Amicus Curiae Brief — INS v. Doherty

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a oer CLERK

IN THE rey

Supreme Court of the United States

OCTOBER TERM, 1990

IMMIGRATION AND NATURALIZATION SERVICE,

. Petitioner,

JOSEPH PATRICK DOHERTY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF FOR AMICI CURIAE MEMBERS OF THE

UNITED STATES SENATE AND MEMBERS OF THE

UNITED STATES HOUSE OF REPRESENTATIVES

IN SUPPORT OF RESPONDENT

CAROLYN PATTY BLUM *

BOALT HALL SCHOOL OF LAW

University of California

at Berkeley

Berkeley, California 94720

(415) 642-5980

KEVIN R. JOHNSON

KING HALL SCHOOL oF LAW

University of California

at Davis

Davis, California 95616

(916) 752-8047

JOSEPH K. BRENNER

KENNETH P. STERN

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6000

Counsel for Amici Curiae

June 5, 1991 * Counsel of Record

Lun

MEMBERS OF THE UNITED STATES SENATE

Brock Adams (D-WA), Daniel Akaka (D-HI), Alfonse

D’Amato (R-NY), Dennis DeConcini (D-AZ), Chris Dodd

(D-CT), Orrin G. Hatch (R-UT), Daniel K. Inouye (D-HI),

John Kerry (D-MA), Paul Simon (D-IL), Arlen Specter

(R-PA), Paul D. Wellstone (D-MN), and Harris Wofford

(D-PA).

MEMBERS OF THE

UNITED STATES HOUSE OF REPRESENTATIVES

Thomas J. Manton (D-NY), Neil Abercrombie (D-HI1), Gary

L. Ackerman (D-NY), Robert E. Andrews (D-NJ), Thomas

H. Andrews (D-ME), Frank Annunzio (D-IL), Chester G.

Atkins (D-MA), Helen Delich Bentley (R-MD), Howard L.

Berman (D-CA), David E. Bonior (D-MI), Sherwood L.

Boehlert (R-NY), Robert A. Borski (D-PA), George E.

Brown, Jr. (D-CA), Albert G. Bustamante (D-TX), Benjamin

L. Cardin (D-MD), Thomas R. Carper (D-DE), Cardiss

Collins (D-IL), John Conyers, Jr. (D-MI), Jerry F. Costello

(D-IL), William J. Coyne (D-PA), John W. Cox, Jr. (D-

IL), Philip M. Crane (R-IL), Peter A. DeFazio (D-OR),

Rosa L. DeLauro (D-CT), Ronald V. Dellums (D-CA), Julian

C. Dixon (D-CA), Brian J. Donnelly (D-MA), Thomas J.

Downey (D-NY), Bernard Dwyer (D-NJ), Mervyn M. Dymally

(D-CA), Eliot L. Engel (D-NY), Lane Evans (D-IL), Vic

Fazio (D-CA), Edward F. Feighan (D-IL), Hamilton Fish,

Jr. (R-NY), Floyd H. Flake (D-NY), Thomas M. Foglietta

(D-PA), Barney Frank (D-MA), Gary A. Franks (R-CT),

Sam Gejdenson (D-CT), Benjamin A. Gilman (R-NY), Bart

Gordon (D-TN), Frank J. Guarini (D-NJ), Bill Green (R-NY),

J. Dennis Hastert (R-IL), Charles A. Hayes (D-IL), Paul B.

Henry (R-MI), Dennis M. Hertel (D-MI), George J. Hoch-

brueckner (D-NY), Frank Horton (R-NY), Amo Houghton

(R-NY), William Hughes (D-NJ), Henry J. Hyde (R-IL),

Nancy Johnson (R-CT), Harry Johnston (D-FL), Barbara

B. Kennelly (D-CT), Joseph P. Kennedy, II (D-MA), Peter

H. Kestmayer (D-PA), John J. LaFalce (D-NY), Tom Lantos

(D-CA), William Lehman (D-FL), Norm F. Lent (R-NY),

William O. Lipinski (D-IL), Nita M. Lowey (D-NY), Charles J.

Luken (D-OH), Jim McDermott (D-WA), Raymond J. McGrath

(D-NY), Matthew F. McHugh (D-NY), Michael R. McNulty

(D-NY), Ronald K. Machtley (R-RI), Edward J. Markey (D-

MA), Matthew G. Martinez (D-CA), Robert T. Matsui (D-CA),

Nicholas Mavroules (D-NY), Kweisi Mfume (D-MD), John

Joseph Moakley (D-MA), Susan Molinari (R-NY), James P.

Moran (D-VA), Constance A. Morella (R-MD), Robert J.

Mrazek (D-NY), Richard E. Neal (D-MA), Mary Rose Oakar

(D-OH), Major Kk. Owens (D-NY), Frank Pallone, Jr. (D-NJ),

Donald M Payne (D-NJ), Bill Paxon (R-NY), Nancy Pelosi

(D-CA), David E. Price (D-NC), Jim Ramstad (R-NM),

Charles B. Rangel (D-NY), Bill Richardson (D-NM), Robert

A. Roe (D-NJ), Edward R. Roybal (D-CA), Marty Russo (D-

IL), Bernard Sanders (1-VT), Richard John Santorum (R-PA),

George E. Sangmeister (D-IL), Gus Savage (D-IL), James H.

Scheuer (D-NY), Charles E. Schumer (D-NY), Jose Serrano

(D-NY), Christopher Shays (R-CT), Louise McIntosh Slaugh-

ter (D-NY), Stephen Solarz (D-NY), Gerald B.H. Solomon

(R-NY), Fortney Pete Stark (D-CA), Gerry E. Studds (D-

MA), Dick Swett (D-NH), Estaban Edward Torres (D-CA),

Robert G. Torricelli (D-NJ), Edolphus Towns (D-NY), James

A. Traficant, Jr. (D-OH), Jolene Unsoeld (D-WA), Bruce F.

Vento (D-MN), James T. Walsh (R-NY), Maxine Waters (D-

CA), Ted Weiss (D-NY), Curt Weldon (R-PA), Sidney R.

Yates (D-IL), and Dick Zimmer (R-NJ).

TABLE OF CONTENTS

CD GD crccccetctcctcssiciccncancctsensencssonensce

INTERESTS OF AMICI ............ setininiuieariiaiiaitenaiaianitanie

Se ennTTTITITTTITITTITETT “Sis casehiiensadtcentateicpasbiesieianinistetiehcantinieaantaienamianintniion

SUMMARY OF ARGUMENT ......W0.

IE seceiiciinsiailincsiciiadaiencensntiidetiinsintatseinereemasnsnianiiianes

I. THE TEXT AND STRUCTURE OF THE REF-

Il.

Ili.

UGEE ACT REFLECT CONGRESSIONAL

INTENT TO EXCLUDE FOREIGN POLICY

AND POLITICAL CONSIDERATIONS FROM

THE ATTORNEY GENERAL’S DISCRETION

UNDER SECTION 206 unnno...............ccccccesseseoeees

THE LEGISLATIVE HISTORY OF THE REF-

UGEE ACT DEMONSTRATES THAT CON-

GRESS INTENDED FOR ASYLUM CLAIMS

TO BE ADJUDICATED ON A NONPOLITI-

SR IED tprescetentcccctesenesinetmmaiocmmmmstanamsinanmatn

BECAUSE THE POSITION ASSERTED BY

THE INS IS CONTRARY TO THE REFUGEE

ACT, IT IS NOT ENTITLED TO DEFER-

ESITITIEY ‘situchstevvnncamanbenisssisensttseapsctnsiennninteninsintiesaainssaneanes

, TABLE OF AUTHORITIES

CASES Page

American Baptist Churches v. Thornburgh, 760 F.

GS EE 9

Bureau of Alcohol, Tobacco & Firearms v. Federal

Labor Relations Auth., 464 U.S. 89 (1983) _....... 27

Doherty v. United States Dep't of Justice, 908 F.2d

1108 (2d Cir. 1990), cert. granted, 111 S. Ct. 950

IIIT stasis iossceeeciceetieeaieiemialad neha enetienidieiniinanadatinntsiianasicionagd passim

Fiallo v. Bell, 430 U.S. 787 (1977) .......................... 28

Fong Yue Ting v. United States, 149 U.S. 698

LS ev vee oe oe ne eee ail elaaaaae 28

Galvan v. Press, 347 U.S. 522 (1954) 0. 28

Harisiades v. Shaughnessy, 342 U.S. 580 (1952). 28

Homemakers North Shore, Inc. v. Bowen, 832 F.2d

A I ssthenesians 28

INS v. Abudu, 485 U.S. 94 (1988) 0. 28

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ..... passim

INS v. Stevic, 467 U.S. 407 (1984) _.... ae eee passim

International Primate Protection League v. Ad-

ministrators of Tulane Educ. Fund, 59 U.S.L.W.

