Amicus Curiae Brief — Immigration & Naturalization Service v. Cardoza-Fonseca

®)

No. 85-782

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

IMMIGRATION AND NATURALIZATION SERVICE,

Petitioner,

v.

Luz MARINA CARDOZA FONSECA,

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

THE INTERNATIONAL HUMAN RIGHTS LAW GROUP

AND THE WASHINGTON LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS UNDER LAW

IN SUPPORT OF RESPONDENT

E. EDWARD BRUCE*

CAROL FORTINE

CARLOS M. VAZQUEZ

COVINGTON & BURLING

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

*Counsel of Record

July 14, 1986

AO |

INTEREST OF AMICI CURIAE

STATEMENT OF THE CASE

Background

— a

TABLE OF CONTENTS

Proceedings Below

SUMMARY OF ARGUMENT

Il.

THE PLAIN MEANING AND THE

STRUCTURE OF THE INA CONTRA-

DICT THE SERVICE'S POSITION ....

THE LEGISLATIVE HISTORY ES-

TABLISHES THAT THE "WELL-

FOUNDED FEAR" STANDARD DOES

NOT REQUIRE AN ALIEN TO

PROVE A "CLEAR PROBABILITY"

OF PERSECUTION

A.

The Definition of "Refugee’

Has Its Origin in Prior

Domestic Law That Required

Only a "Reasonable Basis"

Cause" Showing ...

or "Good

e The

Act

Be The

Act

Displaced Persons

of 1948

Refugee Relief

of 1953

J

12

13

28

30

31

34

Be The 1965 Amendments

ee. ooo oe & awe

B. The INS's Narrow Interpre-

tation of "Refugee" is In-

consistent with the Pur-

pose of the 1980 Amend-

ments to the INA ..........

C. The U.N. Convention, Upon

Which Section 101(1)(42)

Was Based, Adopts a "Good

Reason” Standard ..........

III. THE INS'S ARGUMENTS REGARDING

THE LEGISLATIVE HISTORY OF THE

1980 ACT ARE MISCONCEIVED ......

CEE COS cd eceerecceccesseccccces

41

44

52

64

- 444 -

TABLE OF AUTHORITIES

CASES:

In re Acosta-Solorzano,

Int. Dec. No. 2986

(B.2.4. March 1, 1965) .........

Board of Governors v. Dimension

Financial Corp., 106 S. Ct.

Ces. wdecinee ees 6e0 0

In re Bohmwald, 14 1. & N.

ie SE Ea medhs BOPS) cccccces

Bolanos Hernandez v. INS,

767 F.2d 1277 (9th Cir.

Dt SOc eee e leg wed dost bees

Bowsher v. Merck & Co., 460

ee 2 | ee

Cardoza Fonseca v. INS, 767

F.2d 1448 (9th Cir. 1985),

cert. granted, 106 S. Ct. 1181

i eanes

Carvajal Munoz v. INS, 743

F.2d 562 (7th Cir. 1984) ......

Cheng Fu Sheng v. Barber,

269 F.2d 497 (9th Cir.

er) Peer eT Tee

Chevron U.S.A. Inc. v. National

Resources Defense Council,

Inc., 467 U.S. 837 (1984) .....

17

o- 4@ «

Page

Coriolan v. INS, 559 F.2d 993

Se ct sicedsocvececes 62

In re Drachman, ll I. & N.

DEE Picedeseccoeccs 38

In re Dunar, 14 1. & N. Dec. 310

DUPE Ee bbcccnedataeocece 60

Fleurinor v. INS, 585 F.2d 129

ST ME be cGedoctbecce. 61

Fong Foo v. Shaughnessy, 234

a BB, Be | .. | ) Re 36

In re Francois, 15 I. & N. Dec.

so & Sp . | rr 61-62

Gena v. INS, 424 F.2d 227 (5th

i Cn ood 646. 6904068006 00 61

Griffin v. Oceanic Contractors,

Inc., 458 U.S. 564 (1982) ..... 13

Guevara Flores v. INS, 786 F.2d

eee Se GE, BOUED cocccscees 7

Henry v. INS, 552 F.2d 130 (5th

Se Me hens ebebeeeeeses ss 61

INS v. Stevic, 467 U.S. 407

OE ea ee 4, passim

In re Janus and Janek,

12 I. & N. Dec. 866 (1968) .... 39

Kashani v. INS, 547 F.2d 376

Se Se SEE 6 066b beneens eo 62

;

a @oweg@ggweawmebtisegeeabtaead = &

In re Kozielczk, LI I. & N.

DP cxcccceceeeecoces

Landreth Timber Co. v. Landreth,

a Ws es Ee CEROOSD cocccececes

Lavdas v. Holland, 139 F. Supp.

514 (E.D. Pa. 1955), aff'd,

235 F.2d 955 (3d Cir. 1956)

In re Maccaud, 14 1. & N. Dec.

9 (B.I.A. 1973), aff'd, 500

» 2 Be 8 oe). ) eee

Martineau v. INS, 556 F.2d 306

oc cccccenccece

In re Martinez Romero, Int.

Dec. No. 2872 (BIA 1981) .......

Mascarin v. Holland, 143 F. Supp.

a Miles Mis BOD coccsccceces

Metropolitan Life Insurance Co. v.

Massachusetts, 105 S. Ct. 2380

i ieee ek eeeeseseesceves

In re Mladineo, 14 I. & N.

BO. See EBekeA. 19FG) .ccccce.

Paul v. INS, 521 F.2d 194 (5th

Mee BOPED cb bCoeeccceseccocsece

Pereira Diaz v. INS, 55l F.2d

See Wee Gs BOOED ceccccccecs

33

;

a

’

'

—

« @ «

Sankar v. INS, 757 F.2d 532

i ne 2666 66s e660 66 © 8'e ¢

In re Tan, 12 1I.&N. Dec.

nis eee ng be e608 60000 66

Udall v. Tallman, 380 U.S. 1

thee cea ean 6 6s 5 66 b's 666 6 68

In re Ugricic, 14 I. & N. Dec. 385

EE ee

United States v. James, 54

U.S.L.W. 5030 (U.S. July 2,

DE UR eee betes eccesecssecoeses

In re Williams, 16 I. & N.

Ses ee ess BETO) cccccccece

Youkhanna v. INS, 749 F.2d 360

Cy |)

Zamora v. INS, 534 F.2d 1055 (2d

Pr Ceeeca beds dvcesdees es

STATUTES:

Displaced Persons Act of 1948

Pub. L. No. 80-774,

ee Sc ce ceases.

Section 2(b), 62 Stat. 1009

Section 3(a), 62 Stat. 1010

- vii -

Page

Section 4, 62 Stat. 1lOl1] ....... 33

Immigration and Nationality Act

of 1952, 8 U.S.C. § 1101 et seq. 2, passim

Section 101(a)(42), 8 U.S.C.

§ 1101(a)(42)(A) (1982) ..... 3, passim

Section 203(a)(7), 8 U.S.C...

DS BEEPEe DD CEPOUD coccccccss 37, passim

Section 207, 8 U.S.C. § 1157

a: we. ele see ene Oa 0-0 08 4, passim

adel @ Oe bh de eb 6. e 06.4. 4, passim

Section 209, 8 U.S.C. § 1159

EE ere Pe ee 4, passim

Section 243(h), 8 U.S.C.

Bo 6, passim

Refugee Act of 1980, P.L. No.

SE ee: ae 4, passim

Refugee kelief Act of 1953, P. L.

No. 83-203, 67 Stat. 400 ....... *, 35,

38

Section 2(a), 67 Stat. 400 ..... 34

Beeesenm ©. Ge BEGG. SOD .cccccce 35

Refugee-Escapee Act of 1957,

P.L. No. 85-316, 71 Stat.

Dy SUR GEAS GSES REE EEGSS cues 7, 3, &

=a a ae eeteteeteesee& & & a

~”n

®

a

(Tt

--

Q

=]

Nm

o

Me

Cc

G

on

e

mo

—"

e

Ww

co

a - viii -

Page

a Section 15(c)(1), 71 Stat.

ee ee a 35

‘_ Immigration and Nationality

Act Amendments of 1965, P. L.

