The volume of displaced individuals at the United States’ southern border is at a historical high, with rising political upheaval, economic strife, and violent persecution forcing greater numbers of migrants to seek refuge each year.
This article explores the disparity between the evidentiary standards imposed on asylum seekers under the Refugee Act of 1980 and the international framework in the 1967 United Nations Protocol Relating to the Status of Refugees it was intended to emulate. It examines how statutory and judicial interpretations of the act have affected the ability of asylum seekers to prove the existence of their persecution feasibly and argues that the Refugee Act inadvertently raised the burden of proof for refuge to be granted, failing to meet its humanitarian aspirations. By tracing the legislative and judicial evolution of these standards, this article advocates for a return to a balanced framework that incorporates the original intent of the document while addressing contemporary challenges in refugee law.
Introduction
The asylum process represents a pivotal intersection of humanitarian concerns and legal rigor. The adoption of the Immigration and Nationality Act of 1952 (I.N.A.)[1] set the foundation for the immigration system in the United States but failed to establish a framework to manage periodic swells of refugees following the Second World War. After decades of ad hocresponses[2] to these surges, Congress sought to align the domestic practice of U.S. asylum law more closely with the United Nations’ 1967 Protocol Relating to the Status of Refugees[3], explicitly establishing protections for individuals fleeing persecution through the 1980 Refugee Act[4]. In addition, this act amended the I.N.A. to revise the standard of proof required for those fearing persecution in their home countries to qualify for prohibition of deportation. While the Refugee Act bridged a critical gap in the framework allowing for standardized asylum procedure, its passage marked a shift in the adjudicatory framework, unwittingly altering evidentiary thresholds for asylum and prohibition of deportation claims.
This article argues that failure to clearly delineate the standard for proving persecution that is set upon asylum applicants and that of prohibition of deportation applicants has created an artificially harsh standard for evaluating asylum claims. Unwittingly, the previously distinct standards of “clear probability” and “well-founded fear” have merged. While the Board of Immigration Appeals (B.I.A.) has maintained that the standard remains unchanged, the operational effect has been inconsistency across federal appellate courts and unduly harsh standards applied to asylum seekers. The resulting disparity undermines the uniformity and fairness of U.S. asylum law.
Legislative Framework
In the late 1970s, Saigon, Vietnam, fell to the People’s Army of Vietnam, the last in a cascade of tumultuous events to unsettle the surrounding regions. These disturbances prompted the surge of 130,000 Southeast Asian refugees to American shores[5], resulting in the Indochina Refugee and Migration Assistance Act[6] and a Congressional prioritization of creating systemic solvency for their newfound refugee crisis.
The Refugee Act of 1980 amended the I.N.A. to create a domestic structure governing asylum—a word that did not appear once in the original 1952 document—establishing a groundbreaking legal basis for seeking asylum through section 208(a)[7]. Via 208(a), asylum can be granted “in the discretion of the Attorney General”[8] if an individual falls under the internationally recognized definition of a refugee. This definition, in accordance with section 101(a)(42)(A)[9], is:
Any person who is… who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of [a] 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.
The intention behind the Act was to codify into domestic law the humanitarian approach to asylum used in the 1967 Protocol Relating to the Status of Refugees put forth by the United Nations (U.N.). The “well-founded fear of persecution”[10] standard in the Protocol was expanded in the 1979 U.N. Handbook of Procedures and Criteria for Determining Refugee Status[11]. This document explicitly states that “since fear is subjective, the definition involves a subjective element… Determination of refugee status will therefore primarily require an evaluation of the applicant’s statements rather than a judgment on the situation prevailing in his country of origin.”[12]
This clarification is significant because qualifying for asylum via refugee status represents one of two defenses against deportation[13] that the amended I.N.A. codifies for those fleeing persecution to remain in the United States. Firstly, they may apply for asylum under section 208(a)[14], or, secondly, they may apply for prohibition of deportation pursuant to Section 243(h)[15]. While the former method uses the “well-founded fear of persecution” standard, the latter does not.
