IMMIGRATION AND NATURALIZATION SERVICE, PETITIONER V. PREDRAG

   STEVIC

   No. 82-973

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the United States Court of Appeals for the
Second Circuit

   Brief for the Petitioner

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statute involved
   Statement
   Introduction and summary of argument
   Argument
      The Refugee Act of 1980 did not change the
      standard an alien must meet in order to avoid
      deportation on the ground that he would be subject
      to persecution in the country of deportation
      A. The United States traditionally has had a
         generous and compassionate refugee policy
      B. Prior to the United States' accession to the
         United States Protocol in 1968, the Board of
         Immigration Appeals and the INS required an
         alien seeking withholding of deportation to prove
         a realistic likelihood that he would be subject to
         persecution in the country of deportation
      C. The United States' accession to the United
         Nations Protocol in 1968 did not alter the
         standard by which an alien must establish that he
         would be eligible for withholding of deportation
      D. Congress, in enacting the Refugee Act of 1980,
         did not intend to alter the standard for proving
         eligibility for withholding of deportation
      E. The BIA's construction of the Refugee
         Act of 1980 as not having altered the standard by
         which an alien must prove eligibility for withholding
         of deportation is entitled to substantial deference
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 4a-25a) is reported
at 678 F.2d 401.  The order of the court of appeals denying rehearing
(Pet. App. 1a-3a) is not reported.  The decisions of the Board of
Immigration Appeals (Pet. App. 27a-36a) are not reported.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 26a) was entered on
May 5, 1982, and a petition for rehearing was denied on July 29, 1982
(Pet. App. 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 petition for a writ of certiorari
was filed on December 10, 1982, and was granted on February 28, 1983.
The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

                           STATUTE INVOLVED

   8 U.S.C. (Supp. V) 1253(h)(1) provides in pertinent part:

         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 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.  Pet. App. 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's 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.
Pet. App. 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.  Pet. App. 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 did not become involved
in anticommunist activities until 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.  Pet. App. 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 (Pet. App. 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 incarceration 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.  Pet.
App. 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 extention 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.  Pet. App. 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.  Pet. App. 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 (Pet. App. 27a-31a).  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).  /6/

   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.  Pet. App. 31a.  The Board noted (ibid.)
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 * * *."
The Board concluded that respondent had failed to make the required
showing because the journalistic articles submitted by respondent (see
note 6) were "of a general nature, referring to political conditions
in Yugoslavia, but not specifically relating to the respondent," and
the affidavits and petitions submitted by individual Yugoslavs (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." Pet. App. 31a.  /7/

   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 (Pet. App. 10a-11a).  However, the court of appeals 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"
(Pet. App. 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,
T.I.A.S. No. 6577, of modifying the standard applicable to requests
for relief under Section 243(h).  Pet. App. 21a.  In the court's view
(id. at 14a), the "'well-founded fear of persecution'" 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, /8/ the court concluded (Pet. App. 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." Pet. App. 25a
(footnote omitted), 26a.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The United States traditionally has had one of the most generous
and compassionate refugee programs of any nation.  Even before
accession to the United Nations Protocol Relating to the Status of
Refugees in 1968 and passage of the Refugee Act of 1980, several
statutory and regulatory provisions of our immigration laws permitted
aliens who feared persecution abroad either to be admitted to this
country or, once here, to avoid deportation to a country of
persecution.  Indeed, it was because of the "American heritage of
concern for the homeless and persecuted and our traditional role of
leadership in promoting assistance for refugees" (S. Exec. Doc. K,
90th Cong., 2d Sess. III (1968)) that we were able to accede to the
United Nations Protocol "without prejudice to national or state law"
(114 Cong. Rec. 29608 (1968) (remarks of Sen. Proxmire)).

   The provision with which this case is primarily concerned, Section
243(h) of the Immigration and Nationality Act, authorizes withholding
of deportation of aliens within the United States who wish to avoid
deportation to a country in which their lives or freedom would be
threatened on account of race, religion, nationality, political
opinion, or membership in a particular social group.  Since at least
the early 1960s, an alien seeking such relief was required to show a
realistic likelihood -- denominated by the courts as a "clear
probability" -- that he would be subject to such persecution if
deported.  The Second Circuit has held that, by Congress's use of the
words "well-founded fear" of persecution in the Refugee Act of 1980,
if not by our accession in 1968 to the Protocol, which contains the
identical language, that burden of proof has now been altered.

   As we show below, however, the words "clear probability" and
"well-founded fear" are not self-explanatory, but when they are read
in the context in which they have been used it becomes obvious that
there is no significant difference between them.  Moreover, the
unambiguous intent underlying both accession to the Protocol in 1968
and passage of the Refugee Act of 1980 was not to change the standard
for eligibility for withholding of deportation relief.  In view of
this explicit legislative desire to maintain the status quo, and the
recognition that the various verbal formulations for the burden of
proof can only be understood in the context of their actual
applications, we begin with the pre-1968 standard for proving
eligibility for withholding of deportation relief.

                                  A.

   Prior to the United States' accession to the Protocol in 1968, an
alien seeking withholding of deportation was required to substantiate
his subjective fear of persecution with objective facts demonstrating
a realistic likelihood that he would be singled out for persecution.
Such evidence could take the form of, for example, proof of previous
persecution of the individual alien or persecution of his family,
evidence of persecution of all or virtually all members of a group to
which the alien belonged, or evidence of activities engaged in by the
alien after he left a country that indicated a likelihood that he
would be persecuted if he returned there.  Whereas the Board of
Immigration Appeals and the INS generally described the foregoing
showing as a "likelihood of persecution," the courts frequently
denominated it a "clear probability of persecution."

                                  B.

   The United States' accession to the Protocol was neither intended
to change, nor construed as changing, the foregoing burden of proof.
To the contrary, accession was based on the express understanding that
such action would not alter or enlarge the substance of our
immigration laws since, it was believed, the principles and directives
contained in the Protocol already were incorporated in United States
law.  Accession instead was intended as a symbol and as encouragement
to other nations to treat refugees in the same salutary manner in
which the United States already dealt with those within its territory.

   Largely in reliance on this express basis for accession, during the
period between 1968 and the enactment of the Refugee Act in 1980, both
the Board and the courts construed the "well-founded fear" language
contained in the Protocol as not having altered the standard by which
an alien was required to prove eligibility for withholding of
deportation.  Even those cases that did not expressly hold that
accession had made no change in the applicable standard nevertheless
continued to use the phrases "likelihood of persecution" and "clear
probability of persecution" interchangeably with the Protocol's
"well-founded fear" terminology, thus indicating no significant
differences among the various formulations.  Regardless of the
semantic standard applied, an alien seeking withholding of deportation
remained under an obligation to show, by objective evidence, a
realistic likelihood that he would be singled out for persecution if
deported.

                                  C.

   Congress's explicit intent in enacting the portions of the Refugee
Act with which this case is concerned was simply to conform United
States law to the terms of the Protocol.  Specifically, Congress
amended Section 243(h) "for the sake of clarity, to conform the
language of that section to the (1951 United Nations) Convention
(Relating to the Status of Refugees, Articles 2 through 34 of which
are incorporated by reference in the Protocol)." H.R. Rep. No. 96-608,
96th Cong., 1st Sess. 18 (1979).  Similarly, the new definition of
"refugee" was added to the Act to conform to that contained in the
Protocol by eliminating the geographical and ideological limitations
imposed by former Section 203(a)(7), 8 U.S.C. 1153(a)(7).

   Since Congress's sole purpose, in enacting the relevant portions of
the Refugee Act, was to incorporate the provisions of the Protocol,
and since accession to the Protocol had not been intended to alter the
substance of our immigration laws, it follows that the Refugee Act did
not change the standard by which an alien was required to prove
eligibility for withholding of deportation.  Similarly, the fact that
the words "well-founded fear," as used in the Protocol, had been
consistently construed as equivalent to the pre-1968 standard
conclusively refutes any suggestion that Congress's use of that phrase
in the Refugee Act was intended to denote a departure from that
standard.

                                  D.

   Following enactment of the Refugee Act, the Board has continued to
use the phrases "likelihood of persecution" and "clear probability of
persecution," as well as "well-founded fear of persecution," thus
signifying its understanding that the legislation did not alter the
standard by which an alien is required to establish eligibility for
relief under Section 243(h).  This construction of the Act by the
agency charged with its administration is entitled to substantial
deference.

   The court of appeals' holding (Pet. App. 23a) that the Refugee Act
requires withholding of deportation under Section 243(h) upon a
showing "far short of a 'clear probability'" that an alien will be
singled out for persecution attributes a stringency to the phrase
"clear probability" that ignores how it has been applied in practice.
The decision below thus liberalizes substantially the standard by
which aliens' withholding and asylum claims must be assessed.  This
ruling is in direct contravention of the intent underlying both the
United States' accession to the Protocol and the enactment of the
Refugee Act and should not be accepted by this Court.

                               ARGUMENT

 THE REFUGEE ACT OF 1980 DID NOT CHANGE THE STANDARD AN ALIEN MUST
MEET IN ORDER TO AVOID DEPORTATION ON THE GROUND THAT HE WOULD BE
SUBJECT TO PERSECUTION IN THE COUNTRY OF DEPORTATION

 A. The United States Traditionally Has Had A Generous And
Compassionate Refugee Policy

   1. Perhaps because of our Nation's history and heritage, "few, if
any, countries have been as generous as the United States in extending
the privilege to immigrate, or in providing sanctuary to the
oppressed" (Fiallo v. Bell, 430 U.S. 787, 795 & n.6 (1977)).  See also
125 Cong. Rec. 4881 (1979) (remarks of Sen. Kennedy);  S. Exec. Doc.
K, 90th Cong., 2d Sess. III (1968);  S. Exec. Rep. No. 14, 90th Cong.,
2d Sess. 4, 6 (1968).  Even before the enactment of the Refugee Act of
1980, Pub. L. No. 96-212, 94 Stat. 102 et seq., several statutory
provisions and regulations of our immigration laws permitted aliens
who feared persecution either to be admitted to this country or, once
here, to avoid deportation to a country of probable persecution.