No. 89-236, 79 Stat. 911

a RS ee 37, 39, 40

Section 3, 79 Stat. 911, 913 ... 37

a LEGISLATIVE HISTORY:

H.F.. Rep. No. 1069, 83rd Cong.,

e 0 MG CED bocce eeke0 oes ce 34

S. Rep. No. 629, 83rd Cong.,

7 Ss EEE SS ce eencneceseccs 34

S. Rep. No. 748, 89th Cong.,

en es Onn a6 wes eGevees ana 37

: S. Rep. No. 96-256, 96th Cong.,

e Fe ¢ | er 30, passim

4 H.R. Rep. No. 96-608, 96th Cong.,

& “ert >: —. , POSE tess ante 4, passim

4 The Refugee Act of 1979: Hearings

on S. 643 Before the Senate

Judiciary Comm., 96th Cong.,

E Se ccc cacccacses 54

The Refugee Act of 1979: Hearings

on H.R. 2816, Before The

E Subcomm. on Immigration,

Refugees, and international

Law of the House Judiciary

i] Comm., 96th Cong.. lst Sess.

Te ah'enbb4 6k bos k babies ok kod os 54-55, 56,

57

- ix -

Page

The Refugee Act of 1979: Hearings

on H.R. 2816 Before the Subcomm.

on International Operations of

the House Comm. of Foreign

Affairs, 96th Cong., lst Sess.

DCSE eee bee eseacbocececescs 58

126 Cong. Rec. 4498 (1980) ....... 43

125 Cong. Rec. 35815 (1979) ...... 42

126 Cong. Rec. 3756 (1980) ....... 40

126 Cong. Rec. 3757 (1980) ....... 55-56

INTERNATIONAL MATERIALS:

Constitution of the International

Refugee Organization, opened for

Signature December 15, 1946, en-

tered into force for the United

States August 20, 1948, 62 Stat.

Bees BebetcBs BO. BOGS 2 ccccces 32, 33, 48

United Nations Convention Relating

to the Status of Refugees,

opened for signature July 28,

f & & = Sb) > sae ll, 27-28,

29, 44-52

United Nations Protocol Relating

to the Status of Refugees, opened

for signature January 31, 1967,

entered into force for the United

States November 1, 1968, 19 U.S.T.

Ds Wememtatis Gs GOCE cccccces 45, 59

_- x _—

Page

United Kingdom: Draft proposal for

Article 1, U.N. Doc. E/AC.32/L.2

ERE SR heceeceeedcdocescccoces 46-47

United Kingdom: Revised draft

proposal for Article l, U.N.

Doc. E/AC.32/L.2/rev.1 (1950) .. 47

France: Proposal for a Draft

Convention, U.N. Doc.

DOGu ee CEPOOE ccccccccccecs 47-48

United States of America: Memoran-

dum on the Definition Article of

the Preliminary Draft Convention

Relating to the Status of Refu-

gees (and Stateless Persons),

U.N. Doc. E/AC.32/L.4 (1950) ... 48

Report of the Ad Hoc Committee on

Statelessness and Related Prob-

lems, U.N. Doc. E/1618,

CS ree 49-50

Ad Hoc Committee Summary Record of

the Fifth Meeting, U.N. Doc.

BPM SEO SD CEPSOD cecccccccccs 48

Ad Hoc Committee Summary Record of

the Sixth Meeting, U.N. Doc.

BiGie SEP CEUMED cocceccceses 49

Social Committee Summary Record of

160th Meeting, U.N. Doc.

i Bes FFG BOO CROSE) cecccccvces 51

OTHER AUTHORITIES:

44 Fed. Reg. 21,253 (April 10,

MOE Ebbeeebeesercesccccevccces

Note, The Right of Asylum Under

United States Law, 80 Colum. L.

> Fe Be. | eae

Cox, "Well-Founded Fear of Being

Persecuted: The Sources and

Application of a Criterion of

Refugee Status, 10 Brooklyn J.

ee le EOD cccccececccs

New York Times, April 17, 1986,

ee Bak SE Gio. 0:06 8 0000's 0

INTEREST OF AMICI CURIAE~/

The International Human Rights

Law Group ("the Law Group™) is a non-profit

organization incorporated in 1983 in the

District of Columbia that seeks to promote

the observance of international human

rights by providing pro bono legal assis-

a

tance and information, representing

clients before international fora, and

participating as amicus curiae in litiga-

tion. The Law Group represents the

National Council of Churches in cases

currently pending before the Inter-American

Commission on Human Rights concerning the

treatment of Haitian and Salvadoran

refugees.

The Washington Lawyers’ Committee

for Civil Rights Under Law is the Washington,

1/ Petitioner and respondent have given their

written consent to the filing of this brief.

D.C., affiliate of the Lawyers’ Committee

for Civil Rights Under Law. That Committee

was organi.ed in 1963, at the request of

President Kennedy, to involve private

attorneys in the national effort to assure

equal rights for all members of society.

The national and Washington Lawyers’

Committees have long provided volunteer

legal represenration to individuals

claiming unlawful discrimination and other

invasions of civil rights. In 1978, the

Washington Lawyers’ Committee established

an Alien Rights Project to represent

noncitizens who fear persecution if

returned to their homelands.

Amici curiae offer this brief primarily

to focus upon the legislative history of

relevant provisions of the Immigration and

Nationality Act of 1952, 8 U.S.C. § 1101

et seq. ("INA"), as amended by the Refugee

Act of 1980.

STATEMENT OF THE CASE

Background. This case requires

the Court to determine whether persons who

believe for good reasons that they would

be persecuted in their netive lands are

"refugees" within the meaning of the

Immigration and Nationality Act, 8 U.S.C.

§ 11U1 et seq. (hereinafter "INA"), and

thus are eligible to apply for entry into

the United States or, if already here, to

seek asylum or permanent resident status.

Section 101(a)(42) of the INA

defines "refugees" as all aliens who are

"unwilling" to return to their native

countries "because of persecution or a

well-founded fear of persecution on

account of race, religicn, nationality,

membership in a particular social group,

or political opinion.” 8 U.S.C.

§ 1101(a)(42)(A). This definition of

"refugee" was added to the INA by the

Refugee Act of 1980, P.L. 96-212, 94 Stat.

103, to ensure that U.S. immigration

statutes reflect our treaty commitments

and domestic policy to "welcom[e] the

oppressed of other nations. "2/

For the same reasons, the term

"refiigee" was incorporated into three new

sections of the INA added in 1980:

Section 207, 8 U.S.C. § 1157, which

permits the Attorney General to admit

refugees into the United States; Section

208, 8 U.S.C. § 1158, which gives him the

discretion to grant asylum to refugees

already in the United States or at its

borders; and Section 209, 8 U.S.C. § 1159,

which allows him to adjust the status of

2/ See INS v. Stevic, 467 U.S. 407, 426 n.20

(1984), (quoting H.R. No. 96-608, 96th Cong., Ist

Sess. 17-18 (1979)).

refugees granted asylum under Section 208

to permanent residents.

Proceedings Below. This case

began with the request by Luz Marina

Cardoza Fonseca for asylum pursuant to

Section 208 of the INA. Ms. Cardoza

Fonseca testified in proceedings before

the Immigration and Naturalization Service

("INS" or "Service") that she holds

political opinions opposed to the Sandinista

regime in Nicaragua and that she believes

her opinions are known to that regime

because of her relationship to her brother.

Respondent's brother had renounced his

affiliation with the Sandinista movement

and had publicly criticized its progression

towards communism before coming to the

United States and applying for asylum.

Respondent testified that she fears the

Sandinistas will now persecute her to

retaliate against her brother or to

extract information which the Sandinistas

believe he may have told her. Respondent

further testified that her sister, who

continues to live in Nicaragua, has

advised her that it is too dangerous for

respondent to return to that country.

The INS rejected respondent's

testimony as insufficient. It took the

position that, in order to have a "well-

founded fear" of persecution and thus to

qualify as a "refugee" who can seek asylum

under Section 208, respondent must show a

"clear probability" of persecution --

i.e., that it is more likely than not that

she would be persecuted in Nicaragua.

The Service did not extract this

"clear probability" standard either from

Section 101's definition of "refugee" or

from Section 208. Instead, it relied on

cases decided under Section 243(h) of the

Act, 8 U.S.C. § 1253(h). That provision

does not apply to "refugees," but instead

bars the deportation of "aliens" to

countries where their "li[ves] or freedom

would be threatened."

