IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. PREDRAG STEVIC No. 82-973 In the Supreme Court of the United States October Term, 1982 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 Second Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Second Circuit TABLE OF CONTENTS Opinions below jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E Appendix F OPINIONS BELOW The opinion of the court of appeals (App. B, infra, 4a-25a) is reported at 678 F.2d 401. The order of the court of appeals denying rehearing (App. A, infra, 1a-3a) is not reported. The decisions of the Board of Immigration Appeals (App. D, infra, 27a-31a; App. E, infra, 32a-36a) are not reported. JURISDICTION The judgment of the court of appeals (App. C, infra, 26a) was entered on May 5, 1982, and a petition for rehearing was denied on July 29, 1982 (App. A, infra, 1a-3a). On October 22, 1982, Justice Marshall extended the time in which to file a petition for a writ of certiorari to and including December 10, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED 8 U.S.C. (Supp. V) 1253(h)(1) provides: 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 the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 et seq., changed the standard an alien must meet in order to avoid deportation on the ground that he would be subject to political persecution in the country of deportation. STATEMENT 1. Respondent is a 32-year old native and citizen of Yugoslavia. He entered the United States on June 8, 1976, as a nonimmigrant visitor authorized to remain until July 25, 1976. Because he stayed in this country beyond that date without permission, deportation proceedings were instituted against him in November 1976. At the deportation hearing, respondent admitted deportability and requested and was granted the privilege of voluntarily departing the United States by February 16, 1977. Respondent designated Yugoslavia as the country to which he wished to be deported. App. B, infra, 5a-6a; R. 179, 182, 184-185. /1/ Respondent did not leave this country by February 16, 1977. Rather, in January 1977, he married a United States citizen, who filed a visa petition on his behalf. The Immigration and Naturalization Service approved the visa petition on April 5, 1977. Five days later, however, respondent's wife was killed in an automobile accident, which automatically revoked the INS' approval of the visa petition. See 8 C.F.R. 205.1(a)(2). Respondent requested the district director of the INS to reinstate the approval, but that request was denied on August 11, 1977, and respondent was ordered to surrender for deportation. App. B, infra, 6a-7a; R. 159-160. 2. Instead of surrendering or seeking review of the district director's decision, respondent moved to reopen his deportation proceedings in order to apply for withholding of deportation under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. 1253(h). /2/ Respondent alleged that he feared persecution and imprisonment if he were returned to Yugoslavia because of his friendship with members of, and assistance in the work of, Ravna Gora, an anticommunist organization, and because his father-in-law, who was a member of Ravna Gora, had been imprisoned in Yugoslavia on account of his anticommunist activities when he visited there as a tourist in 1974. Respondent submitted his affidavit in support of these allegations. App. B, infra, 7a-8a; R. 156. /3/ Respondent explained that he had not requested withholding of deportation at his deportation hearing, and had designated Yugoslavia as the country to which he wished to be deported at that time, because he had not become involved in anticommunity activities until after his marriage, which occurred after he had been found deportable. /4/ On October 17, 1979, an immigration judge denied respondent's motion to reopen his deportation proceedings. Characterizing respondent's affidavit as self-serving and conclusory, the judge held that respondent had failed to provide any substantial evidence that he would be subjected to persecution in Yugoslavia. App. B, infra, 8a; R. 150-152. On January 18, 1980, the Board of Immigration Appeals dismissed respondent's appeal from the immigration judge's decision and denied respondent's motion to reopen (App. E, infra, 32a-36a). The Board noted (id. at 34a-35a) that "(a) motion to reopen based on a section 243(h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual (alien)." It concluded that respondent had failed to make the required showing because evidence of his membership in Ravna Gora, his father-in-law's incarcertation in Yugoslavia, and the conviction in Yugoslavia of an unrelated American citizen associated with an anticommunist organization did not prove that respondent himself would be singled out for persecution if he returned to Yugoslavia. App. E, infra, 35a-36a. /5/ Respondent did not seek review of this decision of the Board. 