   Relief for aliens seeking to come to the United States because of
persecution in their homelands was available under Section 203(a)(7)
of the Immigration and Nationality Act, 8 U.S.C. 1153(a)(7), which
permitted the "conditional entry" as immigrants of 17,400 refugees
annually.  /9/ Those seeking entry under this provision were required
to show, inter alia, that, because of persecution or fear of
persecution on account of race, religion, or political opinion, they
had fled from a Communist or Communist-dominated country or area or
from any country in the Middle East.  8 U.S.C. 1153(a)(7)(A)(i).
Aliens who arrived at conditional entrants were required to report
back to the INS after two years for reinspection and reexamination for
admission into the United States.  8 U.S.C. 1153(g).  An alien who
passed that review would be "regarded as lawfully admitted to the
United States for permanent residence as of the date of his arrival."
8 U.S.C. 1153(h).

   Because of the numerical and other limitations on entry under
Section 203(a)(7), another provision of the Act, Section 212(d)(5), 8
U.S.C. 1182(d)(5), also was used to bring refugees into this country.
That section granted the Attorney General discretion to "parole"
aliens into the United States "temporarily * * * for emergent reasons
or for reasons deemed strictly in the public interest." 8 U.S.C.
1182(d)(5).  Parole, however, was not regarded as an "admission" of
the alien and when, in the opinion of the Attorney General, the
purposes of the parole had been served, the alien was to be returned
to the custody from which he had been paroled.  Thereafter, his case
would be dealt with "in the same manner as that of any other applicant
for admission to the United States." Ibid.  This provision was first
used in 1956, in response to the Hungarian crisis, and was used
thereafter by successive administrations to parole large numbers of
refugees into the United States.  H.R. Rep. No. 96-608, 96th Cong.,
1st Sess. 3-4 (1979).

   By contrast to Sections 203(a)(7) and 212(d)(5), Section 243(h) of
the Act, 8 U.S.C. 1253(h), the provision with which this case is
primarily concerned, applied to aliens already in this country who
wished to avoid deportation.  Section 243(h) authorized the Attorney
General to withhold the deportation of an alien if, in the Attorney
General's judgment, "the alien would be subject to persecution on
account of race, religion, or political opinion." /10/ Withholding of
deportation was available only to those aliens who were already
"within the United States" and subject to deportation proceedings.
Such relief thus was not available to aliens who were not considered
to be admitted to the United States or who were at our borders
applying for admission to, and refuge in, this country.  See Leng May
Ma v. Barber, 357 U.S. 185 (1958) (alien paroled into this country
under 8 U.S.C. 1182(d)(5) not "within the United States" for purposes
of Section 243(h)).  By its terms, Section 243(h) provided only
temporary relief;  the Attorney General was authorized to withhold
deportation of an alien only "for such period of time as he deem(ed)
to be necessary" for reasons of persecution.  8 U.S.C. 1253(h).
Moreover, withholding of deportation relief afforded no affirmative
right to remain in this country, but only a right not to be deported
to a particular country or countries.  Finally, unlike Section 203,
Section 243(h) contained no provision for eventual adjustment to
lawful permanent resident status.

   Prior to the enactment of the Refugee Act of 1980, there was no
statutory provision whereby aliens at our borders or within this
country (but not yet the subject of deportation proceedings) could
apply for asylum.  Nevertheless, in 1974, the Attorney General,
pursuant to his general authority to administer and enforce the
immigration laws (8 U.S.C. 1103), promulgated a regulation that
permitted aliens to apply to an INS district director or American
consul for "asylum." 8 C.F.R. 108 (1975).  /11/

   2. In 1968, the United States acceded to the United Nations
Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.
6223, T.I.A.S. No. 6577, which requires (19 U.S.T. 6225) all parties
to undertake to apply Articles 2 through 34 of the United Nations
Convention Relating to the Status of Refugees, July 28, 1951, 189
U.N.T.S. 150.  /12/ Article 33.1 of the Convention provides (19 U.S.T.
6276):

      No 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.  /13/

   Article 1.2 of the Protocol, largely incorporating by reference
Article 1A(2) of the Convention, in turn 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, is unable or, owing to such fear, is
      unwilling to return to it.

   19 U.S.T. 6225, 6261.  Because of the "American heritage of concern
for the homeless and persecuted and our traditional role of leadership
in promoting assistance for refugees" (S. Exec. Doc. K, 90th Cong., 2d
Sess. III (1968)) already reflected in our immigration laws, the
United States was able to accede to the Protocol "without prejudice to
national or state law" (114 Cong. Rec. 29608 (1968) (remarks of Sen.
Proxmire)).

   3. In the Refugee Act of 1980, Congress made extensive revisions in
the immigration laws in order to establish a permanent systematic
procedure for the admission of refugees to the United States and for
their resettlement once here.  S. Rep. No. 96-590, 96th Cong., 2d
Sess. 1 (1980).

   The Refugee Act was the product of congressional dissatisfaction
and frustration with the ad hoc, piecemeal and discriminatory nature
of the conditional entry procedure and the consequent use by the
Attorney General of his "parole" power (which had been designed to be
used only on an individual, case-by-case basis) to bring in large
numbers of refugees.  /14/ Congress responded to these concerns by
eliminating entirely the conditional entry provision for aliens
fleeing from Communist or Middle Eastern countries contained in
Section 203(a)(7) of the Act, 8 U.S.C. 1153(a)(7), and by placing
stringent restrictions on the Attorney General's authority to "parole"
refugees into the United States.  /15/ In their stead, Congress
created new statutory provisions dealing with refugees seeking
admission to this country.  Pub. L. No. 96-212, Sec. 201(b), 94 Stat.
103.

   Under new Section 207, 8 U.S.C. (Supp. V) 1157, a certain number of
aliens who are screened and selected overseas may be brought to the
United States under the new status of "refugees." Pub. L. No. 96-212,
Sec. 201(b), 94 Stat. 103.  Like conditional entrants under former
Section 203(a)(7), "refugees" under Section 207 must submit to
reinspection by the Immigration and Naturalization Service after an
initial period before gaining permanent resident alien status.
However, the period before adjustment to permanent resident status is
reduced from two years to one.  8 U.S.C. (Supp. V) 1159 (a).
Moreover, unlike the 17,400 numerical limitation on conditional
entrants under repealed Section 203(a)(7), new Section 207 permitted
"refugee" admissions of up to 50,000 per year for fiscal years 1980
through 1982.  8 U.S.C. (Supp. V) 1157(a)(1).  /16/ For subsequent
fiscal years, the numerical ceiling must be fixed by Presidential
determination.  8 U.S.C. (Supp. V) 1157(a)(2).  During each fiscal
year, an additional number of refugees may be admitted if the
President determines, in consultation with Congress, that an
unforeseen emergency situation exists, that the admission to the
United States of additional refugees is justified by grave
humanitarian concerns or is otherwise in the national interest, and
that their admission cannot be accomplished within the refugee
admission ceiling established before the beginning of the fiscal year.
 8 U.S.C. (Supp. V) 1157(b).

   Most significantly, the geographical and ideological requirements
for conditional entry were repealed and a definition of "refugee" that
incorporates the definition contained in the United Nations Protocol
was, for the first time, included in the Act (8 U.S.C. (Supp. V)
1101(a)(42)):

         The term "refugee" means (A) any person who is outside the
      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 * * *.  /17/

   Finally, admission numbers are to be allocated among categories of
refugees in accordance with a determination made by the President
after consultation with Congress.  8 U.S.C. (Supp. V) 1157(a)(3).  The
actual admission of individual refugees remains the responsibility of
the Attorney General.  8 U.S.C. (Supp. V) 1157(c)(1).

   In response to criticism that the bill, as originally proposed,
contained no provision for asylum, /18/ the Judiciary Committees of
both Houses included a provision dealing with asylum claims.  See S.
Rep. No. 96-256, 96th Cong., 1st Sess. 9 (1979);  H.R. Rep. No.
96-608, 96th Cong., 1st Sess. 17-18 (1979).  Under new Section 208, 8
U.S.C. (Supp. V) 1158, the Attorney General is directed to establish
procedures whereby any alien physically present in the United States
or at a land border or port of entry, regardless of the legality of
his status, may apply for "asylum" in this country.  Pub. L. No.
96-212, Sec. 201(b), 94 Stat. 103.  /19/ The threshold test for
eligibility for asylum is the alien's meeting the new statutory
definition of "refugee." See 8 U.S.C. (Supp. V) 1159(a).  But while
the Act directs the Attorney General to establish procedures whereby
aliens may apply for asylum, the decision whether to grant a
particular asylum application remains discretionary with the Attorney
General.  8 U.S.C. (Supp. V) 1158(a).  In addition, asylee status may
be terminated if the conditions that rendered the alien eligible for
asylum change.  8 U.S.C. (Supp. V) 1158(b).  The Attorney General thus
has provided that aliens who are granted asylum must be examined by
the INS each year in order to determine if they continue to be
eligible for asylum.  8 C.F.R. 208.8(e).  Furthermore, in any year
only 5,000 aliens who have been granted asylum may have their status
adjusted to that of permanent resident alien.  8 U.S.C. (Supp. V)
1159(b).

   Finally, the withholding of deportation provision contained in
Section 243(h), 8 U.S.C. 1253(h) (see note 10), supra), was amended to
conform to Article 33 of the United Nations Convention.  H.R. Rep. No.
96-608, 96th Cong., 1st Sess. 18 (1979).  The Attorney General
accordingly is prohibited from deporting or returning any alien to a
country where his "life or freedom would be threatened" on account of
"race, religion, nationality, membership in a particular social group,
or political opinion." Pub. L. No. 96-212, Sec. 203(e), 94 Stat. 107.
/20/

 B. Prior To The United States' Accession To The United Nations
Protocol In 1968, The Board Of Immigration Appeals And The INS
Required An Alien Seeking Withholding Of Deportation To Prove A
Realistic Likelihood That He Would Be Subject To Persecution In The
Country Of Deportation

   The issue in this case concerns the meaning of the phrase
"well-founded fear of persecution" in the Refugee Act of 1980.  /21/
As with any case involving the interpretation of Act of Congress, the
Court's task is to discern and give effect to legislative intent.  The
usual starting place for such an endeavor is the language of the
statute itself.  See Haig v. Agee, 453 U.S. 280, 290 (1981);  Howe v.
Smith, 452 U.S. 473, 480 (1981).  Here, however, the critical
statutory language is far from plain;  the words "well-founded fear of
persecution," like the words "extreme hardship" (8 U.S.C. 1254(a)(1)),
"are not self-explanatory." INS v. Wang, 450 U.S. 139, 144 (1981).  As
the Third Circuit observed in Rejaie v. INS, 691 F.2d 139, 146 (1982)
(Pet. App. 53a), quoting Towne v. Eisner, 245 U.S. 418, 425 (1918)
(Holmes, J.), such a phrase "'is not a crystal, transparent and
unchanged, it is the skin of a living thought and may vary greatly in
color and content according to the circumstances and the time in which
it is used.'" We agree with the Third Circuit (Rejaie v. INS, supra,
691 F.2d at 146 (Pet. App. 53a)) that, when read "within the
circumstances of (their) use," the phrases "clear probability" and
"well-founded fear" are equivalent.  Hence, Congress in passing the
Refugee Act did not intend to liberalize the standard applicable to
claims for withholding of deportation on grounds of persecution.  /22/

   In seeking guidance as to the meaning of the words "well-founded
fear of persecution," it is appropriate at the outset to consider the
construction that has been placed on that phrase in the United Nations
Protocol.  "(W)here, as here, Congress adopts a new law incorporating
sections of a prior law, Congress normally can be presumed to have had
knowledge of the interpretation given to the incorporated law, at
least insofar as it affects the new statute." Lorillard v. Pons, 434
U.S. 575, 581 (1978).  Moreover, inquiry into the Protocol's use of
the same words is required by Congress's express intent, by enactment
of the Refugee Act, to conform United States law to our international
obligations under the Protocol.  See pages 36-40, infra.  In turn, as
we show below (pages 25-28), this country's accession to the Protocol
in 1968 was predicated on the explicit understanding that such action
would not alter or enlarge the substance of our immigration laws.
Accordingly, we begin with an examination of the pre-1968 standard for
eligibility for withholding of deportation.

