IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. ANA ESTELA GUEVARA FLORES No. 86-388 In The Supreme Court Of The United States October Term, 1986 Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit 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 Fifth Circuit in this case. TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Question presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-23a) is reported at 786 F.2d 1242. The opinions of the Board of Immigration Appeals (App., infra, 25a-31a) and of the immigration judge (App., infra, 32a-42a) are unreported. JURISDICTION The judgment of the court of appeals was entered on April 11, 1986. A petition for rehearing was denied on June 9, 1986 (App., infra, 24a). 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 persectuion 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 Nationality 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 native and citizen of El Salvador who entered the United States in Texas on or around June 24, 1981, without inspection by an immigration officer (App., infra, 33a). She was apprehended by Border Patrol agents that same day. On June 25, 1981, she was served with an Order to Show Cause initiating deportation proceedings based on the manner of her entry (ibid.). At the time of her arrest, respondent had concealed in her clothing an audiotape of the last mass of Archbishop Oscar Romero and letters of introduction to church activists in Puerto Rico written in what the Federal Bureau of Investigation (FBI) termed "classic marxist rhetoric" (App., infra, 4a). The Border Patrol, believing these materials to be of a suspicious nature, turned them over to the FBI, which began a foreign counterintelligence investigation for the purpose of ascertaining respondent's identity. The FBI took steps to determine whether respondent, who admitted to having used a "code name" in El Salvador (App., infra, 27a), was in fact Norma Fidelina Guevara de Grande, a Salvadoran guerrilla leader known as "Comandante Norma" (App., infra, 4a). A fingerprint check showed that respondent is not Comandante Norma (ibid.). At a hearing beginning in October 1981 before an immigration judge, respondent, who was represented by counsel, admitted entry without inspection but denied deportability, claiming status as a refugee (App., infra, 5a-6a, 33a). She requested asylum pursuant to Section 208(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1158(a) (App., infra, 6a, 34a). /1/ She refused, however, to answer a large number of questions on the application for asylum without a written guarantee of confidentiality (App., infra, 35a-36a). /2/ The immigration judge denied this initial application, and the Board of Immigration Appeals (BIA) affirmed. 2. Subsequently, respondent moved the BIA to reopen her deportation proceedings based on new evidence that she claimed was previously unavailable (App., infra, 26a). The new evidence consisted of three documents that the FBI had declassified and released to respondent pursuant to a Freedom of Information Act request. The first document was a wire dated July 16, 1981, from a legal attache in Panama to the Director of the FBI, which reported that "'the detention of a young woman alleged to be Norma Fidelina Guevara (Comandante Norma) * * * has received a good deal of play in the Salvadoran press.'" It continued, "'we are making inquiries here to determine whether the person apprehended in the United States using the name Ana Estela Guevara Flores might in fact be the person press accounts allege to be Norma Fidelina Guevara.'" App., infra, 8a (citation omitted). A second wire from the Panama attache informed the Director that Salvadoran authorities had determined that respondent was not Comandante Norma and was not a kown guerrilla. The second wire also indicated that respondent might be detained on her return to El Salvador for questioning about possession of subversive literature, which is a crime in El Salvador. App., infra, 27a. The remaining document was an internal memorandum from the San Antonio, Texas, office of the FBI to FBI Headquarters in Washington. The memorandum advised that the Salvadoran government had requested that it be notified when respondent is deported to El Salvador and also had asked for the material that she had in her possession when arrested. The memorandum also mentioned that respondent had used a code name in El Salvador and further advised that "'she showed deception on a polygraph examination to specific questions concerning terrorist activities.'" Finally, it stated that she admitted that her sister was an active terrorist in El Salvador. App., infra, 9a, 27a (citation omitted). In a written decision dated July 25, 1984, the BIA denied the motion to reopen the deportation proceedings (App., infra, 25a-28a). Relying on INS v. Jong Ha Wang, 450 U.S. 139, 141 (1981) (per curiam), the BIA noted that a motion to reopen "should be granted only where a prima facie case of eligibility for the relief sought has been established" (App., infra, 26a). The BIA concluded that the FBI documents suggested only that the respondent "may be questioned or detained in El Salvador in connection with an investigation into whether she is a terrorist subversive, not that she would be executed (as she had claimed) for her political beliefs" (App., infra, 27a). Accordingly, the BIA found that respondent's motion papers failed to "establish a prima facie case of either a clear probability that her life or freedom would be threatened or a well-founded fear of persecution in El Salvador on account of her political opinion or any other statutory basis" (App., infra, 27a-28a). 