3. In February 1981, the INS again ordered respondent to surrender for deportation. Once again, respondent neither complied nor sought an extension of time. He was arrested by INS officers in Chicago on July 17, 1981, and flown to New York for deportation. While awaiting a connecting flight to Yugoslavia, respondent attempted to escape. Accordingly, he was detained by the INS and his deportation was rescheduled. App. B, infra, 8a-9a. On July 21, 1981, respondent filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. The district court limited its review to the question whether the district director had abused his discretion by refusing to reinstate approval of the visa petition filed by respondent's late wife on his behalf. The district court concluded there had been no abuse of discretion and denied respondent's petition. App. B, infra, 9a. While detained by the INS, respondent also filed a second motion to reopen his deportation proceedings in order to renew his request for withholding of deportation under Section 243(h). On September 3, 1981, the Board denied respondent's motion (App. D, infra, 27a-31a). /6/ The Board observed that although the basis for respondent's second motion to reopen -- that he would be persecuted in Yugoslavia because of his associations with the Ravna Gora organization -- was identical to that of his prior motion to reopen, respondent had made no showing that the evidence submitted in support of his second motion was unavailable to him and could not have been discovered or presented at a former hearing or that conditions in Yugoslavia had changed substantially since the earlier motion (id. at 30a). See 8 C.F.R. 3.2; Kashani v. INS, 547 F.2d 376, 380 (7th Cir. 1977). /7/ In addition, the Board held that respondent had failed to make a prima facie showing that he would be singled out for persecution if he were deported to Yugoslavia. App. D, infra, 31a. The Board noted (ibid.) that "(a) motion to reopen based upon a section 243(h) claim of persecution must contain prima facie evidence that there is a clear probability of persecution to be directed at the individual." The Board concluded that respondent had failed to make the required showing because the journalistic articles submitted by respondent (see note 7, supra) were "of a general nature, referring to political conditions in Yugoslavia, but not specifically relating to respondent," and the affidavits and petitions submitted by individual Yugoslava (see ibid.) "express an opinion (that respondent will be imprisoned if he returns to Yugoslavia) but provide no direct evidence to link the respondent's activities in this country and the probability of his persecution in Yugoslavia." App. D, infra, 31a. /8/ 4. In a consolidated proceeding in the court of appeals, respondent appealed the district court's denial of his habeas petition and sought review of the Board's most recent denial of his motion to reopen. The court of appeals upheld the district court's denial of respondent's petition (App. B, infra, 10a-11a). However, it reversed the Board's denial of respondent's motion to reopen, concluding that the Board had applied too stringent a standard in evaluating respondent's claim of persecution in support of his request for withholding of deportation (id. at 11a-25a). While acknowledging that "the matter is hardly free from doubt" (App. B, infra, 12a), the court of appeals held that the enactment of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 et seq., represented the culmination of a process, which had begun with the United States' accession in 1968 to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223 et seq., T.I.A.S. No. 6577, of modifying the standard applicable to requests for relief under Section 243(h). App. B, infra, 21a. In the court's view (id. at 14a), the "'well-founded fear of prosecution'" language contained in the Protocol "seems considerably more generous than the 'clear probability' test applied under Section 243(h)." Accordingly, without providing any additional guidance concerning the content of the new standard, /9/ the court concluded (App. B, infra, 23a) that "under Section 243(h), deportation must be withheld, upon a showing far short of a 'clear probability' that an individual will be singled out for persecution." It remanded the case to the Board for a "plenary hearing under the legal standards established by the Protocol." App. B, infra, 25a (footnote omitted); App. C, infra, 26a. REASONS FOR GRANTING THE PETITION The decision below squarely conflicts with a recent decision of another court of appeals concerning the standard an alien must meet in order to avoid deportation on the ground that he would be subject to political persecution in the country of deportation. In Rejaie