Indiana Law Review


The Alien's Burden of Proof Under Section 243(h): How
Clear is Clear Probability?

I. Introduction

In recent years, the immigration laws of the United States have come
under severe criticism from humanitarians and nationalists alike. Much
of this criticism revolves around a long standing United States policy to

withhold deportation of an alien to a country in which that person's life

or freedom might be threatened. This policy forms the basis for section

243(h) of the Immigration and Nationality Act of 1952. ' Recently, the

United States Supreme Court interpreted this section as requiring an alien

to establish that it is more likely than not that he will be the subject

of persecution upon deportation in order for relief to be granted. 2

Since the beginning of this country's existence, immigrants have built

and shaped the nation's character. Aliens have flocked to the United States

for a variety of reasons, such as political or economic oppression in their

homeland, or to attain a better standard of living through employment

and educational opportunities. Beliefs in human rights and freedom have
always kept the doors ajar to those seeking a better life. 3 Conflicting with

these humanitarian principles, however, are a number of concerns including

anxiety about unemployment, 4 and fears that the large influx of aliens

'Immigration and Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat. 163 (1952)

(codified as amended at 8 U.S.C. §§ 1101-1525 (1982)) [hereinafter cited as INA].

immigration and Naturalization Serv. v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5,

1984) (No. 82-973).
3
In the past, however, there have been some limitations on immigration such as head

taxes; laws providing for the exclusion of lunatics, idiots, and convicts; literacy requirements

and so on. See National Lawyers Guild, Immigration Law and Defense §§ 2.2-2.3 (rev.
2d ed. 1980).

4An examination of United States immigration law over the years reveals a variety
of concerns, such as the number of aliens allowed in the country at any one time and

the social and political backgrounds of the aliens. These are just some of the concerns

which have provided the impetus for change in immigration laws.

The economy has always been a primary concern. As a cabinet-level advisory panel noted:

"[Migration in times of prosperity tends to be viewed as a handmaiden of economic growth

but it becomes transformed into a threat in times of economic downturn." Id. § 2.5, at

2-8 (quoting Domestic Council Committee on Illegal Aliens, Preliminary Report 2

(1976)). This panel pointed out that, in the long run, an increase in the the number of

illegal aliens would not increase unemployment. Moreover, illegal aliens contributed much

more in taxes than they took from social services. See National Lawyers Guild, § 2.7,

at 2-11 (citing Domestic Council Committee on Illegal Aliens, Preliminary Report 40,

155, 159 (1976)). Commentators have criticized this economic concern noting that because

aliens are consumers as well as laborers, they actually stimulate the economy: "Like citizens,

they create jobs at the same time they fill them." National Lawyers Guild § 2.9, at

2-14. See also Watson, The Simpson-Mazzoli Bill: An Analysis of Selected Economic Policies,
20 San Diego L. Rev. 97, 104 (1982); Tattered Borders, The New Republic 9, 11 (July
11, 1983).

581



582 INDIANA LA W REVIEW [Vol . 17:581

will endanger this country's identity as one nation undivided, eventually

resulting in political instability.
5 The last one hundred years, therefore,

reveals an often-changing attitude towards aliens, which at times has

resulted in inconsistent application of the laws. 6

Over the years, Congress has faced the difficult task of striking a

balance between the often-conflicting policies of humanitarianism and

protectionism.
7
Section 243(h) of the Immigration and Nationality Act

of 1952 8 exemplifies Congress' attempt to balance these policies. Realiz-

ing the grave consequences of returning an alien to a country where he

might be subject to persecution, Congress has attempted to codify the

nation's humanitarian concerns and protect any alien from such a fate.

Thus, if an alien fears persecution in a particular country, he may seek
a withholding of deportation to that country under section 243(h). At

the same time, however, the laws require that the alien's fear be a valid

one before relief can be granted, 9 assuring that no alien can avoid depor-

5 Tattered Borders, supra note 4, at 9. See also Simpson, Immigration Reform and
Control, 34 Lab. L.J. 195, 195-96 (1983). In his article, Senator Simpson warned that "un-

controlled immigration is one of the greatest threats to the future of this country." Id.

at 195. The senator explained:

Although job market and population impacts are of great significance, I think

most would agree that the national interest of the American people also includes

certain even more important and fundamental aspects, such as preservation of
freedom, personal safety, and political stability, as well as the political institu-

tions which are their foundation.

Id. at 196.

6See National Lawyers Guild, supra note 3, § 2.5, at 2-7. For an excellent sum-
mary of the history of immigration law in the United States see id. §§ 2.1-2.9. The author
points out that although immigrants have contributed much to the formation of this coun-
try, "the attitude [of U.S. citizens] toward new arrivals remains one of fear." Id. § 2.1, at 2-1.

'See Watson, supra note 4, at 98-99. The author states:
It is the obligation of our legislators to assess, and then fairly balance, the

needs of various individuals and groups, and then to fashion laws that neither

give excessive weight to one group nor dismiss the concerns of another with trite

solutions that are no more appropriate or capable of providing a proper solution
today than they were when they were first introduced.

Id. (emphasis added).
8 INA, supra note 1, at 8 U.S.C. § 1253(h).
'See, e.g., 8 C.F.R. § 208.5 (1984). This regulation states:

The burden is on the . . . applicant to establish that he/she is unable or
unwilling to return to, and is unable or unwilling to avail himself or herself of

the protection of [that] 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.

Id.

This requirement can also be found in the INA's definition of a refugee as one who has
a "well-founded fear of persecution on account of race, religion, [etc.] ...'." INA, supra

note 1, at 8 U.S.C. § 1101(a)(42).



1 984] IMMIGRA TION 5 8 3

tation by simply claiming a fear of persecution. 10 In response to changing

world situtations and the need for more certainty in this area, Congress

has revised the language and the nature of relief found in this section

many times. 11 Nevertheless, uncertainties remain concerning what an alien
must prove to show a valid fear of persecution.

Until 1980, the Immigration and Nationality Act allowed the Attorney

General to withhold deportation of any alien within the United States,

who, in his opinion, would be subject to persecution on account of the

alien's race, religion or political opinion.
12 The Refugee Act of 1980 13

amended section 243(h) to eliminate the discretionary nature of this pro-

vision, requiring the Attorney General to withhold deportation upon a

finding that the alien's life or freedom would be threatened upon

deportation.
14 Whether these changes truly lessen the burdens of those

rightfully seeking section 243(h) relief has been, until recently, a source

of conflict among the federal courts of the United States.
Prior to 1980, an alien was required to prove a "clear probability"

that he would be singled out for persecution upon return to the designated

10This concern was clearly stated by the Ninth Circuit Court of Appeals in Martinez-

Romero v. Immigration and Naturalization Serv., 692 F.2d 595 (9th Cir. 1982):
If we were to agree . . . that no person should be returned to El Salvador

because of the reported anarchy present there now, it would permit the whole

population, if they could enter this country some way, to stay here indefinitely.

There must be some special circumstances present before relief can be granted.

Id. at 595-96.

"For discussions of the changes section 243(h) has undergone, see 1A C. Gordon
& H. Rosenfield, Immigration Law and Procedure § 5.16b (rev. ed. 1984) [hereinafter
cited as Gordon & RosenfieldI; Note, Political Asylum for the Haitians?, 14 Case W.
Res. J. Int'l L. 155, 157-58 (1982) [hereinafter cited as Note, Political Asylum]; Note,

Persecution Abroad as Grounds for Withholding Deportation: The Standard of Proof and
the Role of the Courts, 6 Fordham Int'l L.J. 100, 100 n.l (1982) [hereinafter cited as
Note, Persecution Abroad]; Note, Coriolan v. Immigration and Naturalization Service: A
Closer Look at Immigration Law and the Political Refugee, 6 Syracuse J. Int'l L. &
Com. 133, 153-55 (1978) [hereinafter cited as Note, A Closer Look].

12 INA, supra note 1, § 243(h) (codified as amended at 8 U.S.C. § 1253(h) (1976)
(current version at 8 U.S.C. § 1253 (h)(1982)). Prior to 1980, section 243(h) provided:

The Attorney General is authorized to withhold deportation of any alien within

the United States to any country in which in his opinion the alien would be sub-

ject to persecution on account of race, religion, or political opinion and for such

period of time as he deems to be necessary for such reason.

Id.

"Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified in scattered

sections of 8 U.S.C. (1982)) [hereinafter cited as Refugee Act of 1980].
14As amended by the Refugee Act of 1980 section 243(h) now provides:

The 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.

Id. at 8 U.S.C. § 1253(h)(1982).



584 INDIANA LAW REVIEW [Vol. 17:581

country to qualify for relief under section 243(h). 15 However, in 1982,

the Second Circuit Court of Appeals in Stevic v. Sava16 determined that

in light of the adoption of seemingly broader language in the 1980 amend-

ment, the ''clear probability" test was no longer the correct legal

standard.
17 Noting that the "clear probability" test was the method used

by the Immigration and Naturalization Service (INS) to give effect to the

discretionary nature of section 243(h) relief, the Stevic court concluded

that "deportation must be withheld, upon a showing far short of a 'clear

probability' that an individual will be singled out for persecution."
8

Other circuit courts disagreed, 19 finding that the Refugee Act of 1980

was nothing more than "cosmetic surgery," 20 and thus the alien was still

required to show a "clear probability" of persecution. 21 These decisions

exemplify the uncertainty surrounding application of section 243(h) relief,

and emphasize the need for direction from Congress.

The Second Circuit's decision that an alien's burden of proof is

something less than clear probability was reversed by the United States

Supreme Court in Immigration and Naturalization Service v. Stevic. 22 The

Supreme Court held that an alien must establish a "clear probability of

persecution" in order to avoid deportation under section 243(h). 23 The

Court determined that the 1980 amendment did little to change the

previously employed standard of clear probability and concluded that an

alien must establish it is more likely than not that he will be subject to

persecution if he is deported.
24

It remains to be seen whether the language of the Supreme Court

will provide the flexibility required by the nation's often-changing policies

ls
E.g., Martineau v. Immigration and Naturalization Serv. (INS), 556 F.2d 306, 307

(5th Cir. 1977); Cisternas-Estay v. INS, 531 F.2d 155, 159 (3d Cir. 1976); Rosa v. INS,

440 F.2d 100, 102 (1st Cir. 1971); Cheng Kai Fu v. INS, 386 F.2d 750 (2d Cir. 1967),
cert, denied, 390 U.S. 1003 (1968); Lena v. INS, 379 F.2d 536 (7th Cir. 1967).

I6678 F.2d 401 (2d Cir. 1982), rev'd, Immigration and Naturalization Serv. v. Stevic,

52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
,7
678 F.2d at 409, rev'd, INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No.

82-973). Accord Reyes v. INS, 693 F.2d 597, 600 (6th Cir. 1982) (holding that the amended
language requires a showing less than "clear probability").

"678 F.2d at 409, rev'd, INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No.
82-973).