   An alien seeking withholding of deportation or asylum always had
the burden of proving that he would be subject to persecution in the
country of deportation.  In re Nagy, 11 I. & N. Dec. 888, 889 (BIA
1966);  In re Sihasale, 11 I. & N. Dec. 759, 760-762 (BIA 1966);  In
re Perez, 10 I. & N. 603, 605 (BIA 1964).  /23/ More specifically, the
INS's assessment of an alien's case consistently focused on whether
his alleged fear of persecution was supported by objective facts that
demonstrated a realistic likelihood that he would be singled out for
persecution.  The applicant thus was required not only to state his
subjective fears of persecution but also to substantiate them with
objective evidence.  That evidence could take various forms, such as
proof of previous persecution of the individual alien or persecution
of his family, /24/ evidence of persecution of all or virtually all
members of a group or class to which the alien belonged, /25/ or
evidence of activities engaged in by the alien after he had left a
country that indicated a likelihood that he would be persecuted if he
returned.  /26/ Whatever type of evidence was proffered, however, had
to provide some indication that the particular alien would be singled
out for persecution upon his return.  /27/

   But while the nature of the evidence -- its conclusory or
subjective quality -- could preclude the granting of withholding
relief, the identity of its proponent could not.  That is, the Board
recognized that the alien's "own testimony may be the best -- in fact
the only -- evidence available to her." Such evidence, therefore,
"must * * * be accorded the most careful and objective evaluation
possible, in the light of all available pertinent evidence * * *." In
re Sihasale, 11 I. & N. Dec. 759, 762 (BIA 1966).

   The Board and the INS generally described the foregoing showing as
a "likelihood of persecution." See, e.g., In re Janus and Janek, 12 I.
& N. Dec. 866, 873 (BIA 1968);  In re Kojoory, 12 I. & N. Dec. 215,
220 (BIA 1967);  In re Vardjan, 10 I. & N. Dec. 567, 571, 579 (BIA
1964);  In re Diaz, 10 I. & N. Dec. 199, 202 (BIA 1963).  The courts,
on the other hand, frequently denominated the required showing as a
"clear probability of persecution." See 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).  In so doing, however, the
courts gave no indication that they intended the "clear probability"
phraseology to represent any more stringent a standard than the
Board's "likelihood of persecution" formulation did.  Thus, as the
Third Circuit noted in Rejaie v. INS, supra, 691 F.2d at 146 (Pet.
App. 52a), the court below "attributed a stringency to the phrase
'clear probability'" that is inconsistent with the Second Circuit's
own observations in Cheng Kai Fu v. INS, supra, 386 F.2d at 753
(emphasis added) that "(i)n order to forestall deportation the aliens
must show some evidence indicating they would be subject to
persecution" and that they had failed to make the required showing of
a "likelihood of persecution."

 C. The United States' Accession To The United Nations Protocol In
1968 Did Not Alter The Standard By Which An Alien Must Establish That
He Would Be Eligible For Withholding Of Deportation

   1. The Senate gave its advice and consent to the United States'
accession to the United Nations Protocol in 1968 on the express
understanding that such action would not alter or enlarge the
substance of our immigration laws.  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 (S. Exec. Rep. No. 14, supra, at 6) that

      accession does not in any sense commit the Concracting State to
      enlarge its immigration measures for refugees.  Rather, the
      asylum concept is set forth in its prohibition under Article 33
      of the Convention against the return of a refugee in any manner
      whatsoever to a country where his life or freedom would be
      threatened;  and the prohibition under Article 32 against the
      deportation of a refugee lawfully in a territory of a
      Contracting State to any country except in cases involving
      national security or public order.  The deportation provisions
      of the Immigration and Nationality Act, with limited exceptions,
      are consistent with this concept.  The Attorney General will be
      able to administer such provisions in conformity with the
      Protocol, without amendment of the Act.

   Thereafter, the Committee reported favorably on the Protocol and
recommended that the Senate give its advice and consent to accession.
Similarly, the President and the Secretary of State advised the Senate
(S. Exec. Doc. K, supra, at III, VII) that "(a)ccession to the
Protocol would not impinge adversely upon established practices under
existing laws in the United States." Accord, S. Exec. Rep. No. 14,
supra, at 2;  114 Cong. Rec. 29391 (1968) (remarks of Sen. Mansfield).
 /28/ With express reference to Section 243(h), the Secretary of State
explained (S. Exec. Doc. K, supra, at VIII):

      (F)oremost among the rights which the Protocol would guarantee
      to refugees is the prohibition (under Article 33 of the
      Convention) against their expulsion or return to any country in
      which their life or freedom would be threatened.  This article
      is comparable to Section 243(h) of the Immigration and
      Nationality Act, 8 U.S.C. 1254 (sic), and it can be implemented
      within the administrative discretion provided by existing
      regulations.

   Accession thus never was intended to alter the substance of our
immigration laws.  Rather, in view of this country's long-standing
tradition of concern and action on behalf of refugees, it was believed
that the principles and directives contained in the Protocol already
were incorporated in United States law.  S. Exec. Rep. No. 14, supra,
at 4 ("refugees in the United States have long enjoyed the protection
and the rights which the protocol calls for"), 6, 7 ("the United
States already meets the standards of the Protocol");  S. Exec. Doc.
K, supra, at III, VII.  Accession 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.  S. Exec. Doc. K, supra, at III, IV,
VIII;  S. Exec. Rep. No. 14, supra, at 4, 7, 10.

   In this respect, accession was thought to be a particularly
appropriate action for the United States to take in 1968, which had
been designated International Year for Human Rights by the United
Nations and Human Rights Year in the United States (S. Exec. Doc. K,
supra, at III).

         Our accession would convey to the rest of the world in a
      timely and conspicuous manner, and I cannot think of a more
      timely opportunity, the image of our traditional concern for
      refugees and for the individual human being which have long been
      embodied in our laws and consecrated in our traditions.

         In our view, it is particularly desirable, therefore, that
      the United States accede during this International Year for
      Human Rights.

   S. Exec. Rep. No. 14, supra, at 4.  See also 114 Cong. Rec. 27757
(1968) (remarks of Sen. Proxmire) ("(s)urely (ratification of the
Protocol) is the least the Senate can do during this year dedicated to
internationalizing human rights").

   2. In view of the foregoing unequivocal evidence of legislative
intent, both the courts and the Board construed the "well-founded
fear" language of the Protocol as not altering the standard by which
an alien was required to prove eligibility for withholding of
deportation.  In In re Dunar, 14 I. & N. Dec. 310, 319 (1973), the
Board explained that the requirement that the fear be "'well-founded'"
meant that the alien still must substantiate his subjective fear of
persecution with objective facts.  Thus, as was the case before
accession (see pages 22-25, supra), "(t)he claimant's own testimony as
to the facts will sometimes be all that is available;  but the crucial
question is whether the testimony, if accepted as true, makes out a
realistic likelihood that he will be persecuted." 14 I. & N. Dec. at
319.  Relying largely (id. at 319-320;  see also id. at 314-318) on
the legislative history of accession discussed above, the Board
concluded (14 I. & N. Dec. at 230):

      It is clear that when it accepted the Protocol, the Senate had
      no notion that this would work a drastic alteration of section
      243(h) and the gloss which it had acquired through the years
      before this Board and in the courts.

   The Board accordingly rejected the applicant's contention that "(t)
his change in terminology (to well-founded fear of persecution)
relieves the alien of the burden of showing a clear probability of
persecution." 14 I. & N. Dec. at 319.  /29/ See also In re Chumpitazi,
16 I. & N. Dec. 629, 631 (BIA 1978);  In re Francois, 15 I. & N. Dec.
534, 538 (BIA 1975);  In re Chukumerije, 15 I. & N. Dec. 520, 522-523
(BIA 1975).

   The question whether accession to the Protocol affected the alien's
burden of proving persecution was also explicitly addressed in Kashani
v. INS, 547 F.2d 376 (7th Cir. 1977).  There, too, the court rejected
the alien's contention (id. at 379) that, in view of this country's
accession to the Protocol, "he does not need to show a clear
probability of prosecution (sic)" (ibid.):

         We hold that an alien claiming a "well founded fear of
      persecution" must either demonstrate that he actually has been a
      victim of persecution or that his fear is more than a matter of
      his own conjecture.

                      * * * *

         This requirement can only be satisfied by objective evidence
      that the alien's assertions are correct.  Thus, the "well
      founded fear" standard contained in the protocol and the "clear
      probability" standard which this court has engrafted onto
      section 243(h) will in practice converge.  /30/

   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 (S.D.N.Y. 1973), aff'd, 505 F.2d 1170 (2d
Cir. 1974).

