Immigration and Naturalization Service v. Stevic, No. 82-973

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

467 U.S. 407
104 S.Ct. 2489
81 L.Ed.2d 321
IMMIGRATION AND NATURALIZATION SERVICE, Petitioner

v.

Predrag STEVIC.

No. 82-973.

Supreme Court of the United States

Argued Dec. 6, 1983.
Decided June 5, 1984.
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

Page 408

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.

Page 409

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

Page 410

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

Page 411

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

Page 412

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...

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949 practice notes
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 24 Marzo 1989
    ...of deportation, an alien must demonstrate a "clear probability of persecution." Immigration and Naturalization Serv. v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). Unlike asylum, withholding of deportation does not afford the alien a right to remain in this count......
  • Covenant v. Trump, No. 18-17274
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 Diciembre 2018
    ...do not carry the force of law in the United States. Khan v. Holder , 584 F.3d 773, 783 (9th Cir. 2009) ; see also INS v. Stevic , 467 U.S. 407, 428 n.22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (describing provisions of the Convention and Protocol as "precatory and not self-executing").Congre......
  • Shawn v. Attorney Gen. Of The United States Respondent, No. 09-3078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 17 Diciembre 2010
    ...F.3d at 564) is lower than the burden for withholding of removal ("more likely than not"). See Lukwago, 329 F.3d at 182; INS v. Stevic, 467 U.S. 407 (1984). The exact contours of what a petitioner must show to make a prima facie case on a motion to reopen for withholding of removal are some......
  • Habeeb v. Castloo, No. CV 05-24 GF SEH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • 2 Junio 2006
    ...alien may be granted asylum in the discretion of the Attorney General." § 208(a) (emphasis added). See Stevic, 467 U.S. at 423, n. 18, 104 S.Ct. 2489; see also infra, at 441-444, 104 S.Ct. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). As stated, no gra......
  • Request a trial to view additional results
944 cases
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 24 Marzo 1989
    ...of deportation, an alien must demonstrate a "clear probability of persecution." Immigration and Naturalization Serv. v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). Unlike asylum, withholding of deportation does not afford the alien a right to remain in this count......
  • Covenant v. Trump, No. 18-17274
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 Diciembre 2018
    ...do not carry the force of law in the United States. Khan v. Holder , 584 F.3d 773, 783 (9th Cir. 2009) ; see also INS v. Stevic , 467 U.S. 407, 428 n.22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (describing provisions of the Convention and Protocol as "precatory and not self-executing").Congre......
  • Shawn v. Attorney Gen. Of The United States Respondent, No. 09-3078
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 17 Diciembre 2010
    ...F.3d at 564) is lower than the burden for withholding of removal ("more likely than not"). See Lukwago, 329 F.3d at 182; INS v. Stevic, 467 U.S. 407 (1984). The exact contours of what a petitioner must show to make a prima facie case on a motion to reopen for withholding of removal are some......
  • Habeeb v. Castloo, No. CV 05-24 GF SEH.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Montana)
    • 2 Junio 2006
    ...alien may be granted asylum in the discretion of the Attorney General." § 208(a) (emphasis added). See Stevic, 467 U.S. at 423, n. 18, 104 S.Ct. 2489; see also infra, at 441-444, 104 S.Ct. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). As stated, no gra......
  • Request a trial to view additional results
3 books & journal articles
  • Social Media and Online Persecution
    • United States
    • Georgetown Immigration Law Journal Nbr. 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......
  • The Convention Against Torture and Non-refoulement in U.s. Courts
    • United States
    • Georgetown Immigration Law Journal Nbr. 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......
  • Beyond Credible Fear: Enforcement of the Leahy Law and the Role the Asylum System Should Play
    • United States
    • Georgetown Immigration Law Journal Nbr. 35-1, October 2020
    • 1 Octubre 2020
    ...(a)(42)(A) (emphasis added). 92. See id. 93. See Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000). 94. See, e.g., INS v. Stevic, 467 U.S. 407 (1984); Surita v. INS, 95 F.3d 814 (9th Cir. 1996). 95. See Villafranca v. Lynch, 797 F.3d 91, 95 (1st Cir. 2015); Jorgji v. Mukasey, 514 F.3d......

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