IMMIGRATION AND NATURALIZATION SERVICE, PETITION V. LUZ MARINA
CARDOZA-FONSECA

   No. 85-782

   In the Supreme Court of the United States

   October Term, 1985

   The Solicitor General, on behalf of the Immigration and
Naturalization Service, petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for the Ninth
Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The opinion of the court of appeals (App., infra, 1a-16a) is
reported at 767 F.2d 1448.  The opinions of the Board of Immigration
Appeals (App., infra, 17a-23a) and of the immigration judge (App.,
infra, 24a-28a) are unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 12,
1985.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                           STATUTES INVOLVED

   Section 101(a)(42) of the Immigration and Nationality Act of 1952,
8 U.S.C. 1101(a)(42), provides in pertinent part:

         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 particular social
      group, or political opinion . . .

   Section 208(a) of the Immigration and Nationality Act of 1952, 8
U.S.C. 1158(a), provides:

         The Attorney General shall establish a procedure for an alien
      physically present in the United States or at a land border or
      port of entry, irrespective of such alien's status, to apply for
      asylum, and the alien may be granted asylum in the discretion of
      the Attorney General if the Attorney General determines that
      such alien is a refugee within the meaning of section
      1101(a)(42)(A) of this title.

   Section 243(h)(1) of the Immigration and Nationality Act of 1952, 8
U.S.C. 1253(h)(1), provides in pertinent part:

         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.

                          QUESTION PRESENTED

   Whether an alien's burden of proving eligibility for asylum
pursuant to Section 208(a) of the Immigration and Natioanlity Act of
1952, 8 U.S.C. 1158(a), is equivalent to his burden of proving
eligibility for withholding of deportation pursuant to Section 243(h)
of the Act, 8 U.S.C. 1253(h).

                               STATEMENT

   1. Respondent is a 37-year old native and citizen of Nicaragua.
She entered the United States on June 25, 1979, as a nonimmigrant
visitor authorized to remain until September 30, 1979.  After staying
in this country beyond that date without permission, respondent was
granted the privilege of voluntarily departing the United States by
September 28, 1980.  Respondent failed to take advantage of this
opportunity, and deportation proceedings were instituted against her
in March 1981.  App., infra, 2a, 25a.

   a. At a hearing in December 1981 before an immigration judge,
respondent, who was represented by counsel, conceded deportability and
requested asylum and withholding of deportation pursuant to Sections
208(a) and 243(h), respectively, of the Immigration and Nationality
Act of 1952, 8 U.S.C. 1158(a), 1253(h).  App., infra, 25a.  Respondent
testified that, although "she was a nonpolitical person" (id. at 27a),
she felt that she would be persecuted in Nicaragua on the basis of the
political activities of her brother, who testified that "the
Sandinistas would persecute him" because he is "no longer involved
with that party or sympathetic to its ends" (id. at 25a).

   The immigration judge denied respondent's request for asylum and
withholding of deportation (App., infra, 24a-28a).  He stated that the
governing legal standard was whether respondent had shown "a clear
probability of persecution" if she returned to Nicaragua (id. at 27a).
 The immigration judge concluded that there was no evidence
"indicat(ing) that the respondent would be persecuted for (her)
political beliefs, whatever they may be" (ibid.).  The immigration
judge noted that, whatever the merits of her brother's claim that he
would be persecuted, respondent had not shown that any other members
of her family faced a similar danger (ibid.).

   b. The Board of Immigration Appeals dismissed respondent's appeal
(App., infra, 17a-23a).  The Board "agree(d) with the immigration
judge that the respondent ha(d) failed to establish that she would
suffer persecution within the meaning of section 208(a) or 243(h) of
the Immigration and Nationality Act" (id. at 21a).  In response to her
contention that "the immigration judge applied the wrong legal
standard" to respondent's asylum claim by requiring her to show a
"'clear probability of persecution'" rather than a "'well-founded fear
of persecution'" (id. at 18a-19a), the Board stated that its
conclusion would be the same whether it applied "a standard of 'clear
probability', 'good reason', or 'realistic likelihood'" of persecution
(id. at 21a).