The Ninth Circuit reversed.

Cardoza Fonseca v. INS, 767 F.2d 1448 (9th

Cir. 1985), cert. granted, 106 S. Ct. 1181

(1986). In accordance with its earlier

holding in Bolanhos Hernandez v. INS, 767

F.2d 1277 (9th Cir. 1985), and those of

other circuits ,>/ the court held that

aliens' fears of persecution are "well-

founded" if they have "good reason" to

fear persecution, even if they cannot show

a probability of persecution. The court

3/ Carvajal Munoz v. INS, 743 F.2d 562 (7th Cir.

1984); Guevara Flores v. INS, 786 F.2d 1242 (5th

Cir. 1986). See also Youkhanna v. INS, 749 F.2d

360 (6th Cir. 1984). Only the Third Circuit has

sustained the position advocated by the INS here.

Sankar v. INS, 7/57 F.2d 532 (3d Cir. 1985).

held that the plain meaning of the term

"refugee" as someone with a "well-founded

fear of persecution" requires "that (1)

the alien have a subjective fear, and (2)

that this fear have enough of a basis that

it can be considered well-founded." 767

F.2d at 1453.4/

4/ The INS District Director in Fiorida recently

announced, with the apparent approval of the

Department of Justice, that aliens fleeing

Nicaragua would no longer have the burden of

demonstrating that they would be persecuted;

instead, the Service would have to prove that they

would not be persecuted. See New York Times,

April 17, 1986, page 1, column 1. In addition,

the Department of Justice is reportedly drafting

regulations that would impose the same burden on

the INS for aliens claiming that they are fleeing

other communist countries. See id. This apparent

change in the Service's enforcement policy seems

to be inconsistent with the INS's construction of

the Act in this case and raises the question

whether the writ should be dismissed as

improvidently granted.

SUMMARY OF ARGUMENT

z. The Service's position that

aliens seeking to establish “refugee”

status by proving a "well-founded fear" of

persecution must show that they are, in

fact, likely to be persecuted in their

homeland ignores the plain meaning of the

terms of the INA and is based on a provision

of the Act that does not use the terms

"refugee" or “well-founded fear." This

Court should not defer to such a construc-

tion of the Act, since it is based upon

the INS's continued adherence to a position

which predates the 1980 amendments to the

Act and thus represents an unwillingness

to change that position, rather than a

contemporaneous construction of the

Statute. Moreover, the Service ignores

the fact that its restrictive definition

of "refugee" will reduce the number of

aliens eligible for admission into the

United States as refugees. Finall , the

INS's argument that a narrow interpreta-

tion of "refugee" and consequent restric-

tion of asylum are necessary to avoid

making redundant the Act's withholding-of-

deportation remedy ignores the fact that

the asylum remedy is discretionary whereas

withholding of deportation is mandatory.

II. The legislative history of

the 1980 amendments to the INA shows that

Congress intended that the standarad for

establishing refugee" status would be

more generous than the one the Service

proposes: (A) Congress did not intend to

narrow the prior standard for establishing

refugee status, which had consistently

been interpreted to require only a showing

of "good reason" or a "reasonable basis"

for fea:ing persecution. (B) Congress

intended to enhance the Attorney General's

flexibility in addressing world refugee

problems, whereas the Service's proposed

standard would narrow the class of aliens

who could qualify as refugees. (C) Congress

intended that the term "refugee" be

interpreted in conformity with the United

Nations Convention Relating to the Status

of Refugees, opened for signature July 28,

1951, 189 U.N.T.S. 137 ("U.N. Convention");

the negotiating history of the Convention

establishes that a “refugee” is an alien

with "good reason" or “reasonable grounds”

for fearing persecution.

III. The Service's legislative

history argument is misconceived: (A) Its

contention that it is “inconceivable” that

Congress covld have intended a different

standr~d for asylum than the one set forth

in the INS's prior regulations ignores the

fact that Congress mandated the "well-founded

fear" test that the Service had previously

rejected. (B) The Service's argument that

Congress ~stified the prior asylum standard

by virtue of its references to the prior

regulations or to the term "asylum" plays

upon the ambiguity of that term and

ignores the fact that the term was frequent-

ly used as a synonym for refugee admissions

or for adjustment of status, both of which

had been moie generously granted than

"asylum" as defined in the prior regulations.

(C) The Service's argument that Congress

ratified prior judicial and administrative

constructions of the “well-founded fear"

standard as the equivalent of the "clear

probability” standard is without merit

because there was no consensus prior to

1980 that the two standards were equivalent.

ARGUMENT

Zz. THE PLAIN MEANING AND THE STRUCTURE

OF THE INA CONTRADICT THE SERVICE'S

POSITION.

"The starting point in every

case involving construction of a statute

is the language itself." Landreth Timber

Co. v. Landreth, 105 S. Ct. 2297, 2301-02

(1985).2/ Thus, this Court has "no choice

but to ‘begin with the language employed

by Congress and the assumption that the

ordinary meaning of that language accurate-

ly expresses the legislative purpose.'"

Metropolitan Life Insurance Co. v. Massachu-

setts, 105 S. Ct. 2380, 2389 (1985).

The Service ignores these

principles. It takes the position that

the "well-founded fear of persecution”

test embodied in the definition of "refu-

gee" in Section 101(a)(42) of the INA and

used in Sections 207-09 should be interpret-

ed in precisely the same fashion as the

quite different test of Section 243(h),

5/ See also United States v. James, 54 U.S.L.W.

5030, 5032-33, 5035 (U.S. July 2, 1986); Bowsher

v. Merck & Co., 460 U.S. 824, 830 (1983); Griffin

v. Oceanic Contractors, Inc., 458 U.S. 564, 570

(1982).

which requires aliens to prove that their

“lifves] or freedom would be threatened"

if deported.

Understandably unwilling to

argue that its reading of the statute can

be sustained by the plain meaning of its

terms, the INS instead argues that the

Court should defer to the agency's con-

struction (Petr. Br. 9-11); that Congress

could not have intended to permit aliens

to qualify as "refugees" under Section

101(a)(42), and thus to be eligible to

apply for asylum under Section 208, if

they are not also eligible for withholding-

of-deportation under Section 243(h) (id.

at 11-28); and that the use of a standard

to grant asylum under Sections 101(a)(42)

and 208 which differs from the standard

used in Section 243,(h) "would be administra-

tively unworkable” (id. at 28-32).

Since the bulk of the Service's

argument is devoted to an attempt to

discern the intent of Congress on this

issue, amici's brief will be directed to

the legislative history of the statute and

will show that, in equating the standard

for withholding deportation under Section

243(h) with the standard for asylum under

Sections 101(a)(42) and 208, the Service

has misread Congress’ intention. Before

turning to the legislative history,

however, we make the following points

which we assume will be developed at

greater length by respondent and by other

amici supporting her.

A. The issue in this case is the

definition of the term “refugee” set forth

in Section 10l1(a)(42) of the Act and

incorporated into Sections 207-209.

Congress unmistakably indicated that it

was not necessary for aliens to show that

they would actually be persecuted, since

“refugee” was defined as including all

aliens who are "unwilling to return

because of persecution or a well-founded

fear of persecution. ..." 8 U.S.C.

§ 1101(a)(42) (emphasis added). Obviously,

Congress contemplated that aliens could

qualify for "refugee" status by producing

evidence either that they would be persecut-

ed or that they had a "well-founded fear"

of persecution.

Aliens invoking this latter

alternative can offer evidence bearing

upon their state of mind -- i.e., that

they in fact have a "fear of persecution"

-- as well as some objective evidence to

show that their fear is "well-founded. "©/

6/ As the Ninth Circuit recognized, to be

"well-founded" there must be "good reason" for

(Footnote Cont inued)

Unlike those seeking to satisfy the

“persecution” test, however, they would

not be required to prove that they would,

in fact, be persecuted abroad.

(Footnote Continued)

fearing persecution. 767 K.2d at 1453. Since

that court properly declined to apply the

"well-founded fear" standard to respondent's

claims before the Board itself had performed that

task, 767 F.2d at 1455, it is not necessary now to

define more precisely the test which the Service

should use in determining whether a refugee's fear

of persecution is "well-founded."