"Only six months later the Third Circuit Court of Appeals reached a very different

conclusion in Rejaie v. INS, 691 F.2d 139 (3d Cir. 1982). This court rejected the Stevic

court's conclusion and upheld the clear probability test for section 243(h) claims. The Re-

jaie court found that the legislative history of the Refugee Act of 1980 pointed "in one

direction only," and held the alien was required to show a clear probability of persecution.

Id. at 146. Accord Marroquin v. Manriquez, 699 F.2d 129 (3d Cir. 1983).
20 Rejaie v. INS, 691 F.2d at 146 (3d Cir. 1982).
21
Id.

22
52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973), rev'g Stevic v. Sava, 678 F.2d

401 (2d Cir. 1982).
23 52 U.S.L.W. at 4725.
2i
Id. at 4730.



1984] IMMIGRA TION 5 8 5

as well as the predictability and guidance necessary to provide aid and

counsel to the thousands of aliens who enter this country each year. The
Court made several observations regarding past applications of section
243(h) relief in arriving at its decision.

25 As a result, its conclusion that

an alien must establish that it is more likely than not he will be subject

to persecution, is subject to varying interpretations. It is hoped that courts,

and administrative boards alike, giving effect to the Supreme Court's deci-

sion will recognize this possibility, and carefully follow the guidance of

our nation's final arbiter.

This Note examines the important considerations that must be made

before a balance between humanitarian and protectionist principles can

be achieved. It is necessary to understand the deportation process and

the development of the legal standards used in interpreting the immigra-

tion laws before analyzing the Supreme Court's holding. This Note will,

therefore, briefly overview the deportation process and procedures involved

in section 243(h) claims, and explore congressional and judicial

developments that have formed current United States immigration law.

After a close examination of the past conflict between the circuit courts,

and the possible applicatons resulting from the Supreme Court's decision,

this Note will review briefly the proposed Immigration Reform and Con-

trol Act of 1983, 26 and this bill's potential effect on the problems that

have hindered the application of section 243(h) relief.

II. Background

A. Overview of Deportation Procedure

The deportation process is carried out under the jurisdiction of the

Attorney General, 27 who exercises his authority through the Immigration
and Naturalization Service (INS), an administrative agency. 28 After the

Attorney General decides to initiate deportation proceedings against an

alien, the alien is served with notice and is ordered to show cause why
he should not be deported. 29 A hearing before an immigration judge

25See infra notes 159-69 and accompanying text.
26See infra note 189.
2TNA, supra note 1, at 8 U.S.C. § 1103(a). For additional discussions of the deporta-

tion procedure see, 1A Gordon & Rosenfield, supra note 11, §§ 5.1-5.21; Martin, Non-
Refoulment of Refugees: United States Compliance with International Obligations, 23 Harv.

Int'l LJ. 357, 366-67 (1983); Note, Section 243(h) of the Immigration and Nationality
Act of 1952 as Amended by the Refugee Act of 1980: A Prognosis and a Proposal, 13
Cornell Int'l L.J. 291, 292-95 (1980) [hereinafter cited as Note, Section 243(h): A Prog-
nosis and a Proposal]', Note, Persecution Abroad, supra note 11, at 102 nn. 14-17.

28The Attorney General has delegated his authority to the Commissioner of the INS

to enforce all laws relating to immigration and the naturalization of aliens. 8 C.F.R. §
2.1 (1984). Discussions of the Attorney General's authority in this Note include this delegated

authority.
29
Id. § 242.1(b).



586 INDIANA LAW REVIEW [Vol. 17:581

follows,
30

in which the alien is allowed to present evidence on his own
behalf,

31 cross-examine government witnesses, 32 and be represented by

counsel if he so chooses.
33 The INS must establish deportability by clear,

unequivocal, and convincing evidence.
34

If the immigration judge issues

a deportation order the alien may appeal the order to the Board of Im-
migration Appeals (BIA). 35 This appeal normally exhausts the alien's ad-

ministrative remedies,
36 and the alien may then seek judicial review. 37 The

usual method used to invoke judicial review is to petition a federal district

court for a writ of habeas corpus.
38 An alien may also seek review by

a federal court of appeals.
39

During the hearing before the immigration judge, the alien may seek
withholding of deportation under section 243(h).

40 The burden of

establishing a likelihood of persecution rests on the alien. 41 Under the

pre- 1980 statute, both the likelihood of persecution and the decision to

withhold deportation were subject to the Attorney General's discretionary

i0
Id.

3I INA, supra note 1, at 8 U.S.C. § 1252(b)(3); 8 C.F.R. § 242.16(a) (1984).
32 INA, supra note 1, at 8 U.S.C. § 1252(b)(3); 8 C.F.R. § 242.16(a) (1984).
33 INA, supra note 1, at 8 U.S.C. §§ 1252(b)(2), 1362; 8 C.F.R. §§ 242.10;

242.16(a) (1984).
34
8 C.F.R. § 242.14(a) (1984). Cf. INA, supra note 1, at 8 U.S.C. § 1252(b)(4). To

be valid a decision of deportability must be based on reasonable, substantial, and probative

evidence). See also INA, supra note 1, at 8 U.S.C. § 1105a(a)(4). (Upon judicial review,

the alien's petition will be determined solely upon the administrative record, and any find-

ings of fact, if supported by reasonable, substantial, and probative evidence).

The United States Supreme Court has determined that the statutory directives cited

above apply only to the scope of judicial review, and not to the burden of proof required

at the administrative level. Woodby v. Immigration and Naturalization Serv., 385 U.S. 276,
282 (1966) cited in 2 Gordon & Rosenfield, supra note 11, § 8.12c, at 8-115 n.47. The
Court found that Congress had not decided what the proper burden of proof is at the

administrative level, and held that no deportation order issued by the INS is valid unless

it is supported by "clear, unequivocal, and convincing evidence that the facts alleged as

grounds for deportation are true." 385 U.S. at 286 (footnote omitted).
35
8 C.F.R. § 242.21 (1984). See generally id. §§ 3.1-3.8. The decision of the immigra-

tion judge or officer is final unless certified to the BIA. Id. § 242.2. Unless the Attorney

General determines that further review is warranted, the decision of the BIA is final. See
id. §§ 3.1(d)(2). 3.1(h).

36For a discussion on the general rule requiring exhaustion of administrative remedies

see 2 Gordon & Rosenfield, supra note 11, § 8.4b.
37The statutory right to seek judicial review is found at INA, supra note 1, at 8 U.S.C.

§ 1105a(a).
38 Martin, supra note 27, at 367.
i9
Id. at 367 n.58.

40
8 C.F.R. § 208.11 (1984).

4,
Id. § 242.17(c). See, e.g., McMullen v. Immigration and Naturalization Serv. (INS),

658 F.2d 1312, 1317 (9th Cir. 1981); Martineau v. INS, 556 F.2d 306, 307 (5th Cir. 1977);

Paul v. INS, 521 F.2d 194, 196-97 (5th Cir. 1975); Hamad v. INS, 420 F.2d 645, 647 (D.C.
Cir. 1969); 1A Gordon & Rosenfield, supra note 11, § 5.16b, at 5-189 to 5-192.2.



1984] IMMIGRATION 587

determination, and thus could not be attacked on review unless his deter-
mination constituted an abuse of that discretion. 42

The immigration judge usually requests an advisory opinion from the
Department of State regarding the likelihood of persecution in a particular

country.
43 Although it is not binding, such an opinion may be given

"substantial weight due to its source . . . even though the State Depart-

ment's opinion with respect to governments friendly with the United States

may not be wholly impartial."44 This opinion is incorporated into the
hearing record unless it is deemed confidential and protected from

disclosure in the interest of national security. 45 However, when a decision
is based upon nondisclosed information, the decision "shall state that such

information is material to the decision/
' 46

Claimants' attempts to cross-examine the authors of State Depart-

ment reports have been denied, 47 and, in cases where the information is

deemed confidential, 48 an alien often has no opportunity to refute the

42
See, e.g., Fleurinor v. INS, 585 F.2d 129, 133-34 (5th Cir. 1978); Moghanian v.

United States Dep't of Justice, 577 F.2d 141, 142 (9th Cir. 1978). See also Henry v. INS,

552 F.2d 130, 131 (5th Cir. 1977); Paul v. INS, 521 F.2d 194, 197 (5th Cir. 1975); Kasravi

v. INS, 400 F.2d 675, 677 (9th Cir. 1968); Asghari v. INS, 396 F.2d 391, 392 (9th Cir.

1968); Namkung v. Boyd, 226 F.2d 385, 388-89 (9th Cir. 1955). Part of the discretionary
nature of this proceeding was eliminated by the 1980 Act requiring the Attorney General

to withhold deportation upon a determination that the alien will be subject to persecution.

See supra note 14 and accompanying text. Cf., infra notes 142-51 and accompanying text.

"See 8 C.F.R. § 242.17c (1984).

"Martin, supra note 27, at 367 (footnotes omitted). For a criticism regarding the prac-

tical effect of such a practice see Kasravi v. INS, 400 F.2d 675, 677 n.l (9th Cir. 1968),

quoted in Martin, supra note 27, at 367 n.61; Note, Section 243(h): A Prognosis and a
Proposal, supra note 27, at 300-01; Note, A Closer Look, supra note 11, at 138-40. Although
courts have approved of the consideration the INS gives to these reports, see 1A Gordon
& Rosenfield, supra note 11, § 5.192.1, at 5-192-1; they have also questioned the object-
ivity of the reports. In Kasravi v. INS, 400 F.2d 675, the court stated:

Such letters from the State Department do not carry the guarantees of reliability

which the law demands of admissible evidence. A frank, but official, discussion
of the political shortcomings of a friendly nation is not always compatible with

the high duty to maintain advantageous diplomatic relations with nations throughout

the world. The traditional foundation required of expert testimony is lacking; nor

can official position be said to supply an acceptable substitute. No hearing of-
ficer or court has the means to know the diplomatic necessities of the moment,
in the light of which the statements must be weighed.

400 F.2d at 677 n.l, quoted in part in Martin, supra note 27, at 367 n.61. See also Na-

tional Lawyers Guild, supra note 3, § 8.6, at 8-27 to 8-28 (variance in grants of asylum

depending on the refugee's home country).
"See 8 C.F.R. § 242.17(c) (1984).

"Id.
47 1A Gordon & Rosenfield, supra note 11, § 5.16b at 5-192.1 and cases cited therein.
"See 8 C.F.R. § 242.17(c) (1984) (authorizing the use of non-record information if

necessary in the interest of national security).



588 INDIANA LAW REVIEW [Vol. 17:581

report at all.
49 Some claimants have attempted to introduce reports from

other sources to rebut State Department findings but such attempts have

not always been successful. 50 Thus, while the alien may present his case
before the immigration judge and appeal to the BIA and the courts,
proving eligibility for section 243(h) relief has been difficult given the in-

dividual alien's limited resources to gather evidence.
51

B. Summary of Section 243(h): Its Legislative History

It was not until 1950 that Congress enacted a specific mandate for-

bidding the Attorney General from deporting any alien to a country where

he would be subject to physical persecution. 52 In 1952, Congress amended

this provision to allow the Attorney General to withhold deportation at

"'Note, Section 243(h): A Prognosis and a Proposal, supra note 27, at 301 and n.63.
See also Zamora v. INS, 534 F.2d 1055, 1062-63 (2d Cir. 1976) (finding that input from

the Department of State should be information about conditions in the alien's country rather

than recommendations about how a particular request for asylum should be resolved); 2
Gordon & Rosenfield, supra note 11, § 8.17b, at 8-152 ("In [support of] the Attorney
General's use of non-record information, it [has been] observed that 'the nature of the

decision he must make concerning what a foreign country may do is a political issue into
which the courts may not enter.' " (footnote omitted)).