v. INS, 691 F.2d 139 (1982) (App. F, infra, 37a-54a), the Third Circuit correctly held that neither the United States' accession to the United Nations Protocol in 1968 nor the enactment of the Refugee Act of 1980 altered the standard applicable to claims for withholding of deportation under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. (Supp. V) 1253(h). Shortly thereafter, the Sixth Circuit rendered a decision adopting the position of the court below, without even alluding to the Third Circuit's decision to the contrary. Resolution of the question on which these courts of appeals have differed is essential, in view of the need for a uniform application of the Nation's immigration laws. In addition, the decision below, if permitted to stand, will impose a substantial administrative burden on the Board and the INS. The court of appeals' ruling renders the more than 9,000 applications for asylum or withholding of deportation that have been denied since the passage of the Refugee Act of 1980 subject to challenge on motions to reopen and clouds the adjudication of the thousands of such cases now undergoing initial administrative review. /10/ 1. There is a clear conflict among the courts of appeals concerning the question presented by this case. In Rejaie v. INS, 691 F.2d 139 (1982) (App. F, infra, 37a-54a), the Third Circuit held that there is no practical difference between the phrases "clear probability of persecution" and "well-founded fear of persecution" and therefore that the standard applicable to claims for withholding of deportation under Section 243(h) was not affected by the United States' accession to the Protocol in 1968 or the passage of the Refugee Act of 1980. App. F, infra, 45a-50a. In so holding, the court expressly rejected the reasoning, as well as the conclusion, of the Second Circuit in this case. Id. at 50a-54a. /11/ One month later, the Sixth Circuit, in a per curiam opinion containing virtually no analysis, adopted the position espoused by the court below. In Reyes v. INS, No. 81-3157 (Nov. 18, 1982), slip op. 4, the court quoted from the Second Circuit's decision and concluded: Since the Board applied the more stringent clear-probability test, the holding cannot stand. It is admitted that there is some evidence that Reyes may be subject to persecution. All the Board held was that she had not shown, by a clear probability, that she would specifically be subject to it. Since something less than that showing is now required, we find that the Board erred. /12/ Thus, the courts of appeals are in disagreement concerning the standard an alien must meet in order to avoid deportation under Section 243(h). In view of the significant consequences of the determination of a withholding of deportation or asylum claim, that determination should not depend upon the circuit in which the applicant is located. Accordingly, this Court should resolve the conflict. 2. The decision below, if permitted to stand, will impose a substantial administrative burden on the Board and the Service. The INS estimates that, since the enactment of the Refugee Act of 1980, more than 9,000 applications for asylum or withholding of deportation have been denied. The court of appeals' decision, which holds that the wrong standard was applied in evaluating the evidence of persecution presented in those cases, renders all of them subject to attack on motions to reopen. To be sure, not all of these applications were made in the Second Circuit. Nevertheless, as the Sixth Circuit's decision in Reyes makes abundantly clear, the impact of the decision below will not be limited to the Second Circuit. Rather, aliens nationwide, anxious to remain in this country by any means possible, can be expected to seize on the decision below in an attempt, at the least, to delay their inevitable deportation. Indeed, we are advised that the bulk of the asylum and withholding applications now before the Board contain requests for a remand or reconsideration in view of the decision below. /13/ Moreover, the court of appeals' decision clouds the adjudication of the thousands of withholding and asylum cases that are currently undergoing initial administrative evaluation and review. /14/ So long as the standard for assessing these claims remains unresolved, the number of cases that may require reconsideration in the future will continue to increase. These administrative problems are exacerbated by the fact that the Second Circuit struck down the "clear probability" standard but refused to provide any guidance concerning what it would consider to be an appropriate standard (see page 8 & note 9, supra). Thus, even if the Board and the INS should reconsider and evaluate all post-Refugee Act claims in view of the decision below, there is no assurance that such an attempt, applying "a more generous standard than the 'clear probability' test" (App. B, infra, 15a), would satisfy the Second Circuit. In these circumstances, this Court's intervention is necessary in order to enable the government to administer the immigration laws efficiently and fairly. 