Interim Decision #2986 

MATTER OF ACOSTA 

In Deportation Proceedings 

A-24159781 

Decided by Board March 1, 1985 

(1) Construction of the provisions the United Nations Protocol Relating to the Status 

of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 

268, is left by that agreement to each state that is party to the Protocol; accordingly, the various international interpretations of the Protocol, including the 

Handbook on Procedures and Criteria for Determining Refugee Status Under the 

1951 Convention and the 1967 Protocol Relating to the status of Refugees published by the Office of the United Nations High Commissioner for Refugees, are 

useful tools in construing our obligations under the Protocol, but they are neither 

binding upon the United States nor controlling as to construction of the Refugee 

Act of 1980. 

(2) An alien in an exclusion or deportation proceeding who seeks to demonstrate eligibility for either asylum under section 208 of the Immigration and Nationality 

Act, 8 U.S.C. § 1158 (1982), or withholding of deportation under section 243(h) of 

the Act, 8 U.S.C. § 1253(h) (1982), must make two related showings: he must meet 

his evidentiary burdens of proof and persuasion as to the facts, and he must meet 

the statutory standards of eligibility set out by the pertinent provisions in the 

Act. 

(3) It is the alien who bears the burdens of proof and persuasion in asylum and 

withholding of deportation cases and he must establish the facts by a preponderance of the evidence. 

(4) In order to meet the statutory standard of eligibility for asylum, an alien must 

satisfy each of the following four elements in the definition of a refugee created 

by section 101(aX42XA) of the Act, 8 U.S.C. § 1101(aX42XA) (1982): (1) the alien 

must have a "fear" of "persecution"; (2) the fear must be "well founded"; (3) the 

persecution feared must be "on account of race, religion, nationality, membership 

in a particular social group, or political opinion"; and (4) the alien must be unable 

or unwilling to return to his country of nationality or to the country in which he 

last habitually resided because of persecution or his well-founded fear of persecution. 

(5) The statutory standard for asylum requires the facts to show that an alien's primary motivation for requesting refuge in the United States is "fear," i e. , a genume apprehension or awareness of danger in another country, no other motivation 

will suffice. 

(6) The term "persecution" in the definition of a refugee under the Act means harm 

or suffering that is inflicted upon an individual in order to punish him for pos211 
Interim Decision #2986 

sessing a belief or characteristic a persecutor seeks to overcome; the word does 

not encompass the harm that arises out of civil or military strife in a country. 

(7) The requirement of a "well-founded fear of persecution" in section 101(aX42)(A) 

of the Act means that an individual's fear of persecution must have its basis in 

external, or objective, facts that show there is a realistic likelihood he will be persecuted upon his return to a particular country; this requires an alien to show 

that his fear has a solid basis in objective facts or events and that it is likely he 

will become the victim of persecution. 

(8) In order for an alien to show that it is likely he will become the victim of persecution, his evidence must demonstrate that (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of 

some sort; (2) the persecutor is already aware, or could easily become aware, that 

the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the 

alien. 

(9) The well-founded fear standard for asylum and the clear probability standard for 

withholding of deportation are not meaningfully different and, in practical application, converge. 

(10) "Persecution on account of membership in a particular social group" refers to 

persecution that is directed toward an individual who is a member of a group of 

persons, all of whom share a common, immutable characteristic. i.e., a characteristic that either is beyond the power of the individual members of the group to 

change or is so fundamental to their identities or consciences that it ought not be 

required to be changed. 

(11) In order for an alien tu show persecution on account of "political opinion" 

within the meaning of the Act, it is not sufficient to show that a persecutor's conduct furthers his goals in a political controversy; rather, the alien must show that 

it is his own, individual political opinion that a persecutor seeks to overcome by 

the infliction of harm or suffering. 

(12) The requirement that an alien must be unable or unwilling to return to a particular country because of persecution or a well-founded fear of persecution requires an alien to do more than show a threat of persecution in a particular place 

or abode within a country—he must show that the threat of persecution exists fur 

him country-wide. 

CHARGE: 

Order: Act of 1062—Sec. 241(aX2) [8 U.S.C. §1251(aX2)]—Entered without inspection 

ON BEHALF OF RESPONDENT: 

Evangeline G Abriel, Esquire 

Catherine Lampard, Esquire 

Ecumenical Immigration Services, Inc. 

821 General Pershing Street 

New Orleans, Louisiana 70115 

ON BEHALF OF SERVICE: 

William M. Darlington 

District Counsel 

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members 

In a decision dated December 22, 1983, the immigration judge 

found the respondent deportable pursuant to section 241(a)(2) of the 

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Interim Decision #2986 

Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), for 

entering the United States without inspection, denied the respondent's applications for a grant of asylum and for withholding of deportation to El Salvador, but granted the respondent the privilege 

of departing voluntarily in lieu of deportation. The respondent has 

appealed from that portion of the immigration judge's decision denying the applications for asylum and withholding of deportation. 

The appeal will be dismissed. 

The respondent is a 36-year-old male native and citizen of El Salvador. In a deportation hearing held before an immigration judge 

over the course of 2 days in July and August 1983, the respondent 

conceded his deportability for entering the United States without 

inspection and accordingly was found deportable as charged. The 

respondent sought relief from deportation by applying for a discretionary grant of asylum pursuant to section 208 of the Act, 8 U.S.C. 

§ 1158 (1982), and for mandatory withholding of deportation to El 

Salvador pursuant to section 243(h) of the Act, 8 U.S.C. § 1253(h) 

(1982). 1In an oral decision, the immigration judge denied the respondent's applications for these two forms of relief finding that he 

had failed to meet his burden of proof for such relief. It is this finding that the respondent has challenged on appeal. 

In order to be eligible for withholding of deportation to any country, an alien must show that his "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 

243(hX1) of the Act. We have held, and the Supreme Court of the 

United States has recently affirmed, that this statutory provision 

requires an alien to demonstrate "a clear probability" of persecution, on account of one of the five grounds enumerated in the Act. 

INS v. Stevie, 467 U.S. 407 (1984). The Court has construed the 

clear probability standard to require a showing that it is more 

likely than not an alien would be subject to persecution. Id. at 424. 

In order to be eligible for a grant of asylum, an alien must show 

he or she is a "refugee" as defined by section 101(a)(42)(A) of the 

Act, 8 U.S.C. § 1101(a)(42)(A) (1982). See section 208 of the Act. That 

definition includes the requirement that an alien must have "a 

well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." See section 101(a)(42)(A) of the Act. In INS v. Steviq supra, 

Under the regulations of the Immigration and Naturalization Service, any 

asylum request made after the institution of deportation proceedings is also considered to be a request for withholding of deportation under section 243(h) of the Act. 8 

C.P.R. § 208.8(b) (1984). 
Interim Decision #2986 

the Supreme Court did not find it necessary to construe the meaning of the phrase "well-founded fear of persecution." Rather, the 

Court assumed for the purposes of analysis that the well-founded 

fear standard for asylum is more generous than the clear probability standard for withholding of deportation. INS v. Stevie, supra, at 

425. 

It has been our position that as a practical matter the showing 

contemplated by the phrase "a well-founded fear" of persecution 

converges with the showing described by the phrase "a clear probability" of persecution. See, e.g., Kashani v. INS, 547 F.2d 376, 379 

(7th Cir- 1977); Matter of Dunar, 14 I&N Dec. 310, 319-20 (BIA 

1973). Accordingly, we have not found a significant difference between the showings required for asylum and withholding of deportation. Matter of Salim, 18 I&N Dec. 311, 314 (BIA 1982); Matter of 

Lam, 18 I&N Dec. 15 (BIA 1981); accord Matter of Portales, 18 I&N 

Dec. 239, 241 (BIA 1982). 

The United States Court of Appeals for the Third Circuit has 

agreed with this position, holding that thre is no difference between the standards for asylum and withholding of deportation. 

