U.S. Supreme Court INS v. Cardoza-Fonseca, 480
U.S. 421 (1987) Immigration and Naturalization
Service v. Cardoza-Fonseca No. 85-782 Argued October 7,
1986 Decided March 9, 1987 480
U.S. 421 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Section 243(h) of the Immigration and Nationality Act (Act)
requires that the Attorney General withhold deportation of an alien
who demonstrates that his "life or freedom would be threatened"
thereby on account of specified factors. The above-quoted phrase
requires a showing that "it is more likely than not that the alien
would be subject to persecution" in the country to which he would
be returned. In contrast, § 208(a) of the Act authorizes the
Attorney General, in his discretion, to grant asylum to a
"refugee," who, under § 101(a)(42)(A) of the Act, is unable or
unwilling to return to his home country because of persecution or
"a well founded fear" thereof on account of particular factors. At
respondent illegal alien's deportation hearing, the Immigration
Judge applied the § 243(h) "more likely than not" proof standard to
her § 208(a) asylum claim, holding that she had not established "a
clear probability of persecution," and therefore was not entitled
to relief. The Board of Immigration Appeals (BIA) affirmed, but the
Court of Appeals reversed, holding that § 208(a)'s "well founded
fear" standard is more generous than the § 243(h) standard in that
it only requires asylum applicants to show either past persecution
or "good reason" to fear future persecution. Accordingly, the
asylum claim was remanded so that BIA could evaluate it under the
proper legal standard. Held: The § 243(h) "clear probability" standard of
proof does not govern asylum applications under § 208(a). Pp. 480 U. S.
427 -449.

															(a) The plain meaning of the statutory language indicates a
congressional intent that the proof standards under §§ 208(a) and
243(h) should differ. Section 243(h)'s "would be threatened"
standard has no subjective component, but, in fact, requires
objective evidence that it is more likely than not that the alien
will be subject to persecution upon deportation. In contrast, §
208(a)'s reference to "fear" makes the asylum eligibility
determination turn to some extent on the alien's subjective mental
state, and the fact that the fear must be "well founded" does not
transform the standard into a "more likely than not" one. Moreover,
the different emphasis of the two standards is highlighted by the
fact that, although Congress simultaneously drafted § 208(a)'s new
standard and amended § 243(h), it left § 243(h)'s old standard
intact. Pp. 480 U. S.
430 -432. Page 480 U. S. 422 (b) The legislative history demonstrates the congressional
intent that different standards apply under §§ 208(a) and 243(h).
Pp. 480 U.S. 432 -443.

															(c) The argument of the Immigration and Naturalization Service
(INS) that it is anomalous for § 208(a) to have a less stringent
eligibility standard than § 243(h), since § 208(a) affords greater
benefits than § 243(h), fails, because it does not account for the
fact that an alien who satisfies the § 208(a) standard must still
face a discretionary asylum decision by the Attorney General, while
an alien satisfying § 243(h)'s stricter standard is automatically
entitled to withholding of deportation. Pp. 480 U. S.
443 -445.

															(d) The INS's argument that substantial deference should be
accorded BIA's position that the "well founded fear" and "clear
probability" standards are equivalent is unpersuasive, since the
narrow legal question of identicality is a pure question of
statutory construction within the traditional purview of the
courts, and is not a question of case-by-case interpretation of the
type traditionally left to administrative agencies. Pp. 480 U. S.
445 -448.

															767 F.2d 1448, affirmed.

															STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. BLACKMUN,
J., filed a concurring opinion, post, p. 480 U. S. 450 .
SCALIA, J., filed an opinion concurring in the judgment, post, p. 480 U. S. 452 .
POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and WHITE, J., joined, post, p. 480 U. S.
455 . Page 480 U. S. 423 JUSTICE STEVENS delivered the opinion of the Court.

															Since 1980, the Immigration and Nationality Act has provided two
methods through which an otherwise deportable alien who claims that
he will be persecuted if deported can seek relief. Section 243(h)
of the Act, 8 U.S.C. § 1253(h), requires the Attorney General to
withhold deportation of an alien who demonstrates that his "life or
freedom would be threatened" on account of one of the listed
factors if he is deported. In INS v. Stevic, 467 U.
S. 407 (1984), we held that, to qualify for this
entitlement to withholding of deportation, an alien must
demonstrate that "it is more likely than not that the alien would
be subject to persecution" in the country to which he would be
returned. Id. at 467 U. S.
429 -430. The Refugee Act of 1980, 94 Stat. 102, also
established a second type of broader relief. Section 208(a) of the
Act, 8 U.S.C. § 1158(a), authorizes the Attorney General, in his
discretion, to grant asylum to an alien who is unable or unwilling
to return to his home country "because of persecution or a well
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion." § 101(a)(42), 8 U.S.C. § 1101(a)(42).

															In Stevic, we rejected an alien's contention that the §
208(a) "well founded fear" standard governs applications for
withholding of deportation under § 243(h). [ Footnote 1 ] Similarly, today we reject the Government's
contention that the § 243(h) standard, which requires an alien to
show that he is more likely than not to be subject to persecution,
governs applications for asylum under § 208(a). Congress used
different, broader language to define the term "refugee" as used in
§ 208(a) than it used to describe the class of aliens who have Page 480 U. S. 424 a right to withholding of deportation under § 243(h). The Act's
establishment of a broad class of refugees who are eligible for a
discretionary grant of asylum, and a narrower class of aliens who
are given a statutory right not to be deported to the country where
they are in danger, mirrors the provisions of the United Nations
Protocol Relating to the Status of Refugees, which provided the
motivation for the enactment of the Refugee Act of 1980. In
addition, the legislative history of the 1980 Act makes it
perfectly clear that Congress did not intend the class of aliens
who qualify as refugees to be coextensive with the class who
qualify for § 243(h) relief. I Respondent is a 38-year-old Nicaraguan citizen who entered the
United States in 1979 as a visitor. After she remained in the
United States longer than permitted, and failed to take advantage
of the Immigration and Naturalization Service's (INS) offer of
voluntary departure, the INS commenced deportation proceedings
against her. Respondent conceded that she was in the country
illegally, but requested withholding of deportation pursuant to §
243(h) and asylum as a refugee pursuant to § 208(a).

															To support her request under § 243(h), respondent attempted to
show that, if she were returned to Nicaragua, her "life or freedom
would be threatened" on account of her political views; to support
her request under § 208(a), she attempted to show that she had a
"well founded fear of persecution" upon her return. The evidence
supporting both claims related primarily to the activities of
respondent's brother, who had been tortured and imprisoned because
of his political activities in Nicaragua. Both respondent and her
brother testified that they believed the Sandinistas knew that the
two of them had fled Nicaragua together, and that, even though she
had not been active politically herself, she would be interrogated
about her brother's whereabouts and Page 480 U. S. 425 activities. Respondent also testified that, because of her
brother's status, her own political opposition to the Sandinistas
would be brought to that government's attention. Based on these
facts, respondent claimed that she would be tortured if forced to
return.

															The Immigration Judge applied the same standard in evaluating
respondent's claim for withholding of deportation under § 243(h) as
he did in evaluating her application for asylum under § 208(a). He
found that she had not established "a clear probability of
persecution," and therefore was not entitled to either form of
relief. App. to Pet. for Cert. 27a. On appeal, the Board of
Immigration Appeals (BIA) agreed that respondent had

															"failed to establish that she would suffer persecution within
the meaning of section 208(a) or 243(h) of the Immigration and
Nationality Act." Id. at 21a.

															In the Court of Appeals for the Ninth Circuit, respondent did
not challenge the BIA's decision that she was not entitled to
withholding of deportation under § 243(h), but argued that she was
eligible for consideration for asylum under § 208(a), and contended
that the Immigration Judge and BIA erred in applying the "more
likely than not" standard of proof from § 243(h) to her § 208(a)
asylum claim. Instead, she asserted, they should have applied the
"well founded fear" standard, which she considered to be more
generous. The court agreed. Relying on both the text and the
structure of the Act, the court held that the "well founded fear"
standard which governs asylum proceedings is different, and in fact
more generous, than the "clear probability" standard which governs
withholding of deportation proceedings. 767 F.2d 1448, 1452-1453
(1985). Agreeing with the Court of Appeals for the Seventh Circuit,
the court interpreted the standard to require asylum applicants to
present " specific facts' through objective evidence to prove
either past persecution or `good reason' to fear future
persecution." Id. at 1453 (citing Carvajal-Munoz v.
INS, 743 F.2d 562, 574 (CA7 1984)). Page 480 U. S. 426 The court remanded respondent's asylum claim to the BIA to
evaluate under the proper legal standard. We granted certiorari to
resolve a Circuit conflict on this important question. [ Footnote 2 ] 475 U.S. 1009 (1986).
[ Footnote 3 ] Page 480 U. S. 427 II The Refugee Act of 1980 established a new statutory procedure
for granting asylum to refugees. [ Footnote 4 ] The 1980 Act added a new § 208(a) to the
Immigration and Nationality Act of 1952, reading as follows:

															"The Attorney General shall establish a procedure for an alien
physically present in the United States or at a land border or port
of entry, irrespective of such alien's status, to apply for asylum,
and the alien may be granted asylum in the discretion of the
Attorney General if the Attorney General determines that such alien
is a refugee within the meaning of section 1101(a)(42)(A) of this
title."

															94 Stat. 105, 8 U.S.C. § 1158(a).

															Under this section, eligibility for asylum depends entirely on
the Attorney General's determination that an alien is a Page 480 U. S. 428 "refugee" as that term is defined in § 101(a)(42), which was
also added to the Act in 1980. That section provides:

															"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 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. . . ."

															94 Stat. 102, 8 U.S.C. § 1101(a)(42). Thus, the "persecution or
well founded fear of persecution" standard governs the Attorney
General's determination whether an alien is eligible for asylum.
[ Footnote 5 ]

															In addition to establishing a statutory asylum process, the 1980
Act amended the withholding of deportation provision, [ Footnote 6 ] Page 480 U. S. 429 § 243(h). See Stevic, 467 U.S. at 467 U. S. 421 ,
n. 15. Prior to 1968, the Attorney General had discretion whether
to grant withholding of deportation to aliens under § 243(h). In
1968, however, the United States agreed to comply with the
substantive provisions of Articles 2 through 34 of the 1951 United
Nations Convention Relating to the Status of Refugees. See 19 U.S.T. 6223, 6259-6276, T.I.A.S. No. 6577 (1968); see
generally Stevic, supra, at 467 U. S.
416 -417. Article 33.1 of the Convention, 189 U.N.T.S.
150, 176 (1954), reprinted in 19 U.S.T. 6259, 6276, which
is the counterpart of § 243(h) of our statute, imposed a mandatory
duty on contracting States not to return an alien to a country
where his "life or freedom would be threatened" on account of one
of the enumerated reasons. [ Footnote 7 ] See infra at 480 U. S. 441 .
Thus, although § 243(h) itself did not constrain the Attorney
General's discretion after 1968, presumably he honored the dictates
of the United Nations Convention. [ Footnote 8 ] In any event, the 1980 Act removed the
Attorney General's discretion in § 243(h) proceedings. [ Footnote 9 ] Page 480 U. S. 430 In Stevic, we considered it significant that, in
enacting the 1980 Act, Congress did not amend the standard of
eligibility for relief under § 243(h). While the terms "refugee"
and hence "well founded fear" were made an integral part of the §
208(a) procedure, they continued to play no part in § 243(h). Thus
we held that the prior consistent construction of § 243(h) that
required an applicant for withholding of deportation to demonstrate
a "clear probability of persecution" upon deportation remained in
force. Of course, this reasoning, based in large part on the plain
language of § 243(h), is of no avail here, since § 208(a) expressly
provides that the "well founded fear" standard governs eligibility
for asylum.