We do, however, note the error of the test

the Board enunciated in In re Acosta-Solorzano,

Int. Dec. No. 2986 (B.I.A. March 1, 1985). Among

the errors made by the Board in that case was its

holding that, to qualify as a refugee seeking

asylum under Section 208, aliens must "as a

practical matter" show, inter alia, that "the

persecutor is already aware, or could easily

become aware" of their beliefs. (See Petr.

Br. 30). Certainly, aliens can have

"well-founded" fears of persecution, if they

possess the beliefs or characteristics that would

subject them to persecution abroad, even if they

cannot presently demonstrate that the persecutor

either is or could easily become aware of their

beliefs or characteristics. For example, a Jew

facing deportation to Nazi Germany prior to World

War II would have had a "well-founded fear of

persecution" even if his religious heritage might

not have been easily discovered.

Section 243(h) of the Act is

quite different. It provides that an

alien shall not be returned to a country

"if the Attorney General determines that

such alien's life or freedom would be

threatened" (emphasis added). Under

Section 243(h), the alien's state of mind

is entirely irrelevant. As this Court

held in INS v. Stevic, 467 U.S. 407

(1984), the test under that section is

whether there is a "clear probability" of

persecution abroad. Indeed, Stevic

rejected the argument that an alien could

qualify for an order barring deportation

merely by showing a "well-founded fear" of

persecution. 467 U.S. at 428.

While the application of a

“clear probability" standard to establish

"refugee" status might have been appropriate

if Congress had insisted that an alien's

unwillingness to return be based upon the

fact of persecution, it is clearly inconsis-

tent with the "well-founded fear of

persecution” alternative: A "fear" of

persecution cannot properly be equated

with the "fact" of persecution; a fear can

be "well-founded" even if it is not

probable that the fear will be realized. ~/

B. While this Court has frequently

stated that deference should be paid to

administrative construction of statutes,

7/ Throughout its brief, the Service

mischaracterizes the issue in this case as

involving a "“burden-of-proof" question. (Petr.

Br. 8, 10, 19, 28). This case has nothing to do

with the burden of proof. We assume that an alien

seeking asylum under Section 208 has the same

preponderance-of-the-evidence burden that an alien

would have in a Section 243(h) proceeding. The

issue here, however, is the legal standard which

aliens must satisfy in marshalling evidence under

Sections 101(a)(42) and 208 to show that they have

a "well-founded fear of persecution." The fact

that aliens must show by a preponderance of the

evidence that they have such a fear by no means

indicates, as the Service seemingly suggests, that

they must show that it is more likely than not

that they would be persecuted abroad.

it has not allowed agencies to disregard

the clear language or intent of Congress.

As this Court recently held, "[t]he tradi-

tional deference courts pay to agency

interpretation is not to be applied to

alter the clearly expressed intent of

Congress." Board of Governors v. Dimension

Financial Corp., 106 S. Ct. 681, 686

(1986). “If the statute is clear and

unambiguous ‘that is the end of the

matter, for the court, as well as the

agency, must give effect to the unambig-

| uously expressed intent of Congress.'"

Id. (quoting Chevron U.S.A. Inc. v.

National Resources Defense Council, Inc. ,

, 467 U.S. 837, 842-43 (1984)).

Prior to the 1980 amendments to

| the INA, the Service had adopted a

8/ Those

restrictive view of asylum.

amen’ments modified the definition of

"refugee" and added Section 208 to provide

for the first time a specific statutory

basis for asylum. However, the Service

has continued to insist upon its prior

narrow view of asylum.

8/ The INS's 1979 regulations required aliens

seeking asylum to sustain "the burden of

satisfying the Immigration Judge that [they] would

be subject to persecution. .. ." 44 Fed. Reg.

21,253, 21,258 (April 10, 1979). In so refusing

to incorporate the “well-founded fear" standard

into its asylum regulations, the INS offered its

"opinion" that the only difference between its

"would be persecuted" standard and the "well-

founded fear" standard was one of "semantics."

Id. at 21,257. To back up that "opinion" the

Service noted that "a fear which is illusory,

neurotic or paranoid, however sincere, does not

meet the requirement that the fear of persecution

be well-founded," and observed that satisfaction

of the “well-founded fear" standard therefore

required the alien to "show good reason why he

fears persecution." Id. The Service never

explained its conclusion that a "well-founded

fear" -- which it admitted could be established by

proof of a "good reason" for the fear -- could be

viewed as the semantic equivalent of "would be

persecuted."

Thus, this Court is not presented

with an agency's fresh interpretation of a

new and unclear directive of Congress to

which it might properly defer. See Udall

v. Tallman, 380 U.S. 1, 16 (1965).

Instead, this case involves the recalci-

trance of an agency that refuses to submit

to Congress’ resolution of an issue when

it conflicts with the agency's prior

practice.

Cc. The Service focuses its analysis

solely on the INA's asylum provision,

Section 208, and its relationship to the

withholding-of-deportation provision,

Section 243(h). It ignores the fact that

the "well-founded fear" test of Section

101(a)(42) also applies to refugee admis-

Sions under Section 207, see Stevic, 467

U.S. at 423 n.18, and adjustment of

refugee status under Section 209. Moreover,

as this Court noted in Stevic, 467 U.S. at

425, and as the Service concedes (Petr.

Br. 12-135), Congress's principal focus in

enacting the 1980 amendments to the INA

was on refuges admissions. Thus, the

definition of that term was adopted with

Section 207's purposes in mind. Those

policies require a generous construction

of the term "refugee." See pp. 42-44,

infra.

In defining "refugee" to revise

and regularize admission of "refugees"

under Section 207, Congress necessarily

made comparable changes regarding Section

208, since all "refugees" are allowed to

invoke the Attorney General's discretion

in seeking asylum under that section. The

Service's discomfort with these arrange-

ments does not justify its efforts to

narrow Section 208 by forcing the defini-

tion of the term "refugee" into a mold

which its language will not permit.

D. The Service contends that it

would have been "“irrational[]" for Congress

to have added a “second avenue of relief"

in the form of asylum, when there was

already available a witholding-of-deporta-

tion provision in the statute. (Petr.

Br. 12). To avoid this purported irration-

ality, the INS asks this Court to construe

“refugee” as used in Section 208 narrowly,

so as to ensure that applications for

asylum under that section do not render

“superfluous” the withholding-of-deporta-

tion remedy. (Id.). ‘Reletediy, the INS

argues that asylum under Section 208 was

not intended to replace withholding of

deportaticn as the “legal bar" to deporta-

tion of aliens facing persecution abroad.

(Potr. Be. 12, 16).

These arguments ignore important

differences between Sections 208 and

243(h). Establishing "refugee" status by

proving a “well-founded fear of persecu-

tion" and then invoking Section 208 is not

a legal bar to deportation, since that

section merely allows an alien to invoke

the Attorney General's discretion to avoid

deportation. By contfast, aliens who

prove under Section 243(h) that they

"would" be persecuted abroad are, as a

matter of law, entitled to avoid deporta-

tion. Section 208 is thus not an "irra-

tional" or redundant second avenue to the

same destination identified in Section

243(h). Instead, it gives those aliens

who cannot satisfy the higher burden

necessary to obtain mandatory relief under

that section an opportunity to qualify as

"refugees" who may invoke' the Secretary's

discretion to avoid deportation.

Silently acknowledging this

point, the INS attempts to minimize the

Significance of the Attorney General's

discretion under Section 208 by pointing

out that he has generally not deported

aliens who qualify for relief under that

section or under Section 243(h) when the

latter section was discretionary, except

in cases involving fraud or firm resettle-

ment in a third country. (Petr. Br. 20

a. i, 21-22) .2/ However, it is undeniable

that the Attorney General has the discre-

tion to deny asylum to refugees. The text

of Section 208 could not be clearer, and

this Court emphasized the point in Stevic.

467 U.S. at 423 n.18 ("Meeting the defini-

tion of ‘refugee’ .. . does not entitle

the alien to asylum -- the decision to

grant a particular application rests in

9/ This is hardly surprising, given the

Service's crabbed reading of "refugee" as

requiring proof that the alien will be persecuted.

the discretion of the Attorney General

under § 208(a)."). See also infra p. 44.

