Matter of Mogharrabi
| Decision Date | 12 June 1987 |
| Docket Number | A-23267920.,Interim Decision Number 3028,A-26850376. |
| Citation | 19 I&N Dec. 439 |
| Parties | MATTER OF MOGHARRABI. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
In a decision dated August 16, 1985, an immigration judge found the respondents deportable as charged and denied their application for asylum and withholding of deportation. Three months' voluntary departure was granted in lieu of deportation. The respondents appealed from the denial of asylum and withholding of deportation. The respondents' appeal will be sustained, and the application for asylum will be granted. Oral argument before the Board is denied.
The respondents, husband and wife, are both natives and citizens of Iran. Both respondents were admitted to the United States as nonimmigrant students on or about September 8, 1978. The female respondent's status was subsequently changed to that of a spouse of a nonimmigrant student. The respondents were authorized to remain in this country until February 27, 1982, but they remained beyond that time. Orders to Show Cause and Notice of Hearing (Forms I-221) were issued against them on August 28, 1984, charging them with deportability as overstays under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982). At a joint deportation hearing begun on November 5, 1984, and concluded on July 2, 1985, the respondents conceded their deportability. The only issues at the hearing, and the only issues on appeal, concern the male respondent's application for asylum and withholding of deportation.1
An alien who is seeking withholding of deportation from any country 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, 8 U.S.C. § 1253(h)(1) (1982). In order to make this showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407, 413 (1984). This clear probability standard requires a showing that it is more likely than not that an alien would be subject to persecution. Id. at 429-30. Under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, withholding of deportation is mandatory. Thus, once an alien has established that he qualifies for that relief, and that he is not ineligible under the provisions of section 243(h)(2), it must be granted, and he cannot then be returned to the country where he would face persecution. He can, however, be sent to another country under certain circumstances. In this important regard, withholding of deportation differs from asylum, which may be denied in the exercise of discretion to aliens who establish statutory eligibility for the relief.
In order to establish eligibility for a grant of asylum, an alien must demonstrate that he is a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). See section 208 of the Act, 8 U.S.C. § 1158 (1982). That definition includes the requirement that an alien demonstrate that he is unwilling or unable to return to his country because of persecution or a "well-founded fear" of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The meaning of the term "well-founded fear" has been the subject of considerable controversy and litigation. The Board previously took the position that, as a practical matter, the showing required to establish a well-founded fear of persecution for asylum purposes was the same as that required to establish a clear probability of persecution for purposes of withholding of deportation. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). However, the Supreme Court has recently rejected this approach. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Court held that the clear probability and well-founded fear standards do in fact differ, and that it was Congress' intent that they differ. The Court found it reasonable to assume that Congress intended to make it more difficult to establish absolute entitlement to withholding of deportation under section 243(h) than to establish mere eligibility for asylum under section 208. Id. at 443-44. In so ruling, the Court rejected that part of our decision in Matter of Acosta, supra, wherein we held that the "clear probability" standard and the "well-founded fear" standard are not meaningfully different and, in practical application, converge. Id. at 229. That portion of our decision in Matter of Acosta has therefore been effectively overruled.
In INS v. Cardoza-Fonseca, supra, the Court reiterated the rule in INS v. Stevic, supra, that in order to establish a clear probability of persecution under section 243(h) of the Act, an alien must prove that it is "more likely than not" that he will be persecuted. However, the Court held, such a probable showing of persecution need not be made in order to establish a well-founded fear of persecution under section 208 of the Act. The Court specifically declined to attempt a detailed definition of "well-founded fear," or an explanation as to how that term should be applied. Noting that there is "obviously some ambiguity" in the term, the Court left a more concrete definition to the process of case-by-case adjudication. Id. at 448.
It is clear that to a large degree the meaning of "well-founded fear" can in fact only be determined in the contexts of individual cases. Whatever words may be used in a definition, the approach must still be to assess each case independently on its particular merits. Nevertheless, we think that some guidance can be provided and would be helpful. We do not attempt a definitive statement on the meaning of well-founded fear but rather are setting forth a starting point for use in an ongoing effort to formulate a workable and useful definition of the standard in question.
Although, as noted above, the Supreme Court in INS v. Cardoza-Fonseca, supra, did not attempt to define "well-founded fear," the Court in dictum in INS v. Stevic, supra, offered this guide for the meaning of well-founded fear: "[S]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility." INS v. Stevic, supra, at 424-25 (emphasis added). In INS v. Cardoza-Fonseca, supra, the Court noted the "obvious focus on the individual's subjective beliefs" in assessing whether a fear is well founded. Id. at 431. Perhaps more helpful, however, was the direction provided by the Court in Cardoza-Fonseca when it compared the well-founded fear standard with the clear probability standard of section 243(h) of the Act. Not only are the two terms not identical, the Court noted, but since two different standards were used in the same Act, they must have been intended to have "significantly different" meanings. Id. at 448 n. 31. The Court's view that the two terms are "significantly different" thus serves as a starting point in defining the term "well-founded fear."2
As suggested by Justice Blackmun in his concurring opinion in INS v. Cardoza-Fonseca, supra, some guidance regarding the meaning of well-founded fear can be found in decisions of the United States courts of appeals. Prior to the Supreme Court's decision in Cardoza-Fonseca, and after the Court's decision in INS v. Stevic, supra, a number of the lower courts addressed the issue of the well-founded fear standard and attempted to define that term. The first court of appeals to address the question was the United States Court of Appeals for the Seventh Circuit, in Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984). The court there stated its view that the evidentiary burden of proof in asylum cases was not identical to that in withholding of deportation cases,...
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