1. INS v. Caidoza-Fonseca, 107 S.CL 1207 (March 9,1987). Reprinted in 261.L.M. 396 (1987). The page numbers refer to this reprint.

2. According to the United States “Immigration and Naturalization Service” (INS), in the fiscal year 1986104,383 (173%) of the immigrants admitted were refugees, while the proposed admission was only 70,000. Congressional Quarterly, Weekly Report, Feb. 13,1988, at 300.

3. See, on the nature of asylum, Khan, S., Legal Problems Relating to Refugees and Displaced Persons, 149 RdC 1, 287–352 at 317 (1976),Google Scholarand Goodwin-Gill, G., The Refugee in International Law 101–123 (1985). Proposals for an Asylum Convention do not impose on contracting states an absolute duty to grant asylum, but merely an obligation “to use their best endeavours to grant asylum”. See for the text of several draft conventions:Google ScholarGrahl-Madsen, A. Territorial Asylum 174–219 (1980).Google Scholar

4. Constitution of the Federal Republic of Germany (Gründgesetz), Art 16(2), 2nd sentence.

5. The UN Protocol Relating to the Status of Refugees (Jan. 31, 1967) [hereinctfter cited as 1967 Protocol] entered into force for the United States on November 1,1968. Reprinted in 6I.L.M. 78 (1967).

6. 8 U.S.C. Sec. 1153 (a)(7), INA Sec. 203 (aX7) (repealed).

7. Section 101(a)(42)(A) of the 1980 Refugee Act, 94 Slat. 102, reprinted in 19 LL.M. 713 (1980); emphasis added. The Refugee Act amended die Immigration and Nationality Act of 1965. It assumed a normal flow of 50,000 refugees per year, i.e., half the actual number.

8. U.S. Congress, House, Judiciary Committee, HR. Report No.608, 96th Congress, 1st session, November 1979, at 10.

9. 106 INA, as amended, 8 U.S.C.A. 1103,1158(a).See also U.S. v. Doherty,786 F.2d 491.

10. Sec. 243(h) INA, 8 U.S.C. Sec. 1253(h)(l), as amended, provides: “The Attorney General shall not deport or return any alien (…) to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.” (emphasis added).

11. The present substantive standard adopted by the Board of Immigration Appeals requires from the alien a showing of “clear probability that he will be persecuted”. Matter ofMcMullen, Interim Decision 2831 (Board of Immigration Appeals, Oct. 1980).

12. Section 208(a) of the DMA, 8 U.S.C. Sec. 1158(a), as amended by the Refugee Act, supra note 7. It determines that an “alien may be granted asylum in the discretion of the Attorney General”.

13. Sec. 101(a)(42)INA, 8 U.S.C. Sec. 1101(a)(42).

14. Asylum is equally applicable to excludable and deportable aliens. If they have not been granted withholding of deportation, they can still apply for asylum. INA 208(a), as amended, 8 U.S.C. 1158(a).

15. See Matter of Acosta, Interim Decision 2986 (Board of Immigration Appeals); 8 C.F.R. 208.5, 242.17(c)(1985).

16. Matter of Sanchez and Escobar, Interim Decision 2996.

17. See Matter of Carcamo-Flores, April 16,1986: “(…)theeligibility standardsforwithholdingof deportation and asylum are not meaningfully different and (…) converge”. See also Matter ofAcosta, supra note 15, where the Board held that there is no “significant difference between the showings required for asylum and withholding of deportation”.

18. Supra note 15.

19. But, as set out in Matter cfAcosta, supra note IS, the construction of the provisions in the 1967 Protocol is left to each state. The various interpretations of the Protocol, including the Handbook published by the UNHCR, may be “useful tools in construing our obligations under the Protocol, but they are neither binding upon the United States nor controlling as to construction of the Refugee Act of 1980”.

20. Matter ofAcosta, supra note 15.

21. Matter ofAcosta, supra note 15. See also Matter of Carcamo-Flores, supra note 17, at 3. But see Carcamo-Flores v. INS, 805 F.2d 60 (2d Cir. 1986), where the Court held, inter alia, that an alien possess a “well-founded fear of persecution” if a “reasonable” person in her circumstances would fear persecution if she were to be returned to her native country, and that a “reasonable” person could have a “well-founded fear of persecution” even where the objective reality is that the likelihood of persecution is under 50 per cent See also Guevara-Flores v. INS, 786 F.2d, at 1249, from which this opinion is derived.

22. INS v. Cardoza-Fonseca, supra note 1.

23. Id., at 398.

24. Cardoza-Fonseca v. INS, 767 F.2d 1448.1482. See also Carcamo-Flores v. INS, supra note 21,80S F.2d 60, where the court held, adhering to its position in Stevic v. Sava, 678 F.2d 401 (2d Cir. 1982), that the well-founded fear standard for asylum is more generous than the clear probability of persecution standard for 243(h) withholding.