3. Finally, the decision below is manifestly incorrect. The alien has always had the burden of proving eligibility for withholding of deportation on the ground that he would be subject to political persecution in the country of deportation. /15/ Specifically, both the courts and the Board have held that an alien is entitled to relief under Section 243(h) only if he can "prove that there is a clear probability that he will be subjected to persecution if deported." Rosa v. INS, 440 F.2d 100, 102 (1st Cir. 1971); Shkukani v. INS, 435 F.2d 1378, 1380 (8th Cir.), cert. denied, 403 U.S. 920 (1971); Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967), cert. denied, 390 U.S. 1003 (1968); Lena v. INS, 379 F.2d 536, 538 (7th Cir. 1967). Hence, an alien is required to show by objective evidence that he is somehow different from others of his nationality who reside in his native land and that he would be singled out for persecution if returned there. See In re Surzycki, 13 I. & N. Dec. 261, 262-263 (BIA 1969); In re Joseph, 13 I. & N. Dec. 70, 71-72 (BIA 1968). /16/ The history of both the United States' accession to the United Nations Protocol and the enactment of the Refugee Act of 1980 makes clear that Congress intended neither of those events to alter this standard. a. In 1968, the Senate gave its advice and consent to the United States' accession to the Protocol, thereby agreeing that this country would not return a "refugee," defined as a person who has a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion," to the country of persecution. /17/ The Senate action was based on the express understanding that accession to the Protocol would neither alter nor enlarge the substance of our immigration laws; rather, accession to the Protocol was intended as a symbol and as encouragement to other nations to treat refugees within their borders in the same salutary manner in which the United States already dealt with those within its territory. See S. Exec. Rep. No. 14, 90th Cong., 2d Sess. 4, 6, 7, 10 (1968); S. Exec. Doc. K. 90th Cong., 2d Sess. III, VIII (1968). Specifically, Laurence A. Dawson, Acting Deputy Director of the Office of Refugee and Migration Affairs of the United States Department of State, assured the Senate Foreign Relations Committee that accession does not in any sense commit the Contracting State to enlarge its immigration measures for refugees. * * * The deportation provisions of the Immigration and Nationality Act, with limited exceptions, are consistent with (the asylum concept set forth in the Protocol.) The Attorney General will be able to administer such provisions in conformity with the Protocol, without amendment of the Act. S. Exec. Rep. No. 14, supra, at 6. In addition, the President and the Secretary of State adivsed that "(a)ccession to the Protocol would not impinge adversely upon established practices under existing laws in the United States." S. Exec. Doc. K, supra, at III, VII. In view of this unequivocal evidence of legislative intent, both the courts and the Board have held that the "well-founded fear" language contained in the Protocol represented no change from the preexisting "clear probability" formulation. See Kashani v. INS, 547 F.2d 376, 379 (7th Cir. 1977); In re Dunar, 14 I. & N. Dec. 310 (BIA 1973). See also Pierre v. United States, 547 F.2d 1281, 1288 (5th Cir.), vacated and remanded on other grounds, 434 U.S. 962 (1977); Ming v. Marks, 367 F. Supp. 673, 677- 679 (S.D.N.Y. 1973), aff'd, 505 F.2d 1170 (2d Cir. 1974). Indeed, between 1968 and 1980 the phrases "clear probability of persecution" and "well-founded fear of persecution" were used interchangeably to describe the objective showing required of an alien seeking withholding of deportation under Section 243(h). /18/ b. The legislative history of the Refugee Act of 1980 makes equally clear that that legislation also was not intended to alter the standard applicable to requests for withholding of deportation under Section 243(h). The Act first defines the term "refugee," for purpose of the Immigration and Nationality Act, to include "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 persecution on account of race, religion, nationality, membership in a particular social group, or political opinion * * *." 