Immigration and Naturalization Service v. Elias-Zacarias – Oral Argument – November 04, 1991

Media for Immigration and Naturalization Service v. Elias-Zacarias

Audio Transcription for Opinion Announcement – January 22, 1992 in Immigration and Naturalization Service v. Elias-Zacarias

del

William H. Rehnquist:

We’ll hear argument first this morning in No. 90-1342, Immigration & Naturalization Service v. Jairo Jonathan Elias Zacarias.

Ms. Mahoney.

Maureen E. Mahoney:

Mr. Chief Justice and may it please the Court:

The Court of Appeals for the Ninth Circuit held that the respondent’s fear that he would be kidnapped by guerrillas to serve in their military in Guatemala rendered him a refugee eligible for asylum in the United States.

We request this Court to reverse that decision and to uphold the board’s order of deportation for two reasons that I’d like to briefly outline.

First, the court of appeals did not apply the correct legal definition of the term, persecution on account of political opinion.

That term… the precise language of that term… has been a part of the United States immigration laws for decades, and more than 20 years ago it was interpreted by the board to require a showing that the persecutor’s motive would be to inflict injury for the specific purpose of punishing him for adherence to political views that are offensive, to single him out–

Antonin Scalia:

Was this argument made below?

Maureen E. Mahoney:

–Your Honor, yes, the argument was made.

The board… in the closing argument of the… in the proceeding before the immigration judge the counsel for the Service specifically said that the respondent had failed to satisfy his burden of showing that he had been singled out based upon his political opinions.

Similarly, in the court of appeals there was a reference to that argument, and I would submit that it wasn’t more fully briefed simply because between the time of the decision of the board and the time of the court of appeals there had been some intervening Ninth Circuit decisions which made it pretty clear that they had rejected the definition of persecution on account of political opinion that the board had historically applied.

Harry A. Blackmun:

You’re arguing this almost by implication, aren’t you?

Maureen E. Mahoney:

Your Honor, no, it was raised.

The board has very express language in its opinion that there was no basis to infer.

In fact, they say that it could hardly be inferred that the guerrillas approached the respondent because they found his political beliefs to be offensive.

It very definitely… and it referenced two other decisions of the board, the matter of Vigil and also matter of Maldonado-Cruz which had been reversed by the Ninth Circuit thereafter, which relied precisely on these grounds… the definition of persecution on account of political opinion… and there–

Sandra Day O’Connor:

Ms. Mahoney, isn’t it possible under this statute, that the applicant can demonstrate that he had a well-founded fear of persecution, even though the actual motive of the persecutor may be something he can’t prove?

Maureen E. Mahoney:

–Your Honor, there is no question that the standard of proof is a well-founded fear, and yes, it is theoretically possible that a guerrilla could in fact have a motive that did not constitute an intent to persecute, but if the objective evidence would support a reasonable inference that that was the motive, then certainly an alien could prevail.

But what is important here is that I believe that the issue of the standard of proof and the legal definition have been collapsed, and that it’s important to establish first what is the legal definition to determine whether or not the board’s decision was correct under that definition, since the board and not the Court of Appeals for the Ninth Circuit has to draw the inference… inferences from the facts.

In this case, Your Honor, I don’t think it’s necessary to… to really articulate precisely what the standard of proof is, because there’s really no reasonable inference on this record that the purpose of the guerrillas in seeking out the respondent was to punish him for political beliefs.

None of the indicia of that kind of conduct are present on this record.

Anthony M. Kennedy:

Is it just the initial… is it just the initial approach of the guerrillas that’s controlling?

I had thought that the respondent’s position was that he would be in jeopardy because of his having rejected their initial approach and what they might do to him in the future–

Maureen E. Mahoney:

That’s correct, Your Honor.

Anthony M. Kennedy:

–And it seems to me that this is the… his situation.

It may change quite drastically once he’s turned them down.

Maureen E. Mahoney:

I’d like to clarify what this record shows about that issue, Your Honor.

The Ninth Circuit specifically found that the respondent had a well-founded fear that he would be kidnapped and forced to serve.

They did not find that he had a well-founded fear that his mere refusal for having served would result in his ultimate execution.

He testified at the hearing that he had a fear that he would be forced to serve, and he also suggested he had a fear he might be killed, but there was no objective evidence of that whatsoever, and on appeal the Ninth Circuit, I believe, found that he had a well-founded fear that he might be kidnapped because there was some objective evidence to support that.

Maureen E. Mahoney:

The State Department had submitted a report that indicated that forcible recruitment does occur in Guatemala, but that same report that the Ninth Circuit accepts in part found that that practice did not support a claim that… that he would be singled out on the basis of his political opinion.

In other words–

Anthony M. Kennedy:

Well, if he had a well-founded fear that he would be killed, I take it that would be sufficient?

Maureen E. Mahoney:

–No, Your Honor, I would not say that it would be sufficient.

It would then be necessary to determine whether or not the purpose that the guerrillas would have for killing him in response to the refusal was to punish him for his political beliefs, or whether it still was just yet another measure to try to enlist more soldiers.

I would say, though, that that… the question of that inference becomes somewhat different than the one that’s presented on this record, where the only question is what… is it reasonable to infer that the purpose of kidnapping him for refusal to serve is a… an intent to punish him for his political beliefs, or is it simply to compel compliance with the request that they made for him to join their military?

That’s the situation that this record, as the Ninth Circuit has found it, presents.

I’d like to turn again to the definition.

The… there is a suggestion by the parties that there is no requirement that motive be proven, or that it even is an element of the definition, that instead it is simply sufficient if the respondent had a political opinion that caused him to engage in the activity which now subjects him to harm, and that that is persecution on account of political opinion.

As I referenced, that has never been the definition… the articulated definition of persecution on account of political opinion throughout the history of our immigration laws and, in particular, this Court, in Cardoza-Fonseca and in Stevic, found that a controlling principle of interpretation of the refugee definition and the withholding of deportation was its conclusion that Congress intended to incorporate the preexisting practice prior to 1980 with respect to the terms that were used in that definition.

One of those terms was persecution on account of political opinion, and in 1973 the board, in a case called Matter of Dunar, specifically used this articulation.

The board said Congress sought generally to shield aliens from the actions of their own home governments in singling them out for punitive treatment, not because of their individual misconduct or demerits, but solely because they are members of dissident or unpopular minority groups.

