*1 SERVICE v. AND NATURALIZATION IMMIGRATION ELIAS-ZACARIAS 22, 1992 January 4, 1991 Argued November No. 90-1342. Decided Scalia, Court, J., opinion Rehnquist, in which delivered the Thomas, White, Kennedy, Souter, JJ., J., joined. Stevens, C. J., O’Connor, dissenting opinion, JJ., filed a in which Blackmun and joined, post, p. 484. Mahoney E.
Maureen the cause for On argued petitioner. Attorney Starr, briefs were Solicitor Assistant General Acting Deputy Wright, Gerson, General General Solicitor Stephen King. J. Marzen, and Alice M. argued *2 respondent.
James Robertson the cause for With him on the brief were F. Carol Lee and Peter A. Von Mehren.* opinion delivered the of the Court.
Justice Scalia principal question presented by The this case is whether guerrilla organization’s attempt per- to coerce a into military forming necessarily “persecution service constitutes 101(a)(42) on opinion” account of . . . under Immigration Nationality Act, and added, Stat. 1101(a)(42). U. S. C.
I Respondent Elias-Zacarias, native of Guatemala, was apprehended July entering 1987 for the United States inspection. deportation brought proceedings by without petitioner Immigration (INS), and Naturalization Service deportability requested asy- Elias-Zacarias conceded his but withholding deportation. lum and Immigration Judge The summarized Elias-Zacarias’ testi- mony as follows:
“[A]round January [when the end of in 1987 Elias- guerrillas Zacarias 18], two armed, uniformed with covering part handkerchiefs of their faces came Only parents [T]he home. he and his were there. . . . guerrillas parents join asked his and himself to with they guerrillas them, but all refused. The asked them why they and told them that back, would be and that they joining should think it over about them. * Briefs of amici curiae urging were for affirmance filed the Ameri Johnson, Immigration
can Lawyers Kevin R. by Association Joshua R. Flown, Rubin; and Robert Lawyers for the Rights Committee for Human Helton, Johnson, Jr., al. Arthur C. by et 0. Thomas and Andrew I. Schoen- koltz; and for High the United Nations Commissioner for Refugees Bentley Arthur L. III and Julian Fleet guerrillas join “[Elias-Zacarias] want to did not government guerrillas against are because government retaliate would he was afraid that guerrillas. family if he did him and his [H]e left Guatemala at the end of March [1987] . . . be- return.” cause he was afraid App. for 40a-41a. to Pet. Cert. testimony Judge Immigration understood from withholding request
Elias-Zacarias’ attempted deportation recruitment on this one was “based guerrillas.” Elias- Id., at 41a. She concluded *3 persecution or a well- had failed demonstrate Zacarias religion, na- persecution race, of on account of founded fear tionality, membership particular group, or in a social eligible asylum. opinion, 8 S. C. and was not for See U. 1158(a). 1101(a)(42), §§ that he did further concluded She qualify withholding deportation. for of not (BIA) summarily Immigration Appeals dis- The Board grounds. appeal procedural Elias- on missed Elias-Zacarias’ reopen deportation hear- the BIA his Zacarias then moved following ing that, so that he submit new evidence could departure had twice returned Guatemala, from family’s to recruit to his home continued efforts him. ground reopening new even with this BIA denied on the prima facie had failed to make a evidence Elias-Zacarias showing eligibility asylum to show that and had failed deportation hearing changed. the results of his would be treating Appeals Circuit, The Court for the Ninth reopen an affirmance on the BIA’s denial of the motion to as Immigration ruling, Judge’s 921 merits reversed. (1990). conscription 2d 844 The court ruled that acts of F. persecution by nongovernmental group on ac- constitute opinion, and determined Elias-Zacarias count conscription. Id., at 850- had a “well-founded fear” such (1991). granted U. 852. We certiorari. 500 S. II 208(a) Immigration Nationality Act, Section 1158(a), Attorney General, § U. S. C. authorizes in his dis cretion, grant asylum "refugee" to an alien who is a Act, e., unwilling defined in the i. an alien who is unable or country persecution to return to his home "because of or a persecution race, religion, well-founded fear of on account of nationality, membership particular group, in a social or political opinion." 101(a)(42)(A), 1101(a)(42)(A). § 8 U. S. C. Cardoza-Fonseca, 421, 423, 428, See INS v. 480 U. S. n. 5 (1987). The BIA's determination that Elias-Zacarias eligible upheld "supported must be rea sonable, substantial, probative evidence on the record 1105a(a)(4). considered as a whole." 8 U. S. C. It can be only presented reversed if the evidence Elias-Zacarias was such that a reasonable factfinder would have to conclude requisite fear of existed. NLRB v. Co Enameling Stamping Co., lumbian & 306 U. S. (1939).1 Appeals
