IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER v. JAIRO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued November 4, 1991
Decided January 22, 1992
Respondent, a native of Guatemala, was apprehended for entering the United States without inspection. In his deportation proceedings, the Board of Immigration Appeals determined that he was ineligible for a discretionary grant of asylum. In reversing that determination, the Court of Appeals ruled that a guerrilla organization's acts of conscription constitute persecution on account of political opinion, and that respondent therefore had a well-founded fear of such persecution.
A guerrilla organization's attempt to coerce a person into performing military service does not necessarily constitute "persecution on account of . . . political opinion" under 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(42). Even one who supports the political aims of a guerrilla movement might resist military combat, and thus become the object of such coercion. Moreover, persecution on account of political opinion is not established by the fact that the coercing guerrillas had "political" motives. In order to satisfy 101(a)(42), the persecution must be on account of the victim's political opinion, not the persecutor's. Since respondent did not produce evidence so compelling that no reasonable factfinder could fail to find the requisite fear of persecution on account of political opinion, the Court of Appeals had no proper basis to set aside the BIA's determination. See 8 U.S.C. 1105a(a)(4); NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 . Pp. 3-6.
921 F.2d 844, reversed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and O'CONNOR, JJ., joined.
Maureen E. Mahoney argued the cause for petitioner. On the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Acting Deputy Solicitor General Wright, Stephen J. Marzen, and Alice M. King.
James Robertson argued the cause for respondent. With him on the brief were Carol F. Lee and Peter A. Von Mehren. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed for the American Immigration Lawyers Association by Kevin R. Johnson, Joshua R. Floum, and Robert Rubin; for the Lawyers Committee for Human Rights et al. by Arthur C. Helton, O. Thomas Johnson, Jr., and Andrew I. Schoenholtz; and for the United Nations High Commissioner for Refugees by Arthur L. Bentley III and Julian Fleet. [502 U.S. 478, 479]
Respondent Elias-Zacarias, a native of Guatemala, was apprehended in July, 1987, for entering the United States without inspection. In deportation proceedings brought by petitioner Immigration and Naturalization Service (INS), Elias-Zacarias conceded his deportability, but requested asylum and withholding of deportation.
The Immigration Judge summarized Elias-Zacarias' testimony as follows:
The Board of Immigration Appeals (BIA) summarily dismissed Elias-Zacarias' appeal on procedural grounds. Elias-Zacarias then moved the BIA to reopen his deportation hearing so that he could submit new evidence that, following his departure from Guatemala, the guerrillas had twice returned to his family's home in continued efforts to recruit him. The BIA denied reopening on the ground that, even with new evidence, Elias-Zacarias had failed to make a prima facie showing of eligibility for asylum, and had failed to show that the results of his deportation hearing would be changed.
The Court of Appeals for the Ninth Circuit, treating the BIA's denial of the motion to reopen as an affirmance on the merits of the Immigration Judge's ruling, reversed. 921 F.2d 844 (1990). The court ruled that acts of conscription by a nongovernmental group constitute persecution on account of political opinion, and determined that Elias-Zacarias had a "well-founded fear" of such conscription. Id., at 850-852. We granted certiorari. 500 U.S. 915 (1991). [502 U.S. 478, 481]
Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is a "refugee" as defined in the Act, i.e., an alien who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A). See INS v. Cardoza-Fonseca, 480 U.S. 421, 423 , 428, n. 5 (1987). The BIA's determination that Elias-Zacarias was not eligible for asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. 1105a(a)(4). It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 (1939). 1
The Court of Appeals found reversal warranted. In its view, a guerrilla organization's attempt to conscript a person into its military forces necessarily constitutes "persecution on account of . . . political opinion," because "the person resisting forced recruitment is expressing a political opinion hostile to the persecutor, and because the persecutors' motive in carrying out the kidnapping is political." 921 F.2d, at 850. The first half of this seems to us untrue, and the second half irrelevant. [502 U.S. 478, 482]
Even a person who supports a guerrilla movement might resist recruitment for a variety of reasons - fear of combat, a desire to remain with one's family and friends, a desire to earn a better living in civilian life, to mention only a few. The record in the present case not only failed to show a political motive on Elias-Zacarias'; it showed the opposite. He testified that he refused to join the guerrillas because he was afraid that the government would retaliate against him and his family if he did so. Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias' refusal was politically based.
