Professor Fullerton: Comparative Perspectives on the Protection of Forced Migrants
Class 10 – Readings
Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees
HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979
***
(2) “well founded fear of being persecuted”
(a) General analysis
37. The phrase “well-founded fear of being persecuted” is the key phrase of the definition. It
reflects the views of its authors as to the main elements of refugee character. It replaces the
earlier method of defining refugees by categories (i.e. persons of a certain origin not enjoying the
protection of their country) by the general concept of “fear” for a relevant motive. Since fear is
subjective, the definition involves a subjective element in the person applying for recognition as
a refugee. Determination of refugee status will therefore primarily require an evaluation of the
applicant's statements rather than a judgement on the situation prevailing in his country of origin.
38. To the element of fear--a state of mind and a subjective condition--is added the qualification
“well-founded”. This implies that it is not only the frame of mind of the person concerned that
determines his refugee status, but that this frame of mind must be supported by an objective
situation. The term “well-founded fear” therefore contains a subjective and an objective element,
and in determining whether well-founded fear exists, both elements must be taken into
consideration.
39. It may be assumed that, unless he seeks adventure or just wishes to see the world, a person
would not normally abandon his home and country without some compelling reason. There may
be many reasons that are compelling and understandable, but only one motive has been singled
out to denote a refugee. The expression “owing to well-founded fear of being persecuted”--for
the reasons stated--by indicating a specific motive automatically makes all other reasons for
escape irrelevant to the definition. It rules out such persons as victims of famine or natural
disaster, unless they also have well-founded fear of persecution for one of the reasons stated.
Such other motives may not, however, be altogether irrelevant to the process of determining
refugee status, since all the circumstances need to be taken into account for a proper
understanding of the applicant's case.
40. An evaluation of the subjective element is inseparable from an assessment of the personality
of the applicant, since psychological reactions of different individuals may not be the same in
identical conditions. One person may have strong political or religious convictions, the disregard
of which would make his life intolerable; another may have no such strong convictions. One
person may make an impulsive decision to escape; another may carefully plan his departure.
41. Due to the importance that the definition attaches to the subjective element, an assessment of
credibility is indispensable where the case is not sufficiently clear from the facts on record. It
will be necessary to take into account the personal and family background of the applicant, his
membership of a particular racial, religious, national, social or political group, his own
interpretation of his situation, and his personal experiences--in other words, everything that may
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serve to indicate that the predominant motive for his application is fear. Fear must be reasonable.
Exaggerated fear, however, may be well-founded if, in all the circumstances of the case, such a
state of mind can be regarded as justified.
42. As regards the objective clement, it is necessary to evaluate the statements made by the
applicant. The competent authorities that are called upon to determine refugee status are not
required to pass judgement on conditions in the applicant's country of origin. The applicant's
statements cannot, however, be considered in the abstract, and must be viewed in the context of
the relevant background situation. A knowledge of conditions in the applicant's country of
origin--while not a primary objective--is an important element in assessing the applicant's
credibility. In general, the applicant's fear should be considered well-founded if he can establish,
to a reasonable degree, that his continued stay in his country of origin has become intolerable to
him for the reasons stated in the definition, or would for the same reasons be intolerable if he
returned there.
43. These considerations need not necessarily be based on the applicant's own personal
experience. What, for example, happened to his friends and relatives and other members of the
same racial or social group may well show that his fear that sooner or later he also will become a
victim of persecution is well-founded. The laws of the country of origin, and particularly the
manner in which they are applied, will be relevant. The situation of each person must, however,
be assessed on its own merits. In the case of a well-known personality, the possibility of
persecution may be greater than in the case of a person in obscurity. All these factors, e.g. a
person's character, his background, his influence, his wealth or his outspokenness, may lead to
the conclusion that his fear of persecution is “well-founded”.
44. While refugee status must normally be determined on an individual basis, situations have
also arisen in which entire groups have been displaced under circumstances indicating that
members of the group could be considered individually as refugees. In such situations the need to
provide assistance is often extremely urgent and it may not be possible for purely practical
reasons to carry out an individual determination of refugee status for each member of the group.
Recourse has therefore been had to so-called “group determination” of refugee status, whereby
each member of the group is regarded prima facie (i.e. in the absence of evidence to the contrary)
as a refugee.
45. Apart from the situations of the type referred to in the preceding paragraph, an applicant for
refugee status must normally show good reason why he individually fears persecution. It may be
assumed that a person has well-founded fear of being persecuted if he has already been the
victim of persecution for one of the reasons enumerated in the 1951 Convention. However, the
word “fear” refers not only to persons who have actually been persecuted, but also to those who
wish to avoid a situation entailing the risk of persecution.
46. The expressions “fear of persecution” or even “persecution” are usually foreign to a refugee's
normal vocabulary. A refugee will indeed only rarely invoke “fear of persecution” in these terms,
though it will often be implicit in his story. Again, while a refugee may have very definite
opinions for which he has had to suffer, he may not, for psychological reasons, be able to
describe his experiences and situation in political terms.