Gy Cs TT TI ID cceennccceecsesccescccscesees 13

Jay v. Boyd, 351 U.S. 345 (1956) . a 8

Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984)

(en banc), aff'd, 472 U.S. 846 (1985) 26

Jean v. Nelson, 472 U.S. 846 (1985) 0. 13

Matter of Beienzo, 17 |. & N. Dec. 374 (AG 1981). 3

Matter of Blas, 15 1. & N. Dec. 626 (AG 1976) ...... 3

Matter of Cantu, 17 I. & N. Dec. 190 (AG 1978)... 3

Matter of Frentescu, 18 I. & N. Dec. 244 (BIA

RE ee ne Ce OO 19

Matter of Hernandez, 14 IL. & N. Dec. 608 (AG

i ee 3

Matter of Janati-Ataie, 14 I. & N. Dec. 216 (AG

a 3

Matter of Leon-Orosco and Rodriguez-Colas, 19

I. & N. Dec. 186 (AG 1984) _......0.00. ee... 3

Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987)... 23

Matter of Riccio, 15 1. & N. Dec. 548 (BIA 1976) . 29

Matter of Stultz, 15 I. & N. Dec. 362 (AG 1975)... 3

Matter of Toscano-Rivas, 14 1. & N. Dec. 523 (AG

Eee Soeneinematineaaned 3

iii

TABLE OF AUTHORITIES—Continued

Page

Matter of Vega, 11 I. & N. Dec. 337 (BIA 1965)... 29

Melendez v. United States Dep’t of Justice, 926

fl 8 8, REE ener een 10

Motor Vehicle Mfrs. Ass’n v. State Farm Mutual

Auto. Ins. Co., 463 U.S. 29 (1983) ......000000. 27

Orantes-Hernandez v. Thornburgh, 919 F.2d 549

LE Faroe neem Ee 19

Pension Benefit Guar. Corp. v. LTV Corp., 110

S. Ct. 2668 (1990) ........... ala, 28

Reyes-Arias v. INS, 866 F.2d 500 (D.C. Cir. 1989) .. 23

Russello v. United States, 464 U.S. 16 (1983) _...... 12

Stevie v. Sava, 678 F.2d 401 (2d Cir. 1982), rev'd

sub nom. INS v. Stevic, 467 U.S. 407 (1984) ...... 19

The Chinese Exclusion Case, 130 U.S. 581 (1889).. 28

United Savings Ass'n v. Timbers of Inwood Forest

Assocs., Ltd., 484 U.S. 365 (1988) 0000000. 13

West Virginia Univ. Hosps., Inc. v. Casey, 111

ee 13

Wong Wing Hang v. INS, 360 F.2d 715 (2d Cir.

ec ee ee See aa eT 8,13

Yiu Sing Chun v. Sava, 708 F.2d 869 (2d Cir.

SITTITE cisinieeadenhlideosidaenscsipieniadipinieiastddiliihiiariieapdasnbasiiabacatniadeaieian 19, 22, 29

BOOKS AND ARTICLES

Aleinikoff, Political Asylum in the Federal Republic

of Germany and the Republic of France: Les-

sons for the United States, 17 U. Mich. J.L.

EE Oe eT 22

T. Aleinikoff & D. Martin, ]mmigqration: Process

| aD 15

Anker, Determining Asylum Claims in the United

States: Summary Report of an Empirical Study

of the Adjudication of Asylum Claims Before the

Immigration Court, 2 Int'l J. Refugee L. 252

ERAT EERO ree OS 6 mF Se Eee 10

Anker, Discretionary Asylum: A Protection Rem-

edy for Refugees Under the Refugee Act of 1980,

28 Va. J. Intl L. 1 (1987) ................................. passim

TABLE OF AUTHORITIES—Continued

Page

Anker & Blum, New Trends in Asylum Jurispru-

dence: The Aftermath of the U.S. Supreme

Court Decision in INS v. Cardoza-Fonseca, 1

Int’l J. Refugee L. 67 (1989) —...0000000 24

Anker & Posner, The Forty Year Crisis: A Legis-

lative History of the Refugee Act of 1980, 19 San

Diego L. Rev. 9 (1981) ...............ccccccccec00-e 15, 18, 25, 26

Blum & Lawrence, Cold Winds from the North:

An Analysis of Recent Shifts in North American

Refugee Policy, 16 N.Y.U. Rev. L. Soc. Change

I a 24

Cox, “Well-Founded Fear of Being Persecuted’:

The Sources and Application of a Criterion of

Refugee Status, 10 Brooklyn J. Int'l L. 333

a EEA O NU are Se ee ee 19, 20

Friendly, Indiscretion About Discretion, 31 Fmory

ES SE A ce ae 14

Hansen, Behind the Paper Curtain: Asylum Policy

Versus Asylum Practice, 7 N.Y.U. Rev. L. Soc.

I a 17

Helton, Political Asylum Under the 1980 Refugee

Act: An Unfulfilled Promise, 17 U. Mich. J.L.

I ee ca oa 16,17

Helton, The Proper Role of Discretion in Political

Asylum Determinations, 22 San Diego L. Rev.

ER RL eee ee cee 15, 24, 26

L. Jaffe, Judicial Control of Administrative Action

(1965) 13

Johnson, A “Hard Look” at the Executive Brench’e 8

Asylum Decisions, 1991 Utah L. Rev.

(forthcoming June 1991)... 9

Kurzban, A Critical Analysis of Refugee Law, 36

U. Miami L. Rev. 865 (1982) 000000. 10

G. Loescher & J. Scanlon, Caleulated Kindness:

Refugees and America’s Half-Open Door, 1945

to the Present (1986) ....... a ea 15

Martin, Reforming Asylum Adjudication: On Nav-

igqating the Coast of Bohemia, 138 U. Pa. L.

Rev. 1247 (1990) ..... ialennaanell scaiusiidniassleaabeesian .---9, 22, 24

TABLE OF AUTHORITIES—Continued

Page

Note, Judicial Review of Administrative Stays of

Deportation: Section 243(h) of the Immigration

and Nationality Act of 1952, 1976 Wash. U.L.Q.

ee are ve 16

Note, Political Bias in United States Refugee

Policy Since the Refugee Act of 1980, 1 Geo.

EF 10, 17

Restatement (Second) Foreign Relations Law of

the United States (1965) .......00...0...0000cccceeeeee ee 20

Roberts, The Exercise of Administrative Discre-

tion Under the Immigration Laws, 13 San Diego

iy Bis. SUE UID citeinteteticnenccninsdcctisctcemcconendoutonnadiace 26

Schuck, The Emerging Political Consensus on Im-

migration Law, 5 Geo. Immigr. L.J. 1 (1991)... 10, 22

N. Zucker & N. Zucker, The Guarded Gate: The

Reality of American Refugee Policy (1987) __. 9

REGULATIONS AND STATUTES

8 C.F.R. § 3.1(h) (iii) (1990) ........00000 2

a ele Fe CID cccccccccetecccesscecssesccnesecseccconss Naa 2

a calle Oe ells BE CGD veccccccccccccsccccoscvessscsesess 17

8 C.F.R. § 208.14(c) (1990) A Se a 9

Immigration and Nationality Act of 1952, 8 U.S.C.

§ 1101 et seq.

INA § 101(a) (42) (A), 8 U.S.C. § 1101(a)

I lee en Se ee 1,5,8

INA § 208(a) (7) (A) (i), 8 U.S.C. § 1153 (a)

(7) (A) (i) (1976) (repealed 1980) ss 8, 16

INA § 203(b), 8 U.S.C. § 1153(b) <

INA § 207,8U.S.C.§1157 24

INA § 207(a) (1),8U.S.C.$1157(a) (1)... 12

INA § 207(a) (3), 8 U.S.C. $ 1157(a) (3)... 24

INA § 207(b),8U.S.C.81157(b) ti

INA § 207(c) (1), 8 U.S.C. § 1157 (e) (1) 12

INA § 207(d) (1), 8 U.S.C. § 1157(d) (1) |. 24

INA § 207(d) (3), 8 U.S.C. § 1157(d) (3)... 24

INA § 207(e),8U.S.C.§1157(e)St:t«

INA § 207(e) (6), 8U.S.C.§1157(e) (6). ‘5,11

TABLE OF AUTHORITIES—Continued

Page

FEE F Lit Foe D ) Re 1, 22

INA § 208(a), 8 U.S.C. § 1158(a) ~..........0........ 7

INA § 212(d) (5), 8 U.S.C. § 1182(d) (5) ...... .. 16, 25

INA § 212(d) (5) (A), 8 U.S.C. § 1182 (d) (5)

II sotshcinstaelebcciececeaneserintal itil eetihaabdaaiaiaiiabaniaanmmanindinnt 16

INA § 212(d) (5) (B), 8 U.S.C. § 1182(d) (5)

ere erence en a OER 16

INA § 243(a), 8 U.S.C. § 1253 (a) csiiiiecidaaaabias 2,12

INA § 243 (h), 8 U.S.C. § 1253 (h) ..................... 16, 25

LEGISLATIVE MATERIALS

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat.

alter teatlma cians 18

Admission of Refugees into the United States:

Hearings Before the Subcomm. on Immigration,

Citizenship, and International Law of the House

Comm. on the Judiciary, 95th Cong., 1st Sess.

TEPTTDD sciasecssiesienipecsnesanisisteied cctaleitiaiatatiniiamalattlaiiitibdiaaiuatbaaeetaesia 26, 29

Briefings on the Growing Refugee Problem—Im-

plications for the International Organizations:

Hearings Before the Subcomm. on International

Organizations of the House Comm. on Foreign

Affairs, 96th Cong., Ist Sess. (1979) ................. 21

Refugee Act of 1979: Hearings Before the Sub-

comm. on Immigration, Refugees, and Interna-

tional Law of the House Comm. on the Judiciary,

96th Cong., Ist Sess. (1979) ....................--22cce-00--- 18

Refugee Assistance: Hearings on H.R. 3915 Be-

fore the Subcomm. on Immigration, Refugees

and International Law of the House Comm. on

the Judiciary, 98th Cong., Ist Sess. (1983) ........ 18

United States Refugee Problems: Hearings Be-

fore the Senate Comm. on the Judiciary, 96th

0 Eee ee 21

H.R. Conf. Rep. No. 781, 96th Cong., 2d Sess.

ee ne ae ae ee 20, 22

H.R. Rep. No. 608, 96th Cong., Ist Sess. ( 1979) . passim

S. Conf. Rep. No. 590, 96th Cong., 2d Sess. ( 1980) . 20, 22

S. Rep. No. 256, 96th Cong., Ist Sess. (1979) ...18, 22, 23

vii

TABLE OF AUTHORITIES—Continued

Page

125 Cong. Rec. H11,967 (Dec. 13, 1979) 28

125 Cong. Rec. H11,973 (Dec. 13, 1979) 0.0 10, 20

125 Cong. Rec. $12,007 (Sept. 6, 1978) 2.000. 24

125 Cong. Rec. 23,240 (1979) 000 20

126 Cong. Rec. 4,499 (1980) 000 21

126 Cong. Rec. 4,501 (1980) 200 20

126 Cong. Rec. 4,507 (1980) 000 21

MISCELLANEOUS

Office of the United Nations High Commissioner

for Refugees’ Handbook on Procedures and Cri-

teria for Determining Refugee Status (1979)... 19

President Jimmy Carter’s Signing Statement, 16

Weekly Comp. Pres. Doc. 503 (March 18, 1980). 21

United Nations Protocol Relating to the Status

of Refugees, 19 U.S.T. 6223, 606 U.N.T.S. 267

EE LRA ae a eel 4,17, 20

United Nations Convention Relating to the Status

of Refugees, 19 U.S.T. 6259, 189 U.N.T.S. 137

RUE FEE SES oe a en nC ee 17

United States General Accounting Office, Asylur:

Uniform Application of Standards Uncertain—

Few Applicants Deported (1987)

INTERESTS OF AMICI

Amici curiae, 132 Members of Congress, are a bi-

partisan group of legislators concerned with the proper

interpretation cf the immigration laws.' Amici have two

vital concerns in this case: (1) ensuring respect for the

balance of policy-making authority between the legisla-

tive and executive branches established by the Refugee

Act of 1980; and (2) guaranteeing that respondent is

afforded the basic protections of asylum law, including

a full and fair hearing at which he may present evidence

supporting his claim. :

STATEMENT

Amici curiae address this brief to the important legal

question whether Congress excluded foreign policy and

political considerations from the Attorney General’s dis-

cretion to grant asylum to refugees under Section 208 of

the Refuges Act of 1980 (‘‘Refugee Act”). See Immi-

gration and Nationality Act (“INA”) § 208, 8 U.S.C.

