High Court Eases Asylum Standard : Rules Refugees Don’t Have to Submit Clear Proof of Persecution at Home

The Supreme Court, urging judges to look more favorably on the thousands of refugees seeking political asylum here, ruled Monday that such people do not have to prove that they clearly face persecution in their homelands.

The court, on a 6-3 vote, rejected a more rigid standard favored by the Reagan Administration that would grant asylum only to those who can show a “clear probability” of arrest or torture if sent home.

Immigration attorneys said that Monday’s decision sends a strong signal to American courts to be more compassionate in such cases.

“The court recognized that refugees often come here with little more than the clothes on their backs. They don’t carry with them the documents and the hard evidence that could prove their claimed persecution,” said Peter Schey, executive director for the National Center for Immigration Rights in Los Angeles.

Wording of Law

The ruling is based on the Refugee Act of 1980, which states that the government could grant asylum to an alien who is unable or unwilling to return to his home 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.”

Administrative judges for the Immigration and Naturalization Service who must apply this standard have been divided on how to interpret the phrase “well-founded fear of persecution.”

The Justice Department, which oversees the INS, has maintained that this clause requires an alien to “demonstrate a clear probability or likelihood of persecution” if he returns home, “showing that there is a greater-than-50% chance of persecution.” The Administration based this view on a 1984 high court ruling that required “clear probability” in a deportation case.

On Monday, however, the justices said that Congress intended a more generous standard for deciding asylum cases. Justice John Paul Stevens, writing for the court, said that judges deciding immigration cases should consider the “subjective beliefs” of the alien and not rely on a rigid statistical formula.

“One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place,” Stevens wrote. He cited a hypothetical example in which every 10th adult male would be put to death, a development that would create a “well-founded fear” even though odds of being killed would be only 10%.

Thousands May Appeal

The Justice Department, noting that more than 11,000 applications for asylum were filed in the last fiscal year alone, said Monday’s decision could “render thousands of denials of asylum” to appeal.

The case before the court concerned a 38-year-old Nicaraguan woman who said she feared for her safety if she returned home because her brother had been jailed and tortured after he denounced the leftist Sandinista government.

Luz Marina Cardoza-Fonseca came to this country from Nicaragua in 1979 and remained in the San Francisco area, overstaying her visa. She since has moved to Nevada. She conceded in 1981 that she could be deported lawfully but applied for asylum, saying she feared that the Sandinista government would retaliate against her because of her brother’s actions.

An INS administrative judge had ruled against her, saying that she had not established a “clear probability of persecution” in Nicaragua and noting that she has a sister living there who has not been persecuted.

The U.S. 9th Circuit Court of Appeals overruled the immigration officials in 1985 and ordered the U.S. Board of Immigration Appeals to conduct further hearings to determine whether Cardoza-Fonseca had a well-founded fear of persecution. The Administration appealed to the Supreme Court.

If the board now rules in her favor, she would be eligible to remain in the United States. But the final decision would be left to Atty. Gen. Edwin Meese III.

Justices William J. Brennan Jr., Thurgood Marshall and Sandra Day O’Connor joined in Stevens’ decision, while Justices Harry A. Blackmun and Antonin Scalia concurred with the ruling without signing the opinion. Chief Justice William H. Rehnquist and Justices Lewis F. Powell Jr. and Byron R. White dissented in the case (INS vs. Cardoza-Fonseca, 85-782).

Double Standard Seen

The high court’s ruling does not concern what many critics have said is a double standard in U.S. immigration law under which refugees who flee Communist states are more likely to be granted asylum than those who leave other nations, particularly in Central America.

A General Accounting Office study released last fall found that only 4% of Salvadorans who claimed persecution were granted asylum, compared to 80% of Poles who made the same claim.

In other actions Monday, the high court ruled:

--That evidence obtained by police under a law later declared unconstitutional may be used in court. On a 5-4 vote, the court said there is no reason to exclude this evidence because police acted as they should have in the case (Illinois vs. Krull, 85-608).

--That residents near the Stringfellow Acid Pits in Riverside County had no right to immediately appeal a judge’s order denying them equal standing in a suit by the federal government against the toxic waste dump. But this ruling has little significance, according to the lawyer who argued the case, because Congress said in its 1986 amendments to the Superfund cleanup law that such people must be allowed to join the suit (Stringfellow vs. Concerned Neighbors in Action, 85-184).