															The Government argues, however, that even though the "well
founded fear" standard is applicable, there is no difference
between it and the "would be threatened" test of § 243(h). It asks
us to hold that the only way an applicant can demonstrate a "well
founded fear of persecution" is to prove a "clear probability of
persecution." The statutory language does not lend itself to this
reading.

															To begin with, the language Congress used to describe the two
standards conveys very different meanings. The "would be
threatened" language of § 243(h) has no subjective component, but
instead requires the alien to establish by objective evidence that
it is more likely than not that he or she will be subject to
persecution upon deportation. [ Footnote 10 ] See Stevic, supra. In contrast, the
reference to "fear" in the § 208(a) standard obviously makes the
eligibility determination turn to some extent on the subjective
mental state of the Page 480 U. S. 431 alien. [ Footnote 11 ]

															"The linguistic difference between the words 'well founded fear'
and 'clear probability' may be as striking as that between a
subjective and an objective frame of reference. . . We simply
cannot conclude that the standards are identical." Guevara-Flores v. INS, 786 F.2d 1242, 1250 (CA5 1986), cert. pending, No. 86-388; see also Carcamo-Flores v.
INS, 805 F.2d 60, 64 (CA2 1986); 767 F.2d at 1452 (case
below).

															That the fear must be "well founded" does not alter the obvious
focus on the individual's subjective beliefs, nor does it transform
the standard into a "more likely than not" one. One can certainly
have a well founded fear of an event happening when there is less
than a 50% chance of the occurrence taking place. As one leading
authority has pointed out:

															"Let us . . . presume that it is known that, in the applicant's
country of origin, every tenth adult male person is either put to
death or sent to some remote labor camp. . . . In such a case, it
would be only too apparent that anyone who has managed to escape
from the country in question will have 'well founded fear of being
persecuted' upon his eventual return."

															1 A. Grahl-Madsen, The Status of Refugees in International Law
180 (1966). This ordinary and obvious meaning of the phrase is not
to be lightly discounted. See Russello v. United States, 464 U. S. 16 , 464 U. S. 21 (1983); Ernst & Ernst v. Hochfelder, 425 U.
S. 185 , 425 U. S.
198 -199 (1976). With regard to this very statutory
scheme, we have considered ourselves bound to " assume "that the
legislative purpose is expressed by the ordinary meaning of the
words used."'" INS v. Phinpathya, 464 U.
S. 183 , 464 U. S. 189 (1984) (quoting American Tobacco Co. v.
Patterson , 456 Page 480 U. S. 432 U.S. 63, 456 U. S. 68 (1982), in turn quoting Richards v. United States, 369 U. S. 1 , 369 U. S. 9 (1962)).

															The different emphasis of the two standards which is so clear on
the face of the statute is significantly highlighted by the fact
that the same Congress simultaneously drafted § 208(a) and amended
§ 243(h). In doing so, Congress chose to maintain the old standard
in § 243(h), but to incorporate a different standard in §
208(a).

															"'[W]here Congress includes particular language in one section
of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.'" Russello v. United States, supra, at 464 U. S. 23 (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722
(CA5 1972)). The contrast between the language used in the two
standards, and the fact that Congress used a new standard to define
the term "refugee," certainly indicate that Congress intended the
two standards to differ. III The message conveyed by the plain language of the Act is
confirmed by an examination of its history. [ Footnote 12 ] Three aspects of that history are
particularly compelling: The pre-1980 experience under § 203(a)(7),
the only prior statute dealing with asylum; the abundant evidence
of an intent to conform the definition of "refugee" and our asylum
law to the United Nations Protocol to which the United States has
been bound Page 480 U. S. 433 since 1968, and the fact that Congress declined to enact the
Senate version of the bill that would have made a refugee
ineligible for asylum unless "his deportation or return would be
prohibited by § 243(h)." The Practice Under § 203(a)(7). The statutory definition of the term "refugee" contained in §
101(a)(42) applies to two asylum provisions within the Immigration
and Nationality Act. [ Footnote
13 ] Section 207, 8 U.S.C. § 1157, governs the admission of
refugees who seek admission from foreign countries. Section 208, 8
U.S.C. § 1158, sets out the process by which refugees currently in
the United States may be granted asylum. Prior to the 1980
amendments, there was no statutory basis for granting asylum to
aliens who applied from within the United States. [ Footnote 14 ] Asylum for aliens applying for
admission from foreign countries had, however, been the subject of
a previous statutory provision, and Congress' intent with respect
to the changes that it sought to create in that statute are
instructive in discerning the meaning of the term "well founded
fear."

															Section § 203(a)(7) of the pre-1980 statute authorized the
Attorney General to permit "conditional entry" to a certain number
of refugees fleeing from Communist-dominated areas or the Middle
East "because of persecution or fear of persecution on account of
race, religion, or political opinion." 79 Page 480 U. S. 434 Stat. 913, 8 U.S.C. § 1153(a)(7) (1976 ed.). The standard that
was applied to aliens seeking admission pursuant to § 203(a)(7) was
unquestionably more lenient than the "clear probability" standard
applied in § 243(h) proceedings. In Matter of Tan, 12 I.
& N.Dec. 564, 569-570 (1967), for example, the BIA "found no
support" for the argument that

															"an alien deportee is required to do no more than meet the
standards applied under section 203(a)(7) of the Act when seeking
relief under section 243(h)."

															Similarly, in Matter of Adamska, 12 I. & N.Dec.
201, 202 (1967), the Board held that an alien's inability to
satisfy § 243(h) was not determinative of her eligibility under the
"substantially broader" standards of § 203(a)(7). One of the
differences the Board highlighted between the statutes was that §
243(h) requires a showing that the applicant "would be" subject to
persecution, while § 203(a)(7) only required a showing that the
applicant was unwilling to return "because of persecution or
fear of persecution. " 12 I. & N., at 202 (emphasis in
original). In sum, it was repeatedly recognized that the standards
were significantly different. [ Footnote 15 ]

															At first glance, one might conclude that this wide practice
under the old § 203(a)(7), which spoke of "fear of persecution," is
not probative of the meaning of the term "well founded fear of
persecution" which Congress adopted in 1980. Analysis of the
legislative history, however, demonstrates that Congress added the
"well founded" language only because that was the language
incorporated by the United Nations Protocol to which Congress
sought to conform. See infra at 480 U. S.
436 -437. Congress was told that the extant asylum
procedure Page 480 U. S. 435 for refugees outside of the United States was acceptable under
the Protocol, except for the fact that it made various unacceptable
geographic and political distinctions. [ Footnote 16 ] The legislative history indicates that
Congress in no way wished to modify the standard that had been used
under § 203(a)(7). [ Footnote
17 ] Page 480 U. S. 436 Adoption of the INS's argument that the term "well founded fear"
requires a showing of clear probability of persecution would
clearly do violence to Congress' intent that the standard for
admission under § 207 be no different than the one previously
applied under § 203(a)(7). [ Footnote 18 ] The United Nations Protocol. If one thing is clear from the legislative history of the new
definition of "refugee," and indeed the entire 1980 Act, it is that
one of Congress' primary purposes was to bring United States
refugee law into conformance with the 1967 United Nations Protocol
Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No.
6577, to which the United States Page 480 U. S. 437 acceded in 1968. [ Footnote
19 ] Indeed, the definition of "refugee" that Congress adopted, see supra, at 480 U. S. 428 ,
is virtually identical to the one prescribed by Article 1(2) of the
Convention which defines a "refugee" as an individual who,

															"owing to a 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 19 U.S.T. 6261.
Not only did Congress adopt the Protocol's standard in the statute,
but there were also many statements indicating Congress' intent
that the new statutory definition of "refugee" be interpreted in
conformance with the Protocol's definition. The Conference
Committee Report, for example, stated that the definition was
accepted

															"with the understanding that it is based directly upon the
language of the Protocol, and it is intended that the provision be
construed consistent with the Protocol."

															S.Rep. No. 96-590, p. 20 (1980); see also H.R.Rep. at
9. It is thus appropriate to consider what the phrase "well founded
fear" means with relation to the Protocol.

															The origin of the Protocol's definition of "refugee" is found in
the 1946 Constitution of the International Refugee Organization
(IRO). See 62 Stat. 3037. The IRO defined a "refugee" as a
person who had a "valid objection" to returning to his country of
nationality, and specified that "fear, based on reasonable grounds
of persecution because of race, religion, nationality, or political
opinions . . . " constituted a valid objection. See IRO
Constitution, Annex 1, Pt. 1, § C1(a)(i). The term was then
incorporated in the United Nations Convention Page 480 U. S. 438 Relating to the Status of Refugees, [ Footnote 20 ] 189 U.N.T.S. 150 (July 28, 1951). The
Committee that drafted the provision explained that

															"[t]he expression 'well founded fear of being the victim of
persecution . . . ' means that a person has either been actually a
victim of persecution or can show good reason why he fears
persecution."

															U.N.Rep. at 39. The 1967 Protocol incorporated the "well founded
fear" test without modification. The standard, as it has been
consistently understood by those who drafted it as well as those
drafting the documents that adopted it, certainly does not require
an alien to show that it is more likely than not that he will be
persecuted in order to be classified as a "refugee." [ Footnote 21 ]

															In interpreting the Protocol's definition of "refugee," we are
further guided by the analysis set forth in the Office of the Page 480 U. S. 439 United Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status (Geneva,
1979). [ Footnote 22 ] The
Handbook explains that,

															"[i]n general, the applicant's fear should be considered well
founded if he can establish, to a reasonable degree, that his
continued stay in his country of origin has become intolerable to
him for the reasons stated in the definition, or would for the same
reasons be intolerable if he returned there." Id. at Ch. IIB(2)(a) § 42; see also id. §§
37-41.

															The High Commissioner's analysis of the United Nations' standard
is consistent with our own examination of the origins of the
Protocol's definition, [ Footnote
23 ] as well as the conclusions of Page 480 U. S. 440 many scholars who have studied the matter. [ Footnote 24 ] There is simply no room in the
United Nations' definition for concluding that, because an
applicant only has a 10% chance of being shot, tortured, or
otherwise persecuted, he or she has no "well founded fear" of the
event's happening. See supra at 480 U. S. 431 .
As we pointed out in Stevic, a moderate interpretation of
the "well founded fear" standard would indicate

															"that, so long as an objective situation is established by the
evidence, it need not be shown that the situation will probably
result in persecution, but it is enough that persecution is a
reasonable possibility."

															467 U.S. at 467 U. S.
424 -425.

															In Stevic, we dealt with the issue of withholding of
deportation, or nonrefoulement, under § 243(h). This
provision corresponds to Article 33.1 of the Convention. [ Footnote 25 ] Significantly, though,
Article 33.1 does not extend this right to everyone who meets the
definition of "refugee." Rather, it provides that

															"[n]o Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers or
territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a
particular social group or political opinion."

															19 U.S.T. at 6276, 189 U.N.T.S. at 176 (emphasis added). Thus,
Article 33.1 requires that an applicant satisfy two burdens: first,
that he or she be a "refugee," i.e., prove at least a
"well-founded Page 480 U. S. 441 fear of persecution;" second, that the "refugee" show that his
or her life or freedom "would be threatened" if deported. Section
243(h)'s imposition of a "would be threatened" requirement is
entirely consistent with the United States' obligations under the
Protocol.

