767 F.2d 1448 (9th Cir. 1985), 83-7777, Cardoza-Fonseca v. United StatesI.N.S.

Docket Nº:83-7777, 84-7593.
Citation:767 F.2d 1448
Case Date:August 12, 1985
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1448

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

Luz Marina CARDOZA-FONSECA, Petitioner,



Francisca Rosa ARGUELLO-SALGUERA, Petitioner,



Nos. 83-7777, 84-7593.

United States Court of Appeals, Ninth Circuit

August 12, 1985

Argued and Submitted in No. 83-7777 June 10, 1985. Argued and Submitted in No. 84-7593 June 13, 1985.

As Amended Aug. 23, 1985.

Page 1449

Bill Ong Hing, Dana Marks Keener, Simmons & Ungar, Michael A. Mullery, San Francisco, Cal., for petitioner.

Marshall Tamor Golding, Linda B. Adams, Washington, D.C., for respondent.

Page 1450

Appeals from Orders of the Board of Immigration Appeals.

Before SKOPIL, REINHARDT and HALL, Circuit Judges.

REINHARDT, Circuit Judge:

In both these cases the Board of Immigration Appeals applied an incorrect legal standard when it determined that the petitioners failed to establish their eligibility for asylum under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1982). Rather than applying the "well-founded fear" standard, which governs asylum determinations, the Board applied the "clear probability" standard, which governs prohibitions against deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h). Because the Board failed to apply the correct legal standard in evaluating the petitioners' claims, we reverse the Board's orders denying asylum and remand for reconsideration. In addition, the Board failed clearly to articulate the basis for its refusal to grant Arguello-Salguera relief under section 243(h). We reverse that determination as well.


  1. Cardoza-Fonseca

    Petitioner Luz Marina Cardoza-Fonseca is a citizen of Nicaragua who entered this country as a non-immigrant visitor on June 25, 1979. She remained beyond her authorized stay and the INS initiated deportation proceedings. At her deportation hearing on December 14, 1981, Cardoza-Fonseca conceded that she was otherwise deportable and applied for asylum under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1982), and for a prohibition against deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h) (1982). 1 The immigration judge applied only a "clear probability of persecution" standard and determined that Cardoza-Fonseca was not entitled to relief from deportation. The BIA affirmed, stating that no matter what burden of proof Cardoza-Fonseca faced, whether " 'clear probability,' 'good reason' or 'realistic likelihood,' " all of which the Board thought to be identical, she failed to show that she "would suffer persecution" (emphasis added). The Board also reasoned that her claim failed because she had not introduced any objective evidence to demonstrate that she "will be subject to persecution" (emphasis added). Cardoza-Fonseca appeals only from the denial of her claim for relief under section 208(a).

  2. Arguello-Salguera

    Petitioner Francisca Rosa Arguello-Salguera is a Nicaraguan citizen who entered the United States without inspection on March 15, 1980. At her first deportation hearing on March 27, 1980, she was granted permission to apply for asylum and a prohibition against deportation. At her second deportation hearing on September 10, 1981, she conceded deportability. After a third hearing on October 1, 1982, the immigration judge determined that Arguello-Salguera was a credible witness who presented believable testimony and that she had demonstrated both a clear probability and a well-founded fear of persecution. Accordingly, he concluded that the Attorney General was prohibited from deporting her and he granted her request for asylum. The BIA reversed, applying only the clear probability test and concluding that Arguello-Salguera had "failed to show that she would be persecuted" if she returned to Nicaragua (emphasis added). Arguello-Salguera appeals from the denial of her claims for relief under both section 208(a) and section 243(h). 2

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  3. The Legal Standard

    Section 208(a) of the Refugee Act gives the Attorney General discretionary authority to grant asylum to any alien who qualifies as a refugee under section 101(a)(42)(A) of that Act. Refugees are those persons outside their native country who cannot return because of "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A) (1982). Although the Attorney General has discretion to grant asylum to refugees, the determination of refugee status depends on factual findings. INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984); Espinoza-Martinez v. INS, 754 F.2d 1536, 1539 (9th Cir.1985); Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir.1984); Carvajal-Munoz v. INS, 743 F.2d 562, 567 (7th Cir.1984).