§$ 1158 (1988).* The Attorney General denied respondent

a hearing on his asylum claim, in part because of for-

eign policy concerns. Amici submit that sanctioning the

Attorney General’s use of discretion to advance transient

foreign policy goals would frustrate the clear intent of

1 Individual amici are listed beginning on the inside front cover.

Both petitioner and respondent have consented to the filing of this

brief amici curiae. The letters of consent are on file with the clerk.

2Section 208(a) provides that “[t]he Attorney General shall

establish a procedure for an alien physically present in the United

States or at a land border or port of entry, irrespective of such

alien’s status, to apply for asylum, and the alien may be granted

asylum in the discretion of the Attorney General if the Attorney

General determines that such alien is a refugee within the meaning

of section 1101(a) (42)(A) of this title.” A “refugee” under INA

§ 101 (a) (42) (A), 8 U.S.C. § 1101 (a) (42) (A), is defined as “any

person who is outside any country of such person’s nationality .. .

and who is unable or unwilling to return to, and is unable or unwill-

ing to avail himself or herself of the protection of, that country be-

cause of persecution or a well-founded fear of persecution on ac-

count of race, religion, nationality, membership in a particular social

group, or political opinion ... .”

Congress to create an ideologically neutral and humani-

tarian asylum program.

Respondent Joseph Patrick Doherty was arrested in

1983 by the Immigration and Naturalization Service

(“INS”) and subsequently imprisoned without bond. In

the intervening eight years, the repeated attempts of the

executive branch to return respondent to the United

Kingdom—and respondent’s efforts to resist return—

have been the subject of extended litigation before both

administrative and judicial tribunals. See Doherty v.

United States Dep’t of Justice, 908 F.2d 1108, 1110-15

(2d Cir. 1990) (detailing proceedings), cert. granted, 111

S. Ct. 950 (1991).

This appeal arises from the enactment during the

course of the immigration proceedings of new legislation

in the Republic of Ireland affecting extradition standards.

As permitted by statute, see INA § 243(a), 8 U.S.C.

§ 1253(a), Doherty initially had designated the Repub-

lic of Ireland as his country of deportation. The changes

in Irish law would have required Doherty’s immediate

extradition from Ireland to the United Kingdom. See Joint

Appendix 99-108. As a consequence of this significant

shift in substantive law, and as permitted by regulation

(see 8 C.F.R. § 3.2 (1990) ), Doherty filed a motion to re-

open his deportation proceeding, seeking a hearing on his

application for asylum and withholding of deportation.

The Board of Immigration Appeals (“BIA”) granted the

motion to reopen. It held that the intervening change in

legal norms violated Doherty’s legitimate expectations

about the country of deportation and provided a reason-

able excuse for the fact that he did not apply for asylum

at his deportation hearing. Petitioner’s Appendix (‘‘Pet.

App.”) at 140a-14la.

In an unprecedented decision,’ the Attorney General

reversed the decision of the BIA. He held, in relevant

3 The Attorney General reviewed Doherty’s case on a request for

certification by the INS. See 8 C.F.R. § 3.1(h) (iii) (1990). In the

past 20 years, the Attorney General has published less than a dozen

part, that Doherty could be denied a hearing because he

was not entitled to asylum as a matter of discretion. The

Attorney General relied on the following factors to sup-

port that conclusion: (i) “it is ‘the policy of the United

States that those who commit acts of violence against

a democratic state should receive prompt and lawful pun-

ishment’”’ (quoting Matter of Doherty, Mem. Att’y Gen.

at 7 (June 9, 1988)); and (ii) “it is in the foreign

policy interests of this country that respondent be de-

ported to the United Kingdom.”* Pet. App. at 82a.

The United States Court of Appeals for the Second

Circuit reversed the Attorney General’s decision and

remanded the case for a hearing on Doherty’s reauest for

asylum. Judge Pratt, joined by Judge Feinberg, rea-

soned that Congress had narrowed the discretion granted

to the Attorney General under Section 208 to exclude

foreign policy considerations. See Doherty, 908 F.2d at

1120. The Court therefore concluded that, by relying

on foreign policy implications to deny Doherty a hearing

on his asylum claim, the Attorney General had abused

his discretion.

In concluding that Section 208 prohibits the Attorney

General from considering foreign policy or other political

decisions involving certification review. In each instance, the At-

torney General limited review to legal questions and did not disturb

the Board’s factual findings. See Matter of Leon-Orosco and

Rodriguez-Colas, 19 1. & N. Dec. 136 (AG 1984); Matter of Belenzo,

17 l. & N. Dee. 374 (AG 1981); Malter of Cantu, 17 I. & N. Dee.

190 (AG 1978); Matter of Blas, 15 1. & N. Dec. 626 (AG 1976);

Matter of Stultz, 15 1. & N. Dee. 362 (AG 1975); Matter of

Hernandez, 14 1. & N. Dec. 608 (AG 1974); Matter of Toscano-

Rivas, 14 1. & N. Dee. 523 (AG 1974); Matter of Janati-Ataie, 14

I. & N. Dee. 216 (AG 1972). In each case that required further

factfinding, the Attorney General remanded the case back to the

BIA.

‘The Attorney General also justified the denial of a hearing to

Doherty on the grounds that “respondent knowingly and inten-

tionally waived his claim to asylum,” and because Doherty’s past

actions and associations “suggest that he is not deserving of equi-

table relief.” Pet. App. at 82a.

factors, the Second Cireuit reviewed in detail the text,

legislative history, and purpose of the Refugee Act and

determined that:

1. The Refugee Act replaced the pre-existing ad hoe

system of parole with a systematic procedure for adjudi-

eating asylum claims that excluded foreign policy con-

siderations. According to the Court, Congress signalled

this intent “by linking eligibility for asylum to the po-

litically neutral definition of ‘refugee.’” Jd. at 1119.

2. The legislative history of the Refugee Act revealed

the unequivocal intent of Congress to remove foreign

policy considerations from the asylum process. See id.

at 1120 (citing both House and Senate Reports). Con-

gress intended to conform domestic law to the ideo-

logically neutra! approach of the United Nations Pro-

tocol Relating to the Status of Refugees, 19 U.S.T.

6223, 606 U.N.T.S. 267 (1967) (“U.N. Protocol’). Be-

cause the purpose of the Refugee Act was to bring domes-

tic practice into line with the politically neutral aspira-

tions of international law, the Second Circuit, citing /NS

v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987), reasoned

that Congress would not have granted the Attorney General

the discretion to frustrate that goal. Rather, the discre-

tion delegated by Section 208 was designed only ‘“‘to pre-

serve some degree of flexibility in the administration of

the asylum process... .” Doherty, 908 F.2d at 1120.

Judge Lumbard dissented. His analysis, in relevant

part, relied heavily on the fact that the language of Sec-

tion 208 contains no explicit textual limitations on discre-

tion. Sce id. at 1126. Based on this premise, he con-

cluded that Congress’ removal of ideological and geo-

graphical considerations from the refugee definition had

no discernable implications for the Attorney General’s dis-

cretion under the Refugee Act. Judge Lumbard further

relied on “a special reason for judicial restraint,” that

‘political judgments [we]re at the heart of the [At-

torney General’s] decision... .” Jd, at 1124. The dissent

did not analyze in detail the legislative history or purpose

of the Refugee Act.

SUMMARY OF ARGUMENT

The text, siructure, purpose, and legislative history

of the Refugee Act demonstrate that Congress excluded

foreign policy and political considerations from the dis-

cretion of the Attorney General over asylum applications.

To achieve that goal, Congress amended the Immigration

and Nationality Act to remove ideological and geographic

restrictions on refugee admissions and defined a “refugee”

eligible for asylum in neutral, non-political terms. In

contrast to prior legislation that extended eligibility for

relief only to those fleeing communist or Middle Eastern

regimes, the Refugee Act defines a refugee as any

person who establishes a_ well-founded fear of per-

secution on account of political opinion or other enum-

erated factors. See INA §$ 101(a)(42)(A), 8 U.S.C.

£1101(a!(42)(A). In fundamentally altering asylum

law te create a process exclusive of ideological and po-

litical considerations, Congress prohibited the Attor-

ney General from resurrecting politically-based criteria

through the exercise of his discretion. See INS v. Car-

doza-Fonseca, 480 U.S, 421, 434-35 (1987) (finding that

Congress removed ideclogical, political, and geographic

considerations from refugee definition); JNS v. Stevie,

467 VS. 497, 427 (1984) (same).

The INS errs when it argues that, because the INA

expressly permits foreign policy to be considered in estab-

lishing quotas for the overseas resettlement program,

the Aiiorney’ General may consider that factor in indi-

vidual asylum deterni»ations. See INA § 207(e) (6),

8 U.S.C. § 1157(e}16). The conscious omission of for-

eign policy from the text of Section 208 and its spe-

cific inclusion in Section 207/e) (6) reflect the deter-

mination of Congress to exclude foreign policy from the

individual asylum process. Furthermore, Section 207

limits the Attorney General’s consideration of foreign

policy to the process of setting overall numerical limits

on refugee admissions, a task the statute requires to be

accomplished in consultation with Congress. Foreign

policy considerations are nowhere made relevant to the in-

dividual admissions determinations under Section 207(b)

that are more closely analogous to Section 208 decisions.