Congress sought to establish a preference for a very special category of people, not just anyone who might be subject to injury in war-torn countries, but those who were more in the nature of martyrs, those who had either political beliefs or religious beliefs that were deeply held and that were not tolerated by the societies that they lived in.

Sandra Day O’Connor:

Would you clarify something for me?

The statute doesn’t speak directly to it, but is there any limitation on who the persecutor must be?

Does it have to be an act of the sovereign or can a nongovernmental group meet the definition?

Maureen E. Mahoney:

Your Honor, the definition does not say, but again, the pre–

Sandra Day O’Connor:

Then what is your position?

Maureen E. Mahoney:

–The position is that the preexisting board practice that we presume Congress relied upon when it used these terms was that it could be a group that was not under the control of the government, in other words, that was out of control, that the government couldn’t in any way sort of keep from inflicting severe harms on its population.

Sandra Day O’Connor:

Could it be a Mafia group in Sicily?

Maureen E. Mahoney:

Yes, Your Honor, it could be a Mafia group in Sicily if the government is simply incapable of keeping their conduct under control.

I think there has to be a substantial showing, and usually, Your Honor, I think it comes about in the circumstances where there is some suggestion also that the government may not even want to control–

Sandra Day O’Connor:

Could it–

Maureen E. Mahoney:

–The particular group.

Byron R. White:

–It still has to be on account of political beliefs.

Maureen E. Mahoney:

Absolutely, Your Honor, or religion, or–

Byron R. White:

And I’m not sure how much the Mafia is interested in political beliefs.

Maureen E. Mahoney:

–Well, I’m not sure what the Mafia does, but what… what I would reference there is that if, for instance, they single out a different nationality for adverse treatment that’s… that sort of thing, but… but yes, Your Honor, it absolutely has to be for one of the purposes that Congress prohibited.

There are only five.

Congress did not say that persecution that is inflicted or injury that is inflicted for any reason other than these five makes you a refugee.

Maureen E. Mahoney:

In fact, it said only these five purposes.

Byron R. White:

Didn’t the… didn’t the immigration judge here find that… that this person refused to join the revolutionaries because he didn’t want to go against the current government?

Maureen E. Mahoney:

No… well, Your Honor, the immigration judge found that he had a fear that he would be harmed if he went against the current government.

In other words, there is a difference between a–

Byron R. White:

Well, isn’t that… if he didn’t want to disagree with the current government, isn’t that a brand of political belief?

Maureen E. Mahoney:

–It could be, Your Honor, if what he said–

Byron R. White:

Well, why wasn’t it here?

Maureen E. Mahoney:

–It was not, Your Honor, because he was very explicit in his testimony that the reason he did not want to go against the government was not because he believed in their policies or thought what they were doing was right–

No, but he didn’t want–

Maureen E. Mahoney:

–But that he didn’t want to suffer harm.

Byron R. White:

–Well, he still was against… he was in a sense saying, I’m with the government, and I would think the revolutionaries who were against the government might think that’s a bad attitude to have.

Maureen E. Mahoney:

Well, Your Honor, I think that his testimony is clear that he did not express sympathy with the policies of his own government, he simply expressed fear.

He said he was afraid that he would be killed or that he would be harmed either by the guerrillas or by the government, and that is not a political opinion, that is a–

John Paul Stevens:

May I… may I interrupt you for just a… supposing a voter says the reason I’m voting for candidate X is because I’m afraid of the harm of losing my job?

Would that be a political opinion?

Maureen E. Mahoney:

–I don’t–

John Paul Stevens:

That’s the only reason for my vote, and that people are voting that particular way.

They want to avoid that particular harm.

They don’t… they don’t understand the economic theory–

Maureen E. Mahoney:

–Right.

John Paul Stevens:

–And the various political dialogues that go on, but that’s the single thing that motivates their choice.

How would that be different from this?

Maureen E. Mahoney:

Well, Your Honor, I don’t think that is the type of political opinion that Congress was referring to.

The whole history of this term, persecution on account of political opinion, was directed at the dissidents of totalitarian regimes who were silenced through physical torture and imprisonment because they dared to adhere to a different belief.

John Paul Stevens:

Well, maybe they just wanted to avoid the harm that was associated with that kind of activity.

Maureen E. Mahoney:

The political dissidents?

John Paul Stevens:

Yes.

Maureen E. Mahoney:

Well, the political dissidents generally did express their views, and that’s what led to their harm, and that’s why Congress sought to protect them.

Even if we could say that the respondent in this case had a political opinion, it still does not support an inference that that caused the guerrillas to single him out for punishment.

The… the important point here is, what is the purpose–

John Paul Stevens:

No, but you carry it one step further.

You… you make the same argument even if they intended to kill him for not joining up.

Maureen E. Mahoney:

–That is correct, Your Honor, I would make that argument, because the inference… it would depend on the facts of the record, and I think we’d have to have the facts of record regarding the way in which this was done.

But if, for instance, Your Honor, they killed everyone who refused to join, even if the person made it quite clear that they had been an active guerrilla… excuse me, an antiguerrilla person or a proguerrilla person, in other words, with regard to what the person’s political viewpoints were, then the inference would still be that they may well be simply trying to enforce a system of deterrence in order to field soldiers and not to specifically try to suppress that belief, and that’s what this section of the law–

Antonin Scalia:

Ms. Mahoney, suppose we agree with you that they applied the wrong standard, why shouldn’t we send the case back to have them apply the right standard?

Why should we try to decide it here?

Maureen E. Mahoney:

–Well that… that would certainly be a possible outcome, Your Honor.

I would say that, given the way that the Ninth Circuit in this and other cases, though, has approached the question of forcible recruitment, it is possible… a possible reading of the opinion that even if it understood the correct standard, that it would still nevertheless apply a legal presumption that the guerrillas are motivated to punish for political beliefs simply based upon their forcible recruitment, but it certainly would be a possibility.

Antonin Scalia:

Well, you… you say they… they would apply… couldn’t we tell them not to apply that?

Maureen E. Mahoney:

Certainly.

Yes, Your Honor, that would be a proper disposition of the case.

David H. Souter:

Ms. Mahoney let me make sure I understand you.

You’re saying with respect to the subject matter, that the, in this case that the guerrillas have acted, that you believe that he takes the position he did as a result of his political opinion, and number two, he’s got to prove that that was his political opinion… in other words, that they were correct about that.

