Nations Protocol, which has a rich history of interpretation in international law and scholarly commentaries. Blackmun observed that the well-reasoned opinions of the Courts of Appeals, which almost uniformly rejected the INS's misreading, provide an admirable example of the case-by-case adjudication needed for development of the standard.
Justice Scalia agreed with the Court that the plain meaning of well-founded fear and the structure of the Immigration and Nationality Act clearly demonstrate that the well-founded fear standard and the clear probability standard are not equivalent.
He concurred in the judgment rather than joining the Court's opinion for two reasons. First, despite reaching the above conclusion, the Court undertook an exhaustive investigation of the legislative history of the Act. Scalia viewed this inquiry as an ill-advised deviation from the principle that if the language of a statute is clear, that language must be given effect.
Second, he was troubled by the Court's discussion of whether the INS's interpretation of well-founded fear is entitled to deference under Chevron. Since the Court concluded that the INS's interpretation is clearly inconsistent with the plain meaning and structure of the Act, there was no need or justification for discussing deference. Scalia viewed the Court's discussion as flatly inconsistent with the established interpretation of Chevron and as an unwarranted reformulation of administrative law principles unnecessary to decide the case.
Joined by The Chief Justice And Justice White
Justice Powell dissented, contending that the BIA's interpretation of the statute is reasonable. He examined the BIA's approach in Acosta in detail.
Under that analysis, an immigration judge first determines the underlying historical facts by a preponderance of the evidence. The judge then decides whether those facts meet the definition of refugee, focusing on whether the fear is well-founded.
The BIA adhered to its prior interpretation requiring some objective evidence showing a realistic likelihood of persecution. Powell noted that the BIA eschewed mathematical probabilities and adopted a four-part test requiring proof of facts demonstrating a realistic likelihood of persecution.
The BIA concluded that as a practical matter the facts in asylum and withholding cases rarely produce clear-cut instances where fine distinctions between likely and more likely than not can be meaningfully made. Powell argued that the language of the Act is ambiguous on the precise evidentiary threshold and that the BIA's expert judgment, formed by the entity to whom Congress committed the question, is entitled to deference. He would have reversed the Court of Appeals and upheld the BIA's denial of Cardoza-Fonseca's claim.