50
See, e.g., Fleurinor v. INS, 585 F.2d 129, 132-33 (5th Cir. 1978) (holding that an

Amnesty International Report on political conditions in Haiti that outlined the "wholesale

disregard of fundamental human rights" by the Duvalier government did not add anything
to Fleurinor's section 243(h) claim as it was not probative on the issue of the likelihood

that the individual alien would be subject to persecution upon his return.); In re Williams,

16 I. & N. Dec. 697, 704 (1979) (finding that a 1976 Amnesty International Report was
not "sufficiently probative" on the likelihood that this claimant would be persecuted). Cf.

Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977) (reversing and remanding for reconsideration

in light of an Amnesty International report).
In criticizing the weight given to State Department Reports over non-governmental re-

ports one writer states:

The decision whether to deport ought therefore to be made on the basis of an
impartial assessment of the likelihood of persecution, according due weight to

the evaluations of such independent analysts as Amnesty International. The INS

ought not to be influenced by political considerations, perhaps articulated by the

State Department, such as the current state of relations between the United States

and the country to which deportation is proposed.

Martin, supra note 27, at 377 (footnotes omitted). For further criticism of the use of State

Department reports see id.
u See infra note 70 and accompanying text.
52
Subersive Activities Control Act of 1950, Pub. L. No. 81-831 ch. 1024, § 23, 64

Stat. 987, 1010 (codified as amended at 8 U.S.C. § 1253(h)(1982)).

Most courts construed this section as requiring the Attorney General to find that the alien

claiming this relief would not be subject to persecution upon deportation. See United States

ex rel. Harisiades v. Shaughnessy, 187 F.2d 137, 142 (2d Cir. 1951), aff'd, 342 U.S. 580

(1952). But see United States ex rel. Dolenz v. Shaughnessy, 107 F.Supp. 611, 613 (S.D.N.Y.),

aff'd, 200 F.2d 288 (2d Cir. 1952), cert, denied, 345 U.S. 928 (1953). See also 1A Gordon
& Rosenfield, supra note 11, § 5.166, at 5-175.



1984] IMMIGRATION 589

his discretion if he determined that the alien would suffer physical persecu-

tion if deported.
53

In 1965, Congress broadened the language of this section by deleting

"physical persecution" and allowing the Attorney General to withhold

deportation if, "in his opinion[,] the alien would be subject to persecu-

tion on account of race, religion, or political opinion." 54 The purpose

of this change was to aid those refugees who might be victims of persecu-
tion other than physical violence.

55

In 1968, the United States acceded to the United Nations Protocol

Relating to the Status of Refugees (1967 Protocol).
56 The 1967 Protocol

incorporated most of the provisions of the United Nations Convention

Relating to the Status of Refugees (1951 Convention).
57

Article 33(1) of

the 1951 Convention states: "No Contracting State shall expel or return
('refouler') a refugee in any manner whatsoever to the frontiers of ter-

ritories where his life or freedom would be threatened on account of his

race, religion, nationality, membership of a particular social group or

political opinion." 58

The language of the Protocol was much broader than the language
used in section 243(h) and members of Congress were concerned that a

potential conflict between the Protocol and existing laws would arise. 59

53 INA, supra note 1, § 243(h), Pub. L. No. 82-414, 66 Stat. 163, 214 (1952) (codified

as amended at 8 U.S.C. § 1253(h)(1982)).
54Act of Oct. 3, 1965, Pub. L. No. 89-236, § 11(f), 79 Stat. 911, 918 (1965) (codified

as amended at 8 U.S.C. § 1253(h)(1982)).
55

1A Gordon & Rosenfield, supra note 11, § 5.16b, at 5-176.
"Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6257,

T.I.A.S. No. 6577, 606 U.N.T.S. 268 [hereinafter cited as 1967 Protocol]. Accession is the

adoption of a particular proclamation into United States laws, and has the effect of binding

the United States as if an original party. For an excellent discussion of the 1967 Protocol

and the effect of the United States' accession see Martin, supra note 27.
"United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19

U.S.T. 6259, T.I.A.S. No. 6577, 189 U.N.T.S. 137 [hereinafter cited as 1951 Convention].

The 1967 Protocol incorporated virtually all of the 1951 Convention provisions. The only

significant difference was that the 1967 Protocol eliminated narrow geographical limitations

and the 1951 provisions that limited relief to those who had become refugees prior to January
1, 1951. See generally Martin, supra note 27, at 361-62.

i8
1951 Convention, supra note 57, art. 33(1). Article 33 is entitled "Prohibition of

Expulsion or Return ('Refoulement')." The only exception to this provision is when the

refugee is a threat to the security of the host state or has been convicted for involvement

in a "particularly serious crime." Id. art. 33(2). Article 1(a)(2) of the 1951 Convention,

supra note 57, defines "Refugee" as:

[0]wing to well-founded fear of being persecuted for reasons of race, religion,

nationality, membership of a particular social group or political opinion, is out-

side the country of his nationality and is unable or, owing to such fear, is unwill-

ing to avail himself of the protection of that country; or who, not having a na-

tionality and being outside the country of his former habitual residence as a result

of such events, is unable, or, owing to such fear, is unwilling to return to it.
59For a good summary of the legislative discussions leading up to the United States'

accession to the 1967 Protocol see In re Dunar, 14 I. & N. Dec. 310 (1973).



590 INDIANA LA W REVIEW [Vol. 17:581

In the legislative proceedings leading to the United States' accession to

the Protocol, both the President and the State Department assured Con-

gress that existing legislation need not be amended in order to comply

with the Protocol. 60 In a statement to the Senate Foreign Relations Com-
mittee, one official said that "[t]he Attorney General will be able to ad-

minister such provisions in conformity with the Protocol without amend-

ment of the Act." 61 As was promised, Congress' adoption of the Pro-

tocol did little to change the the proceedings or the dispostions of section

243(h) claims. 62

Finally, with the enactment of the Refugee Act of 1980, 63 Congress

substantially changed section 243(h)64 along with other sections of the Im-

migration and Nationality Act of 1952, incorporating some of the 1967

Protocol language. 65 As amended by the Refugee Act of 1980, section

243(h) now provides that "[t]he Attorney General shall not deport or return

60
In Dunar, the Board related the following legislative history:

Thus, in submitting the Protocol to the President, the Secretary of State in-

formed him that, 'United States accession to the Protocol would not impinge
adversely upon the laws of this country.' The Secretary further stated:

Accession to the Protocol would promote our foreign policy interests

through reaffirming, in readily understandable terms, our traditional

humanitarian concerns and leadership in the field. It would also convey

to the world our sympathy and firm support in behalf of those fleeing

persecution. Actually, most refugees in the United States already enjoy legal

and political rights which are equivalent to those which states acceding to

the Convention or the Protocol are committed to extend to refugees within

their territories ....
[T]he President stated:

. . . Given the American heritage of concern for the homeless and

persecuted, and our traditional role of leadership in promoting assistance

for refugees, accession by the United States to the Protocol would lend

conspicuous support to the effort of the United Nations toward attaining

the Protocol's objectives everywhere.

14 I. & N. Dec. at 314 (footnotes omitted).
6I
S. Exec. Rept. No. 14, 90th Cong., 2d Sess. 6 (1968), quoted in In re Dunar, 14

I. & N. Dec. at 317.
62See infra notes 88-95 and accompanying text.
6i See supra note 13.
6A
See supra notes 12 and 14.

65One significant change was the incorporation of the 1967 Protocol's definition of
"refugee" into the statute.

As amended by the Refugee Act of 1980, the INA now reads:
The term "refugee" means (A) any person who is outside any country of

such person's nationality or, in the case of a person having no nationality, is

outside any country in which such person last habitually resided, and who is unable
or unwilling to return to, and is unable or unwilling to avail himself or herself

of the protection of, that country because of persecution or a well-founded fear

of persecution on account of race, religion, nationality, membership in a par-

ticular social group, or political opinion ....
Refugee Act of 1980, supra note 13, 8 U.S.C. § 1101(a)(42) (Supp. 1984).



1984] IMMIGRATION 591

any alien ... to a country if the Attorney General determines that
such alien's life or freedom would be threatened in such country on ac-

count of race, religion, nationality, membership in a particular social

group, or political opinion."
66 The Refugee Act thus removed the discre-

tionary provisions of the prior section 243(h)
67

. Nevertheless, the legislative

history relevant to both the accession to the 1967 Protocol and the Refugee

Act of 1980 is unclear, leaving the impact of these changes on United

States immigration law uncertain.

III. Conflict in the Courts: Past and Present

In all section 243(h) claims, the grave consequences of returning an

alien to a country where he will be subject to persecution, possibly even

death, require that the alien's plea be given "fair consideration" 68 and

that the immigration judge "allow the alien wide latitude in presenting

his evidence.
,,69

Because an alien faces the difficult task of obtaining

evidence that demonstrates his eligibility for section 243(h) relief,
70

the

burden of proof an alien must shoulder is of great concern to all bran-

ches of government. The humanitarian principles this country prides itself

"Refugee Act of 1980, supra note 13, at 8 U.S.C. § 1253(h)(l)(Supp. 1984)(emphasis

added). For a detailed discussion of the legislative history of the Refugee Act of 1980 see

Anker & Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980,
19 San Diego L. Rev. 9 (1981). The legislative history of section 243(h) prior to the

Refugee Act of 1980 can be found at Note, Judicial Review of Administrative Stays of De-

portation: Section 243(h) of the Immigration and Nationality Act of 1952, 1976 Wash.

U.L.Q. 59, 67-71.
67For a discussion of other changes the 1980 Act made in section 243(h) see infra

notes 101-07 and accompanying text.
6iSee 1A Gordon & Rosenfield, supra note 11, § 5.16b, at 5-188.
69
Id. § 5.16b, at 5-190 to 5-191 (citing In re Joseph, 13 I. & N. Dec. 70 (1968) (foot-

note omitted) ("technical rules of evidence ordinarily not controlling")).
70One commentator addresses the difficulty aliens face in compiling evidence necessary

to show the existence of a threat to that particular alien's life or freedom. See Note, Sec-

tion 243(h): A Prognosis and a Proposal, supra note 27, at 300-01. The author states that
"[although documents showing generally repressive conditions may be material, an alien's
failure to produce persuasive evidence that he will be singled out for persecution is fatal

to his claim. As a potential refugee living far from his homeland, an alien is in no position

to produce the required evidence." Id. (footnotes omitted). The writer also points out the

vast discrepancy in evidence available to the alien and evidence available to the government.

