By Bill Ong Hing on September 25, 2022

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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 Naturalization Service v. Cardoza-Fonseca,[1] 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.[2]

The case interpreted the 1980 Refugee Act’s[3] requirement that asylum applicants had to establish a “well-founded fear” of persecution[4] to mean that likelihood of persecution does not have to be demonstrated by a preponderance of the evidence.[5] 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 happening.”[6]

My co-counsel and I were thrilled with that language and overjoyed at the outcome.[7] We felt that the decision made sense given the humanitarian purposes of asylum law. It was consistent with the intent behind the 1980 Refugee Act as expressed by its chief sponsor, Senator Ted Kennedy: that the Act would “ensure greater equity in our treatment of all refugees” and give “statutory meaning to our national commitment to human rights and humanitarian concerns.”[8] Today, the Cardoza-Fonseca case is often cited by the federal courts, immigration judges, and immigration attorneys.[9] The “10%” language is relied upon by immigration attorneys to argue that their clients should be granted asylum, and by some immigration judges who grant asylum even when the evidence isn’t overwhelming.[10] To me and many others, the implication of the “10%” language is that strong evidence of likely persecution is not required, and that applicants should be given the benefit of the doubt.[11]

I think the Cardoza-Fonseca case has definitely made a positive difference in the lives of thousands of asylum seekers. But I also don’t kid myself. Unsympathetic asylum officers, immigration judges, federal courts, and enforcement officials have thwarted the generous humanitarian intent of the asylum law and undermined the Cardoza-Fonseca case.[12] They hide behind reasoning related to such things as credibility issues, lack of individualized evidence, protection against victimization by gangs or domestic partners not being the intent of asylum, or that the applicant’s particular social group is too nebulous or broad.[13] Much of the negativity toward today’s asylum applicants from Latin America, Haiti, or Africa is simply based on institutionalized racism.[14]

Consider the data compiled by the Transactional Records Access Clearinghouse (“TRAC”) on asylum approval rates among immigration judges across the country from 2016 to 2021. In the Atlanta Immigration Court, for example, none of the immigration judges has an asylum approval rate greater than 8.7%.[15] In fact, Immigration Judge Earle Wilson has a ninety-eight-percent denial rate.[16] In Baltimore, Judge Denise Slavin approves asylum applications at a rate close to ninety percent,[17] but another judge, Phillip Williams, approves less than a third of his asylum cases.[18] When my co-counsel in Cardoza-Fonseca, Dana Marks, was an immigration judge in San Francisco,[19] her approval rate was ninety-one percent,[20] but two other San Francisco judges, Nathan Aina and Anthony Murry, approved only 4.6% and 4.9%, respectively.[21] Perhaps even more worrisome today are Judge Robert Hough in El Paso and Judge Kristin Piepmeier in Los Angeles, with 0.8% and 0.0% approval rates, respectively.[22] I sure would be concerned for any applicant appearing before one of them.

In other essays, I’ve criticized the approach that immigration judges use to determine applicant credibility,[23] and I have pointed to the problematic cynicism and burnout of asylum officers.[24] I have also cited the political and racial bias against classes of asylum applicants—some exposed by federal courts.[25] But in this Article, I focus on one technical approach to the well-founded fear of persecution standard that should be corrected: the “reasonable person” approach. Part I argues that the reasonable person approach is not reasonable. Part II argues that this standard should be replaced with a “reasonable possibility” approach and a presumption of eligibility for asylum.

I. Why the “Reasonable Person” Approach to Asylum Is Not Reasonable

 
In a forthcoming book, I will argue that the entire U.S. immigration system should be abolished.[26] In this Article, I focus on why the asylum portion of that system needs to be approached from a completely new perspective. Applicants who face a reasonable possibility of persecution are being denied asylum today due to restrictive legal analyses, political pressures, and racism.[27] We need to approach asylum cases using a different framework. I believe asylum adjudicators should use this mindset: I may not think that the applicant will be persecuted for sure, but that’s fine because I don’t have to be sure. I don’t even have to be persuaded that there is a high likelihood the applicant will be persecuted. All I have to believe is that there is a reasonable chance—even a ten-percent chance—that the person will be persecuted. If so, then my duty is to approve the application, even if there is a ninety-percent chance the person will not be persecuted.

In our legal papers to the Supreme Court in Cardoza-Fonseca, the legal team urged the Court to recognize that the legislative history of the 1980 Refugee Act required increased flexibility in approaching asylum.[28] Importantly, in reaching its “10% chance” of persecution standard, the Court relied on information that we provided from the United Nations High Commissioner on Refugees (“UNHCR”) and international scholars.[29] The UNHCR’s handbook on refugees adds important insight to the question of how much should be demanded of asylum applicants. Consider this passage:

After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. . . . [I]t is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.[30]

Given the risks of an erroneous decision in an asylum case, providing the applicant with the benefit of the doubt makes sense. After all, if you are going to make a mistake in an asylum case, you should prefer granting asylum to someone who might not be persecuted over denying asylum to someone who will be persecuted.

After the Cardoza-Fonseca decision, the Board of Immigration Appeals (“BIA”) acknowledged the low burden of proof for asylum.[31] But the BIA created its own language: “[A]n applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution.”[32] Any language the BIA adopts is important, because it establishes precedent that immigration judges follow.