***
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(2) Benefit of the doubt
203. After the applicant has made a genuine effort to substantiate his story there may still be a
lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly
possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the
majority of refugees would not be recognized. It is therefore frequently necessary to give the
applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has
been obtained and checked and when the examiner is satisfied as to the applicant's general
credibility. The applicant's statements must be coherent and plausible, and must not run counter
to generally known facts.
***
______________________________________________________________________________
THE MICHIGAN GUIDELINES ON WELL-FOUNDED FEAR
An individual qualifies as a Convention refugee only if he or she has a “well-founded fear” of
being persecuted. While it is generally agreed that the “well-founded fear” requirement limits
refugee status to persons who face an actual, forward-looking risk of being persecuted (the
“objective element”), linguistic ambiguity has resulted in a divergence of views regarding
whether the test also involves assessment of the state of mind of the person seeking recognition
of refugee status (the “subjective element”).
The view that the assessment of well-founded fear includes consideration of the state of mind of
the person seeking recognition of refugee status is usually implemented in one of three ways.
The predominant approach defines a showing of “fear” in the sense of trepidation as one of two
essential elements of the well-founded fear test. In the result, refugee status may be denied to atrisk applicants who are not in fact subjectively fearful, or whose subjective fear is not identified
as such by the decision-maker. A second view does not treat the existence of subjective fear as
an essential element, but considers it instead to be a factor capable of overcoming an
insufficiency of evidence of actual risk. Under this formulation, persons who are more timid or
demonstrative, or who are simply able to articulate their trepidation in ways recognizable as such
by the decision-maker, are advantaged relative to others who face the same level of actual risk,
but who are more courageous, more reserved, or whose expressions of trepidation are not
identified as such. A third understanding of a subjective element neither conditions refugee status
on evidence of trepidation, nor advantages claims where such trepidation exists. The requirement
to take account of “fear” is instead treated as a general duty to give attention to an applicant’s
specific circumstances and personal vulnerabilities in the assessment of refugee status.
We have engaged in sustained collaborative study and reflection on the doctrinal and
jurisprudential foundations of the well-founded fear standard, and have concluded that continued
reference to distinct “subjective” and “objective” elements of the well-founded fear standard
risks distortion of the process of refugee status determination. The existence of subjective
fearfulness in the sense of trepidation should neither be a condition precedent to recognition of
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refugee status, nor advantage an applicant who faces an otherwise insufficiently well-established
risk. An approach which recognizes a subjective element in order to take account of an
applicant’s circumstances and vulnerabilities does not pose protection risks of the kind
associated with the first understanding of a subjective element, nor raise the unfairness concerns
of the second approach. Reliance on a subjective element to particularize the inquiry into wellfounded fear is, however, unnecessary, and may result in the devaluation of evidence of real
value to the assessment of actual risk of being persecuted.
These Guidelines are intended to promote a shared understanding of a unified approach to the
well-founded fear inquiry and related aspects of the Convention refugee definition that both
avoids the protection risks increasingly associated with assertions of a “subjective element,” and
ensures that due regard is accorded all particularized risks faced by an applicant for recognition
of refugee status.
Unable or unwilling
[1] An applicant’s state of mind is relevant to determining whether he or she “is unable or, owing
to such fear, is unwilling to avail himself [or herself]” of the protection of his or her country or
countries of citizenship or, in the case of a stateless person, country or countries of former
habitual residence. Specifically, a state party’s duty of protection under the Convention is
engaged through an expression by or on behalf of an applicant of inability or unwillingness to
avail himself or herself of the protection of the relevant country or countries.
[2] The required assertion of inability or unwillingness need not be made in any particular form.
In substance, the applicant need only provide information or make claims which may engage the
Refugee Convention obligations of the state.
Well-founded fear
[3] In contrast to the question of whether an applicant is unable or unwilling to avail himself or
herself of the country of origin’s protection, the assessment of well-founded fear does not
comprise any evaluation of an applicant’s state of mind.
[4] Most critically, the protection of the Refugee Convention is not predicated on the existence of
“fear” in the sense of trepidation. It requires instead the demonstration of “fear” understood as a
forward-looking expectation of risk. Once fear so conceived is voiced by the act of seeking
protection, it falls to the state party assessing refugee status to determine whether that
expectation is borne out by the actual circumstances of the case. If it is, then the applicant’s fear
(that is, his or her expectation) of being persecuted should be adjudged well-founded.
