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Immigration & Naturalization Serv. v. Stevic - 467 U.S. 407, 104 S. Ct. 2489 (1984)


An application must be supported by evidence establishing that it is more likely than not that the alien would be subject to persecution on one of the specified grounds. The clear probability of persecution standard remains applicable to 8 U.S.C.S. § 1253(h)(1) withholding of deportation claims.


After being ordered to surrender for deportation, an alien moved to reopen his deportation proceedings on the basis of 243(h) of the Immigration and Nationality Act of 1952 (8 USCS 1253(h)), which then authorized the Attorney General to withhold deportation of an alien upon a finding that the alien would be subject to persecution in the country to which he would be deported. The immigration judge denied the motion and the Board of Immigration Appeals upheld the action, holding that the alien had not met his burden of showing that there was a clear probability of persecution. Subsequently, after receiving another notice to surrender for deportation, the alien filed a second motion to reopen, again seeking relief under 243(h), which had been amended to provide that the Attorney General may not deport an alien if he determines that the alien's life or freedom would be threatened in the country to which the alien would be deported. This motion was also denied under the same "clear probability of persecution" standard, but the United States Court of Appeals for the Second Circuit reversed, holding that the alien could avoid deportation by showing a well-founded fear of persecution (678 F2d 401).


Did the lower court improperly administer the wrong standard to respondent's hearing to withhold deportation?




The Supreme Court of the United States reversed, holding that under § 1253(h)(1), an alien had to establish a clear probability of persecution to avoid deportation. The court determined that the appellate court granted respondent relief based on its understanding of a standard which did not entitle an alien to withholding of deportation. The court remanded for a reexamination of whether respondent was entitled to a plenary hearing under the correct standard.

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