Am I right, he’s got two positions?

Maureen E. Mahoney:

No, Your Honor.

There would certainly be circumstances where a person who had no political opinion at all or religious belief might well have a well-founded fear that a persecutor would impute that characteristic or belief to them.

David H. Souter:

It’s the belief in the mind of the person.

Maureen E. Mahoney:

That’s correct, but Your Honor, I’d also like to clarify that the belief in the mind of the persecutor is not some extraordinary standard of proof.

We’re talking about inferences that can be drawn on a record.

In other words… and not the specific persecutor, but rather the group.

In other words–

Antonin Scalia:

Excuse me, and how is it the belief in the mind of the persecutor that’s determinative?

The statute says, a well-founded fear of persecution on these bases.

Surely it’s his state of mind that counts.

Now, his state of mind has to be well-founded, but it could be well-founded but erroneous, so that in fact the state of mind of the persecutor has nothing to do with it, does it?

Maureen E. Mahoney:

–I’m sorry, Your Honor, he has to have a well-founded fear about the persecutor’s state of mind.

In other words–

Antonin Scalia:

Yes, but the actual state of the persecutor’s mind is not determinative.

Maureen E. Mahoney:

–I’m… yes, Your Honor, that’s correct.

It’s not… in other words, the persecutor may have a different state of mind, but if there is a well-grounded, a reasonable fear that the persecutor’s state of mind is to punish for political opinion, that would satisfy the act.

Maureen E. Mahoney:

I say the persecutor’s state of mind is being controlling, meaning that the fear about the persecutor’s state of mind is what governs.

It’s not the… it’s not the applicant’s–

Antonin Scalia:

I’d suggest that’s a confusing way to put it.

Maureen E. Mahoney:

–I… I’m sorry, Your Honor.

Antonin Scalia:

It’s his state of mind that’s controlling, really.

Maureen E. Mahoney:

Well, but it’s… it’s not enough that he simply fears that what he’s going to suffer feels like persecution.

He has to have a well-founded fear based on objective facts that the reason this injury will be inflicted is because of the persecutor’s motive to punish him for a proscribed reason, and that’s–

David H. Souter:

But the victim does not have to have that reason in fact?

Maureen E. Mahoney:

–Does the persecutor have to have that reason?

Antonin Scalia:

The victim–

Maureen E. Mahoney:

No.

David H. Souter:

–Does not have to have that reason in fact, on your theory?

Maureen E. Mahoney:

No, the victim wouldn’t have to if there was substantial… if there was a… a reason to believe that the persecutor would impute that characteristic or opinion, and his certainly has happened in the past and can happen in the future.

David H. Souter:

So–

Maureen E. Mahoney:

The–

David H. Souter:

–So that even though the object of the statute, as you said a moment ago, was to protect those who take conscientious political positions, in fact on your theory the statute will… can protect a great many other people, too?

Maureen E. Mahoney:

–Yes, Your Honor, it could, if… to the extent that there are people who the persecutor might perceive to be within that group, they would be protected, but I think in the ordinary case the objective facts would usually just give rise to a well-founded fear where the person is, in fact, within that group.

In fact, even the handbook that the U.N. High Commissioner has done indicates that ordinarily, to establish a claim for persecution on account of political opinion, you’d have to show that you have that political opinion and that political opinion has become… has come to the attention of the authorities, because usually it’s not going to be a well-founded fear that you’re going to be persecuted for a political opinion that you do not have.

David H. Souter:

Ms. Mahoney–

–That’s an issue of evidence.

Maureen E. Mahoney:

Yes, it is, Your Honor, and it is an issue of evidence to be resolved by the board.

The board is the… is the finder of fact in this case, and as long as it applies the correct standards and the inferences it draws are not unreasonable and not unsupported by the record, those inferences are binding, and they were binding in this case.

Harry A. Blackmun:

Does that mean that… oh, excuse me.

Go ahead.

Would you go so far as to require that he express his belief in favor of the government in power to these guerrillas?

Maureen E. Mahoney:

Oh, no, Your Honor.

No.

It is not critical that he express his belief, as long as there is–

Harry A. Blackmun:

How old was this man?

Maureen E. Mahoney:

–Your Honor, I believe he was 18.

Harry A. Blackmun:

He’s no John Dockerty, is he?

Maureen E. Mahoney:

No, Your Honor, he is no John Dockerty, and the Government has never said otherwise.

The question here is simply, what is the class of refugees eligible for the grant of asylum?

There was… it’s very important that that class not be expanded far beyond the bounds that Congress intended for–

Harry A. Blackmun:

But I think it’s important, however, that we put ourselves in the place of a 17-year-old confronted by two guerrillas with, what, machine guns?

Maureen E. Mahoney:

–Yes, Your Honor.

Even if we did, Your Honor, Mr…. the respondent in this case in fact has never testified that he believed that he was–

Harry A. Blackmun:

Well, that has to be your position.

Maureen E. Mahoney:

–But there has to be objective facts to support the well-founded character of his fear that the reason for the persecution would be based upon his political beliefs, and Your Honor–

Byron R. White:

His fear has to be at the time that he wants asylum, isn’t it?

Maureen E. Mahoney:

–Yes, Your Honor.

He has… he has to have a fear that when he returns, correct–

Byron R. White:

Yes.

Maureen E. Mahoney:

–That… that he would be subjected to the injury that he claims.

Byron R. White:

No matter what his attitude was when he refused conscription.

Maureen E. Mahoney:

That’s correct, Your Honor.

John Paul Stevens:

But do I correctly understand that if the objective evidence would support the inference that the guerrillas treated people who refused to enlist or join voluntarily as political enemies, that then the statute would apply?

Maureen E. Mahoney:

If that was the purpose of the punishment?

In other words, that the… the reason that they were imposing the punishment–

John Paul Stevens:

That they would regard those who refused to join up upon request as political enemies.

Maureen E. Mahoney:

–Your Honor, I think the term, political enemies may be–

John Paul Stevens:

Well, as having an unacceptable political opinion?

Maureen E. Mahoney:

–Yes, Your Honor.

If–

John Paul Stevens:

Then the statute would apply?

Maureen E. Mahoney:

–If the evidence… if the board concluded that the evidence supported a well-founded fear that that was the reason, then yes, the statute would apply.

John Paul Stevens:

And would… would objective evidence of a series of punishments being inflicted upon people who refused to join up justify that conclusion?