An examination of the purpose and legislative history

of the Refugee Act reinforces the conclusion that the stat-

ute prohibits the executive from weighing foreign policy

concerns in deciding asylum claims. In modifying exist-

ing law, Congress designed the Refugee Act to serve three

important purposes relevant here. First, Congress ex-

plicitly conformed United States law to the nonideological

approach of the United Nations Protocol, an approach

steeped in humanitarian, not political, concerns. Second,

Congress directed that applicants be treated fairly and

uniformly and on the basis of the merits of each indi-

vidual claim. Third, Congress reasserted its control over

refugee policy by narrowing in several ways the authority

of the Attorney General. Each of these motivations, all

evident on the legislative record, is inconsistent with

petitioner’s claim of unfettered authority over asylum

determinations; indeed, the consideration of foreign pol-

icy factors by the Attorney General would eviscerate the

clear intent of Congress.

Finally, the INS asserts that the decision to deny

a hearing on Doherty’s asylum claim is entitled to def-

erence under both general administrative law principles

and the plenary power doctrine. Neither shields the At-

torney General’s decision from judicial review. The novel

statutory interpretation advanced by the INS—a posi-

tion never accepted by any court—is wholly inconsistent

with the text and history of the Refugee Act and, there-

fore, is not entitled to deference. The INS’ reliance on

its historical prerogatives over immigration clashes with

Congress’ decision to eliminate foreign policy factors from

individual asylum determinations.

ARGUMENT

Section 208 of the Refugee Act delegates “discretion”

to the Attorney General to grant asylum to refugees.

This grant of discretion, by itself, does not confer un-

bridled authority. Limits on such discretion are properly

derived from the text, structure, and legislative history

of the statute. In this case, Congress specifically

amended the immigration laws to create a_politically-

neutral asylum regime that conforms to the nonideologica!

aspirations of international law; Congress could not have

intended, at the same time, to cede back to the Attorney

General the uncontrolled discretion to frustrate the funda-

mental purpose of the Refugee Act.

I. THE TEXT AND STRUCTURE OF THE REFUGER

ACT REFLECT CONGRESSIONAL INTENT TO

EXCLUDE FOREIGN POLICY AND POLITICAL

CONSIDERATIONS FROM THE ATTORNEY GEN-

ERAL’S DISCRETION UNDER SECTION 208

The text and structure of the Refugee Act make clear

that foreign policy and political considerations may not

properly influence the Attorney General’s asylum determi-

nations. The Refugee Act enunciated several funda-

mental principles that govern its implementation and

interpretation.

First, Section 208/(a) specifically provides for indi-

vidualized decisionmaking;* the Refugee Act mandates

the adjudication of asylum claims on the basis of an

administrative record and individual merit. The em-

phasis on individualized assessment reflects the personal

—and humanitarian—-roots of the Refugee Act and sug-

gests that reliance on broad policy goals separate and

apart from the applicant’s claim of persecution (and

5“The Attorney General shall establish a procedure for an alien

physically present in the United States . .. to apply for asylum

... INA §208(a), 8 U.S.C. §1158(a) (emphasis added).

beyond the capability of the refugee to assess and rebut)

is inconsistent with the Refugee Act.*

Second, and most important, the Refugee Act marked a

fundamental shift from prior refugee regimes that lim-

ited eligibilily for relief to those fleeing communist or

Middle Eastern countries.” Eligibility for asylum under

the Act is determined under an ideologically neutral and

apolitical standard: a refugee is defined as a person who

is outside his covniry and unable to return “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... .” INA

$101/a)i42: (A), 8 U.S.C. §$1101(a)(42)(A). The

shift from a politically-driven refugee regime to a system

defined by ideological neutrality constituted the most sig-

nificant policy innovation of the Refugee Act and sig-

nalled a reorientation of refugee law towards humani-

® The INS relies heavily upon Jay v. Boyd, a 5-4 decision in which

the Court permitted the INS to deny suspension of deportation

based on “confidential information” not disclosed to the alien. 351

U.S. 345, 349-50 & n.6 (1956). The Court characterized the discre-

tion to suspend deportation under Section 244(a) of the INA as

“unfettered.” Jd. at 354. It based this description on the fact that

Congress did “not restrict the considerations which may be relied

upon or the procedure by which the discretion should be exercised.”

Id. In Wong Wing Hang v. INS, 360 F.2d 715, 718 (2d Cir. 1966),

Judge Friendly discussed the precise language relied on by the

INS and emphasized that it did not preclude the federal courts

from ensuring that, when exercising discretion, the agency acted

consistently with congressional intent. As described in this brief,

the Refugee Act supplies a quite different statutory backdrop than

that surrounding the INA’s suspension provision and one that man-

dates a different conclusion on the scope of discretion.

TINA § 203(a) (7) (A) (i), 8 U.S.C. § 1153(a) (7) (A) (i) (1976)

(repealed 1980), permitted “conditional entry status” and provided

for admission «nd permanent residence for certain persons fleeing

persecution from communist or Middle Eastern countries, as well

as persons fleeing a “natural calamity” declared by the President.

See Stevic, 467 U.S. at 415. The Refugee Act removed this provi-

sion from the INA. Refugee Act § 203(b).

tarian principles and away from partisan political in-

fluences.*

Petitioner contends, however, that the politically-neu-

tral definition of refugee applies only to eligibility for

asylum but coes not limit in any respect the discretion to

deny asylum to an otherwise eligible person. See Pet. Br.

at 25.” Such a contention is wholly inconsistent with the

structural limitations at the foundation of the Refugee

Act." Carried to its logical conclusion, the rule offered

by petitioner would empower the Attorney General uni-

laterally to deport entire classes of refugees on the ground

that the recognition of persecution might adversely af-

fect the relations of the United States with a friendly

nation.'' The Attorney General could, under this theory

* See Martin, Reforming Asylum Adjudication: On Navigating

the Coast of Bohemia, 138 U. Pa. L. Rev. 1247, 1262 n.39 (1990)

(“Congress intended the refugee standards to be applied neutrally

and without ideological bias”) (citations omitted).

* The Attorney General, along with the INS and the Department

of State, has admitted that “the fact that an individual is from a

country whose government the United States supports or with

which it has favorable relations is not relevant to the determina-

tion of whether an applicant for asylum has a well-founded fear

of persecution.” American Baptist Churches v. Thornburgh, 760

F. Supp. 796, 799 (N.D. Cal. 1991) (emphasis added) (settling class

action challenging INS treatment of Salvadoran and Guatemalan

asylum-seekers and allowing any who had been denied relief to have

claim reconsidered). Despite that admission, {he INS now attempts

to reintroduce foreign policy considerations in through the back

door.

Indeed, the regulations promulgated by the Attorney General

list several factors that may be weighed in exercising a discretion-

ary asylum decision; foreign policy is not among them. See 8

C.F.M. §208.14(¢) (1990). Nor has the BIA ever ruled that for-

eign policy is a relevant factor. See note 43 infra.

™ Many commentators have observed that even after the passage

of the Refugee Act the Attorney General and his delegates continue

to enforce a swvh silentio pattern of political discrimination in

refugee decisions. See, ¢.¢., N. Zucker & N. Zucker, The Guarded

Gate: The Reality of American Refugee Policy 140-76 (1987);

Johnson, 1 “Hard Look” at the Executive Branch’s Asylum Deci-

of unbridled discretion, deny the asylum claims of all Sal-

vadorans while granting the claims of all Lraqis, depend-

ing upon the current foreign policy agenda. The inter-

pretation advanced by the INS requires the anomalous

conclusion that Congress fundamentally restructured the

immigration laws to broaden the pool of eligible appli-

cants to all refugees regardless of country of origin and

at the same time granted the Attorney General the au-

thority to pursue the exact same foreign-policy oriented

practices in effect before amendment. Such a warped

interpretation of the Refugee Act would undermine the

ideologically and geographically neutral definition of

refugee, vitiate the congressional mandate to decide

asylum claims on an individual basis, and effectively

sioas, 1991 Utah L. Rev. -—~ (forthcoming June 1991); Schuck,

The Emerging Political Consensus on Immigration Law, 5 Geo.

Immigr. LJ. 1, 7 (1991); Kurzban, A Critical Analysis of Refugee

Law, 36 U. Miami L. Rev. 865 (1982); Note, Political Bias in

United States lefugee Policy Since the Refugee Act of 1980, 1

Geo. Immigr. L.J. 495 (1986). The General Accounting Office

reported in 1987 that persons who flee communist or otherwise

unfriendly countries are still granted asylum with much greater

frequency than those from authoritarian regimes allied with the

United States. See United States General Accounting Office,

Asylum: Uniform Application of Standards Uncertain—Few Ap-

plicants Deported 22, 42 (1987); see also Anker, Determining

Asylum Claims in the United States: Summary Report of an

Empirical Study of the Adjudication of Asylum Claims Before the

Immigration Court, 2 Int'l J. Refugee L. 252, 255 (1990) (conclud-

ing that “ideological ... and... political judgements continue to

influence the decision-making process”); Melendez v. United States

Dep't of Justice, 926 F.2d 211, 219-20 (2d Cir. 1991) (reversing

denia! of asylum and suggesting that unstated foreign policy con-

siderations tainted asylum decision on Salvadoran refugee).

Congress, in enacting the Refugee Act, was acutely aware of the

hardships imposed by the existing geographical and ideological

limits. For instance, refugees fleeing the despotic Duvalier regime

in Haiti were ineligible for relief under the INA. See 125 Cong.