   The Board determined that respondent "failed to support, through
objective evidence, her generalized assertion that she will be subject
to persecution based on her brother's political problems with the
Sandinistas" (App., infra, 21a).  In support of this conclusion, the
Board noted that respondent "admitted that she herself has taken no
actions against the Nicaraguan government(,) . . . has never been
politically active(,) . . . (has) never assisted her brother in any of
his political activities(,) . . . (and) has never been singled out for
persecution by the present government" (id. at 22a).  Finally, the
Board characterized respondent's unsupported fears based on her
relationship to her brother as "mere speculation" (ibid.).

   2. The court of appeals reversed the Board's denial of asylum and
remanded for further proceedings (App., infra, 1a-16a).  /1/ The court
held (id. at 4a-9a) that an alien's burden of proving a "well-founded
fear" of persecution to establish eligibility for asylum is less
demanding than the burden of proving a "clear probability" of
persecution, which this Court held in INS v. Stevic, No. 82-973 (June
5, 1984), is the proper standard to establish eligibility for
withholding of deportation.  In reaching its conclusion, the court of
appeals rejected (App., infra, 5a, 11a) the position of the Board of
Immigration Appeals (id. at 31a) "that as a practical matter" the two
standards "converge()." In re Acosta-Solorzano, Interim Dec. No. 2986
(Mar. 1, 1985) (App., infra, 29a-68a).  In the court's view, the
different formulations of the burdens of proof that it mandated for
obtaining asylum and withholding of deportation entailed "a
significant practical consequence" (App., infra, 9a):

      The term "clear probability" requires a showing that there is a
      greater-than-fifty-percent chance of persecution.  In contrast,
      the term "well-founded fear" requires that (1) the alien have a
      substantive fear, and (2) that this fear have enough of a basis
      that it can be considered well-founded.  While in the latter
      case there must be some objective basis for the fear, contrary
      to the requirement of the "clear probability" test the
      likelihood of persecution need not be greater than fifty
      percent.

So long as an alien subjectively fears persecution, he will be
eligible for asylum under the court's test if he can point to specific
facts "support(ing) an inference of past persecution or risk of future
persecution" (App., infra, 10a-11a).

   The court concluded (App., infra, 12a-13a) that the Board erred in
this case by applying the same burden of proving a clear probability
of persecution to respondent's asylum claim as to her claim for
withholding of deportation, rather than determining separately whether
respondent had a "well-founded fear" of persecution.  It therefore
remanded for consideration of respondent's asylum claim "under the
proper legal standard" (id. at 14a). Respondent had not appealed the
denial of her request for withholding of deportation (id. at 3a), and
the court therefore did not disturb the Board's ruling that she is not
entitled to that relief.

                   REASONS FOR GRANTING THE PETITION

   In INS v. Stevic, No. 82-973 (June 5, 1984), this Court held that
an alien must demonstrate a clear probability of persecution, defined
as a showing that "it is more likely than not that the alien would be
subject to persecution" (slip op. 16), in order to establish
eligibility for withholding of deportation under Section 243(h) of the
Immigration and Nationality Act of 1952.  Although the parties and
most of the amici in Stevic assumed that the standard for asylum under
Section 208(a) of the Act is equivalent to that for withholding of
deportation, /2/ the Court left open the possibility that the
standards might differ (slip op. 17, 22).  Since Stevic, the courts of
appeals have divided on the question left undecided in that case.  The
standard adopted by the Ninth Circuit rests on an erroneous
understanding of the Act, fails to accord appropriate deference to the
decisions of the Board of Immigration Appeals, and anomalously allows
aliens to obtain the broader relief afforded by asylum on a lesser
showing of persecution than is required for withholding of
deportation.  Because the proper formulation of the burden of proof
that an alien must meet in order to establish eligibility for asylum
is an important and frequently recurring issue on which there is a
conflict among the courts of appeals, review by this Court is plainly
warranted.

