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Immigration and Naturalization Service v. Cardoza-Fonseca, Template:Ussc, decided that the standard for withholding of removal set in INS v. Stevic, Template:Ussc, was too high a standard for applicants for asylum to satisfy. In its place, and consistent with the standard set by the United Nations, the Court in Cardoza-Fonseca held that an applicant for asylum in the United States only needs to demonstrate a "well-founded fear" of persecution, which can be met even if the applicant does not show that it is more likely than not he will be persecuted if returned to his home country.


Cardoza-Fonseca entered the United States in 1979 as a visitor from Nicaragua. She overstayed her visa, and the INS began proceedings to deport her. She admitted that she was in the United States illegally, but applied for two forms of relief in the deportation hearings—asylum and withholding of deportation. Under U.S. law, the INS has discretion to grant asylum to an alien eligible for that relief, but must withhold deportation if the alien is eligible for that kind of relief.

To support her request for asylum, Cardoza said that her brother had been tortured by the Sandinistas because of his political activities in Nicaragua. They believed that the Sandinistas knew they had fled Nicaragua together, and that even though Cardoza had not been politically active herself, she feared she would be interrogated about her brother's whereabouts and activities if she should return to Nicaragua. She also mentioned that her own political opposition to the Sandinistas would be brought to the attention of the government. For this reason, Cardoza feared she would be tortured if she returned to Nicaragua.

An immigration judge denied her requests for asylum and withholding of deportation, believing that the same legal standard applied to both claims. The judge found that Cardoza had not established a clear probability of persecution, and thus was not entitled to either asylum or withholding of deportation. The Board of Immigration Appeals (BIA) agreed with these conclusions.

Cardoza appealed only the denial of her claim for asylum to the Ninth Circuit. The Ninth Circuit ruled that the BIA incorrectly applied the same standard to Cardoza's claims for both asylum and withholding of deportation, because the statutes giving the Attorney General authority to grant these forms of relief to aliens were phrased differently. It held that the standard for asylum was lower than that for withholding of deportation, and that asylum only required a showing of a "well-founded fear" of persecution instead of a "clear probability." The INS asked the Supreme Court to hear the case, and it agreed.

Majority Opinion

A person is eligible for the discretionary relief of asylum if they are a refugee; that is, "unable or unwilling to return to, and is unwilling or unable to avail themselves of the protection of, [their home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." By contrast, a person is eligible for the mandatory relief of withholding deportation if they demonstrate a "clear probability of persecution" if they return to their country. Because statutes governing these different forms of relief describe the showing the alien must make in different terms, the Court reasoned those showings were different. Furthermore, a "well-founded fear" is different, and can be lower than, a "clear probability" of persecution.

Three aspects of the legislative history of Congress's definition of asylum bolstered the Court's conclusion. First, before 1980 Congress added the words "well-founded" to the definition of "asylum" to conform the American definition to the United Nations Protocol regarding refugees. Second, the 1980 Refugee Act pushed the goal of conforming U.S. law with the United Nations Protocol Relating to the Status of Refugees. Indeed, the Refugee Act's definition of "refugee" was virtually identical to that of the Protocol's. The Protocol required contracting nations to establish a category of immigrants for whom discretionary grants of asylum were available, and the 1980 act did precisely that. Third, Congress expressly rejected a proposal by the Senate to make the standards for eligibility for asylum and withholding of deportation the same.

The INS argued it would be anomalous to have a lower standard for asylum that afforded greater benefits to an alien than withholding deportation. (Asylum allows a person to become a lawful permanent resident of the United States; while withholding deportation is subject to quotas from certain countries and conditional on deportation to a hospitable third country not being available.) This argument overlooked the fact that asylum is discretionary on the part of the Attorney General, while withholding of deportation is mandatory. Second, the INS asked the Court to make the standards the same because the BIA had interpreted them to be the same, and the Court's precedent in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., Template:Ussc, required it to defer to an agency's own interpretation of a pertinent statute. The question of whether Congress intended the standards to be the same is one for the courts, even under Chevron. The Court was not deciding what a "well-founded fear" would mean, simply that it was a lower standard than a "clear probability" of persecution.

Justice Blackmun commended the Courts of Appeals for their diligent work in recognizing the distinction between the two standards. "The efforts of these courts stand in stark contrast to—but, it is sad to say, alone cannot make up for—the years of seemingly purposeful blindness by the INS, which only now begins its task of developing the standard entrusted to its care."

Justice Scalia stressed he was merely concurring in the judgment of the Court because he believed that it reached the right result. He chastised the Court for examining legislative history. "Judges interpret laws rather than reconstruct legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent." He also questioned whether the Court's discussion of Chevron deference was correct or appropriate.

Dissenting Opinion

Writing for the three dissenting Justices, Justice Powell said he would reverse the decision of the Ninth Circuit because the BIA's interpretation of the definition of "refugee" was reasonable. He pointed out that the BIA's interpretation of both "well-founded fear" and "clear probability of persecution" were not mathematical in nature; they were instead qualitative determinations. The heart of the standard articulated by the BIA was its "empirical conclusion, based on its experience in adjudicating asylum applications, that if the facts establish such a basis for an alien's fear, it rarely will make a difference whether the judge asks if persecution is 'likely' to occur or 'more likely than not' to occur. If the alien can establish such a basis, he normally will be eligible for relief under either standard."

Second, Justice Powell observed that both a "well-founded fear" and a "clear probability" had an objective component. The question in this case—whether those objective components are materially different, and if so, how—"is just the type of expert judgment—formed by the entity to whom Congress has committed the question—to which we should defer." Persecution is an individualized activity, and the BIA had undertaken of evaluate the probability of persecution qualitatively. There was no reason to suppose that the BIA's formulation of the standard was inconsistent with Congress's definition of the statute, particularly in light of what Powell considered an ambiguous legislative history.

Third, Powell asserted the BIA had actually applied the lower standard the Court had identified to the evidence presented in this case. Cardoza's other family members, after all, were still in Nicaragua and presumably subject to the persecution she and her brother claimed to fear. Cardoza admitted that she herself had not taken any action against the Nicaraguan government. In fact, she said she was not politically active, and had never been singled out for persecution by the government. The BIA accordingly held that Cardoza wnot entitled to relief under any standard, including the "good reason" standard ultimately adopted by the Ninth Circuit, a standard Powell described as the "least burdensome" standard available to the BIA. Accordingly, Powell felt that the BIA had applied the correct legal standard to Cardoza's claim for asylum.

See also

Further reading

  • Soltero, Carlos R. (2006). "INS. v. Cardoza-Fonseca (1987), refugees, and political asylum". Latinos and American Law: Landmark Supreme Court Cases. Austin, TX: University of Texas Press. pp. 135–144. ISBN 0292714114.

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