[5] An understanding of “fear” as forward-looking expectation of risk is fully justified by one of
the plain meanings of the English text, and is confirmed by dominant interpretations of the
equally authoritative French language text (“craignant avec raison”), which do not canvass
subjective trepidation. This construction avoids the enormous practical risks inherent in
attempting objectively to assess the feelings and emotions of an applicant. It is moreover
consistent with the internal structure of the Convention, for example with the principle that
refugee status ceases when the actual risk of being persecuted comes to an end, though not on the
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basis of an absence of trepidation (Art. 1(C)5-6), and with the fact that the core duty of nonrefoulement applies where there is a genuine risk of being persecuted, with no account taken of
whether a refugee stands in trepidation of that risk (Art. 33). More generally, the human rights
context of the Convention requires that protection be equally open to all on the basis of evidence
of an actual and relevant form of risk.
[6] The determination of whether an applicant’s “fear” – in the sense of forward-looking
expectation of risk – is, or is not, “well-founded” is thus purely evidentiary in nature. It requires
the state party assessing refugee status to determine whether there is a significant risk that the
applicant may be persecuted. While the mere chance or remote possibility of being persecuted is
insufficient to establish a well-founded fear, the applicant need not show that there is a clear
probability that he or she will be persecuted.
Establishing well-founded fear
[7] To determine whether an applicant faces a significant risk of being persecuted, all material
evidence from whatever source must be considered with care, and in context. * * *
These Guidelines reflect the consensus of all participants at the Third Colloquium on Challenges
in International Refugee Law, held at the University of Michigan Law School, Ann Arbor,
Michigan, USA, on March 26-28, 2004.
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Chapter Three
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
PERSECUTION
▪▪▪
SECTION C. LEVEL OF RISK
In addition to exploring the meaning of persecution, many cases have examined
another fundamental question: what degree of threat or level of risk in the homeland must
an applicant prove before being found to meet the threshold qualification for protection
under U.S. law? Both INA § 208, the asylum provision, and § 241(b)(3), providing for
withholding, might initially seem to protect the same group of persons threatened with
persecution in their homelands. But the statutory texts are not identical; here are the
crucial differences:
Asylum: INA § 208(b)
Withholding: INA § 241(b)(3)
The Secretary of Homeland
Security or the Attorney
General may grant asylum to an
alien* * * if the Secretary of
Homeland Security or the
Attorney General determines
that such alien is a refugee * * *
[T]he Attorney General may not
remove an alien to a country if
the Attorney General decides
that the alien’s life or freedom
would be threatened in that
country because of the alien’s
race, religion, nationality,
membership in a particular
social group, or political opinion.
Refugee: INA 101(a)(42)
[A]ny person who is outside [his
or her country] and who is
unable or unwilling to return to,
and is unable or unwilling to
avail himself or herself of the
protection of, that country
because of persecution or a wellfounded fear of persecution on
account of race, religion,
nationality, membership in a
particular social group, or
political opinion.
The meaning of these texts, and the interrelation of these statutory provisions, was
the subject of major debate for many years. Ultimately, they provided the occasion for the
first U.S. Supreme Court decisions to consider the Refugee Act of 1980, INS v. Stevic, 467
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U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), and INS v. Cardoza–Fonseca, 480 U.S.
421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).
***
INS v. CARDOZA–FONSECA
Supreme Court of the United States, 1987
480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434.
JUSTICE STEVENS delivered the opinion of the Court.
***
Respondent is a 38-year-old Nicaraguan citizen who entered the United States in
1979 as a visitor. After she remained in the United States longer than permitted, and failed
to take advantage of the Immigration and Naturalization Service’s (INS) offer of voluntary
departure, the INS commenced deportation proceedings against her. Respondent conceded
that she was in the country illegally, but requested withholding of deportation pursuant to
§ 243(h) and asylum as a refugee pursuant to § 208(a).
To support her request under § 243(h), respondent attempted to show that if she were
returned to Nicaragua her “life or freedom would be threatened” on account of her political
views; to support her request under § 208(a), she attempted to show that she had a “wellfounded fear of persecution” upon her return. The evidence supporting both claims related
primarily to the activities of respondent’s brother who had been tortured and imprisoned
because of his political activities in Nicaragua. Both respondent and her brother testified
that they believed the Sandinistas knew that the two of them had fled Nicaragua together
and that even though she had not been active politically herself, she would be interrogated
about her brother’s whereabouts and activities. Respondent also testified that because of
her brother’s status, her own political opposition to the Sandinistas would be brought to
that government’s attention. Based on these facts, respondent claimed that she would be
tortured if forced to return.
The Immigration Judge applied the same standard in evaluating respondent’s claim
for withholding of deportation under § 243(h) as he did in evaluating her application for
asylum under § 208(a). He found that she had not established “a clear probability of
persecution” and therefore was not entitled to either form of relief. * * *
In the Court of Appeals for the Ninth Circuit, respondent did not challenge the BIA’s
decision that she was not entitled to withholding of deportation under § 243(h), but argued
that she was eligible for consideration for asylum under § 208(a), and contended that the
Immigration Judge and BIA erred in applying the “more likely than not” standard of proof
from § 243(h) to her § 208(a) asylum claim. Instead, she asserted, they should have applied
the “well-founded fear” standard, which she considered to be more generous. The court
agreed. * * *
***
Under [§ 208(a)], eligibility for asylum depends entirely on the Attorney General’s
determination that an alien is a “refugee,” as that term is defined in § 101(a)(42), which
was also added to the Act in 1980. [The Court then quotes the text of INA § 101(a)(42)(A).]
