Ins v. Aguirre-Aguirre

Decision Date03 May 1999
Docket Number971754
Citation526 U.S. 415,119 S.Ct. 1439,143 L.Ed.2d 590
Parties(97-1754) 121 F.3d 521, reversed and remanded. SUPREME COURT OF THE UNITED STATES 119 S.Ct. 1439 143 L.Ed.2d 5901754 IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER v. JUAN ANIBALON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [
CourtU.S. Supreme Court

Justice Kennedy delivered the opinion of the Court.

We granted certiorari to consider the analysis employed by the Court of Appeals in setting aside a determination of the Board of Immigration Appeals (BIA). The BIA ruled that respondent, a native and citizen of Guatemala, was not entitled to withholding of deportation based on his expressed fear of persecution for earlier political activities in Guatemala. The issue in the case is not whether the persecution is likely to occur, but whether, even assuming it is, respondent is ineligible for withholding because he "committed a serious nonpolitical crime" before his entry into the United States. 8 U.S.C. § 1253(h)(2)(C). The beginning point for the BIA's analysis was its determination that respondent, to protest certain governmental policies in Guatemala, had burned buses, assaulted passengers, and vandalized and destroyed property in private shops, after forcing customers out. These actions, the BIA concluded, were serious nonpolitical crimes. In reaching this conclusion, it relied on a statutory interpretation adopted in one of its earlier decisions, Matter of McMullen, 19 I. & N. Dec. 90 (BIA 1984), aff'd, 788 F.2d 591 (CA9 1986).

On appeal, the Court of Appeals for the Ninth Circuit concluded the BIA had applied an incorrect interpretation of the serious nonpolitical crime provision, and it remanded for further proceedings. In the Court of Appeals' view, as we understand it, the BIA erred by misconstruing the controlling statute and by employing an analytical framework insufficient to take account of the Court of Appeals' own precedent on this subject. According to the court, the BIA erred in failing to consider certain factors, including "the political necessity and success of Aguirre's methods"; whether his acts were grossly out of proportion to their objective or were atrocious; and the persecution respondent might suffer upon return to Guatemala. 121 F.3d 521, 524 (CA9 1997).

We granted certiorari. 525 U.S. ___ (1998). We disagree with the Court of Appeals and address each of the three specific areas in which it found the BIA's analysis deficient. We reverse the judgment of the court and remand for further proceedings.

I

The statutory provision for withholding of deportation that is applicable here provides that "[t]he 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). The provision was added to the Immigration and Nationality Act (INA), 66 Stat. 166, 8 U.S.C. § 1101 et seq., (1994 ed. and Supp. III), by the Refugee Act of 1980 (Refugee Act), Pub. L. 96 212, 94 Stat. 102. See INS v. Stevic, 467 U.S. 407, 414 416, 421 422 (1984). As a general rule, withholding is mandatory if an alien "establish[es] that it is more likely than not that [he] would be subject to persecution on one of the specified grounds," id., at 429 430, but the statute has some specific exceptions. As is relevant here, withholding does not apply, and deportation to the place of risk is authorized, "if the Attorney General determines that" "there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." 8 U.S.C. § 1253(h)(2)(C).

Under the immigration laws, withholding is distinct from asylum, although the two forms of relief serve similar purposes. Whereas withholding only bars deporting an alien to a particular country or countries, a grant of asylum permits an alien to remain in the United States and to apply for permanent residency after one year. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 429, n. 6 (1987). In addition, whereas withholding is mandatory unless the Attorney General determines one of the exceptions applies, the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion. Ibid. As a consequence, under the law then in force, respondent was able to seek asylum irrespective of his eligibility for withholding.