Maureen E. Mahoney:

No, Your Honor–

It would not?

Maureen E. Mahoney:

–Because on this record there’s no indication that that punishment was being inflicted differentially on people depending upon what their political viewpoint–

John Paul Stevens:

No, but I’ve said I’ve defined the political… the political opinion being that you don’t agree with it, that the fact that you will not join up is sufficient evidence of having an unsatisfactory political opinion to the guerrillas.

Maureen E. Mahoney:

–If there–

John Paul Stevens:

Then the mere fact you didn’t join–

Maureen E. Mahoney:

–If there was objective evidence of that, in other words if the State Department reported that guerrillas say that that’s the reason that they do this–

John Paul Stevens:

–They don’t have to say it, they act in a particular way in respect to people who act by not joining up.

Isn’t that objective evidence?

Maureen E. Mahoney:

–No, I don’t believe so, Your Honor.

That’s just simply not a reasonable inference that that is… that that’s the purpose of imposing the punishment.

I mean, this Court, in a series of cases, has confronted the question of what is the purpose of punishing people for refusal to in… to join the Army, and in the Gillette case in particular, the issue was, was there a purpose to punish him for his religious views because he wasn’t allowed an exemption, and this Court said no.

The only reasonable inference… the only reasonable inference is he’s being punished because he refused to join, and the purpose is to field an army, and that is the same purpose the guerrillas had in this case.

It is simply not reasonable to infer that, when all they’re doing is going and kidnapping them to force their compliance with their request that what they’re really doing is trying to suppress and wipe out a political viewpoint that is hostile to–

Antonin Scalia:

And all it takes to change our whole immigration law is for the leader of the guerrillas to say, he who is not with us is against us, and if he says that, automatically, these are… they’re all being persecuted for their religious views?

Is that what the law is, really?

Maureen E. Mahoney:

–Your Honor, I don’t think that… that it would be just like that.

I think it would have to be the objective evidence of record, but it is… but it would be a factor.

Antonin Scalia:

Well, you have a record.

Somebody comes in and testifies, the leader of the guerrilla said, he who is not with us is against us, and automatically all of these people who refused to be impressed into service suddenly have political asylum.

That’s the position the Government’s taking?

Maureen E. Mahoney:

No, Your Honor.

I don’t believe–

Antonin Scalia:

I thought that’s what you just said.

Maureen E. Mahoney:

–I… I’m trying to clarify that if they just say, he who’s not with us is against us, I don’t think that’s the same as saying we’re going to punish you for your political beliefs.

But if there is… if there is some evidence that the board could say… supported the conclusion that the purpose was not to field the army… for instance, if there was… if it could be shown that only those people with hostile views to the guerrillas were forcibly recruited, whereas those with progovernment guerrillas… proguerrilla views were left in their homes if they voluntarily refused, that may well support an inference that what they’re doing is singling out political enemies for adverse treatment, but there’s–

David H. Souter:

Let me… let me ask you this.

Does this assume that the facts are the guerrillas.

He says no.

The guerrillas then make it plain by whatever means that they’re going to kill him, kidnap him, persecute him in some way.

Has he made a case under the statute?

Maureen E. Mahoney:

–No, Your Honor.

David H. Souter:

No.

David H. Souter:

In other words, what he’s got to show is not merely that the guerrillas are angry because he would not join up.

He’s got to show, if I understand what you’re saying, based on further evidence than I have indicated in my hypo, that the guerrillas infer that the reason he didn’t join up is that he holds a substantive political position which is inimical to them.

Isn’t that what you’re saying that he’s got to prove?

Maureen E. Mahoney:

Plus one more step, Your Honor.

Even if they believe that he has a view that is hostile to them, that itself is not sufficient to convert their purpose from being one of recruitment to being one–

David H. Souter:

Oh, right.

In other words–

Maureen E. Mahoney:

–Of punishing him for that view.

David H. Souter:

–that’s got to be the purpose for their…–

Maureen E. Mahoney:

That’s correct, Your Honor, and that’s a fundamental step that sort of defies common sense on this record.

Anthony M. Kennedy:

–Now, all he has to show is a reasonable possibility of this?

Maureen E. Mahoney:

The standard of proof that the board has used is whether or not a reasonable person would fear that the persecution is being inflicted for this reason.

Sandra Day O’Connor:

Well, that’s a pretty liberal standard, is it not, in favor of the alien?

Maureen E. Mahoney:

It is a liberal standard–

Sandra Day O’Connor:

And we interpret the statute liberally in favor of the alien applicants?

Maureen E. Mahoney:

–Your Honor, it is a liberal standard, and the board has found it met on many occasions, but not in this case.

Sandra Day O’Connor:

And… and also, I suppose if the Attorney General does not want to grant asylum in a particular case, there is still discretion to deny it.

Maureen E. Mahoney:

Yes, Your Honor, there is, but the… as soon as the eligibility is expanded to persons who make no greater showing than the respondent in this case, there then are… there’s the potential of millions of additional applicants for asylum flooding into the country and, in addition, making it more difficult for refugees from outside the country to obtain admission into the country.

Anthony M. Kennedy:

But… but how do you square the board’s almost blanket presumption that these guerrilla groups did not have that purpose with the reasonable possibility?

If the alien fears there’s a reasonable possibility… and Fonseca even has a numerical calculation of this which is very deferential to the alien… it seems to me the case still has to go back for them to assess that reasonable possibility.

Maureen E. Mahoney:

Well, Your Honor, they… they said… the language that they used in this case is that this record could hardly support a view, and I believe that under any standard of proof, even one that is… that is more liberal than the one the board uses would not support an inference.

It’s just not a rational inference on this record, because it is not what the alien subjectively fears, it’s what a reasonable person would fear based upon the objective record, and that does not support it.

I’d like to save the remaining time for rebuttal, if I could.

William H. Rehnquist:

Very well, Ms. Mahoney.

Mr. Robertson, we’ll hear from you.

James Robertson:

Thank you, Mr. Chief Justice, and may it please the Court:

5 years ago, in the Cardoza-Fonseca case, the Immigration Service argued to this Court that it was impossible to think about the well-founded fear standard except in terms of more likely than not or more probable than not.

The Court didn’t find it impossible.