Rec. H11973-78 (Dec. 13, 1979) (remarks of Rep. Chisholm). The

position of the INS, carried to its logical conclusion, would vest

the Attorney General with the untrammeled authority to abandon

these refugees in the name of political expediency.

read out of the Act all of the carefully crafted provisions

that limit executive discretion. At bottom, the denial of

even a hearing on Doherty’s asylum claim—a decision

that ultimately rests on tiansient foreign policy goals

declared by the executive branch—is at odds with the

structure and promise of the Refugee Act. Nothing in

the text of Section 208 permits, much less compels, such

an outcome.

The INS also argues that because Congress referred

to foreign policy in Section 207(e)(6), 8 U.S.C.

§ 1157/e) (6), it necessarily follows that the executive may

properly consider foreign policy in the exercise of dis-

cretion under Section 208. See Pet. Br. at 25-27. This

argument is incorrect. Section 207 requires the Presi-

dent, when consulting with Congress on the quota and

allocation provisions of the overseas admissions program,

to provide information on how admissions will affect ‘‘the

foreign policy interests of the United States.” INA

§ 207(e) (6), 8 U.S.C, § 1157/e) (6) ; see Cardoza-Fonseca,

480 U.S. at 433 (distinguishing Sections 207 and 208).

Congress, in the very next section of the same statute,

which governs ‘‘the process by which refugees currently

in the United States may be granted asylum,” 480 U.S.

at 452, did not include foreign policy as a factor prop-

erly considered in the disposition of individual asylum

claims. The inclusion of foreign policy .considerations

in Section 207 and its conscious omission from Section

208 reflect the significant differences between the setting

of broad quotas in direct consultation with Congress and

the notions of personal fairness implicated in the adjudi-

cation of individual claims.'’ “‘|W |here Congress in-

cludes particular language in one section of a statute

but omits it in another section of the same Act, it is gen-

erally presumed that Congress acts intentionally and

12 See Anker, Discretionary Asylum: A Protection Remedy for

Refugees Under the Refugee Act of 1980, 28 Va. J. Int'l L. 1, 40

(1987) (“{Section 207) serves the larger requirements of U.S.

policy; [Section 208] responds to the immediate needs of indi-

viduals” ).

purposely in the disparate inclusion or exclusion.’” Rus-

sello v, United States, 464 U.S. 16, 23 (1983) (quoting

United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th

Cir. 1972) ); see Cardoza-Fonseca, 480 U.S. at 432 (quot-

ing Russello).

Moreover, the INS misreads Section 207. Section 207

provides that, in making complex determinations regard-

ing the establishment of numerical limits for the annual

admission of refugees, the executive may consider a num-

ber of different factors, including those related to the

“national interest.” See INA § 207(a)(1), 8 U.S.C.

£1157/a'/1). In contrast, deciSions to admit individual

refugees within this allocative framework are governed

solely by the statutory definition of refugee in Section

101(a' (42) and by whether the refugee is of “special

humanitarian concern to the United States... .” INA

£ 207(c) (1), 8 U.S.C. $1157(e) (1). By providing hu-

manitarian (‘rather than national interest) concerns as the

guiding principle for individual refugee admissions under

Section 207, Congress effectively excluded broad political

considerations from individual refugee determinations.’

These individual determinations—and not the setting of

numerical limits—are most closely analogous to asylum

determinations under Section 208."

'S Thus, the INS misreads Section 207(c) when it baldly states

that Doherty, if he were overseas, could have been denied admis-

sion solely on the basis of political undesirability. Pet. Br. at 21.

'In a similar manner, petitioner repeatedly suggests that, be-

cause the Second Circuit affirmed Attorney General Meese’s foreign-

policy based decision not to deport Doherty to Ireland under Sec-

tion 243(a), its conclusion that foreign policy is an impermissible

consideration under Section 208 is untenable. See Pet. Br. at 22.

That argument ignores the significant textual differences between

Sections 243(a) and 208. Section 243(a), 8 U.S.C. § 1253(a), ex-

pressly provides that an alien shall be deported to the country that

he or she designates “unless the Attorney General, in his discretion,

concludes that depertation to such country would be prejudicial to

the interests of the United States.” (Emphasis added.) -Section

208, however, includes no comparable provision.

At bottom, the INS is left to argue that the absence of

any specific (extual limitation means that the Attorney

General’s discretion is unfettered and unreviewable by

the judiciary. But its argument misconceives the nature

of the inquiry; this Court has always looked to the struc-

ture and text of the entire statute for guidance as to the

meaning of a particular provision. See, e.g., United

Savings Ass’n v. Timbers of Inwood Forest Assoes., Ltd.,

484 U.S. 365, 371 (1988) (“fal provision that may

seem ambiguous in isolation is often clarified by the

remainder of the statutory scheme . . . because only one

of the permissible meanings produces a substantive effect

that is compatible with the rest of the law”). In this

case, the Refugee Act, considered as a whole, effectively

prohibits the Attorney General from weighing foreign

policy and political considerations in asylum decisions

because they are “ ‘considerations that Congress could

not have intended to make relevant.’” Wong Wing Hang

v. INS, 360 F.2d 715, 719 (2d Cir. 1966) (Friendly, J.)

(quoting United States ex rel. Kaloudis v. Shaughnessy,

180 F.2d 489, 491 (2d Cir. 1950) (L. Hand, J.)); see

Cardoza-Fonseca, 480 U.S at 449 (acknowledging “the

longstanding principle of construing any lingering am-

biguities in deportation statutes in favor of the alien’)

(citations omitted }.""

See also International Primate Protection League v. Adminis-

trators of Tulane Educ. Fund, 59 U.S.L.W. 4424, 4426 (U.S. May 20,

1991) (“‘We continue to recognize that context is important in the

quest for [a] word’s meaning,’ ... and that ‘{[s|tatutory construc-

tion... is a holistie endeavor’) (citation omitted): West Virginia

Univ. Hoaps., Inc. «. Casey, 111 8. Ct. 1138, 1148 (1991) (“Where

« statutory term presented to us for the first time is ambiguous,

we construe it to contain that permissible meaning which fits most

logically and comfortably into the body of both previously and sub-

sequently enacted law”) (citation omitted). .

See also Jean v. Nelson, 172 U.S. 846, 855-57 (1985) (holding

that the discretion to parole aliens into the country excludes dis-

crimination on the basis of race or national origin): L. Jaffe, Judi-

cial Control of Administrative ‘ction 181-82 (1965) (reviewing

court must ensure that only “relevant factors” are considered by

agency and that “legally irrelevant or forbidden considerations have

Finally, the INS protests that the rule articulated by

the Second Circuit would strip the Attorney General of

virtually all discretion, and it characterizes the choice for

this Court as between a hamstrung Attorney General and

a system of “unfettered” discretion.’ Pet. Br. at 23, 33.

But the INS poses a false dichotomy. In granting discre-

tionary authority to the executive branch, Congress faced

a spectrum of choice between mandatory relief and un-

reviewable discretion.'* In the asylum context, Congress

delegated substantial authority to the Attorney General,

imposing only the reasonable—and perfectly foreseeable—

requirement that he exercise this discretion in a manner

[not] determined the decision”); cf. Friendly, Indiscretion About

Discretion, 31 Emory L.J. 747, 757 (1982) (appellate court review-

ing trial court exercise of discretion should strive “to eliminate

or curtail decisions based on impermissible factors”) (footnote

omitted).

'T Amici do not, and need not, attempt to delineate the various

factors the Attorney General may properly weigh in exercising his

discretion to grant or deny the asylum claim of a bona fide refugee

Many factors consistent with the purposes of the Refugee Act

might well be appropriate for consideration. However, the only

factor presented here—the role of foreign policy—-cannot be prop-

erly considered consistent with the statute.

'’ The INS argues that the decision of the Second Circuit is

inconsistent with this Court’s opinions that have described Section

208 as a discretionary remedy. Pet. Br. at 23-26 (citing Cardoza-

Fonseca, 480 U.S. at 441, and Stevic, 467 U.S. at 423). There is no

dispute on this issue; Congress did grant discretion to the Attorney

General to decide asylum claims. The only question here, a question

left open by Cardoza-Fonseca and Stevic, concerns the scope of that

discretion.

The INS also urges that the holding of the Second Circuit is

inconsistent with Cardoza-Fonseca because it makes asylum a more

readily-available remedy than withholding of deportation. This

theory turns on the unstated and misguided assumption that the

exclusion of foreign policy and political considerations from Section

208 eliminates al] discretion. Congress, however, granted signifi-

cant discretion to the Attorney General, but instructed him to

exercise that discretion in a fashion consistent with the purposes

of the Refugee Act. The Attorney General failed to do so in this

case.

consistent with the structure and goals of the Refugee

Act.”

Il. THE LEGISLATIVE HISTORY OF THE REFUGEE

ACT DEMONSTRATES THAT CONGRESS _IN-

TENDED FOR ASYLUM CLAIMS TO BE AD-

JUDICATED ON A NONPOLITICAL BASIS.

In addition to the text and structure of the Refugee

Act, its legislative history offers strong support for the

conclusion that the Attorney General may not consider

foreign policy in making asylum decisions. See Cardoza-

Fonseca, 480 U.S. at 432-43 (interpreting Refugee Act

in light of its legislative history); Stevic, 467 U.S. at

421-29 (same). When Congress enacted the Refugee

Act, it sought to end the era of ad hoe and politicized

asylum policy and to create a neutral and nonideological

regime.” The legislative history reflects this intent.

Before World War II, Congress had never passed leg-

islation providing for the admission or protection of per-

sons fleeing persecution.*' In the wake of the uprooting

of a significant portion of Europe’s population and the

United States’ emergence as a world leader, Congress

began to provide for admission of refugees into this coun-

try.** These measures were reactive, ad hoc, and largely

insufficient to deal with the emerging global refugee

crisis.**

19 This interpretation is consistent with the analysis of the

commentators who have considered the specific question. See Anker,

28 Va. J. Int’l L. at 55-56; Helton, The Proper Role of Discretion in

Political Asylum Determinations, 22 San Diego L. Rev. 999, 1009-11

(1985).

20 See generally G. Loescher & J. Scanlon, Calculated Kindness:

Refugees and America’s Half-Open Door, 1945 to the Present

(1986).

“1 See T. Aleinikoff & D. Martin, Immigration: Process and

Policy 50-53 (1985).