   1. There is a direct conflict among the courts of appeals
concerning the question presented by this case.  In Sankar v. INS, 757
F.2d 532 (1985), the Third Circuit held that the clear probability and
well-founded fear standards are equivalent (id. at 533):

         Our court has held unequivocably that the "well-founded fear"
      standard enunciated in section 1101(a)(42)(A) does not differ
      from the "clear probability" standard.  Rejaie v. INS, 691 F.2d
      139, 146 (3d Cir. 1982);  Marroquin-Manriquez v. INS, 699 F.2d
      129, 133 (3d Cir. 1983).  Although the court decided these cases
      within the context of a section 1153(h) claim for withholding of
      deportation, the holdings equally apply in the asylum situation
      and control our decision in this case.  . . . Stevic leaves our
      prior decisions undisturbed.  We hold now that the BIA did not
      abuse its discretion when it equated a "well-founded fear" with
      a "clear probability," "good reason," or "reaslistic likelihood"
      . . .

See also Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984).  /3/ The
Sixth Circuit has also held in some cases that where, as here, the
request for asylum is made for the first time after the institution of
deportation proceedings, the alien must establish a clear probability
of persecution in order to be eligible for asylum, just as for
withholding of deportation.  See Reyes v. INS, 747 F.2d 1045, 1046
(1984), cert. denied, No. 84-6145 (Apr. 22, 1985);  Dally v. INS, 744
F.2d 1191, 1192, 1196 & n.6 (1984).  But see Dolores v. INS, 772 F.2d
223, 225-226 (1985);  cf., e.g., Moosa v. INS, 760 F.2d 715 (1985)
(applying different standards where request for asylum is made before
deportation proceedings have commenced).  /4/

   In addition to the holding of the Ninth Circuit in this case, /5/
the Seventh Circuit has stated in a lengthy dictum its view that the
burden of establishing eligibility for asylum is not equivalent to
that for withholding of deportation.  Carvajal-Munoz v. INS, 743 F.2d
562, 572-575 (1984).  While the Seventh Circuit considers the
standards to be "very similar," the court made clear its position that
they are "not identical" (id. at 575).  This Court should resolve the
disagreement among the courts of appeals with respect to the
appropriate burden of proof in asylum cases.

   2. The decision below is erroneous.  In Stevic, this Court
concluded that Congress, in enacting the Refugee Act of 1980, Pub. L.
No. 96-212, 94 Stat. 102 et seq., did not alter the standard that an
alien must meet in order to establish eligibility for withholding of
deportation (slip op. 6, 17-20).  It is equally clear that Congress
did not intend the anomaly of imposing a lesser burden on applicants
for asylum, which provides more extensive relief than does withholding
of deportation.  /6/ The Board of Immigration Appeals, whose
construction of the Act is entitled to substantial difference (INS v.
Wang, 450 U.S. 139, 144-145 (1981)), has recently reexamined the Act
and its legislative history at length, and has adhered to its
longstanding position that the burden of proof required to establish
eligibility for asylum is equivalent to that for withholding of
deportation.  In re Acosta-Solorzano, supra (App., infra, 29a-68a).
There is no warrant for the court of appeals' failure to defer to the
Board's conclusion.

   a. To be eligible for asylum under Section 208(a) of the Act, an
alien must qualify as a "refugee" under Section 101(a)(42)(A), 8
U.S.C. 1101(a)(42)(A).  The definition of refugee in Section
101(a)(42)(A), which sets forth the "well-founded fear" requirement,
was added to the Act by the Refugee Act of 1980.  This new definition,
along with other provisions of the Refugee Act, was intended to
conform United States law to the terms of the United Nations Protocol
Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223 et
seq., to which this country acceded in 1968, by eliminating the
geographical and ideological limitations that had been imposed
previously under the Act with respect to refugees seeking admission to
this country.  See Stevic, slip op. 17. 19.  Congress did not intend
in 1980 to alter the standard required of an alien in this country
seeking to avoid deportation, a standard consistently understood,
under the "well-founded fear" language of the Protocol as well as
under the Act, to require a showing that the alien would more likely
than not be subject to persecution.

   b. The history of United States refugee law and practice prior to
1980 is recounted in Stevic, slip op. 6-12.  Before 1968, aliens in
this country seeking withholding of deportation were required to show
a "clear probability" or a "likelihood" of persecution (id. at 6-7).
/7/ In 1968, the United States acceded to the Protocol, which defined
a "refugee" as one who had a "well-founded fear of being persecuted."
The Protocol also required compliance with Article 33 of the United
Nations Convention Relating to the Status of Refugees, July 28, 1951,
189 U.N.T.S. 150, 176, which prohibited the expulsion of any "refugee"
to countries where "his life or freedom would be threatened." As the
Court concluded in Stevic (slip op. 9), "(t)he President and the
Senate believed that the Protocol was largely consistent with existing
law."

