Administrative Law Keyed to Lawson
INS v. Cardoza-Fonseca
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The Act provided two ways that otherwise deportable aliens who claimed they would be persecuted if deported could seek relief: 1] Section:243(h) required the Attorney General to withhold deportation if an alien could demonstrate that his “life or freedom would be threatened” on account of one of the listed factors, if deported; and 2] Section:208(a) authorized the Attorney General, in his discretion, to grant asylum to an alien who was unable or unwilling to return to his home 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.” In Stevic, a prior case, the Court rejected an alien’s contention that the “well founded fear” standard under Section:208(a) applied to Section:243(h). This case involved a 38-year-old Nicaraguan citizen (Respondent) who entered the United States as a visitor but remained longer than permitted. INS commenced deportation proceedings against her, and she requested withholding of deportation pursuant to Section:243(h) and asylum as a refugee under Section:208(a). Respondent’s brother was tortured and imprisoned due to political activities, and she claimed that she, too, would be tortured if she returned to Nicaragua. The Immigration Judge applied the same standard to both requests, and found that Respondent had not established a “clear probability of persecution” and was not entitled to relief. The Board of Immigration Appeals (BIA) agreed. In the Court of Appeals for the Ninth Circuit, Respondent argued that she was entitled to asylum under Section:208(a), claiming that INS erred in applying the “more likely than not” standard of proof from Section:243(h) to her Section:208(a) asylum claim. Respondent asserted that INS should have applied the more generous “well founded fear” standard instead. The Court of Appeals agreed.
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