22 See Anker & Posner, The Forty Year Crisis: A Legislative

History of the Refugee Act of 1980, 19 San Diego L. Rev. 9, 12-20

(1981).

23 See id. at 17-19.

In response to the invasion of Hungary by the Soviet

Union in 1956, the Atiorney General began to rely on

his “parole” authority under the Immigration and Na-

tionality Act to admit large numbers of refugees into

the country.“ The parole power evolved into the primary

mechanism for admission of refugees. It was exercised

beyond the checks of either the judicial or legislative

branches and in a manner consistent with Cold War

»olitics—those who fled communist countries were gen-

erally paroled inte the country while those who fled

noncommunist countries rarely received comparable re-

lief.°° Congress, at least in some respects, also conceived

of the refugee laws in ideological terms; in 1965, it

enacted the conditional entry provisions of the INA that

expressly limited relief to persons fleeing a communist

or Middle Eastern country.*"

Apart from these programs for the admission of ref-

ugees, the Attorney General also possessed the discretion

to withhold the deportation of an alien to any country

where he would be subject to persecution.*’ Before 1980,

withholding of deportation under Section 243(h) was

committed +o the absolute discretion of the Attorney Gen-

eral, and he exercised this discretion only in the rarest

of instances,**

*4INA § 212(d) (5), 8 U.S.C. § 1182(d)(5) (1952). The parole

authority vested the Attorney General with the discretion to permit

the entry of persons “temporarily under such conditions as he may

prescribe for emergent reasons or for reasons deemed strictly in

the public interest... .” INA § 212(d)(5)(A), & U.S.C. § 1182

(d)(5)(A). The Refugee Act specifically limited the parole power

to cases involving “compelling reasons.” See INA § 212(d)(5)(B),

8 U.S.C. § 1182(d) (5) (B); see also infra at 24-25.

25 See Helton, Political Asylum Under the 1980 Refugee Act: An

Unfulfilled Promise, 17 U. Mich. J.L. Ref. 24%, 246 (1984).

“6 See INA § 203(a)(7)(A) (i), 8 U.S.C. §1153(a)(7) (A) 41)

(1976) (repealed 1980).

“TINA £ 248th), 8 U.S.C. §1253(h) (1970) (amended 1980).

“* See Anker, 28 Va. J. Int’l L. at 32 & n.160; Note, Judicial

Review of Administrative Staus of Deportation: Section 243th)

of the Immigration and Nationality Act of 1952, 1976 Wash. U.L.Q.

59, 100 (1976).

In the late 1960s, a new development placed the ex-

ecutive’s domination of refugee policy in question. In

1967, the United States formally acceded to the United

Nations Protocol Relating to the Status of Refugees.*’

The U.N. Protocol defines a refugee in strictly nonideolog-

ical terms and obligates signatory states to implement

their respecive refugee policies without regard to the

politics of the applicant or his homeland.” Article 3 of

the Protocol requires that each “Contracting State| |

. . apply the provisions of this Convention to refugees

without discrimination as to race, religion or country of

origin” (emphasis added).

Despite accession to the U.N. Protocol and its com-

mitment to a refugee system divorced from ideological

concerns, the executive branch persisted in its politically-

motivated refugee practice. See Helton, Political Asylum

Under the 1980 Refugee Act: An Unfulfilled Promise, 17

U. Mich. J.L. Ref. 243, 249-50 (1984). Regulations pro-

mulgated as late as 1974 afforded the INS complete dis-

cretion over refugee admissions and failed to articulate

any standards for eligibility determinations. See 8 C.F.R.

S$ 108.1, 108.2 (1976); Stevic, 467 U.S. at 420 n.13.

The regulations thus permitted the executive branch to

cox.tinue its practice of adjudicating claims for relief

at least partially on the basis of prevailing foreign

policy considerations."'

“*° Ry ratifying the U.N. Protocol, the United States bound itself

to Articles 2 through 34 of the 1951 United Nations Convention

Relating to the Status of Refugees, 19 U.S.T. 6259, 189 U.N.T.S.

137.

” Article 33 of the U.N. Protocol further provides that “|n|o

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, na-

tionality, membership of a particular social group or _ political

opinion.”

*! See Note, 1 Geo. Immigr. L.J. at 500-11; Hansen, Behind the

Paper Curtain: Asylum Policy Versus Asylum Practice, 7 N.Y.U.

tev. L. & Soc. Change 107, 123-25 (1978).

Throughout the 1970s, Congress expressed concern that

the Attorney General was making discretionary refugee

decisions in a manner inconsistent with the nonideological

and humanitarian goals of the U.N. Protocol. See Doherty,

908 F.2d at 1118-19; Anker & Posner, The Forty Year

Crisis: A Legislative History of the Refugee Act of 1980,

19 San Diego L. Rev. 9, 20-30 (1981). Various legisla-

tive proposals were advanced to remedy the perceived

defects in the law and to end the era of ad hoc, discre-

tionary, and discriminatory decisionmaking. Anker &

Posner, 19 San Diego L. Rev. at 20-30. None of these

efforts bore fruit until 1980.

The Refugee Act of 1980 “radically revised U.S. ref-

ugee and asylum law and procedures” and _ restored

congressional leadership to the field. The Act affirmed

“the historic policy of the United States to respond to

the urgent needs of persons subject to persecution in their

homelands, Refugee Act of 1980, Pub. L. No. 96-212, 94

Stat. 102 (1980), and articulated a ‘“‘national policy of

welcome to refugees.”” S. Rep. No. 256, 96th Cong., Ist

Sess. 3 (1979). Rejecting previous refugee provisions as

“outdated, unrealistic, and discriminatory,” “ the Refugee

Act remodeled the Immigration and Nationality Act in

several fundamental respects. The Refugee Act (1) re-

jected the politicization of refugee determinations as a

“cold war relic’ *' and explicitly adopted the nonideolog-

ical and humanitarian approach of the U.N. Protocol,

(2) required the Attorney General to establish procedures

to ensure that each asylum-seeker’s claim would be ad-

82 Refugee Assistance: Hearings on H.R. 3915 Before the

Subcomm. on Immigration, Refugees and International Law of the

House Comm. on the Judiciary, 98th Cong., Ist Sess. 56 (1983)

(statement of Elliott Abrams, Assistant Secretary, Bureau of

Human Rights and Humanitarian Affairs, Department of State).

“§ Refugee Act of 1979: Hearings Before the Subcomm. on

Immigration, Refugees, and International Law of the House Comm.

on the Judiciary, 96th Cong., 1st Sess. 1 (1979) (statement of

Rep. Holtzman, co-sponsor of the Refugee Act of 1979, H.R. 2816).

34 Jd.

judicated on its individual merits, and (3) circumscribed

the discretion of the Attorney General over refugee and

asylum decisions. Petitioner’s contention that Congress

intended to confer unfettered discretion is inconsistent

with each of these principles.

First, the overriding purpose of the Refugee Act was

to bring the United States into conformance with inter-

national legal principles of fairness and neutrality in

the implementation of refugee and asylum policy. See

Cardoza-Fonseca, 480 U.S. at 436 (“{ijf one thing is

clear from . . . the entire 1980 Act, it is that one of

Congress’ primary purposes was to bring United States

refugee law into conformance with the 1967 United Na-

tions Protocol”) (citations omitted). The U.N. Protocol

defines refugee in strictly nonpolitical terms.* Recogni-

tion of refugee status under international law rests ex-

clusively upon individual circumstances and not the for-

eign policies of signatory nations. The Conven‘ion, and

the 1967 Protocol, explicitly accept the principle of non-

discrimination based on country of origin.*’ See supra

55 See also Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 551-

52 (9th Cir. 1990); Doherty, 908 F.2d at 1119; Yiu Sing Chun

v. Sava, 708 F.2d 869, 872 (2d Cir. 1983); Stevie v. Sava, 678 F.2d

401, 408 (2d Cir. 1982), rev'd sub nom. INS v. Stevic, 467 U.S. 407

(1984).

46 See note 30 and accompanying text supra. “A person is a refu-

gee within the meaning of the 1951 Convention as soon as he fulfills

the criteria contained in the definition. . . . He does not become a

refugee because of recognition, but is recognized because he is a

refugee.” Office of the United Nations High Commissioner for

Refugees’ Handbook on Procedures and Criteria for Determining

nificant guidance to the meaning of the Protocol and, by implication,

to the Refugee Act. See Cardoza-Fonseca, 480 U.S. at 439 n.22;

Matter of Frentescu, 18 Il. & N. Dec. 244 (BIA 1982).

37 See Cox, “Well-Founded Fear of Being Persecuted”: The

Sources and Application of a Criterion of Refugee Status, 10

Brooklyn J. Int'l L. 333, 346-47 (1984). The travaur preparatoives

(history of negotiations) reveal that the United States, in the early

rounds of negotiations, advocated limiting the protections of the

at 17 (quoting U.N. Protocol). The principle of nondis-

crimination was considered such a central part of the

Convention that, unlike other provisions, signatories could

not make a reservation to Article 3. See U.N. Protocol,

Article 42. The concept of an ideologically neutral

refugee policy thus stands at the core of international

law.

The Conference Reports to the Refugee Act declared

that the Committee drafted the asylum and refugee provi-

sions with the “understanding that it is based directly

upon the language of the Protocol and it is intended that

the provision be construed consistent with the Protocol.”

S. Conf. Rep. No. 590, 96th Cong., 2d Sess. 20 (1980) ;

H.R. Conf. Rep. No. 781, 96th Cong., 2d Sess. 20

(1980). Congress adopted the U.N. Protocol’s definition

of refugee and simultaneously eliminated existing pro-

visions, including the geographical limitations and the

open-ended parole authority, which were inconsistent with

international norms. Numerous witnesses, and many

Members of Congress, expressed the view that these

changes in refugee and asylum law would end the intru-

sion of politics into refugee policy and make American

law consistent with the humanitarian impulse of inter-

national rules.“ This respect for the nondiscriminatory

Convention to persons of particular nationalities. This position was

rejected, and the United States ultimately acceded to the non-

discrimination viewpoint. /d.; see also Restatement (Second) For-

eign Relations Law of the United States §147 (1965) (concluding

that the history of negotiations may be taken into account in

interpreting international agreements).