25. Cardoza-Fonseca v. INS, supra note 24,767 F.2d 1448, at 1453. Footnote omitted.

26. See Office of the United Nations High Commissioner for Refugees, Handbook of Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (hereinafter cited as UNHCR Handbook) 196 (1979)

27. INS v. Stevic, 467 U.S. 407 (1984)

28. See also Plateros-Cortez v. INS, 804 F.2d 1127 (9th Cir. 1986), where the Court held, inter alia, that mere assertions of possible fear are insufficient to establish a “clear probability” of persecution for purposes of INA 243(h). There must be some factual support, some concrete evidence to support the alien's claim that persecution likely would be directed toward him as an individual

29. “The Act's establishment of a broad class of refugees who are eligible for a discretionary grant of asylum, and a narrower class of aliens who are given a statutory right not to be deported to the country where they are in danger, mirrors the provisions of the United Nations Protocol Relating to the Status of Refugees, which provided the motivation for the enactment of the Refugee Act of 1980”, INS v. Cardoza-Fonseca, supra note 1, at 1209 (emphasis added)

30. Id., at 400 n. 5 (emphasis in original)

31. Id., at 407 (emphasis, in original)

32. Id., at 407–408

33. See Matter of Sanchez and Escobar, supra note 16. In this administrative decision, the argument is based on the pre-1980 construction of the word “persecution”, as well as on the definition of “refugee” in Section 101(a)(42)(A) of the Act, which does not include displaced persons who flee widespread conditions of indiscriminate violence

34. See, e.g., Cardoza-Fonseca v. INS, supra note 24 at 1452; Matter ofAcosta, supra note 15. See also, the UNHCR Handbook, supra note 26, at 19: “Persons compelled to leave their country of origin as a result of international or national armed conflicts are not normally considered refugees under the 1951 Convention or 1967 Protocol”

35. INSv.Cardoza-Fonseca, supra notel,at 411

36. As the Court in INS v. Cardoza-Fonseca puts it “How ‘meaningful’ the differences between the two standards may be is a question which cannot be fully decided in the abstract, but the fact that Congress has prescribed two different standards in the same Act certainly implies that it intended (hem to have significantly different meanings”, (at 410 n. 31)

37. Id., at 411

38. Section 208.8(e)(l)(ii). “Finn resettlement” is relevant only for applications for asylum, and not for withholding of deportation. Matter of Lam, Interim Decision 2857 (1981)

39. See 207(c)(l) of the Refugee Act, supra note 7,1157 (c)(l), and the regulations in 8 C.F.R. Section 207. l(b)

40. In 1965 the Immigration and Nationality Act was revised and, inter alia, section 101(a), para.(42) [definition of “refugee”] was amended. The former law had been interpreted by the Supreme Court as not applicable to a refugee who had already found a haven elsewhere. The new statute codifies this concept by reserving admission to refugees who are not “furnly resettled” in a third country

41. INA Sec.207(c)(l). As the UNHCR Handbook, supra note 26, sets out in Art. 144, “[t] his provision relates to persons who might otherwise qualify for refugee status and who have been received in a country where they have been granted most of the rights normally enjoyed by nationals but no formal citizenship (…)”

42. 8 C.F.R. Section 208.14

43. 402 U.S. 49 (1971)

44. Id.,at56

45. Id.,at57

46. Id.. These criteria have been applied, inter alia, in Matter ofPortales, Interim Decision 2905. As the UNHCR Handbook, supra note 26, sets out in Art 145 “[t]his is no precise definition of ‘rights and obligations’ that would constitute a reason for exclusion under this clause. It may, however, be said that the exclusion operates if a person's status is largely assimilated to that of a national of the country. In particular, he must, like a national, be fully protected against deportation or expulsion”

47. Matter ofPortales, supra note 46. See also 57 Interpreter Releases (No. 11) 134 (1980)

48. The term “safe haven”, as used here, has two different meanings. On the one hand, it is a new concept that involves foreign countries. On the other, it is used in reference to temporary protection for aliens in the United States

49. U.S. Court of Appeals for the First Circuit, 811 F.2d. 1 (Feb. 4,1987)

50. As to the factual background, the Court pointed out that the existence of the Afghanistanian refugees Amanullah and Wahidullah in their alleged “safe haven” India was “marginal at best Afghanistanis are not as a rule, given formal refugee status there. Without such standing, they had no legal right to work. Unable to work, they subsisted on the meager stipends proffered by the United Nations High Commissioner of Refugees (hardly enough to cover rent, electricity, and water for a small room in New Delhi). (…) And, poverty was not the only problem: some refugees lived in fear of informers and Afghanistani government agents.” (at 5–6)

51. 440 F 2nd. 100,102,(1971)

52. 658 F 2nd. 1312 (9th Cir. 1981)

53. See also the UNHCR Handbook, supra note 26, which sets out that “[p]ersecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned (…) Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution (…)”

54. 775 F.2d 1370 (9th Cir. 1985), at 1374–5

55. 648 F. Supp 638 (E.D. Cal. 1986)

56. Generally, work authorization may be granted at the discretion of the district officer if the asylum request is found to be non-frivolous (208.4)

57. Id., p. 642, at 1

58. On the other hand, the Court held that the aliens were not entitled to a preliminary injunction requiring the INS to provide written findings of fact and conclusions of law stating the reasons for any denial of work authorization

59. Id.,at 17