As for the Court of Appeals' conclusion that the guerrillas' "motive in carrying out the kidnapping is political": it apparently meant by this that the guerrillas seek to fill their ranks in order to carry on their war against the government and pursue their political goals. See 921 F.2d, at 850 (citing Arteaga v. INS, 836 F.2d 1227, 1232, n. 8 (CA9 1988)); 921 F.2d, at 852. But that does not render the forced recruitment "persecution on account of . . . political opinion." In construing statutes, "we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9 (1962); see Cardoza-Fonseca, supra, at 431; INS v. Phinpathya, 464 U.S. 183, 189 (1984). The ordinary meaning of the phrase "persecution on account of . . . political opinion" in 101(a)(42) is persecution on account of the victim's political opinion, not the persecutor's. If a Nazi regime persecutes Jews, it is not, within the ordinary meaning of language, engaging in persecution on account of political opinion; and if a fundamentalist Moslem regime persecutes democrats, it is not engaging in persecution on account of religion. Thus, the mere existence of a generalized "political" motive underlying the guerrillas' forced recruitment is inadequate to establish (and, indeed, goes far to refute) the proposition that Elias-Zacarias fears persecution on account of political opinion, as 101(a)(42) requires. [502 U.S. 478, 483]
Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a "narrow, grudging construction of the concept of `political opinion,'" post, at 487, would distinguish it from such quite different concepts as indifference, indecisiveness and risk-averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a "well-founded fear" that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at all. 2
Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors' motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA's determination, he must show that the evidence he presented was [502 U.S. 478, 484] so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done.
The BIA's determination should therefore have been upheld in all respects, and we reverse the Court of Appeals' judgment to the contrary.
[ Footnote 2 ] The dissent misdescribes the record on this point in several respects. For example, it exaggerates the "well-foundedness" of whatever fear Elias-Zacarias possesses by progressively transforming his testimony that he was afraid the guerrillas would "`take me or kill me,'" post, at 484, into, first, "the guerrillas' implied threat to `take' him or to `kill' him," post, at 489 (emphasis added), and, then, into the flat assertion that the guerrillas "responded by threatening to `take' or to `kill' him," id., at 490 (emphasis added). The dissent also erroneously describes it as "undisputed" that the cause of the harm Elias-Zacarias fears, if that harm should occur, will be "the guerrilla organization's displeasure with his refusal to join them in their armed insurrection against the government." Id., at 484 (emphasis added). The record shows no such concession by the INS, and all Elias-Zacarias said on the point was that he feared being taken or killed by the guerrillas. It is quite plausible, indeed likely, that the taking would be engaged in by the guerrillas in order to augment their troops, rather than show their displeasure; and the killing he feared might well be a killing in the course of resisting being taken.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join, dissenting.