58 See, e.g., 125 Cong. Rec. H11,973 (Dec. 13, 1979) (remarks of

Rep. Chisholm) (“[r]efugees fleeing persecution regardless of the

country they come from, on humanitarian considerations alone,

should be equal in standing for entry into the United States”);

125 Cong. Rec. 23,240 (1979) (remarks of Sen. Boschwitz) (“[ilf

our commitment to help desperate, homeless people is sincere, we

must be willing to help all in need of assistance despite their

ideologies or countries or [sic] origin”) (emphasis added); 126

Cong. Rec. 4,501 (1980) (remarks of Rep. Rodino) (“one of the most

important pieces of humanitarian legislation ever enacted by a

U.S. Congress”) ; H.R. Rep. No. 608, 96th Cong., Ist Sess. 9 (1979)

purposes of the Refugee Act was equally reflected in the

President’s signing statement. See President Jimmy

Carter’s Signing Statement, 16 Weekly Comp. Pres. Doc.

503 (March 18, 1980) (the Refugee Act “establishes a

new admissions policy that will permit fair and equitable

treatment of refugees in the United States, regardless of

their country of origin”). Contrary to the mechanistic

interpretation of the INS, this rule of nondiscrimination

forms the bedrock principle of the Refugee Act, and this

basie concept informs the interpretation of all of its

provisions. |

Petitioner leans heavily upon the statement in the

Senate report that “the substantive standard [for re-

lief] is not changed,” Pet. Br. at 29, and notes that

the Court quoted this exact language in Cardoza-Fonseca,

480 U.S. at 435 n.16. But a close examination of the

context of this statement does not support the INS’ in-

terpretation. The statement in the Senate Report, read

(stating that definition of refugee “eliminates the geographical and

ideological restrictions” in current law); 126 Cong. Rec. 4,499

(1980) (remarks of Rep. Holtzman) (the new definition of refugee

“finally eliminates the geographical and ideological restrictions ap-

plicable to refugees”); 126 Cong. Rec. 4,507 (1980) (remarks of

Rep. Chisholm) (refugee admissions would no longer be “tainted

with ideological, geographical or racial or ethnic biases”); see also

Briefings on the Growing Refugee Problem—Implications for the

International Organizations: Hearings Before the Subcomm. on

International Organizations of the House Comm. on Foreign Af-

fairs, 96th Cong., 1st Sess. 21 (1979) (remarks of Dick Clark,

United States Coordinator for Refugee Affairs and Ambassador-

at-Large) (stating that the Refugee Act “would make all people—

regardless of their ideology, regardless of their geography—eligible

for” relief).

The comments of Senator DeConcini to Secretary of State Vance

illustrate the frustration of Congress with the executive branch’s

practice of infusing foreign policy into refugee matters: “If you

are a boat refugee from Cuba, INS automatically considers you a

refugee. If you are a boat refugee from Baby Doc’s Haiti, INS

automatically considers you an illegal alien coming to the United

States for economic purposes.” United States Refugee Problems:

Hearings before the Senate Comm. on the Judiciary, 96th Cong.,

2d Sess. 14 (1980).

in context, refers only to the conditions for eligibility for

asylum and not to the exercise of discretion in individual

asylum cases. See S. Rep. No. 256, supra, at 9. Indeed,

this Court cited the Senate Report statement to sup-

port the proposition that “Congress was told that the

extant asylum procedure for refugees outside of the

United States was acceptable under the Protocol, ex-

cept for the fact that it made various unacceptable

geographic and political distinctions.” Cardoza-F onseca,

480 U.S. at 434-35 (emphasis added).* The principal

substantive innovation of the Refugee Act affected the

asylum eligibility criteria and, by necessary implication,

the discretion of the Attorney General; the primary sup-

port for the INS’ revisionist legislative history is thus

inapplicable.”

Second, Congress directed the Attorney General to cre-

ate “a new uniform asylum procedure” to govern ad-

ministrative decisionmaking. S. Conf. Rep. No. 590,

supra, at 20; H.R. Conf. Rep. No. 781, supra, at 20; see

INA § 208, 8 U.S.C. § 1158; Yiu Sing Shun v. Sava, 708

F.2d 869, 872 (2d Cir. 1983) (quoting House Conference

Report). In establishing uniform procedures, Congress

directed that all asylum-seekers be treated evenhandedly,

and that similarly-situated applicants be held to the

same standard.*' The legislative history reflects the con-

89 See also Stevic, 467 U.S. at 427; Schuck, 5 Geo. Immigr. L. J.

at 7; Martin, 138 U. Pa: L. Rev. at 1261-62; Aleinikoff, Political

Asylum in the Federal Republic of Germany and the Republic of

France: Lessons for the United States, 17 U. Mich. J. L. Ref. 183,

235 (1984).

* The INS also chides the Second Circuit for relying on state-

ments in the legislative record relating to Section 207 of the

Refugee Act in interpreting the scope of discretion under Section

208. Pet. Br. at 29-30. Curiously, on the very next page of its

brief, the INS cites several legislative comments, all of which relate

to Section 207(a). Pet. Br. at 31 nn.16 & 17.

*! See Letter from Senator Kennedy to Secretary of State Vance

(reprinted in S. Rep. No. 256, supra, at 2) (the United States must

“establish a long range refugee policy—a policy which will treat

all refugees fairly and assist all refugees equally’’).

sensus that asylum applicants should be judged fairly

and in accordance with the humanitarian goals of the

Refugee Act. See, e.g., H.R. Rep. No. 608, supra, at 17-

18. By requiring uniform procedures, Congress effectively

instructed the Attorney General to evaluate each appli-

cation for asylum on the merits of the individual claim

of persecution and not by reference to foreign policy or

political goals.

The decision of Congress to require adjudication of

asylum claims on their individual merits reflects its

recognition of the humanitarian and protective nature of

asylum.” As this Court has emphasized, ‘|d]eportation

is always a harsh measure; it is all the more replete

with danger when the alien makes a claim that he or

she will be subject to death or persecution if forced to

return to his or her home country.” Cardoza-Fonseca,

480 U.S. at 449; see also Reyes-Arias v. INS, 866 F.2d

500, 504 (D.C. Cir. 1989) (Starr, J.) (describing asylum

as the “most sensitive of human claims in the interna-

tional community”). Consistent with this understanding

of asylum, Congress created a system of adjudication

based upon the merits of an individual’s case, not upon

the relations between the United States and the country

of origin.** The practice of denying asylum claims on

42 The Refugee Act “gives statutory meaning to cur national

commitment to human rights and humanitarian concerns ... .”

S. Rep. No. 256, supra, at 1. The INS, in its own brief, acknowl-

edges the humanitarian foundations of the Act, describing Doherty

as seeking “the special humanitarian relief of asylum.” Pet. Br. at

19, 33.

48 Indeed, until the Attorney General intervened in this case, the

executive had adhered to this interpretation of the Refugee Act.

In Matter of Pula, 19 1. & N. Dee. 467, 473-74 (BIA 1987), the

BIA emphasized that the agency must weigh “the totality of the

circumstances” and that, once an asylum applicant establishes a

well-founded fear of persecution, “the discretionary factors should

be carefully evaluated in light of the unusually harsh consequences

which may befall an alien who has established a well-founded fear

of persecution; the danger of persecution should generally outweigh

all but the most egregious of adverse factors.” Until this case,

grounds unrelated to their merits because of prevailing

poiitical or foreign policy goals is anathema to the human-

itarian purpose behind the Refugee Act.

Third, the Refugee Act overhauled the respective roles

of the executive and the legislative branches in refugee

and asylum decisions. Besides adopting the rules of the

U.N. Protocol and affording procedural protections to

asylum-seekers, Congress made clear in several ways

that the unrestricted executive control over refugee law

that had evolved over several decades would be signifi-

cantly curtailed. In particular, Congress mandated reg-

ular consultation between the executive and Congress,

thereby routinizing congressional input into refugee pol-

icy.** See INA § 207, 8 U.S.C. § 1157; 125 Cong. Ree.

discretionary denials have been limited to matters of administra-

tive efficiency and fairness. See Doherty, 908 F.2d at 1120. These

applicants typically abused the asylum process or had found safe

haven in other countries. Jd. at 1120-21; see also Anker, 28 Va. J.

Int’] L. at 49-51 (arguing that alternative safe haven and danger

to the community are relevant discretionary factors); Helton, The

Proper Role of Discretion in Political Asylum Determinations, 22

San Diego L. Rev. 999 (1985). Since Pula, the BIA has denied

few asylum claims on discretionary grounds. See Anker & Blum,

New Trends in Asylum Jurisprudence: The Aftermath of the U.S.

Supreme Court Decision in INS v. Cardoza-Fonseca, 1 Int'l J.

Refugee L. 67, 70 (1989); see also Martin, 138 U. Pa. L. Rev. at

1265-66 (praising executive’s limited denial of asylum on discre-

tionary grounds).

**The Refugee Act requires annual consultation between the

President and Congress on the refugee admission quotas. INA

§ 207(e), 8 U.S.C. $1157(e). The President must submit a de-

tailed report to Congress on the status of refugees throughout

the world and a proposal for the admission of refugees into the

United States. See INA § 207(d) (1), 8 U.S.C. §1157(d) (1). After

congressional hearings on the President’s proposal, a joint plan for

the admission of refugees from the various regions of the world

is adopted. See INA &§ 207(a) (3), 207(d) (3), 8 U.S.C. $§ 1157

(a) (3), 1157(d) (3) (A); see also Blum & Laurence, Cold Winds

from the North: An Analysis of Recent Shifts in North American

Refugee Policy, 16 N.Y.U. Rev. L. Sec. Change 55, 66 n69 (1987-

88). The President also must undertake appropriate consultation

with Congress on any emergency refugee initiatives. See INA

§ 207(b), 8 U.S.C. §1157(b).

$12,007 (Sept. 6, 1979) (statement of Sen. Robert Byrd)

(Refugee Act “provides for the first time the statutory

requirement that Congress be consulted before refugees

are admitted, and defines and exerts congressional control

over the process” ).