"Whereas an alien's only evidence may be his own testimony, the INS can draw on an
interagency network for information to discredit the alien's claim. The INS customarily sol-

icits reports from the State Department [and] [i]mmigration judges may rely on these
reports . ..." Id. at 301 (footnotes omitted). For an alien living far from home, not only
is it difficult to compile the evidence required to meet a stringent burden of proof, but it

becomes almost impossible to refute the evidence presented by the INS which is supported

by the wealth of information available to the State Department. See supra notes 43-51 and

accompanying text. Of even greater concern should be the criticism of some commentators
that a factor often influencing the outcome of the agency hearing is the status of United

States' foreign relations with the alien's country. See Martin, supra note 27, at 379; Note,



592 INDIANA LAW REVIEW [Vol. 17:581

in preserving are threatened when these standards of proof are set at
unreachable heights. On the other side of the scale, however, setting the
burden of proof too low would allow any alien with an arguably valid

fear of persecution to escape deportation, undermining Congress' attempts

to place controls over immigration prodecure.
71

The United States' accession to the 1967 Protocol and the changes

made in section 243(h) by the Refugee Act of 1980 have both been the
bases for challenges to the restrictive "clear probability" burden of proof.

An understanding of how this burden previously operated in administrative
and court decisions is essential to a contemporary analysis of section

243(h).

A. Prior to 1980: The Effect of Accession to the 1967 Protocol on

Section 243(h) Claims

Before the 1980 amendments to section 243(h), the Attorney General

was authorized to exercise two types of discretion under this section. 72

The Attorney General not only determined an alien's statutory eligibility

for section 243(h) relief, but also decided whether relief should be granted

once eligibility was established. 73 As a result, courts viewed INS decisions
with deference and, in effect, limited themselves to determining whether

a denial of section 243(h) relief was an abuse of discretion. 74

Section 243(h): A Prognosis and a Proposal, supra note 27, at 298-99; Note, Persecution
Claims-The Expanding Scope of Section 243(h) of the Immigration and Nationality Act, 13

Tex. Int'l L.J. 327, 338 n.87 (1978) [hereinafter cited as Note, Persecution Claims].
7
'The wisdom of placing limits on immigration was noted in Villena v. INS, 622 F.2d

1352 (9th Cir. 1980):

The INS should have the right to be restrictive. Granting . . . motions [to reopen]

too freely will permit endless delay of deportation by aliens creative and fertile

enough to continuously produce new and material facts sufficient to establish a
prima facie case. It will also waste the time and efforts of immigration judges

called upon to preside at hearings automatically required by the prima facie
allegations.

Id. at 1362 (Wallace, J., dissenting).

In Henry v. INS, 552 F.2d 130 (5th Cir. 1977), Judge Goldberg stated: "Our sadness at
all circumscriptions of freedom, however, is no charter to disregard the procedural system

created to determine the merit of such claims." Id. at 132.
llBut see text accompanying notes 93-94, 106-07 & 142-51 infra.
73For support for the theory of two types of discretion see National Lawyers Guild,

supra note 3, § 10.1, at 10-8; Martin, supra note 27, at 371-72; Note, Section 243(h): A
Prognosis and a Proposal, supra note 27, at 296-98.

This view, however, has not been espoused by all. See 2 Gordon & Rosenfield, supra
note 11, § 8.17b, at 8-153 to 8-154.

1A
See Moghanian v. United States Dep't of Justice, 577 F.2d 141, 142 (9th Cir. 1978);

Pierre v. United States, 547 F.2d 1281, 1289 (5th Cir. 1977); Shkukani v. INS, 435 F.2d

1378, 1380 (8th Cir.), cert, denied, 403 U.S. 920 (1971). See also Note, Persecution Abroad,

supra note 11, at 105 n.32 and cases cited therein. Yet a few courts purported to find their



1 984] IMMIGRA TION 593

The INS requires an alien to prove by a clear probability that he

would be subject to persecution to be eligible for relief under section

243(h). This standard is not found in the statutes; rather, it was developed

over the years by the Attorney General to articulate the alien's burden

of proof.
75

Nevertheless, the limited scope of judicial review led the courts

to approve the clear probability test as the appropriate standard of proof.
76

Upon the United States' accession to the 1967 Protocol, questions
arose surrounding section 243(h) relief. Although the accession to the treaty

was presented to Congress and the President as a reaffirmation of ''our

traditional humanitarian concerns and leadership" in the field of

immigration,
77

the treaty differed significantly from existing United States

law.

Prior to accession, section 243(h) allowed the Attorney General to

withhold deportation if, "in his opinion, the alien would be subject to

persecution on account of race, religion, or political opinion." 78 The Pro-

tocol differed in two important respects from section 243(h) as it existed

in 1968.
79

First, withholding deportation was mandatory under the Pro-

tocol upon a finding of eligibility, whereas section 243(h) authorized the

Attorney General to exercise discretion in granting relief, even when
eligibility was established. 80

scope of review somewhat broader in section 243(h) claims—that of determining whether
or not the decision to deny relief was based on substantial evidence. See Hamad v. INS,
420 F.2d 645 (D.C. Cir. 1969); United States ex rel. Kordic v. Esperdy, 386 F.2d 232 (2d

Cir. 1967). See also Martin, supra note 27, at 371-72; Note, Persecution Abroad, supra note

11, at 104-06; Note, Persecution Claims, supra note 70, at 332-33.

One commentator notes that, in 1952, the United States Supreme Court stated:

[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous

policies in regard to the conduct of foreign relations, the war power, and the

maintenance of a republican form of government. Such matters are so exclusively

entrusted to the political branches of government as to be largely immune from

judicial inquiry or interference.

Note, Persecution Abroad, supra note 11, at 106 (quoting Harisiades v. Shaughnessy, 342

U.S. 580, 588-89 (1952) (footnote omitted)).

Another commentator states that the courts held the view that "[jjudicial intervention

would be proper only when the Attorney General's exercise of his powers involved denial of

procedural due process, was 'arbitrary and capricious,' or evinced misconstruction of the

statute." Martin, supra note 27, at 371-72 (footnotes omitted).
75See supra notes 40-46 and accompanying text.
16
See, e.g., Cheng Kai Fu v. INS, 386 F.2d 750 (2d Cir. 1967), cert, denied, 390

U.S. 1003 (1968). See also cases cited infra note 95.
77
In re Dunar, 14 I. & N. Dec. 301, 314 (1973) (citation omitted).

78 INA, supra note 1, § 243(h)(codified at 8 U.S.C. § 1253(h)(1976)). See supra note 13.
79These differences are also discussed at Note, Persecution Abroad, supra note 11,

at 100-01.

^Compare 1967 Protocol, supra note 56, art. 33 ("[n]o contracting state shall expel

or return . . .") with INA, supra note 1, § 243(h) (codified as amended at 8 U.S.C. §
1253(h) (1976) (current version at 8 U.S.C. §1253(h) (1982)). ("The Attorney General is au-

thorized to withhold deportation of any alien within the United States to any country in



594 INDIANA LAW REVIEW [Vol. 17:581

A second difference was the legal standard used to determine eligibility.
The Protocol defined "refugee" as one having a "well-founded fear" of

persecution
81 while the INS used a stricter evidentiary standard—that of

"clear probability."
82 These differences formed the basis for challenge

at both the administrative level
83 and in the reviewing courts. 84 However,

it was generally found that the accession to the Protocol did not change

the strict legal standard used in section 243(h) hearings.
85

In re Dunar* 6 was one of the first agency hearings to discuss the ef-

fect of the accession to the 1967 Protocol. The alien in that case, Dunar,

appealed the order of an immigration judge denying his request for

withholding of deportation under section 243(h). Dunar argued that ac-

cession to the Protocol changed both the alien's burden of proof and

the nature of the Attorney General's determinations under section 243(h). 87

The Board first examined Dunar's contention that accession to the

Protocol changed the alien's burden of proof under section 243(h). Dunar

argued that after accession the alien need only show a well-founded fear

of persecution rather than a "clear probability" of persecution. Dunar

contended that a purely subjective test—looking to the alien's "own state
of mind"—would be sufficient to satisfy this burden. 88

The BIA rejected the use of a purely subjective test and concluded
that, as before the accession to the 1967 Protocol, some objective evidence

which in his opinion the alien would be subject to persecution . . . ." (emphasis added)).

Although pre-1980 section 243(h) spoke in terms of the Attorney General's discretion, the

BIA in In re Dunar, 14 I. & N. Dec. 310 (1973), said "we know of none in which a finding
has been made that the alien has established the clear probability that he will be persecuted
and in which section 243(h) withholding has nevertheless been denied in the exercise of

administrative discretion." Id. at 322.

"See 1951 Convention, supra note 57, art. 1(a)(2); supra note 58.

"See supra notes 65, 75-76.

"E.g., In re Dunar 14, I. & N. Dec. 310 (1973).
"E.g., Coriolan v. INS, 559 F.2d 993 (5th Cir. 1977); Kashani v. INS, 547 F.2d 376

(7th Cir. 1977).

"See supra note 84 and infra notes 86-91 and accompanying text.
,6
14 I. & N. Dec. 310 (1973).

,7The Board of Immigration Appeals prefaced its discussion of the issues raised by
Dunar with an examination of several canons of construction regarding the effect of a treaty
on an earlier enacted statute. The Board stated:

Since it supplements and incorporates the substantive provisions of the Con-
vention, the Protocol must be regarded as a treaty, which is part of the supreme

law of the land, United States Constitution, Article VI, CI. 2. Such a treaty,

being self-executing, has the force and effect of an act of Congress.

Id. at 313 (footnote and citation omitted).

The BIA noted that "[r]epeals by implication are never favored, [thus] a later treaty will
not be regarded as repealing an earlier enactment by implication unless the two are ab-
solutely incompatible . ..." Id. at 314 (citing Johnson v. Browne, 205 U.S. 309, 321 (1907)).
The Board also found that "[w]hen a statute and a treaty relate to the same subject, an
attempt must be made to give effect to both, if that can be done without violating the
language of either." 14 I. & N. Dec. 310.

"Id. at 319.



1984] IMMIGRATION 595

is required to receive section 243(h) relief.
89 The Board first noted that

the standard the claimant was attempting to satisfy—well-founded fear

—

itself ruled out a purely subjective apprehension. "[I]f all [the alien] can

show is that there is a merely conjectural possibility of persecution, his

fear can hardly be characterized as 'well-founded.'
" 90 Looking to

legislative history, the Board found that accession to the Protocol did

not substantially change section 243(h)91 and it therefore refused to enun-

ciate a new burden of proof. The Board concluded that ? 'distinctions in

terminology'' could be reconciled on a case-by-case basis in the future. 92

Dunar's second argument was that the Protocol's mandatory language

of withholding deportation required a change in the nature of the At-

torney General's determination, because section 243(h) allowed the At-

torney General to exercise discretion in granting relief. The Board rejected

this contention also. Noting the "humanitarian values" underlying sec-

tion 243(h), the Board was not convinced that the statute actually left

relief in the Attorney General's discretion once eligibility was established. 93

Additionally, the Board concluded that because relief had never been

denied once an alien had established a clear probability of persecution,

the Protocol language "can produce no meaningful change in the way
section 243(h) has been applied." 94

After accession, most reviewing courts continued to approve the INA's

use of the clear probability test to determine whether relief should be

granted under section 243(h). 95 Some courts went one step further and
relied on the language in Dunar to hold that the clear probability and
well-founded fear standards were equivalent. 96 Dunar, however, did not

decide that these standards were equivalent. 97

t9
Id. The Board in Dunar did not examine the difference in objective evidence re-

quired under either a well-founded fear standard or that of clear probability. One author
suggests that under the clear probability standard the evidence must relate specifically to

the individual claimant and the threat or fear of persecution must be timely, that is, it

must relate to a threat currently in force. Note, Persecution Abroad, supra note 11, at

103-04. In contrast, the objective evidence required under a well-founded fear standard does

not require such specificity. Thus, a well-founded fear of persecution could be demonstrated

by "episodes of past persecution, evidence that other persons in similar circumstances to

those of the applicant have been persecuted, and evidence of intervening events creating

a risk of persecution during the applicant's absence." Id. at 109 (footnotes omitted).
90
14 I. & N. Dec. at 319.