   Even where they did not expressly hold that accession to the
Protocol did not alter the standard for establishing eligibility for
withholding of deportation, the courts, the Board and the INS
continued to use the phrases "clear probability of persecution" and
"likelihood of persecution," and to use them interchangeably with the
"well-founded fear of persecution" terminology, thus indicating no
significant differences among the various formulations.  /31/ Hence,
regardless of the label by which it was characterized, the same type
of objective showing continued to be required of an applicant for
withholding of deportation after the United States acceded to the
Protocol in 1968;  the alien remained under an obligation to
demonstrate, by objective facts, a realistic likelihood that he would
be singled out for persecution upon his return to the country of
deportation.  /32/

   3. In concluding that the "well-founded fear of persecution"
language contained in the 1980 Act mandates withholding of deportation
"upon a showing far short of a 'clear probability' that an individual
will be singled out for persecution," the court of appeals relied
heavily (Pet. App. 15a, 23a-24a) on the Handbook of Procedures and
Criteria for Determining Refugee Status Under the 1951 Convention and
the 1967 Protocol Relating to the Status of Refugees (Geneva, 1979)
issued by the Office of the United Nations High Commissioner for
Refugees (UNHCR).  That reliance was wholly misplaced.

   First, since the Handbook was not even issued until September 1979,
whereas hearings on the Refugee Act were held in March and May 1979
and the Senate Judiciary Committee issued its report in July 1979, it
is most unlikely that Congress's use of the words "well-founded fear
of persecution" was informed by the UNHCR's interpretation of that
phrase as contained in the Protocol.  /33/ In addition, the UNHCR
itself acknowledged (Handbook, supra, at 1;  see also id. at 3-4) that
"(t)he assessment as to who is a refugee, i.e. the determination of
refugee status under the 1951 Convention and the 1967 Protocol, is
incumbent upon the Contracting State in whose territory the refugee
finds himself at the time he applies for recognition of refugee
status." It thus offered the Handbook simply "for the guidance of
government officials concerned with the determination of refugee
status in the various Contracting States" (Handbook, supra, at 2;  see
also id. at 4, 53).

   In any event, the Handbook's interpretation of the phrase
"well-founded fear" as used in the Protocol does not support the court
of appeals' conclusion that Congress's inclusion of the same language
in the Refugee Act altered the standard by which an alien is required
to prove eligibility for withholding of deportation.  The UNHCR
recognized (Handbook, supra, at 47 Paragraph 196) the "general legal
principle that the burden of proof lies on the person submitting a
claim." Moreover, the UNHCR, like the Board in In re Dunar, supra,
focused (Handbook, supra, at 11-12) on the requirement that the
subjective condition -- the element of fear -- be "well-founded." This
implied to the UNHCR, as it had to the Board (In re Dunar, supra, 14
I. & N. Dec. at 319-320),

      that it is not only the frame of the mind of the person
      concerned that determines his refugee status, but that this
      frame of mind must be supported by an objective situation.

   Handbook, supra, at 11-12.  Hence, like the pre-Protocol standard
described above (pages 22-25), the term "well-founded fear" also
"contains a subjective and an objective element, and in determining
whether well-founded fear exists, both elements must be taken into
consideration." Handbook, supra, at 12, Paragraph 38.  /34/

   Indeed, many of the factors that the UNHCR mentioned (Handbook,
supra, at 12, Paragraphs 40-41) as bearing on even the subjective
element are precisely those on which the INS, the Board, and the
courts always have focused in evaluating an alien's application for
withholding of deportation, i.e., the strength of his political or
religious convictions, "the personal and family background of the
applicant, his membership in a particular racial, religious, national,
social or political group * * * and his personal experiences." The
UNHCR counseled further (Handbook, supra, at 13, Paragraph 43) that an
assessment of whether an alien's fear is justified and reasonable also
must take into account:

      What, for example, happened to his friends and relatives and
      other members of the same racial or social group * * *.  The
      laws of the country of origin, and particularly the manner in
      which they are applied will be relevant.  * * * In the case of a
      well-known personality, the possibility of persecution may be
      greater than in the case of a person in obscurity.  All these
      factors, e.g., a person's character, his background, his
      influence, his wealth or his outspokenness, may lead to the
      conclusion that his fear of persecution is "well-founded."

   Furthermore, as has always been the case, "(t)he situation of each
person must * * * be assessed on its own merits." Ibid.  The UNHCR
thus recognized (id. at 13, Paragraph 45;  emphasis added) that an
applicant for refugee status under the Protocol must continue to show
"good reason why he individually fears persecution." Therefore, even
if the Handbook's interpretation of the phrase "well-founded fear" as
used in the Protocol were dispositive, it is sufficiently equivalent
to the criteria that the courts and immigration authorities
traditionally have employed in evaluating withholding and asylum
claims (see pages 22-25, supra) to dispel the notion that the
inclusion of the "well-founded fear" language in the Refugee Act was
intended to alter that preexisting standard.

 D. Congress, In Enacting The Refugee Act Of 1980, Did Not Intend To
Alter The Standard For Proving Eligibility For Withholding Of
Deportation

   1. As we have shown (pages 15-18, supra), the focus of the Refugee
Act of 1980 was on the regularization of the admission of refugees to
this country and on their successful resettlement and absorption once
here.  S. Rep. No. 96-256, supra, at 2-3, 5 (1979) ("(t)he central
feature of S. 643 is the establishment of statutory provisions for the
admission of refugees).  /35/ To those ends, Congress adopted the
unified admissions policy described above (pages 16-18, supra),
whereby virtually all refugees admitted to the United States enter
pursuant to 8 U.S.C. (Supp. V) 1157 under numerical limitations set by
the President in consultation with Congress, with parole no longer
employed for refugees except when the Attorney General determines, in
a particular case, that it is required for "compelling reasons in the
public interest" (8 U.S.C. (Supp. V) 1182(d)(5)(B)).

   By contrast, Congress evinced no intent to alter the law concerning
aliens already within this country or at its borders who desired to
avoid deportation or return to a country in which they feared
persecution.  See generally Asylum Adjudication:  Hearings Before the
Subcomm. on Immigration and Refugee Policy of the Senate Comm. on the
Judiciary, 97th Cong., 1st Sess. 6 (1981).  Rather, by both amending
Section 243(h) and, for the first time, including in the Act a
provision for asylum, Congress expressly intended simply to conform
United States domestic law to reflect its international obligations
under the United Nations Protocol.  The House Report, which states
this intent clearly, is worth quoting at length (H.R. Rep. No. 96-608,
96th Cong., 1st Sess. 17-18 (1979);  emphasis added):

                 Asylum and Withholding of Deportation

         Since 1968, the United States has been a party to the United
      Nations Refugee Protocol which incorporates the substance of the
      1951 U.N. Convention of Refugees and which seeks to insure fair
      and humane treatment for refugees within the territory of the
      contracting states.

         Article 33 of the Convention, with certain exceptions,
      prohibits contracting states from expelling or returning a
      refugee to a territory where his or her life or freedom would be
      threatened on account of race, religion, nationality, membership
      in a particular social group or political opinion.  The
      Committee Amendment conforms United States statutory law to our
      obligations under Article 33 in two of its provisions:

         (1) Asylum. -- The Committee Amendment establishes for the
      first time a provision in Federal law specifically relating to
      asylum.  * * *

         Currently, United States asylum procedures are governed by
      regulations promulgated by the Attorney General under the
      authority of section 103 of the Immigration and Nationality Act
      (see 8 CFR 108), which grants the Attorney General authority to
      administer and enforce laws relating to immigration.  No
      specific statutory basis for United States asylum policy
      currently exists.  The asylum provision of this legislation
      would provide such a basis.

         The Committee wishes to insure a fair and workable asylum
      policy which is consistent with this country's tradition of
      welcoming the oppressed of other nations and with our
      obligations under international law, and feels it is both
      necessary and desirable that United States domestic law include
      the asylum provision in the instant legislation.  * * *

         (2) Withholding of Deportation.  -- Related to Article 33 is
      the implementation of section 243(h) of the Immigrationand
      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.  The 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.

   See also 126 Cong. Rec. H1521 (daily ed. Mar. 4, 1980) (remarks of
Rep. Holtzman);  125 Cong. Rec. H11967 (daily ed. Dec. 13, 1979)
(remarks of Rep. Holtzman).

   The Senate Report also states unequivocally that passage of the
Refugee Act was intended to work no change in the standard by which an
alien must prove eligibility for asylum relief (S. Rep. No. 96-256,
96th Cong., 1st Sess. 9 (1979)):

         As amended by the Committee, the bill establishes an asylum
      provision in the Immigration and Nationality Act for the first
      time by improving and clarifying the procedures for determining
      asylum claims filed by aliens who are physically present in the
      United States.  The 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, to which the United States acceded in November 1969
      (sic).

   See also The Refugee Act of 1979:  Hearings on H.R. 2816 Before the
Subcomm. on International Operations of the House Comm. on Foreign
Affairs, 96th Cong., 1st Sess. 71 (1979) (remarks of David Martin,
Office of the Legal Adviser, Department of State) ("For purposes of
asylum, the provisions in this bill do not really change the
standards").

   This congressional design is confirmed by the conference reports,
which explain that Section 243(h), as amended, was "based directly
upon the language of the Protocol and (was) intended (to) be construed
consistent with the Protocol." S. Rep. No. 96-590, 96th Cong., 2d
Sess. 20 (1980);  H.R. Rep. No. 96-781, 96th Cong., 2d Sess. 20
(1980).  See also 126 Cong. Rec. 3757-3758 (1980) (remarks of Sen.
Kennedy).

   By the same token, both the House and Senate reports make clear
that the new definition of "refugee" contained in 8 U.S.C. (Supp. V)
1101(a)(42)(A) was intended simply to conform to the definition in the
Protocol.  H.R. Rep. No. 96-608, supra, at 9;  S. Rep. No. 96-256,
supra, at 4, 14-15.  /36/ Nowhere in the legislative history of the
Refugee Act is there any suggestion that the use of the phrase
"well-founded fear of persecution" was intended to alter the standard
by which an alien was required to prove eligibility for withholding of
deportation or asylum.  Rather, the legislative history indicates that
the only change Congress contemplated would result from incorporation
of the United Nations' definition was the elimination of the
discrimination inherent in the ideological and geographical
restrictions on conditional entry under former Section 203(a)(7), 8
U.S.C. 1153(a)(7).  /37/

   2. As we explained at the outset (page 22, supra), our discussion
of pre-Refugee Act law is designed to elucidate, first, Congress's
express intent, in enacting the relevant portions of the 1980 Act, to
incorporate the provisions of the United Nations Protocol, and,
second, Congress's use, in the 1980 legislation, of the Protocol's
"well-founded fear" terminology.  Hence, the fact that the Senate, in
giving its advice and consent to accession to the Protocol in 1968,
did not intend to alter the then prevailing standard by which an alien
was required to prove eligibility for withholding of deportation makes
clear that Congress, in incorporating the provisions of the Protocol
in the Refugee Act, also did not intend to alter the pre-1968
standard.  /38/ In addition, the fact that the words "well-founded
fear," as used in the United Nations Protocol, had been consistently
construed as equivalent to the pre-1968 standard (whether that
standard is denominated as "realistic likelihood" or "clear
probability") further refutes any suggestion that Congress's use of
those words in the 1980 Act was intended to denote a change from the
previous standard.