															Section 208(a), by contrast, is a discretionary mechanism which
gives the Attorney General the authority to grant the
broader relief of asylum to refugees. As such, it does not
correspond to Article 33 of the Convention, but instead corresponds
to Article 34. See Carvajal-Munoz, 743 F.2d at 574, n. 15.
That Article provides that the contracting States "shall as far as
possible facilitate the assimilation and naturalization of
refugees. . . ." Like § 208(a), the provision is precatory; it does
not require the implementing authority actually to grant asylum to
all those who are eligible. Also like § 208(a), an alien must only
show that he or she is a "refugee" to establish eligibility for
relief. No further showing that he or she "would be" persecuted is
required.

															Thus, as made binding on the United States through the Protocol,
Article 34 provides for a precatory, or discretionary, benefit for
the entire class of persons who qualify as "refugees," whereas
Article 33.1 provides an entitlement for the subcategory that
"would be threatened" with persecution upon their return. This
precise distinction between the broad class of refugees and the
subcategory entitled to § 243(h) relief is plainly revealed in the
1980 Act. See Stevic, 467 U.S. at 467 U. S. 428 ,
n. 22. Congress' Rejection of S. 643. Both the House bill, H.R. 2816, 96th Cong., 1st Sess. (1979),
and the Senate bill, S. 643, 96th Cong., 1st Sess. (1979), provided
that an alien must be a a "refugee" within the meaning of the Act
in order to be eligible for asylum. The two bills differed,
however, in that the House bill authorized the Attorney General, in
his discretion, to grant asylum to any refugee, whereas the Senate
bill imposed the additional Page 480 U. S. 442 requirement that a refugee could not obtain asylum unless "his
deportation or return would be prohibited under section 243(h)."
[ Footnote 26 ] S.Rep. at 26.
Although this restriction, if adopted, would have curtailed the
Attorney General's discretion to grant asylum to refugees pursuant
to § 208(a), it would not have affected the standard used to
determine whether an alien is a "refugee." Thus, the inclusion of
this prohibition in the Senate bill indicates that the Senate
recognized that there is a difference between the "well founded
fear" standard and the clear probability standard. [ Footnote 27 ] The enactment of the House
bill, rather than the Senate bill, in turn demonstrates that
Congress eventually refused to restrict eligibility for asylum only
to aliens meeting the stricter standard.

															"Few principles of statutory construction are more compelling
than the proposition that Congress does not intend sub Page 480 U. S. 443 silentio to enact statutory language that it has
earlier discarded in favor of other language." Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U. S. 359 , 446 U. S.
392 -393 (1980) (Stewart, J., dissenting); cf. Gulf
Oil Corp. v. Copp Paving Co., 419 U.
S. 186 , 419 U. S. 200 (1974); Russello v. United States, 464 U.S. at 464 U. S.
23 . IV The INS makes two major arguments to support its contention that
we should reverse the Court of Appeals and hold that an applicant
can only show a "well founded fear of persecution" by proving that
it is more likely than not that he or she will be persecuted. We
reject both of these arguments: the first ignores the structure of
the Act; the second misconstrues the federal courts' role in
reviewing an agency's statutory construction.

															First, the INS repeatedly argues that the structure of the Act
dictates a decision in its favor, since it is anomalous for §
208(a), which affords greater benefits than § 243(h), see n 6, supra, to have a
less stringent standard of eligibility. This argument sorely fails,
because it does not take into account the fact that an alien who
satisfies the applicable standard under § 208(a) does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his
discretion, chooses to grant it. An alien satisfying § 243(h)'s
stricter standard, in contrast, is automatically entitled to
withholding of deportation. [ Footnote 28 ] In Matter of Salim, 18 I. &
N.Dec. 311 (1982), for example, the Board held that the alien was
eligible for both asylum and withholding of deportation, but
granted him the more limited remedy only, exercising its discretion
to deny him asylum. See also Walai v. INS, 552 F.
Supp. 998 (SDNY 1982); Matter Page 480 U. S. 444 of Shirdel, Interim Decision No. 2958 (BIA Feb. 21,
1984). We do not consider it at all anomalous that, out of the
entire class of "refugees," those who can show a clear probability
of persecution are entitled to mandatory suspension of
deportation and eligible for discretionary asylum, while
those who can only show a well founded fear of persecution are not entitled to anything, but are eligible for the
discretionary relief of asylum.

															There is no basis for the INS's assertion that the
discretionary/mandatory distinction has no practical significance.
Decisions such as Matter of Salim, supra, and Matter
of Shirdel, supra, clearly demonstrate the practical import of
the distinction. Moreover, the 1980 Act amended § 243(h) for the
very purpose of changing it from a discretionary to a mandatory
provision. See supra at 480 U. S.
428 -429. Congress surely considered the
discretionary/mandatory distinction important then, as it did with
respect to the very definition of "refugee" involved here. The
House Report provides:

															"The Committee carefully considered arguments that the new
definition might expand the numbers of refugees eligible to come to
the United States and force substantially greater refugee
admissions than the country could absorb. However, merely because
an individual or group comes within the definition will not
guarantee resettlement in the United States."

															H.R.Rep. at 10. This vesting of discretion in the Attorney
General is quite typical in the immigration area, see, e.g.,
INS v. Jong Ha Wang, 450 U. S. 139 (1981). If anything is anomalous, it is that the Government now
asks us to restrict its discretion to a narrow class of aliens.
Congress has assigned to the Attorney General and his delegates the
task of making these hard individualized decisions; although
Congress could have crafted a narrower definition, it chose to
authorize the Attorney Page 480 U. S. 445 General to determine which, if any, eligible refugees should be
denied asylum.

															The INS's second principal argument in support of the
proposition that the "well founded fear" and "clear probability"
standard are equivalent is that the BIA so construes the two
standards. The INS argues that the BIA's construction of the
Refugee Act of 1980 is entitled to substantial deference, even if
we conclude that the Court of Appeals' reading of the statutes is
more in keeping with Congress' intent. [ Footnote 29 ] This argument is unpersuasive. Page 480 U. S. 446 The question whether Congress intended the two standards to be
identical is a pure question of statutory construction for the
courts to decide. Employing traditional tools of statutory
construction, we have concluded that Congress did not intend the
two standards to be identical. [ Footnote 30 ] In Chevron Page 480 U. S. 447 U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), we explained:

															"The judiciary is the final authority on issues of statutory
construction, and must reject administrative constructions which
are contrary to clear congressional Page 480 U. S. 448 intent. [Citing cases.] If a court, employing traditional tools
of statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention is the
law, and must be given effect." Id. at 467 U. S. 843 ,
n. 9 (citations omitted).

															The narrow legal question whether the two standards are the same
is, of course, quite different from the question of interpretation
that arises in each case in which the agency is required to apply
either or both standards to a particular set of facts. There is
obviously some ambiguity in a term like "well founded fear" which
can only be given concrete meaning through a process of
case-by-case adjudication. In that process of filling " any gap
left, implicitly or explicitly, by Congress,'" the courts must
respect the interpretation of the agency to which Congress has
delegated the responsibility for administering the statutory
program. See Chevron, supra, at 467 U. S. 843 ,
quoting Morton v. Ruiz, 415 U. S. 199 , 415 U. S. 231 (1974). But our task today is much narrower, and is well within the
province of the Judiciary. We do not attempt to set forth a
detailed description of how the "well founded fear" test should be
applied. [ Footnote 31 ]
Instead, we merely hold that the Immigration Judge and the BIA were
incorrect in holding that the two standards are identical.
[ Footnote 32 ] Page 480 U. S. 449 Our analysis of the plain language of the Act, its symmetry with
the United Nations Protocol, and its legislative history, lead
inexorably to the conclusion that, to show a "well founded fear of
persecution," an alien need not prove that it is more likely than
not that he or she will be persecuted in his or her home country.
We find these ordinary canons of statutory construction compelling,
even without regard to the longstanding principle of construing any
lingering ambiguities in deportation statutes in favor of the
alien. See INS v. Errico, 385 U.
S. 214 , 385 U. S. 225 (1966); Costello v. INS, 376 U. S. 120 , 376 U. S. 128 (1964); Fong Haw Tan v. Phelan, 333 U. S.
6 , 333 U. S. 10 (1948).

															Deportation is always a harsh measure; it is all the more
replete with danger when the alien makes a claim that he or she
will be subject to death or persecution if forced to return to his
or her home country. In enacting the Refugee Act of 1980, Congress
sought to

															"give the United States sufficient flexibility to respond to
situations involving political or religious dissidents and
detainees throughout the world."

															H.R.Rep. at 9. Our holding today increases that flexibility by
rejecting the Government's contention that the Attorney General may
not even consider granting asylum to one who Page 480 U. S. 450 fails to satisfy the strict § 243(h) standard. Whether or not a
"refugee" is eventually granted asylum is a matter which Congress
has left for the Attorney General to decide. But it is clear that
Congress did not intend to restrict eligibility for that relief to
those who could prove that it is more likely than not that they
will be persecuted if deported.

															The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ]

															We explained that the Court of Appeals' decision had rested

															"on the mistaken premise that every alien who qualifies as a
'refugee' under the statutory definition is also entitled to a
withholding of deportation under § 243(h). We find no support for
this conclusion in either the language of § 243(h), the structure
of the amended Act, or the legislative history." INS v. Stevic, 467 U.S. at 467 U. S.
428 .

															[ Footnote 2 ] Compare Carcamo-Flores v. INS, 806 F.2d 60 (CA2 1986); Guevara-Flores v. INS, 786 F.2d 1242 (CA5 1986), cert.
pending, No. 86-388; Cardoza-Fonseca v. INS, 767 F.2d
1448 (CA9 1985) (case below); Carvajal-Munoz v. INS, 743
F.2d 562, 574 (CA7 1984); Youkhanna v. INS, 749 F.2d 360,
362 (CA6 1984); with Sankar v. INS, 757 F.2d 532, 533 (CA3
1985).

															The Third Circuit is the only Circuit to decide since our
decision in INS v. Stevic, 467 U.
S. 407 (1984), that the standards remain identical. It
reached this conclusion, however, not because post- Stevic analysis compelled it, but because it considered itself bound by
its pre- Stevic decision in Rejaie v. INS, 691
F.2d 139 (1982). See Sankar, supra, at 533.

															[ Footnote 3 ]

															We have considered whether this case has been rendered moot by
the recent enactment of the Immigration Reform and Control Act of
1986. Pub.L. No. 99-603, 100 Stat. 3359. While nothing in that Act
affects the statutory provisions related to asylum or withholding
of deportation, Title II of the 1986 Act creates a mechanism by
which certain aliens may obtain legalization of their status.
Section 201(a) of the 1986 Act establishes that, with certain
exceptions, an alien who has resided continuously in the United
States in an unlawful status since before January 1, 1982, is
entitled to have his or her status adjusted to that of an alien
lawfully admitted for temporary residence. An alien who obtains
this adjustment of status under the new Act is then eligible for a
second adjustment to the status of permanent resident after a
waiting period of 18 months. See § 245A(a). An alien who
obtains permanent residence status through this route is not,
however, eligible for all benefits usually available to permanent
residents. For example, aliens who obtain permanent residence
through this program are not eligible for certain public welfare
benefits for five years after the grant of the new status. See § 245A(H).