9l
Id.

92
Id. at 320-21.

"The Board explained: "It is highly probable that in referring to the Attorney General's
'broad discretion' under section 243(h), the cases contemplate the manner in which the At-

torney General arrives at his opinion and the limited scope of judicial review, rather than

the eligibility-discretion dichotomy." Id. at 322.
9
*Id. at 323.

"E.g., Martineau v. INS, 556 F.2d 306 (5th Cir. 1977); Kashani v. INS, 547 F.2d

376, 379 (7th Cir. 1977) (and cases cited therein).

"E.g., Rejaie v. INS, 691 F.2d 139 (3d Cir. 1982); Kashani v. INS, 547 F.2d 379,

379 (7th Cir. 1977).

"However, in Dunar, the BIA only rejected a purely subjective test for determining



596 INDIANA LAW REVIEW [Vol. 17:581

From the legislative history leading up to accession to the Protocol
it is arguable that although Congress did not contemplate any major

amendments to existing laws, some changes that might be required to con-

form the administrative procedures surrounding deportation to the specific

provisions of the Protocol were anticipated. Congress was told that

although "[t]he Attorney General [would] be able to administer such pro-

visions in conformity with the Protocol without amendment of the Act[,Y
%

. . . existing regulations [having] to do with deportation would permit

the Attorney General sufficient flexibility to enforce the provisions of [the]

convention . . . not presently contained in the Immigration and Nationality

Act." 99

The courts, however, continued to rely on the discretionary language

of the statute, finding their scope of review limited to determining whether

the Attorney General had abused his discretion in denying a withholding

of deportation. 100 Arguably, it is for this reason that the question, whether

accession to the 1967 Protocol altered the "clear probability" burden of

proof, was not given as close an examination by the reviewing courts as

the grave consequences of a denial of section 243(h) relief warrranted.

B. The Effect of the Refugee Act of 1980 on Section 243(h) Claims

The Refugeee Act of 1980 101 altered section 243(h) in several ways. 102

First, it incorporated the Protocol's definition of "refugee" into the Im-

migration and Nationality Act of 1952. 103 Second, the Act broadened the

class of aliens protected under section 243(h), by making eligible under

the statute those aliens whose lives or freedom would be threatened on

the basis of nationality or membership in a particular social group, as

whether an alien has a valid fear of persecution. The Board did not decide whether the

two standards were equivalent. Rather, the Board noted that they were not substantially

different and that any fine distinctions between the two standards could be dealt with on

a case-by-case basis. 14 I. & N. Dec. 310, 321 (1973).
9,
S. Exec. Rep. No. 14, 90th Cong., 2d Sess. 6 (1968), quoted in In re Dunar 14

I. & N. Dec. at 317 (emphasis added).
"S. Exec. Rep. No. 14, 90th Cong., 2d Sess. 8 (1968), quoted in 14 I. & N. Dec.

at 317. Moreover, a reduction in the alien's burden of proof under section 243(h) would

seem wholly consonant with congressional concerns in acceding to the Protocol. See supra

notes 77-85 and accompanying text.
100

See, e.g., Fleurinor v. INS, 585 F.2d 129, 133-34 (5th Cir. 1978); Henry v. INS,

552 F.2d 130, 131 (5th Cir. 1977); Kashani v. INS, 547 F.2d 376 (7th Cir. 1977); See also

2 Gordon & Rosenfield, supra note 11, § 8.17, at 8-149. The Fifth Circuit Court of Ap-
peals tried to find a middle ground: "It is enough to recognize that judicial review of INS
decisions on persecution claims is deferential, and at the same time to remember that this

review ought not to be altogether perfunctory." Coriolan v. INS, 559 F.2d 993, 998 n.9

(5th Cir. 1977).

l0] See supra note 13.
102See infra text accompanying notes 103-05.
103See supra notes 58-65.



1984] IMMIGRATION 597

well as those aliens previously protected because they would be subject

to persecution on account of their race, religion, or political opinion. 104

Third, the 1980 Act required the Attorney General to withhold deporta-

tion if eligibility is established under section 243(h). 105

Some United States courts of appeals found that by making relief
mandatory, the Refugee Act of 1980 reduced the deference given to the

Attorney General's determination and expanded the role of the reviewing

courts.
106 Thus, courts would no longer be limited to reviewing solely for

abuse of discretion 107 but would be able to review more carefully the At-

torney General's determinations regarding the alien's eligibility for relief

and the burden of proof the alien must shoulder in section 243(h) claims.

The courts, however, were in disagreement regarding the effect of

the 1980 amendments upon either the legal standards to be applied in

section 243(h) claims, or the appropriate scope of review of administrative

determinations. The question, whether the alien is required to prove a

clear probability of persecution in light of the 1980 statutory changes was

an important, yet difficult one, difficult because of Congress' failure to

satisfactorily state its intent in adopting the language of the Protocol,

and important because of the grave consequences that might follow should

an alien be denied section 243(h) relief.

IV. Interpretation of the New Section 243(h)

A. Overview

In Stevic v. Sava, 10 * a citizen of Yugoslavia, Stevic, entered the United

States in 1976 to visit his sister, a permanent United States resident. Ap-

proximately six weeks later, his visa expired and deportation proceedings

began. From that time until 1981, Stevic made attempts to avoid
deportation, 109 including motions to the Board of Immigration Appeals

i04See supra note 14.
i05See id. Arguably, however, the Attorney General may still be allowed discretion in

determining whether the alien is eligible for section 243(h) relief; that is, whether the alien's

right to life or freedom would be threatened.
,06Reyes v. INS, 693 F.2d 597 (6th Cir. 1982); Stevic v. Sava, 678 F.2d 401 (2d Cir.

1982), rev'd, Immigration and Naturalization Serv. (INS) v. Stevic, 52 U.S.L.W. 4724 (U.S.

June 5, 1984) (No. 82-973); McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981).
,07

In McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981), the Ninth Circuit Court of

Appeals held that in light of the changes in section 243(h) brought about by the Refugee

Act of 1980, factual findings under section 243(h) are subject to review under a "substan-

tial evidence test." Id. at 1316. But see Marroquin-Manriquez v. INS, 699 F.2d 129, 133

n.5 (3rd Cir. 1983) (rejecting the substantial evidence test "because it ignores the necessary

application of expertise" in a section 243(h) determination).
10*678 F.2d 401 (2d Cir. 1982), rev'd, Immigration and Naturalization Serv. v. Stevic,

52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
l09

Id. at 402-04. However, Stevic failed to act several times when the opportunity arose.

He never filed for extensions of deportation dates, or appealed the denials of his motions



598 INDIANA LAW REVIEW [Vol. 17:581

(BIA) "to reopen the deportation proceedings for the purpose of filing

an application for withholding of deportation . . . under Section 243(h)

of the Immigration and Nationality Act of 1952.""° A second motion,
like his first, was denied.

In denying his motion to reopen deportation proceedings, the BIA
concluded that Stevic had failed to show that he would be subject to

persecution if deported to Yugoslavia. "A motion to reopen based on
a section 243(h) claim of persecution must contain prima facie evidence

that there is a clear probability of persecution to be directed at the in-

dividual respondent." 111

The Second Circuit Court of Appeals held that the Refugee Act of

1980 changed the legal standard relating to application for section 243(h)

relief,
112 and therefore reversed the BIA's denial of Stevic's motion. The

Second Circuit first noted that the Refugee Act of 1980 adopted the defini-

tion of "refugee" found in the 1967 Protocol. 113 The Protocol defined

"refugee" as one having a "well-founded fear of persecution" and pro-

hibited deportation of a refugee if he would be subjected to persecution

upon return to a particular country. 114 Further, the court found the Pro-

tocol language "considerably more generous than the 'clear probability'

test [previously] applied under Section 243(h)." 115 The Second Circuit em-

phasized the legislative history of the 1980 amendments indicating that

section 243(h) was to be construed consistently with the Protocol. 116 The

court therefore found that in 1980 "the language of [United States] im-

migration law was explicitly conformed to that of the Protocol, not-

withstanding the earlier assurances that statutory changes were not

necessary to comply with the Protocol." 117

One ground for the Stevic court's holding came from an examination
of two provisions of the Immigration and Nationality Act of 1952 dealing

to reopen or his request for asylum. In fact, when the denial of one of his requests was
based on a mistake of fact, the court noted the mistake but refused to grant relief "since

no effort was made at the time either to bring the error to the Director's attention or to
appeal. "We . . . decline to act on the basis of a factual error in a discretionary decision
now some four and one-half years old." Id. at 404.

,,0
Id. at 403. See 8 C.F.R. §242.22 (1984) (reopening or reconsideration).

1,1
Stevic, 678 F.2d at 403 (quoting the January 18, 1980 decision of the BIA denying

Stevic's motion to reopen) (citations omitted), rev'd, Immigration and Naturalization Serv.

v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973). On September 3, 1980, the
BIA again denied a motion to reopen based on the same reasoning. Id.

n2
Id. at 408.

ll3
Id. at 409.

11
* See supra note 65.

ni
Stevic, 678 F.2d at 405, rev'd, Immigration and Naturalization Serv. v. Stevic, 52

U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
n6

Id. at 409 (quoting H.R. Rep. No. 781, 96th Cong., 2d Sess. 20, reprinted in 1980

U.S. Code Cong. & Ad. News 161).
]n

Stevic, 678 F.2d 405, 407, rev'd, INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5,
1984) (No. 82-973). See supra notes 98-99 and accompanying text.



1 984] IMMIGRA TION 599

with asylum for aliens: section 243(h), governing deportable aliens already

in the country, and former section 203(a)(7), 118 governing aliens outside

the country seeking political asylum in the United States.

