![handle is hein.journals/usfor57 and id is 1 raw text is:
Turn Asylum on its Head and Presume
Eligibility
ByBILL ONG HING*
Introduction
THIRTY-FIVE YEARS AGO, I was fortunate to be part of the litigation
team that won big before the U.S. Supreme Court in Immigration and Nahl-
ralization Service v. Cardoza-Fonseca,' the case that established that asylum
applicants need not prove that it is more likely than not that they will be
persecuted in their home countries in order to prevail.' The case interpreted
the 1980 Refugee Act's requirement that asylum applicants had to establish a
well-founded fear of persecution' to mean that likelihood of persecution
does not have to be demonstrated by a preponderance of the evidence.' In
fact, in interpreting the statute, Justice Stevens' majority opinion added:
There is simply no room in the United Nations' definition for concluding
that because an applicant only has a 10% chance of being shot, tortured, or
otherwise persecuted, that he or she has no 'well-founded fear' of the event
* Professor of Law and Migration Studies at the University of San Francisco School of Law.
He also co-directs the USF Immigration & Deportation Defense Clinic.
1. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In this case, the Immigration and Naturali-
zation Service (INS) commenced deportation proceedings against a Nicaraguan citizen who had
entered the United States legally but overstayed her visa. Id. at 424. She requested withholding of
deportation and grant of asylum as a refugee under the 1980 Refugee Act. Id. At the deportation
hearing, the immigration judge denied relief. Id. at 425. The Board of Immigration Appeals (BIA)
affirmed, but the Ninth Circuit reversed and remanded. Id. at 425-26. The Supreme Court granted
certiorari to resolve the conflict among the lower courts in the interpretation of the Act. Id. at 426.
2. Id. at 449.
3. Congress passed the 1980 Refugee Act to allow the United States to more effectively re-
spond to worldwide humanitarian crises in conformity with United Nations protocols. The Act broad-
ened the definition of refugee, clarified procedures for determining asylum claims, and allowed asy-
lum applicants already physically present in the United States to have their claims considered outside
of a deportation or exclusion proceeding. See Caitlin B. Munley, The Refugee Act of1980 and INS
v. Cardoza-Fonseca, 27 GEO. IMMIGR. L. J. 809, 809-14 (2013).
4. Cardoza-Fonseca, 480 U.S. at 423.
5. Id. at 440; see also id. at 456 (Justice Powell writing the dissent reiterates the prior standard
that [t]he burden of persuasion rests on the applicant, who must establish the truth of these facts by
a preponderance of the evidence. (citing In re Acosta, Interim Decision No. 2986 (Mar. 1, 1985))).
479](ViewImageLocal?handle=hein.journals/usfor57&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most