															The record indicates that respondent may well be eligible for
eventual adjustment of status if she makes a timely application
after the Attorney General establishes the procedures for
administering Title II. It would therefore appear that respondent
might become a permanent resident by invoking the new procedures
even if she is unsuccessful in her pending request for asylum.
Nonetheless, the possibility of this relief does not render her
request for asylum moot. First, the legalization provisions of the
1986 Act are not self-executing, and the procedures for
administering the new Act are not yet in place. Even if the
benefits were identical, therefore, there is no way of knowing at
this time whether respondent will be able to satisfy whatever
burden is placed upon her to demonstrate eligibility. Cf. INS
v. Chadha, 462 U. S. 919 , 462 U. S. 937 (1983). Second, respondent might be able to obtain permanent
residence through the asylum procedure sooner than through the
legalization program; if she satisfies certain conditions, she may
become eligible for adjustment of status to that of permanent
resident 12 months after a grant of asylum. See 8 CFR §§
209.1, 209.2 (1986). Under Title II of the new Act, by contrast,
there is an 18-month waiting period. In light of these factors, we
are persuaded that the controversy is not moot.

															Nor do we believe that the new Act makes it appropriate to
exercise our discretion to dismiss the writ of certiorari as
improvidently granted. The question presented in this case will
arise, and has arisen, in hosts of other asylum proceedings brought
by aliens who arrived in the United States after January 1, 1982,
or who are seeking entry as refugees from other countries. The
importance of the legal issue makes it appropriate for us to
address the merits now.

															[ Footnote 4 ]

															Prior to the amendments, asylum for aliens who were within the
United States had been governed by regulations promulgated by the
INS, pursuant to the Attorney General's broad parole authority. See n. 14, infra. Asylum for applicants who were
not within the United States was generally governed by the
now-repealed § 203(a)(7) of the Act, 8 U.S.C. §1153(a)(7) (1976
ed.). See infra at 480 U. S.
433 .

															[ Footnote 5 ]

															It is important to note that the Attorney General is not
required to grant asylum to everyone who meets the definition of
refugee. Instead, a finding that an alien is a refugee does no more
than establish that "the alien may be granted asylum in the discretion of the Attorney General. " § 208(a)
(emphasis added). See Stevic, 467 U.S. at 467 U. S. 423 ,
n. 18; see also infra at 480 U. S.
441 -444.

															[ Footnote 6 ]

															Asylum and withholding of deportation are two distinct forms of
relief. First, as we have mentioned, there is no entitlement to
asylum; it is only granted to eligible refugees pursuant to the
Attorney General's discretion. Once granted, however, asylum
affords broader benefits. As the BIA explained in the context of an
applicant from Afghanistan who was granted § 243(h) relief but was
denied asylum:

															"Section 243(h) relief is 'country specific,' and accordingly,
the applicant here would be presently protected from deportation to
Afghanistan pursuant to section 243(h). But that section would not
prevent his exclusion and deportation to Pakistan or any other
hospitable country under section 237(a) if that country will accept
him. In contrast, asylum is a greater form of relief. When granted
asylum, the alien may be eligible for adjustment of status to that
of a lawful permanent resident pursuant to section 209 of the Act,
8 U.S.C. 1169, after residing here one year, subject to numerical
limitations and the applicable regulations." Matter of Salim, 18 I. & N.Dec. 311, 315 (1982). See also Matter of Lam, 18 I. & N.Dec. 15, 18 (BIA
1981).

															[ Footnote 7 ]

															Article 33.1 of the Convention provides:

															"No Contracting State shall expel or return ('refouler') a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion."

															189 U.N.T.S. 150, 176 (1954), 19 U.S.T. 6259, 6278, T.I.A.S. No.
6577 (1968).

															[ Footnote 8 ]

															While the Protocol constrained the Attorney General with respect
to § 243(h) between 1968 and 1980, the Protocol does not require
the granting of asylum to anyone, and hence does not subject the
Attorney General to a similar constraint with respect to his
discretion under § 208(a). See infra at 480 U. S.
440 -441.

															[ Footnote 9 ]

															As amended, the new § 243(h) provides:

															"The Attorney General shall not deport or return any
alien . . . to a country if the Attorney General determines that
such alien's life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a particular
social group, or political opinion."

															8 U.S.C. § 1253(h)(1) (emphasis added).

															[ Footnote 10 ]

															"The section literally provides for withholding of deportation
only if the alien's life or freedom 'would' be threatened in the
country to which he would be deported; it does not require
withholding if the alien 'might' or 'could' be subject to
persecution." Stevic, 467 U.S. at 467 U. S.
422 .

															[ Footnote 11 ]

															The BIA agrees that the term "fear," as used in this statute,
refers to "a subjective condition, an emotion characterized by the
anticipation or awareness of danger." Matter of Acosta, Interim Decision No. 2986, p. 14 (Mar. 1, 1985) (citing Webster's
Third New International Dictionary 831 (16th ed.1971)).

															[ Footnote 12 ]

															As we have explained, the plain language of this statute appears
to settle the question before us. Therefore, we look to the
legislative history to determine only whether there is "clearly
expressed legislative intention" contrary to that language, which
would require us to question the strong presumption that Congress
expresses its intent through the language it chooses. See
United States v. James, 478 U. S. 597 , 478 U. S. 606 (1986); Consumer Product Safety Comm'n v. GTE Sylyania,
Inc., 447 U. S. 102 , 447 U. S. 108 (1980). In this case, far from causing us to question the
conclusion that flows from the statutory language, the legislative
history adds compelling support to our holding that Congress never
intended to restrict eligibility for asylum to aliens who can
satisfy § 243(h)'s strict, objective standard.

															[ Footnote 13 ]

															The definition also applies to § 209, 8 U. .S.C. § 1159, which
governs the adjustment of status of refugees after they have been
granted asylum.

															[ Footnote 14 ]

															Such a procedure had been authorized by regulation since 1974, see 8 CFR pt. 108 (1976), but it was administered by INS
District Directors, rather than the BIA. As we noted in Stevic, these

															"regulations did not explicitly adopt a standard for the
exercise of discretion on the application, but did provide that a
denial of an asylum application 'shall not preclude the alien, in a
subsequent expulsion hearing, from applying for the benefits of
section 243(h) of the Act and of Articles 32 and 33 of the
Convention Relating to the Status of Refugees.' 8 CFR § 108.2
(1976)."

															467 U.S. at 467 U. S. 420 ,
n. 13. In 1979, the regulations were amended to confer jurisdiction
over asylum requests on the BIA for the first time. Ibid. [ Footnote 15 ] See also Matter of Janus and Janek, 12 I. & N.Dec.
866, 876 (BIA 1968). On the District Director level, where §
203(a)(7) claims were generally processed, see n 14, supra, this
distinction was also recognized. In Matter of Ugricic, 14
I. & N.Dec. 384 (1972), a District Director articulated the
test under § 203(a)(7) as whether the applicant could prove that
"he was persecuted or had good reason to fear persecution." Id. at 385-386.

															[ Footnote 16 ] See S.Rep. No. 96-256, p. 9 (1979) (hereafter S.Rep.)
(substantive standard for asylum is not changed); H.R.Rep. No.
96-608, p. 9 (1979) (hereafter H.R.Rep.) (discussing geographic
limitations); Hearings before the House Subcommittee on
International Operations of the Committee on Foreign Affairs on
H.R. 2816, 96th Cong., 1st Sess., 72 (1979) (remarks of David
Martin).

															[ Footnote 17 ]

															The INS argues that Congress intended to perpetuate the standard
being used in the informal parole proceedings under the
regulations, see n 14, supra, not the asylum procedure under § 203(a)(7).
Until 1979, the regulations provided no standard, but they were
amended in 1979 to provide that the applicant has the "burden of
satisfying the immigration judge that he would be subject to
persecution." 8 CFR § 108.3(a) (1980). This standard was identical
to the one that was set forth in the regulations for the treatment
of applications for withholding of deportation. See 8 CFR
§ 242.17(c) (1980).

															The argument that Congress intended to adhere to the standard
used in the informal parole proceedings cannot be squared with
Congress' use of an entirely different formulation of the standard
for defining "refugee" -- one much closer to § 203(a)(7) than to §
243(h) (the statute which was the focus of the standard developed
in the 1980 regulations). Moreover, to the extent that Congress was
ambiguous as to which practice it sought to incorporate, it is far
more reasonable to conclude that it sought to continue the practice
under § 203(a)(7), a statutory provision, than to adhere to the
informal parole practices of the Attorney General, a matter in
which Congress had no involvement.

															The Government relies on the following passage from the Senate
Report to support its contention that Congress sought to
incorporate the standard from the parole proceedings -- not from §
203(a)(7):

															"[T]he bill establishes an asylum provision in the Immigration
and Nationality Act for the first time by improving and clarifying
the procedures for determining asylum claims filed by aliens who
are physically present in the United States. The substantive
standard is not changed."

															S.Rep. at 9. The bill that the Senate Committee was discussing
indeed made no change in the standards to be applied to
applications for asylum from aliens within the United States; the
Senate version explicitly incorporated the same standard as used in
§ 243(h). See infra at 480 U. S.
441 -442. But the Senate version was rejected by
Congress, and the well founded fear standard that was adopted
mirrored § 203(a)(7), not § 243(h).

															JUSTICE POWELL's claim that the House Report also sought to
incorporate the informal asylum standard is unfounded. Post at 480 U. S.
462 -463. As the passage he quotes and the context
plainly indicate, the House Report referred to "means of entry" --
an issue dealt with under § 203(a)(7), not the asylum regulations. See H.R.Rep. at 10. The Committee's reference to the
Attorney General's asylum procedures, seven pages later in the
text, in a discussion labeled "Asylum," and not even dealing with
the definition of "well founded fear," see id. at 17,
certainly does nothing to support JUSTICE POWELL'S conclusion.

															[ Footnote 18 ]

															Although this evidence concerns application of the term
"refugee" to § 207, not § 208, the term is defined in § 101(a)(42),
and obviously can have only one meaning. JUSTICE POWELL suggests
that the definition of "well founded fear" be interpreted as
incorporating the standard from the asylum regulations, rather than
the standard from § 203(a)(7), because

															"[i]t is more natural to speak of 'preserving' an interpretation
that had governed the same form of relief than one that
had applied to a different form of relief," post at 480 U. S. 462 (emphasis added). Since the definition in § 101(a)(42) applies to
all asylum relief -- that corresponding to the old § 203(a)(7) as
well as that corresponding to the old Attorney General regulations
-- it is difficult to understand how JUSTICE POWELL reasons that it
is likely that Congress preserved the " same form of
relief" (emphasis added). The question is: the "same" as which? Our
answer, based on Congress' choice of language and the legislative
history, is that Congress sought to incorporate the "same" standard
as that used in § 203(a)(7).

															[ Footnote 19 ] See H.R.Conf.Rep. No. 96-781, p. 19 (1980); H.R.Rep. at
9; S.Rep. at 4.

															[ Footnote 20 ]

															In the Displaced Persons Act of 1948, 62 Stat. 1009, §§ 2(a),
(d), Congress adopted the IRO definition of the term "refugee," and
thus used the "fear of persecution" standard. This standard was
retained in the Refugee Relief Act of 1953, 67 Stat. 400 § 2(a), as
well as in the Refugee Escapee Act of 1967, 71 Stat. 643 §
15(c)(1). In 1965, when Congress enacted § 203(a)(7) of the Act, it
again used the "fear of persecution" standard.

															The interpretation afforded to the IRO definition is important
in understanding the United Nations' definition, since the
Committee drafting the United Nations' definition made it clear
that it sought to

															"assure that the new consolidated convention should afford at
least as much protection to refugees as had been provided by
previous agreements."

