Immigration and Naturalization Service v. Stevic
Decided on July 5, 1984; 467 US 407


A. Issues Discussed: Immigration

B. Legal Question Presented:

Must a deportable alien demonstrate a clear probability of persecution in order to obtain such relief under 243(h) of the Immigration and Nationality Act of 1952 as amended by 203(e) of the Refugee Act of 1980?


A. Background:

"Respondent, a Yugoslavian citizen, entered the United States in 1976 to visit his sister, then a permanent resident alien residing in Chicago. Petitioner, the Immigration and Naturalization Service (INS), instituted deportation proceedings against respondent when he overstayed his 6-week period of admission. Respondent admitted that he was deportable and agreed to depart voluntarily by February 1977. In January 1977, however, respondent married a United States citizen who obtained approval of a visa petition on his behalf. Shortly thereafter, respondent's wife died in an automobile accident. The approval of respondent's visa petition was automatically revoked, and petitioner ordered respondent to surrender for deportation to Yugoslavia.

Respondent moved to reopen the deportation proceedings in August 1977, seeking relief under 243(h) of the Immigration and Naturalization Act, which then provided: 'The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason.'

Respondent's supporting affidavit stated that he had become active in an anti-Communist organization after his marriage in early 1977, that his father-in-law had been imprisoned in Yugoslavia because of membership in that organization, and that he feared imprisonment upon his return to Yugoslavia.

In October 1979, the Immigration Judge denied respondent's motion to reopen without conducting an evidentiary hearing....

After receiving notice to surrender for deportation in February 1981, respondent filed his second motion to reopen....

Although additional written material was submitted in support of the second motion, like the first, it was denied without a hearing....

The United States Court of Appeals for the Second Circuit reversed and remanded for a plenary hearing under a different standard of proof. Specifically, it held that respondent no longer had the burden of showing 'a clear probability of persecution,' but instead could avoid deportation by demonstrating a 'well-founded fear of persecution.' The latter language is contained in a definition of the term 'refugee' adopted by a United Nations Protocol to which the United States has adhered since 1968. The Court of Appeals held that the Refugee Act of 1980 changed the standard of proof that an alien must satisfy to obtain relief under 243(h), concluding that Congress intended to abandon the 'clear probability of persecution' standard and substitute the 'well-founded fear of persecution' language of the Protocol as the standard...."

On certiorari the US Supreme Court reversed the judgment of the 2nd US Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Brief of amici curiae urging amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Burt Neuborne, E. Richard Larson, and David Carliner; for the American Immigration Lawyers Association by Theodore Ruthizer; for the American Jewish Committee et al. by Samuel Rabinove; for Amnesty International USA by Paul L. Hoffman; for the Committee on Migration and Refugee Affairs of the American Council of Voluntary Agencies for Foreign Service et al. by William T. Lake; for the Lawyers Committee for International Human Rights by Arthur C. Helton; for the National Immigration Project of the National Lawyers Guild, Inc., by Donald L. Ungar; and for the United Nations High Commissioner for Refugees by David B. Robinson.

Ann L. Ritter argued the cause and filed a brief for respondent.

Deputy Solicitor General Geller argued the cause for petitioner. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, and Barbara E. Etkind.


"Legislation enacted by the Congress in 1950, 1952, and 1965 authorized the Attorney General to withhold deportation of an otherwise deportable alien if the alien would be subject to persecution upon deportation. At least before 1968, it was clear that an alien was required to demonstrate a 'clear probability of persecution' or a 'likelihood of persecution' in order to be eligible for withholding of deportation under 243(h) of the Immigration and Nationality Act of 1952...

In 1968 the United States acceded to the United Nations Protocol Relating to the Status of Refugees. The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees with respect to 'refugees' as defined in Article 1.2 of the Protocol.

Article 1.2 of the Protocol defines a 'refugee' as an individual who 'owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.'

...Petitioner argues that persecution must be more likely than not for a fear of persecution to be considered 'well founded.' The positions of respondent and several amici curiae are somewhat amorphous. Respondent seems to maintain that a fear of persecution is 'well founded' if the evidence establishes some objective basis in reality for the fear. This would appear to mean that so long as the fear is not imaginary - i. e., if it is founded in reality at all - it is 'well founded.' A more moderate position is that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.

...The Court of Appeals' decision rests on the mistaken premise that every alien who qualifies as a 'refugee' under the statutory definition is also entitled to a withholding of deportation under 243(h). We find no support for this conclusion in either the language of 243(h), the structure of the amended Act, or the legislative history."

The US Supreme Court reversed the judgment of the 2nd US Circuit Court of Appeals.

Justice Vote: 0 Pro vs. 9 Con

  • Stevens, J.P. Con (Wrote majority opinion)
  • Brennan, W. Con (Joined majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • Powell, L. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Marshall, T. Con (Joined majority opinion)

The ACLU, as amicus curiae, urged affirmance of the 2nd U.S. Circuit Court of Appeals' judgment; the Supreme Court reversed in a 9-0 vote, giving the ACLU an apparent loss.