Moreover, but for the discretion-

ary nature of asylum under Section 208,

Section 243(h) would be superfluous, even

as Section 208 is interpreted by the

Service. As the Service notes (Petr. Br.

at 18-20), a grant of asylum under Section

208 confers greater benefits than withhold-

ing of deportation under Section 243(h).

Thus, no alien would ever apply for

withholding of deportation under Section

243(h), were it not for the fact that a

grant of asylum under Section 208(a) is

discretionary .+2/

10/ As this Court noted in Stevic, 467 U.S.

426-27 & n.20, Section 243(h) was amended in 1980

to reflect our international commitment to give

effect to Article 33 of the U.N. Convention, which

prohibits contracting states from expelling or

returning aliens to territories where their lives

(Footnote Continued)

II. THE LEGISLATIVE HISTORY ESTABLISHES

THAT THE “WELL-FOUNDED FEAR" STANDARD

DOES NOT REQUIRE AN ALIEN TO PROVE A

"CLEAR PROBABILITY” OF PERSECUTION.

The legislative history of the

1980 amendments to the INA evidences, in

three separate ways, a congressional

intent to employ a “reasonable grounds"

standard for determining "refugee" status,

rather than requiring proof of a likelihood

of persecution. First, the definition of

"refugee" was based on definitions that

had existed in previous domestic legis-

lation for the admission of refugees into

the United States, which required only a

(Footnote Continued)

or freedom would be threatened. The refugee

provisions, however, were intended to implement

our commitment under Article 34 of the Convention

to facilitate the naturalization of refugees.

Unlike Article 33, Article 34 is "precatory and

not self-executing,"” Stevic, 467 U.S. at 428-29

n.22. It accordingly does not require the admis-

sion, asylum or naturalization of refugees, but

instead permits signatory nations to use their

discretion in granting these remedies. See id.

showing that an alien had a "reasonable"

or "good" cause or a "rational basis" or

"good reason” to fear persecution.

Second, the central purpose of the Act --

to revise and regularize admissions of

refugees in a manner that affords suff’ -

cient flexibility to eddress the problem

of stateless and homeless persons -- can

be achieved only by adopting a more

generous test for determining “refugee”

status than the one advocated here by the

INS. Third, the legislative history

plainly states that the definition of

refugee was to be construed consistently

with the same definition in the U.N.

Convention, which uses a "reasonable

"

grounds’ for fear standard, rather than

the "clear probability” of persecution

test.

A. The Definition of “Refugee” Has

Its Origin in Prior Domestic Law

That Required Only a “Reasonable

Basis” or “Good Cause" Showing. |

The central purpose of the 1980

amendments to the INA was to "“establish[ ]

for the first time a comprehensive United

States refugee resettlement and assistance

nil/ Accordingly, Congress reviewed

policy.

the 30-year history of refugee statutes to

create a more flexible, systematic and

humanitarian approach. +2/ To that end,

Congress broadened the prior definition of

“refugee” to eliminate outmoded ideolog-

ical and geographical limitations .+2/ As

1l/ S. Rep. No. 96-256, 96th Cong., ist Sess. 1

(1979); see H.R. Rep. No. 96-608, 96th Cong., Ist

Sess. 1 (1979).

12/ S. Rep. No. 96-256, supra, at 1-4; H.R. Rep.

No. 96-608, supra, at 1-5.

13/ 5S. Rep. No. 96-256, supra, at 1, 4; H.R. Rep.

No. 96-608, supra, at 1, 9.

the legislative history establishes, see

infra at 41, and the INS concedes (Petr.

Br. at 12-13, 27), Congress clearly did

not intend to narrow the standard of

eligibility under the pre-existing refugee

definition.

The precursor statutes from

which the 1980 definition of "refugee" was

drawn all included the same element of

“fear of persecution" now found in Section

10l1(a)(42). The courts consistently

interpreted these prior definitions of

“refugee” as requiring only a showing of a

reasonable basis for that fear, not an

actual likelihood of persecution.

Ae The Displaced Persons Act

of 1948.

The term “refugee” first appeared

in the Displaced Persons Act of 1948, P.

L. No. 80-774, 62 Stat. 1009. Enacted

after World War II in response to the

plight of persons uprooted by the war, the

Act authorized the issuance of visas to

“eligible displaced persons,” § 3(a), 62

Stat. 1010, defined as “any displaced

person or refugee as defined in Annex I of

the Constitution of the International

Refugee Organization ["IRO"] and who is

the concern of the [IRO]." § 2(b), 62

Stat. 1009. The IRO Constitution, in

turn, defined “refugee[s] of concern” as

persons who objected to being returned to

their native lands because of "fear [of

persecution] based on reasonable grounds. "14/

14/ Refugees were “the concern of" the IRO if,

inter alia, they objected to return to their

country of origin because of "persecution, or fear

based on reasonable grounds of persecution,

because of race religion, nationality or

political opinions. " Constitution of the

International Refugee Organization, Annex I,

part 1, Section A, subsection 1(a)(i), opened for

signature December 15, 1946, entered into force

for the United States August 20, 1948, 62 Stat.

3037, T.1.A.S. No. 1846.

Section 4 of the Displaced

Persons Act also provided for the adjust-

ment of status of some aliens already in

the United States who could not return to

their country because of "persecutivun or

fear of persecution on account of race,

religion, or political opinions.” 62

Stat. 1011. This provision thus afforded

in 1948 relief comparable to what Section

208 offers today.

The courts consistently inter-

preted the Displaced Persons Act as

requiring only that the refugee have some

"“reasonabie"” basis for fear. See Lavdas

v. Holland, 139 F. Supp. 514, 515 (E.D.

Pa. 1955), aff'd, 235 F.2d 955 (3d Cir.

1956), Thus, from the very beginning,

U.S. domestic legislation for relief of

refugees was premised on a showing only of

reasonable grounds for fear.

The Refugee Relief Act of

1953

After the expiration of the

Displaced Persons Act, Congress enacted

the Refugee Relief Act of 1953, P. L. No.

83-203, 67 Stat. 400, to allow the continued

’

admission of

States. 22/

"refugees" into the United

This Act altered the previous

definition of "refugee" to include

“any person in a country or area

which is neither Communist nor

Communist-dominated, who because

of persecution, fear of persecu-

tion, natural calamity or

military operations is out of

his usual place of abode and

unable to return thereto

§ 2(a), 67 Stat. 400.

Al

Thus, like the 1948 Displaced

Persons Act, the 1953 statute used the

“fear of persecution” test. It also

15/ See S. Rep. No. 629, 83rd Cong., lst Sess. 1

(1953); H.R. Rep. No. 1069, 83rd Cong., list Sess.

1-3 (1953).

retained the prior Act's provision granting

relief, in the form of adjustment of

resident status, to aliens already within

the United States who were unable to

return to their countries of origin

"because of persecution or fear of persecu-

tion on account of race, religion, or

political opinion." § 6, 67 Stat. 403.

The 1953 Act was extended by the Refugee-

Escapee Act of 1957, P. L. No. 85-316, 71

stat. 639.28/

Under the 1948, 1953 and 1957

Acts, judicial and administrative decisions

continued to interpret the "fear of

persecution” language as requiring only a

16/ The 1957 Act defined "refugee" to include

aliens who fled from and could not. return to

communist or Middle Eastern countries “because of

persecution or fear of persecution on account of

race, religion, or political opinion."

§ 15(c)(1), 71 Stat. 639, 643.

showing of some reasonable grounds for

fear, not an actual probability of persecu-

tion. See Fong Foo v. Shaughnessy, 234

F.2d 715, 718 n.2 (2d Cir. 1955) (Frank,

J., in chambers):

"In the administration of the

Displaced Persons Act of 1948

. . « amd the Refugee Relief Act

of 1953, .. . the Attorney

General has decided many claims

; based on fear of persecu-

tion. The question in those

cases, as described in an [INS]

affidavit .. . is whether the

displaced person ‘has a reason-

able basis to fear persecution,

whether or not he would actually

be persecuted if he returned to

his native country.'" (emphasis 17/

added). ae

3. The 1965 Amendments to the

INA

In 1965, Congress amended the

INA, to create the first permanent

17/ See also Mascarin v. Holland, 143 F. Supp.

