Immigration and Naturalization Service v. Stevic

Decision Date05 June 1984
Docket NumberNo. 82-973,82-973
Citation467 U.S. 407,104 S.Ct. 2489,81 L.Ed.2d 321
PartiesIMMIGRATION AND NATURALIZATION SERVICE, Petitioner v. Predrag STEVIC
CourtU.S. Supreme Court
Syllabus

After he was ordered to surrender for deportation, respondent alien in 1977 moved to reopen the deportation proceedings, seeking relief under § 243(h) of the Immigration and Nationality Act of 1952 (INA), which then authorized the Attorney General to withhold deportation of an alien upon a finding that the alien "would be subject to persecution" in the country to which he would be deported. The Immigration Judge denied the motion without a hearing, and was upheld by the Board of Immigration Appeals (BIA), which held that respondent had not met his burden of showing that there was a clear probability of persecution. Respondent did not appeal this decision. Subsequently, in 1981, after receiving another notice to surrender for deportation, respondent filed a second motion to reopen, again seeking relief under § 243(h), which in the meantime had been amended by the Refugee Act of 1980 in conformity with the language of Article 33 of the 1968 United Nations Protocol Relating to the Status of Refugees that had been acceded to by the United States—to provide that the Attorney General shall not deport an alien if the Attorney General determines that the alien's "life or freedom would be threatened" in the country to which he would be deported. This motion was also denied without a hearing under the same standard of proof as was applied in the previous denial. The Court of Appeals reversed and remanded, holding that respondent no longer had the burden of showing "a clear probability of persecution," but instead could avoid deportation by showing a "well-founded fear of persecution," the latter language being contained in a definition of the term "refugee" adopted by the United Nations Protocol. The court concluded that the Refugee Act of 1980 so changed the standard of proof, and that respondent's showing entitled him to a hearing under the new standard.

Held: An alien must establish a clear probability of persecution to avoid deportation under § 243(h). Pp. 413-430.

(a) At least before 1968, it was clear that an alien was required to demonstrate a "clear probability of persecution" or a "likelihood of persecution" to be eligible for withholding of deportation under § 243(h). Relief under § 243(h) was not, however, available to aliens at the border seeking refuge in the United States due to persecution. They could seek admission only under § 203(a)(7) of the INA, and were required to establish a good reason to fear persecution. The legislative history of the United States' accession to the United Nations Protocol discloses that the President and Senate believed that the Protocol was consistent with existing law. While the Protocol was the source of some controversy with respect to the standard of proof for § 243(h) claims for withholding of deportation, the accession to the Protocol did not appear to raise any questions concerning the standard to be applied for § 203(a)(7) requests for admission, the "good reason to fear persecution" language being employed in such cases. Pp. 414-420.

(b) While the text of § 243(h), as amended in 1980, does not specify how great a possibility of persecution must exist to qualify an alien for withholding of deportation, to the extent a standard can be inferred from the bare language, it appears that a likelihood of persecution is required. The section provides for a withholding of deportation only if the alien's life or freedom "would" be threatened, not if he "might" or "could" be subject to persecution. Respondent is seeking relief under § 243(h), not under provisions which, as amended by the Refugee Act, employ the "well-founded fear" standard that now appears in § 201(a)(42)(A) of the INA and that was adopted from the United Nations Protocol's definition of "refugee." Section 243(h) does not refer to § 201(a)(42)(A). Hence, there is no textual basis in the statute for concluding that the well-founded-fear-of-persecution standard is relevant to the withholding of deportation under § 243(h). The 1980 amendment of § 243(h) was recognized by Congress as a mere conforming amendment, added "for the sake of clarity," and was plainly not intended to change the standard for withholding deportation. There is no support in either § 243(h)'s language, the structure of the amended INA, or the legislative history for the Court of Appeals' conclusion that every alien who qualifies as a "refugee" under the statutory definition is also entitled to a withholding of deportation under § 243(h). The Court of Appeals granted respondent relief based on its understanding of a standard which, even if properly understood, does not entitle an alien to withholding of deportation under § 243(h). Pp. 421-430.

678 F.2d 401, reversed and remanded.

Kenneth S. Geller, Washington, D.C., for petitioner.

Ann L. Ritter, for respondent.

Justice STEVENS delivered the opinion of the Court.

For over 30 years the Attorney General has possessed statutory authority to withhold the deportation of an alien upon a finding that the alien would be subject to persecution in the country to which he would be deported. The question presented by this case is whether a deportable alien must demonstrate a clear probability of persecution in order to obtain such relief under § 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1253(h) (1976 ed.), as amended by § 203(e) of the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 107.

I

Respondent, a Yugoslavian citizen, entered the United States in 1976 to visit his sister, then a permanent resident alien residing in Chicago. Petitioner, the Immigration and Naturalization Service (INS), instituted deportation proceedings against respondent when he overstayed his 6-week period of admission. Respondent admitted that he was deportable and agreed to depart voluntarily by February 1977. In January 1977, however, respondent married a United States citizen who obtained approval of a visa petition on his behalf. Shortly thereafter, respondent's wife died in an automobile accident. The approval of respondent's visa petition was automatically revoked, and petitioner ordered respondent to surrender for deportation to Yugoslavia.

Respondent moved to reopen the deportation proceedings in August 1977, seeking relief under § 243(h) of the Immigration and Naturalization Act, which then provided:

"The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason." 8 U.S.C. § 1253(h) (1976 ed.).

Respondent's supporting affidavit stated that he had become active in an anti-Communist organization after his marriage in early 1977, that his father-in-law had been imprisoned in Yugoslavia because of membership in that organization, and that he feared imprisonment upon his return to Yugoslavia.