															United Nations Economic and Social Council, Report of the Ad Hoc
Committee on Statelessness and Related Problems 37 (Feb. 17, 1950)
(U.N.Doc. E/1618, E/AC.32/5 (hereafter U.N.Rep.)). In its Manual
for Eligibility Officers, the IRO had stated:

															"Fear of persecution is to be regarded as a valid objection
whenever an applicant can make plausible that, owing to his
religious or political convictions or to his race, he is afraid of
discrimination or persecution on returning home. Reasonable grounds
are to be understood as meaning that the applicant can give a
plausible and coherent account of why he fears persecution."

															International Refugee Organization, Manual for Eligibility
Officers No. 175, ch. IV, Annex 1, Pt. 1, § C19, p. 24 (undated,
circulated in 1950).

															[ Footnote 21 ]

															Although the United States has never been party to the 1951
Convention, it is a party to the Protocol, which incorporates the
Convention's definition in relevant part. See 19 U.S.T.
6225, T.I.A.S. No. 6577 (1968).

															[ Footnote 22 ]

															We do not suggest, of course, that the explanation in the U.N.
Handbook has the force of law or in any way binds the INS with
reference to the asylum provisions of § 208(a). Indeed, the
Handbook itself disclaims such force, explaining that

															"the determination of refugee status under the 1951 Convention
and the 1967 Protocol . . . is incumbent upon the Contracting State
in whose territory the refugee finds himself."

															Office of the United Nations High Commissioner for Refugees,
Handbook on Procedures and Criteria for Determining Refugee Status
1(ii) (Geneva, 1979).

															Nonetheless, the Handbook provides significant guidance in
construing the Protocol, to which Congress sought to conform. It
has been widely considered useful in giving content to the
obligations that the Protocol establishes. See McMullen v.
INS, 668 F.2d 1312, 1319 (CA9 1981); Matter of
Frentescu, 18 I. & N.Dec. 244 (BIA 1982); Matter of
Rodriguez-Palma, 17 I. & N.Dec. 465 (BIA 1980).

															[ Footnote 23 ]

															The Board's decision in Matter of Dunar, 14 I. &
N.Dec. 310 (1973), is not particularly probative of what the
Protocol means and how it interacts with the provisions of the 1980
Act. In Dunar, the Board was faced with the question
whether the United States' accession to the Protocol modified the
standard of proof to be applied under § 243(h). The Board, after
elaborating on the principle that treaties are not lightly to be
read as superseding prior Acts of Congress, id. at
313-314, found no evidence that Congress sought to modify the §
243(h) standard, and therefore construed the provisions as not
inherently inconsistent. Even so, the Board recognized some tension
between the standards, but was satisfied that they could "be
reconciled on a case-by-case consideration as they arise." Id. at 321.

															Whether or not the Board was correct in Dunar, its
holding, based on a presumption that the two provisions were
consistent, says little about how the Protocol should be
interpreted absent such a presumption and given Congress' amendment
of the statute to make it conform with the Protocol. See
Carvajal-Munoz, 743 F.2d at 574 (distinguishing pre-1980
"prediction" about the relation of the standards with post-1980
analysis of Congress' actual intent).

															[ Footnote 24 ] See 1 A. Grahl-Madsen, The Status of Refugees in
International Law 181 (1966) ("If there is a real chance that he
will suffer persecution, that is reason good enough, and his fear' is `well founded"'); G. Goodwin-Gill, The Refugee in
International Law 22-24 (1983) (balance of probability test is
inappropriate; more appropriate test is "reasonable chance,"
"substantial grounds for thinking," or "serious possibility"); see generally Cox, "Well Founded Fear of Being
Persecuted": The Sources and Application of a Criterion of Refugee
Status, 10 Brooklyn J. Int'l Law 333 (1984). [ Footnote 25 ]

															The 1980 Act made withholding of deportation under § 243(h)
mandatory in order to comply with Article 33.1. See supra at 480 U. S.
428 -429.

															[ Footnote 26 ]

															Section 207(b)(1) of the Senate bill provided:

															"The Attorney General shall establish a uniform procedure for an
alien physically present in the United States, irrespective of his
status, to apply for asylum, and the alien shall be granted asylum
if he is a refugee within the meaning of section 101(a)(42)(A) and
his deportation or return would be prohibited under section 243(h)
of this Act." See S.Rep. at 26.

															[ Footnote 27 ]

															The 1980 Act was the culmination of a decade of legislative
proposals for reform in the refugee laws. See generally Anker & Posner, The Forty Year Crisis: A Legislative History of
the Refugee Act of 1980, 19 San Diego L.Rev. 9, 20-64 (1981). On a
number of occasions during that period, the Government objected to
the "well founded fear" standard, arguing:

															"[I]t should be limited by providing that it be a 'well founded
fear in the opinion of the Attorney General.' Failure to add 'in
the opinion of the Attorney General' would make it extremely
difficult to administer this section, since it would be entirely
subjective."

															Western Hemisphere Immigration, Hearings on H.R. 981 before
Subcommittee No. 1 of the Committee on the Judiciary, 93d Cong.,
1st Sess., 95 (1973) (statement of Hon. Francis Kellogg, Special
Assistant to the Secretary of State). See also Anker &
Posner, supra, at 25; Helton, Political Asylum Under the
1980 Refugee Act: An Unfulfilled Promise, 10 Mich.J.L.Ref. 243,
249-252 (1984). In light of this kind of testimony and attention to
the issue, it is unrealistic to suggest that Congress did not
realize that the "well founded fear" standard was significantly
different from the standard that has continuously been part of §
243(h).

															[ Footnote 28 ]

															There are certain exceptions, not relevant here. See,
e.g., § 243(h) (2)(A) (alien himself participated in "the
persecution of any person . . ."); § 243(h)(2)(B) (alien was
convicted of "serious crime" and "constitutes a danger to the
community of the United States").

															[ Footnote 29 ]

															In view of the INS's heavy reliance on the principle of
deference as described in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc. , 467 U. S. 837 (1984), we set forth the relevant text in its entirety:

															"When a court reviews an agency's construction of the statute
which it administers, it is confronted with two questions. First,
always, is the question whether Congress has directly spoken to the
precise question at issue. If the intent of Congress is clear, that
is the end of the matter, for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.
If, however, the court determines Congress has not directly
addressed the precise question at issue, the court does not simply
impose its own construction on the statute, as would be necessary
in the absence of an administrative interpretation. Rather, if the
statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency's answer is based
on a permissible construction of the statute."

															" The power of an administrative agency to administer a
congressionally created . . . program necessarily requires the
formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress."

															" Morton v. Ruiz, 415 U. S. 199 , 415 U. S.
231 (1974). If Congress has explicitly left a gap for
the agency to fill, there is an express delegation of authority to
the agency to elucidate a specific provision of the statute by
regulation. Such legislative regulations are given controlling
weight unless they are arbitrary, capricious, or manifestly
contrary to the statute. Sometimes the legislative delegation to an
agency on a particular question is implicit, rather than explicit.
In such a case, a court may not substitute its own construction of
a statutory provision for a reasonable interpretation made by the
administrator of an agency."

															"We have long recognized that considerable weight should be
accorded to an executive department's construction of a statutory
scheme it is entrusted to administer, and the principle of
deference to administrative interpretations"

															"has been consistently followed by this Court whenever decision
as to the meaning or reach of a statute has involved reconciling
conflicting policies, and a full understanding of the force of the
statutory policy in the given situation has depended upon more than
ordinary knowledge respecting the matters subjected to agency
regulations. . . ."

															" . . . If this choice represents a reasonable accommodation of
conflicting policies that were committed to the agency's care by
the statute, we should not disturb it unless it appears from the
statute or its legislative history that the accommodation is not
one that Congress would have sanctioned."

															" United States v. Shimer, 367 U. S.
374 , 367 U. S. 382 , 367 U. S.
383 (1961)."

															" Accord, 467 U. S. Inc. v. Crisp, [ 467 U.S.
691 , 467 U. S. 699 -700
(1984)]."

															"In light of these well settled principles, it is clear that the
Court of Appeals misconceived the nature of its role in reviewing
the regulations at issue. Once it determined, after its own
examination of the legislation, that Congress did not actually have
an intent regarding the applicability of the bubble concept to the
permit program, the question before it was not whether in its view
the concept is 'inappropriate' in the general context of a program
designed to improve air quality, but whether the Administrator's
view that it is appropriate in the context of this particular
program is a reasonable one. Based on the examination of the
legislation and its history which follows, we agree with the Court
of Appeals that Congress did not have a specific intention on the
applicability of the bubble concept in these cases, and conclude
that the EPA's use of that concept here is a reasonable policy
choice for the agency to make." Id. at 467 U. S.
842 -845 (citations and footnotes omitted).

															[ Footnote 30 ]

															An additional reason for rejecting the INS's request for
heightened deference to its position is the inconsistency of the
positions the BIA has taken through the years. An agency
interpretation of a relevant provision which conflicts with the
agency's earlier interpretation is "entitled to considerably less
deference" than a consistently held agency view. Watt v.
Alaska, 451 U. S. 259 , 451 U. S. 273 (1981); see also General Electric Co. v. Gilbert, 429 U. S. 125 , 429 U. S. 143 (1976).

															The BIA has answered the question of the relationship between
the objective § 243(h) standard and the fear-based standard of §§
203(a)(7), 208, and the United Nations Protocol in at least three
different ways. During the period between 1965, when § 203(a)(7)
was enacted, and 1972, the BIA expressly recognized that §
203(a)(7) and § 243(h) prescribed different standards. See
supra at 480 U. S.
433 -434. Moreover, although the BIA decided in 1973 that
the two standards were not irreconcilably different, see Matter
of Dunar, 14 I. & N.Dec. 310 (1973), as of 1981, the INS
was still instructing its officials to apply a "good reason" test
to requests for asylum from aliens not within the United States. See Dept. of Justice, INS Operating Instructions
Regulations TM 101, § 208.4, p. 766.9 (Nov. 11, 1981) (explaining
that "well founded fear" is satisfied if applicant "can show good
reason why he/she fears persecution"). In 1984, when this case was
decided by the BIA, it adhered to the view that the INS now
espouses -- complete identity of the standards. In 1985, however,
the BIA decided to reevaluate its position and issued a
comprehensive opinion to explain its latest understanding of the
"well founded fear" standard. Matter of Acosta, Interim
Decision No. 2986 (Mar. 1, 1985).

															In Acosta, the BIA noted a number of similarities
between the two standards and concluded that, in practical
application, they are "comparable" or "essentially comparable," and
that the differences between them are not "meaningful," but the
agency never stated that they are identical, equivalent, or
interchangeable. On the contrary, the Acosta opinion
itself establishes that the two standards differ. In describing the
objective component of the asylum standard, the BIA concluded that
the alien is not required to establish the likelihood of
persecution to any "particular degree of certainty." Id. at 22. There must be a "real chance" that the alien will become a
victim of persecution, ibid., but it is not necessary to
show "that persecution is more likely than not' to occur." Id. at 25. The Acosta opinion was written after
we had decided in Stevic that the § 243(h)
standard "requires that an application be supported by evidence
establishing that it is more likely than not that the alien would
be subject to persecution,"

															467 U.S. at 467 U. S.
429 -430. The decision in Acosta and the long
pattern of erratic treatment of this issue make it apparent that
the BIA has not consistently agreed, and even today does not
completely agree, with the INS's litigation position that the two
standards are equivalent.

															[ Footnote 31 ]

															How "meaningful" the differences between the two standards may
be is a question that cannot be fully decided in the abstract, but
the fact that Congress has prescribed two different standards in
the same Act certainly implies that it intended them to have
significantly different meanings.