The Court held that the BIA had got it wrong in requiring asylum applicants to prove a clear probability of persecution and found that, indeed, the reasonable… the well-founded fear standard could be met by something less than 50 percent and perhaps even as little as 10 percent.

Anthony M. Kennedy:

Well… well, do you have any quarrel with the legal standards that the Solicitor General has set forth here?

James Robertson:

To the extent that the… the Solicitor General requires there to be something more than the inference that this reasonable… that this young man had about his fear, yes, we do quarrel about it, but in theory… in theory the, well–

Anthony M. Kennedy:

But Ms…. Ms. Mahoney’s interpretation of the statutory requisites, I take it, is satisfactory with you?

It’s just a matter of how we apply them?

James Robertson:

–Well, Your Honor, I think that she… she says that the standard is applied the same way.

The problem is that the Board of Immigration Appeals has not been applying them the same way.

They have, in fact, been using presumptions in place of evaluations.

Anthony M. Kennedy:

All right, but it’s a matter of application in this case that we’re… that we’re concerned with, then?

James Robertson:

It… it is a matter–

Anthony M. Kennedy:

You will agree with Ms. Mahoney’s statements of the legal requisites to show political… a well-founded fear of persecution by reason of political opinion?

James Robertson:

–Not, Your Honor, if that standard requires both a specific showing of the political opinion of the applicant and a specific showing that the… that the purpose, the specific purpose of the persecution which is feared, and which, after all, hasn’t happened yet, will be specifically to punish the applicant for that political opinion.

That standard… that standard is, in our submission, impossible as a practical matter to meet in the real-life cases–

Anthony M. Kennedy:

Well, we deal with inferences and probabilities and likelihoods.

James Robertson:

–Well, Your Honor, we do deal with these inferences, and if… and if the standard is expressed in terms of the inferences that can be drawn, yes, we have no problem with the… with the… with the basic… with the basic standard.

Byron R. White:

But he… but he… but his well-founded fear has to be of prosecution on account of his political beliefs?

James Robertson:

That’s right, Your Honor, and a well-founded fear, reasonable standard–

Byron R. White:

Which–

James Robertson:

–Runs all the way through this–

Byron R. White:

–Which may be… which in fact may be baseless?

James Robertson:

–Well, if it is baseless, Your Honor… if it is baseless, then… then it is not well-founded.

I mean, we’re–

Byron R. White:

All right.

But I–

James Robertson:

–The well-founded issue–

Byron R. White:

–But I… in the… but it may be that he… the fact is that… it may be that the fact is that he would never be prosecuted for anything, let alone his political beliefs.

James Robertson:

–It… that is a possibility, Your Honor.

That is why the well-founded fear standard–

Byron R. White:

Yes.

James Robertson:

–requires only that he reasonably believe it and that the possibilities, indeed, may be considerably less than 50 percent.

In the Cardoza-Fonseca case the Court laid out a set of facts that left very little doubt that a reasonable person might have a well-founded fear if the chances are only 1 in 10.

Antonin Scalia:

What… what about… is there any requirement that he actually have a political opinion?

James Robertson:

Your Honor, no.

Antonin Scalia:

I mean, it doesn’t say well-founded fear of persecution on account of supposed political opinion, but it says, on account of political opinion.

James Robertson:

It–

Antonin Scalia:

Doesn’t he have to have a political opinion?

He… he does not, Your Honor, and I take the… I take the position of the Government to be essentially in agreement with that, although they–

–I’m not sure.

I thought Ms. Mahoney said that the board has… has required that there be an actual political opinion.

James Robertson:

–Your Honor, the–

Antonin Scalia:

And she seemingly said that with… with approval.

James Robertson:

–There is… there is in the cases… this case does not present these facts, because there is a political opinion on the record of this case, but there are cases–

Antonin Scalia:

What… what is the… the political opinion on the record here?

James Robertson:

–The political opinion on the record is established by the… by the alien’s testimony that he didn’t want to be against the government.

That’s what he said at his immigration hearing.

That… that testimony was believed by the immigration judge–

Well, he–

James Robertson:

–And specifically found credible.

Antonin Scalia:

–Is that a political opinion, to say I do not want to have political opinion?

You say, I do not want to have a political opinion.

Is that a political opinion?

He didn’t say he wanted to be for the government, either.

He didn’t want to be for the guerrillas, or against the guerrillas.

He did not want to be against the government.

How does one not have a political opinion if that’s a political opinion?

James Robertson:

Well, Your Honor, I… I have trouble with how one does not have a–

Antonin Scalia:

I think you do.

James Robertson:

–A political opinion–

David H. Souter:

Is this…–

James Robertson:

–But in this particular case, the statement, I don’t want to be against the government, is clearly a… a political opinion.

David H. Souter:

–We don’t know… so far as the record indicates, he came to that conclusion because he thought the government was going to hurt him and he didn’t want to get hurt, but doesn’t the statute in referring to political opinion refer to some kind of a substantive opinion about the merits of a position, and if that is so, then what he has indicated here is a political judgment that he’s made, but not the espousal of a substantive political opinion.

James Robertson:

Your Honor, the Government attempts to look at this as a judgment on his part that it’s not a good idea for him to be on the guerrillas’… but from his point of view… and remember the statute requires to look at it from his point of view… from his point of view, it’s a political opinion.

James Robertson:

He’s a 19-year-old kid.

It is as much of a political opinion as we require any of our citizens to have when they walk in to the polling place and pull the levers.

David H. Souter:

Well are you saying that… are you… are you implying that… that for the… for the guerrillas to take the position that he who is not for us is against us is… is a sufficient inference about political opinion.

They don’t have to know why he’s not for us, and it certainly doesn’t mean the government has to claim that he has to be not for them.

If he’s not for them… if they can simply say, if you are not with us, you are against us, that is an espousal of… or that is a basis for inferring a political opinion that you espouse, that’s all that’s got to be proved.

Is that your position?

James Robertson:

All that has… yes.

I think that’s correct, Your Honor.

If… if I follow the question correctly, that is… he is for us… he who is not for us is against us would be more than enough.

David H. Souter:

That is…–

James Robertson:

That… well the… yes, Your Honor, because the political opinion in this case is manifested… is manifested by the applicant’s refusal to join the guerrillas.

Now, the threat that’s on the record… and we should not forget this threat, from which a number of inferences come… the threat that was made was made after the refusal to join, I’m not going to join you, we’re leaving, we’re coming back, think it over well.

David H. Souter:

–Right.

