Immigration and Naturalization Service v. Stevic

PETITIONER: Immigration and Naturalization Service
LOCATION: Eleventh Judicial Circuit of Florida - Dade County

DOCKET NO.: 82-973
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 467 US 407 (1984)
ARGUED: Dec 06, 1983
DECIDED: Jun 05, 1984

Ann L. Ritter - on behalf of the Respondent
Kenneth Steven Geller - on behalf of the Petitioner

Facts of the case


Media for Immigration and Naturalization Service v. Stevic

Audio Transcription for Oral Argument - December 06, 1983 in Immigration and Naturalization Service v. Stevic

Warren E. Burger:

We'll hear arguments next in Immigration and Naturalization Services v. Stevic.

Mr. Geller, you may proceed whenever you are ready.

Kenneth Steven Geller:

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

The issue in this case is whether Congress, when it passed the Refugee Act of 1980, intended to change the substantive standard that an alien must meet under Section 243(h) of the Immigration and Nationality Act in order to avoid deportation on the ground that he would be subject to persecution.

Although the Second Circuit stated that the matter was not free from doubt, that court held that Congress in 1980 had intended to make a significant change in the substantive standard under Section 243(h).

We believe that the Court of Appeals interpretation of the statute is plainly inconsistent with Congress' intent, and that it will create harmful problems for the administration of the immigration laws.

The facts here may be briefly stated.

Respondent Stevic came to this country as a nonimmigrant visitor from Yugoslavia in 1976.

Respondent stayed here beyond the time authorized in his visa, and he was therefore ordered deported in December 1976, but Respondent at that time designated Yugoslavia as the country to which he wished to be deported.

Respondent did not leave the United States as a result of this deportation order; instead, in 1977 he moved to reopen his deportation proceedings, to apply for withholding relief under Section 243(h).

Respondent contended that he had recently joined a Serbian anticommunist organization in Chicago and that as a result, he feared he would be subject to persecution on the basis of his political opinions if he were to be returned home to Yugoslavia.

The Immigration Judge and the Board of Immigration Appeals denied the motion to reopen on the grounds that Respondent's application consisted largely of conclusory assertions, and that Respodent hadn't made a sufficient showing that he was likely to be singled out for persecution if he went home to Yugoslavia.

Respondent did not appeal that decision.

In February 1981 the INS again ordered Respondent to surrender for deportation, and he responded by filing a second motion to reopen his deportation proceedings in order to renew his request for withholding relief under Section 243(h).

The Board of Immigration Appeals denied this request in September 1981 saying that Respondent's second motion to reopen was identical to his first, and that he is still hadn't submitted... he still had submitted evidence only of general conditions in Yugoslavia and hadn't provided any direct evidence that he personally would be subject to persecution if he were sent home.

I should add that at no time during the proceedings on the second motion to reopen before the Board of Immigration Appeals, which took place in 1981, did Respondent claim that the Refugee Act of 1980 had changed the substantive standard for judging 243(h) claims.

Now, Respondent sought review of the BIA's denial of the second motion to reopen, and as I said a moment ago, the Court of Appeals held that Congress in 1980, when it passed the Refugee Act, had intended to substantially liberalize the standard that an alien must satisfy under Section 243(h).

The Court of Appeals declined to announce what in its view was the proper standard, but it did state that deportation must now be withheld upon a showing far short of the showing that had to be made prior to 1980.

The Court of Appeals then remanded Respondent's case to the Board of Immigration Appeals for further proceedings under this new but undefined legal standard that the Second Circuit had announced.

Now, I think it would be useful to begin by briefly summarizing the government's position because it is really quite a straightforward one and by going back and discussing at somewhat greater length some of the key points.

For at least the last 20 years, the Immigration and Naturalization Service, the Board of Immigration Appeals and reviewing courts have applied a consistent legal standard in judging applications for withholding relief under Section 243(h).

An applicant under Section 243(h) has had to make a subjective showing and an objective showing.

The test has required an applicant to show both that he fears persecution or feared persecution in the country to which he would be deported on the basis of one of the statutorily enumerated grounds... that is the subjective showing... and that his fear was supported by objective evidence demonstrating a realistic likelihood that he would be singled out for persecution if he were deported.

Byron R. White:

Aren't there clear probabilities?

Kenneth Steven Geller:

Well, the terms "clear probability" and "realistic likelihood" have been used interchangeably by the Board of Immigration Appeals and the Court.

Byron R. White:

So as long as you don't assign any difference to these words, difference in words, that's been a consistent standard.

Kenneth Steven Geller:

Yes, and I think the Board and the courts have used the words interchangeably over the years, which shows that there is no substantive difference in these catchword phrases.

They don't describe the legal standard; they merely refer to it.

Warren E. Burger:

Well, one standard, one use of words might declare it a minimum hurdle and another one declare something else.

Kenneth Steven Geller:

Well, the Board has always taken this to be the minimum standard that the alien must meet.