421

POWELL, J., dissenting

prov[es] and clarif[ies] the procedures for determining asylum claims filed by aliens who are physically present in the United States. The substantive standard is not changed." S. Rep. No. 96–256, p. 9 (1979). As the Court recognizes, ante, at 435, n. 17, this statement unquestionably refers to the informal procedures for aliens in the United States, not the statutory procedures under § 203(a)(7). Similarly, the House Report states that "the new definition does not create a new and expanded means of entry, but instead regularizes and formalizes the policies and practices that have been followed in recent years." H. R. Rep. No. 96-608, p. 10 (1979) (emphasis added). Congress hardly would have felt a need to "formalize" the statutory procedures under § 203(a)(7). Indeed, the House Report cites the Attorney General's regulations as the extant procedures to which it was referring. H. R. Rep., at 17.

In my view, the legislative history indicates that Congress' choice of the words "well-founded" fear as the standard of eligibility for asylum was intended to carry forward the practice of the Attorney General in adjudicating asylum applications. The Attorney General had concluded that the standard for asylum was substantially identical to the standard for withholding of deportation. His decision to interpret the language of § 208 in the same way is entirely reasonable.

B

Second, the Court relies on materials interpreting the United Nations Protocol. Ante, at 437-440. For several reasons, I find these materials to be only marginally rele

'The Court concludes that the Senate Report has no probative force because the Conference Committee adopted the House language rather than the Senate language. But the changes in language made by the Conference Committee do not help the Court's position. As I explain infra this page, the House Report indicates that the House bill also was intended to adopt the standards set forth in the regulations. Moreover, there is no suggestion in the Conference Report that this change in language affected the substantive standard. See infra, at 464-465.

vant. Both the President and the Senate thought that the Protocol was perfectly consistent with our country's immigration laws. See INS v. Stevic, 467 U. S. 407, 417 (1984) (citing legislative history). We should be reluctant to assume that our country has been violating the Protocol during the 20 years since its adoption. Moreover, as the Court recognizes, statements by the United Nations High Commissioner for Refugees have no binding force, because "the determination of refugee status under the... Protocol. . . is incumbent upon the Contracting State."" Ante, at 439, n. 22 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1(ii) (Geneva, 1979)).

In any event, the materials discussed by the Court shed little or no light on the question presented by this case. None of them states that the burden of proof for nonrefoulement under Article 33.1 of the United Nations Protocol of 1967-a remedy essentially identical to withholding of deportation under § 243(h) of the Act-is higher than the burden of proof for asylum under Article 34. The only thing the materials tend to establish is that a mathematical approach to the likelihood of persecution in asylum cases is arguably inconsistent with the sense of the drafters of the Protocol. The BIA has declined to adopt such an approach. See supra, at 457-459. It is simply irrelevant that this approach might be inconsistent with the views of commentators on the Protocol.

C

Finally, the Court places great weight on the changes in the Act made by the Conference Committee. The Court notes that the Senate bill, S. 643, authorized the Attorney General to grant asylum if the applicant "is a refugee within the meaning of section 101(a)(42)(A) and his deportation or return would be prohibited under section 243(h) of this Act." S. Rep. No. 96-256, at 26. The Court conjectures that this language "indicates that the Senate recognized that

421

POWELL, J., dissenting

there is a difference between the 'well-founded fear' standard and the clear-probability standard. The enactment of the House bill rather than the Senate bill in turn demonstrates that Congress eventually refused to restrict eligibility for asylum only to aliens meeting the stricter standard." Ante, at 442 (footnote omitted).

Neither the premise of the Court nor its conclusion is justified. The language of the Senate bill does not demonstrate that the Senate recognized a difference between the two standards. The Senate just as easily could have included the language to ensure that the Attorney General held to his position that there was no difference between the standards. Moreover, there is no reason to believe that the changes made by the Conference Committee reflected a considered rejection of this portion of the Senate's definition of refugee. Rather, the Conference Committee Report demonstrates that the Conference thought both bills adopted the same general definition of refugee-the U. N. definition. See H. R. Conf. Rep. No. 96-781, p. 19 (1980). The differences the Conference saw between the bills related to treatment of refugees still in their homeland, and to refugees who have been "firmly resettled" in another country. See ibid.