Respondent refused to join a guerrilla organization that engaged in forced recruitment in Guatemala. He fled the country because he was afraid the guerrillas would return and "take me and kill me." 1 After his departure, armed guerrillas visited his family on two occasions searching for him. In testimony that the hearing officer credited, he stated that he is still afraid to return to Guatemala because "these people" can come back to "take me or kill me." 2
It is undisputed that respondent has a well-founded fear that he will be harmed, if not killed, if he returns to Guatemala. It is also undisputed that the cause of that harm, if it should occur, is the guerrilla organization's displeasure with his refusal to join them in their armed insurrection against the government. The question of law that the case presents is whether respondent's well-founded fear is a "fear of persecution on account of . . . political opinion" within the meaning of 101(a)(42) of the Immigration and Naturalization Act. 3 [502 U.S. 478, 485]
If respondent were to prevail, as he did in the Court of Appeals, 921 F.2d 844 (CA9 1990), he would be classified as a "refugee," and therefore be eligible for a grant of asylum. He would not be automatically entitled to that relief, however, because "the Attorney General is not required to grant asylum to everyone who meets the definition of refugee." INS v. Cardoza-Fonseca, 480 U.S. 421, 428 , n. 5 (1987) (emphasis in original). Instead, 208 of the Act provides that the Attorney General may, "in [his] discretion," grant asylum to refugees. 4 [502 U.S. 478, 486]
Today the Court holds that respondent's fear of persecution is not "on account of . . . political opinion" for two reasons. First, he failed to prove that his refusal to join the guerrillas was politically motivated; indeed, he testified that he was at least in part motivated by a fear that government forces would retaliate against him or his family if he joined the guerrillas. See ante, at 482-483. Second, he failed to prove that his persecutors' motives were political. In particular, the Court holds that the persecutors' implicit threat to retaliate against respondent "because of his refusal to fight with them," ante, at 483, is not persecution on account of political opinion. I disagree with both parts of the Court's reasoning.
A political opinion can be expressed negatively as well as affirmatively. A refusal to support a cause - by staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an induction center - can express a political opinion as effectively as an affirmative statement or affirmative conduct. Even if the refusal is motivated by nothing more than a simple desire to continue living an ordinary life with one's family, it is the kind of political expression that the asylum provisions of the statute were intended to protect.
As the Court of Appeals explained in Bolano-Hernandez v. INS, 767 F.2d 1277 (CA9 1985):
It follows as night follows day that the guerrillas' implied threat to "take" him or to "kill" him if he did not change his position constituted threatened persecution "on account of" that political opinion. As the Court of Appeals explained in Bolanos-Hernandez, supra:
[ Footnote 1 ] App. to Brief in Opposition 5a.
[ Footnote 2 ] Id., at 6a.
[ Footnote 3 ] Section 101(a)(42), as codified in 8 U.S.C. 1101(a)(42), provides:
[ Footnote 4 ] Section 208(a) of the Act, as codified at 8 U.S.C. 1158(a), provides:
[ Footnote 5 ] Here, respondent not only engaged in expressive conduct by refusing to join the guerrilla organization, but also explained that he did so "[b]ecause they see very well that, if you join the guerrillas . . . then you are against the government. You are against the government, and if you join them then, it is to die there. And then the government is against you and against your family." App. to Brief in Opposition 5a. Respondent thus expressed the political view that he was for the government and against the guerrillas. The statute speaks simply in terms of a political opinion, and does not require that the view be well developed or elegantly expressed.
[ Footnote 6 ] The Government has argued that respondent's statement is analogous to that of a person who leaves a country to avoid being drafted into military service. The INS has long recognized, however, that the normal enforcement of Selective Service laws is not "persecution" within the meaning of the statute, even if the draftee's motive is political. Thus, while holding that an Afghan soldier who refused to fight under Soviet command qualified as a political refugee, Matter of Salim, 18 I. & N.Dec. 311 (BIA 1982), the INS has adhered "to the long-accepted position that it is not persecution for a country to require military service of its citizens." Matter of A__ G__, 19 I. & N.Dec. 502, 506 (BIA 1987); cf. United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 167 (1979) ("Fear of prosecution and punishment for desertion or draft-evasion does not in itself constitute well-founded fear of persecution under the [1967 United Nations Protocol Relating to the Status of Refugees]").
[ Footnote 7 ] In response to this dissent, the Court suggests that respondent and I have exaggerated the "well-foundedness" of his fear. See ante, at 483, n. 2. The Court's legal analysis, however, would produce precisely the same result no matter how unambiguous the guerrillas' threatened retaliation might have been. Moreover, any doubts concerning the sinister character of a suggestion to "think it over" delivered by two uniformed masked men carrying machine guns should be resolved in respondent's favor. [502 U.S. 478, 491]