Matter of Acosta

Decision Date01 March 1985
Docket NumberInterim Decision Number 2986,A-24159781.
Citation19 I&N Dec. 211
PartiesMATTER OF ACOSTA. In Deportation Proceedings.
CourtU.S. DOJ Board of Immigration Appeals

In a decision dated December 22, 1983, the immigration judge found the respondent deportable pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), for entering the United States without inspection, denied the respondent's applications for a grant of asylum and for withholding of deportation to El Salvador, but granted the respondent the privilege of departing voluntarily in lieu of deportation. The respondent has appealed from that portion of the immigration judge's decision denying the applications for asylum and withholding of deportation. The appeal will be dismissed.

The respondent is a 36-year-old male native and citizen of El Salvador. In a deportation hearing held before an immigration judge over the course of 2 days in July and August 1983, the respondent conceded his deportability for entering the United States without inspection and accordingly was found deportable as charged. The respondent sought relief from deportation by applying for a discretionary grant of asylum pursuant to section 208 of the Act, 8 U.S.C. § 1158 (1982), and for mandatory withholding of deportation to El Salvador pursuant to section 243(h) of the Act, 8 U.S.C. § 1253(h) (1982).1 In an oral decision, the immigration judge denied the respondent's applications for these two forms of relief finding that he had failed to meet his burden of proof for such relief. It is this finding that the respondent has challenged on appeal.

In order to be eligible for withholding of deportation to any country, an alien must show that his "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h)(1) of the Act. We have held, and the Supreme Court of the United States has recently affirmed, that this statutory provision requires an alien to demonstrate "a clear probability" of persecution on account of one of the five grounds enumerated in the Act. INS v. Stevic, 467 U.S. 407 (1984). The Court has construed the clear probability standard to require a showing that it is more likely than not an alien would be subject to persecution. Id. at 424.

In order to be eligible for a grant of asylum, an alien must show he or she is a "refugee" as defined by section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). See section 208 of the Act. That definition includes the requirement that an alien must have "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." See section 101(a)(42)(A) of the Act. In INS v. Stevic, supra, the Supreme Court did not find it necessary to construe the meaning of the phrase "well-founded fear of persecution." Rather, the Court assumed for the purposes of analysis that the well-founded fear standard for asylum is more generous than the clear probability standard for withholding of deportation. INS v. Stevic, supra, at 425.

It has been our position that as a practical matter the showing contemplated by the phrase "a well-founded fear" of persecution converges with the showing described by the phrase "a clear probability" of persecution. See, e.g., Kashani v. INS, 547 F.2d 376, 379 (7th Cir. 1977); Matter of Dunar, 14 I&N Dec. 310, 319-20 (BIA 1973). Accordingly, we have not found a significant difference between the showings required for asylum and withholding of deportation. Matter of Salim, 18 I&N Dec. 311, 314 (BIA 1982); Matter of Lam, 18 I&N Dec. 15 (BIA 1981); accord Matter of Portales, 18 I&N Dec. 239, 241 (BIA 1982).

The United States Court of Appeals for the Third Circuit has agreed with this position, holding that there is no difference between the standards for asylum and withholding of deportation. Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984); see also Rejaie v. INS, 691 F.2d 139, 146 (3d Cir. 1982). The Seventh Circuit has concluded that the well-founded fear standard for asylum is not identical, but "very similar," to the clear probability standard for withholding of deportation and has described the showing for asylum as one requiring actual persecution or some other "good reason" to fear persecution. Carvajal-Munoz v. INS, 743 F.2d 562, 574-76 (7th Cir. 1984). This position also appears to have been adopted by the Sixth Circuit. Youkhanna v. INS, 749 F.2d 360, 362 (6th Cir. 1984). The Ninth...

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2 cases
  • Gatimi v. Holder
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 20, 2009
    ...In re Kasinga, 21 I. & N. Dec. 357, 365-66 (BIA 1996); see also Lwin v. INS, 144 F.3d 505, 512 (7th Cir.1998); In re Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). So far, so good; if the "members" have no comm......
  • Navas-Villanueva v. U.S. Attorney General, No. 08-17082 (11th Cir. 7/23/2009)
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 23, 2009
    ...of his political opinion in opposing the gang. In defining a social group, we have adopted the BIA's reasoning in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Castillo-Arias v. U.S. Att'y Gen., 446 F.3d......

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