Well that’s… I mean that’s… that’s… that’s a good point of evidence, but isn’t it the case, then, it is not the broader concept of political opinion as you suggest, that anyone who disagrees with an organization capable of persecution and who is then persecuted will always automatically qualify as being persecuted or having fear of persecution because of political opinion?

There really is no… I guess what I’m saying is, if we adopt a definition as broad as you are urging on us, the condition really doesn’t mean anything.

All you’ve got to have is disagreement, and if all you’ve got to have is disagreement, why is that condition about political opinion in there at all?

James Robertson:

Well, Your Honor, because we have to have the nexus between the disagreement and–

David H. Souter:

Yeah, but you always have a nexus in your theory.

All you’ve got to have is a disagreement in effect for whatever reason, followed by some basis to fear persecution, and the condition for political opinion has been satisfied.

James Robertson:

–Your Honor, I don’t think… I don’t think that it is quite that broad.

On the facts of this case, which I need to come back to, we don’t have just a disagreement and a fear of persecution.

We have a disagreement, we have a disagreement with a political faction, we have a disagreement with a political faction who–

David H. Souter:

Well, it’s always going to be with a political faction, isn’t it?

James Robertson:

–Yes, but this political faction was carrying machine guns and was masked.

David H. Souter:

Well, that… that simply means that they have… that they do have the means to persecute, but I mean, all of these disagreements are going to be with somebody who holds some political view, and who must have some means of persecuting or he wouldn’t have any case to fear it.

James Robertson:

Well, if I may… if I may refer to the hypothetical that was put about the Mafia, if an applicant has a political opinion about anything, and is persecuted by the Mafia, it may very well be that on that hypothetical there is no nexus at all between the persecution and the political opinion.

David H. Souter:

Because the Mafia is not a political organization?

James Robertson:

We will assume that, if we may, here.

I… I will… try to assume–

David H. Souter:

I mean, you’re assuming it, I think.

James Robertson:

–I will assume it for purposes of that hypothetical discussion.

But in this particular case, we have guerrillas who are a political faction, who are impressing, dragooning people for… for their purposes, political… and by the way, Justice Souter, the purposes for which the dragooning and impressing may be more than just political.

They may be more than just overbearing the will of the alien.

They may, indeed, be for many purposes, including the Government’s argument that they are trying to fill up their ranks.

But to the extent that the threat of punishment of the alien is on account of… is because of… after and because of his refusal to join them, then the 19-year-old alien looking at the situation… the machine guns, the masks, the threat… may reasonably conclude that he’s been threatened, that he’s been threatened because of his political views, and that if he returns, he may very well be not only conscripted but murdered because of–

Antonin Scalia:

Is there… is there any indication in the record that they cared, so long as he picked up a machine gun and shot it at… at the people these guerrillas were fighting, that they cared what his political views were?

James Robertson:

–That they cared–

Antonin Scalia:

I mean, you… you draw no distinction between his agreement to fight alongside them and his agreeing with their political views.

Is there any indication in the record that they cared at all what his views about Marxism, about capitalism, about whatever these guerrillas are fighting about might be?

James Robertson:

–Your Honor, I think I have to answer that question no, as it’s… as it’s asked.

There… there need not, indeed, be any… anything specific in the record.

Indeed, in the case of Canas, the BIA–

Antonin Scalia:

Well, why need there not be, unless you say, you know, being afraid of… of dying and being afraid of engaging in machine gun battles is a political view?

James Robertson:

–That is not our position, Your Honor, that being afraid of dying and engaging in machine gun battles is the political view.

We rest at this point, because of the… the record, indeed, was… was cut off at the… at the immigration status in a way I’ll explain in a moment, but as the record now stands, we rest, as the Ninth Circuit did, on the inference that may be drawn from all of the facts; the political faction, the threats, the refusal, and fleeing the country, and… and what he now fears, and on the State Department letter, which–

Antonin Scalia:

Well, I don’t see the in… I mean, the only inference I see is that they wanted people to fight alongside them, and… and I have no reason to think that they cared whether this fellow even understood the political ramifications or what they were fighting for politically.

They just wanted somebody to shoot bullets.

James Robertson:

–I… I suspect, Justice Scalia, that in no case will the guerrillas actually enter into the intellectual exercise of deciding what is in the mind of… of the person they are trying to dragoon, but if he demonstrates resistance to them, they, one may reasonably infer, will conclude that he is against them, and once concluding that he is against them, they will deal with him.

It is that fear of what they will do when they deal with him which is the persecution–

Antonin Scalia:

Well, what… what is the–

James Robertson:

–Inferentially on account–

Anthony M. Kennedy:

–What is the basis for that empirical assessment?

Maybe they sought out this 19-year-old because they thought he was very reliable.

He was… tended to be, maybe, antigovernment.

That’s why they wanted him.

He said, I don’t want to get involved with this.

James Robertson:

–Well, that is not… of course, we don’t see the inflections that happened at the… at the–

Anthony M. Kennedy:

Well, but you have to show this on the record.

You’re asking us to make an empirical assumption that any time someone doesn’t join a guerrilla movement and is punished, that the guerrillas will do so because they assume he has a political opinion, but I just don’t see the empirical basis for that.

James Robertson:

–Well, I’m actually asking the Court to affirm what the Ninth Circuit found, which was on a substantial–

Anthony M. Kennedy:

Well, what was the Ninth Circuit’s empirical basis, then?

James Robertson:

–On a substantial evidence basis that there was no evidence for the finding that there was nothing.

The Ninth Circuit made a substantial evidence finding on the meaning of the State Department letter, and what the State Department letter says, and the Ninth Circuit held that… that the State Department letter established, contrary to the conclusion of the BIA, that the State Department letter did establish the existence in Guatemala of armed conflict and forced conscription.

Now from that, it is inferential… it is inferential from all… from the facts and circumstances that I’ve already laid out and I won’t repeat at great length about the masks and the machine guns.

Anthony M. Kennedy:

Well, but… but the board doesn’t make the inference and the Ninth Circuit does, and I… I take it we’re as well-positioned as the Ninth Circuit to disagree with that.

James Robertson:

Well, Your Honor, what the board… the reason the board, in… in our submission, the reason the board does not make this inference is that the board has decided, in a series of cases beginning with Maldonado, right after Cardoza-Fonseca, the board has made a series of judgments about what it is guerrillas do and why they do it.