The legal standard under former section 203(a)(7) was a showing of

"good reason" to fear persecution. 119 This standard was less stringent

than the clear probability requirement under section 243(h), and closely

resembled the Protocol language dealing with deportable aliens.
120

The Second Circuit found the similarities between the standard under

former section 203(a)(7) and the Protocol significant in light of the 1980

amendments to the INA. The court noted that the 1980 Act, and INS

regulations promulgated under authority of the Act, eliminated the distinc-

tion between standards for determining eligibility under former section

203(a)(7) and section 243(h). 121 The court acknowledged the legislative

history indicating that the Refugee Act of 1980 would effect no major

changes in the application of section 243(h),
122 but reasoned that because

the Act requires that "a uniform test of 'refugee' be applied to all aliens,

[whether seeking relief under either section 203(a)(7) or section 243(h)]

the legislative history indicating no major changes cannot alter the in-

evitable consequence that some change in administrative practice must

occur.
,,m

Without clear guidance from Congress, the court was therefore faced

with a choice between applying the stringent clear probability test to re-

118INA, supra note 1, § 203(a)(7) (codified as amended at 8 U.S.C. § 1153(a)(7) (1976)
(current version at 8 U.S.C. § 1157 (1982)). This section provided in part:

Conditional entries shall next be made available by the Attorney General
... to aliens who satisfy an Immigration and Naturalization Service officer
. . . (A) that (i) because of persecution or fear of persecution on account of

race, religion, or political opinion they have fled (I) from any Communist or
Communist-dominated country or area, or (II) from any country within the general

area of the Middle East, and (ii) are unable or unwilling to return to such coun-

try or area on account of race, religion, or political opinion ....
Id.

n9
Stevic, 678 F.2d at 405, rev'd, Immigration and Naturalization Serv. v. Stevic, 52

U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
120

Id. The 1967 Protocol, adopting the language of the 1951 Convention, defined "refugee"

as one who has a "well-founded fear of persecution." The court noted that the drafters
of the 1951 Convention "believed a showing of 'good reason' to fear persecution was suffi-

cient to prove one's status as a 'refugee.' ... [a test that is] identical to the one used
... to describe the . . . standard under . . . section 203(a)(7)." Id. (citations omitted).
In other words, the standard of former section 203(a)(7) was sufficient, under the Protocol,

to grant a withholding of deportation.
i2l

Id. at 407-08. See Refugee Act of 1980, supra note 13, § 208(a), at 8 U.S.C. §
1158(a); 8 C.F.R. § 208.3 (1984).

l22The court said: "The Senate Report seems to assume, however, that the amend-
ments to Section 243(h) work no major change. . . . The House report is more ambiguous

. . .
." Stevic, 678 F.2d at 408 (citations omitted), rev'd, Immigration and Naturalization

Serv. v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
123

Id.



600 INDIANA LAW REVIEW [Vol. 17:581

quests for asylum under both 243(h) and 203(a)(7), or applying the more

lenient standard of 203(a)(7) to 243(h) claims to achieve the required single

standard. The court stated that, given the humane attitude underlying the

1980 Act, "it would bring about wholly anomalous results to read the

Act to impose a far more stringent legal test upon entry by refugees than

had existed in prior law." 124

Another, and perhaps the most significant, basis for the Stevic court's

holding was its conclusion that the elimination of discretionary language

in section 243(h) granted the courts a broader role in the deportation proc-

ess. The court found that by making section 243(h) relief mandatory upon

a finding of eligibility, "the Refugee Act of 1980 calls upon courts, in

construing the Act, to make an independent judgment as to the meaning
of the Protocol!;] ... a reviewing court [now] has a clear responsibilty

to assure that the non-discretionary exercise of Section 243(h) authority

has been performed according to the correct standards of law." 125 Exer-

cizing its broader role, the Second Circuit concluded that "under Section

243(h), deportation must be withheld, upon a showing far short of a 'clear

probability' that an individual will be singled out for persecution." 126

Less than six months after Stevic was decided, the Third Circuit Court

of Appeals addressed the same issue as had the Second Circuit in Stevic:

whether clear probability is the proper standard to be used in section 243(h)

claims after the enactment of the Refugee Act of 1980. In Rejaie v. Im-

migration and Naturalization Service, 127 the alien petitioned for review

l24
Id.

l2s
Id. at 409. The Second Circuit's recognition of the expanded scope of review is

supported by an earlier Ninth Circuit Court of Appeals decision. McMullen v. Immigration

and Naturalization Service, 658 F.2d 1312 (9th Cir. 1981), was one of the first cases in

which a court examined the effect of the Refugee Act of 1980 on section 243(h) relief. In

McMullen, the Ninth Circuit determined that the 1980 amendments, eliminating the discre-

tionary language of section 243(h), required the Board to withhold deportation only upon

a finding of certain facts. The Board, therefore, was required for the first time to make
a factual determination in section 243(h) proceedings. Id. at 1316.

The Ninth Circuit recognized that factual findings of an administrative agency "are
normally subject to the substantial-evidence standard of review," id. (citations omitted), and

concluded that courts now play a broader role in reviewing section 243(h) agency deter-
minations. 'The role of the reviewing court necessarily changes when the charge to the
agency changes from one of discretion to an imperative." Id. See also Note, Persecution

Abroad, supra note 11, at 115-18 (discussing McMullen). Thus, the McMullen court held
that the proper scope of review had increased from abuse of discretion to a substantial

evidence test. 658 F.2d at 1316.

McMullen provides support for the Stevic court's conclusion that the Refugee Act of 1980
called upon the courts "to make an independent judgment as to the meaning of the Pro-
tocol." 678 F.2d at 409, rev'd INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No.
82-973).

126
Stevic, 678 F.2d at 409 (citation omitted) (emphasis added), rev'd, Immigration and

Naturalization Serv. v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
I27

691 F.2d 139 (3d Cir. 1982). The claimant was a citizen of Iran admitted to the
United States in 1978 to attend school. After failing to depart upon the expiration of his



1984] IMMIGRATION 601

of the BIA's denial of his second motion to reopen deportation pro-

ceedings, contending that the BIA had incorrectly required him to prove
a clear probability of persecution.

128 Rejaie claimed that as a result of

the passage of the Refugee Act of 1980, such a stringent burden of proof

was no longer required.

The Third Circuit examined the Act and its legislative history to deter-

mine the validity of this claim. The Rejaie court found that "the modifica-

tion of § 243(h) was effected solely for the sake of clarity so that its

language would conform more closely with the language of the

Protocol.
' ,129 Finding no ambiguity in statements made by Congress, the

Rejaie court determined that the Second Circuit "apparently misappre-

hended' ' the legislative history of both the Refugee Act of 1980 and the

accession to the 1967 Protocol.
130 The court held 131 that well-founded fear

is equal to clear probability, thereby denying the alien's petition for

review. 132

Until recently, this conflict continued in the federal courts. 133 In June,

1984, the United States Supreme Court attempted to end the confusion

visa, and having failed to request permission to stay, the claimant was ordered to return

to Iran. Id. at 141-42.

l2S
Id. at 141-42.

l29
Id. at 144 (emphasis added). The court found that "[i]n modifying section 243(h),

the House clearly understood that the standards under § 243(h) and under the Protocol

were the same." Id. The court also noted that the Board continued to use the same stand-

ards in determining eligibility as it had prior to the Refugee Act of 1980. Id. at 145. The

court explained that the Board, while taking into consideration the alien's subjective ap-

prehensions, still required the alien to present objective evidence demonstrating a "realistic

likelihood" that he would be persecuted. Id.
li0

Id. at 146.

l3l
Id. Sit 146 (citing Fleurinor v. INS, 585 F.2d 129 (5th Cir. 1978); Martineau v. INS,

556 F.2d 306 (5th Cir. 1977); Pereira-Diaz v. INS, 551 F.2d 1149 (9th Cir. 1977); Zamora
v. INS, 534 F.2d 1055 (2d Cir. 1976)).

!32691 F.2d at 146-47.

'"About one month after the Rejaie decision, the Sixth Circuit Court of Appeals decided

Reyes v. INS, 693 F.2d 597 (6th Cir. 1982). Unlike the Third Circuit in Rejaie, the Sixth

Circuit recognized its broader role in reviewing the Attorney General's denial of section

243(h) relief. Reversing the BIA's denial of section 243(h) relief, the Sixth Circuit agreed

with the Stevic holding that an alien is required to show something less than a clear prob-

ability of persecution after the 1980 amendments. 693 F.2d at 599-600. Applying the substantia]

evidence test the Reyes court held that, considering the record as a whole, the petitioner's

evidence was "sufficient to bring her risk within the tenor and spirit of the new provisions

of the Act." Id. at 600 (citing Stevic v. Sava, 678 F.2d 401 (2d Cir. 1982), rev'd, INS

v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973); McMullen v. INS, 658 F.2d

1312 (9th Cir. 1981)).

Shortly after the Reyes decision, the Third Circuit Court of Appeals was again faced with

the assertion that the Refugee Act of 1980 changed the burden of proof required of the

alien in section 243(h) claims. In Marroquin-Manriquez v. INS, 699 F.2d 129 (3d Cir. 1983),

the claimant argued that he was no longer required to show a clear probability of persecu-

tion due to the 1980 amendments. The Third Circuit relied on its decision in Rejaie to hold

that the BIA committed no error by using the clear probability standard. Id. at 133. The



602 INDIANA LAW REVIEW [Vol. 17:581

surrounding this statute by redefining the
*

'clear probability" standard. 134

However, the Court's decision, although unintentionally, arguably, resulted

in the creation of a new standard. That is, an alien must bring forth

evidence establishing that it is more likely than not that he will be

persecuted if returned to a particular country.
1.35

B. The Supreme Court In Review

The decision of the Second Circuit was reversed in Immigration and

Naturalization Service v. Stevic.
136 There, the Supreme Court rejected

Stevic's contention that the Refugee Act of 1980
137 changed the standard

of proof an alien must show to become eligible for section 243(h) relief.

The Court concluded that it was not Congress' intent, in amending the

language of section 243(h), to lower the burden of proof required, rather

the change was made simply so that the language of U.S. laws conformed

more closely to that of our international obligations. 138 Thus, the Supreme

Court held that an alien must establish a clear probability that he will

be subject to persecution. 139

The Court went on to note that it was avoiding "any attempt to state

the governing standard."
140 Rather, it simply established that the burden

of proof required under section 243(h)
—

"clear probability"—calls for a
showing that it is "more likely than not" the alien will be persecuted
upon deportation. 141

Interestingly, however, it appears that the Supreme Court has come
forth with a new standard under section 243(h). Although several obser-
vations made by the Supreme Court are potential targets for criticism,
implicit in the Court's definition of "clear probability" is a new standard
of proof for the alien. As a result of the Court's language, an alien must
now only show that it is "more likely than not" that he will be subject
to persecution. Although language can be found in the opinion indicating

there has been no change in the clear probability standard, a close ex-

amination of the Court's decision will reveal that clear probability now

Third Circuit also held that its scope of review was limited to determining whether the

denial of section 243(h) relief was an abuse of discretion. Id. The court noted the McMullen

decision, where the Ninth Circuit held the judicial scope of review was broadened by the

Refugee Act of 1980. Yet it rejected this reasoning "because it ignore[d] the necessary ap-

plication of expertise implicated in the determination that a fear of persecution is well-

founded." Id. at 133 n.5.
,34 INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
ni

Id.

n6
Id.

xllSee supra note 13.
,3I 52 U.S.L.W. at 4726.
l3
Vtf. at 4725.