   In 1973, the Board of Immigration Appeals addressed the question
essentially presented in the case, whether the "well-founded fear"
standard of the Protocol differed from the burden of proving a
likelihood of persecution that had been applied prior to 1968.  In In
re Dunar, 14 I. & N. Dec. 310, the Board concluded, consistent with
the understanding in 1968 that our law already conformed to the
Protocol, that the standards are not materially different.  The courts
of appeals agreed that an alien must show a clear probability or
likelihood of persecution in order to establish that his fear is
well-founded.  See, e.g., Fleurinor v. INS, 585 F.2d 129 (5th Cir.
1978);  Kashani v. INS, 547 F.2d 376 (7th Cir. 1977);  see also
Stevic, slip op. 10-12.

   c. Thus, prior to 1980, the "well-founded fear" standard of the
Protocol was understood to be equivalent to the "clear probability"
standard, both requiring a showing that it was more likely than not
that an alien would be persecuted if deported.  It is plain that
Congress did not intend to alter this understanding when it
incorporated the "well-founded fear" language as part of the
definition of "refugee" added to the Act in the Refugee Act of 1980.
Nor did Congress intend, in the course of systematizing the procedures
under which aliens could avoid deportation on grounds of persecution,
to create two alternative avenues of relief, governed by different
substantive standards.

   As the Court concluded in Stevic (slip op. 17 (emphasis in
original)), "(t)he primary substantive change Congress intended to
make under the Refugee Act . . . was to eliminate the piecemeal
approach to admission of refugees" that previously existed under the
Act.  By contrast, Congress evinced no intent to alter the law
concerning aliens already within this country or at its borders who
desired to avoid deportation or return to a country in which they
feared persecution.  See generally Asylum Adjudication:  Hearings
Before the Subcomm. On Immigration and Refugee Policy of the Senate
Comm. on the Judiciary, 97th Cong., 1st Sess. 6 (1981).  Rather, by
both amending Section 243(h) and, for the first time, including in the
Act a provision for asylum, Congress expressly intended simply to
conform United States domestic law to reflect its international
obligations under the United Nations Protocol.  As the Senate Report
stated, "(t)he substantive standard is not changed;  asylum will
continue to be granted only to those who qualify under the terms of
the United Nations Protocol Relating to the Status of Refugees." S.
Rep. 96-256, 96th Cong., 1st Sess. 9 (1979);  see also H.R. Rep.
96-608, 96th Cong., 1st Sess. 17-18 (1979) (the Refugee Act "conforms
United States statutory law to our obligations under Article 33" of
the Convention);  The Refugee Act of 1979:  Hearings on H.R. 2816
Before the Subcomm. on International Operations of the House Comm. on
Foreign Affairs, 96th Cong., 1st Sess. 71 (1979) (remarks of David
Martin, Office of the Legal Adviser, Department of State) ("(f)or
purposes of asylum, the provisions in this bill do not really change
the standards").

   By the same token, both the House and Senate reports made clear
that the new definition of "refugee" contained in Section
101(a)(42)(A) was intended simply to conform to the definition in the
Protocol.  H.R. Rep. 96-608, supra, at 9;  S. Rep. 96-256, supra, at
4, 14-15.  Nowhere in the legislative history of the Refugee Act is
there any suggestion that the use of the phrase "well-founded fear of
persecution" was intended to alter the standard by which an alien was
required to prove eligibility for withholding of deportation or
asylum.  Rather, the legislative history indicates that the only
change Congress contemplated would result from incorporation of the
United Nations' definition was the elimination of the discrimination
inherent in the ideological and geographical restrictions that had
previously been placed on conditional entry into this country (see
Stevic, slip op. 7, 19).

