Immigration and Naturalization Service v. Elias-Zacarias/Dissent Stevens

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." 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."

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.

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, 107 S.Ct. 1207, 1209, n. 5, 94 L.Ed.2d 434 (1987) (emphasis in original). Instead, § 208 of the Act provides that the Attorney General may, "in [his] discretion," grant asylum to refugees.

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 Bolanos-Hernandez v. INS, 767 F.2d 1277 (CA9 1985):

"Choosing to remain neutral is no less a political     decision than is choosing to affiliate with a particular      political faction.  Just as a nation's decision to remain      neutral is a political one, see, e.g., Neutrality Act of      1939, 22 U.S.C. §§ 441-465 (1982), so is an individual's.      When a person is aware of contending political forces and affirmatively chooses not to join any faction, that choice is a political one.  A rule that one must identify with one of two dominant warring political factions in order to possess a political opinion, when many persons may, in fact, be opposed to the views and policies of both, would frustrate one of the basic objectives of the Refugee Act of 1980-to provide protection to all victims of persecution regardless of ideology.  Moreover, construing 'political opinion' in so short-sighted and grudging a manner could result in limiting the benefits under the ameliorative provisions of our immigration laws to those who join one political extreme or another;  moderates who choose to sit out a battle would not qualify." Id., at 1286 (emphasis in original; footnote omitted).

The narrow, grudging construction of the concept of "political opinion" that the Court adopts today is inconsistent with the basic approach to this statute that the Court endorsed in INS v. Cardoza-Fonseca, supra. In that case, relying heavily on the fact that an alien's status as a "refugee" merely makes him eligible for a discretionary grant of asylum-as contrasted with the entitlement to a withholding of deportation authorized by § 243(h) of the Act-the Court held that the alien's burden of proving a well-founded fear of persecution did not require proof that persecution was more likely than not to occur. We explained:

"Our analysis of the plain language of the Act, its symmetry     with the United Nations Protocol, and its legislative      history, lead inexorably to the conclusion that to show a      'well-founded fear of persecution,' an alien need not prove      that it is more likely than not that he or she will be      persecuted in his or her home country.  We find these      ordinary canons of statutory construction compelling, even      without regard to the longstanding principle of construing      any lingering ambiguities in deportation statutes in favor of      the alien.  See INS v. Errico, 385 U.S. 214, 225, 87 S.Ct. 473, 480, 17 L.Ed.2d 318 (1966); Costello v. INS, 376 U.S. 120, 128, 84 S.Ct. 580, 585, 11 L.Ed.2d 559 (1964);  Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948).

"Deportation is always a harsh measure; it is all the      more replete with danger when the alien makes a claim that he      or she will be subject to death or persecution if forced to      return to his or her home country.  In enacting the Refugee      Act of 1980 Congress sought to 'give the United States      sufficient flexibility to respond to situations involving      political or religious dissidents and detainees throughout      the world.'  H. R. Rep., at 9.  Our holding today increases      that flexibility by rejecting the Government's contention      that the Attorney General may not even consider granting      asylum to one who fails to satisfy the strict § 243(h)      standard.  Whether or not a 'refugee' is eventually granted      asylum is a matter which Congress has left for the Attorney      General to decide.  But it is clear that Congress did not      intend to restrict eligibility for that relief to those who      could prove that it is more likely than not that they will be      persecuted if deported." 480 U.S., at 449-450, 107 S.Ct.,     at 1222-1223.

Similar reasoning should resolve any doubts concerning the political character of an alien's refusal to take arms against a legitimate government in favor of the alien. In my opinion, the record in this case is more than adequate to support the conclusion that this respondent's refusal was a form of expressive conduct that constituted the statement of a "political opinion" within the meaning of § 208(a).

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:

"It does not matter to the persecutors what the individual's     motivation is.  The guerrillas in El Salvador do not inquire      into the reasoning process of those who insist on remaining      neutral and refuse to join their cause.  They are concerned      only with an act that constitutes an overt manifestation of a      political opinion.  Persecution because of that overt      manifestation is persecution because of a political opinion." 767 F.2d, at 1287.

It is important to emphasize that the statute does not require that an applicant for asylum prove exactly why his persecutors would act against him; it only requires him to show that he has a "well-founded fear of persecution on account of . . . political opinion." As we recognized in INS v. Cardoza Fonseca, the applicant meets this burden if he shows that there is a " 'reasonable possibility' " that he will be persecuted on account of his political opinion. 480 U.S., at 440, 107 S.Ct., at 1217-1218 (quoting I.N.S. v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984)). Because respondent expressed a political opinion by refusing to join the guerrillas, and they responded by threatening to "take" or to "kill" him if he did not change his mind, his fear that the guerrillas will persecute him on account of his political opinion is well founded.

Accordingly, I would affirm the judgment of the Court of Appeals.