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Published online by Cambridge University Press: 27 February 2017
[Reproduced from the Slip Opinion provided by the U.S. Supreme Court.]
3 We explained that the Court of Appeals’ decision had rested “on the mistaken premise that every alien who qualifies as a “refugee’ under the statutory definition is also entitled to a withholding of deportation under ﹜ 243(h). We find no support for this conclusion in either the language of S243G0, the structure of the amended Act, or the legislative history.”Ins Stevie, 467 U.S.407,428(1984). $243(h) between 1968 and 1980, the Protocol does not require the granting of asylum to anyone, and hence does not subject the Attorney General to a similar constraint with respect to his discretion under §208(a).See infra, at 18-19.
4 As amended, the new §243(h) provides: “The Attorney General shall not deport or return any alien … to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. ! 1253(hXl) (emphasis added). ““The section literally provides for withholding of deportation only if the alien's life or freedom ‘would’ be threatened in the country to which he would be deported; it does not require withholding if the alien ‘might’ or ‘could’ be subject to persecution.'’ Stevic, 467 U.S.,at 422.
5 The Bia agrees that the term “fear.” as used in this statute refers to “a subjective condition, an emotion characterized by the anticipation or awareness of danger.” Matter of Acosta, Interim Decision # 2986, p. 14 (Mar. 1, 1985) (citing Webster's Third New International Dictionary 831 (16th ed. 1971)).
6 See, e. g., Careamo-Flons v. Ins, 805 F. 2d 60,68 (CA2 1986) (“What is relevant is the fear a reasonable person would have, keeping in mind the context of a reasonable person who is facing the possibility of persecution, perhaps including a loss of freedom or even, in some cases, the loss of life“); Guevara-Flares v. ins, 786 F. 2d 1242,1249 (CAS 1986), cert, pending, No. 86-388 (“An alien possesses a well-founded fear of persecution if a reasonable person in her circumstances would fear persecution if she were to be returned to her native country“); Carrioza-Fonteca v. ins, 767 F. 2d 1448,1452-1453 (CA9 1985) (“In contrast, the term Veil-founded fear 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“); Carvajal-Munot, 743 F.2d 562,574 (CA7 1984) (“The applicant must present specific facts establishing lhat he or she has actually been the victim of persecution or has some other good reason to fear that he or she will be singled out for persecution on account of race, religion, nationality, membership in a particular social group, or political opinion“)(emphasis in original).
7 The Court suggests that the Bia's interpretation of the “well-founded fear” standard has been “erratic.” Ante, at 23, n. 29. An examination of the relevant Bia decisions leads to a contrary conclusion. The Bia first addressed the standard in Matter ofDunar,14 IN.Dec. 310 (1973). In that case, the Bia considered the meaning of the term “well-founded fear” in the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, 6225, Tias No. 6577. When Congress inserted this language in the asylum provisions of the Act in 1980, the Bia interpreted the language to mean exactly the same thing as the language in the protocol. Matter of Acosta, Interim Decision #2986 (Bia Mar. 1, 1985). Thus, the Bia's position has never changed. The Court bases its characterization of the Bia's record on decisions applying the more lenient fear” standard. If anything about these statutes is clear, it is that a “well-founded fear” is something more than a “fear.”It is unfair to characterize the Bia's decisions as “erratic” when the agency was in fact interpreting two different standards.
8 The Bia has interpreted the statutory definition to require proof of four elements: (i) the alien must have a “fear” of “persecution“; (ii) the fear must be “well-founded“; (ill) the persecution must be “on account of race. religion, nationality, membership in a particular social group, or political opinion“; and (iv) the alien must be unable or unwilling to return to his homeland because of persecution or his well-founded fear of persecution. See id., at U
9 Of course, the applicant would have to meet all four elements of the well-founded fear standards. See supra, at 3 (quoting Acosta, Interim Decision #2986, at 22). Although these requirements restrict grants of relief in some cases, none of them rests on the mathematical considerations that the Court suggests govern current Bia practice. Moreover, the Court's exegesis of the “plain meaning” of the phrase “well-founded” in no way suggests that the Bia's four-part test is a misinterpretation of the statute
791 22 U.S.C. 2422. Sec. 662 was added bv sec. 32 of the FA Act of 1974.
4 Those regulations constituted this country's informal attempt to comply with the exhortation of the Convention Relating to the Status of Refugees to “facilitate the assimilation and naturalization,” Article 34, Jan. 31, 1967 [1968], 19 U. S. T. 6259, 6276, T. I. A. S. No. 6577, of persons who have a “well-founded fear of being persecuted,” Article 1(A)(2), id., at 6261. All parties agree that the Convention's language was the ultimate source of the language Congress placed in the Act.
4 The Court concludes that the Senate Report has no probative force because the Conference Committee adopted the House language rather than the Senate language. But the changes in language made by the Conference Committee do not help the Court's position. As I explain infra this page, the House Report indicates that the House bill also was intended to adopt the standards set forth in the regulations. Moreover, there is no suggestion in the Conference Report that this change in language affected the substantive standard. See in/m, at 10-11.
4 This interpretation is supported by evidence that the House bill, like the Senate bill, was intended to preserve the Attorney General's regulations treating the two standards as substantially identical. See supra, at 9.
4 The Court contends that this question is not before us. Ante, at 25, n. 31. I find this suggestion quite strange. The Solicitor General asked the Court to determine “(whether an alien's burden of proving eligibility for asylum…is equivalent to his burden of proving eligibility for withholding of deportation.” Pet. for Cert. (I). The question of whether the two standards are equivalent “fairly includes,” Sup. Ct Rule 20.1,the problem of defining the appropriate standard for asylum. And that question can only be answered on the facts of this case. The Court does not sit to answer hypothetical questions of statutory construction. Normally we resolve such questions only by examining the facts of the case before us. In this case, the Court affirms the Court of Appeals decision that the BIA required an intolerably high burden of proof in this case. Yet, like the Court of Appeals, the Court examines neither the facts of the case before us nor the legal standard the BIA applied. In my view, Rule 20 does not contemplate this result.