   Our inquiry thus ordinarily would be at an end.  Nevertheless, in
order to dispel any doubt, we address two additional points raised by
the court below.

   a. The Second Circuit viewed (Pet. App. 13a) the legal standard by
which an alien was required to prove persecution or fear of
persecution under former Section 203(a)(7) as "considerably less
stringent than Section 243(h)'s 'clear probability' of persecution of
a singled-out individual * * *." Accordingly, the court opined (Pet.
App. 22a-23a) that "(s)ince the 1980 Act dictates that a uniform test
of 'refugee' be applied to all aliens," and since "the general purpose
of the Act is to regularize, not hinder," the entry "of refugees, * *
* it would bring about wholly anomalous results to read the Act to
impose a far more stringent legal test upon entry by refugees than had
existed in prior law." The court of appeals' analysis is flawed in
several respects.

   In the first place, the cases on which the court of appeals relied
do not support its assertion that the burden of proving "persecution
or fear of persecution" under former Section 203(a)(7) was less
stringent than the burden of proving a "clear probability of
persecution" under Section 243(h).  The thrust of In re Tan, 12 I. &
N. Dec. 564 (1967), the only Board decision cited by the court, was
the discretionary nature of the determination required of the Attorney
General under Section 243(h) concerning whether the alien would be
subject to persecution in the country to which he sought withholding
of deportation (see 12 I. & N. Dec. at 566, 568-569).  It was the
existence of this element of discretion that led the Board to reject
the claim (id. at 569-570) "that an alien deportee is required to do
no more than meet the standards applied under Section 203(a)(7) of the
Act when seeking relief under section 243(h)." Similarly, while In re
Ugricic, 14 I. & N. Dec. 384 (Dist. Dir. 1972), referred to the
applicable standard under Section 203(a)(7) as persecution or "good
reason to fear persecution" (14 I. & N. Dec. at 385-386), it gave no
indication that that standard, as applied, was any less stringent than
"clear probability" or any of the other formulations by which Section
243(h) claims had been evaluated.  Indeed, as we noted above (note
34), the "good reason to fear" formulation incorporates the objective
criteria that are the hallmark of the "clear probability" test.  /39/

   Moreover, even if the burden of proving "persecution or fear of
persecution" under former Section 203(a)(7) was less demanding than
that of proving a "clear probability of persecution" under Section
243(h), the court of appeals' conclusion that our construction of the
Refugee Act imposes a more stringent test for entry than had existed
under prior law is flawed because it fails to take account of the
additional elements of proof required of an alien seeking conditional
entry under former Section 203(a)(7).  The courts in construing former
Section 203(a)(7) recognized that an applicant for conditional entry
was required to prove both that he had fled a Communist,
Communist-dominated or Middle Eastern country because of persecution
or fear of persecution on account of race, religion, or political
opinion, and that he was unable or unwilling to return to such country
on account of race, religion, or political opinion.  Shubash v. INS,
450 F.2d 345, 346 (9th Cir. 1971);  Ishak v. District Director, 432 F.
Supp 624, 626 (N.D. Ill. 1977).  And in assessing the second prong of
the applicant's proof -- his claim of inability or unwillingness to
return to his homeland on account of race, religion, or political
opinion -- the standard applied was whether the alien had established
a "likelihood of persecution" or "probable persecution" in the country
of deportation.  See Ishak v. District Director, supra, 432 F. Supp.
at 626.  Those verbal formulations correspond to the standard that
consistently has been applied to evaluate claims for withholding of
deportation under Section 243(h).  /40/ Hence, even if one discrete
element of the proof required of an applicant for conditional entry --
"persecution or fear of persecution" -- was less stringent than the
"clear probability of persecution" standard imposed on those seeking
withholding of deportation, the additional elements of proof required
of a conditional entrant amounted to essentially the same showing
required of an applicant for withholding relief.  /41/

   Finally, even if the court of appeals were correct in concluding
that the standard for admission of refugees under new Section 207, 8
U.S.C. (Supp. V) 1157, is somewhat more stringent than the standard
for conditional entry under former Section 203(a)(7), the result would
not be "anomalous." As noted above (page 12, supra), conditional entry
relief under former Section 203(a)(7) was available to a narrowly
circumscribed class of aliens, numerically as well as geographically
and ideologically.  As a consequence, the majority of refugees who
entered the United States prior to 1980 did so under the Section
212(d)(5) "parole" authority.  Briefing on the Growing Refugee
Problem:  Implications for International Organizations:  Hearing
Before the Subcomm. on International Organizations of the Hosue Comm.
on Foreign Affairs, 96th Cong., 1st Sess. 10 (1979);  S. Rep. No.
96-256, 96th Cong., 1st Sess. 1-2, 5-6 (1979);  H.R. Rep. No. 96-608,
96th Cong., 1st Sess. 2, 4, 11 (1979).  Not only was exercise of the
parole authority wholly discretionary with the Attorney General, but
also, even when it was exercised, it afforded a much narrower form of
relief (see pages 12-13, supra).  Thus, in focusing on the "more
generous" standard for conditional entry under Section 203(a)(7), the
Second Circuit ignored the fact that that provision was available to
only a limited number of refugees fleeing specified categories of
countries (see generally U.S. Refugee Programs:  Hearing Before the
Senate Comm. on the Judiciary, 96th Cong., 2d Sess. 17 (1980)), while
the majority of refugees were subject to the vagaries of the parole
system.

   It was Congress's intent in the Refugee Act, however, to equalize
the United States' policy toward refugees regardless of their
homeland.  /42/ Indeed, one of Congress's chief objectives in enacting
the 1980 legislation was to repeal former Section 203(a)(7),
particularly because of its discriminatory criteria.  Congress filled
the vacuum created by the elimination of that provision by
incorporating in the Refugee Act the uniform definition of refugee
contained in the United Nations Protocol (see legislative history
cited in notes 36 & 37, supra).

   In short, it is common ground that a significant impetus for the
Refugee Act of 1980 was "Congress's sympathy to the plight of refugees
* * *" (Pet. App. 22a).  /43/ But the court of appeals erred in
construing Congress's concern as relating to the standard each
individual alien must meet in order to establish eligibility for
admission.  To the contrary, Congress's intent in enacting the Refugee
Act, and particularly in repealing Section 203(a)(7) and replacing it
with a uniform definition of refugee, was to broaden the "pool" of
aliens for whom refugee status would be even a possibility.  If, by
doing so, the burden of proof required of aliens previously eligible
for conditional entry under Section 203(a)(7) was heightened by virtue
of the elimination of a previous presumption in their favor, that was
no "anomal(y.)" Rather, it was an inevitable byproduct of Congress's
desire to offer refuge from persecution equally and
nondiscriminatorily, within the constraints imposed by our inability
to accommodate all of the world's oppressed.

   b. The court of appeals also concluded (Pet. App. 16a) that a new
burden of proof was required in withholding cases because "standards
developed in an era of discretionary authority require some
adjustment." There is no merit to this peculiar suggestion.

   To begin with, as we have shown above, the statutory language
warrants no such change and the legislative history expressly
precludes it.  In addition, notwithstanding the discretionary cast of
former Section 243(h), no alien found statutorily eligible for
withholding of deportation under that provision was ever denied relief
as a matter of administrative discretion.  See In re Dunar, supra, 14
I. & N. Dec. at 321-323.  The Board thus never considered that it
possessed unfettered discretion under Section 243(h).  Accordingly,
the court of appeals' attack (Pet. App. 16a) on the "'clear
probability'" test as having "been initially articulated by the BIA as
its preferred way of implementing what had been (its) wholly
discretionary authority" is simply unfounded.  See Kashani v. INS,
supra, 547 F.2d at 379.  /44/

 E. The BIA's Construction Of The Refugee Act Of 1980 As Not Having
Altered The Standard By Which An Alien Must Prove Eligibility For
Withholding Of Deportation Is Entitled To Substantial Deference

   "Although not determinative, the construction of a statute by those
charged with its administration is entitled to great deference * * *."
United States v. Clark, 454 U.S. 555, 565 (1982).  See also NLRB v.
Bell Aerospace Co., 416 U.S. 267, 274-275 (1974);  Udall v. Tallman,
380 U.S. 16 (1965).  Accordingly, the Board's view of the standard by
which an alien must prove eligibility for relief under 8 U.S.C. (Supp.
V) 1253(h), as expressed in cases it decided subsequent to enactment
of the Refugee Act, is entitled to substantial weight.  /45/

   Cognizant of Congress's intent in the Refugee Act not to alter the
standard by which an alien must establish eligibility for relief under
Section 243(h) (see pages 36-40, supra), the Board, since enactment of
that legislation, has continued to use the phrases "clear probability
of persecution" and "likelihood of persecution" as well as
"well-founded fear of persecution" to describe that standard.  See,
e.g., In re Exilus, Interim Dec. No. 2914 (BIA Aug. 3, 1982), slip op.
3-4 ("well-founded fear of persecution" and "likelihood of
persecution");  Pet. App. 31a ("clear probability of persecution to be
directed at the individual respondent");  Rejaie v. INS, supra, 691
F.2d at 140 (Pet. App. 38a), quoting the Board ("'clear probability of
persecution'");  In re Martinez-Romero, Interim Dec. No. 2872 (BIA
June 30, 1981), slip op. 6-7 ("clear probability" and "well-founded
fear"), aff'd, Martinez-Romero v. INS, 692 F.2d 595 (9th Cir. 1982);
In re Lam, Interim Dec. No. 2857 (BIA Mar. 24, 1981), slip op. 3-4
("clear probability" used by immigration judge;  "well-founded fear"
used by the Board);  In re McMullen, 17 I. & N. Dec. 542, 544-546 (BIA
1980) ("clear probability" and "likelihood of * * * persecution"),
rev'd on other grounds, McMullen v. INS, 658 F.2d 1312 (9th Cir.
1981).  Moreover, regardless of how they are labeled, the Board has
made clear that the criteria by which it evaluates withholding or
asylum claims have not changed since passage of the Refugee Act.  (In
re Martinez-Romero, supra, slip op. 6-7):

      (G)eneralized undocumented assertions regarding claims of
      persecution ordinarily will not be sufficient to support a
      motion to reopen (to apply for withholding relief).  See
      generally Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978).
      Similarly, general allegations of political upheaval which
      affect the populace as a whole are insufficient to warrant
      reopening.  See generally Fleurinor v. INS, 585 F.2d 129 (5 Cir.
      1978);  Matter of Diaz, 10 I&N Dec. 199 (BIA 1963);  see also
      Matter of McMullen, supra.  Evidence presented in support of a
      claim of persecution must demonstrate a clear probability of
      persecution directed at the individual (alien) or a class to
      which the individual (alien) belongs.  Cheng Kai Fu v. INS,
      supra;  Matter of Chumpitazi, supra.  Evidence such as newspaper
      articles will be considered in evaluating a claim of
      persecution.  However, this type of evidence normally is not
      significantly probative on the issue of whether a particular
      alien would be subject to persecution if deported.  See Matter
      of McMullen, supra.

