Document Type

Article

Disciplines

International Law

Abstract

The United States' historical role as a haven for the world's persecuted and homeless has been tested in recent years. Immigration policies originally adopted to accommodate Europeans migrating to the United States after World War III have been amended by Congress to regulate the influx of a far more diverse group of refugees. The IndoChinese boat people of the 1970s and the Cubans and Haitians of the early 1980s provided only a glimpse of the various groups seeking shelter in the United States today - a more complete list includes natives of El Salvador, Nicaragua, Iran, Iraq, Guatemala and the Philippines. As their numbers continue to grow, the United States government must carry on its attempt to balance its international obligation to shelter persecuted refugees against the economic and political costs of doing so.

The Supreme Court recently decided that an alien seeking asylum need not meet the strict standard previously applied by some circuit courts that it be "more likely than not" that the alien will be persecuted in his own country. The Court, in the case of the Immigration and Naturalization Service [I.N.S.I v. Cardoza-Fonseca, held that to be considered for a discretionary grant of asylum, an applicant need only establish a subjective "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."' In so holding, the court distinguished the evidentiary standard required for granting asylum from that necessary for withholding deportation.

This note examines the Supreme Court's treatment of the controlling immigration statutes and international treaty obligations, and its resolution of the circuit conflict as to the proper legal standard to be applied. It briefly outlines the Court of Appeals' and Board of Immigration Appeals' [BIA]' most recent applications of the Cardoza-Fonseca standard and concludes that the Supreme Court properly interpreted the statute in accordance with domestic and international law by allowing for a more liberal asylum standard. A standard less strict than "clear probability" allows the United States to respond to the urgent needs of persons subject to persecution in their homelands without imposing an onerous burden on the government.

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