Sotto v. INS, 748 F.2d 832, 836 (3d Cir. 1984); see also Rejaie v. INS, 

691 F.2d. 139, 146 (3d Cir_ 1982) The Seventh Circuit has concluded 

that the well-founded fear standard for asylum is not identical, but 

"very similar," to the clear probability standard for withholding of 

deportation and has described the showing for asylum as one requiring actual persecution or some other "good reason" to fear persecution_ Carvajal-Munoz v. INS, 743 F.2d. 562, 574-76 (7th Cir. 

1984). This position also appears to have been adopted by the Sixth 

Circuit. Youkhanna v. INS, 749 F.2d 360, 362 (6th Cir. 1984). The 

Ninth Circuit, however, which has indicated that the well-founded 

fear standard requires a "valid reason" to fear persecution, has 

concluded that this standard is more generous to the alien than the 

clear probability standard for withholding of deportation. BolanosHernandez v. INS, 749 F.2d 1316, 1321 (9th Cir. 1984). In light of 

the conflicting positions over the standards controlling asylum and 

withholding of deportation, we shall reexamine our position on the 

showings required for these forms of relief. 

We begin with the understanding that au alien in an exclusion 

or a deportation proceeding who seeks to demonstrate eligibility for 

either asylum or withholding of deportation_ must necessarily make 

two related showings. First, the alien must go forward with his evidence and initially persuade the immigration judge that the facts 

alleged to be the basis of the claim for asylum or withholding of 

deportation are true, i.e., the alien must meet his evidentiary, burdens of proof and persuasion. See generally, E. Cleary, McCormick's 

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Handbook of the Law of Evidence § 336, at 783-85 (2d ed. 1975). 

Second, the alien must demonstrate that the facts found to be true 

meet the tests of eligibility for asylum or withholding of deportation set out in the Act, i.e., the alien must meet the statutory 

standards of eligibility for these forms of relief. See sections 208 

and 243(h) of the Act. 

THE EVIDENTIARY BURDENS OF PROOF AND PERSUASION 

FOR ASYLUM AND WITHHOLDING OF DEPORTATION 

Case law and the regulations have always made clear that it is 

the alien who bears the burden of proving that he would be subject 

to, or fears, persecution. See INS v. Stevie, supra, at 422 n.16; 8 

C.F.R. §§ 208.5, 242.17(c) (1984); see also Matter of Nagy, 11 I&N 

Dec. 888, 889 (BIA 1966); Matter of Sihasale, 11 I&N Dec. 759, 760-

62 (BIA 1966). However, to date our decisions have not articulated 

the burden of persuasion an alien must meet hi order to convince 

the trier of fact of the truth of the allegations that form the basis 

of the claim for asylum or withholding of deportation. 

It is the general rule in both administrative and immigration law 

that the party charged with the burden of proof must establish the 

truth of his allegations by a preponderance of the evidence. See E. 

Cleary, supra, § 355, at 853; lA C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.10b, at 5-121 (rev. ed. 1984). 2This is 

the burden of persuasion generally applied to aliens when they 

seek to prove their admissibility to the United States or when they 

seek relief from deportation through such means as suspension of 

deportation under section 244(a) of the Act, 8 U.S.C. § 1254(a) 

(1982), or adjustment of status under section 245 of the Act, 8 

U.S.C. § 1255 (1982). See Matter of Vorrais, 12 I&N Dec. 84 BIA 

1967); IA C. Gordon & H. Rosenfield, supra, §§ 3.20d, 5.10b, at 5- 

121. We see no reason to depart from this burden of persuasion 

when aliens seek asylum and withholding of deportation. Thus, in 

such cases we consider it to be incumbent upon an alien to estalolish the facts supporting his claim by a preponderance of the evidence. 3 Cf. Bolanos-Hernandez v. INS, supra, at 1320 n.5. In deterThe Service's burden of proving an alien's deportability by clear, unequivocal, 

and convincing evidence is an exception to this general rule. See Woodby v. INS, 385 

U.S. 276 (1966). 

° We note that is McMullen v. INS, 658 F.2c1 1912, 1916 (9th Cir. 1981), the Ninth 

Circuit held that a "substantial evidence" standard of review applies in cases in 

which aliens seek withholding of deportation under section 243(h) of the Act. See 

also Carvajal-Munoz v. INS, supno, at 567. The standard of review employed by a 

Continued 

01 
Interim Decision #2986 

mining whether a preponderance of the evidence supports an 

alien's allegations, it is necessary to assess the credibility and the 

probative force of the evidence put forward by the alien. See, e.g., 

Saballo-Cortez v. INS, 749 F.2d 1354, 1357 (9th Cir. 1984). 

In order to prove the facts underlying his applications for asylum 

and withholding of deportation, the respondent testified, and attested in an affidavit attached to his asylum application, to the following facts. In 1976 he, along with several other taxi drivers, 

founded COTAXI, a cooperative organization of taxi drivers of 

about 150 members. COTAXI was designed to enable its members 

to contribute the money they earned toward the purchase of their 

taxis. It was one of five taxi cooperatives in the city of San Salvador and one of many taxi cooperatives throughout the country of 

El Salvador. Between 1978 and 1981, the respondent held three 

management positions with COTAXI, the duties of which he described in detail, and his last position with the cooperative was 

that of general manager. He held that position from 1979 through 

February or March of 1981. During the time he was the general 

manager of COTAXI, the respondent continued on the weekends to 

work as a taxi driver. 

Starting around 1978, COTAXI and its drivers began receiving 

phone calls and notes requesting them to participate in work stoppages. The requests were anonymous but the respondent and the 

other members of COTAXI believed them to be from anti-go-vernment guerrillas who had targeted small businesses in the transportation industry for work stoppages, in hopes of damaging El Salvador's economy. COTAXPs board of directors refused to comply with 

the requests because its members wished to keep working, and as a 

result COTAXI received threats of retaliation. Over the course of 

several years, COTAXI was threatened about 15 times. The other 

taxi cooperatives in the city also received similar threats. 

Beginning in about 1979, taxis were seized and burned; or used 

as barricades, and COTAXI drivers were assaulted or killed. Ultimately, five members of COTAXI were killed in their taxis by unknown persons. Three of the COTAXI drivers who were killed were 

friends of the respondent and, like him, had been founders and officers of COTAXI. Each was killed after receiving an anonymous 

note threatening his life. One of these drivers, who died from injuries he sustained when he crashed his cab in order to avoid being 

court in reviewing our decision is a separate and distinct standard from that imposed upon a party to measure his burden of persuasion on issues of fact. Woodby v. 

INS, supra, at 282-83. Thus, the Ninth Circuit's decision in McMullen has no bearing on the issue of an alien's burden of persuasion in withholding or asylum cases. 

216 
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shot by his passengers, told his friends before he died that three 

men identifying themselves as guerrillas had jumped into his taxi, 

demanded possession of his car, and announced they were going to 

kill him. 

During January and February 1981, the respondent received 

three anonymous notes threatening his life. The first note, which 

was slipped through the window of his taxi and was addressed to 

the manager of COTAXI, stated: "Your turn has come, because you 

are a traitor." The second note, which was also put on the respondent's car, was directed to "the driver of Taxi No. 95," which was 

the car owned by the respondent, and warned: "You are on the 

black list." The third note was placed on the respondent's car in 

front of his home, was addressed to the manager of COTAXI, and 

stated: "We are going to execute you as a traitor." In February 

1981, the respondent was beaten in his cab by three men who then 

warned him not to call the police and took his taxi The respondent 

is of the opinion that the men who threatened his life and assaulted him were guerrillas who were socking to disrupt transportation 

services in the city of San Salvador_ He also has the impression, 

however, that COTAXI was not favored by some government officials became they viewed the cooperative as being too socialistic. 

After being assaulted and receiving the three threatening notes, 

the respondent left El Salvador because he feared for his life. He 

declared at the hearing that he would not work as a taxi driver if 

he returned to El Salvador because he understands that there is 

little work for taxi drivers now. He explained that the people are 

too poor to call taxis. Additionally, he stated that the terrorists are 

no longer active. 