Thus, the “persecution or well-founded fear of persecution” standard governs the Attorney
General’s determination whether an alien is eligible for asylum.5
It is important to note that the Attorney General is not required to grant asylum to everyone who meets
the definition of refugee. Instead, a finding that an alien is a refugee does no more than establish that “the alien
may be granted asylum in the discretion of the Attorney General.” § 208(a) [1987 version] (emphasis added).
5
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In addition to establishing a statutory asylum process, the 1980 Act amended the
withholding of deportation provision, § 243(h). Prior to 1968, the Attorney General had
discretion whether to grant withholding of deportation to aliens under § 243(h). In 1968,
however, the United States agreed to comply with the substantive provisions of Articles 2
through 34 of the 1951 United Nations Convention Relating to the Status of Refugees.
Article 33.1 of the Convention, which is the counterpart of § 243(h) of our statute, imposed a
mandatory duty on contracting States not to return an alien to a country where his “life or
freedom would be threatened” on account of one of the enumerated reasons. Thus, although
§ 243(h) itself did not constrain the Attorney General’s discretion after 1968, presumably he
honored the dictates of the United Nations Convention.8 In any event, the 1980 Act
removed the Attorney General’s discretion in § 243(h) proceedings.
In Stevic we considered it significant that in enacting the 1980 Act Congress did not
amend the standard of eligibility for relief under § 243(h). While the terms “refugee” and
hence “well-founded fear” were made an integral part of the § 208(a) procedure, they
continued to play no part in § 243(h). * * *
***
[T]he language Congress used to describe the two standards conveys very different
meanings. The “would be threatened” language of § 243(h) has no subjective component, but
instead requires the alien to establish by objective evidence that it is more likely than not
that he or she will be subject to persecution upon deportation.10 See Stevic. In contrast, the
reference to “fear” in the § 208(a) standard obviously makes the eligibility determination
turn to some extent on the subjective mental state of the alien. “The linguistic difference
between the words ‘well-founded fear’ and ‘clear probability’ may be as striking as that
between a subjective and an objective frame of reference. . . . We simply cannot conclude
that the standards are identical.” Guevara Flores v. INS, 786 F.2d 1242, 1250 (5th Cir.
1986) [cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987)].
That the fear must be “well-founded” does not alter the obvious focus on the
individual’s subjective beliefs, nor does it transform the standard into a “more likely than
not” one. One can certainly have a well-founded fear of an event happening when there is
less than a 50% chance of the occurrence taking place. As one leading authority has pointed
out:
Let us . . . presume that it is known that in the applicant’s country of origin every
tenth adult male person is either put to death or sent to some remote labor camp . . .
In such a case it would be only too apparent that anyone who has managed to escape
from the country in question will have “well-founded fear of being persecuted” upon
his eventual return.
1 A. Grahl–Madsen, The Status of Refugees in International Law 180 (1966).
This ordinary and obvious meaning of the phrase is not to be lightly discounted. * * *
***
In Stevic, we dealt with the issue of withholding of deportation, or nonrefoulement,
under § 243(h). This provision corresponds to Article 33.1 of the Convention. Significantly
While the Protocol constrained the Attorney General with respect to § 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).
8
“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.
10
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though, Article 33.1 does not extend this right to everyone who meets the definition of
“refugee.” Rather, it 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, nationality, membership of a particular
social group or political opinion.” Thus, Article 33.1 requires that an applicant satisfy two
burdens: first, that he or she be a “refugee,” i.e., prove at least a “well-founded fear of
persecution”; second, that the “refugee” show that his or her life or freedom “would be
threatened” if deported. Section 243(h)’s imposition of a “would be threatened” requirement
is entirely consistent with the United States’ obligations under the Protocol.
Section 208(a), by contrast, is a discretionary mechanism which gives the Attorney
General the authority to grant the broader relief of asylum to refugees. As such, it does not
correspond to Article 33 of the Convention, but instead corresponds to Article 34. That
Article provides that the contracting States “shall as far as possible facilitate the
assimilation and naturalization of refugees. . . .” Like § 208(a), the provision is precatory; it
does not require the implementing authority actually to grant asylum to all those who are
eligible. Also like § 208(a), an alien must only show that he or she is a “refugee” to establish
eligibility for relief. No further showing that he or she “would be” persecuted is required.