   Nor is there any indication that Congress intended to drive a wedge
between asylum and withholding relief by mandating a lower burden of
proof for the former.  Indeed, as we have discussed (page 9 & note 6,
supra), such an approach would be completely anomalous.  In any event,
as the Board has stated (App., infra, 58a n.13), "Congress understood
the functions of asylum and withholding of deportation to be closely
related and the standards of eligibility for these forms of relief to
be essentially comparable." Prior to 1980, to the extent that an
alien's request for "asylum" was considered in the context of the
prohibition on deportation set forth in Article 33 of the Convention,
an alien had the same burden of proof to establish his eligibility for
this relief as he did for withholding of deportation under Section
243(h) of the Act (App., infra, 57a n.12;  see also Stevic, slip op.
12-13 n.13).  Congress intended in the Refugee Act to "preserv(e) this
relationship" between the two forms of relief (App., infra, 57a
(footnote omitted)).

   In short, the prohibition on withholding of deportation contained
in Section 243(h) of the Act ensures that our domestic law meets the
obligations imposed through the Protocol under Article 33 of the
Convention by preventing the deportation of an alien to a country
where he is likely to be persecuted.  Prior to 1980, Section 243(h)
prevented, consistent with the Protocol, the deportation of refugees,
i.e., those persons with a well-founded fear of persecution. It serves
the same function now.  Beyond that, Section 208 of the Act gives
those aliens who qualify for withholding of deportation the
opportunity also to obtain the additional benefits provided by asylum
(see note 6, supra).  There is simply no basis for concluding that
Congress intended to create separate avenues for relief, thereby
allowing those aliens who could not show a sufficient likelihood of
persecution to obtain the legal bar to their deportation established
by Section 243(h) and the Protocol a second bite at the apple under
Section 208.  Congress's express reliance on the "well-founded fear"
standard for asylum but not for withholding relief thus was not
intended to establish a lower burden of proof for asylum;  and in any
event, as discussed above (pages 10-12), the content of the
"well-founded fear" standard had, prior to 1980, always been treated
as equivalent to that of the "clear probability" requirement, an
equivalence that Congress did not intend to upset in the Refugee Act.

   d. Cognizant of the division among the courts of appeals that has
developed since this Court left the question open in Stevic (see App.,
infra, 32a), the Board of Immigration Appeals recently undertook a
comprehensive reexamination of its longstanding position that the
"well-founded fear" standard does not, in practical terms, differ from
the "clear probability" requirement.  In re Acosta-Solorzana, supra
(App., infra, 29a-68a).  "Although not determinative, the construction
of a statute by those charges with its administration is entitled to
great deference . . ." United States v. Clark, 454 U.S. 555, 565
(1982).  Accordingly, the Board's view of the standard by which an
alien must prove eligibility for asylum, as expressed in
Acosta-Solorzano, is entitled to substantial weight.  See, e.g, INS v.
Wang, supra.  /8/

   The Board began its analysis with the 1973 decision in In re Dunar,
supra, in which it equated the Protocol's "well-founded fear" standard
with the clear probability or likelihood of persecution standard that
had developed under domestic law (App., infra, 47a-48a).  The Board
noted that its construction "was accepted by the courts and thereafter
'a well-founded fear' of persecution was understood to mean that an
alien had to produce objective evidence showing a likelihood or
probability of persecution" (id. at 48a).  It concluded that "Congress
did not indicate in the legislative history of the Refugee Act of 1980
that it intended to alter the accepted construction of 'a well-founded
fear of persecution' by using this phrase in the definition of a
refugee in section 101(a)(42)(A) of the Act" (ibid.).  Accordingly,
the Board saw "no valid reason for departing from the construction of
the well-founded-fear standard that prevailed in this country prior to
the Refugee Act of 1980," and it decided to "continue to construe 'a
well-founded fear of persecution' to mean that an individual's fear of
persecution must have its basis in external, or objective, facts that
show there is a realistic likelihood he will be persecuted upon his
return to a particular country" (id. at 50a).  Its treatment of the
"standards for asylum and withholding of deportaiton (as) not
meaningfully different" was, in the Board's view, "most consistent
with what (it) perceive(d) to have been Congress' understanding of the
relationship between asylum and withholding of deportation at the time
the present provisions were enacted in the Refugee Act of 1980 (id. at
56a;  see page 14, supra).  /9/