427, 428 (E.D. Pa. 1956) ("rational basis"); Cheng

Fu Sheng v. Barber, 269 F.2d 497, 500 (9th Cir.

1959) ("rational basis").

statutory basis for the admission of

refugees. INA Amendments of 1965, P.L.

No. 89-236, 79 Stat. 911. Deriving its

definition of "refugee" from the 1957

Refugee-Escapee Relief Act ,28/ Congress

authorized, in Section 203(a)(7) of the

INA, 8 U.S.C. § 1153(a)(7) (1976), the

conditional entry of persons fleeing any

communist or Middle Eastern country

"because of persecution or fear of persecu-

tion.” § 3, 79 Stat. 911, 913. Like the

previous statutes, Section 203(a)(7) also

authorized the adjustment of status of

such aliens, within specified limits, if

they were already in the United States.

id.

18/ See S. Rep. No. 748, 89th Cong., Ist Sess. 16

(1965); see also H. Rep. No. 96-608, 96th Cong.,

Ist Sess. 3 (1979).

Under Section 203(a)(7), such

aliens could be granted conditional entry

of adjustment of status, if they could

show that they were "persecuted or had

good reason to fear persecution.” In re

Ugricic, 14 I. & N. Dec. 384, 385-86

(1972) (emphasis added). See Stevic, 467

U.S. at 420. This standard, like that

under the 1948, 1953 and 1957 Acts, is

plainly more generous than the "clear

probability” standard urged by the Service

19/

here. Indeed, the Board of Immigration

Appeals expressly distinguished the

standards in holding that there was ‘no

19/ See In re Kozielczk, 11 I. & N. Dec. 785, 787

(1966) (Polish-Cuban admitted under Section

203(a)(7) based solely on his testimony that he

was unwilling to return to Cuba because of his

anti-Communist convictions); In re Drachman, 11 I.

& N. Dec. 578 (1966) (Polish-Cuban .dmitted under

Section 203(a)(7) based on her statement that she

was “unalterably opposed to the Communist

government of Castro.").

support in the legislative history [of the

1965 amendment to § 243(h)] for counsel's

argument that an alien deportee is required

to do no more than meet the standards

applied under 203(a)(7) .. . when seeking

relief under 243(h)." In re Tan, 12 I. &

20/

N. Dec. 564, 569-70 (1967).

Thus, under the 1965 Act the

Service emphasized the distinction between

qualification for refugee status and

qualification for withholding of deporta-

tion, when it served to restrict the scope

of the letter remedy. The distinction is

equaily valid when, as here, it cuts

20/ See also In re Janus and Janek, 12 I. &N.

Dec. 866, 876 (1968) ("[W]le are not persuaded that

an applicatant for conditional entry under Section

203(a)(7) is in the same legal posture as an

applicant for a withholding of deportation under

Section 243(h)"). Note, The Right of Asylum Under

Wnited States Law, 80 Colum. L. Rev. 1125, 1138

n.87 (1980).

against the Service and requires a recogni-

tion that qualification for refugee status

under section 208 requires a lesser

showing than an application for relief

under Section 243(h).

It is thus clear that, beginning

with the 1948 Displaced Persons Act, and

continuing through the 1965 amendments to

the INA. Congress intended that the term

“refugee” include all persons who have a

reasonable basis for fearing persecution,

not merely those who could show a probabil-

ity of persecution. Since the Service

concedes (Petr. Br. 27 & n.21), as the

legislative history dictates,2+/ that the

21/ See S. Rep. No. 96-256, supra, at 1, 4

(1979); H. Rep. No. 96-608, supra, at 10 ("the new

definition .. . regularizes and formalizes the

policies and the practices that have been followed

in recent years"); 126 Cong. Rec. 3756 (1980)

(Statement of Sen. Kennedy).

present definition of "refugee" set forth

in the INA was not intended to narrow the

standard of eligibility, it is clear that

the Service's present position that an

alien must show a clear probability of

persecution to qualify for refugee status

misreads the statute.

B. The INS's Narrow Interpretation

of “Refugee” is Inconsistent with

the Purpose of the 1980 Amendments

to the INA.

Congress’ principal purpose in

amending the INA in 1980 was to revise and

regularize the law concerning admission of

refugees .22/ Consistent with the United

States’ tradition of "welcoming homeless

refugees to our shores,” S. Rep. No. 96-256,

supra, at 1, the Act adopted a definition

22/ S. Rep. No. 96256, supra, at 1, 3; H.R. Rep.

No. 96-608, supra, at 1-5; Stevic, 467 U.S. at

425.

of refugee "that recognizes the plight of

homeless people all over the world,” id.

The legislative history clearly

establishes that Congress intended these

revised admissions procedures to be as

flexible as possible in order to encompass

diverse refugee situations. The new

definition of refugee was thought to be

"essential ... to give the United States

sufficient flexibility to respond to

situations involving political or religious

dissidents and detainees throughout the

world.” H.R. Rep. No. 96-608, supra, at

9. This and other provisions of the Act

advanced the “primary objective .. . of

equity and flexibility in our treatment of

refugees." 125 Cong. Rec. 35815 (1979)

3/' plainly,

(Statement of Rep. Holtzman) .2>

the Attorney General's flexibility would

be reduced, not broadened, and the pool of

eligible aliens would be contracted, if,

as the Service argues, the Attorney

General's authority to admit refugees

under Section 207 or grant them asylum

under section 208 extends only to aliens

who are more likely than not to be singled

out for persecution.

The Ninth Circuit's interpreta-

tion of "refugee," by contrast, clearly

23/ See also S. Rep. No. 96-256, supra, at 4 (new

refugee definition afforded "maximum flexibility

in responding to the needs of the homeless who are

of concern to the United States"); 126 Cong. Rec.

4498 (1980) (remarks ot Rep. Holtzman) (new

definition provides "flexibility to deal with

crises such as the evacuation of Vietnam in 1975

and to respond . . . to situations in countries

such as Cuba or Chile today where there are

political detainees or prisoners of conscience of

special humanitarian concern to the United

States").

affords the flexibility Congress intended

to incorporate in the Refugee Act of 1980.

It does so. moreover, without threatening

an uncontrollable influx of refugees intc

this country. As Congress recognized,

“merely because an individual or group of

refugees comes within the definition will

not guarantee resettlement in the United

States.” H.R. Rep. No. 96-608, supra, at

10.

Cc. The U.N. Convention, Upon Which

Section 101(a)(42) Was Based,

Adopts a "Good Reason" Standard.

As the Service recognizes,

Congress intended that the term "well-

founded fear" used to define "refugee" be

interpreted in conformity with the same

4 /

language in the U.N. Convention. =~

24/ Although the United States is not a party to

the U.N. Convention, it is a party to the United

(Footnote Continued)

(Petr. Br. 26-27). The negotiating

history of the U.N. Convention's definition

of "refugee" establishes that the "well-

founded fear" standard was intended to be

more generous than the "clear probability”

standard the INS proposes.

The preliminary draft of the

U.N. Convention was prepared by the Ad Hoc

(Footnote Continued)

Nations Protocol Relating to the Status of

Refugees, opened for signature January 31, 1967,

entered into force for the United States

November 1, 1968, 19 U.S.T. 6224, T.[.A.S. No.

6577 (hereinafter "U.N. Protocol"), which modified

the U.N. Convention's definition of “refugee” by

eliminating geographical and temporal limitations,

and required contracting states to apply the

Convention's substantive provisions. U.N.

Protocol, art. I. As modified by the U.N.

Protocol, the U.N. Convention's definition of

"refugee" includes, in pertinent part, “any person

who -- owing to well-founded fear of being

persecuted for reasons of race, religion,

membership of a particular social group or

political opinion, !s outside the country of his

nationality and is unable or, wing to such fear,

is unwilling to avail himseic of the protection of

that country. "U.N. Convention, art. I;

U.N. Protecol, art. I.

Committee on Statelessness and Related

Problems of the U.N. Economic and Social

Council. The definition of "refugee" that

emerged from that committee incorporated

the "well-founded fear" test and was, in

substance, the definition that was ultimate-

ly adopted by the U.N. Convention.