   See also Rejaie v. INS, supra, 691 F.2d at 145 (Pet. App. 50a).

   At least as applied, therefore, the terms "well-founded fear" and
"clear probability" have always been equivalent.  The Second Circuit's
holding that the "well-founded fear" language in 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" (Pet. App. 23a) thus liberalizes
significantly the standard by which aliens' claims must now be
assessed.  In so doing, the court of appeals worked a fundamental
change in the substance of our withholding and asylum law, in direct
contravention of the intent underlying both the United States'
accession to the Protocol in 1968 and the enactment of the Refugee Act
of 1980.  Such a flagrant violation of express legislative intent
should not be permitted to stand.  /46/

                              CONCLUSION

   The judgment of the court of appeals should be reversed and the
case remanded to that court for disposition of respondent's petition
for review under the standard that has been consistently applied by
the Board.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   J. PAUL MCGRATH

      Assistant Attorney General

   KENNETH S. GELLER

      Deputy Solicitor General

   BARBARD E. ETKIND

      Assistant to the Solicitor General

   MARGARET J. PERRY

      Attorney

   ANDRE M. SURENA

      Office of the Legal Adviser Department of State

   JUNE 1983

   /1/ "R." refers to the certified administrative record in the court
of appeals.

   /2/ The version of Section 243(h) that was in effect in 1977, when
respondent filed his first motion to reopen, is set forth in note 10,
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 (Pet. App. 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 proceeding.
 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.  Pet. App.
28a-29a;  R. 148-149.

   /6/ 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.

   /7/ 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." Pet. App. 31a.

   /8/ The court expressly left the formulation of an appropriate
standard for development on an ad hoc, case-by-case basis (Pet. App.
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.

   /9/ As originally enacted, Section 203(a)(7) made 10,200 admissions
available annually to refugees.  By the end of 1978, Congress had
amended the Immigration and Nationality Act to provide a single
worldwide preference system, and refugees then claimed 17,400
admissions annually.  D. Martin, The Refugee Act of 1980:  Its Past
and Future, 1982 Mich. Yearbook of Int'l Legal Studies 91, 116 n.11.

   /10/ 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.

   From 1952 to 1965, Section 243(h) authorized the withholding of
deportation of only those aliens who would be subject to "physical
persecution" in the country of deportation.  8 U.S.C. (1964 ed.)
1253(h).  In 1965, Congress amended the section by substituting the
words "persecution on account of race, religion, or political opinion"
for the words "physical persecution." Pub. L. No. 89-236, Section
11(f), 79 Stat. 918.

   /11/ This regulatory provision was revoked in 1981 (see 46 Fed.
Reg. 45117) after the Refugee Act of 1980 created a statutory scheme
for the granting of asylum (see pages 18-19, infra).

   /12/ The United States is not a party to the Convention itself.

   /13/ Article 32.1 of the Convention (19 U.S.T. 6275) extends
broader relief (a general right not to be expelled) to refugees
lawfully within the territory of a contracting party:  "The
Contracting States shall not expel a refugee lawfully in their
territory save on grounds of national security or public order."

   /14/ See, e.g., Refugee Act of 1979:  Hearings on H.R. 2816 Before
the Subcomm. on Immigration, Refugees, and International Law of the
House Comm. on the Judiciary, 96th Cong., 1st Sess. 1 (1979) (remarks
of Rep. Holtzman) ("our refugee policy up to this time has been
haphazard and inadequate.  Current programs are the result of ad hoc
responses of our Government to refugee crises that have existed
throughout the world -- in Hungary, Cuba, Eastern Europe, or
Indochina");  The Refugee Act of 1979, S. 643:  Hearing Before the
Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 1 (remarks of
Sen. Kennedy) ("(f)or too long our policy toward refugee assistance
has been ad hoc, with refugees being admitted in fits and starts, and
after long delays and great human suffering * * *"), 10-11, 69-70
(1979);  H.R. Rep. No. 96-608, 96th Cong., 1st Sess. 2, 5 (1979);  125
Cong. Rec. 23240 (1979) (remarks of Sen. Boschwitz) ("(o)ur policy
today lacks consistency and planning.  We respond to crises on a
case-by-case basis with no established policy or statute that guides
our actions").

   /15/ In Congress's view, the addition to the Act of new Sections
207 and 208 described in the text eliminated the need for the Attorney
General to parole large groups of refugees into the United States.
Accordingly, it amended the parole provision to require the Attorney
General, prior to paroling an alien who is a refugee, to make a
determination that "compelling reasons in the public interest with
respect to that particular alien require that the alien be paroled
into the United States rather than be admitted as a refugee under
(Section 207)." 8 U.S.C. (Supp. V) 1182(d)(5)(B).

   /16/ The Act authorized entries beyond these numerical limitations
if the President determined, after consultation with Congress and
before the beginning of the fiscal year, that admission of a specific
number of refugees in excess of 50,000 was justified by humanitarian
concerns or was otherwise in the national interest.  8 U.S.C. (Supp.
V) 1157(a)(1).  For fiscal years 1980, 1981 and 1982 the President in
fact made such determinations and approved the admission of more than
50,000 refugees in each of those years.

   /17/ As noted above, the definition of refugee quoted in the text
incorporates the definition of refugee contained in the United Nations
Protocol Relating to the Status of Refugees, to which the United
States had acceded in 1968.  See pages 14-15, supra.  The 1980
legislation went further than the Protocol, however, in, among other
things, recognizing that, "in special circumstances," one can be a
refugee within, as well as outside of, his country of nationality.  8
U.S.C. (Supp. V) 1101(a)(42)(B) thus defines the term refugee to
include, "in such special circumstances as the President after
appropriate consultation (with Congress) may specify, any person who
is within the country of such person's nationality or, in the case of
a person having no nationality, within the country in which such
person is habitually residing, and who is persecuted or who has a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion."

   The final sentence of 8 U.S.C. (Supp. V) 1101(a)(42)(B) precludes
one who himself has "ordered, incited, assisted, or otherwise
participated in the persecution of any person on account of race,
religion, nationality, membership in a particular social group, or
political opinion" from qualifying for refugee status.

   /18/ See, e.g., Refugee Act of 1979:  Hearings on H.R. 2816 Before
the Subcomm. on Immigration, Refugees, and International Law of the
House Comm. on the Judiciary, 96th Cong., 1st Sess. 170, 174, 187-188,
190, 250, 364, 384 (1979);  The Refugee Act of 1979, S. 643:  Hearing
Before the Senate Comm. on the Judiciary, 96th Cong., 1st Sess. 52,
182 (1979).  See also Admission of Refugees Into the United States:
Hearings on H.R. 3056 Before the Subcomm. on Immigration, Citizenship
and International Law of the House Comm. on the Judiciary, 95th Cong.,
1st Sess. 127 (1977).

   /19/ Such procedures have been promulgated and are codified at 8
C.F.R. 208.

   /20/ 8 U.S.C. (Supp. V) 1253(h)(1) provides:

         The Attorney General shall not deport or return an 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.

   The amendments to Section 243(h) thus make explicit that the
Attorney General has a mandatory duty not to deport or return an alien
eligible for withholding of deportation and that the provision is
applicable to exclusion as well as deportation proceedings and to
aliens who would be subject to persecution on account of nationality
or membership in a particular social group, as well as those who would
be persecuted because of race, religion or political opinion.

   /21/ We note that, by its own terms, Section 243(h) of the Act, 8
U.S.C. (Supp. V) 1253(h), suggests no change in the standard by which
an alien must prove eligibility for withholding of deportation, since
it neither includes nor incorporates by reference the "well-founded
fear" language on which the court of appeals based its decision.
(Section 243(h), as amended by the Refugee Act, prohibits the
deportation or return of an alien to any country in which his life or
freedom "would be threatened * * * on account of race, religion,
nationality, membership in a particular social group, or political
opinion").  As noted above (page 19, supra), however, "well-founded
fear" is the criterion for eligibility for asylee status (8 U.S.C.
(Supp. V) 1159(a)).  The Board has held that the standards for
eligibility for asylum and withholding of deportation are identical
notwithstanding that asylum is discretionary with the Attorney General
and withholding relief under Section 243(h) is mandatory for an
eligible alien.  See In re Martinez-Romero, Interim Dec. No. 2872 (BIA
June 30, 1981), slip op. 6, aff'd, Martinez-Romero v. INS, 692 F.2d
595 (9th Cir. 1982);  In re Lam, Interim Dec. No. 2857 (BIA Mar. 24,
1981), slip op. 4-5;  In re McMullen, 17 I. & N. Dec. 542, 544 (BIA
1980), rev'd on other grounds, McMullen v. INS, 658 F.2d 1312 (9th
Cir. 1981);  see also 8 C.F.R. 208.3 (asylum requests filed with the
immigration court "shall also be considered as requests for
withholding exclusion or deportation pursuant to section 243(h) of the
Act").

   /22/ Accord, Marroquin-Manriquez v. INS, 699 F.2d 129, 133 (3d Cir.
1983), petition for cert. pending, No. 82-1649 (filed Apr. 7, 1983);
Kashani v. INS, 547 F.2d 376, 379 (7th Cir. 1977);  In re Dunar, 14 I.
& N. Dec. 310, 319-320 (BIA 1973);  see also Raass v. INS, 692 F.2d
596 (9th Cir. 1982) (post-Refugee Act case applying standard of
"probable political persecution as decided under the heretofore
decided cases");  McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981)
(post-Refugee Act case applying "likelihood of persecution" standard).
 Contra, Reyes v. INS, 693 F.2d 597, 599-600 (6th Cir. 1982) (relying
on the decision under review).