    The plain terms of section 208(a) require applicants for asylum to demonstrate a "well-founded fear" of persecution. In both of the cases before us the government contends that the "well-founded fear" standard is equivalent to the "clear probability of persecution" standard. This has consistently been the Board's position. See, e.g., Matter of Acosta, Interim Dec. No. 2986, slip op. at 25 (BIA March 1, 1985); Matter of Salim, 18 I & N Dec. 311, 314 (BIA 1982); Matter of Lam, 18 I & N Dec. 15 (BIA 1981); Matter of Dunar, 14 I & N Dec. 310, 319-20 (BIA 1973). The "clear probability" standard that the Board finds appropriate for the disposition of asylum cases is in fact applicable to claims for prohibition against deportation under section 243(h), see Stevic, 104 S.Ct. at 2501; Espinoza-Martinez, 754 F.2d at 1539; Bolanos-Hernandez, 767 F.2d at 1281-82; Carvajal-Munoz, 743 F.2d at 568, and not to section 208(a) asylum claims.

    Prior to the Supreme Court's decision in Stevic, there was considerable confusion over whether the "clear probability" standard differed from the "well-founded fear" standard. Many circuit courts had simply assumed that the criteria for eligibility for a grant of asylum under section 208(a) were identical to those for a prohibition of deportation under section 243(h). See Bolanos-Hernandez, 767 F.2d at 1282 n. 10 (listing cases and explaining that some courts applied "clear probability" standard to all claims, while others applied "well-founded fear" standard to all claims). However, in Stevic the Court, while not deciding the question, clearly alerted the circuit courts and the Board to the distinct possibility that there is a significant difference between the two tests. The Court expressly assumed, for purposes of the case before it, that the "well-founded fear" standard applicable in asylum cases is "more generous" than the "clear probability of persecution" standard. 104 S.Ct. at 2498.

    Following Stevic, we, along with the Sixth and Seventh Circuits, unequivocally held that the "well-founded fear" standard is, in fact, "more generous" than the "clear probability" standard. See Argueta v. INS, 759 F.2d 1395, 1396-97 (9th Cir.1985); Bolanos-Hernandez, 767 F.2d at 1283; accord Youkhanna v. INS, 749 F.2d 360, 362 (6th Cir.1984); Carvajal-Munoz, 743 F.2d at 574-75. We noted that a recognition of the difference between the standards comports with the structure of the Immigration Act. We said that there is a valid reason for applying a stricter standard where an alien claims he or she is entitled to a mandatory prohibition against

    Page 1452

    deportation than where that person is asking only that he or she be found eligible for consideration for a grant of asylum, a grant that ultimately will be made or denied by the Attorney General in the exercise of his discretion. Bolanos-Hernandez, 767 F.2d at 1283; accord Carvajal-Munoz, 743 F.2d at 575.

    In Bolanos-Hernandez we discussed the meaning of the "clear probability" test. We said, " '[t]he question under [the section 243(h) ] standard is whether it is more likely than not that the alien would be subject to persecution.' " 767 F.2d at 1281 (quoting Stevic, 104 S.Ct. at 2498). We concluded that general evidence of widespread conditions of violence in a country is not in itself sufficient to establish a clear probability of persecution, 767 F.2d at 1284 (citing Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984)), and that there must be some evidence that (1) the applicant or those similarly situated are at greater risk than the general population, see 767 F.2d at 1284, and (2) that the threat to the applicant is a serious one, id. at 1325. 3

    It is apparent from the very words of the statute that the burden under the asylum section (section 208(a)) is not identical to the prohibition-against-deportation (section 243(h)) burden that we have just described. In order to qualify for relief under section 243(h), an alien must introduce evidence demonstrating that his or her "life or freedom" would be threatened, 8 U.S.C. Sec. 1253(h) (1982). It is this statutory test that the courts have held is met by demonstrating a "clear probability of persecution." In contrast, the statutory section that specifies the burden an alien must meet in order to qualify as a refugee (and thus be eligible for consideration under the asylum provision) does not restrict the harm for which relief may be granted to a threat to "life or freedom." In the case of the refugee provision, the statute itself uses the phrase "persecution," 8 U.S.C. Sec. 1101(a)(42)(A) (1982), which the Supreme Court has noted is "a seemingly broader concept than threats to 'life or freedom.' " Stevic, 104 S.Ct. at 2500 n. 22. In fact, we have ourselves previously made it clear that the statutory term "persecution" includes more than just restrictions on life and liberty; the term encompasses "the infliction of suffering or harm upon those who differ (in race, religion, or...

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