INS v. Cardoza-Fonseca

480 U.S. 421 (1987)

The Supreme Court held that to qualify for asylum, applicants have to show that they have a “well-founded fear” of persecution, and that asylum-seekers can satisfy this standard even if they do not demonstrate that it is more likely than not that they will be persecuted if returned to their home country.  (Read the opinion here.)

In the majority opinion delivered by Justice Stevens, the Court addressed the statutory standard of eligibility for applicants seeking asylum.  The Court stated that the previous interpretation of the standard was too strict and did not align with the statute’s language.  Specifically, the Court declared that the standard of eligibility for asylum is separate and different from the higher standard for withholding of removal. The Court made it clear that applicants do not have to meet the stricter “clear probability of persecution” standard for withholding of removal to qualify for eligibility for asylum.  Rather, the Court stated that asylum applicants only have to demonstrate a “well-founded fear” of persecution. The Court based its decision on: the “plain language” of the statute that governs asylum and withholding, the statute’s legislative history, and symmetry with the United Nations refugee convention and protocol. 

To begin with, the Court highlighted that the statutory sections regarding asylum and withholding use different language.  The standard for eligibility for asylum includes a subjective component, “fear,” while the section detailing the standard for withholding of removal only requires objective evidence.  The Court argued that these differences reveal Congress’s intent to separate the two standards. To support this interpretation of Congress’s intent, the Court also highlighted the fact that Congress had explicitly rejected a Senate proposal to use the same standards for asylum and withholding of removal.

The Court noted that legislative history indicates that Congress introduced the current statutory definitions to conform to the United Nations Protocol, which distinguishes between refugees generally and those entitled to withholding of removal.  Thus, the Court reasoned that Congress also intended to differentiate between the two categories.  Further, the Court cited legislative history showing that Congress intended to provide sufficient flexibility in the area of asylum adjudication, and argued that this holding provides such flexibility by clarifying that failure to meet the higher withholding standard does not disqualify an applicant from eligibility for asylum. 

The Court also mentioned “the longstanding principle of construing any lingering ambiguities in deportation statutes in favor of the alien,” to supply more support for its interpretation of the statute’s “plain language.”  Finally, the Court stated that this holding only involved statutory construction and thus did not violate the tradition of granting deference to administrative agencies’ interpretations of statutes.

In a dissenting opinion Justice Powell, joined by Chief Justice Rehnquist and Justice White, argued that the Board of Immigration Appeal’s (BIA) interpretation that the same objective proof is required to meet the standard of eligibility for asylum, as withholding of removal, is reasonable and should be upheld.  Justice Powell maintained that the Court “misconstrues the Act and misreads its legislative history” because he found that the statute’s language and legislative history were ambiguous as to whether there is a material difference between the standards.  More importantly, Justice Powell believed that the BIA had in fact applied the lower standard that the Court identified as the appropriate standard for asylum cases.  

Authored by:  Johanna Kathrine Bachmair, Cornell Law School