In addition, the Refugee Act transformed withholding

of deportation from a completely discretionary to a man-

datory form of relief in any instance in which the appli-

cant establishes a clear probability of persecution. See

INA § 243(h), 8 U.S.C. § 1253(h); INS v. Stevic, 467

U.S. 407, 421-25 (1984). This change brought the

Refugee Act into conformity with international law *

and further constricted the discretionary authority of

the Attorney General.

Moreover, Congress virtually eliminated the broad power

of the Attorney General to parole refugees into the coun-

try. The Refugee Act specifically limited the use of the

parole authority to situations in which the Attorney

General “determines that compelling reasons in the public

interest with respect to that particular alien require that

the alien be paroled into the United States rather than

be admitted as a refugee” under Section 207. INA

§ 212(d) (5), 8 U.S.C. §$1182(d)(5). Thus, Congress

further narrowed the discretion of the Attorney Gen-

eral and funnelled individual refugee determinations into

a formal and uniform process.

Finally, the Refugee Act vested the Attorney General

with discretion over asylum decisions but did so in a

manner markedly different from the “sweeping delega-

5 See H.R. Rep. No. 608, supra, at 18 (“[a]s 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’’); see also Anker

& Posner, 19 San Diego L. Rev. at 45 (observing that amendment

of § 243(h) represented a movement “towards consonance with the

UN Convention”).

tions” ** found in other provisions of the INA. Congress

gave the Attorney General authority to create 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....” H.R. Rep. No. 608, supra, at 17-18 (emphasis

added).7 Congress, acknowledging the difficulties of

creating a “workable” policy, vested the Attorney Gen-

eral with discretion, but it required him to exercise

his authority in harmony with the ideologically neutral

and humanitarian impulses of the Refugee Act. The

legislative determination to channel the Attorney Gen-

erai’s authority further rebuts the INS’ notion of un-

fettered discretion. See Auker & Posner, 19 San Diego

L. Rev. at 36 (Refugee Act “structure{s] and control[s]

executive decision making’’).

In light of the many steps taken by Congress to limit

executive authority over refugee law, it is clear that the

Attorney General’s reliance on the ‘‘unfettered discretion”

of Section 208 to deny Doherty a hearing for foreign

policy reasons is inconsistent with fundamental tenets of

the Refugee Act.

46 See Jean v. Nelson, 727 F.2d 957, 965-67 (11th Cir. 1984)

(en banc), aff'd, 472 U.S. 846 (1985).

47 See, e.g., Admission of Refugees into the United States: Hear-

ings Before the Subcomm. on Immigration, Citizenship, and Inter-

national Law of the House Comm. on the Judiciary, 95th Cong.,

Ist Sess. 97 (1977) (statement of Rep. Eilberg) (“I am the first

to recognize that we must preserve some degree of administrative

flexibility in admitting refugees to this country, but at the same

time Congress cannot shirk its responsibility to legislate orderly,

consistent, and uniform procedures governing their admission’’) ;

Anker, Discretionary Asylum: A Protection Remedy for Refugees

Under the Refugee Act of 1980, 28 Va. J. Int’] L. 1 (1987); Helton,

The Proper Role of Discretion in Political Asylum Determinations,

22 San Diego L. Rev. 999 (1985); Roberts, The Exercise of Ad-

ministrative Discretion Under the Immigration Laws, 13 San Diego

L. Rev. 144, 145-48 (1975).

III. BECAUSE THE POSITION ASSERTED BY THE

INS IS CONTRARY TO THE REFUGEE ACT, IT

IS NOT ENTITLED TO DEFERENCE.

In its final attacks on the decision of the Second Cir-

cuit, the INS offers several reasons why this Court should

defer to its reading of the Refugee Act. Its concerns are

inapplicable here.

First, the INS suggests, as a general principle of ad-

ministrative law, that the legal interpretations of the

Attorney General are entitled to deference as a matter

of course. Pet. Br. at 40. However, this Court con-

sistently has required agencies to act in harmony with

the mandate of Congress.** Deference to the interpre-

tations of the Attorney General is particularly unwar-

ranted here because the text and history of the Refugee

Act evidence the unambiguous intent of Congress. In

Cardoza-Fonseca, this Court rejected the executive’s in-

terpretation of the statute because it was contrary to

clear congressional intent as determined by “traditional

tools of statutory construction.” 480 U.S. at 446. The

Court emphasized that the judiciary remains the “ ‘final

authority’ ” on statutory interpretation. Jd, at 447 (cita-

tion omitted).*® In this case, the petitioner’s novel theory

48 See Bureau of Alcohol, Tobacco & Firearms v. Federal Labor

Relations Auth., 464 U.S. 89, 97 (1983) (emphasizing that courts

should reverse “ ‘administrative decisions that they deem incon-

sistent with a statutory mandate or that frustrate the congres-

ional policy underlying a statute’”) (citation omitted); Motor

Vehicle Mfrs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S.

29, 43 (1983) (emphasizing that “agency rule would be arbitrary

and capricious if the agency has relied on factors which Congress

has not intended it to consider”) (citation omitted).

49 This Court has been reluctant to extend untoward deference

to the INS in the immigration context. See Cardoza-Fonseca, 480

U.S. at 452 (Blackmun, J., concurring) (“[t]he efforts of [the

lower courts in interpreting the statute] 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’).

is contrary to clear congressional intent and not entitled

to deference.”

Second, petitioner argues, relying on INS v. Abudu,

485 U.S. 94 (1988), that the plenary power doctrine

insulates its decisions from judicial review. Pet. Br. at

33-34. However, this Court traditionally has applied that

doctrine to shield laws enacted by Congress in the immi-

- gration area from judicial scrutiny.*' Indeed, Congress

explicitly recognized in enacting the Refugee Act that it—

not the executive—was exercising its plenary power over

immigration. See 125 Cong. Rec. H11,967 (Dec. 13,

1979) (statement of Rep. Lott) (‘‘[t]he committee was

extremely concerned about assuring that Congress has

a proper and substantial role in refugee admissions,

given our plenary power over immigration”) (emphasis

added).

When the judiciary has deferred to the executive

plenary power, it has done so only when Congress has not

imposed statutory limitations on the executive branch.

See Abudu, 485 U.S. at 110 (stating that “abuse-of-dis-

cretion standard will often apply to agency adjudications

not governed by specific statutory commands”) (em-

50 The clear congressional intent distinguishes this case from the

cases cited by petitioner in support of its deference theory. See,

e.g., Pension Benefit Guar. Corp. v. LTV Corp., 110 S. Ct. 2668,

2677 (1990) (holding that traditional tools of statutory construc-

tion failed to evince clear congressional intent and therefore court

should defer to agency interpretation) ; see also Homemakers North

Shore, Inc. v. Bowen, 832 F.2d 408, 411 (7th Cir. 1987) (Easter-

brook, J.) (stating that when Congress establishes rule binding

agency, agency interpretation “is entitled to . . . little force”)

(citations omitted).

51 For instance, the seminal plenary power case involved judicial

review of the Chinese Exclusion Act. The Chinese Exclusion Case,

130 U.S. 581 (1889). Virtually all of the cases cited by petitioner

in its brief involve review of the decisions of Congress, not the

executive, on immigration matters. See Fiallo v. Bell, 430 U.S. 787

(1977); Galvan v. Press, 347 U.S. 522 (1954); Harisiades v.

Shaughnessy, 342 US. 580 (1952); Fong Yue Ting v. United

States, 149 U.S. 698 (1893).

phasis added). Here, the Attorney General operates pur-

suant to a statute whose principal animating purpose

was to reassert congressional control over standardless

and wholly discretionary decisionmaking by the executive.

See supra at 22-26.% The INS thus wrongly poses the

conflict; it is not created by the judiciary’s attempt to

impose undue limits on the Attorney General but by

the Attorney General’s attempt to evade the permissible

limits imposed by Congress. When the executive violates

the mandate of Congress, the decisions of the Attorney

General deserve no special deference.

Finally, the INS proffers one last deference argument,

that respondent is a terrorist and that the judiciary

should defer to the Attorney General’s international co-

operative efforts in that realm. Pet. Br. at 33. Peti-

tioner, however, makes these assertions without affording

Doherty an opportunity to rebut specific charges against

him and present evidence at an asylum hearing. By de-

nying Doherty the opportunity to be heard, the Attorney

General has acted in disregard of the mandate of the

Refugee Act and of the BIA rulings that compel careful

fact-finding and the balancing of equities. See Yiu Sing

Chun v. Sava, 708 F.2d at 876 (holding that “Congress’s

limitation on the Attorney General’s discretion requires

careful fact-finding”) ; Matter of Riccio, 15 I. & N. Dec.

548, 549 (BIA 1976) (holding that discretionary judg-

ments must be based upon evaluation of all the facts and

circumstances of particular case); Matter of Vega, 11

52 The congressional goal of limiting executive authority in this

area was made clear from the first hearings on the Refugee Act.

See H.R. Rep. No. 608, supra, at 15 (quoting House hearings) ;

Admission of Refugees into the United States: Hearings Before

the Subcomm. on Immigration, Citizenship, and International Law

of the House Comm. on the Judiciary, 95th Cong., Ist Sess. 59

(1977) (statement of Rep. Eilberg) (introducing legislation repre-

senting “an attempt to restore [congressional] authority and, at

the same time, to establish a proper balance between the executive

and the legislative branches of Government in establishing the

appropriate procedures. .. .”).

I. & N. Dec. 337, 339 (BIA 1965) (same). The At-

torney General’s extraordinary decision to deny asylum

without a full and fair hearing stands in stark contrast

to the careful and individualized requirements spelled

out in the Refugee Act.

CONCLUSION

For the foregoing reasons, the decision of the Court

of Appeals for the Second Circuit should be affirmed.

June 5, 1991

Respectfully submitted,

CAROLYN PATTY BLUM *

BoALT HALL SCHOOL OF LAW

University of California

at Berkeley

Berkeley, California 94720

(415) 642-5980

KEVIN R. JOHNSON

KING HALL SCHOOL OF LAW

University of California

at Davis

Davis, California 95616

(916) 752-8047

JOSEPH K. BRENNER

KENNETH P. STERN

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6000

Counsel for Amici Curiae

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.