8 U.S.C. (Supp. V) 1101(42)(A). Both the House and Senate reports indicate that this definition was included simply to conform the language of the Act to that of the Protocol. H.R. Rep. No. 96-608, 96th Cong., 1st Sess. 9 (1979); S. Rep. No. 96-256, 96th Cong., 1st Sess. 4 (1979). The Refugee Act also modified Section 243(h) to require the Attorney General to withhold deportation if an alien can show that his "life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion." /19/ Like the new definition of "refugee," the modification of Section 243(h) was effected solely for the sake of clarity -- in order to conform its language more closely to that of the Protocol. Indeed, the drafters of the modification of Section 243(h) specifically noted that the standards that the Board and the courts had been applying under the prior formulation of Section 243(h) were fully consistent with the modification: Withholding of Deportation -- Related to Article 33 (the section of the Protocol that prohibits the expulsion or return of refugees) is the implementation of section 243(h) of the Immigration and Nationality Act. That section currently authorizes the Attorney General to withhold the deportation of any alien in the United States to any country where, in his opinion, the alien would be subject to persecution on account of race, religion, or political opinion. Although this section has been held by court and administrative decisions to accord to aliens the protection required under Article 33, the Committee feels it is desirable, for the sake of clarity, to conform the language of that section to the Convention. This legislation does so by prohibiting, with certain exceptions, the deportation of an alien to any country if the Attorney General determines that the alien's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. * * * As with the asylum provision, the Committee feels that the proposed change in section 243(h) is necessary so that U.S. statutory law clearly reflects our legal obligations under international agreements. H.R. Rep. No. 96-608, supra, at 18 (emphasis added). /20/ See also S. Rep. No. 96-256, supra, at 9 ("(t)he substantive standard is not changed; asylum will continue to be granted only to those who qualify under the terms of the United Nations Protocol Relating to the Status of Refugees"). Cognizant of Congress' intent not to alter the standard for relief under Section 243(h) by enactment of the Refugee Act, the Board, since passage of that legislation, has continued to use interchangeably the phrases "clear probability" and "well-founded fear" to describe that standard. See, e.g., In re Martinez-Romero, Interim Dec. No. 2872 (BIA June 30, 1981), slip op. 6-7 ("clear probability" and "well-founded fear"); In re Lam, Interim Dec. No. 2857 (BIA Mar. 24, 1981), slip op. 3-5 ("clear probability" used by immigration judge; "well-founded fear" used by the Board). As the Third Circuit correctly observed in Rejaie v. INS (App. F, infra, 50a), "(u)nder this analysis the Board takes into consideration an alien's apprehensions of persecution, but also requires him to produce objective evidence which demonstrates the realistic likelihood that he, or a class to which he belongs, will be persecuted. Generalized, undocumented fears of persecution or political upheaval which affect a country's general populace are insufficient bases for withholding deportation under Section 243(h)." See In re Martinez-Romero, supra, slip op. 6-7. At least in practice, therefore, the terms "well-founded fear" and "clear probability" are equivalent. Accordingly, by holding that the Refugee Act of 1980 requires withholding of deportation under Section 243(h) upon a showing "far short of a 'clear probability' that an individual will be singled out for persecution" (App. B, infra, 23a), the court of appeals has significantly liberalized the standard by which aliens' claims are to be assessed. In so doing, the court below has worked a fundamental change in the substance of our immigration laws -- a result that is in direct contravention of the intent underlying the United States' accession to the United Nations Protocol in 1968 and the enactment of the Refugee Act of 1980. /21/ Review by this Court is warranted for this reason as well. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General D. LOWELL JENSEN Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General BARBARA E. ETKIND Assistant to the Solicitor General MARGARET J. PERRY Attorney DECEMBER 1982 /1/ "R." refers to the certified administrative record in the court of appeals. /2/ In 1977, when respondent filed his first motion to reopen, 8 U.S.C. 1253(h) 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. The section was amended by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 et seq. See pages 17-18 & note 19, infra. /3/ While his motion to reopen was pending before the immigration judge, respondent also applied to the district director for asylum. The district director denied respondent's application on August 1, 1979 (App. B, infra, 8a). /4/ This explanation is not wholly convincing. Respondent subsequently testified