   /23/ 8 C.F.R. 242.17(c) (1965) provided in relevant part:

      The (applicant for withholding of deportation) has the burden of
      satisfying the special inquiry officer that he would be subject
      to physical persecution as claimed.

   Current Section 242.17(c) provides:

      The (applicant for withholding of deportation) 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 (1982);  8 C.F.R. 108.3 (1981).

   /24/ Compare In re Janus and Janek, 12 I. & N. Dec. 866 (BIA 1968)
(Czechoslovakian anti-communists who were convicted and sentenced, in
absentia, on charges of "Defection from the Republic" entitled to
withholding of deportation), with In re Navy, 11 I. & N. Dec. 888,
889-890 (BIA 1966) (withholding of deportation to Hungary not
justified on religious grounds, in the absence of evidence that
alien's parents, who also were devout practicing Catholics, had ever
been subject to persecution in Hungary, or on grounds of political
opinion, in the absence of evidence of any political activity by the
alien either in Hungary or the United States);  and In re Sihasale, 11
I. & N. Dec. 759, 761-762 (BIA 1966) (rejecting Indonesian citizen's
claim that she would be subject to persecution by communists if
returned to Indonesia because of her prior employment with an agency
of the United States government, in view of the elimination of the
Communist Party as an organized political force in that country and
the absence of any evidence of persecution of the alien (before she
left Indonesia) or her family (who remained in Indonesia)).

   /25/ Compare In re Salama, 11 I. & N. Dec. 536 (BIA 1966) (evidence
of a government campaign that was responsible for the departure of
some 37,000 Jews from Egypt since 1954, and evidence that the Medical
Association of Egypt had advised the Egyptian populace to refrain from
consulting Jewish physicians and that Jewish professionals had been
dropped from the rolls of professional societies justified the
granting of an application for withholding of deportation to Egypt of
a Jew), with Sadeghzadeh v. INS, 393 F.2d 894, 896 (7th Cir. 1968)
("rumors" and "common knowledge" of persecution of Catholics in Iran
insufficient basis for withholding of deportation);  and Lena v. INS,
379 F.2d 536 (7th Cir. 1967) (Turkish alien not entitled to
withholding of deportation because of his Greek Orthodox faith, where
such discrimination as exists in Turkey is against the Greek church
rather than against individuals).

   /26/ Compare In re Janus and Janek, supra, 12 I. & N. Dec. at 871,
874-876 (Czechoslovakian alien who "ma(de) no claim that he ever
publicly denounced the (Communist" Party or its goals" while in
Czechoslovakia entitled to withholding of deportation on the basis of
his defection and consequent conviction and sentence in absentia),
with Kasravi v. INS, 400 F.2d 675, 676-677 (9th Cir. 1968) (holding
that the BIA did not abuse its discretion in denying application for
withholding of deportation of Iranian who had been "vociferous and
vehement in his criticism of the Shah here in the United States,"
because the State Department had concluded that "an Iranian student
would not in all likelihood be persecuted for activities in the United
States").

   /27/ See Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir. 1967),
cert. denied, 390 U.S. 1003 (1968) (aliens not entitled to withholding
of deportation to Hong Kong since "(t)heir status in Hong Kong as
exiles from the mainland of China will not distinguish them from
thousands of others, and the physical hardship or economic
difficulties they claim they will face will be shared by many others.
Those difficulties do not amount to the kind of particularized
persecution that justifies (withholding) of deportation").

   /28/ Because there appeared to be a conflict between Article 29.1
of the Convention and United States revenue laws dealing with the
taxation of nonresident aliens, and between Article 24 of the
Convention and certain United States social security laws, the United
States acceded to the Protocol subject to two reservations.  See 114
Cong. Rec. 29607 (1968).  Senator Proxmire advised the Senate (id. at
27757) that the "(r)eservations included in the (Secretary of State's)
Letter of Submittal remove even the slightest possible conflict
between Federal and State law and provisions of the Convention and
protocol."

   /29/ Having concluded (14 I. & N. Dec. at 319-320) that the
Protocol's "well-founded fear" terminology represented no substantive
change from the "clear probability" formulation, the Board next held
(id. at 320 emphasis added) that "there is no substantial difference
in the coverage of section 243(h) and Article 33." That is, the Board
was satisfied that the differences between Section 243(h), which
applied to "persecution on account of race, religion, or political
opinion," and Articles 1 and 33, which refer, in addition, to
"nationality" and "membership of a particular social group," and
between Section 243(h) and Article 1, which refer to persecution, and
Article 33, which does not mention persecution but rather forbids
expulsion of a refugee to a place where his "life or freedom will be
threatened," were "clearly reconcilable" and that any "distinctions in
terminology can be reconciled on a case-by-case consideration as they
arise" (14 I. & N. Dec. at 320-321).

   Finally, the Board concluded (14 I. & N. Dec. at 321-323) that the
mandatory quality of Article 33 required no change in the nature of
the determination made by the Attorney General under Section 243(h).
Although the latter provision was cast in discretionary terms and had
been construed by the courts as affording the Attorney General a
degree of discretion in decisionmaking thereunder (see, e.g.,
Muskardin v. INS, 415 F.2d 865, 866 (2d Cir. 1969);  Kasravi v. INS,
400 F.2d 675, 677-678 (9th Cir. 1968);  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, 537 (7th Cir. 1967)), the Board was aware of no
case in which "a finding has been made that the alien has established
the clear probability that he will be persecuted and in which section
243(h) withholding has nevertheless been denied in the exercise of
administrative discretion." 14 I. & N. Dec. at 322;  see also id. at
323.  The Board thus suggested (id. at 322) that "in referring to the
Attorney General's 'broad discretion' under section 243(h), the cases
contemplate the manner in which the Attorney General arrives at his
opinion and the limited scope of judicial review, rather than the
eligibility-discretion dichotomy." Accord, In re Francois, 15 I. & N.
Dec. 534, 536 (BIA 1975).

   /30/ The Second Circuit attempted (Pet. App. 18a) to minimize the
force of the decision in Kashani by asserting that the court there
"was presented with the extravagant claim that the Protocol has
shifted the inquiry entirely to an assessment of the applicant's
subjective state of mind." But the court below mischaracterized the
alien's claim in Kashani as being based solely on his subjective
fears.  As the Seventh Circuit's opinion makes clear (547 F.2d at
379), the alien had conceded the authority of the Attorney General,
under the Protocol, "to determine whether (the alien's) state of mind
is reasonable," an inquiry that surely is not "entirely * * *
subjective."

   /31/ See, e.g., Fleurinor v. INS, 585 F.2d 129, 132-134 (5th Cir.
1978) ("well-founded fear" used by immigration judge;  "likelihood"
and "probable persecution" used by court);  Martineau v. INS, 556 F.2d
306, 307 & n.2 (5th Cir. 1977) ("'clear probability' of persecution"
and "likelihood of persecution");  Henry v. INS, 552 F.2d 130, 131-132
(5th Cir. 1977) ("probable persecution," "reason to fear persecution"
and "well-grounded fear of political persecution");  Pereira-Diaz v.
INS, 551 F.2d 1149, 1154 (9th Cir. 1977) ("well-founded fear");
Zamora v. INS, 534 F.2d 1055, 1058 (2d Cir. 1976) ("likelihood of
persecution" used by court, "well founded fear" used by Board);
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 political persecution");  Gena v. INS, 424 F.2d
227, 232 (5th Cir. 1970) ("likely to be persecuted");  Kovac v. INS,
407 F.2d 102, 105, 107 (9th Cir. 1969) ("probability of persecution"
and "likelihood");  In re Williams, 16 I. & N. Dec. 697, 700-702, 704
(BIA 1979) ("well-founded fear," "'probable persecution'" and
"likelihood of persecution");  In re Mladineo, 14 I. & N. Dec. 591,
592 (BIA 1974) ("well-founded * * * fear of persecution");  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 of persecution");  In re Joseph, 13 I. & N.
Dec. 70, 72, 74 (BIA 1968) ("clear probability of perseuction" and
"likelihood of persecution").

   Notwithstanding this surfeit of case law recognizing no change in
the standard by which an alien must prove eligibility for withholding
of deportation, the Second Circuit relied (Pet. App. 18a) on isolated
phrases taken out of context from the Fifth Circuit's decision in
Coriolan v. INS, 559 F.2d 993 (1977).  The full paragraph from which
the court below culled the language on which it relied reads as
follows (id. at 997):

         We do not suggest that the Protocol profoundly alters
      American refugee law.  We do believe that our adherence to the
      Protocol reflects or even augments the seriousness of this
      country's commitment to humanitarian concerns, even in this
      stern field of law.  It may be appropriate to add that the
      foreign policy of the United States has recently become more
      dramatically focused in the protection of human rights around
      the world.

   As noted above (pages 25-28, supra), the express intent behind this
country's accession to the Protocol was indeed to reflect our
traditional commitment to humanitarian concerns with respect to
refugees and to augment the seriousness of that commitment (but not
the legal commitment itself) by undertaking an international
obligation to do what we already were doing as a matter of domestic
law.  Moreover, the result reached by the court in Coriolan -- remand
for reconsideration by the BIA -- was based on a newly available
Amnesty International report, not on any judicially perceived change
in the alien's burden of proof.  559 F.2d at 1004.

   /32/ Thus, after accession to the Protocol as before, an alien
would be granted withholding of deportation relief if he could
demonstrate that he or his family had been persecuted in his homeland
or that he had engaged in activities after leaving his homeland that
indicated a likelihood of persecution if he returned.  See, e.g.,
Berdo v. INS, 432 F.2d 824 (6th Cir. 1970) (BIA erred in denying
withholding of deportation relief to Hungarian who had participated in
street fighting against the Russian Military Occupation Forces in 1956
during which, he publicly admitted since his departure from Hungary,
he had killed a Russian soldier);  Kovac v. INS, 407 F.2d 102, 105
(9th Cir. 1969) (Yugoslavian crewman who had been discriminated
against in Yugoslavia because of his Hungarian extraction and because
of his refusal to inform on the activities of the Hungarian
underground could not be denied withholding of deportation simply
because other crewmen who remained in this country after their ships
had departed had not been persecuted upon their eventual return to
Yugoslavia, since an alien is "entitled to a determination based upon
the probability of persecution of himself, not of others");  In re
Joseph, 13 I. & N. Dec. 70, 72 (BIA 1968) (Haitian alien who was
active politically against the Duvalier regime until his departure
from Haiti, who had been imprisoned on three occasions by the Duvalier
regime and, while incarcerated, had suffered beatings from which scars
remained on his body demonstrated that "he would be singled out as an
individual by the governmental authorities and suffer persecution
therefrom" if returned to Haiti).  It also remained true that an alien
who could not demonstrate a likelihood that he would be singled out
for persecution if he returned to his homeland, either by evidence
that he or his family had been persecuted, evidence that all or
virtually all of the members of a group to which he belonged had been
persecuted, or evidence of activities in which he had engaged since
leaving his homeland that indicated a likelihood of persecution if he
returned, would not be granted withholding of deportation relief.  See
Appendix, infra, 1a-4a, for a representative sample of post-accession
cases in which withholding of deportation was denied.