In short, I see no reason to believe that the minor differences in wording between the Senate bill and the Act as passed reflect a rejection of the position that there is no significant difference between the two standards. Thus, I place no weight on the Conference Committee's choice of the language of the House bill.

IV

Even if I agreed with the Court's conclusion that there is a significant difference between the standards for asylum and

'This interpretation is supported by evidence that the House bill, like the Senate bill, was intended to preserve the Attorney General's regulations treating the two standards as substantially identical. See supra, at 463.

POWELL, J., dissenting

480 U. S.

withholding of deportation, I would reverse the decision of the Court of Appeals and uphold the decision of the BIA in this case. A careful reading of the decisions of the BIA and the Immigration Judge demonstrates that the BIA applied the lower asylum standard to this case.

Respondent's claim for asylum rested solely on testimony that her brother had experienced difficulties with the authorities in Nicaragua. The Immigration Judge rejected respondent's claim because he found "no evidence of any substance in the record other than her brother's claim to asylum." App. to Pet. for Cert. 27a. He further found:

"None of the evidence indicates that the respondent would be persecuted for political beliefs, whatever they may be, or because she belongs to a particular social group. She has not proven that she or any other members of her family, other than her brother, has [sic] been detained, interrogated, arrested and imprisoned, tortured and convicted and sentenced by the regime presently in power in Nicaragua." Ibid.

The absence of such evidence was particularly probative, because many of the other members of respondent's familyher parents, two sisters, her brother's wife, and her broth

'The Court contends that this question is not before us. Ante, at 448, n. 31. I find this suggestion quite strange. The Immigration and Naturalization Service asked the Court to determine “[w]hether an alien's burden of proving eligibility for asylum. . . is equivalent to his burden of proving eligibility for withholding of deportation." Pet. for Cert. (I). The question whether the two standards are equivalent "fairly includes," under this Court's Rule 21.1(a) the problem of defining the appropriate standard for asylum. And that question can only be answered on the facts of this case. The Court does not sit to answer hypothetical questions of statutory construction. Normally we resolve such questions only by examining the facts of the case before us. In this case, the Court affirms the Court of Appeals' decision that the BIA required an intolerably high burden of proof in this case. Yet, like the Court of Appeals, the Court examines neither the facts of the case before us nor the legal standard the BIA applied. In my view, Rule 21 does not contemplate this result.

421

POWELL, J., dissenting

er's two children-were still in Nicaragua and thus presumably subject to the persecution respondent feared.

On appeal, the BIA affirmed. It decided this case after the passage of the Act, but before its opinion in Acosta. At that time, the BIA was confronted with a number of conflicting decisions by Courts of Appeals as to the correct standard for evaluating asylum applications. The BIA noted three different formulations of the "well-founded fear" standard: the "clear probability" test, see Rejaie v. INS, 691 F. 2d 139 (CA3 1982); the "good reason" test, see Stevic v. Sava, 678 F. 2d 401 (CA2 1982), rev'd on other grounds, INS v. Stevic, 467 U. S. 407 (1984); and the "realistic likelihood" test the BIA had adopted in Matter of Dunar, 14 I. & N. Dec. 310 (1973). App. to Pet. for Cert. 21a. See supra, at 456-459 (discussing Acosta). Reviewing the evidence respondent had submitted to the Immigration Judge, the BIA concluded that respondent could not obtain relief under any of the standards. The BIA focused especially on the fact that respondent

"has openly admitted that she herself has taken no actions against the Nicaraguan government. She admits that she has never been politically active. She testified that she never assisted her brother in any of his political activities. Moreover, she admits that she has never been singled out for persecution by the present government." App. to Pet. for Cert. 22a.

8

Respondent filed a petition for review with the Court of Appeals for the Ninth Circuit. Without examining either the factual or legal basis for the BIA's decision, the court granted the petition, reversed the BIA's decision, and remanded the application to the BIA for further consideration.

In terms of the four-element Acosta test for well-founded fear, respondent's claim would have failed both the first and the second elements. Respondent failed to show either that she "possesses a belief or characteristic the persecutor seeks to overcome" or that "the persecutor is already aware, or could easily become aware, that [she] possesses this belief or characteristic." Acosta, Interim Decision No. 2986, at 22.