Thus, as made binding on the United States through the Protocol, Article 34 provides
for a precatory, or discretionary, benefit for the entire class of persons who qualify as
“refugees,” whereas Article 33.1 provides an entitlement for the subcategory that “would be
threatened” with persecution upon their return. * * *
***
* * * INS repeatedly argues that the structure of the Act dictates a decision in its
favor, since it is anomalous for § 208(a), which affords greater benefits than § 243(h), to
have a less stringent standard of eligibility. This argument sorely fails because it does not
take into account the fact that an alien who satisfies the applicable standard under § 208(a)
does not have a right to remain in the United States; he or she is simply eligible for asylum,
if the Attorney General, in his discretion, chooses to grant it. An alien satisfying § 243(h)’s
stricter standard, in contrast, is automatically entitled to withholding of deportation. In
Matter of Salim, 18 I & N Dec. 311 (1982), for example, the Board held that the alien was
eligible for both asylum and withholding of deportation, but granted him the more limited
remedy only, exercising its discretion to deny him asylum. We do not consider it at all
anomalous that out of the entire class of “refugees,” those who can show a clear probability
of persecution are entitled to mandatory suspension of deportation and eligible for
discretionary asylum, while those who can only show a well-founded fear of persecution are
not entitled to anything, but are eligible for the discretionary relief of asylum.
***
This vesting of discretion in the Attorney General is quite typical in the immigration
area, see, e.g., INS v. Jong Ha Wang, 450 U.S. 139, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981). If
anything is anomalous, it is that the Government now asks us to restrict its discretion to a
narrow class of aliens. Congress has assigned to the Attorney General and his delegates the
task of making these hard individualized decisions; although Congress could have crafted a
narrower definition, it chose to authorize the Attorney General to determine which, if any,
eligible refugees should be denied asylum.
***
The question whether Congress intended the two standards to be identical is a pure
question of statutory construction for the courts to decide. Employing traditional tools of
statutory construction, we have concluded that Congress did not intend the two standards
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to be identical. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we explained:
The judiciary is the final authority on issues of statutory construction and must reject
administrative constructions which are contrary to clear congressional intent. [Citing
cases.] If a court, employing traditional tools of statutory construction, ascertains that
Congress had an intention on the precise question at issue, that intention is the law
and must be given effect.
Id., at 843, n.9, 104 S.Ct., at 2782, n.9 (citations omitted).
The narrow legal question whether the two standards are the same is, of course, quite
different from the question of interpretation that arises in each case in which the agency is
required to apply either or both standards to a particular set of facts. There is obviously
some ambiguity in a term like “well-founded fear” which can only be given concrete
meaning through a process of case-by-case adjudication. In that process of filling “‘any gap
left, implicitly or explicitly, by Congress,’” the courts must respect the interpretation of the
agency to which Congress has delegated the responsibility for administering the statutory
program. See Chevron, supra, at 843, 104 S.Ct. at 2781–82, quoting Morton v. Ruiz, 415
U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974). But our task today is much
narrower, and is well within the province of the judiciary. We do not attempt to set forth a
detailed description of how the “well-founded fear” test should be applied.31 Instead, we
merely hold that the Immigration Judge and the BIA were incorrect in holding that the two
standards are identical.
***
Deportation 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. In enacting the Refugee Act of 1980 Congress sought to
“give the United States sufficient flexibility to respond to situations involving political or
religious dissidents and detainees throughout the world.” Our holding today increases that
flexibility by rejecting the Government’s contention that the Attorney General may not
even consider granting asylum to one who fails to satisfy the strict § 243(h) standard.
Whether or not a “refugee” is eventually granted asylum is a matter which Congress has
left for the Attorney General to decide. But it is clear that Congress did not intend to
restrict eligibility for that relief to those who could prove that it is more likely than not that
they will be persecuted if deported.
The judgment of the Court of Appeals is affirmed.
[The concurring opinion of JUSTICE BLACKMUN is omitted.]
JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE WHITE join,
dissenting.
***
The Court’s opinion seems to assume that the BIA has adopted a rigorous
mathematical approach to asylum cases, requiring aliens to demonstrate an objectively
quantifiable risk of persecution in their homeland that is more than 50%. The Court then
How “meaningful” the differences between the two standards may be is a question that cannot be fully
decided in the abstract, but the fact that Congress has prescribed two different standards in the same Act
certainly implies that it intended them to have significantly different meanings. * * *
31
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argues that such a position is inconsistent with the language and history of the Act. But
this has never been the BIA’s position. * * *
***
[T]he BIA does not contend that both the “well-founded fear” standard and the “clear
probability” standard require proof of a 51% chance that the alien will suffer persecution if
he is returned to his homeland. The BIA plainly eschews analysis resting on mathematical
probabilities. Rather, the BIA has adopted a four-part test requiring proof of facts that
demonstrate a realistic likelihood of persecution actually occurring. The heart of the Acosta
decision [19 I & N Dec. 211, 219 (BIA 1985)] is the BIA’s empirical conclusion, based on its
experience in adjudicating asylum applications, that if the facts establish such a basis for
an alien’s fear, it rarely will make a difference whether the judge asks if persecution is
“likely” to occur or “more likely than not” to occur. If the alien can establish such a basis, he
normally will be eligible for relief under either standard.