Prior to the Refugee Act, the only available recourse for those currently on American soil to avoid deportation was the latter method, applying for section 243(h) prohibition of deportation. The original version of the Act read that “the Attorney General is authorized to withhold deportation of any alien…to any country in which in his opinion, the alien would be subject to persecution”[16]. Notably, judicial discretion was permitted in determining whether or not an individual was subject to persecution, placing the factual determination of persecution on the Attorney General.
In the 1980 Act, this language was amended to read “a country if the Attorney General determines that such alien’s life and freedom would be threatened,”[17] shifting the burden of proof to the individual applying for prohibition of deportation inconsistently across interpretations.[18] One review following the changes noted that “at the administrative level, the burden of proving likely persecution rests entirely on the alien…[as] the revised statute does not clarify the alien’s burden of persuasion”[19]. The evidentiary threshold of proving “likely persecution” for 243(h) prohibition of deportation claims was interpreted as requiring the demonstration of objective “clear probability”[20] of persecution upon return to one’s country of origin.
Although this “clear probability” standard applied only to section 243(h) prohibition of deportation claims, failure to define the administrative difference between the evidentiary burden of “clear probability” and section 208(a)’s “well-founded fear” resulted in courts conflating the two. The Third Circuit[21] held that the two standards were effectively the same, while the Sixth, Seventh, and Ninth[22] applied the “well-founded fear” standard to both asylum and prohibition of deportation claims, citing the humanitarian rhetoric of the Act[23].
In 1984, the Supreme Court addressed this inconsistency in INS v. Stevic[24], concluding that the two evidentiary thresholds were not interchangeable.
Hence, there is no textual basis in the statute for concluding that the well-founded-fear-of-persecution [467 U.S. 407, 424] standard is relevant to a withholding of deportation claim under 243(h)…For purposes of our analysis, we may assume, as the Court of Appeals concluded, that the well-founded-fear standard is more generous than the clear-probability-of-persecution standard because we can identify no basis in the legislative history for applying that standard in 243(h) proceedings or any legislative intent to alter the pre-existing practice.[25]
This clarified the Act’s misinterpreted intention to establish a limited class of individuals within the pool of those eligible for asylum who are additionally eligible for prohibition of deportation.
The broader implications of the conflation of these groups is particularly evident in two case studies in which the incorrect, harsher standard was applied in a manner detrimental to the applicant. In Cardoza-Fonseca v. INS[26] petitioner Luz Cardoza-Fonesca entered the United States from Nicaragua as a visitor and overstayed her authorized time period, resulting in the initiation of deportation proceedings. To remain in the U.S., she applied for both section 208(a) asylum and section 243(h) prohibition of deportation, symmetrically resulting in B.I.A. denial. The rationale offered was that the burden of proof that she”would suffer persecution” was not met via objective evidence, demonstrative of the application of only section 243(h). In Arguello-Salguera v. INS[27] Nicaraguan petitioner Francisca Arguello-Salguero similarly applied for both asylum and prohibition of deportation from within the United States. While Arguello-Salguero was initially determined to have met the burden of proof of a well-founded fear of persecution and her request for asylum was granted by the immigration judge, the B.I.A. reversed the decision on the grounds that she had failed to show that she “would be persecuted”.
Conclusion
The Refugee Act of 1980 sought to harmonize U.S. asylum law with international norms, but its implementation has unintentionally narrowed the likelihood of receiving asylum. The distinction between “clear probability” and “well-founded fear” is more than semantic; it defines the accessibility of legal protections. By subsuming the protections of section 208(a) into the higher threshold of section 243(h), the Refugee Act effectively increased the evidentiary burden for many asylum seekers. This shift has led to a shift in judicial interpretation as courts are mandated to apply a uniform, higher threshold of proof, imposing unreasonable expectations of applicants, as well as marginalizing vulnerable populations. Individuals who would have qualified under the “well-founded fear” standard are often unable to meet the “clear probability” threshold due to impeded judicial discretion.