   /33/ Additional hearings on the Act were held on September 19 and
25, 1979, and the House Judiciary Committee's report was dated
November 9, 1979.  Nevertheless, we have found no mention of the
Handbook anywhere in the legislative history.

   /34/ The United Nations Economic and Social Council's Report of the
Ad Hoc Committee on Statelessness and Related Problems 39 (Feb. 17,
1950) (E/1618;  E/AC 32/5) (reprinted in 11 U.N. ESCOR, Annex (Agenda
Item 32) at 11, U.N. Doc. E/1618 and Corr. 1 (1950)) supports the view
that the "well-founded fear of persecution" standard, like the
previous formulations, includes objective as well as subjective
elements.  That report defines the expression "'well-founded fear of
being the victim of persecution for reasons of race, religion,
nationality or political opinion'" as meaning "that a person has
either been actually a victim of persecution or can show good reason
why he fears persecution." Ibid.

   /35/ See also Refugee Act of 1979:  Hearings on H.R. 2816 Before
the Subcomm. on Immigration, Refugees and International Law of the
House Comm. on the Judiciary, 96th Cong., 1st Sess. 1 (1979);  The
Refugee Act of 1979, S. 643:  Hearing Before the Senate Comm. on the
Judiciary, 96th Cong., 1st Sess. 2, 8, 39 (1979);  125 Cong. Rec.
23232 (1979) (remarks of Sen. Kennedy).

   Title I of the Refugee Act of 1980, Pub. L. No. 96-212, Section
101, 94 Stat. 102, contains a Congressional Declaration of Policies
and Objectives.  Subsection (b) provides (8 U.S.C. (Supp. V) 1521
note):

         The objectives of this Act are to provide a permanent and
      systematic procedure for the admission to this country of
      refugees of special humanitarian concern to the United States,
      and to provide comprehensive and uniform provisions for the
      effective resettlement and absorption of those refugees who are
      admitted.

   /36/ See also, e.g., The Refugee Act of 1979:  Hearings on H.R.
2816 Before the Subcomm. on International Operations of the House
Comm. on Foreign Affairs, 96th Cong., 1st Sess. 71 (1979) (remarks of
Doris Meissner, Deputy Associate Attorney General, Department of
Justice) ("(w)hat we have done in the Administration bill is simply
incorporated the United Nations definitions for 'refugee'");  Refugee
Act of 1979:  Hearings on H.R. 2816 Before the Subcomm. on
Immigration, Refugees, and International Law of the House Comm. on the
Judiciary, 96th Cong., 1st Sess. 43 (1979) (remarks of Dick Clark,
Ambassador at Large and U.S. Coordinator for Refugee Affairs) (the
bill "essentially adopts the definition of the United Nations Protocol
Relating to the Status of Refugees").

   /37/ See, e.g., The Refugee Act of 1979:  Hearings on H.R. 2816
Before the Subcomm. on International Operations of the House Comm. on
Foreign Affairs, 96th Cong., 1st Sess. 71 (1979) (remarks of Doris
Meissner, Deputy Associate Attorney General, Department of Justice)
(new definition "supplants the definition in the immigration statute
right now which limits 'refugee' to certain geographical areas of the
world");  Refugee Act of 1979:  Hearings on H.R. 2816 Before the
Subcomm. on Immigration, Refugees, and International Law of the House
Comm. on the Judiciary, 96th Cong., 1st Sess. 27 (1979) (remarks of
Rep. Fish) ("the fundamental change under the legislation, of course,
is the replacing of the existing definition of refugee with the
definition which appears in the United Nations Convention and Protocol
on refugees, thus eliminating ideological and geographical limitations
* * *");  S. Rep. No. 96-256, 96th Cong., 1st Sess. 15 (1979);  H.R.
Rep. No. 96-608, 96th Cong., 1st Sess. 1, 9 (1979);  126 Cong. Rec.
H1520 (daily ed. Mar. 4, 1980) (remarks of Rep. Holtzman) ("(t)his new
definition finally eliminates the geographical and ideological
restrictions applicable to refugees contained in our law since 1952").

   /38/ More recent legislative history confirms that subsequent
Congresses have been well aware of the basis on which this country
acceded to the United Nations Protocol in 1968.  In connection with
its recent consideration of the proposed Immigration Reform and
Control Act of 1982, the House reiterated the legislative
understanding that the 1968 accession to the Protocol did not expand
the substantive rights of aliens (H.R. Rep. No. 97-890 (Pt. 1), 97th
Cong., 2d Sess. 51 (1983):

      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 either 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."

   See also Asylum Adjudication:  Hearings Before the Subcomm. on
Immigration and Refugee Policy of the Senate Comm. on the Judiciary,
97th Cong., 1st Sess. 107 (1981) (remarks of Ira Kurzban, Counsel for
the National Civil Liberties Committee and the Haitian Refugee Center,
Inc.) ("(t)he present system requires that an alien show a 'clear
probability' that he is a bona fide asylum applicant").  Such
subsequent legislative history "does not establish definitively the
meaning of an earlier enactment, but it does have persuasive value."
Bell v. New Jersey, No. 81-2125 (May 31, 1983), slip op. 10.

   /39/ The court of appeals also relied (Pet. App. 13a) on In re
Adamska, 12 I. & N. Dec. 201 (Reg. Comm. 1967).  But that case
involved (id. at 202) a comparison between "(t)he statutory standards
for refugee status under section 203(a)(7)" and the pre-1965 standard
for withholding of deportation under Section 243(h) -- that the alien
"would be subject to physical persecution" in the country of
deportation (see note 10, supra).  Not surprisingly, in those
circumstances the Regional Commissioner held that the denial of the
alien's prior application for withholding of deportation was not
dispositive of her Section 203(a)(7) application (12 I. & N. Dec. at
202):  "The holding in 1960 that the applicant would not be subject to
'physical persecution' in Poland is not determinative of the issues in
the present (Section 203(a)(7) application."

   /40/ In fact, in applying these formulations, the Ishak court
relied solely on cases decided under Section 243(h).  See Ishak v.
District Director, supra, 432 F. Supp. at 625, citing Kashani v. INS,
supra;  Cisternas-Estay v. INS, 531 F.2d 155 (3d Cir. 1976);  Shkukani
v. INS, 435 F.2d 1378 (8th Cir.), cert. denied, 403 U.S. 920 (1971);
Rosa v. INS, 440 F.2d 100 (5th Cir. 1971);  and Chang Kai Fu v. INS,
supra.

   /41/ Indeed, In re Taheri, 14 I. & N. Dec. 27 (Reg. Comm. 1972), on
remand, 14 I. & N. Dec. 35 (Reg. Comm. 1973), suggests that an alien
who was ineligible for conditional entry because he would not show
flight on account of persecution might nonetheless be eligible for
withholding of deportation under Section 243(h).  See 14 I. & N. Dec.
at 30, 38.

   /42/ See, e.g., Briefing on the Growing Refugee Problem:
Implications for International Organizations:  Hearing Before the
Subcomm. on International Organizations of the House Comm. on Foreign
Affairs, 96th Cong., 1st Sess. 21 (1979) (remarks of Dick Clark, U.S.
Coordinator for Refugee Affairs and Ambassador-at-Large) (passage of
the Refugee Act "would make all people -- regardless of their
ideology, regardless of their geography -- eligible for the (refugee)
program");  S. Rep. No. 96-256, 96th Cong., 1st Sess. 1 (1979);  H.R.
Rep. No. 96-608, 96th Cong., 1st Sess. 13 (1979);  125 Cong. Rec.
23240 (1979) (remarks of Sen. Boschwitz) ("(i)f our commitment to help
desperate, homeless people is sincere, we must be willing to help all
in need of assistance despite their ideologies or countries of
origin").

   /43/ The court of appeals' particular emphasis (Pet. App. 19a, 22a)
on the plight of the "boat people," however, is misplaced.  As Senator
Kennedy, the primary sponsor of the Refugee Act, explained (125 Cong.
Rec. 23234 (1979)):  while the "current crisis of refugees in
Indochina * * * underscored the need for the permanent structure and
framework this legislation will bring to our refugee resettlement
programs," the "reform legislation has been pending in various forms
in Congress for some years."

   /44/ What is more, as noted above (page 25, supra), it was not the
Board but the courts that initially articulated the "clear
probability" test.

   /45/ With certain exceptions not relevant here, the Attorney
General is charged with the administration and enforcement of the
Immigration and Nationality Act, 8 U.S.C. 1103(a).  He, in turn, has
delegated to the Board appellate authority over decisions of special
inquiry officers in deportation, including withholding of deportation,
cases (see 8 C.F.R. 3.1(b)(2), 242.17(c)).  The Board's decisions are
final unless referred to the Attorney General (8 C.F.R. 3.1(d)(2) and
(h)).

   /46/ The court of appeals acted particularly irresponsibly in
striking down the standard that the Board and the INS have
consistently employed without providing any guidance concerning what
it would consider to be an appropriate alternative (see pages 6-7 &
note 8, supra).  The court's bare suggestions (Pet. App. 15a, 23a)
that the proper standard "is somewhat more generous than the BIA's
administrative practice" and is satisfied by "a showing far short of a
'clear probability'" are singularly unenlightening to immigration
authorities charged with the task of ruling on withholding and asylum
applications.  Hence, even if the INS and the Board were to evaluate
all post-Refugee Act claims in view of the decision below, there is no
assurance that such an attempt would satisfy the Second Circuit or
would not result in further remands to the Board until that body
happened upon the particular standard contemplated by the court of
appeals.  In addition to thwarting the will of Congress, therefore,
affirmance of the decision below would impose substantial burdens in
the administration of our immigration laws.

   Appendix Omitted