															We cannot accept the INS's argument that it is impossible to
think about a "well founded fear" except in "more likely than not"
terms. The Board was able to do it for a long time under §
203(a)(7), see Matter of Tan, 12 I. & N.Dec. 564
(1967); Matter of Adamska, 12 1. & N.Dec. 201 (1967),
and has apparently had little trouble applying the two separate
standards in compliance with the recent Courts of Appeals'
decisions. See, e.g., Matter of Sanchez and Escobar, Interim Decision No. 2996 (Oct. 15, 1985).

															[ Footnote 32 ]

															JUSTICE POWELL argues that the Court of Appeals should be
reversed for a different reason -- that it misinterpreted the BIA's
decision. See post at 480 U. S.
465 -468. This issue was not raised in any of the
parties' briefs, and was neither "set forth" nor "fairly included"
within the question presented in the petition for certiorari. See this Court's Rule 20.1. The question presented
asked:

															"Whether an alien's burden of proving eligibility for asylum
pursuant to Section 208 (a) of the Immigration and Nationality Act
of 1952, 8 U.S.C. 1158 (a), is equivalent to his burden of proving
eligibility for withholding of deportation pursuant to Section 243
(h) of the Act, 8 U.S.C. 1253 (h)."

															Pet. for Cert. (1). This question cannot be read as challenging
the Court of Appeals' determination that the BIA in fact required
respondent "to demonstrate a clear probability of persecution in
order to be declared eligible for asylum." 767 F.2d at 1454. We
therefore decline to address the issue. See United Parcel
Service, Inc. v. Mitchell, 451 U. S. 56 , 451 U. S. 60 , n.
2 (1981); Irvine v. California, 347 U.
S. 128 , 347 U. S. 129 (1954).

															JUSTICE BLACKMUN, concurring.

															I join the Court's opinion and judgment. Thus, I accept its
"narrow" conclusion that

															"the Immigration Judge and the BIA were incorrect in holding
that the [standards for withholding of deportation and granting
asylum] are identical." Ante at 480 U. S. 448 .
In accordance with this holding, the Court eschews any attempt to
give substance to the term "well founded fear," and leaves that
task to the "process of case-by-case adjudication" by the INS, the
agency in charge of administering the immigration laws. Ibid. I write separately and briefly to emphasize my
understanding that, in its opinion, the Court has directed the INS
to the appropriate sources from which the agency should derive the
meaning of the "well founded fear" standard, a meaning that will be
refined in later adjudication. This emphasis, I believe, is
particularly needed where, as here, an agency's previous
interpretation of the statutory term is so strikingly contrary to
plain language and legislative history.

															Thus, as the Court observes, ante at 480 U. S.
430 -431, the very language of the term "well founded
fear" demands a particular type of analysis -- an examination of
the subjective feelings of an applicant for asylum coupled with an
inquiry into the objective nature of the articulated reasons for
the fear. Moreover, in describing how, in the 1980 Act, Congress
was attempting to bring this country's refugee laws into conformity
with the United Nations Protocol, the Court notes that the Act's
definition of refugee, wherein the "well founded fear" term
appears, ante at 480 U. S. 427 ,
tracks the language of the Page 480 U. S. 451 Protocol. See ante at 480 U. S.
436 -437. Such language has a rich history of
interpretation in international law and scholarly commentaries. See ante at 480 U. S.
437 -440, and nn. 20, 24. While the INS need not ignore
other sources of guidance, the above directions by the Court should
be significant in the agency's formulation of the "well founded
fear" standard.

															Finally, in my view, the well reasoned opinions of the Courts of
Appeals, that almost uniformly have rejected the INS's misreading
of statutory language and legislative history, provide an admirable
example of the very "case-by-case adjudication" needed for the
development of the standard. Although the Court refers to a
conflict among these courts, see ante at 480 U. S. 426 ,
n. 2, with one exception, see ibid., all the Courts of
Appeals that have addressed this question have concluded that the
standards for withholding of deportation and granting asylum are
not the same. Rather, differences in opinion have arisen as to the
precise formulation of the "well founded fear" standard. * Such differences
can arise only when courts or agencies seriously grapple with the
problems of developing a standard, whose form is at first given by
the statutory language and the intimations of the legislative Page 480 U. S. 452 history, but whose final contours are shaped by the application
of the standard to the facts of specific cases. The efforts of
these courts stand in stark contrast to -- but, it is sad to say,
alone cannot make up for -- the years of seemingly purposeful
blindness by the INS, which only now begins its task of developing
the standard entrusted to its care.

															* See, e.g., Carcamo-Flores v. INS, 805 F.2d 60, 68
(CA2 1986) ("What is relevant is the fear a reasonable person would
have, keeping in mind the context of a reasonable person who is
facing the possibility of persecution, perhaps including a loss of
freedom or even, in some cases, the loss of life"); Guevara-Flores v. INS, 786 F.2d 1242, 1249 (CA5 1986), cert. pending, No. 86-388 ("An alien possesses a well
founded fear of persecution if a reasonable person in her
circumstances would fear persecution if she were to be returned to
her native country"); Cardoza-Fonseca v. INS, 767 F.2d
1448, 1452-1453 (CA9 1985) (case below) ("In contrast, the term well founded fear' requires that (1) the alien have a
subjective fear, and (2) that this fear have enough of a basis that
it can be considered well founded"); Carvajal-Munoz v.
INS, 743 F.2d 562, 574 (CA7 1984) ("The applicant must present specific facts establishing that he or she has actually
been the victim of persecution or has some other good reason to
fear that he or she will be singled out for persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion") (emphasis in
original). JUSTICE SCALIA, concurring in the judgment.

															I agree with the Court that the plain meaning of "well founded
fear" and the structure of the Immigration and Nationality Act
(Act) clearly demonstrate that the "well founded fear" standard and
the "clear probability" standard are not equivalent. I concur in
the judgment rather than join the Court's opinion, however, for two
reasons. First, despite having reached the above conclusion, the
Court undertakes an exhaustive investigation of the legislative
history of the Act. Ante at 480 U.S. 432 -443. It attempts to
justify this inquiry by relying upon the doctrine that if the
legislative history of an enactment reveals a " clearly
expressed legislative intention' contrary to [the enactment's]
language," the Court is required to "question the strong
presumption that Congress expresses its intent through the language
it chooses." Ante at 480
U.S. 432 , n. 12. Although it is true that the Court in
recent times has expressed approval of this doctrine, that is to my
mind an ill-advised deviation from the venerable principle that, if
the language of a statute is clear, that language must be given
effect -- at least in the absence of a patent absurdity. See,
e.g., 18 U. S. Wiltberger, 5 Wheat. 76, 18 U. S. 95 -96
(1820) (opinion of Marshall, C.J.); United
States v. Hartwell , 6 Wall. 385 (1868); Bate
Refrigerating Co. v. Sulzberger, 157 U. S.
1 , 157 U. S. 34 (1895) (opinion of Harlan, J.); Caminetti v. United
States, 242 U. S. 470 , 242 U. S. 485 (1917); Packard Motor Car Co. v. NLRB, 330 U.
S. 485 , 330 U. S. 492 (1947) (opinion of Jackson, J.); United States v.
Sullivan, 332 U. S. 689 , 332 U. S. 693 (1948) (opinion of Black, J.); Unexcelled Chemical Corp. v.
United States, 345 U. S. 59 , 345 U. S. 64 (1953) (opinion of Douglas, J.). Judges interpret laws rather than
reconstruct Page 480 U. S. 453 legislators' intentions. Where the language of those laws is
clear, we are not free to replace it with an unenacted legislative
intent.

															Even by its own lights, however, the Court's explication of the
legislative history of the Act is excessive. The INS makes a number
of specific arguments based upon the legislative history of the
Act. It would have sufficed, it seems to me, for the Court to
determine whether these specific arguments establish a "clearly
expressed legislative intent" that the two standards be equivalent.
I think it obvious that they do not, as apparently does the Court.
That being so, there is simply no need for the lengthy effort to
ascertain the import of the entire legislative history. And that
effort is objectionable not only because it is gratuitous. I am
concerned that it will be interpreted to suggest that similarly
exhaustive analyses are generally appropriate (or, worse yet,
required) in cases where the language of the enactment at issue is
clear. I also fear that, in this case, the Court's conduct of that
inquiry will be interpreted as a betrayal of its assurance that it
does "not attempt to set forth a detailed description of how the
well founded fear test should be applied," ante at 480 U. S. 448 . See, e.g., ante at 480 U. S.
438 -440 (appearing to endorse a particular
interpretation of "well founded fear").

															I am far more troubled, however, by the Court's discussion of
the question whether the INS's interpretation of "well founded
fear" is entitled to deference. Since the Court quite rightly
concludes that the INS's interpretation is clearly inconsistent
with the plain meaning of that phrase and the structure of the Act, see ante at 480 U. S.
431 -432, 480 U. S. 449 ,
and n. 12, there is simply no need, and thus no justification, for
a discussion of whether the interpretation is entitled to
deference. See Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc. , 467 U. S. 837 , 467 U. S.
842 -843 (1984) ("If the intent of Congress is clear,
that is the end of the matter, for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress" (footnote omitted)). Even more Page 480 U. S. 454 unjustifiable, however, is the Court's use of this superfluous
discussion as the occasion to express controversial, and I believe
erroneous, views on the meaning of this Court's decision in Chevron. Chevron stated that, where there is no
"unambiguously expressed intent of Congress," id. at 467 U. S.
843 ,

															"a court may not substitute its own construction of a statutory
provision for a reasonable interpretation made by the administrator
of an agency," id. at 467 U. S. 844 .
This Court has consistently interpreted Chevron -- which
has been an extremely important and frequently cited opinion, not
only in this Court but in the Courts of Appeals -- as holding that
courts must give effect to a reasonable agency interpretation of a
statute unless that interpretation is inconsistent with a clearly
expressed congressional intent. See, e.g., Japan Whaling Assn.
v. American Cetacean Soc., 478 U. S. 221 , 478 U. S.
233 -234 (1986); United States v. Fulton, 475 U. S. 657 , 475 U. S.
666 -667 (1986); Hillsborough County, Florida v.
Automated Medical Laboratories, Inc., 471 U.
S. 707 , 471 U. S. 714 (1985); Chemical Manufacturers Assn. v. Natural Resources
Defense Council, Inc., 470 U. S. 116 , 470 U. S. 125 ,
126 (1985). The Court's discussion is flatly inconsistent with this
well established interpretation. The Court first implies that
courts may substitute their interpretation of a statute for that of
an agency whenever, "[e]mploying traditional tools of statutory
construction," they are able to reach a conclusion as to the proper
interpretation of the statute. Ante at 480 U. S. 446 .
But this approach would make deference a doctrine of desperation,
authorizing courts to defer only if they would otherwise be unable
to construe the enactment at issue. This is not an interpretation,
but an evisceration, of Chevron. The Court also implies that courts may substitute their
interpretation of a statute for that of an agency whenever they
face "a pure question of statutory construction for the courts to
decide," ante at 480 U. S. 446 ,
rather than a "question of interpretation [in which] the agency is
required to apply [a legal standard] to a particular set of facts," ante at 480 U. S.
448 . Page 480 U. S. 455 No support is adduced for this proposition, which is
contradicted by the case the Court purports to be interpreting,
since in Chevron the Court deferred to the Environmental
Protection Agency's abstract interpretation of the phrase
"stationary source."

															In my view, the Court badly misinterprets Chevron. More
fundamentally, however, I neither share nor understand the Court's
eagerness to refashion important principles of administrative law
in a case in which such questions are completely unnecessary to the
decision, and have not been fully briefed by the parties.

															I concur in the judgment.

															JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE WHITE
join, dissenting.