   In explaining the practical content of the "well-founded fear"
standard, the Board relied on "two fundamental concepts" (App., infra,
50a).  First, "an alien's fear of persecution cannot be purely
subjective or conjectural, it must have a solid basis in objective
facts or events" (id. at 50a-51a).  Second, "in order to warrant the
protection afforded by a grant of refuge, an alien must show it is
likely he will become the victim of persecution" (id. at 51a).  This
standard does not "require() an alien to establish to a particular
degree of certainty . . . that he will become a victim of persecution"
(id. at 51a-52a).  "Rather, as a practical matter," the Board
explained, its standard "can best be described as follows" (id. at
52a):

      (T)he evidence must demonstrate that (1) the alien possesses a
      belief or characteristic a persecutor seeks to overcome in
      others by means of punishment of some sort;  (2) the persecutor
      is already aware, or could easily become aware, that the alien
      possesses this belief or characteristc;  (3) the persecutor has
      the capability of punishing the alien;  and (4) the persecutor
      has the inclination to punish the alien.

The Board did not view the "clear probability" standard, which
requires a showing that persecution is "more likely than not" to occur
(Stevic, slip op. 16;  App., infra, 55a), as different, in practical
terms, from the showing required under the "well-founded fear"
standard (id. at 56a):

      (T)he facts in asylum and withholding cases do not produce
      clear-cut instances in which such fine distinctions can be
      meaningfully made.  Our inquiry in these cases, after all, is
      not quantitative, i.e., we do not examine a variety of
      statistics to discern to some theoretical degree the likelihood
      of persecution.  Rather our inquiry is qualitative:  we examine
      the alien's experiences and other external events to determine
      if they are of a kind that enable us to conclude the alien is
      likely to become the victim of persecution.  In this context, we
      find no meaningful distinction between a standard requiring a
      showing that persecution is likely to occur and a standard
      requiring a showing that persecution is more likely than not to
      occur.  As we construe them, both the well-founded-fear standard
      for asylum and the clear-probability standard for withholding of
      deportation require an alien's facts to show (the four factors
      set forth above).

In light of this analysis, the Board concluded (ibid.) that "the
standards for asylum and withholding of deportation are not
meaningfully different and, in practical application, converge."

   The court below rejected the Board's position in Acosta-Solorzano
(App., infra, 5a, 11a-12a).  It concluded that an alien who
subjectively fears persecution need only produce evidence showing that
his fear has "enough of a basis that it can be considered
well-founded" (id. at 9a).  In attempting to explain what constitutes
"enough of a basis," the court of appeals stated that it would require
sufficient evidence to show a "'good reason' to fear future
persecution" (ibid. (quoting Carvajal-Munoz, 743 F.2d at 574)).  The
court failed, however, to address the Board's conclusion that the
"good reason" standard "do(es) not reflect the generally understood
meaning of 'well-founded' . . . (or) reflect the understanding of
Congress, and the meaning of the Protocol, that an alien must show it
is likely he will become a victim of persecution before he is eligible
for refuge" (App., infra, 53a).

   3. The decision below, if permitted to stand, will impose a
substantial administrative burden on the Board and on the Immigration
and Naturalization Service.  It will render thousands of denials of
asylum in cases decided since 1980 subject to attack on motions to
reopen and will cloud the adjudication of the thousands of asylum
cases that are currently undergoing initial administrative evaluation
and review.  /10/ Moreover, the conflict in the courts of appeals will
result in the disparate treatment of aliens seeking asylum in
different parts of the country.  Such a significant decision as
whether or not an alien obtains asylum should not depend on the
happenstance of the circuit in which he seeks review.  In Stevic, the
Court noted (slip op. 5) the importance of the question of the proper
burden of proof for an alien seeking to avoid deportation on the
ground of persecution.  That question, which the Court expressly (id.
at 17, 22) left unanswered with respect to requests for asylum, is no
less important now.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   BRUCE N. KUHLIK

      Assistant to the Solicitor General

   NOVEMBER 1985

   /1/ The court of appeals' decision also addressed the Board's
denial of relief to another alien, Francisca Rosa Arguello-Salguera,
whose case had been separately briefed and argued.  We are not seeking
review of the judgment with respect to Arguello-Salguera.