As an incidental point, we note that in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104 208, 110 Stat. 3009 546, Congress revised the withholding and asylum provisions. The withholding provisions are now codified at 8 U.S.C. § 1231(b)(3) (1994 ed., Supp. III), and the asylum provisions at §1158. Under current law, as enacted by IIRIRA, the Attorney General may not grant asylum if she determines "there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." §1158(b)(2)(A)(iii). The parties agree IIRIRA does not govern respondent's case. See IIRIRA, Tit. III A, §§309(a), (c), 110 Stat. 3009 625; IIRIRA, Div. C, Tit. VI A, §604(c), 110 Stat. 3009 692. Prior to IIRIRA, in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. 104 32, Tit. IV B, §413(f), 110 Stat. 1269, Congress granted the Attorney General discretion to withhold deportation when necessary to ensure compliance with the international treaty upon which the Refugee Act was based, see infra, at 10 11. This provision was made applicable to "applications filed before, on, or after" April 24, 1996, "if final action has not been taken on them before such date." AEDPA §413(g), 110 Stat. 1269 1270. The BIA's decision constituted final action when rendered on March 5, 1996, 8 CFR § 243.1 (1995), App. to Pet. for Cert. 12a, so AEDPA §413(f) was not applicable to respondent's case.

We turn to the matter before us. In 1994, respondent was charged with deportability by the Immigration and Naturalization Service (INS) for illegal entry into the United States. Respondent conceded deportability but applied for asylum and withholding. At a hearing before an Immigration Judge respondent testified, through an interpreter, that he had been politically active in Guatemala from 1989 to 1992 with a student group called Estudeante Syndicado (ES) and with the National Central Union political party. App. 19 20, 36 37. He testified about threats due to his political activity. The threats, he believed, were from different quarters, including the Guatemalan Government, right-wing government support groups, and left-wing guerillas. App. to Pet. for Cert. 23a.

Respondent described activities he and other ES members engaged in to protest various government policies and actions, including the high cost of bus fares and the government's failure to investigate the disappearance or murder of students and others. App. 20 21; App. to Pet. for Cert. 22a 23a. For purposes of our review, we assume that the amount of bus fares is an important political and social issue in Guatemala. We are advised that bus fare represents a significant portion of many Guatemalans' annual living expense, and a rise in fares may impose substantial economic hardship. See Brief for Massachusetts Law Reform Institute et al. as Amicus Curiae 18 19. In addition, government involvement with fare increases, and other aspects of the transportation system, has been a focus of political discontent in that country. Id., at 16 21.

According to the official hearing record, respondent testified that he and his fellow members would "strike" by "burning buses, breaking windows or just attacking the police, police cars." App. 20. Respondent estimated that he participated in setting about 10 buses on fire, after dousing them with gasoline. Id., at. 46. Before setting fire to the buses, he and his group would order passengers to leave the bus. Passengers who refused were stoned, hit with sticks, or bound with ropes. Id., at 46 47. In addition, respondent testified that he and his group "would break the windows of stores," "t[ake] the people out of the stores that were there," and "throw everything on the floor." Id., at 48.

The Immigration Judge granted respondent's applications for withholding of deportation and for asylum, finding a likelihood of persecution for his political opinions and activities if he was returned to Guatemala. App. to Pet. for Cert. 31a 32a. The INS appealed to the BIA. Respondent did not file a brief with the BIA, although his request for an extension of time to do so was granted. Brief for Petitioner 10, n. 6; Record 13 15. The BIA sustained the INS's appeal from this decision, vacated the Immigration Judge's order, and ordered respondent deported. App. to Pet. for Cert. 18a. With respect to withholding, the BIA did not decide whether respondent had established the requisite risk of persecution because it determined that, in any event, he had committed a serious nonpolitical crime within the meaning of §1253(h)(2)(C).

In addressing the definition of a serious nonpolitical crime, the BIA applied the interpretation it first set forth in Matter of McMullen, 19 I. & N. Dec., at 97 98: "In evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common-law character. This would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature." In the instant case, the BIA found, "the criminal nature of the respondent's acts outweigh their political nature." App. to Pet. for Cert. 18a. The BIA acknowledged respondent's dissatisfaction with the Guatemalan government's "seeming inaction in the investigation of...

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