The Court of found reversal warranted. In its view, guerrilla organization's attempt conscript person military necessarily "persecution into its forces constitutes political opinion," on account of. . . because "the re- sisting expressing political opinion forced recruitment *4 persecutor persecutors' hostile to the and because the motive carrying kidnapping political." 2d, in out the is 921 F. at untrue, 850. The first half of this seems to us and the second half irrelevant. 1 Quite point, therefore, beside the is the dissent's assertion that "the adequate support
record in this case is more than the conelusion that respondent's join guerrillas] expressive [to this refusal the was a form of `political opinion," post, conduct that constituted the statement of a at (emphasis added). finding 488 To reverse the BIA we must find that the only supports conclusion, compels evidence not but it-and also com pels the further conclusion that Elias-Zacarias had a well-founded fear guerrillas persecute political opinion. that the him because of that might supports guerrilla a movement who Even variety combat, of reasons—fear for a of recruitment resist family friends, desire one’s to remain with a desire only living mention a few. life, to in civilian earn better only polit- present to show a failed the case not in The record opposite. part; it the showed on Elias-Zacarias’ ical motive guerrillas he the because refused to testified that he He against government him would retaliate afraid that the (as- family is there indication if he did so. Nor and his suffice) guerrillas suming, arguendo, erro- that the it would politically neously refusal was that Elias-Zacarias’ believed based. guerrillas’ Appeals’ that the conclusion for the of
As Court political”: appar carrying kidnapping It the is in out “motive ranks ently to fill their that the seek meant carry government their war in on order (citing goals. pursue 2d, 921 F. at 850 their See (CA9 1988)); Arteaga 1232, 8 INS, 1227, 2d n. v. 836 F. forced recruit that does not render the 2d, at 852. But F. political opinion.” In “persecution . . on account . ment construing course, start with the as must, of statutes, “we expressed legislative purpose sumption is ordinary Richards v. United the words used.” (1962); supra, at Cardoza-Fonseca, States, see 369 U. S. (1984). Phinpathya, 183, 189 ordi U. S. 431; INS phrase “persecution nary meaning on account of . . . 101(a)(42) persecution political opinion” on account of is persecutor’s. opinion, If a Nazi not the the victim’s ordinary regime persecutes mean Jews, not, is within politi engaging persecution ing language, on account regime perse opinion; a fundamentalist Moslem cal and if persecution engaging on account democrats, it is not cutes generalized “polit religion. mere Thus, existence underlying guerrillas’ forced recruitment ical” motive refute) (and, goes inadequate indeed, far to establish proposition on fears account that Elias-Zacarias *5 §101(a)(42) requires. political opinion, as appears argue taking Elias-Zacarias that not sides with any political expression itself the affirmative of a faction is political opinion. ordinarily That seems to us not since so, agree only grudg- we with the a “narrow, do dissent ” ing concept ‘politicalopinion,’ post, construction of the at distinguish quite concepts 487, would it from such different indifference, indecisiveness, and risk But we averseness. compels need not decide whether the evidence the conclusion political opinion. if does, that Elias-Zacarias held a Even it record also com- Elias-Zacarias still has to establish that the pels the conclusion he has a that the “well-foundedfear” guerrillas persecute political opin- will him because fight with ion, rather than because of his refusal to them. clarity necessary degree He with the has not done so permit finding contrary; indeed, reversal a BIA he has not done so at all.2 objects expected pro-