3. The court of appeals reversed the BIA's denial of the motion to reopen and remanded for further proceedings. The court held (App., infra, 14a-18a) 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, 467 U.S. 407 (1984), is the proper standard to establish eligibility for withholding of deportation. Relying on Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th Cir. 1985), cert. granted, No. 85-782 (Feb. 24, 1986), and Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984), the court concluded that the well-founded fear of persecution standard refers to the alien's subjective "state of apprehension or anxiety" accompanied by an objective requirement that the fear have "some basis in the reality of the circumstances" (App., infra, 15a). The court stated that, in so holding, it "stand(s) with the Sixth, Seventh, and Ninth Circuits which have previously determined that the 'well-founded fear of persecution' standard imposed on asylum applicants differs from the 'clear probability of persecution' standard imposed by Stevic on aliens who seek withholding of deportation" (App., infra, 16a). The court of appeals explicitly rejected the Third Circuit's holding (Sotto v. INS, 748 F.2d 832, 836 (1984)) that there is no difference between the proof required for the two forms of relief (App., infra, 16a-17a). Applying its definition of "well-founded fear of persecution," the court then held that respondent had "met her burden on appeal of proving a reasonable likelihood that she will meet the statutory requirements for asylum on reopening" (App., infra, 18a). Noting the interest that Salvadoran authorities had taken in respondent's case, the court held that the new evidence she sought to introduce demonstrated that "a reasonable person in (respondent's) circumstances would fear persecution on return to her native country" (ibid.). REASONS FOR GRANTING THE PETITION This case presents an important, unsettled, and recurring question concerning the appropriate standard that an alien applying for asylum in the United States must satisfy to be eligible for that benefit. In INS v. Stevic, 467 U.S. 407 (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" (467 U.S. at 424), in order to establish eligibility for withholding of deportation under Section 243(h) of the Immigration and Nationality Act of 1952. The Court, however, left open the question whether the standard for asylum under Section 208(a) of the Act is an equivalent one or instead might differ (467 U.S. at 425, 430). Since Stevic, the courts of appeals have divided on the question left undecided in that case, and on February 24, 1986, this Court granted our petition for a writ of certiorari in INS v. Cardoza-Fonseca, No. 85-782, which presents this very issue. In the present case, the court expressly relied on Cardoza-Fonseca in holding that the "well-founded fear of persecution" standard for determining asylum eligibility is a different and more generous standard than a "clear probability of persecution." We have argued in the petition for certiorari in Cardoza-Fonseca and in our brief on the merits that the two standards do not differ. Since the question presented here is not materially different from the one that is already before the Court in Cardoza-Fonseca, the Court should hold the petition in this case and dispose of it as appropriate in light of its decision in Cardoza-Fonseca. /3/ CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's disposition of INS v. Cardoza-Fonseca, No. 85-782. Respectfully submitted. CHARLES FRIED Solicitor General SEPTEMBER 1986 /1/ Under 8 C.F.R. 208, the immigration judge also considered her application for asylum as an application for withholding of deportation pursuant to Section 243(h) of the Act, 8 U.S.C. 1253(h) (App., infra, 34a). /2/ Respondent also refused to testify at her hearing without a written guarantee of confidentiality, and she sought to subpoena all communications between U.S. and Salvadoran agencies (App., infra, 22a, 33a-34a). The immigration judge ordered a closed hearing but denied relief in all other respects (App., infra, 34a). The BIA and court of appeals affirmed this aspect of the immigration judge's decision. /3/ The reasoning of the court of appeals, moreover, erroneously presupposes that the Salvadoran government will wrongfully persecute respondent rather than engage in a legitimate investigation to determine whether respondent has violated Salvadoran law or is a threat to that country's internal security. These are valid concerns, and it is reasonable to expect that the government of a foreign country may wish to detain and question an individual who has left that country and entered the United States under suspicious circumstances. The BIA denied the motion to reopen after determining that the Salvadoran government's interest in respondent was not tantamount to a threat of persecution. Rather than deferring to the BIA's expertise in these matters, or even explaining its basis for differing with the BIA's conclusion, the court simply ignored that determination. APPENDIX