***
In reaching [its] conclusion, the Court gives short shrift to the words “well-founded,”
that clearly require some objective basis for the alien’s fear. The critical question presented
by this case is whether the objective basis required for a fear of persecution to be “wellfounded” differs in practice from the objective basis required for there to be a “clear
probability” of persecution. Because both standards necessarily contemplate some objective
basis, I cannot agree with the Court’s implicit conclusion that the statute resolves this
question on its face. In my view, the character of evidence sufficient to meet these two
standards is a question best answered by an entity familiar with the types of evidence and
issues that arise in such cases. * * *
***
Common sense and human experience support the BIA’s conclusion. Governments
rarely persecute people by the numbers. It is highly unlikely that the evidence presented at
an asylum or withholding of deportation hearing will demonstrate the mathematically
specific risk of persecution posited by the Court’s hypothetical. Taking account of the types
of evidence normally available in asylum cases, the BIA has chosen to make a qualitative
evaluation of “realistic likelihoods.” As I read the Acosta opinion, an individual who fled his
country to avoid mass executions might be eligible for both withholding of deportation and
asylum, whether or not he presented evidence of the numerical reach of the persecution.
***
***
NOTES AND QUESTIONS ON STEVIC AND CARDOZA–FONSECA
1. The Cardoza–Fonseca majority is convinced, Chevron notwithstanding, that the
plain meaning of the two sections mandates a differential standard of proof for §§ 208 and
243(h). It emphasizes that the language of § 243(h) is “would,” not “‘might’ or ‘could’ be
subject to persecution” (footnote 10, quoting Stevic). But this juxtaposition of the language
is not fully responsive to the actual wording. The withholding provision extends its
protection to noncitizens whose “life or freedom would be threatened” on the specified
grounds, not “would be taken away.” Consider the Court’s own example of an individual
facing return to a country where the government is killing or jailing every tenth adult male.
Assuming that the asylum seeker is a male, obviously he has a well-founded fear of
persecution on return. But how does the plain language apply here? Would we say that this
man’s life or freedom would be threatened on return?
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2. Which opinion, the majority or the dissent, is more persuasive on the question of
whether the Court should defer under Chevron to the BIA’s reading of the statute?
3. The Court in Cardoza–Fonseca writes: “That the fear must be ‘well-founded’ does
not alter the obvious focus on the individual’s subjective beliefs.” (Other parts of the
opinion, however, put more emphasis on objective risks.) The UNHCR’s Handbook on
Procedures and Criteria for Determining Refugee Status, (Office of the United Nations High
Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee
Status 12, 14 (2d ed. 1988; UN Sales No. HCR/IP/4/Eng.Rev. 1)), goes somewhat further,
placing a relatively strong emphasis on the subjective component of the definition in its
advice on how to determine refugee status. The Handbook states:
The term “well-founded fear” * * * contains a subjective and an objective element, and
in determining whether well-founded fear exists, both elements must be taken into
consideration. * * * The subjective character of fear of persecution requires an
evaluation of the opinions and feelings of the person concerned. It is also in the light
of such opinions and feelings that any actual or anticipated measures against him
must necessarily be viewed. Due to variations in the psychological make-up of
individuals and in the circumstances of each case, interpretations of what amounts to
persecution are bound to vary.
Is this a sound way to administer the asylum provisions of the immigration laws? Did
Congress intend that asylum officers and immigration judges expend adjudication
resources on close inquiry into the psychological makeup of individual applicants? Should
equivalent showings of objective risk lead to equal results, whatever the varying states of
mind of the claimants?
In his treatise on the refugee definition, James Hathaway argues that attention to
subjective fears “is neither historically defensible nor practically meaningful.” Examining
the drafting history, he concludes:
While the word “fear” may imply a form of emotional response, it may also be used to
signal an anticipatory appraisal of risk. That is, a person may fear a particular event
in the sense that she apprehends that it may occur, yet she may or may not * * *
stand in trepidation of it actually taking place. * * * [T]he term “fear” was employed to
mandate a forward-looking assessment of risk, not to require an examination of the
emotional reaction of the claimant.
James C. Hathaway, The Law of Refugee Status 65–66 (1991).
1. Apparently the Supreme Court countenances returning a recognized “refugee” to her
country of origin, provided that she falls short of the standard for § 243(h). Is this
sound policy? Is it what Congress had in mind? Would the drafters of the UN
treaties have intended to permit such a result? Isn’t Article 33’s protection against
refoulement the raison d’être for an international scheme of refugee protection? Or
are there other policy objectives that might account for the distinction the Court
draws? More fundamentally, does it make sense to have two different forms of
protection, with two different levels of risk required for protection under U.S. law?
Look closely at the exact context in which the “life or freedom” language is used in
the Convention (in Articles 31 and 33) for other indications of why the treaty
drafters might have used a somewhat different verbal formula than they did in
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Article I of the Convention, which defines “refugee” based in part on a “well–founded
fear of being persecuted.”
