The "would be threatened" language of § 243(h) of the Immigration and Nationality Act, 8 U.S.C.S. § 1252(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. In contrast, the reference to "fear" in the standard contained in § 208(a) of the Refugee Act of 1980, 8 U.S.C.S. § 1158(a), obviously makes the eligibility determination turn to some extent on the subjective mental state of the alien. 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. The standards are not identical.
A Nicaraguan citizen entered the United States in 1979 as a visitor and remained longer than permitted. After she failed to accept the Immigration and Naturalization Service's (INS) offer of voluntary departure, the INS commenced deportation proceedings. The Nicaraguan requested two forms of relief: (1) withholding of deportation pursuant to 243(h) of the Immigration and Nationality Act, and (2) asylum as a refugee pursuant to 208(a) of the Act. She testified that her brother, with whom she had fled Nicaragua, had been tortured and imprisoned there because of his political beliefs, and that even though she had not been politically active herself, her brother's status and her own opposition to the Sandinista Government would cause her to be tortured if she were forced to return. An immigration judge found that she was not entitled to either form of relief because she had not established a "clear probability of persecution." On appeal, this decision was upheld by the Board of Immigration Appeals (BIA), which agreed that she had failed to establish that she would suffer persecution within the meaning of either 208(a) or 243(h). The United States Court of Appeals for the Ninth Circuit, reversing the decision and remanding the asylum claim to the BIA, held that the "well-founded fear" standard that governs asylum proceedings under 208(a) is different and more generous than the "clear probability" standard that governs withholding of deportation proceedings under 243(h).
Was the Nicaraguan eligible for asylum as a refugee, despite the fact that she was not able to establish a “clear probability of persecution” in her home country?
The Court held that in order for an alien to show a "well-founded fear of persecution" so as to be eligible for consideration for asylum as a refugee under 208(a), the alien need not prove that it is more likely than not that he or she will be persecuted upon return to his or her home country, thus, the respondent alien does not need to establish a “clear probability of persecution” in her home country in order to be entitled to the relief sought. Moreover, the Court posited that the "well-founded fear" standard of proof is not to be construed as equivalent to the "more likely than not" standard that is applicable to an alien's claim for withholding of deportation under 243(h) since 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 a right to relief under 243(h). According to the Court, this difference in language mirrors the provisions of the United Nations Protocol Relating to the Status of Refugees, to which the United States has acceded. Furthermore, legislative history shows 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.