As evidence of the truth of his version of the facts, the respondent submitted a letter from the present manager of COTAXI, stat 

ing that the respondent was a member of that organization for 3 

years. The respondent also submitted several articles reporting 

that leftist guerrillas had threatened to kill American advisors and 

personnel in El Salvador, had launched an offensive in three of the 

provinces in the country, and had engaged in a campaign designed 

to sabotage the transportation industry and the country's economy. 

The Service did not submit any evidence refuting the respondent's testimony. As required by regulation, the Service did submit a 

written advisory opinion from the Bureau of Human Rights and 

Humanitarian Affairs in the Department of State pertaining to the 

respondent's Request for Asylum in the United States (Form T -539). 

See 8 C.F.R. §§ 208.7, 208.10(b) (1983). That opinion states that the 

respondent does not appear to qualify for asylum because he failed 

to show a well-founded fear of persecution in El Salvador on ac217 
Interim Decision #2986 

count of race, religion, nationality, membership in a particular 

social group, or political opinion. 

The immigration judge found the respondent's testimony sufficient to prove that he was a founder and member of COTAXI but 

insufficient to prove that he had received several death threats and 

had been assaulted by guerrillas. The immigration judge did not 

make any finding that the respondent lacked credibility; rather, he 

rejected a substantial portion of the respondent's testimony solely 

because it was self-serving. 

While the immigration judge's assessment of the evidence deserves deference, we disagree with his conclusion that the respondent's testimony should be rejected solely because it is self-serving. 

The respondent described in specific detail the circumstances surrounding the deaths of his three friends shortly after they received 

threatening notes, the threats he received, and the facts surrounding his assault. His testimony as to these matters was logically consistent with his testimony about the threats made to COTAXI and 

its members for failing to participate in guerrilla -sponsored work 

stoppages. Moreover, the respondent submitted objective evidence 

to establish his membership in COTAXI and to corroborate his testimony that the guerrillas sought to disrupt the public transportation system of El Salvador. Thus, absent an adverse credibility 

finding by the immigration judge, we find the respondent's testimony, which was corroborated by other objective evidence in the 

record, to be worthy of belief. It remains to be determined, however, whether the respondent's facts are sufficient to meet the statutory standards of eligibility for asylum and withholding of deportation. 

THE STATUTORY STANDARD FOR ASYLUM 

A grant of asylum is a matter of discretion. See section 208 of the 

Act; INS v. Stevie, supra, at 423 n.18. However, an alien is eligible 

for a favorable exercise of discretion only if he qualifies as a "refugee" under section 101(aX42)(A) of the Act. Therefore, that section 

establishes the statutory standard of eligibility for asylum. The pertinent portion of section 101(a)(42) provides as follows: 

The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any 

country in *Mel 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.... The term "refugee" does not include any person 

who ordered, incited, assisted, or otherwise participated in the persecution of any 

218 
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person on accourtt of race, religion, nationality, membership in a particular social 

group, or political opinion. 

This section creates four separate elements that must be satisfied 

before an alien qualifies as a refugee: (1) the alien must have a 

"fear" of "persecution"; (2) the fear must be "well founded"; (3) the 

persecution feared must be "on account of race, religion, nationality, membership in a particular social group, or political opinion"; 

and (4) the alien must be unable or unwilling to return to his country of nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution. 4 

(1) The alien must have a "fear" of "persecution." 

Initially, we mote that Congress added the elements in the definition of a refugee to our law by means of the Refugee Act of 1980, 

Pub. L. No. 96-212, 94 Stat. 102. In so doing Congress intended to 

conform the Immigration and Nationality Act to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 

[1968] 19 U.S.T. 6223, T.LA.S. No. 6577, 606 U.N.T.S. 268 ("Protocol"), to which the United States had acceded in 1968. H.R. Rep. 

No. 781, 96th Cong., 2d Sess. 19, reprinted in 1980 U.S. Code Cong. 

& Ad. News 160, 160; S. Rep. No. 256, 96th Cong., 1st Sess. 4, 14 -15, 

reprinted in 1980 U.S. Code . Cong. & Ad. News 141, 144, 154-55; 

H.R. Rep. No. 608, 96th Cong., 1st Seas. 9-10 (1979); see also INS v. 

Stevic, supra, at 422-23. Article 1.2 of the Protocol 5defines 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. 

Compare 19 U.S.T. 6225 with 6261. 6 

While the language of section 101(aX42XA) excludes from the definition of a refugee any person who "ordered, incited, assisted, or otherwise participated in the 

persecution of any person," we do not construe this language as establishing a fifth 

statutory element an alien must initially prove before he qualifies as a refugee. This 

provision is one of exclusion, not one of inclusion, and thus requires an alien to 

prove he did not participate in persecution only if the evidence raises that issue. 

5 Article 1.2 of the Protocol largely incorporated the definition of a refugee contained in Article 1A(2) of the United Nations Convention Relating to the Status of 

Refugees, July 28, 1951, 189 U.N.T.S. 150 ("U.N. Convention"), to which, the United 

States was not a party. 

Despite Congress' intention to conform our law to the Protocol, the actual definition of "refugee" adopted in the Act differs in several significant respects from that 

Continued 

219 
Interim Decision #2986 

Since Congress intended the definition of a refugee in section 

101(aX42XA) of the Act to conform to the Protocol, it is appropriate 

for us to consider various international interpretations of that 

agreement. However, these interpretations are not binding upon us 

in construing the elements created by section 101(a)(42)(A) of the 

Act, for the determination of who should be considered a refugee is 

ultimately left by the Protocol to each state in whose territory a 

refugee finds himself. See Young, Between Sovereigns: A Reexamination of the Refugee's Status, Transnat'l Legal Probs. of Refugees: 

1982 Mich. Y.B. Int'l Legal Stud. 339, 344-45 (1982); Office of the 

United Nations High Commissioner for Refugees, Handbook on 

Procedures and Criteria for Determining Refugee Status Under the 

1951 Convention and the 1.967 Protocol Relating to the Status of 

Refugees 1, 3-4 (Geneva, 1979) ("Handbook"); INS v. Stevie, supra, 

at 428 n.22. 

In adding the definition of a refugee to the Act, Congress did not 

identify what one must show in order to establish a "fear of persecution." The phrase "fcar of persecution" is not new to the Act. 

Prior to 1980, it appeared in former section 203(a)(7), which provided for the conditional admission to the United States of certain 

aliens if they fled a country because of persecution or "fear of persecution." See 8 U.S.C. § 1153(a)(7)(A)(i) (1976) (repealed by the Refugee Act of 1980, Pub. L. No. 96-212, § 203(c)(3), 94 Stat. 102,107). 7 

 Former section 203(a)(7) was applied by Service officers in allocating visas to immigrants abroad and by district directors in determining eligibility for adjustment of status under section 245 of the 

Act. See, e.g., Matter of Ugricic, 14 I&N Dec. 384 (D.D. 19'72); Matter 

in the Protocol and the U.N. Convention. First, the U.N. Convention excludes from 

all of its provisions several groups of persons: (1) those who have committed crimes 

against humanity; (2) those who have committed a serious nonpolitical crime; and 

(3) those who are guilty of acts contrary to the principles of the United Nations. 

Article 1F of the U.N. Convention at 19 U.S.T. 6263-64. Thus, these groups are not 

eligible for refugee status under the U.N. Convention or the Protocol. The language 

in section 101(aX42XA) of the Act does not contain this exclusion. Second, in a provision that does not pertain to grants of asylum, Congress provided that a person may 

qualify as a refugee even if he is still inside his country of nationality or of habitual 

residence so long as he has been specially designated by the President. Section 

101(aX42)03) of the Act. Neither the Protocol nor the U.N. Convention definition of 

"refugee" reaches persons still within the borders of their own countries. Martin, 

The Refugee Act of 1980: Its Past and Future, Transnat'l Legal Probs. of Refugees: 

1982 l'ffich. Y.B. Intl Legal Stud. 91, 101-03 (1982). 

7 Specifically, former section 203(aX7) allowed 17,400 persons each year to be conditionally admitted to the United States if they could demonstrate that (1) they had 

fled from a communist or communist-dominated country or from any country in the 

Middle East, and (2) they had fed these countries because of persecution or fear of 

persecution. See former section 203(aX7) of the Act. 

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of Adarnska, 12 I&N Dec. 201 (R.C. 1967). Immigration judges and 

the Board were without authority to decide applications brought 

under former section 203(a)(7), and accordingly the meaning of the 

phrase "fear of persecution" was never directly at issue, or construed, in proceedings before the Board. See Matter of Guiragossian, 17 I&N Dec. 161, 163 (BIA 1979). 

"Fear" is a subjective condition, an emotion characterized by the 

anticipation or awareness of danger. Webster's Third New International Dictionary 831 (16th ed. 1971). The Office of the United Nations High Commissioner for Refugees ("UNHCR") has suggested 

in the Handbook that the definition of a refugee found in the Protocol requires fear to be a person's primary motivation for seeking 

refugee status. See Handbook, supra, at 11-12. While we do not consider the UNHCR's position in the Handbook to be controlling,a 

the Handbook nevertheless is a useful tool to the extent that it provides us with one internationally recognized interpretation of the 

Protocol. 

Given the prominence of the word "fear" in the definition of a 

refugee created by Congress, and given the Handbook's persuasive 

assessment in this instance that "fear" should be a refugee's primary motivation, we conclude that an alien seeking to quality 

under section 101(aX42XA) of the Act must demonstrate that his 

primary motivation for requesting refuge in the United States is 

"fear," i.e., a genuine apprehension or awareness of danger in another country. No other motivation, such as dissent or disagreement with the conditions in another country or a desire to experience greater economic a_vantage d or personal freedom in the 

8 The Handbook was issued in 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. Thus, it is highly unlikely that Congress consulted the 

Handbook while drafting the definition of a refugee in the Refugee Act of 1980. But 

see United States Refugee Program, Oversight Hearings before the Subcommittee on 

immigration, Refugees, and International Law of the House Committee on the Judiciary, 97th Cong., 1st Sees. 24, 26 (1981) (memorandum from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, to David W. Crosland, General 

Counsel, Immigration and Naturalization Service) (assuming Congress was aware of 

the criteria articulated in the Handbook at the time of passage of the Refugee Act 

in 1980, but nonetheless concluding the Handbook is only a guideline). 

In addition, the jurisdiction of the UNHCR has been expanded over the years and 

now encompasses large groups of persons displaced by civil strife or natural disasters who simply do not qualify under the Protocol's limited definition of a "refugee." Special Project, Displaced Persons: "The New Refugees," 13 Ga. J. Intl and 

Comp. Law 755, 763-71 (1983) and authorities cited therein. Thus, it cannot be certain to what extent the position in the Handbook reflects concepts that are outside the strict definition of a "refugee" under the Protocol See infra p. 228. 

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United States, satisfies the definition of a refugee created in the 

Act 

Prior to 1980, "persecution" was construed to mean either a 

threat to the life or freedom of, or the infliction of suffering or 

harm upon, those who differ in a way regarded as offensive. See, 

e.g., Kouac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Matter of Maccauc4 14 I&N Dec. 429, 434 (BIA 1973); Matter of Dunar, supra, at 

820; Matter of .Diaz, 10 I&N Dec. 199, 200 n.1 (BIA 1963); see also 

Matter of Laipenieks, 18 I&N Dec. 433, 456-57 (BIA 1983). 9The 

harm or suffering inflicted could consist of confinement or torture. 

See Blazina v. Bouchard, 286 F.2d 507, 511 (3d Cir. 1961). It also 

could consist of economic deprivation or restrictions so severe that 

they constitute a threat to an individual's life or freedom. See, e.g., 

Dunat v. Hurney, 297 F.2d 744, 746 (3d Cir. 1961); Matter of 

Salama, 11 I&N Dec. 536 (BIA 1966); Matter of Eusaph, 10 I&N 

Dec. 453, 454 (BIA 1964). Generally harsh conditions shared by 

many other persons did not amount to persecution. See Cheng Kai 

Fa v. mrs, 386 F.2d 750. 753 (2d Cir. 1967). cert. denier:4 390 U.S. 

1003 (1968). Prosecution for violating travel restrictions and laws of 

general applicability did not constitute persecution, unless the punishment was imposed for invidious reasons. See Soric v. INS, 346 

F.2d 360, 361 (7th Cir. 1965); Matter of Janus and Janek, 12 I&N 

Dec. 866, 876 (BIA 1968). 

Two significant aspects of this accepted construction of the term 

"persecution" were as follows. First, harm or suffering had to be 

inflicted upon an individual in order to punish him for possessing a 

belief or characteristic a persecutor sought to overcome. See, e.g., 

Matter of Diaz, supra, at 204. Thus, physical injury arising out of 

civil strife or anarchy in a country did not constitute persecution. 

Id. at 203. Second, harm or suffering had to be inflicted either by 

the government of a country or by persons or an organization that 

the government was unable or unwilling to control. See, e.g., 

McMullen v. INS, supra, at 1315 n.2; Rosa v. INS, 440 F.2d 100, 102 

(1st Cir. 1971); Matter of McMullen, 17 I&N Dec. 542, 544-45 (BIA 

1980); Matter of Pierre, 15 I&N Dec. 461, 462 (BIA 1975). 

We conclude that the pre-Refugee Act construction of "persecution" should be applied to the term as it appears in section 

101(a)(42)(A) of the Act. It is a basic rule of statutory construction 

that words used in an original act or section, that are repeated in 

9 The word "persecution" appeared not only in former section 203(a)(7) but also in 

the predecessors to the present withholding of depurtailuu pLovision in section 

243(h) of the Act and in the regulatory provisions pertaining to grants of asylum. 

See INS v. Stevie, supra, at 414 and nn.6-7; 8 § 108 (1980). Prior to 1980, it 

was construed by us and by the courts primarily in the latter two contexts. 

222 
Interim Decision #2986 

subsequent legislation with a similar purpose, are presumed to be 

used in the same sense in the subsequent legislation. Lorillard v. 

Pens, 484 U.S. 575, 581. (1978); see also IA C. Sands, Sutherland 

Statutory Constrwetion § 22.33 (4th ed. 1972). Thus, we presume 

that Congress, in using the term "persecution" in the definition of 

a refugee under .section 101(a)(42)(A) of the Act, intended to adopt 

the judicial and administrative construction of that term existing 

prior to the Refugee Act of 1980. See Commissioner v. Noel's Estate, 

380 U.S. 678, 681 (1965); of McMullen v. INS, supra, at 544-45. Our 

presumption is reinforced by the fact that in 1978, 2 years before 

enacting the Refugee Act of 1980, Congress chose not to define the 

word "persecution" when using it in other provisions of the Act because the meaning of the word was understood to be well established by administrative and court precedents. See Matter of Laipenieks, supra, at 456. 

As was the case prior to enactment of the Refugee Act, "persecution" as used in section 101(a)(42)(A) clearly contemplates that 

harm or suffering must be inflicted upon an individual in order to 

punish him for possessing a belief or characteristic a persecutor 

seeks to overcome. The word does not embrace harm arising out of 

civil strife or anarchy. In fact, Congress specifically rejected a definition of a refugee that would have included "displaced persons," 

i.e., those who flee harm generated by military or civil disturbances." This construction is consistent with the international interpretation of "refugee" under the Protocol, for that term does not 

include persons who are displaced by civil or military strife in their 

countries of origin. See Special Project, supra note 8, at 763-69, and 

authorities cited therein. 

In the case before us, we find that the respondent has adequately 

established that his primary motivation for seeking asylum is fear 

of persecution. We must now consider whether it has been demonstrated that this fear is well founded and whether the other elements necessary to establish eligibility for asylum have been satisfied. 

" The Senate bill contained a definition of "refugee" that included "displaced 

persons" and referred, in part, to "any person who has been displaced by military or 

civil disturbance or uprooted because of arbitrary detention" who is unable to 

return to "his usual place of abode." See S. 643, 96th Cong., 1st Sess. § 201(a) (1979); 

S. Rep. No. 256, St111177, at 4. The House bill did not contain such a provision. See 

N.R. 2816, 96th Cong., 1st Sess. § 201(a) (1979). The conference committee adopted 

the House version, thereby rejecting a definition of "refugee" that included "displaced persons." See H.R. Rep. No. 781, supra, at 19; see also section 101(aX42XA) of 

the Act 

999 
Interim Decision #2986 

(2) The fear of persecution must be "well founded." 

In 1973, in Matter of Dunar, supra, we construed the meaning of 

"well-founded fear of persecution," as that phrase is used in the 

Protocol, as follows: 

[T]he requirement that the fear be "well-founded" rules out an apprehension 

which is purely subjective. . . . Some sort of showing must be made and this can 

ordinarily be done only by objective evidence. The 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 

Matter of Dunar, supra, at 319 (emphasis added). Our construction 

of the Protocol's well-founded fear standard was accepted by the 

courts and thereafter "a well-founded fear" of persecution was understood to mean that an alien had to produce objective evidence 

showing a likelihood or probability of persecution. See INS v. 

Stevie, supra, at 419-20 and n.12 and cases cited therein; Kashani 

v. INS, supra, at 379. Thus, during 1979 and 1980, the years in 

which Congress drafted, considered, and enacted the definition of 

"refugee" in. section 101(a)(42)(A) of the Act, the accepted administrative and judicial construction in this country of the well-founded 

fear standard was oue that linked this standard to objective facts, 

as opposed to purely subjective fear, and to the likelihood of persecution. See INS v. Stevie, supra, at 419-20 and n.12. 

Congress did not indicate in the legislative history of the Refugee 

Act of 1980 that it intended to alter the accepted construction of "a 

well-founded fear of persecution" by using this phrase in the definition of a "refugee" in section 101(a)(42)(A) of the Act. Moreover, the 

pre-Refugee Act construction of "a well-founded fear of persecution" is nearly identical to that proposed by the authority on international refugee law, Atle Grahl-Madsen, in his treatise on the 

meaning of the U.N. Convention and the Protocol: 

The adjective 'well-founded' suggests that it is not the frame of mind of the 

person concerned which is decisive for his claim to refugeehood, but that this 

claim should be measured with a more ohjective yardstick. 

We cannot find a meaningful denominator in the minds of refugees. We must 

seek it in the conditions prevailing in the country whence they have fled. 

'Well-founded fear of being persecuted' may therefore be said to exist, if it is likely 

that the person concerned will become the victim of persecution if he returns to his 

country of origin. 

[T]he real test is the assessment of the likelihood of the applicant's becoming a 

victim of persecution upon his return to his country of origin. If there is a real 

224 
Interim Decision #2986 

chance that he will suffer persecution, that is reason good enough, and his 'fear' is 

'well-founded'. 

1 A. Grahl-Madsen, The Status of Refugees in International Law 

§§ 76, 77, at 173, 175, 181 (1966) (emphasis added) (footnote omitted). 

Lastly, the pre-Refugee Act construction of "a well-founded fear of 

persecution!' is consistent with the intention of the drafters of the 

U.N. Convention, for by the use of this language the drafters were 

seeking to introduce an objective, as opposed to a purely subjective, 

test for the determination of refugee status. 1 A. Grahl-Madsen, 

supra, § 78, at 179.' 

Since there is no indication that Congress intended to depart 

from the accepted judicial and administrative construction of "a 

well-founded fear of persecution" and since this construction is consistent with the U.N. Convention and the Protocol, we see no valid 

reason for departing from the construction of the well-founded fear 

standard that prevailed in this country prior to the Refugee Act of 

1980. Accordingly, we continue to construe "a well-founded fear of 

persecution" to mean that an individual's fear of persecution must 

have its basis in external, or objective, facts that show there is a 

realistic likelihood he will be persecuted upon his return to a particular country. 

As has always been the case, our construction of the well-founded fear standard reflects two fundamental concepts. The first is 

that in order to be "well founded," an alien's fear of persecution 

cannot be purely subjective or conjectural—it must have a solid 

The committee that drafted the phrase, "a well-founded fear of persecution," in 

the U.N. Convention defined the phrase to mean that a person actually must have 

been a victim. of persecution or be able to show "good reason" why he fears persecution. Matter of Dunar, supra, at 319. That committee considered various proposals 

defining refugee status in terms of being unwilling to return to one's country of 

origin because of "serious apprehension based on reasonable grounds of . . . persecution," or a "justifiable fear of persecution," or a "fear of persecution," before selecting the term "well-founded" to describe the nature of the fear that qualified one as 

a refugee. U.N. Does. E/AC.32/L.2, E/AC.32/L.3, E/AC.32/L.4 and Add. 1 (Jan. 17, 

1060). In addition, the committee was guided by prior international agreements pertaining to refugees, one of which was the Constitution of the International Refugee 

Organization ("IRO"). See Report of the Ad Hoc Committee on Statelessness and Related Problems, U.N. Doc. E/1618 at 37 (Feb. 17, 1950). The IRO Constitution provided that refugees and displaced persons became the concern of the IRO if, inter alia, 

they had valid objections to returning to their countries of origin such as "persecution or fear, based on reasonable grounds of persecution." Constitution of the IRO, 

ratified Dec. 16, 1946, Part I, §§ A, B, C.1(aX1), 62 Stat. 3037, T.I.A.S. No. 1846, 18 

U.N.T.S. 2 (effective Aug Rs, 19481 reprinted in 1948 U.S. Code Cong. Service 2042, 

2051-52. Thus, we conclude that in using the phrase "well-founded fear of persecution," the drafters of the U.N. Convention were attempting to create an objective 

measure of the fear of persecution. 

225 
Interim Decision #2986 

basis in objective facts or events. Compare Matter of MartinezRonwro, 18 I&N Dec. 75, 79 (BIA 1981) (an alien did not show a 

well-founded fear of persecution because there were no objective 

facts supporting his claim to asylum) with Matter of Dunar, supra, 

at 319 (a showing of a well-founded fear of persecution rules out a 

purely subjective apprehension and requires a showing to be made 

by objective evidence). This concept, after all, is consistent with the 

generally understood meaning of the term "well-founded," which 

refers to something that has a. firm foundation in fact or is based 

on excellent reasoning, information, judgment, or grounds. See 

Webster's Third New International Dictionary, supra, at 2595. 

The second fundamental concept that is, and always has been, reflected in our construction of "a well-founded fear of persecution" 

is that in order to warrant the protection afforded by a grant of 

refuge, an alien must show it is likely he will become the victim of 

persecution. Compare Matter of Salim, supra, at 313-15 (an alien 

established eligibility for asylum and met the well-founded fear 

standard because he showed the requisite "likelihood" of persecution) with Mutter of Donor, .supra, at 319 (the crucial question 

under the well-founded fear standard is whether a person has 

shown a realistic "likelihood" of persecution). Since language by its 

nature is inexact, we have used such words as "likelihood," or "realistic likelihood," or even "probability" of persecution to express 

this concept. See, e.g., Matter of Salim, supra; Matter of Dunar, 

supra. By use of such words we do not mean that "a well-founded 

fear of persecution" requires an alien to establish to a particular 

degree of certainty, such as a "probability" as opposed to a "possibility," that he will become a victim of persecution. Rather, as a 

practical matter, what we mean can best be described as follows: 

the evidence must demonstrate that (1) the alien possesses a belief 

or characteristic a persecutor seeks to overcome in others by means 

of punishment of some sort; (2) the persecutor is already aware, or 

could easily become aware, that the alien possesses this belief or 

characteristic; (3) the persecutor has the capability of punishing 

the alien; and (4) the persecutor has the inclination to punish the 

alien. The first of these factors is inherent in the showing that the 

conduct the alien fears amounts to "persecution" under the Act, 

i.e., the infliction of suffering or harm in order to punish an alien 

because he differs in a way a persecutor deems offensive and seeks 

to overcome. The second, third, and fourth factors are all indispensable in showing that there is a real chance an alien will become a 

victim of persecution, for if the persecutor is not aware or could 

not easily become aware that an alien possesses the characteristic 

that is the basis for persecution, or if the persecutor lacks the capa226 
Interim Decision # 2986 

bility to carry out persecution, or if the persecutor has no inclination to punish the particular alien, then it cannot reasonably be 

found that the alien is likely to become the persecutor's victim. 

The issue of whether an alien's facts demonstrate these four factors 

is one that ordinarily must be decided on a case-by-case basis, for 

the question of what kinds of facts show a likelihood of persecution 

ultimately depends upon each alien's own particular situation. 

"[The likelihood of becoming a victim of persecution may vary 

from person to person. For example, a well-known personality may 

be more exposed to persecution than a person who has always remained obscure. . . . [TJherefore [it may be] necessary to assess 

the situation of each person on its own merits." 1 A. Grahl-Madsen, 

supra, § '76, at 175. 

To date, the courts have not agreed upon a common description 

of the well-founded fear standard in section 101(aX42XA) of the Act. 

The Third Circuit has essentially adopted our language and concluded that "a realistic likelihood" of persecution accurately describes the well-founded fear standard. Compare Rejaie v. INS, 

supra, at 146 with Matter of Dunar, supra, at 319. The Sixth, Seventh, and Ninth Circuits, on the other hand, appear to have chosen 

the language "good reason" or "valid reason" to fear persecution to 

describe this standard. Bolanos-Hernandez v. INS, supra, at 1222; 

Youkhanna v. INS, supra, at 362; Carvajal-Munoz v. INS, supra, at 

574, 576-77; see also Stevie v. Sava, 678 F.2d 401, 405-06 (2d Qr. 

1982), rev'd an other grounds, INS v. Stoic, supra. We think that 

on their face descriptions such as "good reason" or "valid reason" 

to fear persecution do not adequately describe the well-founded 

fear standard. To the extent that such words could be interpreted 

to mean that an alien's fear of persecution need only be plausible,: 

they do not reflect the generally understood meaning of "wellfounded." See supra p. 226. Nor do these words reflect the understanding of Congress, and the meaning of the Protocol, that an 

alien must show it is likely he will become a victim of persecution 

before he is eligible for refuge. See supra pp. 224-25. 

Moreover, as a practical matter, we are not certain that these descriptions most accurately describe the analysis used by the courts 

when ascertaining whether an alien's fear of persecution is "well 

founded." No matter how the courts have described the well-founded fear standard, they have required an alien to come forward with 

more than his purely subjective fears of persecution; he has been 

required to show that his fears have a sound basis in personal experience or in other external facts or events. See, e.g., Bulanos-Hernandez v. INS, supra, at 1321 and n.11; Youkhanna v. INS, supra, 

at 362; Carvajal-Munoz, supra, at 5'74, 576-77; Rejaie v. INS, supra, 

227 
Interim Decision #2986 

at 145-46. In addition, each of the courts has assessed an alien's 

facts to determine whether he is likely to become a victim of persecution and, in so doing, has looked for facts demonstrating some 

combination of the four factors we have used to describe a likelihood of persecution. See, e.g., Bolanos-Hernandez v. INS, supra, at 

1324; Daily v. INS, 744 F.2d 1191, 1196 (6th Cir. 1984); CarvajalMunoz v. ENS, supra, at 577-79; Chavez v. INS, 723 F.2d 1431, 

1433-34 (9th Cir. 1984); Shoaee v. INS, 704 F.2d 1079, 1083-84 (9th 

Cir. 1983). 

Our construction of "a well-founded fear of persecution" is also 

consistent with some aspects of the UNHCR's interpretation of the 

Protocol. Like us, the UNHCR is of the opinion that the term 

"well-founded" requires a person's fear of persecution to be more 

than a matter of personal conjecture and to be supported by an objective situation. Handbook, supra, para. 38, 41, at 11-13. Furthermore, the UNHCR is of the opinion that a person claiming a wellfounded fear of persecution must show that he is not tolerated by, 

and has come to the attention of, a persecutor. Handbook, supra, 

para. 80, at 19. However, we are not certain that the UNHCR's position adequately reflects the concept, inherent both in the Protocol 

and in the construction of the well-founded fear standard at the 

time Congress employed it in section 101(a)(42)(A) of the Act, that 

refuge in this country should be dependent upon a showing of a 

likelihood of persecution. For example, the UNHCR advocates that 

a well-founded fear of persecution is established merely if an alien 

finds his return to a country to be "intolerable" or wishes to avoid 

situations entailing some risk of persecution. Handbook, supra, 

para. 42, 45. at 12-13. Therefore, to the extent that the UNHCR's 

position in the Handbook does not require an individual to show he 

is likely to become a victim of persecution, we find that position to 

be inconsistent with Congress' intention and with the meaning of 

the Protocol. 

Given our construction of the showing required by the language 

"a well-founded fear of persecution," it remains to be determined 

how this showing compares with the "clear probability" of persecution required for section 243(h) withholding of deportation. The 

Third and Seventh Circuits view the well -founded fear and clear 

probability standards to be either identical or very similar to one 

another. Sotto v. INS, supra, at 836; Carvajal-Munoz, supra, at 574- 

75. The Ninth Circuit, on the other hand, has concluded that the 

well-founded fear standard is more generous to an alien than the 

clear probability standard. Bolanos-Hernandez v. INS, supra, at 

1321; see also Stevic v. Sava, supra, at 406. 

228 
Interim Decision #2986 

One might conclude that "a well-founded fear of persecution," 

which requires a showing that persecution is likely to occur, refers 

to a standard that is different from "a clear probability of persecution," which requires a showing that persecution is "more likely 

than not" to occur- As a practical matter, however, the facts in. 

asylum and withholding cases do not produce clear-cut instances in 

which such fine distinctions can be meaningfully made. Our inquiry in these cases, after all, is not quantitative, Le., we do not 

examine a variety of statistics to discern to some theoretical degree 

the likelihood of persecution. Rather our inquiry is qualitative: we 

examine the alien's experiences and other external events to determine if they are of a kind that enable us to conclude the alien is 

likely to become the victim of persecution. In this context, we find 

no meaningful distinction between a standard requiring a showing 

that persecution is likely to occur and a standard requiring a showing that persecutiom is more likely than not to occur. As we construe them, both the well-founded fear standard for asylum and the 

clear probability standard for withholding of deportation require 

an alien's facts to show that the alien possesses a characteristic a 

persecutor seeks to overcome by punishing the individuals who possess it, that a persecutor is aware or could easily become aware the 

alien possesses this characteristic, that a persecutor has the capability of punishing the alien, and that a persecutor has the inclination to punish the alien. Accordingly, we conclude that the standards for asylum and withholding of deportation are not meaningfully different and, in practical application, converge. 

Our position is most consistent with what we perceive to have 

been Congress' understanding of the relationship between asylum 

and withholding of deportation at the time the present provisions 

were enacted in the Refugee Act of 1980. Prior to 1980, asylum and 

withholding of deportation were closely related forms of relief, and 

asylum was available if an alien could show the same likelihood of 

persecution that was required for withholding of deportation." 

12Prior to the Refugee Act of 1980, a request for asylum filed after completion of 

deportation proceedings was considered to be a request for section 243(h) withholding of deportation and for, inter alia, the benefits of Article 33 of the Protocol and 

the U.N. Convention which prohibit the expulsion of a refugee to a place where his 

"life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion." INS v. Stevie supra, at 

s-17. 420 n.13: see also 8 C.F.R. § 108.3(a) (1980). An applicant for asylum had the 

burden of proving that he "would be subject to persecution on account of race, reii 

gion, nationality, membership in a particular social group, or political opinion." 8 

C.F.R. § 108.3(c) (1980). 

Continued 

229 
Interim Decision #2986 

The legislative history of the Refugee Act does not contain any express indication that Congress intended to alter this relationship; 

quite the contrary, the legislative history indicates that Congress 

understood it was preserving this relationship." 

Thus, under the changes made by the Refugee Act of 1980, an 

alien is eligible for asylum if he meets all of the other elements in 

the definition of a refugee under section 101(a)(42)(A) of the Act 

and can show "a well-founded fear of persecution," i.e., objective 

facts that demonstrate it is likely he will become a victim of persecution. Section 208(a) of the Act. A grant of asylum provides him 

not only with temporary refuge in this country, but with the possibility of obtaining permanent refuge here, i.e., an opportunity to 

become a lawful permanent resident. Section 209(b) of the Act. 

However, asylum is ultimately a matter of discretion. Section 

208(a) of the Act. An alien may be denied asylum as a matter of 

discretion, may be found deportable or excludable, and then may 

find himself in the position of being expelled. In such a situation 

he is nonetheless protected against expulsion to the country of persecution, so long as he qualifies for -withholding of deportation. See 

section 243(h)(1) and (2) of the Act. However, withholding of deportation only protects the alien from being expelled to the country in 

which his life or freedom would be threatened, it does nut prevent 

Similarly, withholding of deportation under section 243(h) of the Act was construed to be comparable to the benefit afforded by Article 33 of the Protocol and the 

U.N. Convention. See Matter of Duna, supra, at 319-20. An alien seeking withholding of deportation, like an alien seeking asylum, was required to show he "would be 

subject to persecution on account of race, religion, or political opinion." 8 C.F.R. 

§ 242.17(e) (1930); see also INS v. Stevie supra> at 414 nn.6 & 7, 420 n.13. 

"The Senate bill required that in order to be eligible for asylum an alien must 

meet the well-founded fear definition of a refugee and must show that his deportation or return was prohibited by the section 243(h) withholding of deportation provision. S. 643, supra. § 203(e); S. Rep. No. 256, supra, at 16. The Senate assumed that 

this did not change the then-existing substantive standard for asylum. S. Rep. No. 

256, supra, at 9. The House bill contained an asylum provision that made no express 

reference to withholding of deportation. See H.R. 2816, supra, § 203(e). However, the 

House Judiciary Committee perceived asylum and withholding of deportation to be 

related forms of relief accomplishing the same end, namely that of conforming 

United States law to the obligation of Article 33 of the Protocol and the U.N. Convention. H.R. Rep. No. 608, supra, at 17-18. The conference committee adopted the 

House version of the asylum provision and thus in the language of the statute did 

not link asylum to withholding of deportation. See H.R. Rep. No. 781, supra, at 5- 

Nevertheless, in its report the committee perceived asylum and withholding of deportation to be interchangeable and did not distinguish them as separate forms of 

relief. /d. at 20. We think these facts show that Congress understood the functions 

of asylum and withholding of deportation to be closely related and the standards of 

eligibility for these forms of relief to be essentially comparable. But see CarvajalMunoz v. INS, supra, at 574-75 n.15. 

230 
Interim Decision #2986 

his expulsion to some other country. Compare sections 243(a) and 

(h) of the Act. 

We note that the Seventh Circuit has viewed this statutory structure as lending support for the conclusion that the standards for 

withholding of deportation and asylum are somewhat different 

from one another, for the court has concluded that Congress reasonably could have intended an entitlement to withholding of deportation to be available upon a greater showing than that required for a discretionary grant of asylum. Carvajal-Munoz, supra, 

at 575. Conversely, however, the structure of the Act also lends 

support for the conclusion that Congress intended withholding of 

deportation to be available upon a lesser showing than that required for asylum, because the right to avoid deportation to one 

particular country, which is afforded by withholding of deportation, 

is a lesser benefit than the privileges of remaining in this country 

under a grant of refuge and of becoming a permanent resident, 

which are afforded by asylum. Since the structure of the Act reasonably supports two contrary conclusions about the relationship 

between the standards for asylum and withholding of deportation, 

we do not find the Act's structure to be particularly helpful in ascertaining Congress' understandiig or intention. Rather, we find a 

better indication of Congress' intention in the legislative history 

showing that Congress perceived the standards for asylum and 

withholding of deportation to be comparable to one another. 

In the case before us, the respondent claims he fears persecution 

at the hands of two groups: the government and the guerrillas. 

Therefore, under our construction of the well-founded fear standard, the respondent must show that his fear of persecution by these 

groups is more than a matter of personal conjecture or speculation; 

he must show by objective events that his fear has a sound basis in 

fact and that persecution by the government or by the guerrillas is 

likely to occur if he is returned to El Salvador. This means that he 

must demonstrate that (1) he possesses characteristics the government or the guerrillas seek to overcome by means of punishment of 

some sort; (2) the government or the guerrillas are aware or could 

easily become aware that he possesses these characteristics; (3) the 

government or the guerrillas have the capability of punishing him; 

and (4) the government and the guerrillas have the inclination to 

punish him 

The respondent's fear of persecution by the government has no 

basis whatsoever in either his personal experiences or in other external events. To the contrary, by the respondent's own admission, 

this fear is based solely on his impression that some officials in the 

government may have viewed COTAXI as being too socialistic. This 

231 
Interim Decision 4 2986 

purely subjective impression is not sufficient to show a well-founded fear of persecution by the government. 

In addition, whatever the facts may have been prior to the respondent's departure from El Salvador, those facts have changed 

significantly since 1981. Most importantly, the respondent admitted 

that he does not intend to work as a taxi driver upon his return to 

El Salvador. The respondent's facts do not show that the persecution of taxi drivers continued even after they stopped working as 

drivers. Furthermore, the respondent testified that the guerrillas' 

strength has diminished significantly in El Salvador since 1981. 

For these reasons, the respondent has not shown that at the 

present time he possesses characteristics the guerrillas seek to 

overcome or that the guerrillas have the inclination to punish him. 

Thus, the facts do not demonstrate that there is a likelihood the 

respondent would be persecuted by the guerrillas should he be returned to El Salvador, and accordingly his fear of persecution upon 

deportation has not been shown to be "well founded." 

(3) The persecution feared must be "on account of race, religion, nationality, membership in a particular social group, or political opinion." 

The respondent has argued that the persecution he fears at the 

hands of the guerrillas is on account of his membership in a particular social group comprised of COTAXI drivers and persons engaged in the transportation industry of El Salvador and is also on 

account of his political opinion. 

The requirement of persecution on account of "membership in a 

particular social group" comes directly from the Protocol and the 

U.N. Convention. See supra p. 219. Congress did not indicate what 

it understood this ground of persecution to mean, nor is its meaning clear in the Protocol. This ground was not included in the definition of a refugee proposed by the committee that drafted the 

U.N. Convention; rather it was added as an afterthought. 1 A. 

Grahl-Madsen, supra, at 219. International jurisprudence interpreting this ground of persecution is sparse. G. Goodwin-Gill, The Refugee in International Law 30 (1983). It has been suggested that the 

notion of a "social group" was considered to be of broader application than the combined notions of racial, ethnic, and religious 

groups and that in order to stop a possible gap in the coverage of 

the U.N. Convention, this ground was added to the definition of a 

refugee. 1 A. Grahl-Madsen, supra, at 219. A purely linguistic analysis of this ground of persecution suggests that it may encompass 

persecution seeking to punish either people in a certain relation, or 

232 
Interim Decision #2986 

having a certain degree of similarity, to one another or people of 

like class or kindred interests, such as shared ethnic, cultural, or 

linguistic origins, education, family background, or perhaps economic activity. G. Goodwin-Gill, supra, at 31. The UNHCR has suggested that a "particular social group" connotes persons of similar 

background, habits, or social status and that a claim to fear persecution on this ground may frequently overlap with persecution on 

other grounds such as race, religion, or nationality. Handbook 

supra, at 19. 

We find the well-established doctrine of ejusdem generis, meaning literally, "of the same kind," to be most helpful in construing 

the phrase "membership in a particular social group." That doctrine holds that general words used in an enumeration with specific words should be construed in a manner consistent with the specific words. See, e.g., Cleveland v. United States, 329 U.S. 14 (1946); 

2A C. Sands, supra, § 47.17. The other grounds of persecution in the 

Act and the Protocol listed in association with "membership in a 

particular social group" are persecution on account of "race," "religion," "nationality," and "political opinion." Each of these grounds 

describes persecution aimed at an immutable characteristic: a characteristic that either is beyond the power of an individual to 

change or is so fundamental to individual identity or conscience 

that it ought not be required to be changed. See 1 A. Grahl-Madsen, 

supra, at 217; G. Goodwin-Gill, supra, at 31. Thus, the other four 

grounds of persecution enumerated in the Act and the Protocol restrict refugee status to individuals who are either unable by their 

own actions, or as a matter of conscience should not be required, to 

avoid persecution. 

Applying the doctrine of ejusdem generis, we interpret the 

phrase "persecution on account of membership in a particular 

social group" to mean persecution that is directed toward an individual who is a member of a group of persons all of whom share a 

common, immutable characteristic. The shared characteristic 

might be an innate one such as sex, color, or kinship ties, or in 

some circumstances it might be a shared past experience such as 

former military leadership or land ownership. The particular kind 

of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever 

the common characteristic that defines the group, it must be one 

that the members of the group either cannot change, or should not 

be required to change because it is fundamental to their individual 

identities or consciences. Only when this is the case does the mere 

fact of group membership become something comparable to the 

other four grounds of persecution under the Act, namely, some932 
Interim Decision #2986 

thing that either is beyond the power of an individual to change or 

that is so fundamental to his identity or conscience that it ought 

not be required to be changed. By construing "persecution on account of membership in a particular social group" in this manner, 

we preserve the concept that refuge is restricted to individuals who 

are either unable by their own actions, or as a matter of conscience 

should not be required, to avoid persecution. 

In the respondent's case, the facts demonstrate that the guerrillas sought to harm the members of COTAXI, along with members 

of other taxi cooperatives in the city of San Salvador, because they 

refused to participate in work stoppages in that city. The characteristics defining the group of which the respondent was a member 

and subjecting that group to punishment were being a taxi driver 

in San Salvador and refusing to participate in guerrilla-sponsored 

work stoppages. Neither of these characteristics is immutable because the members of the group could avoid the threats of the 

guerrillas either by changing jobs or by cooperating in work stoppages. It may be unfortunate that the respondent either would 

have had to change his means of earning a living or cooperate with 

the guerrillas in order to avoid their threats. However, the internationally accepted concept of a refugee simply does not guarantee an 

individual a right to work in the job of his choice. See 1 A. GrahlMadsen, supra, at 214. Therefore, because the respondent's membership in the group of taxi drivers was something he had the 

power to change, so that he was able by his own actions to avoid 

the persecution of the guerrillas, he has not shown that the conduct he feared was "persecution on account of membership in a 

particular social group" within our construction of the Act. 

Moxeover, the respondent did not demonstrate that the persecution he fears is "on account of political opinion." The fact that the 

respondent was threatened by the guerrillas as part of a campaign 

to destabilize the government demonstrates that the guerrillas' actions were undertaken to further their political goals in the civil 

controversy in El Salvador. However, conduct undertaken to further the goals of one faction in a political controversy does not necessarily constitute persecution "on account of political opinion" so 

as to qualify an alien as a "refugee" within the meaning of the Act. 

As we have previously discussed, the term "persecution" means 

the infliction of suffering or harm in order to punish an individual 

for possessing a particular belief or characteristic the persecutor 

seeks to overcome. It follows, therefore, that the requirement of 

"persecution on account of political opinion" means that the particular belief or characteristic a persecutor seeks to overcome in an 

individual must be his political opinion. Thus, the requirement of 

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"persecution on account of political opinion" refers not to the ultimate political end that may be served by persecution, but to the 

belief held by an individual that causes hirn to be the object of the 

persecution. See 1 A. Grahl-Madsen, supra, at 212, 220; G. GoodwinGill, supra, at 31. This construction is consistent with the other 

grounds of persecution enumerated in the Act such as "race," "religion," "nationality," and "membership in a particular social 

group," each of which specifies a characteristic an individual possesses that causes him to be subject to persecution. Moreover, this 

construction is consistent with Congress' intention that not all 

harm with political implications, such as that which arises out of 

civil strife in a country, qualifies an alien as a "refugee." See discussion supra p. 223 & note 10. 

In the respondent's case there are no facts showing that the 

guerrillas were aware of or sought to punish the respondent for his 

political opinion; nor was there any showing that the respondent's 

refusal to participate in the work stoppages was motivated by his 

political opinion. Absent such a showing, the respondent failed to 

demonstrate that the particular belief the guerrillas sought to overcome in him was his political opinion. Therefore he does not come 

within this ground of persecution 

(4) The alien must be unable or unwilling to return to his country of 

nationality or to the country in which he last habitually resided because of persecution or his well-founded fear of persecution. 

Traditionally, a refugee has been an individual in whose case the 

bonds of trust, loyalty, protection, and assistance existing between 

a citizen and his country have been broken and have been replaced 

by the relation of an oppressor to a victim. See 1 A. Grahl-Madsen, 

supra, at 97, 100. Thus, inherent in refugee status is the concept 

that an individual requires international protection because his 

country of origin or of habitual residence is no longer safe for him. 

Id. We consider this concept to be expressed, in part, by the requirement in the Act and the Protocol that a refugee must be 

unable or unwilling to return to a particular "country." See section 

101(a)(42)(A) of the Act. We construe this requirement to mean that 

an alien seeking to meet the definition of a refugee must do more 

than show a well-founded fear of persecution in a particular place 

or abode within a country—he must show that the threat of persecution exists for him country-wide. 

In the respondent's case, the facts show that taxi drivers in the 

city of San Salvador were threatened with persecution by the leftist guerrillas. However, the facts do not show that this threat exist235 
Interim Decision #2986 

ed in other cities in El Salvador. It may be the respondent could 

have avoided persecution by moving to another city in that country.14 In any event, the respondent's facts did not demonstrate that 

the guerrillas' persecution of taxi drivers occurred throughout the 

country of El Salvador. Accordingly, the respondent did not meet 

this element of the standard for asylum. 

In summary, the respondent's facts fail to show that (1) his 

present fear of persecution by the government and the guerrillas is 

"well founded"; (2) the persecution he fears is on account of one of 

the five grounds specified in the Act; and (3) he is unable to return 

to the country of El. Salvador, as opposed to a particular place in 

that country, because of persecution. Thus, he has not met three of 

the four elements in the statutory definition of a refugee created 

by section 101(a)(42)(A) of the Act. Accordingly, the respondent has 

not shown he is eligible for a grant of asylum. 

THE STATUTORY STANDARD FOR WITHHOLDING OF 

DEPORTATION 

Section 243(h) of the Act, which specifies the standard of eligibility for withholding of deportation, requires an alien to show a clear 

probability of persecution, i.e., that it is more likely than not he 

will be the victim of persecution, in a particular country. INS v. 

Stevie, supra, at 425. As we indicated, supra p. 229, the showing of 

the likelihood of persecution contemplated by this standard converges, in practice, with the showing required by the well-founded 

fear standard for asylum. Therefore, since the respondent has not 

demonstrated a sufficient likelihood of persecution at the hands of 

either the government or the guerrillas to make his fear "wellfounded," it follows that the respondent has not demonstrated the 

"clear probability" of persecution needed for withholding of deportation. Moreover, since the conduct the respondent fears has not 

been shown to be inflicted on account of `;membership in a particular social group" or "political opinion" within our construction of 

the Act, the respondent has also failed to show that he comes 

within one of the five grounds of persecution specified in section 

243(h). Accordingly, the respondent has not met the standard of eligibility for withholding of deportation. 

" It is unfortunate when persons may be obliged to give up their jobs and leave 

their homes as a result of fear. But that is not the issue here. The issue is, once that 

decision is made, does an individual have the right to come to the United States 

rather than to move elsewhere in his home country. 

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For the foregoing reasons the respondent has not shown he is eligible either for asylum or withholding of deportation to El Salvador. Therefore, we shall dismiss his appeal. 

ORDER: The appeal is dismissed.