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Published online by Cambridge University Press: 27 February 2017
The plaintiff, a Chinese citizen who entered the United States under a nonimmigrant student visa, appealed from a decision by the Immigration and Naturalization Service (INS) to deny his request for asylum. Plaintiff claimed that he had a “well-founded fear of persecution,” the prerequisite to attaining “refugee” status under the Immigration and Nationality Act of 1952 (the Act) and implementing regulations promulgated by the INS. He also claimed that the immigration judge had erred by refusing to obtain a second advisory opinion from the Department of State’s Bureau of Human Rights and Humanitarian Affairs (BHRHA). The U.S. Court of Appeals for the Sixth Circuit (per Nelson, J.) held that (1) the immigration judge had abused his discretion by not requesting a second advisory opinion from the BHRHA; and (2) the judge had incorrectly applied an objective standard in evaluating plaintiffs asylum request, when credible evidence demonstrated that plaintiff had a subjectively valid fear of persecution if deported to China. The court remanded the case to the immigration judge with instructions to obtain a second opinion from the BHRHA and to consider plaintiffs asylum request on the assumption that he qualified as a “refugee.”
1 8 U.S.C. §1101 et seq. (1982) and (Supp. V 1987); and 8 C.F.R. §208 (1988). The definition of “refugee” was added to the statute by §101(a)(42) of the Refugee Act of 1980, 94 Stat. 102 (8 U.S.C. §1101(a)(42) (1982)). Section 208 of the Act (8 U.S.C. §1158(a)) requires the Attorney General to establish a procedure for considering applications for asylum by resident aliens.
2 8 C.F.R. §208.7 requires that an INS district director request an advisory opinion in all applications for asylum. If an asylum decision is based wholly or partially on a BHRHA opinion, that opinion must be made part of the record unless it is deemed classified. Id. §208.8(d). However, if a request for asylum is made in the course of exclusion or deportation proceedings (as it was in this case), the immigration judge shall not obtain an advisory opinion in addition to one previously obtained pursuant to §208.7 “unless circumstances have changed so substantially since the first opinion was provided that a second referral [to BHRHA] would materially aid in adjudicating the asylum request.” Id. §208.10(b).
3 Even when an applicant is deemed to be a refugee, as defined by 8 U.S.C. §1101 (a)(42)(A), the Attorney General still retains the discretion to deny him or her asylum. Id. § 1158(a) (1982).
4 8 U.S.C. §1101(A)(42) defines a refugee as
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.
5 867 F.2d 285, 287 (quoting BHRHA).
6 Id.
7 Id. at 288 (quoting immigration judge).
8 Id.
9 See note 2 supra, which summarizes the substance of the provisions in question.
10 867 F.2d at 288 (quoting BIA).
11 Id. The different standards cited by the BIA were a “clear probability,” a “realistic likelihood,” a “reasonable possibility,” and a “good” or “valid reason to fear” persecution. Id.
12 McLeod v. I.N.S., 802 F.2d 89, 94 (3d Cir. 1986); Youssefinia v. I.N.S., 784 F.2d 1254, 1259 (5th Cir. 1986).
13 867 F.2d at 289.
14 Id.
15 480 U.S. 421 (1987).
16 8 U.S.C. §1253(h) (1982).
17 480 U.S. at 431.
18 867 F.2d at 290.
19 Id. at 291.
20 Vilorio-Lopez v. I.N.S., 852 F.2d 1137, 1141 (9th Cir. 1988).
21 480 U.S. at 440 (quoting INS v. Stevic, 467 U.S. 407, 424–25 (1984)).
22 Guevara Flores v. I.N.S., 786 F.2d 1242, 1249 (5th Cir. 1986).
23 M.A. A26851062 v. I.N.S., 858 F.2d 210, 214 (4th Cir. 1988), summarized in 83 AJIL 384 (1989).
24 Blanco-Comarribas v. I.N.S., 830 F.2d 1039, 1042 (9th Cir. 1987).
25 867 F.2d at 291.