5. Recall from Chapter Two that according to the Charming Betsy canon, courts
should interpret statutes to avoid violations of international law. How does a court
ascertain the content of international law? What role, for example, does the UNHCR
Handbook play in any such inquiry? Not quite addressing this exact question, the Supreme
Court in Cardoza–Fonseca explained in a footnote in a part of the decision not excerpted
here:
We do not suggest, of course, that the explanation in the U.N. Handbook has the
force of law or in any way binds the INS with reference to the asylum provisions of
§ 208(a). Indeed, the Handbook itself disclaims such force, explaining that “the
determination of refugee status under the 1951 Convention and the 1967 Protocol . . .
is incumbent upon the Contracting State in whose territory the refugee finds himself.”
Office of the United Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status 1 (ii) (Geneva, 1979).
Nonetheless, the Handbook provides significant guidance in construing the
Protocol, to which Congress sought to conform. It has been widely considered useful in
giving content to the obligations that the Protocol establishes.
INS v. Cardoza–Fonseca, 480 U.S. at 439 n.22. See also INS v. Aguirre–Aguirre, 526 U.S.
415, 427, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) (rejecting an interpretation suggested in
the Handbook).
2. RESPONSES TO CARDOZA–FONSECA
The Board of Immigration Appeals moved quickly to conform its practice to Cardoza–
Fonseca. It took note of the Supreme Court’s direction that the standards for asylum and
withholding are “significantly different.” 480 U.S., at 448 n.31, 107 S.Ct. at 1222 n.31. The
Board then surveyed the efforts of earlier lower court decisions to describe that difference.
MATTER OF MOGHARRABI
Board of Immigration Appeals, 1987.
19 I & N Dec. 439.
***
The respondents, husband and wife, are both natives and citizens of Iran. Both
respondents were admitted to the United States as nonimmigrant students on or about
September 8, 1978. The female respondent’s status was subsequently changed to that of a
spouse of a nonimmigrant student. The respondents were authorized to remain in this
country until February 27, 1982, but they remained beyond that time. Orders to Show
Cause and Notice of Hearing (Form I–221) were issued against them on August 28, 1984,
charging them with deportability as overstays under section 241(a)(2)a of the Immigration
a
Former INA § 241(a)(2) made aliens deportable if they “entered the United States without inspection or
at any time or place other than as designated by the Attorney General or is in the United States in violation of
this chapter or in violation of any other law of the United States.” –eds.
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and Nationality Act. At a joint deportation hearing begun on November 5, 1984, and
concluded on July 2, 1985, the respondents conceded their deportability. The only issues at
the hearing, and the only issues on appeal, concern the male respondent’s application for
asylum and withholding of deportation.
***
It is clear that to a large degree the meaning of “well-founded fear” can in fact only be
determined in the contexts of individual cases. Whatever words may be used in a definition,
the approach must still be to assess each case independently on its particular merits.
Nevertheless, we think that some guidance can be provided, and would be helpful. We do
not attempt a definitive statement on the meaning of well-founded fear but rather are
setting forth a starting point for use in an ongoing effort to formulate a workable and useful
definition of the standard in question.
***
We agree with and adopt the general approach set forth by the Fifth Circuit; that is,
that an applicant for asylum has established a well-founded fear if he shows that a
reasonable person in his circumstances would fear persecution. As noted by the Second
Circuit, this “reasonable person standard appropriately captures the various formulations
that have been advanced to explain the well-founded fear test.” It is a standard that
provides a “common sense” framework for analyzing whether claims of persecution are wellfounded. Moreover, a reasonable person may well fear persecution even where its likelihood
is significantly less than clearly probable.
***
Where the country at issue in an asylum case has a history of persecuting people in
circumstances similar to the asylum applicant’s, careful consideration should be given to
that fact in assessing the applicant’s claims. A well-founded fear, in other words, can be
based on what has happened to others who are similarly situated. The situation of each
person, however, must be assessed on its own merits.
We note that although our decision in Matter of Acosta [19 I & N Dec. 211 (BIA 1985)]
has been effectively overruled by INS v. Cardoza–Fonseca, insofar as Acosta held that the
well-founded fear standard and the clear probability standard may be equated, much of our
decision remains intact, and good law. Indeed, we still find in Acosta some guidance
regarding the meaning of a well-founded fear. In Acosta, we set forth four elements which
an applicant for asylum must show in order to establish a well-founded fear of persecution.
What we required was that the evidence establish that
(1) the alien possesses a belief or characteristic a persecutor seeks to overcome in
others by means of punishment of some sort; (2) the persecutor is already aware, or
could easily become aware, that the alien possesses this belief or characteristic; (3)
the persecutor has the capability of punishing the alien; and (4) the persecutor has
the inclination to punish the alien.
Matter of Acosta, supra, at 226.