															Many people come to our country because they fear persecution in
their homeland. Congress has provided two forms of relief for such
people: asylum, see Immigration and Nationality Act of
1952, § 208(a), as added by 94 Stat. 105, 8 U.S.C. §
1158(a); and withholding of deportation, see 66 Stat. 212,
§ 243(h), as amended, 94 Stat. 107, 8 U.S.C. § 1253(h).
The Board of Immigration Appeals (BIA) has concluded that there is
no practical distinction between the objective proofs an alien must
submit to be eligible for these two forms of relief. The Court
rejects this conclusion. Because I believe the BIA's interpretation
of the statute is reasonable, I dissent. I The Court's opinion seems to assume that the BIA has adopted a
rigorous mathematical approach to asylum cases, requiring aliens to
demonstrate an objectively quantifiable risk of persecution in
their homeland that is more than 50%. The Court then argues that
such a position is inconsistent with the language and history of
the Act. But this has never been the BIA's position. Thus, it is
useful to examine the BIA's approach in some detail before
evaluating the Court's Page 480 U. S. 456 rejection of the BIA's approach. After all, the BIA is the
tribunal with the primary responsibility for applying the Act, and
the greatest experience in doing so.

															The BIA's interpretation of the statutory term "well founded
fear" appears in Matter of Acosta, Interim Decision No.
2986 (Mar. 1, 1985). [ Footnote 2/1 ]
Under the BIA's analysis, an immigration judge evaluating an asylum
application should begin by determining the underlying historical
facts. The burden of persuasion rests on the applicant, who must
establish the truth of these facts by a preponderance of the
evidence. See id. at 7 (citing, inter alia, 1A C.
Gordon & H. Rosenfield, Immigration Law and Procedure § 5.10b,
p. 5-121 (rev. ed. 1986)).

															Once the immigration judge has decided what historical facts the
applicant has demonstrated, he then decides whether those facts
meet the definition of "refugee" set forth in § 101(a)(42)(A) of
the Act, 8 U.S.C. § 1101(a)(42)(A). The major point of contention
in this case concerns that section's requirement that the fear be
"well founded." [ Footnote 2/2 ]
In Page 480 U. S. 457 Acosta, the BIA adhered to the interpretation of that
language it had developed in Matter of Dunar, 14 I. &
N.Dec. 310 (1973):

															""[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. "" Acosta, supra, at 18-19 (quoting Dunar, supra, at 319) (emphasis added by Acosta Board). The Acosta Board went on to caution:

															"By use of such words [as 'realistic likelihood'], 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." Acosta, supra, at 22.

															Finally, the Acosta opinion compared this "realistic
likelihood" standard to the "clear probability" standard applied
to Page 480 U. S. 458 applications for withholding of deportation. The BIA's comments
are insightful:

															"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, i.e., 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 persecution is
more likely than not to occur. . . . Accordingly, we conclude that
the standards for asylum and withholding of deportation are not
meaningfully different and, in practical application,
converge." Id. at 25.

															In sum, contrary to the Court's apparent conclusion, the BIA
does not contend that both the "well founded fear" standard and the
"clear probability" standard require proof of a 51% chance that the
alien will suffer persecution if he is returned to his homeland.
The BIA plainly eschews analysis resting on mathematical
probabilities. Rather, the BIA has adopted a four-part test
requiring proof of facts that demonstrate a realistic likelihood of
persecution actually occurring. The heart of the Acosta decision is the BIA's empirical conclusion, based on its experience
in adjudicating asylum applications, that, if the facts establish
such a basis for an alien's Page 480 U. S. 459 fear, it rarely will make a difference whether the judge asks if
persecution is "likely" to occur or "more likely than not" to
occur. If the alien can establish such a basis, he normally will be
eligible for relief under either standard. II In Part II of its opinion, the Court examines the language of
the Act. Section 243(h) provides that the Attorney General shall
grant withholding of deportation to any country where "such alien's
life or freedom would be threatened." 8 U.S.C. § 1253(h). Section
208(a) provides that the Attorney General has discretion to grant
asylum "if the Attorney General determines that such alien is a
refugee." § 1158(a). The crucial language of § 101(a)(42)(A) of the
Act, as added by 94 Stat. 102, defines a refugee as a
person who has "a well founded fear of persecution." §
1101(a)(42)(A). In the Court's view, this language all but disposes
of the case. Ante at 480 U. S.
427 -432.

															With respect to the issue presented by this case, I find the
language far more ambiguous than the Court does. Respondent
contends that the BIA has fallen into error by equating the
objective showings required under §§ 208(a) and 243(h). The Court
notes that the language of § 208(a) differs from the language of §
243(h) in that it contemplates a partially subjective inquiry. From
this premise, the Court moves with little explanation to the
conclusion that the objective inquiries under the two sections
necessarily are different.

															In reaching this conclusion, the Court gives short shrift to the
words "well founded," that clearly require some objective basis for
the alien's fear. The critical question presented by this case is
whether the objective basis required for a fear of persecution to
be "well founded" differs in practice from the objective basis
required for there to be a "clear probability" of persecution.
Because both standards necessarily contemplate some objective
basis, I cannot agree with the Court's Page 480 U. S. 460 implicit conclusion that the statute resolves this question on
its face. In my view, the character of evidence sufficient to meet
these two standards is a question best answered by an entity
familiar with the types of evidence and issues that arise in such
cases. Congress limited eligibility for asylum to those persons
whom "the Attorney General determines" to be refugees. See § 208(a), 8 U.S.C. § 1158(a). The Attorney General has delegated
the responsibility for making these determinations to the BIA. That
Board has examined more of these cases than any court ever has or
ever can. It has made a considered judgment that the difference
between the "well founded" and the "clear probability" standards is
of no practical import: that is, the evidence presented in asylum
and withholding of deportation cases rarely, if ever, will meet one
of these standards without meeting both. This is just the type of
expert judgment -- formed by the entity to whom Congress has
committed the question -- to which we should defer.

															The Court ignores the practical realities recognized by the
expert agency, and instead concentrates on semantic niceties. It
posits a hypothetical situation in which a government sought to
execute every 10th adult male. In its view, fear of such executions
would be "well founded" even if persecution of a particular
individual would not be "more likely than not" to occur. See
ante at 480 U. S. 431 .
But this hypothetical is irrelevant; it addresses a mathematically
demanding interpretation of "well founded" that has no relation to
the BIA's actual treatment of asylum applications. Nor does it
address the validity of the BIA's judgment that evidence presenting
this distinction will be encountered infrequently, if ever.

															Common sense and human experience support the BIA's conclusion.
Governments rarely,persecute people by the numbers. It is highly
unlikely that the evidence presented at an asylum or withholding of
deportation hearing will demonstrate the mathematically specific
risk of persecution posited by the Court's hypothetical. Taking
account of the Page 480 U. S. 461 types of evidence normally available in asylum cases, the BIA
has chosen to make a qualitative evaluation of "realistic
likelihoods." As I read the Acosta opinion, an individual
who fled his country to avoid mass executions might be eligible for
both withholding of deportation and asylum, whether or not
he presented evidence of the numerical reach of the persecution. See Acosta, Interim Decision No. 2986, at 18-25. [ Footnote 2/3 ] Nowhere does the Court
consider whether the BIA's four-element interpretation of "well
founded" is unreasonable. Nor does the Court consider the BIA's
view of the types of evidentiary presentations aliens generally
make in asylum cases.

															In sum, the words Congress has chosen -- "well founded" fear --
are ambiguous. They contemplate some objective basis without
specifying a particular evidentiary threshold. There is no reason
to suppose this formulation is inconsistent with the analysis set
forth in Acosta. The BIA has concluded that a fear is not
"well founded" unless the fear has an objective basis indicating
that there is a "realistic likelihood" that persecution would
occur. Based on the text of the Act alone, I cannot conclude that
this conclusion is unreasonable. III The Court bolsters its interpretation of the language of the Act
by reference to three parts of the legislative history. A closer
examination of these materials demonstrates that each of them is
ambiguous. Nothing the Court relies on provides a positive basis
for arguing that there is a material difference between the two
standards. Page 480 U. S. 462 A First, the Court cites legislative history indicating that
Congress wished to preserve some existing standard when it placed
the words "well founded fear" in the Act. The Court concludes that
the standard Congress intended to preserve was the BIA's practice
under the old § 203(a)(7), 79 Stat. 913 (1965). That section
authorized the Attorney General to grant conditional entry to
aliens fleeing from Communist countries or the Middle East, so long
as they established a "fear of persecution." The Court argues that
Congress chose the words "well founded fear" to "preserve" as an
asylum standard the prior interpretation of the word "fear" in the
standard for conditional entry.

															In contrast, the United States argues that Congress chose the
words "well founded fear" to preserve the Attorney General's
regulations governing applications for asylum by aliens in the
United States. [ Footnote 2/4 ] These
regulations were substantially in accord with the BIA's view,
namely that there is no significant difference between the "well
founded fear" and "clear probability" standards. Compare 8
CFR §§ 108.3(a) and 236.3 (a)(2) (1980) (asylum) with 8
CFR § 242.17(c) (1980) (withholding of deportation). Common sense
suggests that the United States has the better of this argument. It
is more natural to speak of "preserving" an interpretation that had
governed the same form of relief than one that had applied to a
different form of relief.

															Moreover, the legislative history makes it clear that Congress
was referring to the regulations, rather than to § 203(a)(7). The
Senate Report states that the bill

															"improv[es] Page 480 U. S. 463 and clarif[ies] the procedures for determining asylum claims
filed by aliens who are physically present in the United States.
The substantive standard is not changed."

															S.Rep. No. 96-256, p. 9 (1979). As the Court recognizes, ante at 480 U. S. 435 ,
n. 17, this statement unquestionably refers to the informal
procedures for aliens in the United States, not the statutory
procedures under § 203(a)(7). [ Footnote
2/5 ] Similarly, the House Report states that

															"the new definition does not create a new and expanded means of
entry, but instead regularizes and formalizes the policies
and practices that have been followed in recent years."

															H.R.Rep. No. 96-608, p. 10 (1979) (emphasis added). Congress
hardly would have felt a need to "formalize" the statutory
procedures under § 203(a)(7). Indeed, the House Report cites the
Attorney General's regulations as the extant procedures to which it
was referring. H.R.Rep. at 17.

															In my view, the legislative history indicates that Congress'
choice of the words "well founded" fear as the standard of
eligibility for asylum was intended to carry forward the practice
of the Attorney General in adjudicating asylum applications. The
Attorney General had concluded that the standard for asylum was
substantially identical to the standard for withholding of
deportation. His decision to interpret the language of § 208 in the
same way is entirely reasonable. B Second, the Court relies on materials interpreting the United
Nations Protocol. Ante at 480 U. S.
437 -440. For several reasons, I find these materials to
be only marginally relevant. Page 480 U. S. 464 Both the President and the Senate thought that the Protocol was
perfectly consistent with our country's immigration laws. See
INS v. Stevic, 467 U. S. 407 , 467 U. S. 417 (1984) (citing legislative history). We should be reluctant to
assume that our country has been violating the Protocol during the
20 years since its adoption. Moreover, as the Court recognizes,
statements by the United Nations High Commissioner for Refugees
have no binding force, because " the determination of refugee
status under the . . . Protocol . . . is incumbent upon the
Contracting State.'" Ante at 480 U. S. 439 ,
n. 22 (quoting Office of the United Nations High Commissioner for
Refugees, Handbook on Procedures and Criteria for Determining
Refugee Status 1(ii) (Geneva, 1979)). In any event, the materials discussed by the Court shed little
or no light on the question presented by this case. None of them
states that the burden of proof for nonrefoulement under
Article 33.1 of the United Nations Protocol of 1967 -- a remedy
essentially identical to withholding of deportation under § 243(h)
of the Act -- is higher than the burden of proof for asylum under
Article 34. The only thing the materials tend to establish is that
a mathematical approach to the likelihood of persecution in asylum
cases is arguably inconsistent with the sense of the drafters of
the Protocol. The BIA has declined to adopt such an approach. See supra at 480 U. S.
457 -459. It is simply irrelevant that this approach
might be inconsistent with the views of commentators on the
Protocol. C Finally, the Court places great weight on the changes in the Act
made by the Conference Committee. The Court notes that the Senate
bill, S. 643, authorized the Attorney General to grant asylum if
the applicant

															"is a refugee within the meaning of section 101(a)(42)(A) and
his deportation or return would be prohibited under section 243(h)
of this Act."