"°Id. at 4730.
l4%

Jd.



1984] IMMIGRATION 603

simply requires the alien show persecution is more likely than not in order

to be afforded relief under the section.

1. The Scope of Judicial Review After the Refugee Act of 1980.—It
has been argued that prior to the Refugee Act of 1980, the Attorney

General had two types of discretion: whether the alien was eligible to

receive section 243(h) relief and, if so, whether or not such relief should

be granted.
142 This discretion caused the reviewing courts to view INS

determinations with great deference. As a result, any standard set in the

exercise of the Attorney General's first type of discretion was accepted

by the reviewing courts as the appropriate standard. Only if it was deter-

mined to be a clear abuse of discretion was it rejected. 143

The Refugee Act of 1980 amended section 243(h) 144 so that the At-

torney General is required to withhold deportation upon the appropriate

showing of persecution. 145 The Second Circuit Court of Appeals deter-

mined that the mandatory language of the amendment broadened its scope
of review. 146 It recognized that the courts were no longer required to adhere

to the standards required by the Attorney General.

The Second Circuit was not the first to recognize the courts' increased

scope of review afforded by the 1980 amendment. 147 In McMullen v. Im-

migration and Naturalization Service, 14 * the Ninth Circuit Court of Ap-

peals determined that the 1980 amendments required the Board to withhold

deportation only upon a finding of certain facts. This, the court concluded,

required the reviewing court's role to necessarily change.
149

Yet, the United States Supreme Court summarily dismissed any discus-

sion of the possible increased role of the reviewing court. It held that

"[t]he removal of the Attorney General's discretion to withhold deporta-

tion after persecution was established with the requisite degree of certainty

relates to the consequences of meeting the standard, and not to the stand-

ard itself." 150 Implicit in this statement is the recognition that there are

two levels of discretion exercised by the Attorney General in a section

243(h) proceeding. However, no attempt was made to address the issue
of the reviewing court's role in section 243(h) hearings, an issue which

formed one ground for the decision of the Second Circuit. Rather, the

l42See supra notes 42, 72-74, 93, 97 & 105 and accompanying text.
l * l See supra note 73.
i4ASee supra note 14.
145

/d.

,46
Stevic v. Sava, 678 F.2d 401, 409 (2d Cir. 1982), rev'd, INS v. Stevic, 52 U.S.L.W.

4724 (U.S. June 5, 1984) (No. 82-973). The court stated that "our obligation to assure obser-

vance of correct legal standards under this mandatory provision is to be contrasted with

the more limited role of courts in reviewing BIA decisions under grants of discretionary
authority . . . . " Id.

147
See supra note 125.

I48658 F.2d 1312 (9th Cir. 1981).
l49

Id. at 1316.
I50INS v. Stevic, 52 U.S.L.W. at 4727 n.15.



604 INDIANA LAW REVIEW [Vol. 17:581

Court seems to have concluded that the determination of eligibility is still

entirely within the Attorney General's discretion.
151

Leading up to the accession, Congress insisted that although no ma-

jor changes need to be made to the existing laws, changes that did have
to be made could be done simply within administrative applications and
procedures. 152 Yet, the INS adhered to a "clear probability" standard.

The view espoused by the Second 153 and Ninth 154 Circuits, that courts now
play a broader role is arguably more reasonable. For if Congress now
requires that the Attorney Genereal withhold deportation upon a showing

of persecution, it follows that a reviewing court would have a duty to

be certain that the Attorney General is applying the correct legal stand-

ard in determining eligibility for relief.
155 Taking this position, a court

could not reasonably rely on a "caselaw consensus" developed during

a time in which reviewing courts deferred to the Attorney General's

determination. 156

Although the Supreme Court did not rely on the holdings of past

cases for its determination, it did note that prior to 1980 many courts
and administrative decisions supported the clear probability standard. 157

The Court implicitly rejected the proposition that after 1980 the courts

were granted an increased scope of review by the elimination of discre-

tion under amended section 243(h). 158 Therefore, the Court failed to ade-

quately analyze the effect of the 1980 Act on case law developed under

prior law.

15
7tf.

i$2See supra notes 98-99 and accompanying text.
,53

Stevic v. Sava, 678 F.2d 401 (1982), rev'd, INS v. Stevic, 52 U.S.L.W. 4724 (U.S.
June 5, 1984) (No. 82-973).

,54McMullen v. INS, 658 F.2d 1312 (1981).
lii
See supra note 146.

156 However, this was the view espoused by the Third Circuit in Rejaie v. INS, 691
F.2d 139 (1982). In Rejaie, the Third Circuit relied heavily on the BIA's decision in In

re Dunar, 14 I. & N. Dec. 310 (1973), and a Seventh Circuit Court of Appeals decision,
Kashani v. INS, 547 F.2d 376 (7th Cir. 1973), to find a case law consensus equating clear

probability with well-founded fear. Rejaie, 691 F.2d at 143. Both Dunar and Kashani were
decided before 1980 and they are similar in reasoning. The tribunal in each case found that
because the Protocol and the clear probability standard both required objective evidence

of persecution, the standard under the Protocol, well-founded fear, and the clear probabil-

ity test were not substantially different. In Rejaie, the court also noted that since the enact-

ment of the Refugee Act of 1980, the BIA has continued to use "clear probability" and
"well-founded fear" interchangeably to label the alien's burden of proof. 691 F.2d at 145

(citations omitted). The Third Circuit, therefore, based its holding that well-founded fear
is equivalent to clear probability on a case law consensus developed under prior law and

upon a statement of the INS that the Board continues to follow this consensus despite
the 1980 amendments.

157 INS v. Stevic, 52 U.S.L.W. at 4727.
lSiSee supra notes 144-51 and accompanying text.



1984] IMMIGRATION 605

A broader scope of review would call for greater judicial scrutiny
of the standards used by the Attorney General in making his determina-

tions. By summarily dismissing any possibility that the Attorney General

no longer has any discretion in determining whether an alien is eligible

for relief, the Supreme Court has, arguably, relied on an area of case law

which deserves little weight.

2. Interpretations of Congressional Intent.—In reviewing the Congres-
sional Reports that preceeded the adoption 6f the Refugee Act of 1980,

the Supreme Court conceded that the Act was merely an attempt to clarify

the then-existing immigration law. In a note, the Court quotes the same

language the Third Circuit Court of Appeals relied on in Rejaie 159 to hold

that the language of section 243(h) was amended by the 1980 Act merely

to conform it to the Protocol
—

"for the sake of clarity." 160 Yet, the

Supreme Court oversimplifies the legislative intent in amending section

243(h).

The Second Circuit in Stevic acknowledged the ambiguity found in

expressions of congressional intent. Statements seemed to indicate that

no major changes need be made to immigration law, that the amend-
ments were made for the sake of clarity alone. However, the reports go
on to note that even if changes need be made, they can be accomplished

through administrative procedures. 161 Upon a close examination, congres-
sional understanding and intent are more ambiguous than represented by
the Supreme Court in Stevic.

In stating that no major changes were needed, Congress seemed to

assume that the protection afforded under the Protocol had always been

the same as that under section 243(h). 162 One report stated that amended
section 243(h) "is based directly upon the language of the Protocol and

it is intended that the provision be construed consistent with the

Protocol." 163 It is conceivable that Congress foresaw no major changes

,59
691 F.2d 139 (3d Cir. 1982).

I60
52 U.S.L.W. at 4729 n.20 (quoting H.R. Rep. No. 608, 96th Cong., 2d Sess. 17-18

(1979).
161
See supra notes 98-99 and accompanying text.

'"Support for this conclusion could be drawn from a statement made prior to the
accession to the 1967 Protocol: "Even though the United States already meets the standards
of the Protocol, formal accession would greatly facilitate our continuing diplomatic effort

to promote higher standards of treatment for refugees . . . ." S. Exec. Rep. No. 14, 90th

Cong., 2d Sess. 7 (1968) quoted in In re Dunar, 14 I. & N. Dec. 310, 315 (1973).
,63H.R. Conf. Rep. No. 781, 96th Cong., 2d Sess. 20 reprinted in 1980. U.S. Code

Cong. & Ad. News 161, quoted in Stevic v. Sava, 678 F.2d at 408 (2d Cir. 1982), rev'd,
INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973). See also S. Exec. Rep.
No. 14, 90th Cong., 2d Sess. 6 (1968): "The deportation provisions of the Immigration
and Nationality Act, with limited exceptions, are consistent with this concept [of the Pro-

tocol]. The Attorney General will be able to administer such provisions in conformity with

the Protocol without amendment of the Act." Id. quoted in In re Dunar, 14 I. & N. Dec.
at 317 (emphasis added).



606 INDIANA LAW REVIEW [Vol. 17:581

in the immigration laws and procedures and thus intended to rubber stamp

the standard of clear probability already in use.
164 Conversely, Congress

might have intended to leave the matter of conformity within the power

of reviewing courts and agencies, to assure that procedures and regula-

tions implementing the immigration laws be harmonized with the

Protocol.
165 This list of possibilities is not exhaustive, yet the Supreme

Court too quickly glides over the ambiguities in arriving at its conclusion

that Congress did not intend for any changes in administrative practice

to occur.
166

3. The Meaning of Clear Probability.—The Court began its analysis
by noting that prior to 1968, "it was clear that an alien was required

to demonstrate a 'clear probability of persecution' or a 'likelihood of

persecution' in order to be eligible for withholding of deportation under

§ 243(h) . . . ."
167 The Court also pointed out that under section

203(a)(7) an alien seeking admission to the United States had "to estab-

lish a good reason to fear persecution." 168

Noting that many courts generally continue to apply a standard of
clear probability even after accession to the Protocol in 1967,

169
the Supreme

Court determined that the Refugee Act of 1980 made no mention of the
standard of proof required by the statute. "To the extent such a stand-
ard can be inferred from the bare language of the provision, it appears

that a likelihood of persecution is required .... The section literally pro-

vides for withholding of deportation only if the alien's life or freedom

'would' be threatened in the country to which he would be deported; it

does not require withholding if the alien 'might' or 'could' be subject

to persecution."
170 The Court determined that nothing in amended sec-

164See H.R. Rep. No. 608, 96th Cong., 1st Sess. 18 (1979): "Although this section
has been held by court and administrative decisions to accord to aliens the protection re-

quired under Article 33, the Committee feels it desirable, for the sake of clarity, to con-

form the language of that section to the Convention." Significantly however, Congress did

not take note, that prior to the amendment, the discretionary authority vested in the At-
torney General caused the courts to view their role as very limited.

UiSee supra note 163. The oddity that both of these conclusions can be made from
the same statement lends further support to the conclusion in Stevic that congressional in-

tent was ambiguous. See Stevic v. Sava, 678 F.2d at 408, rev'd, INS v. Stevic, 52 U.S.L.W.