   /2/ Gov't Br. at 20-21 & n.21;  Resp. Br. at 40;  e.g., Amnesty
Int'l USA Amicus Br. at 54-58.  But see American Immigration Lawyers
Ass'n Amicus Br. at 26-27 n.23.

   /3/ Although the court of appeals in this case correctly noted
(App., infra, 11a n.5) that the Third Circuit's discussion of the
burden of proof in Sotto was "not necessary to its holding," it did
not address the decision in Sankar, which squarely holds that the
asylum and withholding standards are identical.

   /4/ The Sixth Circuit's application of the same burden of proof to
certain asylum claims as to withholding of deportation claims
apparently rests on an INS regulation providing that asylum requests
made after the institution of deportation proceedings "shall also be
considered as requests" for withholding relief.  8 C.F.R. 208.3(b);
see Dally, 744 F.2d at 1196 n.6.  This Court made clear in Stevic,
however, that this regulation "does not speak to the burden of proof
issue" (slip op. 15 n.18). In Dolores, 772 F.2d at 225-226, the Sixth
Circuit applied different standards to asylum and withholding claims
raised for the first time after the initiation of deportation
proceedings without referring to its earlier decisions in Dally and
Reyes.

   /5/ The Ninth Circuit had also stated in an earlier case that the
burden of proof for asylum is different from that for withholding of
deportation, but its discussion was dicta because the court held that
the alien had, in any event, met the higher burden of demonstrating a
clear probability of persecution.  Bolanos-Hernandez v. INS. 749 F.2d
1316 (1984).  Here, the court's judgment -- which does not even
address respondent's entitlement to withholding of deportation (see
page 6, supra) -- plainly rests on its conclusion that the Board
should have applied a less demanding burden of proof to respondent's
asylum claim.

   /6/ Unlike an alien who obtains only withholding of deportation, an
alien who is granted asylum has the opportunity to become a lawful
permanent resident of this country.  Moreover, an asylee who obtains
permanent resident status may not be deported to any country, while an
alien who is granted only withholding relief may be deported to
countries other than those in which he would be subject to
persecution.  See App., infra, 58a-59a;  compare Sections 208 and 209,
8 U.S.C. 1158, 1159, 8 C.F.R. 209.2 (asylum) with Section 243(h), 8
U.S.C. 1253(h) (withholding of deportation).  It would be unreasonable
to conclude that Congress intended to permit the greater relief
afforded by asylum to be granted on a lesser showing of persecution
than that required for withholding of deportation.

   /7/ Prior to 1980, there was no statutory provision for asylum for
aliens already within the United States.  Withholding of deportation
was available under Section 243(h) as it then stood for aliens who, in
the judgment of the Attorney General, "would be subject to
persecution." 8 U.S.C. (1976 ed.) 1253(h).  A regulation permitting
aliens to apply for asylum was added for the first time in 1974.  8
C.F.R. Pt. 108 (1975).  This provision was revoked following the
creation of a statutory asylum scheme in 1980.  See 46 Fed Reg. 45117
(1981).  As we explain below (page 14), prior to 1980 requests for
asylum were treated in relevant respect as equivalent to requests for
withholding of deportation.

   /8/ With certain exceptions not relevant here, the Attorney General
is charged with the administration and enforcement of the Act, 8
U.S.C. 1103(a).  He, in turn, has delegated to the Board appellate
authority over decisions of special inquiry officers in deportation
cases (see 8 C.F.R. 3.1(b)(2), 242.17 (c)).  The Board's decisions are
final unless referred to the Attorney General (8 C.F.R. 3.1(d)(2) and
(h)).

   /9/ In the absence of clear congressional intent to the contrary,
the Board surely acted reasonably in construing the applicable burdens
of proof to avoid the peculiar result of granting the greater relief
afforded by asylum to an alien who cannot meet the standard required
for withholding of deportation (see page 9 & note 6, supra.)

   /10/ We are informed that over 11,000 asylum applications were
filed with the Executive Office for Immigration Review during the past
fiscal year.

                               APPENDIX