INS v. Elias-Zacarias

502 U.S. 478 (1992)

The Supreme Court held that a guerrilla organization’s attempt to force someone into military service does not necessarily qualify as persecution on account of political opinion under § 101(a)(42) of the Immigration and Nationality Act.  Furthermore, the Court established that when determining whether there is persecution on account of political opinion, the court must ascertain the victim’s political opinion, not the persecutor’s.  Finally, the Court established that a decision by the Board of Immigration Appeals (“BIA”) can only be reversed if the evidence presented by the applicant is such that a reasonable fact-finder would conclude that the requisite fear of persecution exists.  (Read the opinion here.)

In the majority opinion delivered by Justice Scalia, the Court analyzed whether a reasonable fact-finder would find that Respondent, Elias-Zacarias, established the requisite fear of persecution on account of political opinion.  Individuals seeking asylum must establish that they are unwilling or unable to return to their home 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.  Respondent in this case had only been approached by a guerrilla organization once in his home and threatened to join.  Respondent did not want to join the guerrillas and was afraid of retaliation, so he fled Guatemala and entered the United States, where he applied for asylum. 

The Court of Appeals found that an organization’s attempt to recruit someone into military forces necessarily constitutes persecution on account political opinion because the person resisting forced recruitment is expressing political opinion in so doing and because the persecutor is motivated politically when carrying out the recruitment.  The Supreme Court found this reasoning to be untrue and irrelevant. 

The Supreme Court reasoned that even people who may support a guerrilla movement may resist recruitment for a variety of reasons such as “fear of combat, a desire to remain with family and friends, [or] a desire to earn a better living in civilian life.”  Thus, Respondent failed to show that he refused to join because of a political motive.  In fact, Respondent only testified that he refused to join because he was afraid of retaliation by the government. Furthermore, there was no indication that the guerrilla organization falsely believed that Respondent was motivated to not join because of a political opinion.  Thus, the Supreme Court established that the focus of the inquiry should be on Respondent’s political motive and not the political motive of the persecutors.

Respondent further argued that not taking sides with a political faction is in itself an “affirmative expression of a political opinion.”  The majority rejected this argument because they do not want indifference, indecisiveness, and risk-aversion to be enveloped into the concept of “political opinion.” 

Justice Stevens, joined by Justices Blackmun, and O’Connor, dissented.  The dissent argued that a political opinion can be expressed negatively as well as affirmatively.  The dissent noted that “[a] refusal to support a cause--by staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an induction center--can express a political opinion as effectively as an affirmative statement or affirmative conduct.”  Thus, the dissent reasoned that Respondent’s refusal to take a side in the political war amounted to a political opinion. 

The dissent emphasized that the statute did not require that Respondent prove exactly why the persecutor would act against him, but rather only required him to show that he has a “well-founded fear of persecution on account of . . . political opinion.”  Thus, as recognized in INS v. Cardozo-Fonseca, the applicant only needed to show that there was a “reasonable possibility” that he would be persecuted on account of this political opinion.  The dissent reasoned that Respondent met his burden and established a well-founded fear of persecution on account of political opinion. 

Authored by:  Saloni Rahul Patel, Cornell Law School