Elias-Zacarias that he cannot be proof persecutors’ vide direct of his motives. We do not re- quire critical, makes he that. But since the statute motive provide direct or it, must some evidence of circumstantial. judicial And if he seeks to obtain reversal of the BIA’sdeter- presented mination, he must show that the evidence he point respects. the dissent misdescribes record on this several example, exaggerates For the “well foundedness” of whatever fear possesses, by progressively transforming testimony Elias-Zacarias “ ”me,’ guerrillas post, that he was afraid the would ‘take me or kill at 484, into, first, guerrillas’ implied “the threat to ‘take’ him or to ‘kill’ him,” added), and, then, post, (emphasis at 489 into the flat assertion that guerrillas “responded by threatening him,” ‘kill’ post, to ‘take’ or to at added). (emphasis erroneously The dissent also describes it as “undis fears, puted” that the of the harm cause Elias-Zacarias that harm should occur, will guerrilla organization’s displeasure be “the with his refusal Post, them in armed government.” their insurrection at added). (emphasis by INS, The record shows no such concession point being and all Elias-Zacarias said on the was that he feared taken or guerrillas. quite plausible, likely, taking killed It is indeed engaged augment troops be order to their displeasure; killing might than well rather show their he feared killing resisting being be a in the taken. course *6 484 compelling
so that no reasonable factfinder could fail to find requisite persecution. fear of That he has not done. up- The BIA’s determination should therefore have been respects, Appeals’ held in all and we reverse the Court of judgment contrary.
It is so ordered. Stevens, Justice with whom Justice Blackmun Justice O’Connor join, dissenting.
Respondent join organization guerrilla refused to that engaged in forced recruitment in Guatemala. He fled the country guerrillas because he was afraid the would return 1 departure, and “take me and kill me.” After his armed family searching visited his on two occasions testimony hearing him. that credited, officer he stated that he is still afraid to return to Guatemala because people” “these can come back to “take me or kill me.” undisputed respondent
It is has a well-founded fear that he will be harmed, if not killed, if he returns to Guate- undisputed It mala. is also that the cause of that harm, if guerrilla organization’s displeasure occur, it should is the with his refusal to them in their armed insurrection government. question of law that the case presents respondent’s is whether well-founded fear is a “fear political opinion” on account of. . . within the 101(a)(42) Immigration Nationality Act.3 1App. to in Opposition Brief 5a.
2Id., at 6a. 101(a)(42), 1101(a)(42), Section as in provides: codified 8 U. S. C.
“(a) in chapter— As used “(42) (A) ‘refugee’ The term any person means who is outside coun- try person’s or, of such nationality person having the case of a no nation- ality, any country is outside habitually resided, which such last and who or unwilling to, is unable to unwilling return and is unable or protection of, country avail himself or herself of perse- because of respondent prevail, he as did the Court If were (CA9 1990), Appeals, be 2d he would classified 921 F. asylum. eligible grant “refugee" be for a and therefore automatically how- relief, entitled to He would not be grant Attorney required “the General not ever, because refugee.” asylum everyone the definition of who meets (em- (1987) 421, 428, n. 5 Cardoza-Fonseca, 480 S. U. INS *7 provides phasis original). of Act Instead, in the grant asylum may, [his] Attorney discretion,” “in the General refugees.4 to race, religion, of persecution of on account
cution or well-founded fear political opinion, membership particular group, or nationality, in a social (B) appropriate after the special or in such circumstances as President title) (as 1157(e) may specify, in of defined section consultation or, nationality in the person country person’s of who the such is within country in which such person having nationality, within the of a no case well- has a habitually persecuted or who residing, who is race, religion, nationality, of persecution fear on account founded of opinion. The term group, political or membership particular in a social assisted, ordered, incited, or any person who ‘refugee’ does not include race, any person on of persecution in account participated otherwise group, or nationality, membership particular social religion, opinion.” 