The counterargument here is that the “clear probability” standard provides clarity and reduces subjective decision-making as there is limited judicial discretion. However, the lack of guidance on what constitutes sufficient prima facie evidence of persecution undermines this clarity. Incorporating bandwidth for judicial discretion is useful insofar as it allows for individualized determination of when discretionary relief should be granted and deportation should be withheld.
Furthermore, there is fear that lowering the threshold could lead to an influx of applications and overburden the system. This concern, while reasonable, should be mitigated through streamlined adjudication processes and robust evidentiary standards. Ultimately, if the asylum system is overburdened, the avenues of systemic change should be assessed as opposed to using threshold of prima facie on the case-level to artificially limit the volume of those granted asylum. It is unjust to limit judicial discretion solely to expedite adjudication of asylum claims as it victimizes asylum seekers individualized discretionary relief.
Explicitly incorporating the “well-founded fear” metric would align with the original intent of the Act while reducing the adjudicatory ambiguity that currently exists in determining how to apply the higher evidentiary standard. A unified standard incorporating fear of persecution allows for consistency in adjudication, expands judicial discretion, and ensures equitable treatment. Furthermore, incorporating the “well-founded fear” metric reflects the humanitarian intent of refugee protections, aligning with international standards. By revisiting the evidentiary standards and restoring the distinction between “clear probability” and “well-founded fear,” Congress can reaffirm the humanitarian principles underlying U.S. refugee law. In doing so, the United States can ensure that its asylum system remains a beacon of fairness and justice in an increasingly complex global landscape.
NOTES
[1] Immigration and Nationality Act of 1952, § 243(h), 8 U.S.C. § 1253(h) (amended 1980)
[2] Timeline of U.S. Postwar Immigration Policy, Council on Foreign Relations (2017)
[3] UNITED NATIONS PROTOCOL RELATING TO THE STATUS OF REFUGEES, January 31, 1967, 19 U.S.T. 6224, 606 U.N.T.S. 268
[4] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102
[5] Id. COUNCIL ON FOREIGN RELATIONS
[6] H.R.6755 – 94th Congress (1975-1976): The Indochina Migration and Refugee Assistance Act of 1975, H.R.6755, 94th Cong. (1975)
[7] Id. Refugee Act of 1980
[8] Id.
[9] 8 U.S.C. § 1158 (Supp. 1985)
[10] Id. UNITED NATIONS PROTOCOL RELATING TO THE STATUS OF REFUGEES
[11] HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS (1979)
[12] Id.
[13] Joni Andrioff, Proving the Existence of Persecution in Asylum and Withholding Claims , 62 Chi.-Kent L, 107 Rev (1985)
[14] 8 U.S.C. § 1158 (Supp. 1985).
[15] 8 U.S.C. § 1253(h) (Supp. 1985)
[16] Id. Immigration and Nationality Act of 1952
[17] Id. Refugee Act of 1980
[18] Paul Ode, Article 6 Section 243(h) of the Immigration and Nationality Prognosis and a Proposal, 13 Cornell International Law Journal (1980)
[19] Id.
[20] 8 C.F.R. § 242.17(c) (1985).
[21] Rejaie v. INS, 691 F.2d 139, 146 (3d Cir. 1982) ctd. Proving the Existence of Persecution in Asylum and Withholding Claims
[22] Reyes v. INS, 693 F.2d 597, 599-600 (6th Cir. 1982), McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir. 1981) ctd. Proving the Existence of Persecution in Asylum and Withholding Claims
[23] Id. Proving the Existence of Persecution in Asylum and Withholding Claims
[24] INS v. Stevic, 104 S. Ct. 2489 (1984).
[25] Id.
[26] Cardoza-Fonseca v. INS, 767 F.2d 1448 (1985)
[27] Arguello-Salguera v. INS, 84-7593 (1985)