INS v. Cardoza-Fonseca

480 U. S. 421

March 9, 1987

After the Sandinista takeover of Nicaragua, Cardoza-Fonseca fled to America, fearing political persecution. When the INS tried to deport her, she made two arguments. First, federal law prohibited deportation when there existed “clear probability of persecution.” Second, federal law also allowed the Attorney General to grant asylum based on “well founded fear of persecution.” The “clear probability” standard was said to be based on a preponderance of the evidence (i.e. more likely than not). The Board of Immigration Appeals (BIA) said the standard of evidence for “well founded fear” was identical, and denied Cardoza-Fonseca’s claim that she had met that standard.

In a 6-3 ruling, the Court held that the two provisions of federal law had different standards, and that “well founded fear” was far less demanding than “clear probability.” Stevens wrote for the majority. Based on a purely textual examination, the two provisions appeared different, with the ‘fear’ section seeming to demand a subjective analysis, while the ‘probability’ section seemed more objective. Stevens proceeded to do a thorough review of legislative history, and stressed that the laws were passed to comply with a UN treaty. Finding that this supported the conclusion of separate standards, Stevens rejected the argument that the BIA’s interpretation should be entitled to Chevron deference. Here, the text and the intent of Congress was so clear that the BIA’s interpretation could be ignored. Blackmun wrote a concurrence to emphasize that the Court had not decided exactly what the “well founded fear” standard would be going forward.

Scalia concurred only in judgment. He thought the text alone was sufficient to decide the case, and agreed with the interpretation of the majority opinion. Then, in a preview of things to come, he complained about reliance on legislative history. Finally, he thought the majority had weakened Chevron deference by seeming to suggest that it could be overcome by resort to such legislative history. Powell dissented, and was joined by Rehnquist and White. He argued that the BIA’s methods of interpreting the two laws were far more nebulous  and far less rigid than the majority claimed – it was not a pure preponderance of the evidence standard. He also disputed all of the legislative history arguments put forth by Stevens. Finally, Powell pointed out that in the original Cardoza-Fonseca case, the BIA actually had analyzed her application for asylum under less stringent standards – meaning that even under the Supreme Court’s ruling, the BIA had arguably done nothing wrong.

Yet another case with odd political lines. You would think the conservatives would favor a refugee who had fled from the Sandinistas. In any event, in light of Powell’s discussion of the original BIA ruling, this decision does appear to be basically advisory. But then, advisory opinions really don’t bother me at all. And when it comes to interpretation, I’ll gladly take pure textual analysis over deference to an agency. I’m with the majority on this one.


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