208(a) 1158(a), provides: Act, 8 U. C. of the as codified at S. Section physi- procedure for an alien Attorney establish a “The General shall port entry, land or cally in the States or at a border present United status, may apply asylum, to and the alien irrespective of such alien’s Attor- Attorney General if the be in the discretion of the granted refugee within the ney such alien is General determines that 1101(a)(42)(A) title.” of this section 421, Cardoza-Fonseca, S. 444-445 480 U. recognized we INS As (1987): “ carefully the new arguments that ‘The Committee considered [House] to refugees eligible to come might expand definition the numbers substantially refugee admissions than the greater States force United However, group or country merely an individual could absorb. because in the United guarantee within the will not resettlement comes definition (1979)]. [96-608, p. 10 Rep. H. R. States.’ delegates Congress Attorney General and his assigned “. . . has decisions; Congress although these making task of hard individualized persecu- respondent’s Today fear of holds that the Court opinion” two rea- is not “on account . . . tion prove refusal to to that his First, he failed sons. politically he testified indeed, motivated; government part a fear that motivated was at least he joined family if he him or his would retaliate forces guerrillas. Second, he failed to ante, at 482-483. See par- political. persecutors’ were prove motives that his implicit persecutors’ threat holds ticular, Court against respondent of his refusal “because retaliate fight on account ante, at is not them,” with parts disagree political opinion. I with both reasoning. Court’s
I negatively political opinion expressed as well as can be A staying affirmatively. support A refusal cause— day, by refusing alle- to take an oath of on election home by refusing step giance, an induction cen- at or forward *8 effectively express political opinion as an af- a as ter —can if conduct. Even firmative statement or affirmative simple nothing a desire to more than refusal is motivated family, living ordinary with one’s is the continue an life political expression asylum provisions of the kind of that protect. were intended to statute Appeals explained in Bolanos-Hernandez As the of Court (CA9 1985): INS, 767 2d 1277 F. political “Choosing a deci- to remain neutral is no less choosing particular politi- a sion than is to affiliate with neutral as a nation’s decision to remain cal faction. Just Neutrality political g., Act of one, see, is a e. (1982), §§441-465 When a so is an individual’s. U. S. C. contending political forces and af- is aware of definition, to authorize the Attor- a narrower it chose could have crafted which, refugees should be de- ney any,.veligible General determine asylum.” nied
firmatively join any faction, chooses not to choice is that identify a one. A rule that one must with one warring political of two dominant factions in order to possess political opinion, many persons may, when opposed policies fact, be to the views and would both, objectives Refugee one basic frustrate of the of the Act provide protection perse- of 1980—to all victims regardless ideology. construing cution Moreover, ‘political opinion’ short-sighted grudging in so limiting manner could result the benefits under the provisions immigration ameliorative of our laws those who one extreme or another; moderates qualify.” who choose to sit out battle Id., omitted). (emphasis original; at 1286 footnote grudging concept “polit- narrow, of the construction opinion” today adopts ical Court inconsistent with approach the basic to this statute Court endorsed in supra. relying INS v. Cardoza-Fonseca, In that case, heav- ily “refugee” merely on the fact that an alien’s status eligible discretionary grant makes him for a —as withholding deporta- with contrasted the entitlement to a 243(h) §by authorized tion of the Act—the held Court proving persecu- the alien’s burden of a well-founded fear of require proof likely tion did not was more explained: than not to occur. We analysis plain language sym- “Our of the Act, its metry legisla- with the United Nations its Protocol, and history, inexorably tive lead conclusion that to persecution,’ show a ‘well-foundedfear of an alien need *9 prove likely not that it is more than not that he or she persecuted country. will be in his or her home We find ordinary statutory compel- these canons of construction ling, regard longstanding principle even without construing any lingering ambiguities deportation in statutes favor of the Errico, alien. See INS v. (1966); INS, 120, 128 376 U. S. 214, 225 Costello v. U. S. (1948). (1964);Fong Phelan, 6, 10 Tan v. 333 U. S. Haw always is “Deportation it all the measure; harsh is a danger replete a the alien makes claim with when more subject persecution if death she be to or that he or will country. In his or home enact- forced to return to her Congress sought ‘give Refugee ing to Act of the flexibility respond to to situ- States sufficient the United involving political religious dissidents and de- or ations throughout Rep. p. 9 [96-608, the H. R. tainees world.’ (1979)]. flexibility holding today increases that Our rejecting the that Attor- the contention Government’s granting may ney not even consider General 243(h) satisfy fails strict standard. one who the ‘refugee’ eventually granted asylum or Whether is Attorney Congress is has left for the a matter which Congress it that did not to decide. But is clear General eligibility that to those who to restrict relief intend they likely prove will it is more than not that could that deported.” persecuted S., be 480 U. at 449-450. concerning reasoning doubts Similar should resolve political an to take arms the character of alien’s refusal against legitimate government in favor of the alien. adequate my opinion, the in this case is more than record support respondent’s was a the refusal conclusion expressive form of conduct constituted the statement of 208(a).5 “political opinion” within the Here, only engaged expressive refusing respondent not conduct join guerrilla organization explained but that he did so “[b]e- the also very well, you they join you that if the . . . then are cause see you against government are and if against government. You And, government against you them to die there. is then then Opposition Respondent against your family.” App. to 5a. and Brief expressed government thus view that he was simply guerrillas. speaks The statute in terms of developed opinion require does not the view be well or ele gantly expressed.
489 II night day guerrillas' implied It follows as follows that change threat to "take" him or to "kill" him if he did not his position persecution constituted threatened "on account of" political opinion. Appeals explained As the Court of Bo lanos-Hernandez: persecutors
"It does not matter what the individ ual's motivation is. The in El Salvador do not inquire reasoning process into the of those who insist on remaining They neutral and refuse to their cause. only are concerned with an act that constitutes an overt opinion. manifestation of a Persecution be persecution cause of that overt manifestation because political opinion." 2d, of a 767 F. at 1287.6 important emphasize It is the statute does not re- quire applicant asylum prove exactly why per- that an against him; only requires secutors would act him to show persecution that he has a "well-founded fear of on account of political opinion." recognized As we in INS v. Cardoza- Fonseca, applicant meets this burden if he shows that possibility" perse- there is a "reasonable that he will be argued respondent's analogous 6 TheGovernment has statement is country being to that of a tary who leaves a to avoid drafted into mili long recognized, however, service. The INS has that the normal "persecution" enforcement of Selective Service laws is not within the political. Thus, of the statute even if the draftee's motive is holding Afghan fight while that an soldier who refused to under Soviet qualified political refugee, Salim, command as a Matter of 18 I. & N. Dec. (BIA 1982), long-accepted position the INS has adhered "to the that it persecution country require military is not for a service of its citizens." A-G-, (BIA 1987); Matter of 19 1. & N. Dec. cf. United Nations High Refugees, Commissioner for Handbook on Procedures and Criteria Determining Refugee (1979) ("Fear prosecution ¶ Status punishment for desertion or draft-evasion does not in itself constitute well- [1967 founded fear of lating under the United Nations Protocol Re Refugees]"). to the Status of S., at 440 480 U. of his political opinion. on account cubed *11 (1984)). Because Stevic, INS 407, 467 U. S. (quoting by refusing a political opinion respondent expressed to “take” threatening responded they the guerrillas, his fear that mind, him he did change “kill” or to his political him on account will persecute the guerrillas is well founded.7 opinion of the Court of I affirm the judgment would
Accordingly, Appeals. dissent, respondent I suggests the Court response to this ante, at of his fear. See the “well foundedness” exaggerated
have produce analysis, however, precisely the legal n. 2. Court’s guerrillas’ threatened retalia unambiguous the no matter how same result Moreover, concerning char the sinister might have been. doubts tion by two uniformed to “think it over” delivered suggestion of a acter respondent’s guns be resolved carrying machine should masked men favor.