All of the definitions originally

proposed to the Ad Hoc Committee used

language that clearly reflected a standard

more generous than the INS's "clear

probability™ standard. The United Kingdom

initially proposed a "good reason"/"reason-

25/

able ground" standard. The U.K.

25/ Under the first U.K. proposal, the Convention

was to apply to “unprotected persons," defined to

include:

"persons who, being outside the territory of

the State of which they are nationals, do not

enjoy the procection of the State either

because that state refuses them protection or

(Footnote Continued)

delegation then revised that proposal to

define a refugee as someone with a "well-

founded fear of persecution” based on

126/

“good and sufficient reasons. The

French delegation proposed a "justifiable

27/

fear" standard. And the standard

(Footnote Continued)

because for good reasons (such 4s, for

example, serious apprehension based on

reasonable grounds, of political, racial or

religious persecution in the event of their

going to that state) they do not desire the

protection of that State." United Kingdom:

Draft proposal for Article 1, U.N. Doc.

E/AC.32/L.2 (1950) (emphasis added).

26/ The U.K.'s revised definition included as a

refugee" a person "who, having left the country

of his ordinary residence on account of

does not wish to return to that country for

good and sufficient reasons.” United Kingdom:

Revised draft proposal for Article 1, U.N. Doc.

E/AC.32/L.2/rev.1 (1950) (emphasis added).

27/ The French proposal would have included any

person:

"who has left his country of origin and

refuses to return thereto owing to a

justifiable fear of persecution ... [and for

(Footnote Continued)

suggested by the United States delegation

required only a "fear of persecution. "22/

In sum, although the formulations varied,

the British, French, and United States

proposals all focused upon the refugee's

"fear" of persecution; none of these

(Footnote Continued)

that reason] is unwilling or unable to claim

the protection of the said country.” France:

Proposal for a Draft Convention, U.N. Doc.

E/AC.32/L.3 at 3 (1950) (emphasis added).

28/ The U.S. proposal would have included "any

person who is and remains outside his country of

nationality or of former habitual residence,

vecause of persecution or fear of persecution on

account of race, nationality, religion or

political belief" and who belonged to certain

specified categories. United States of America:

Memorandum on the Definition Article of the

Preliminary Draft Convention Relating to the

Status of Refugees (and Stateless Persons), U.N.

Doc. E/AC.32/L.4 at 1 (1950). Although the U.S.

proposal, read literally, would have included

persons with purely subjective fears, the U.S.

delegate stated that the proposal was based on the

IRO Constitution, see Ad Hoc Committee Summary

Record of the Fifth Meeting, U.N. Doc.

E/AC.32/SR.5 at 3-6 (1950), thus suggesting that

the proposal contemplated a "reasonable grounds”

standard. See supra at 32-33.

proposals suggested the refugee must prove

a “clear probability" of persecution.

After consideration of these

proposals, the Ad Hoc Committee arrived at

a consensus, and a working group composed

of the delegates from France, Israel, the

U.K. and the u.s.22/ drafted the defini-

tion of “refugee” that, with minor changes

not relevant here, was eventually incorpor-

ated in the U.N. Convention. That defini-

tion employed the "well-founded fear" test

in the manner first proposed by the

30/

U.K. In its report to the Economic and

29/ Ad Hoc Committee Summary Record of the Sixth

Meeting, U.N. Doc. E/AC.32/SR.6 at 7-8 (1950).

30/ The definition that emerged from the Ad Hoc

Committee read as follows:

"Any person who: (a) as a result of events in

Europe after the outbreak of the Second World

War and before 1 July 1950 has well founded

fears of being the victim of persecution for

(Footnote Continued)

Social Council, the Committee explained

the meaning of this standard as follows:

"The expression ‘well-founded

fear of being the victim of

persecution for reasons of race,

religion, nationality or politi-

cal opinion’ means that a person

has either been actually a

victim of persecution or can

show good reason why he fears

persecution.” Report of the Ad

Hoc Committee on Statelessness

and Related Problems, U.N. Doc.

E/1618, E/AC.32/55 at 11 (1950)

(emphasis added).

It is thus. clear that the

"well-founded fear" language that emerged

(Footnote Continued)

reasons of race, religion, nationality or

political opinion, and (b) owing to such fear

has left or is outside the country of na-

tionality or if he has no nationality,

outside his country of former habitual

residence, and (c) owing to such fear is

unable or unwilling to avail himself of the

protection of the government of his country

of nationality." Art. I, Draft Convention,

Report of the Ad Hoc Committee on Stateless-

ness and Related Problems, U.N. Doc. F/1618,

E/AC.32/55 at 4 (1950).

Compare the definition in the U.N. Protocol, supra

note 24.

from the Ad Hoc Committee embodies the

"good reason" standard adopted by the

Ninth Circuit in this case, not the more

stringent "clear probability" standard the

INS now proposes. The su’ssequent delibera-

tions of the Ad Hoc Committee, as well as

those of the Social Committee and the

General Assembly. confirm that the "refugee"

definition was understood to require only

a showing of "good reason” to fear perse-

31/ It was never suggested in

cution.

these deliberations that a fear of per-

secution could be “well-founded” only if a

31/ See, e.g., Social Committee Summary Record of

160th Meeting, U.N. Doc. E/AC 7/SR.1460 at 6-7

(1950) (Statements of Mr. Fe .rnley, (lelegate of

the United Kingdom, and Mr. Henkin, delegate of

the United States). See generally (Cox,

"Well-Founded Fear of Being Persecuted": The

Sources and Application of a Criterion of Refugee

Status, 10 Brooklyn J. Int'l L. 333 (1984).

person was more likely than not to be

singled out for persecution.

III. THE INS'S ARGUMENTS REGARDING THE

LEGISLATIVE HISTORY OF THE 1980 ACT

ARE MISCONCEIVED.

A. The 3jervice emphasizes that in

1979, prior to the adoption of Section

208, the INS amended its regulations to

equate the standard for seeking asylum

with the standard for withholding of

deportation. (Petr. Br. 17). The INS

argues that in 1979 it "explicitly rejected

suggestions, based on the well-founded

fear language of the [U.N.] Convention,

that the asylum standard should be less

demanding than that for withholding."

(Id. at 18). Given this administrative

position, the INS now argues, “it is

inconceivable that Congress could have

intended a lower standard for" asylum when

it passed the 1980 Act. (Id.).

But Congress took precisely such

“inconceivable” action in 1980. It

’

decided to allow all "refugees" to apply

for asylum (although it made clear that

such applications could be denied in the

discretion of the Attorney General). And

when Congress in 1980 defined the term

"refugee" in Section 101(a)(42) it used

the same “well-founded fear" test that the

U.N. Convention adopted, but which the INS

had rejected in its 1979 asylum regulations.

See note 8, supra p. 20.

B. The INS makes several arguments

based on the use of the term "asylum" in

the legislative history, all of which are

offered to show that Congress intended to

equate it with provisions incorporating a

“clear probability” standard.

First, it contends that the term

‘asylum" was used as a synonym for withhold-

ing of deportation. This assertion is

based in part on an ambiguity in the

testimony of two witnesses. (Petr. Br.

32/

16). However, the same witnesses

ultimately made it clear that “asylum” and

“withholding” are distinct concepts and

3/

shuld not be confused. =

32/ The Service also cites a Congressional

Research Service Study for the proposition that

"asylum" was considered the equivalent of

“withholding of deportation" (Petr. Br. at 16).

However, the term “asylum” appears to have been

used in this study to refer to any form of relief

given to refugees already in the United States,

for after discussing the Attorney General's parole

authority, the Study cites Section 243(h) as "[a]n

additional provision used to provide asylum to

aliens in the United States." The Refugee Act of

1979: Hearings on S. 643 Before the Senate

Judiciary Comm., 96th Cong., Ist Sess. 197 (1979).

Cf. infra at 56-57 ("asylum" used to refer to

relief under Section 203(a)(7)).

33/ See The Refugee Act of 1979: Hearings on H.R.