In October 1979, the Immigration Judge denied respondent's motion to reopen without conducting an evidentiary hearing.1 The Board of Immigration Appeals (BIA) upheld that action, explaining:

"A Motion to reopen based on a section 243(h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual respondent. See Cheng Kai Fu v. INS, 386 F.2d 750 (2 Cir.1967), cert. denied, 390 U.S. 1003, 88 S.Ct. 1247, 20 L.Ed.2d 104 (1968). Although the applicant here claims to be eligible for withholding of deportation which was not available to him at the time of his deportation hearing, he has not presented any evidence which would indicate that he will be singled out for persecution." App. to Pet. for Cert. 34-35.

Respondent did not seek judicial review of that decision.

After receiving notice to surrender for deportation in February 1981, respondent filed his second motion to reopen.2 He again sought relief pursuant to § 243(h) which then—because of its amendment in 1980—read as follows:

"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(h)(1).

Although additional written material was submitted in support of the second motion, like the first, it was denied without a hearing. The Board of Immigration Appeals held that respondent had not shown that the additional evidence was unavailable at the time his first motion had been filed and, further, that he had still failed to submit prima facie evidence that "there is a clear probability of persecution" directed at respondent individually.3 Thus, the Board applied the same standard of proof it had applied regarding respondent's first motion to reopen, notwithstanding the intervening amendment of § 243(h) in 1980.

The United States Court of Appeals for the Second Circuit reversed and remanded for a plenary hearing under a different standard of proof. Stevic v. Sava, 678 F.2d 401 (1982). Specifically, it held that respondent no longer had the burden of showing "a clear probability of persecution," but instead could avoid deportation by demonstrating a "well-founded fear of persecution." The latter language is contained in a definition of the term "refugee" adopted by a United Nations Protocol to which the United States has adhered since 1968. The Court of Appeals held that the Refugee Act of 1980 changed the standard of proof that an alien must satisfy to obtain relief under § 243(h), concluding that Congress intended to abandon the "clear probability of persecution" standard and substitute...

To continue reading

Request your trial
948 cases
  • E. Bay Sanctuary Covenant v. Barr
    • United States
    • U.S. District Court — Northern District of California
    • 24 Julio 2019
    ...I. Although these international agreements do not independently carry the force of law domestically, see I.N.S. v. Stevic , 467 U.S. 407, 428 n.22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), they provide relevant guidance for interpreting the asylum statutes, see Cardoza-Fonseca , 480 U.S. at 4......
  • Bolanos-Hernandez v Immigration and Naturalization Service
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 14 Junio 1985
    ...the criteria for determining whether the alien meets the eligibility requirements for asylum under section 208(a). SeeINS v. Stevic,U.S., 104 S.Ct. 2489, 2497 & n. 18, 81 L.Ed.2d 321 (1984).[2]The amended version of section 243(h) provides in relevant part:(h)(1) The Attorney General shall ......
  • Carvajal-Munoz v. Immigration and Naturalization Service
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 12 Septiembre 1984
    ...social group, or political opinion. 8 U.S.C. Sec. 1101(a)(42)(A) (1982). As the Supreme Court noted in INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), however, "[m]eeting the definition of refugee ... does not entitle the alien to asylum--the decision to grant a particu......
  • Washington Post Co. v. U.S. Dept. of State
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 5 Febrero 1988
    ...by the instant case. See, e.g., INS v. Cardoza-Fonseca, --- U.S. ----, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).67 Dis.Op. at 45.68 See, e.g., Armstrong Affidavit, supra note 18, J.App. 153-158; Exhibits 1-3 to Armstrong Affid......
  • Request a trial to view additional results
7 books & journal articles
  • The Convention Against Torture and Non-refoulement in U.s. Courts
    • United States
    • Georgetown Immigration Law Journal No. 35-3, April 2021
    • 1 Abril 2021
    ...RUD’s. Id. at 36. (reprinting letter). 34. 136 CONG. REC. S36,193 (1990). 35. SFRC REPORT, supra note 19, at 10 (citing INS v. Stevic, 467 U.S. 407 (1984)). However, the Seventh Circuit has held that despite this understanding (and subsequent implemented regulations) the more-likely-than-no......
  • Refugees, refoulement, and freedom of movement: asylum seekers' right to admission and territorial asylum
    • United States
    • Georgetown Immigration Law Journal No. 36-1, July 2021
    • 1 Julio 2021
    ...Act] was not . . . available to aliens at the border seeking refuge in the United States due to persecution.’” (quoting INS v. Stevic, 467 U.S. 407, 415 (1984) and quoted in Haitian Centers Council , 509 U.S. at 161 n.10)); SPARKMAN, PROTOCOL RELATING TO REFUGEES, S. EXEC. REP., at 6, 19 (2......
  • Social Media and Online Persecution
    • United States
    • Georgetown Immigration Law Journal No. 35-3, April 2021
    • 1 Abril 2021
    ...see also Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000) (not-ing that the INA does not def‌ine persecution). 17. INS v. Stevic, 467 U.S. 407, 428–30, n.22 (1984) (noting that, while the United Nations’ Protocol Relating to the Status of Refugees (1967 Protocol) “protected only agai......
  • A Deferential Crisis: The Board of Immigration's Chevron Struggle Concerning Refugee Principles.
    • United States
    • Suffolk University Law Review Vol. 52 No. 2, March 2019
    • 22 Marzo 2019
    ...8 U.S.C. [section] 1231(b)(3)(C) (describing burden of proof and trier of fact's role); Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407, 422, 429-30 (1984) (discerning requisite level of certainty for nonrefoulment eligibility). There appears to be a certain level of fear of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT