Most Important United States Supreme Court Case in Refugee Law: I.N.S. v. Elias-Zacarias

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Category: Human Rights, Immigration Law, International Law & Diplomacy, Judges & Judicial Process
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[Editor’s note:  This is a sixth installment in the “what is the most important Supreme Court case in your subject area” series.]

One of my subject areas is refugee law. There are only a handful of Supreme Court decisions in the area, but instead of making the selection easier, the paucity of case law only made it harder to choose one case as the “most” important.  Because the Court has interpreted the Refugee Act relatively rarely, each of its decisions in the area has taken on even more significance than it might otherwise have had.  For instance, it is difficult to overstate the impact of the decision in Sale v. Haitian Centers Council, Inc., the repercussions of which still plague the international refugee law system, because the Court said that the United States could stop and return Haitians at sea, without verifying whether they were refugees, seemingly in direct conflict with the highest principle of international refugee law, “non-refoulement,” or, “non-returning,” of refugees. And what about the pair of cases, INS v. Stevic and INS v. Cardoza-Fonseca, which, prior to Sale, held that the Refugee Act  created two distinct categories of refugees, those whom the U.S. had promised not to return to their persecutors and those whom the U.S. could, in its discretion, allow to stay in the U.S. (a distinction generally not recognized by any of the other nations who signed the refugee treaties)?

In the end, of course, it’s impossible to identify a single case as most important. But I decided to write about INS v. Elias-Zacarias, 502 U.S. 478 (1992), because its holding, that an asylum applicant must provide direct or circumstantial evidence establishing the alleged persecutor’s motivations, has had such dramatic, and (I hope) unintentional impacts on refugee law and practice in the United States.  One could even argue that the extreme disparities in judges’ decisions in similar asylum cases stem, at least in part, from the near-impossibility of reliably applying Elias-Zacarias‘s demand for evidence of the persecutor’s motive, in the context of the record that can reasonably be developed in the vast majority of asylum cases.

I am starting with a short, oversimplified discussion of refugee law, for context; if you already know the basics of refugee law, skip this paragraph.  In the wake of World War II, most of the nations of the world signed on to a pair of treaties that defined a refugee as (essentially–remember, I’m oversimplifying) someone who “owing to wellfounded 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.”  The United States eventually agreed to the treaty, and in 1980 Congress passed legislation that adopted a virtually-identical definition of “refugee”: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .”   8 U.S.C. § 1101(a)(42)(A).  The U.S. law further provided that an alien who met the “refugee” definition could (subject to a number of limitations not relevant here) be granted permission to stay in the United States, as an “asylee.” See 8 U.S.C. § 1158.

The majority opinion in INS v. Elias-Zacarias, written by Justice Scalia, in interpreting of the words “on account of . . . political opinion,” upheld the denial of an asylum application filed by a young Guatemalan, Jairo Jonathan Elias-Zacarias.  Jairo sought asylum in the United States after a group of armed, masked guerrillas visited his home in late January 1987, asking him to join their cause.  When he refused to join them, the guerrillas said that Jairo should “think it over” and that they would return.  Jairo fled his country in late March 1987.

The Immigration Judge found Jairo to be a credible witness, and (notwithstanding a side dispute as to whether the State Department had conceded that guerrillas in Guatemala were engaging in forced recruitment) there was no real question as to the plausibility of Jairo’s fear, given the conditions in Guatemala at that time.  In its holding, the Court assumed that Jairo might, indeed, be killed by the guerrillas if he returned to Guatemala but refused to join them.

Instead of questioning the plausibility of Jairo’s fear of being killed, the Court reasoned that, in any event, even if Jairo was right to fear that the guerrillas would kill him if he refused to join, he was not a “refugee,” because he couldn’t establish that the guerrillas’ threats were “on account of” any political motive.  This holding is set forth in two paragraphs near the end of the majority opinion:

Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a “narrow, grudging construction of the concept of ‘political opinion,'” . . . would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a “well-founded fear” that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at all.

Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he must show that the evidence he presented was [footnote omitted] so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done.

Elias-Zacarias, 502 U.S. at 483-84.  Many commentators found that reasoning unpersuasive, and if a student had written those paragraphs in a memo in one of my legal writing classes, I think I would have commented something to the effect of, “conclusory, unpersuasive–avoids the other side’s argument, justify your reasoning with more thorough explanation.” The three dissenting Justices (Stevens, Blackmun, and O’Connor) were particularly incredulous of the majority’s assertion that Jairo had failed to provide any evidence of that the guerrillas  had a political motive:

It follows as night follows day that the guerrillas’ implied threat to “take” him or to “kill” [Jairo]if he did not change his position constituted threatened persecution “on account of” that political opinion. As the Court of Appeals explained in Bolanos- Hernandez:

“It does not matter to the persecutors what the individual’s motivation is. The guerrillas in EI Salvador do not inquire into the reasoning process of those who insist on remaining neutral and refuse to join their cause. They are concerned only with an act that constitutes an overt manifestation of a political opinion. Persecution because of that overt manifestation is persecution because of a political opinion.” 767 F. 2d, at 1287.

It is important to emphasize that the statute does not require that an applicant for asylum prove exactly why his persecutors would act against him; it only requires him to show that he has a “well-founded fear of persecution on account of . . . political opinion.” . . . Because respondent expressed a political opinion by refusing to join the guerrillas, and they responded by threatening to “take” or to “kill” him if he did not change his mind, his fear that the guerrillas will persecute him on account of his political opinion is well founded. [footnotes omitted]

Given the context in which the refugee treaties were negotiated and drafted, I find the dissent’s statutory interpretation argument more convincing.  It seems most likely to me that the drafters would have considered a human being who fled from forcible recruitment by a rebel army that his government couldn’t control to be a “refugee,” given the reasonable likelihood that the guerrillas would actually carry out the implied threat of execution.

While the majority opinion’s disdain for the importance of addressing the other side’s best arguments is disappointing, the opinion’s rhetorical failings are relatively unimportant. Instead what’s most troubling about the majority opinion in Elias-Zacarias is its very concrete, practical impact upon an alien attempting to establish his or her status as a “refugee.”  I ask my students to imagine themselves as lawyers representing an alien like Jairo after the Court’s decision in Elias-Zacarias.  What can you do?  Is there any reliable way to succeed with a case like Jairo’s after this decision?

It is true that in a few types of cases, the persecutor’s motivation will be obvious and easy to prove.  For instance, anti-Semitic statements made during persecution would (seemingly) unequivocally establish a persecutor’s anti-religious motivation.  Likewise, the government’s imprisoning of the leader of a peaceful, opposing political party on grounds of  danger to the State would probably establish an express political motive.

The trouble is that nowadays, most of the human beings who are forced to flee their homelands due to fear of imprisonment, torture, or death escape from confusing situations of civil strife and state failure.  Like Jairo in 1987, many of them are caught between two or more extremist groups, the government on the one hand and one or more rebel groups on the other.  Unless they are “lucky” enough to fall into an ethnic or social group that news reports establish has been specifically targeted, they will be deemed mere victims of “generalized civil strife” rather than “refugees.”

The practical reason for denying refugee status to those fleeing civil war is obvious; it’s the fear of “opening the floodgates” to the thousands of human beings who typically flee from situations of civil strife or state failure.  But while the particular legal justification that the Court used to “bar” the gates (heightening the refugee’s burden to establish the persecutor’s motives) has indeed barred thousands of refugees’ claims, this result was achieved by sanctioning an arbitrary, unpredictable decision-making process in the immigration courts.

Because of the procedural posture in Elias-Zacarias, the majority had the luxury to side-step the really difficult question presented by the case:  how in the world is a judge in an immigration court in some office building in the United States supposed to assess, based on an asylum seeker’s testimony and documentary evidence, a far-away persecutor’s particular motives for targeting the applicant? As the Court noted, the decision in Jairo’s case could not be overturned unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”  The majority’s ultimate holding was, essentially, “well, even if the guerrillas did target Jairo because of his politics, he didn’t prove that conclusively here.” In other words, the majority didn’t even hold that Jairo’s evidence was insufficient to establish that the guerrillas had a political motive; instead, the Court assumed, without deciding, that in Jairo’s case, the court below could have decided either way.

Nowhere in the majority opinion does the Court express any concern for the prospect that a human being’s physical safety, even his or her life, would in the majority of cases depend on a fact-finder’s determination of whether he or she had sufficiently proved via “direct or circumstantial evidence,” the persecutor’s specific intent.  It should surprise no one that, under this standard (and, obviously, in the context of numerous other factors including the crushing caseload faced by our immigration judges) the result has been what a 2007 law review article labeled “refugee roulette.” The majority opinion in Elias-Zacarias affirmatively sanctioned such a state of affairs.

There is plenty of room for debate about the goals of refugee law, and the proper means for achieving them.  Indeed, the need for strong, serious debate about these issues is pressing, given the failings of the current legal regime governing protection for forced migrants.  But no matter how narrow one thinks the definition of “refugee” should be, surely, it should be narrowed on some fairer and more consistent basis than the holding in Elias-Zacarias.

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3 Responses to “Most Important United States Supreme Court Case in Refugee Law: I.N.S. v. Elias-Zacarias”

  1. Jessica, thanks for this post. I would not have thought of Elias-Zacarias for the top spot on my personal list of Refugee Law cases, perhaps because both later federal courts and the INS/DHS have tried mightily to avoid the impications of the decision by reading it as narrowly as possible. However, you rightly point out that if we take the majority opinion seriously it does create serious practical impediments to the establishment of almost any asylum claim. What good is a legal protection against prosecution if the evidentiary threshold is impossible to meet?

  2. Ed, Kevin Johnson at Immigration Prof blog said that he thinks the case is not at the top of the list either. I think I agree that there are other decisions (those I mentioned at the start) that probably have more fundamental importance. But I guess I do think I see more importance in Zacarias than either you or Kevin. For one thing, I am not at all sure I agree that later courts have tried to read the case narrowly; sometimes they have, sometimes they haven’t, just adding to the arbitrary-seeming nature of decision-making in the area. And more practically speaking, when I was working for a couple of years at a nonprofit that screened asylum seekers, to decide if their cases were strong enough to merit getting a pro bono attorney, the nexus question was probably the single most common legal reason for rejecting a claim. And as I tried to say in the article, more than that, it was striking (to me at least) how the ability to prove nexus as it’s conceived of in this decision had very little relationship to my sense of who most needed and deserved protection.

  3. I’ve just come across this article, as I was looking for updates on this case, which my late husband, Peter von Mehren, worked on as a pro bono attorney. Jessica, I wish Peter could provide you with the reasoning that he contributed to the theory of this case. But since he’s gone, for the record I’ll share with you my memories. First of all, I suggest you look at the transcript, if it is available, of the argument before the Supreme Court. In particular, Justice Scalia’s questions. Peter did not argue the case — a more senior partner of his law firm came in at the last minute, although Peter had worked on the case to the Supreme Court, it having been his decision to take the pro bono request circulated by the immigration law center. (Peter wasn’t a partner — a partner decided he wanted to be in on the Supreme Court level because of the prestige, so Peter had to sit through the questioning without being able to speak.) Peter felt that Scalia was looking for a particular answer, one his colleague was not able to provide. Peter also felt that he and Scalia made eye-contact, and that Scalia understood that Peter could have answered Scalia’s crucial question, but was not allowed to do that. So again I think there’s a significant exchange that could help explain the Supreme Court decision in retrospect, but it’s up to a scholar like you to supply the interpretation. Second, Peter von Mehren felt very strongly and emotionally about Jairo Jonathan Elias-Zacarias being an honest and truth-telling man. Jairo fled his home village not only because he had a “well-founded fear” that he would be killed if he did not join the guerrillas. As I recall Peter’s explanation, Jairo felt that he was being recruited by the guerrillas and that if he did not join them, he would be considered a supporter of the Guatamalan government military. If he had joined the guerrillas, the Guatamalan military would have gone after him. His political opinion was that he could not join either force without reprisals against him, and possibly his family and village. The political question that burns today in the United States is whether the U.S. government supported — and denied to the U.S. public that it was supporting — the Guatamalan military reprisals, also known as “death squads.” Peter von Mehren felt such reprisals existed — he believed Elias-Zacarias, that the man would be persecuted by one or the other parties to the civil war if he refused or was of the political opinion that he should not be forced to become a soldier and participate in the conflict. I feel the continuing importance of this case includes whether the U.S. government covered up its support and whether a claim of “political opinion” by a refugee seeking political refugee status includes the right to want to be a conscientious objector to a civil war in another country. Finally, Justice Scalia’s opinion sent the case back to a lower court on other grounds, and Mr. Elias-Zacarias eventually was granted immigration status in the U.S. but not as a political refugee. My understanding is that he is still here. I hope that if you have further questions about his “well-founded fear” you can find him and ask for his story today.

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