And in the Maldonado case, Maldonado case… Maldonado-Cruz case, which was the first of these post-Cardoza-Fonseca cases, what the board said was, it may be… it may be that the guerrillas have reasons other than political ones, and holding at page 517 of the Maldonado-Cruz BIA opinion, there is an implicit presumption of a legitimate basis for punishment.

Now, the erection of presumptions in that manner by the BIA defeats the well-founded fear standard that was articulated in… in Cardoza-Fonseca.

In effect, it says, you may be afraid of something.

We’ll concede that you have a well-founded fear of something, but you must now find by clear probability of some kind, or you must overcome our presumption in order for us to find that it’s on account of political opinion.

Byron R. White:

Here the BIA said that any fear the respondent has… that he… that he may have of being harmed by them, the guerrillas, is only speculative, particularly where no evidence has been submitted to show that the guerrillas harm those who refuse their evidence… their invitation to join them, and that this harm would amount to persecution rather than retribution.

Now, they didn’t apply any presumption.

They just found, as a matter of fact, there was… that there was just a failure of proof.

Now, what… what basis did the… or what standard should the Ninth Circuit apply in reviewing that… that… that finding that there was a lack of evidence?

James Robertson:

Your Honor, the Ninth Circuit applies, and I believe all the circuit courts apply, the substantial evidence test to factual findings of the BIA.

Byron R. White:

So they say… they say the board was just plain wrong in saying there wasn’t any evidence?

James Robertson:

Yes, well, that particular part of the opinion that you’re reading from, Justice White, deals with the question of whether there is a fear of anything at all, and indeed is why the case went to the Ninth Circuit.

Byron R. White:

That’s exactly right… exactly right, let alone any… unless there’s some well-founded fear of… of persecution of any kind, he won’t get to first base–

James Robertson:

I… yes, that’s clearly the case.

Byron R. White:

–and that’s exactly what this finding says.

James Robertson:

That’s clearly the case, and that’s the way the case went to the Ninth Circuit, without any of this question about political opinions, by the way.

William H. Rehnquist:

Exactly.

Isn’t it true, Mr. Robertson, that the Ninth Circuit opinion reads, political opinion to be not the political opinion of the applicant, but the political opinion of the guerrilla group?

James Robertson:

You can read the language of the Ninth Circuit to say that, Your Honor.

I submit, in our submission, that the… what the Ninth Circuit has really done is to demonstrate its inference here.

William H. Rehnquist:

Why was the Ninth Circuit drawing inferences?

It’s up to the BIA to draw the inferences.

James Robertson:

Well, that’s… that’s clear, Your Honor, but the… but the Ninth Circuit’s opinion in… in this case discusses the threat, discusses the country conditions, discusses the country conditions, discusses the political opinion of the applicant, Elias Zacarias, and then determines that the threat was not demonstrated to be for personal reasons, was not demonstrated to be for any other reason, the INS came forward with nothing–

Byron R. White:

So the Ninth Circuit just disagreed with the finding I just read… read to you?

They say there is… the BIA was just wrong in assessing the evidence?

James Robertson:

–The Ninth Circuit found that there was indeed a threat of… of a reasonable fear of persecution.

The Ninth Circuit said the persecution he reasonably feared was kidnapping, and did not reach, really, the question that we think is also presented by this fact… by these facts, that he reasonably feared kidnapping, assassination, murder, because that’s what he said that he feared.

Now, Justice White, as I understand it, the Government has, indeed, conceded at this stage that there is a well-founded fear of persecution.

The… the Government says that issue is not before us.

There’s nothing left here, now, but the question of whether the… the well-founded fear of persecution is on account of political opinion.

Byron R. White:

So you think the Government has conceded that the Ninth Circuit correctly found, contrary to the BIA, that there was a well-founded fear of… of being harmed?

James Robertson:

I… I take the Government’s statement of… the first part of its brief as to what is left for this Court to decide to be such a concession, yes, I do.

Antonin Scalia:

Mr. Robertson, you described a little earlier the decision of the Ninth Circuit as saying that there was simply no basis for the finding that there was no evidence of… of persecution on the basis of political belief.

That’s how you described it, and as I understand it, it’s not up to the board to find that there was no evidence of persecution, it… it’s that asylum is denied unless there is evidence of persecution.

In other words, it’s up to the applicant to show evidence of persecution, and… and it seems to me… I mean, you may call it a presumption if you like, but I would call it a burden of proof.

It’s up to the applicant to show that there was a well-grounded fear of persecution on the basis of his political belief.

It’s not up to the board to establish evidence to the contrary.

Isn’t that right?

James Robertson:

It is.

The applicant does, indeed, have the burden of establishing his entitlement to the status.

There isn’t any question about that, Justice Scalia, but–

Antonin Scalia:

And if the evidence is in equipoise, he has not made his case.

Isn’t that right?

James Robertson:

–Well, if there were any evidence on the other side, it might be in equipoise, Your Honor, but in this case there is no equipoise.

The Government presented no evidence.

Indeed, the Government cut off the attempt of Elias Zacarias’ counsel to explain more about what it was that… that he feared.

At page 6(a) of the opposition to certification in the records, there is this question and answer:

“Do you have any idea what would have happened to you if you would have returned and… if they would have returned and found you again? “

“Objection, Your Honor, speculative. “

by Government counsel.

“Sustained”, and there was… there was no opportunity for–

Antonin Scalia:

I don’t know that that goes to the point that we’ve been discussing here.

I think it’s conceded that they were going to hurt him for not joining.

He’s going to be hurt.

I don’t think the Government’s arguing that, that he… that he had, or did not have a well-grounded fear of being hurt… kidnapped, killed, injured, whatever.

James Robertson:

–Well then… then, Your Honor–

Antonin Scalia:

And that’s all that question went to, not whether there was a political motivation behind it.

James Robertson:

–Then… then the question is, if the Court takes that much as conceded, as indeed do we, then the only question is, for what reason would he be hurt, and then, in our submission, the statute compels looking at the question through the eyes of the applicant, who is the one after all who has the fear, and is his subjective fear well-founded?

He knows he’s got a politically motivated guerrilla band in front of him.

He knows they’re going to hurt him.

He knows he has told them he’s not going to join them.

Why would they hurt him?

Now, the BIA says–

Antonin Scalia:

I assume because he would not join them.