that he knew his late wife for six months prior to their marriage in January 1977. Transcript of July 27, 1981 proceedings on respondent's habeas corpus petition, at 42. Accordingly, respondent is likely to have been aware of the circumstances surrounding his future father-in-law's imprisonment in Yugoslavia when he designated that country as the country to which he wished to be deported during his December 1976 deportation proceedings. Nevertheless, respondent did not mention his future wife or her father during his deportation hearing. See R. 176-183. /5/ On appeal to the Board of Immigration Appeals, respondent presented a newspaper clipping that reported that another Yugoslav, an American citizen unrelated to respondent, had been sentenced to five years' imprisonment in Yugoslavia. Respondent also submitted a copy of the oath of allegiance that he had taken when he joined an anticommunist organization in February 1977, and a declaration in which he stated his reasons for joining the organization. App. D, infra, 28a-29a; R. 148-149. /6/ A motion to reopen is addressed to the immigration judge if the outstanding order of deportation has not been appealed. 8 C.F.R. 103.5 and 242.22. However, where, as here, the deportation order has been upheld by the Board, the Board retains jurisdiction to rule on the motion. 8 C.F.R. 3.2 and 3.8. /7/ In support of respondent's second motion to reopen, he submitted various articles describing the political conditions in Yugoslavia in general and several affidavits of individual Yugoslavs who averred that respondent would be imprisoned if he returned to Yugoslavia. R. 27-139. /8/ Respondent also had claimed that if he returned to his home town, Gnjilane, Yugoslavia, he, as a Serbian, would be killed by the Albanians, who constituted a majority in the province and were attempting to secede from Yugoslavia. The Board rejected this claim as well, finding that "there is nothing to stop the respondent from going to another town in Yugoslavia should he feel threatened in his hometown. A respondent is deported to (a) country, not a city or province." App. D, infra, 31a. /9/ The court expressly left the formulation of an appropriate standard for development on an ad hoc case-by-case basis (App. B, infra, 24a): It would be unwise to attempt a more detailed elaboration of the applicable legal test under the Protocol. It emphasizes the fear of the applicant as well as the reasonableness of that fear. Its further development must await concrete factual situations as they arise. That development can be informed by traditional indices of legislative intent, by the (Office of the United Nations High Commissioner for Refugees,) Handbook (on Procedures and Criteria for Determining Refugee Status (Geneva 1979)) and by experience. /10/ Withholding of deportation relief under Section 243(h) simply prohibits the government from returning the alien to the country of persecution, whereas an alien who is granted asylum and thereafter is physically present in this country for one year is eligible to apply for permanent resident status. See 8 U.S.C. (Supp. V) 1159(b). Although asylum relief is discretionary under the Refugee Act of 1980, whereas withholding relief under Section 243(h) is mandatory for an eligible alien, the standards for eligibility for the two types of relief are identical. See In re McMullen, 17 I. & N. Dec. 542, 544 (BIA 1980), petition for review granted on other grounds, 658 F.2d 1312 (9th Cir. 1981); 8 U.S.C. (Supp. V) 1158(a); 8 C.F.R. 208.5. In addition, asylum requests that are filed with the immigration court "shall also be considered as requests for withholding exclusion or deportation pursuant to Section 243(h) of the Act." 8 C.F.R. 208.3(b). Accordingly, the decision in this case will govern applications for asylum as well as requests for withholding under Section 243(h). /11/ In particular, the Third Circuit identified the following errors made by the court below (App. F, infra, 52a): First, it attributed a stringency to the phrase "clear probability" that was not consistent with its own observation in Cheng Kai Fu v. INS, F.2d 750, 753 (2d Cir. 1967), that, under the "clear probability" standard, "(i)n order to forestall deportation the aliens must show some evidence indicating they would be subject to persecution," a formulation that closely approximates the (In re Dunar, 14 I. & N. Dec. 310 (BIA 1973)) definition of "well founded fear" as "realistic likelihood of persecution." 