In our view, these requirements, for the most part, survive the Supreme Court’s
decision in Cardoza–Fonseca, and are still useful guidelines in assessing an asylum
application. However, we have determined that one small but significant change in these
requirements should be made in view of the Court’s ruling. The second requirement should
be changed by omitting the word “easily.” Thus, it is enough for the applicant to show that
the persecutor could become aware that the applicant possesses the belief or characteristic
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in question. The omission of the word “easily” lightens the applicant’s burden of proof and
moves the requirements as a whole into line with Cardoza–Fonseca. Of course, all these
requirements must now be considered in light of the lower burden of proof which will be
imposed on asylum applicants generally.
It must also be remembered that an alien who succeeds in establishing a well-founded
fear of persecution will not necessarily be granted asylum. He must also show that the
feared persecution would be on account of his race, religion, nationality, membership in a
particular social group, or political opinion. Thus, for example, aliens fearing retribution
over purely personal matters, or aliens fleeing general conditions of violence and upheaval
in their countries, would not qualify for asylum. Such persons may have well-founded fears,
but such fears would not be on account of their race, religion, nationality, membership in a
particular social group, or political opinion. Finally, an applicant for asylum must also show
that he merits the relief as a matter of discretion.
While under Matter of Acosta we were able to consider an application for asylum and
withholding of deportation as, for most purposes, one, this approach requires some
modification after INS v. Cardoza–Fonseca. Given that the core of evidence and testimony
presented in support of the asylum and withholding applications will in almost every case
be virtually the same, such evidence and testimony may still be presented in a single
hearing. However, in actually adjudicating the applications, a clear delineation of the
findings should be made as to each application. We anticipate that as a general rule the
asylum application, with its lower burden of proof, will be adjudicated first. If the applicant
is found eligible for asylum, and worthy of the relief as a matter of discretion, there may be
no need to determine as well whether a clear probability of persecution exists.
We now turn to the application of these new standards to the case presently before us.
The respondent fears persecution in Iran primarily because of an altercation he had with
an official or agent of the regime of the Ayatollah Khomeini. The respondent testified and
attested to the following facts regarding that incident. In February of 1981, while in the
United States, the respondent went with an Iranian friend to the Iranian Interests Section
at the Algerian Embassy. His purpose was to document his continuing student status, in
order to enable him to continue receiving funds from relatives in Iran. To this end, he took
with him photocopies of his passport and his Arrival–Departure Record (Form I–94). When
he presented the photocopies to a student who was working at the Embassy, he was told
that the originals were required. According to the respondent, he was informed that the
originals were necessary because students who did not have them had probably submitted
them to the Immigration and Naturalization Service in connection with asylum
applications. The student-employee was insistent, and the respondent’s friend asked to see
the supervisor. The supervisor appeared, but further trouble ensued. The student
apparently grabbed the respondent’s friend’s neck, but the supervisor separated them. The
student then told the respondent’s friend that he and “his kind had better keep their eyes
and ears open because ‘their day’ would come soon.” In response, the respondent told him
that “he and his kind had robbed Iran of all that was worth living for and that they were
nothing more than religious fascists stuffing their pockets with the nation’s wealth.”
According to the respondent, the student then drew a gun, and he and his friend ran out
the door. The respondent testified that there were cameras all around the room recording
these events. A witness for the respondent testified at the hearing that he accompanied the
respondent and his friend to the Algerian Embassy, although he waited in the car and did
not go inside with them. This witness testified that, when the respondent and his friend
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returned to the car, they were nervous, and a couple of people were following them. It is the
respondent’s contention that he is now known to Khomeini officials and that as a result he
has good reason to fear persecution if returned to Iran. The respondent also testified that
he had participated in anti-Khomeini demonstrations in the United States.
After careful consideration of the entire record, we have concluded that a reasonable
person in the respondent’s circumstances would fear persecution if returned to Iran. We
find the respondent’s account of why he fears persecution based on his political opinions to
be plausible, detailed, and coherent. The respondent’s account of the incident at the
Embassy appears to us to be credible, and there is nothing in the record to otherwise
suggest that the respondent lacks credibility. The respondent clearly expressed his political
views at the Iranian Interests Section and his opinions were extremely derogatory to the
regime in power. The Service does not dispute that opponents of the Ayatollah Khomeini
are often persecuted for their opposition. In this case, a reasonable person in the
respondent’s position would fear that his opposition to that regime has become known to
those who are both in a position, and who have the inclination, to punish him for it. Under
these circumstances, we find that the respondent has met his burden of showing a wellfounded fear of persecution in Iran. Given the statements made to agents of the Khomeini
regime by the respondent while in the Algerian Embassy, any persecution which might
occur would be on account of political opinion.
There are no adverse factors of record in this case. We find no basis for considering a
discretionary denial of relief. The application for asylum will accordingly be granted. We
therefore find it unnecessary to decide whether the respondent has also established a clear
probability of persecution for section 243(h) purposes. * * *.
***