2816 Before the Subcomm. on Immigration, Refugees,

and International Law of the House Judiciary

Comm., 96th Cong. Ist Sess. 170, 184 (1979)

(testimony of A. Whitney Ellsworth and Hurst

Hannum, Amnesty International) ("It seems that it

shouldn't be necessary to claim asylum through a

procedure designed to allow one to withhold

(Footnote Continued)

Second, the INS notes that the

term "asylum" was used in the House Report

to refer to the Service's 1979 regulations,

and suggests that this indicates that Con-

gress intended to enact those regulations.

(Petr. Br. 16-18). However, Congress only

recognized the existence of the regulations

and noted the absence of any statutory

basis for them. H.R. Rep. 96-608, supra,

at 17 (1979). The only clear statement in

the legislative history regarding the

relationship of the 1979 asylum regulations

to the new statutory provision was Senator

Kennedy's observation that the "[p]resent

[asylum] regulations and procedures now

used by the immigration Service simply do

not conform to either the spirit or to the

(Footnote Continued)

deportation under 243(h). Those are _ not

necessarily the same questions.") (eiphasis

added).

new provisions of this Act.” 126 Cong.

Rec. 3757 (1980) (emphasis added).

Third, the Service relies on two

statements in the legislative history to

the effect that the Act was not intended

to alter the standards for asylum (Petr.

Br. 26), suggesting that the "would be

persecuted" standard of its 1979 regula-

tions was to be perpetuated. However, the

INS ignores the fact that the term "asylum"

was previously used to refer to refugee

admissions or adjustment of status under

34/

former Section 203(a)(7), neither of

34/ See, e.g., Hearings on H.R. 2816 Before the

Subcomm. on Immigration, Refugees, and

International Law of the House Judiciary Comm.,

96th Cong., Ist Sess. 170 (1979) (testimony of A.

Whitney Ellsworth and Hurst Hannum, Amnesty

International) (referring to "the process by which

an alien can claim asylum and thereby request

admission to the country as a refugee’). See also

H.R. Rep. No. 96-608, supra, at 3 (describing

previous use of Attorney General's parole

(Footnote Continued)

which required aliens to prove that they

"would be persecuted.” See pp. 37-40,

supra. Indeed, before the enactment of

Section 208, the adjustment of status

proviso of Section 203(a)(7) offered the

form of statutory relief most analogous to

asylum; this Court in Stevic in fact used

the term "asylum" to refer to relief under

that section. 467 U.S. at 416 n.8. Thus,

any statements in the legislative history

to the effect that the 1980 Act did not

alter the standard for “asylum” could well

have referred to the prior standard

applicable under Section 203(a)(7).22/

(Footnote Continued)

authority under Section 212(d)(5) of the INA to

“offer asylum" to refugees).

35/ Additionally, one of the quoted statements is

plainly .napposite because it referred to the

Senate version of the bill, which, as the

government points out (Petr. Br. 15-16 n.10),

expressly adopted the withholding-of -deportation

(Footnote Continued)

Finally, this case does not

involve construction of the t--> "asylum"

in Section 208. Instead, it involves

construction of the term "refugee" as

defined in Section 101(a)(42) and used in

Sections 207-209. Any possible confusion

by Congress in the 1980 legislative

history as to the term "asylum" does not

justify a misconstruction of the term

"refugee," when it applies not only to

asylum under Section 208, but also to

admissions under Section 207 and adjust-

ment of status under Section 209.

(Footnote Continued)

standard. See S. Rep. No. 96-256, supra, at 9

(1979). This version was rejected in favor of the

House version, which adopted the “well-founded

fear" standard. The other statement the

government cites was made in response to a

question by Congressman Fascell regarding Section

203(a)(7). The Refugee Act of 1979: Hearings on

H.R. 2816 Before the Subcomm. on International

Operations of the House Comm. on Foreign Affairs,

96th Cong., lst Sess. 71 (1979).

C. The Service argues that before

1980 there was a uniform judicial and

administrative interpretation of the

"well-founded fear” standard as being

’

synonymous with the "clear probability’

standard and that Congress should be

deemed silently to have adopted that

interpretation.

The INS relies primarily on this

Court's discussion in Stevic of the

Post-U.N. Protocol, pre-Refugee Act

case-law under Section 243(h). (Petr. Br.

24-25). Stevic, however, establishes only

that “the [U.N.] Protocol was the source

of some controversy with respect to the

*tandard for Section 243(h) claims for

withholding of deportation.” ‘%67 U.S. at

420. Moreover, this Court specifically

refused to apply a “well-founded fear"

test under Section 243(h). 467 U.S. at

425-28.

Stevic did note that, "[a]lthough

before In re Dunar [14 I. & N. Dec. 310

(B.I.A. 1973)], the Board and the courts

had consistently used a clear-probability

or likelihood standard under section

243(h), after that case the phrase

‘well-founded fear' was employed in some

cases," 467 U.S. at 419. It is these

cases on which the Service primarily

relies for the proposition that the "the

well-founded fear terminology [was used]

interchangeably with the clear probability

and likelihood language.” (Petr. Br. 25).

The use of the phrase "well-founded fear”

in some pre-1980 Section 243(h) cases,

however, falls far short of establishing

that t*e phrase was considered the equiva-

lent of "clear probability” of persecution

in those cases.

Most of these cases simply

denied withholding of deportation after

finding that the alien had failed to prove

a “well-fouy ‘ed fear" of persecution.

They stand only for the unexceptionable

proposition that the "clear probability”

standard of Section 243(h) is at least as

stringent as the "well-founded fear”

standard. Thus, the aliens’ failure to

establish a well-founded fear of persecu-

tion in those cases, a fortiori, disquali-

fied them from withholding of deportation.

The cases thus did not have to decide

whether "well-founded fear" was the

equivalent of "clear probability,” and

most did not . 22/

36/ See, e.g., Fleurinor v. INS, 585 F.2d 129,

132-34 (5th Cir. 1978); Martineau v. INS, 556 F.2d

306, 307 & n.2 (Sth Cir. 1977); Henry v. INS, 552

F.2d 130, 131-32 (5th Cir. 1977); Pereira Diaz v.

INS, 551 F.2d 1149, 1154 (9th Cir. 1977); Zamora

v. INS, 534 F.2d 1055, 1058 (2d Cir. 1976); Paul

v. INS, 521 F.2d 194, 200 (5th Cir. 1975); Gena v.

INS, 424 F.2d 227, 232 (Sth Cir. 1970); In re

Williams, 16 I. & N. Dec. 697, 700-02, 704 (B.I.A.

1979); In re Francois, 15 I. & N. Dec. 534, 539

(Footnote Continued)

A handful of the cases did

suggest (in dictum) that the "well-founded

fear" and "clear probability" standards

were equivalent or substantially similar.

See Kashani v. INS, 547 F.2d 376, 379 (7th

Cir. 1977). However, there were conflict-

ing cases which recognized that the two

standards were different. See, e.g.,

Coriolan v. INS, 559 F.2d 993, 997 n.8

(5th Cir. 1977). Moreover, until this

Court clarified the point in Stevic, it

was not clear that "clear probability”

meant "more likely than not,” and some

cases appear to have interpreted the

standard as more lenient. See In re

Martinez Romero, Int. Dec. No. 2872 (BIA

(Footnote Continued)

(B.1.A. 1975); In re Mladineo, 14 1. & N. Dec.

591, 592 (B.1.A. 1974); In re Maccand, 14 [. &N.

Dec. 429, 434 (B.I.A. 1973), aff'd, 500 F.2d 355

(2d Cir. 1974); In re Bohmwald, 14 1. & N. Dec.

408, 409 (B.I.A. 1973).

1981) (Section 243(h) requires an alien to

demonstrate "realistic likelihood that he,

or a class to which he belongs, will be

persecuted.").

In sum, prior to 1980 there was

no clear consensus that the “well-founded

fear" standard was equivalent to the "more

likely than not" standard now clearly

applicable under Section 243(h). There is

no clear indication in the legislative

history that Congress intended to ratify

those cases which did equate the two

standards. Consequently, the Service's

ratification argument must fail.

CONCLUSION

For the foregoing reasons, the

judgment of the Court of Appeals should be

affirmed.

Respectfully submitted,

E. Edward Bruce*

Carol Fortine

Carlos M. Vazquez

Covington & Burling

1201 Pennsylvania Avenue, N.W.

P.O. Box 7566

Washington, D.C. 20044

(202) 662-6000

*Counsel of Record

July 14, 1986