14 I. & N. Dec. at 319. Second, the court failed to appreciate the caselaw consensus, discussed supra, that the two standards were equivalent. Third, the court apparently misapprehended the legislative history of the 1968 accession to the Protocol and of the Refugee Act. /12/ Rejaie v. INS, supra, was rendered subsequent to oral argument in Reyes, but prior to the decision in that case. Although the INS supplied the Sixth Circuit with a copy of the Rejaie decision, that court's opinion does not mention the Third Circuit's ruling. /13/ The Board of Immigration Appeals estimates that in fiscal year 1980 it addressed 150 asylum or withholding of deportation issues; in FY 1981 it addressed more than 400 such issues; and in FY 1982 it addressed nearly 550. /14/ There are more than 120,000 applications for asylum pending before INS district directors and more than 12,000 asylum/withholding applications pending before immigration judges. /15/ 8 C.F.R. 242.17(c) provides in pertinent part: The (alien) has the burden of satisfying the special inquiry officer that he would be subject to persecution on account of race, religion, or political opinion as claimed. See also 8 C.F.R. 208.5. /16/ Contrary to the suggestion of the court below (App. B, infra, 15a-16a), the "clear probability" test was first enunciated by the courts (see Lena v. INS, supra), not by the BIA. /17/ The Protocol provides that all parties to it will undertake to apply Articles 2 through 34 of the 1951 Geneva Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150. See 19 U.S.T. 6225. (The United States is not a party to the Convention itself.) Article 33.1 of the Convention provides (19 U.S.T. 6276) that "(n)o Contracting State shall expel or return * * * a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Article 1 of the Convention, as modified by the Protocol, defines a "refugee" as one who, owing to 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it. See 19 U.S.T. 6261. /18/ See Fleurinor v. INS, 585 F.2d 129, 132, 134 (5th Cir. 1978) ("well-founded fear" used by immigration judge; "probable persecution" used by court); Martineau v. INS, 556 F.2d 306, 307 (5th Cir. 1977) ("clear probability" and "'well-founded fear'"); Henry v. INS, 552 F.2d 130, 131 (5th Cir. 1977) ("probable persecution" and "reason to fear persecution"); Pereira-Diaz v. INS, 551 F.2d 1149, 1154 (9th Cir. 1977) ("well-founded fear"); Kashani v. INS, supra, 547 F.2d at 378-379 ("well-founded fear" and "clear probability"); Zamora v. INS, 534 F.2d 1055, 1058 (2d Cir. 1976) ("likelihood of persecution" used by court; "'well-founded fear'" used by Board); Cisternas-Estay v. INS, 531 F.2d 155, 159 (3d Cir.), cert. denied, 429 U.S. 853 (1976) ("clear probability"); Daniel v. INS, 528 F.2d 1278, 1279 (5th Cir. 1976) ("probability of persecution"); Paul v. INS, 521 F.2d 194, 200 n.11 (5th Cir. 1975) ("'well-founded'" fear of persecution used by Board); In re Williams, 16 I. & N. Dec. 697, 700-701 (BIA 1979) ("well-founded fear," "probable persecution" and "likelihood of persecution"); In re Chumpitazi, 16 I. & N. Dec. 629, 633 (BIA 1978) ("well-founded fear" and "clear probability"); In re Francois, 15 I. & N. Dec. 534, 539 (BIA 1975) ("well-founded" fear); In re Chukumerije, 15 I. & N. Dec. 520, 522 (BIA 1975) ("well-founded fear"); In re Mladineo, 14 I. & N. Dec. 591, 592 (BIA 1974) ("well-founded" fear); In re Maccaud, 14 I. & N. Dec. 429, 434 (BIA 1973) ("reasonable fear" and "well-founded fear"); In re Bohmwald, 14 I. & N. Dec. 408, 409 (BIA 1973) ("well-founded fear"). /19/ The Section now reads (8 U.S.C. (Supp. V) 1253(h)(1)): 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. Compare the prior version set forth at note 2, supra. /20/ The House's modification of Section 243(h) was adopted by the Conference Committee. S. Rep. No. 96-590, 96th Cong., 2d Sess. 20 (1980). /21/ In connection with its recent consideration of the proposed Immigration Reform and Control Act of 1982, the House reiterated the congressional understanding that the 1968 accession to the Protocol did not expand the substantive rights of aliens (H.R. Rep. No. 97-890, 97th Cong., 2d Sess. 51 (1982) (emphasis added)): By accession to the Protocol the United States agreed not to deport a refugee "to frontiers or (sic) territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group, or political opinion." Some question has arisen as to whether the United States, by agreeing to the Protocol, intended to expand or modify the rights of aliens seeking asylum in the United States. The Committee is convinced that nothing in present law, nor in (the proposed legislation), should be construed as providing less protection than the Protocol. That is, the Committee views the Protocol as creating no substantive or procedural rights not already existing under current immigration law or under the law as modified by the Committee Amendment. The Committee thus agrees with the holding in Pierre v. United States (, supra,) wherein it is stated that "accession to the Protocol by the United States was neither intended to nor had the effect of substantially altering the statutory immigration scheme." Appendix Omitted