4724 (U.S. June 5, 1984) (No. 82-973).
l66Yet even finding, that Congress did not contemplate major changes in section 243(h)

or its application, does not preclude the natural evolution in construction and application

of the statute. Congress did not countermand adjustments in the immigration law to take

into account the amendments to section 243(h). Rather, Congress seems to have relied on

the natural functions of the executive and judicial branches to assure that the substantive

part of the law, whether or not it was facially changed, conformed to the Protocol. See

supra note 163.
167 INS v. Stevic, 52 U.S.L.W. at 4726 (U.S. June 5, 1984) (No. 82-973).
,6t

Id. (citation omitted).
169

Id. at 4727.
no

Id. at 4727-28 (footnote omitted).



1984] IMMIGRATION 607

tion 243(h) "indicate[d] any diminution in the degree of certainty with

which [grounds for withholding deportation] must be established." 171

In maintaining the standard at its pre- 1980 level, the Court explained

that it was trying to avoid stating any standard. 172 Yet, the Court did

state its definition of "clear probability"; the Court found that the ques-

tion involved under clear probability is whether "it is more likely than

not that the alien would be subject to persecution." 173 The Court deter-

mined that the word "clear" is just surplusage, and ought not to be con-

strued as causing the clear probability standard to lean closer to a clear

and convincing standard. 174

At first glance, the Supreme Court appears simply to have reaffirmed

past decisions, both on the judicial and administrative levels, requiring

an alien to establish a "clear probability" of persecution. Yet, a closer

examination reveals that the Court did establish a new standard of proof.

That is, to receive section 243(h) relief, an alien must support his applica-

tion with "evidence establishing that it is more likely than not that the

alien [will] be subject to persecution on one of the specified grounds." 175

The Court found no merit in the contention that a clear and convinc-

ing standard had been applied by the BIA. However, inherent in its defini-

tion lies an apparent concern with clarifying the standard. 176 Although

arguably a more likely than not standard of definition of clear probability,

it does provide further guidance to a court tempted to require more than

a probability of persecution. Requiring an alien to establish that it is more

likely than not that he will be subject to persecution may indeed not be
any different than requiring a showing of clear probability, at least in

theory. Yet in practice, it is believed that the new standard of more likely
than not will not only produce more reasonable and equitable results for

aliens seeking section 243(h) relief, but it will also prove much simpler
to apply.

4. The Impact of the Supreme Court's Interpretation on Section 243(h)

Claims.—By defining the clear probability standard as it is to be applied
in section 243(h) applications, 177 the Supreme Court has, arguably,

established a new standard, a standard which is reasonable and workable.
Because of the factual situations and the arguments facing the Court,

however, the language used in reversing the Second Circuit's decision could

mislead many courts.

lll
Id. at 4727 n.15.

n2
Id. at 4730. The Court stated: "We have deliberately avoided any attempt to state

the governing standard beyond noting that it requires that an application be supported by

evidence establishing that it is more likely than not that the alien would be subject to persecu-
tion on one of the specified grounds." Id. (emphasis added).

173
Id.

n
*Id. at 4728 n.19.

ns
Id. at 4730 (emphasis added).

n6
Id. at 4728 n.19.

177
See supra notes 167-76 and accompanying text.



608 INDIANA LAW REVIEW [Vol. 17:581

For example, the Supreme Court interpreted the Second Circuit's deci-

sion as holding that an alien need only show a well-founded fear of

persecution.
178

In reality, however, the Second Circuit did not hold this.

Rather, it determined that the changes in section 243(h), brought about

by the Refugee Act of 1980, required a showing "far short of a 'clear

probability'."
179

In fact, the Second Circuit recognized the improvidence

in attempting to define a more detailed standard, determining that any

standard must be developed in the context of "concrete factual

situations."
180 The Second Circuit never determined that a "well-founded

fear" standard should replace the "clear probability" standard when grant-

ing section 243(h) relief.
181

In his arguments to the Supreme Court, it appears that Stevic argued

in favor of the well-founded fear standard.
182 However, the Court deter-

mined that well-founded fear was a more generous standard and recognized

no basis for change from a clear probability standard. As previously noted
though, implicit in the Court's attempt to clarify the meaning of clear

probability is the recognition of the ambiguity surrounding this section

that has plagued the courts since the accession to the 1967 Protocol.

V. Calling on Congress—The Need for Reform.
The Immigration Reform and Control Act of 1983 is currently before

Congress. This bill would revamp our nation's immigration laws. 183 The

proposed legislation is an accumulation of years of research by various

committees within both the executive and legislative branches. 184 It is also

a recognition by Congress of the need to promote the national interest

while at the same time maintaining the United States' policy of "tradi-

tional hospitality and charity." 185

The purpose of the proposed legislation is to reform the process for

determining the validity of political asylum requests; make limited changes
in the system for legal immigration; and to provide a controlled legaliza-

tion of status program for certain undocumented aliens who have entered
the United States prior to 1982. 186 Much of this "reform" concerns assert-
ing control over illegal immigrants. One aspect of this control is to place

,78
52 U.S.L.W. at 4725 (U.S. June 5, 1984) (No. 82-973).

,79
Stevic v. Sava, 678 F.2d 401, 409, rev'd, INS v. Stevic, 52 U.S.L.W. 4724 (emphasis

added).
no

Id.

I8I
52 U.S.L.W. at 4725 (U.S. June 5, 1984) (No. 82-973).

li2
See id.

l83At the time of this writing, the Senate version of the Act had been passed in the
Senate. (S. 529). Its companion bill in the House (H. Bill 1510) was currently awaiting
passage by the House.

]%i
See H. Rep. No. 115, 98th Cong., 1st Sess., 30-32 (1983).

i,5
S. Rep. No. 62, 98th Cong., 2d Sess. 3 (1983).

n6See H. Rep. No. 115, 98th Cong., 1st Sess., 30-32 (1983).



1984] IMMIGRATION 609

stiff penalties on employers who take advantage of the inexpensive labor
illegal immigrants provide.

187

The Immigration Reform and Control Act of 1983, if passed, would

provide some procedural efficiency in the administrative process. 188 The

proposed bill expressly amends section 243(h) by adding paragraph 3 to

read that "application for relief under this subsection shall be considered

to be an application for asylum under section 208 and shall be considered

in accordance with the procedures set forth in that section."
189 Yet neither

the proposed legislation nor the congressional statements surrounding the

legislation do much to clear up the ambiguities that in the past surrounded
the proper burden of proof required for section 243(h) eligibility.

A House report accompanying the House version of the bill repeats
the ambiguities that caused courts to reach different conclusions. It states:

"The Committee is convinced that nothing in the present law, nor in the

Committee Amendment, should be construed as providing less protection

than the Protocol." 190

The degree of protection the 1967 Protocol was intended to afford

aliens remains questionable. The conclusion reached by the Second Cir-

cuit in Stevic v. Sava,
191

that conformity to the 1967 Protocol did indeed

necessitate administrative changes, seems to comport more closely with

statements made by Congress expressing its belief that although no major
changes were required, our laws provided the flexibility needed in carry-

ing out the principles found in the Protocol. This flexibility was recognized

by the Supreme Court, as evidenced by its definition of clear probability

that an alien must establish persecution as more likely than not. 192 A more
likely than not standard guarantees that the protection afforded by our

existing laws will not be less than that found in the Protocol.

However, the same House report states an apparently conflicting

interpretation:

That is, the Committee views the Protocol as creating no substan-

tive or procedural rights not already existing either under current

law or under the law as modified by the [bill]. The Committee
thus agrees with the holding in Pierre v. United States, 547 F.2d

1281, 1288 (5th Cir. 1977) wherein it is stated that "accession

to the Protocol by the United States was neither intended to nor

had the effect of substantially altering the statutory immigration

scheme." 193

n7
id.

]SSSee infra note 192.
189H.R. 1510 98th Cong., 2d Sess. § 124(b) (1983).
I90H.R. No. 115, supra note 186, 59 (emphasis added).
m678 F.2d 401 (2d Cir. 1982), rev'd, INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June

5, 1984) (No. 82-973).
,92 INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).
193 H.R. No. 115, supra note 186, 59.



610 INDIANA LAW REVIEW [Vol. 17:581

This statement appears to support the conclusion that any changes wrought

by the Refugee Act of 1980 were merely "cosmetic surgery"
194 and that

Congress, in performing this "cosmetic surgery,' ' believed the procedures

and case law involving the immigration laws had always conformed to

the Protocol.
195

Yet, as Stevic points out, no substantial changes in our

laws are necessary to afford aliens the protection contemplated by Con-

gress in acceding to the Protocol.
196

Congress seems unwilling, once again, to deal clearly with the perplex-

ing issues surrounding the asylum-type relief found in section 243(h) and

the 1967 Protocol. Thus, courts will continue to shoulder the task of try-

ing to sort these issues and apply a proper burden of proof to the alien

seeking withholding of deportation. This increases the importance and the

potential impact of the decision reached by the United States Supreme

Court.

VI. Conclusion

The United States has often welcomed large numbers of aliens who
enter this country for a variety of reasons. We have prided ourselves in
providing a place for those who seek freedom, or a refuge from political
strife and oppression. At the same time, however, conflicting concerns

have led to limits on immigration. The development of United States im-

migration law has been influenced by an attempt on the part of the three

branches of government to balance these conflicting concerns and to ar-

rive at a generous yet fair set of laws. This is not an easy task. The struggle

that often arises between humanitarian and protectionist goals was

evidenced by the failure of all three branches to state the burden of proof

an alien must shoulder under section 243(h) in order to escape deporta-

tion to a country where his life or freedom might be threatened. 197

The Protocol and the Refugee Act of 1980 did little to clarify con-
gressional intent regarding the proper burden of proof in a section 243(h)

proceeding. Furthermore, the proposed Immigration Reform and Control
Act of 1983 provides virtually no guidance to those aliens seeking relief

under section 243(h). Without clear guidance from Congress, it is crucial

that the courts accept the responsibility of interpreting the Supreme Court's

definition of the burden of proof under section 243(h) in a manner that

,94
Rejaie, 691 F.2d 139, 146 (3d Cir. 1982).

,9i
Id. at 143.

,96
52 U.S.L.W. at 4726.

l97Each branch of government could adequately deal with the matter. For example,
Congress might take a closer look at the problem of the alien's required burden of proof
and then unambiguously articulate its intent. The Executive might require uniformity within
its discretionary power of setting standards. Finally, the courts could establish a flexible,
yet uniform standard that will parallel our nation's humanitarian ideals—so fundamental

to our government—and produce an impartial, fair result.



1984] IMMIGRATION 611

preserves the humanitarian principles that have always made the United
States a haven to those fleeing persecution. This cannot be accomplished

if the courts adhere to archaic legal principles, developed in an era when

the courts had a very limited ability to review the Attorney General's deci-

sions under section 243(h).

Adopting the construction of clear probability similar to the one given

it prior to 1980 will only undermine the humanitarian principles expressed

by the executive branch of the United States government. Rather, courts

should follow the lead of the Supreme Court in Stevic 19 * and reaffirm

those values that the United States has espoused for over two hundred

years.

Shaun Kathleen Healy

,98 INS v. Stevic, 52 U.S.L.W. 4724 (U.S. June 5, 1984) (No. 82-973).