															S.Rep. No. 96-256, at 26. The Court conjectures that this
language

															"indicates that the Senate recognized that Page 480 U. S. 465 there is a difference between the 'well founded fear' standard
and the clear probability standard. The enactment of the House
bill, rather than the Senate bill, in turn demonstrates that
Congress eventually refused to restrict eligibility for asylum only
to aliens meeting the stricter standard." Ante at 480 U. S. 442 (footnote omitted).

															Neither the premise of the Court nor its conclusion is
justified. The language of the Senate bill does not demonstrate
that the Senate recognized a difference between the two standards.
The Senate just as easily could have included the language to
ensure that the Attorney General held to his position that there
was no difference between the standards. Moreover, there is no
reason to believe that the changes made by the Conference Committee
reflected a considered rejection of this portion of the Senate's
definition of refugee. Rather, the Conference Committee Report
demonstrates that the Conference thought both bills adopted the
same general definition of refugee -- the U.N. definition. See H.R.Conf.Rep. No. 96-781, p. 19 (1980). The
differences the Conference saw between the bills related to
treatment of refugees still in their homeland and to refugees who
have been "firmly resettled" in another country. See
ibid. In short, I see no reason to believe that the minor differences
in wording between the Senate bill and the Act as passed reflect a
rejection of the position that there is no significant difference
between the two standards. [ Footnote
2/6 ] Thus, I place no weight on the Conference Committee's
choice of the language of the House bill.

															Even if I agreed with the Court's conclusion that there is a
significant difference between the standards for asylum and Page 480 U. S. 466 withholding of deportation, I would reverse the decision of the
Court of Appeals and uphold the decision of the BIA in this case.
[ Footnote 2/7 ] A careful reading of
the decisions of the BIA and the Immigration Judge demonstrates
that the BIA applied the lower asylum standard to this case.

															Respondent's claim for asylum rested solely on testimony that
her brother had experienced difficulties with the authorities in
Nicaragua. The Immigration Judge rejected respondent's claim
because he found "no evidence of any substance in the record other
than her brother's claim to asylum." App. to Pet. for Cert. 27a. He
further found:

															"None of the evidence indicates that the respondent would be
persecuted for political beliefs, whatever they may be, or because
she belongs to a particular social group. She has not proven that
she or any other members of her family, other than her brother, has
[ sic ] been detained, interrogated, arrested and
imprisoned, tortured and convicted and sentenced by the regime
presently in power in Nicaragua." Ibid. The absence of such evidence was particularly
probative because many of the other members of respondent's family
-- her parents, two sisters, her brother's wife, and her
brother's Page 480 U. S. 467 two children -- were still in Nicaragua, and thus presumably
subject to the persecution respondent feared.

															On appeal, the BIA affirmed. It decided this case after the
passage of the Act, but before its opinion in Acosta. At
that time, the BIA was confronted with a number of conflicting
decisions by Courts of Appeals as to the correct standard for
evaluating asylum applications. The BIA noted three different
formulations of the "well founded fear" standard: the "clear
probability" test, see Rejaie v. INS, 691 F.2d 139 (CA3
1982); the "good reason" test, see Stevic v. Sava, 678
F.2d 401 (CA2 1982), rev'd on other grounds, INS v.
Stevic, 467 U. S. 407 (1984); and the "realistic likelihood" test the BIA had adopted in Matter of Dunar, 14 I. & N.Dec. 310 (1973). App. to
Pet. for Cert. 21a. See supra at 480 U. S.
456 -459 (discussing Acosta ). Reviewing the
evidence respondent had submitted to the Immigration Judge, the BIA
concluded that respondent could not obtain relief under any of the
standards. The BIA focused especially on the fact that
respondent

															"has openly admitted that she herself has taken no actions
against the Nicaraguan government. She admits that she has never
been politically active. She testified that she never assisted her
brother in any of his political activities. Moreover, she admits
that she has never been singled out for persecution by the present
government."

															App. to Pet. for Cert. 22a. [ Footnote 2/8 ]

															Respondent filed a petition for review with the Court of Appeals
for the Ninth Circuit. Without examining either the factual or
legal basis for the BIA's decision, the court granted the petition,
reversed the BIA's decision, and remanded the application to the
BIA for further consideration. Page 480 U. S. 468 767 F.2d 1448 (1985). The sole basis articulated for this action
was a conclusion that the BIA had applied the wrong legal standard.
The Court of Appeals repeated its position that the standards for
asylum and withholding of deportation are different. According to
that court, an asylum applicant must

															"present 'specific facts' through objective evidence to prove
either past persecution or ' good reason ' to fear future
persecution." Id. at 1453 (quoting Carvajal-Munoz v. INS, 743 F.2d 562, 574 (CA7 1984)) (emphasis added). It then noted that
the BIA had reached a different conclusion in Acosta, and
stated:

															"[T]he Board appears to feel that it is exempt from the holding
of Marbury v. Madison . . . and not constrained by circuit
court opinions. . . . [T]he Board applied its own construction of
the applicant's burden of proof in an asylum case to the claims of
both Cardoza-Fonseca and [her copetitioner]. It held that they were
required to demonstrate a clear probability of persecution in order
to be declared eligible for asylum."

															767 F.2d at 1454 (citation omitted).

															This statement is simply inconsistent with the BIA's opinion. As
I have explained, the BIA acknowledged the conflicting decisions of
the various Courts of Appeals, and explicitly tested the
application under three different standards. The least burdensome
of these -- the "good reason" standard -- is identical to the
court's statement quoted supra, this page. The Court of
Appeals completely ignored the words in which the BIA framed its
decision. It failed to examine the factual findings on which the
decision rested. At least in this case, it appears that the Court
of Appeals, and not the BIA, has misunderstood the proper relation
between courts and agencies. That court properly could have
considered whether substantial evidence supported the BIA's
conclusion that respondent failed to demonstrate a "good reason" to
fear persecution, but it should not have assumed that Page 480 U. S. 469 the BIA tested respondent's application by a higher standard
than the BIA's own opinion reflects. V In my view, the Court misconstrues the Act and misreads its
legislative history. Moreover, neither this Court nor the Court of
Appeals has identified an error in the decision of the BIA in this
case. Neither court has examined the factual findings on which the
decision rested, or the legal standard the BIA applied to these
facts. I would reverse the decision of the Court of Appeals.

															[ Footnote 2/1 ]

															The Court suggests that the BIA's interpretation of the "well
founded fear" standard has been "erratic." Ante at 480 U. S.
446 -447, n. 30. An examination of the relevant BIA
decisions leads to a contrary conclusion. The BIA first addressed
the standard in Matter of Dunar, 14 I. & N.Dec. 310
(1973). In that case, the BIA considered the meaning of the term
"well founded fear" in the United Nations Protocol Relating to the
Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6225, T.I.A.S.
No. 6577 (1968). When Congress inserted this language in the asylum
provisions of the Act in 1980, the BIA interpreted the language to
mean exactly the same thing as the language in the Protocol. Matter of Acosta, Interim Decision No. 2986 (Mar. 1,
1985). Thus, the BIA's position has never changed. The Court bases
its characterization of the BIA's record on decisions applying the
more lenient "fear" standard. If anything about these statutes is
clear, it is that a "well founded fear" is something more than a
"fear." It is unfair to characterize the BIA's decisions as
"erratic" when the agency was, in fact, interpreting two different
standards.

															[ Footnote 2/2 ]

															The BIA has interpreted the statutory definition to require
proof of four elements: (i) the alien must have a "fear" of
"persecution;" (ii) the fear must be "well founded;" (iii) the
persecution must be "on account of race, religion, nationality,
membership in a particular social group, or political opinion;" and
(iv) the alien must be unable or unwilling to return to his
homeland because of persecution or his well founded fear of
persecution. See id. at 11.

															[ Footnote 2/3 ]

															Of course, the applicant would have to meet all four elements of
the well founded fear standards. See supra at 480 U. S. 457 (quoting Acosta, Interim Decision No. 2986, at 22).
Although these requirements restrict grants of relief in some
cases, none of them rests on the mathematical considerations that
the Court suggests govern current BIA practice. Moreover, the
Court's exegesis of the "plain meaning" of the phrase "well
founded" in no way suggests that the BIA's four-part test is a
misinterpretation of the statute.

															[ Footnote 2/4 ]

															Those regulations constituted this country's informal attempt to
comply with the exhortation of the Convention Relating to the
Status of Refugees to "facilitate the assimilation and
naturalization," Art. 34, Jan. 31, 1967, [1968] 19 U.S.T. 6269,
6276, T.I.A.S. No. 6577, of persons who have a "well founded fear
of being persecuted," Art. 1(A)(2), id. at 6261. All
parties agree that the Convention's language was the ultimate
source of the language Congress placed in the Act.

															[ Footnote 2/5 ]

															The Court concludes that the Senate Report has no probative
force because the Conference Committee adopted the House language,
rather than the Senate language. But the changes in language made
by the Conference Committee do not help the Court's position. As I
explain infra, this page, the House Report indicates that
the House bill also was intended to adopt the standards set forth
in the regulations. Moreover, there is no suggestion in the
Conference Report that this change in language affected the
substantive standard. See infra at 480 U. S.
464 -465.

															[ Footnote 2/6 ]

															This interpretation is supported by evidence that the House
bill, like the Senate bill, was intended to preserve the Attorney
General's regulations treating the two standards as substantially
identical. See supra at 480 U. S.
463 .

															[ Footnote 2/7 ]

															The Court contends that this question is not before us. Ante at 480 U. S. 448 ,
n. 31. I find this suggestion quite strange. The Immigration and
Naturalization Service asked the Court to determine

															"[w]hether an alien's burden of proving eligibility for asylum .
. . is equivalent to his burden of proving eligibility for
withholding of deportation."

															Pet. for Cert. (1). The question whether the two standards are
equivalent "fairly includes," under this Court's Rule 21.1(a), the
problem of defining the appropriate standard for asylum. And that
question can only be answered on the facts of this case. The Court
does not sit to answer hypothetical questions of statutory
construction. Normally we resolve such questions only by examining
the facts of the case before us. In this case, the Court affirms
the Court of Appeals' decision that the BIA required an intolerably
high burden of proof in this case. Yet, like the Court of Appeals,
the Court examines neither the facts of the case before us nor the
legal standard the BIA applied. In my view, Rule 21 does not
contemplate this result.

															[ Footnote 2/8 ]

															In terms of the four-element Acosta test for well
founded fear, respondent's claim would have failed both the first
and the second elements. Respondent failed to show either that she
"possesses a belief or characteristic the persecutor seeks to
overcome" or that "the persecutor is already aware, or could easily
become aware, that [she] possesses this belief or characteristic." Acosta, Interim Decision No. 2986, at 22.