James Robertson:

–Well, but, because he would not join them… because he would not join them demonstrates to them that he’s not for them, therefore he’s against them.

John Paul Stevens:

May I ask at this point… the question’s kind of troublesome in this case.

As I understand the record, both sides were supposed to be engaged in forced recruiting, the government forces as well as the guerrillas, and if you had a man precisely positioned as this one, only he had refused to join the official army and received the same threats, had the same fear, and so forth, would he be coming within the statute?

James Robertson:

There is a good deal of BIA decisionmaking on that subject, Justice Stevens.

I think the answer is that there’s a clear distinction there between whether it is the government or not.

It could be persecution, if the government… if the government wanted him–

John Paul Stevens:

Well, I just… the record’s exactly like this record, but it’s just… you change the side.

James Robertson:

–If the record is exactly like this record, if what he fears is being taken out and shot, yes, it would be persecution.

John Paul Stevens:

Even if the government did it?

James Robertson:

Even if it were the government.

John Paul Stevens:

And instead of being shot, they were merely going to imprison him for draft evasion for 30 days?

James Robertson:

If there were proportionality and due process by a legitimately constituted government it would not be persecution.

That is–

Antonin Scalia:

Why not?

He’s against them.

I mean, he is not with them, he’s against them.

What–

James Robertson:

–Well, he is… from his point of view, the result might be the same.

From his point of view the result might be the same, but the cases and the established BIA jurisprudence, which we do not contest here, does draw the distinction.

Indeed, if… if I may mention before my–

John Paul Stevens:

–It turns, I gather, on what the word persecution means.

John Paul Stevens:

If it’s officially authorized, it’s not persecution within the meaning of the statute, but if it’s unofficially guerrilla warfare, it is.

James Robertson:

–If it’s officially authorized, if it’s prosecution, and if it’s prosecution that doesn’t violate international standards in some way, then it may… then it… then it may not qualify as persecution within the act.

I call the Court’s attention to the Salim case.

The Salim case is a case in which an Afghani, a refugee, was… was granted asylum… actually, he wasn’t granted asylum, but his refugee status was recognized as far back as 1982 on no ground except that he feared conscription in the Afghani Army, which was not controlled by Afghanistan but by the Soviet Union.

That was the entire… the only basis for the Salim recognition, and the Salim case has vitality today, despite what the Government says about its being a dead letter.

It is still being cited by the BIA, and it still stands for the proposition that there is a distinction between dragooning and conscripting people by legitimate governments and by rebel bands like the guerrillas.

It is the Salim case and the… and the inconsistency established by the… by the Salim case, particularly by the Salim case, that underlines the point in our brief that this is certainly not a case in which the decisions of the BIA are entitled to any deference under the… under the Chevron standard.

Byron R. White:

Well, suppose the… suppose everyone agreed that there was a well-founded fear that if he returned to Guatemala he would face forced recruitment by one side or the other and forced recruitment would mean kidnapping him and carrying him off and giving him a gun?

Now if that’s all that was proved, you… you wouldn’t have made out a case under the statute, would you?

James Robertson:

Your Honor, our position–

Byron R. White:

Can’t you just say yes or no?

James Robertson:

–I’ll answer that question no, we would not, if only forced conscription were involved.

Byron R. White:

And he… he still has to prove some connection with… with political belief, I suppose?

James Robertson:

He has to prove, but… he has to prove some connection, some nexus between a political belief and the persecution that he fears, yes.

In our view that nexus is clearly established by his political act of refusal.

Byron R. White:

Well, if he fears… if he fears recruitment by either side, it’s kind of hard to think that it’s because of his political beliefs.

James Robertson:

That would be neutrality, Your Honor, and the Bolanos-Hernandez case and others deal with the neutrality question, and whether that is a political opinion.

Is it?

In our view, neutrality is a political opinion, but it’s not… but it’s not an issue presented by the facts of this case.

William H. Rehnquist:

Thank you, Mr. Robertson.

James Robertson:

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Ms. Mahoney, you have 2 minutes remaining.

Maureen E. Mahoney:

I’d like to stress that the statute uses motive, not legality, to distinguish between refugee status.

It is the motive of the government or the uncontrolled group in inflicting the punishment that controls, and if this Court finds that the refusal to serve manifests a political opinion, then there’s no basis to distinguish draft resisters.

They, too, would have manifested a political opinion.

John Paul Stevens:

Yes, but they might not be persecuted, if you just enforce… enforce a generally applicable law.

Maureen E. Mahoney:

But, Your Honor, it’s the motive, and if the motive is to punish them for the refusal–

John Paul Stevens:

Well, the motive goes to the on account of part, but it doesn’t go to the word persecution.

Maureen E. Mahoney:

–It… persecution also has motive within it, Your Honor.

Persecution has long been defined to include an intent–

John Paul Stevens:

Well, what if… what if one of the elements of persecution is acting in conflict with established law?

Maureen E. Mahoney:

–No, Your Honor, it is not.

For instance, a government might well have a law on its books that says that anyone who is found practicing the Christian faith shall be thrown into jail.

That would be lawful, but it would nevertheless be persecution within the meaning of this act.

It is the intentional infliction of injury for the purpose of making him suffer.

John Paul Stevens:

Yes, but you have to have… I’m assuming a nondiscriminatory law.

Maureen E. Mahoney:

Well, if we have a nondiscriminatory law, Your Honor… the point here is that if the refusal to serve is itself the expression of a political opinion, then throwing someone into jail for that would be punishment for political opinion.

John Paul Stevens:

I don’t–

Maureen E. Mahoney:

Why is it… our position is, why is it–

John Paul Stevens:

–It wouldn’t be persecution on account of political opinion, is what I’m suggesting.

Maureen E. Mahoney:

–Well–

John Paul Stevens:

It would be punishment, I agree–

Maureen E. Mahoney:

–But then–

John Paul Stevens:

–But the statute doesn’t use the word punishment.

Maureen E. Mahoney:

–The question then is why is not… why is it persecution for the guerrillas to do it, if the motive is the same?

The guerrillas’ motive is to field an army, just as is the government’s.

John Paul Stevens:

Because, I say, there’s an ingredient of, in accordance with a nondiscriminatory law, and they are not acting in accordance with a nondiscriminatory law.

Maureen E. Mahoney:

Thank you.

William H. Rehnquist:

Thank you, Ms. Mahoney.

The case is submitted.