The BIA’s reasonable person standard may have appeal, but it does not instruct immigration judges to give the benefit of the doubt to an applicant, and it falls well short of the “10% chance” of persecution standard. The Supreme Court did not precisely define “well-founded fear,” but the Court reasoned that sufficient fear could be present in a situation where there was a ten-percent chance of being persecuted.[33] I surmise that the BIA came up with its formulation because the Court in Cardoza-Fonseca wrote that a “reasonable possibility of persecution” should be sufficient,[34] and the BIA somehow equated “reasonable possibility” with “reasonable person.” But those phrases are not equivalents. In my view, a “reasonable possibility of persecution” is more generous than requiring that a reasonable person fears persecution under the circumstances. The Court told us that a ten-percent chance of persecution constitutes a reasonable possibility of persecution. Thus, a reasonable person might not fear persecution if there is only a ten-percent chance of persecution, but asylum should still be granted because there is a reasonable possibility of persecution. Consider this example: If there is only a ten-percent chance of winning something, a reasonable person probably might not take that chance, but there is still a reasonable possibility of winning. That is why the reasonable person standard doesn’t make sense in the asylum context given the Court’s lesson that a ten-percent chance of persecution constitutes a reasonable possibility of persecution and is sufficient to establish a well-founded fear, which the Court referenced in its decision.

II. A Presumption of Eligiblity

 
How can asylum adjudicators reject the reasonable person approach and apply a reasonable possibility approach where a ten-percent chance of persecution is sufficient to establish a well-founded fear? One way is to analogize asylum adjudication to criminal law. In a criminal case, the judge instructs the jury that the defendant should be convicted only if guilt has been established “beyond a reasonable doubt.”[35] Thus, if a juror thinks that the defendant probably committed the crime, but still has a reasonable doubt, then that juror should vote to acquit. There is good reason for that approach in the criminal justice system where the person’s liberty is at stake. Society would rather let a guilty person go free than to jail an innocent person by mistake—we err on the side of freedom rather than imprisonment in criminal matters.

I would make the same argument in the asylum arena. We should err on the side of granting asylum rather than denying it to someone who has a reasonable possibility of being persecuted, because persecution may lead to an unacceptable loss of freedom for the asylum seeker just as an innocent person jailed represents an unacceptable loss of freedom in the criminal arena. If we are going to make a mistake, we should grant asylum to someone who actually might not be persecuted, rather than deport someone who will be persecuted. “Beyond a reasonable doubt” thus equates with a “well-founded fear,” which is a reasonable possibility and warrants being given the benefit of the doubt. This approach provides the right frame of mind to the ten-percent chance of persecution standard. The humanitarian approach is the “benefit of the doubt” approach.

Erring on the side of granting asylum means giving the benefit of the doubt across the board. This means that the benefit of the doubt should be given to applicants when it comes to the applicant’s credibility—even when there are inconsistencies. It means giving the benefit of the doubt when the judge is not sure if a particular social group will be targeted or if it’s not clear if the authorities are unable or unwilling to protect that applicant.

Another policy from the criminal justice system should also be used in the asylum arena. In criminal law, the concept of “innocent until proven guilty” or “presumed innocent” is fundamental.[36] In the asylum arena, we need a corollary presumption of eligibility. Asylum adjudication involves life or death decisions. The stakes are so high that once a person applies for asylum, they should be presumed eligible. Thus, borrowing from criminal procedure, once the application is filed, the applicant should be presumed eligible under the law and should be granted asylum unless the government can prove beyond a reasonable doubt that the applicant will not be persecuted.

Conclusion

 
Honestly, I am skeptical that all immigration judges and federal courts will voluntarily take the benefit of the doubt and presumed eligible approach I advocate. Substantive and procedural changes to asylum adjudication must be established by Congress. In fact, a new asylum court system needs to be institutionalized in a form free of political influence and given better tools to achieve just results. We need a system that would cease the detention of asylum applicants, provide applicants with free counsel, provide applicants with mental health services, and train decision makers on a humanitarian and trauma-informed approach to adjudication. To achieve these goals, I call for the abolishment of the current U.S. immigration system and the creation of a new system for granting asylum based on the presumption of eligibility. This presumption would give the benefit of the doubt to each asylum applicant that a well-founded fear of persecution exists in their lives, and bring us closer to the Cardoza-Fonseca standard that the Court endorsed over three decades ago.

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        [1].    INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In this case, the Immigration and Naturalization 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 respond to worldwide humanitarian crises in conformity with United Nations protocols. The Act broadened the definition of refugee, clarified procedures for determining asylum claims, and allowed asylum 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 of 1980 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))).

        [6].    Cardoza-Fonseca, 480 U.S. at 440.

        [7].    My co-counsel included Dana Marks, who would become an immigration judge that same year, and who asked me to argue the case when it was at the Ninth Circuit. Susan Lydon was my deputy at the Immigrant Legal Resource Center where I volunteered as its Executive Director. Kip Steinberg was a young attorney at Simmons & Ungar, a highly regarded boutique immigration firm where he and Dana worked. I was a new professor at Stanford Law School at the time, hired to start an immigration clinic.

        [8].    A Lifetime of Service, Championing Civil Rights & Promoting Fairness and Equal Opportunities for All, Edward M. Kennedy Inst., http://www.tedkennedy.org/service/item/civil_rights.html [https://perma.cc/4QFT-MAFX].

        [9].    See, e.g., Delgado v. Mukasey, 546 F.3d 1017, 1027 (9th Cir. 2008); Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996); Ipina v. INS, 868 F.2d 511, 513 (1st Cir. 1989); Grace v. Whitaker, 344 F.Supp. 3d 96, 106 (D.C. Cir. 2018).

      [10].    See Grace Kim, Abandoning the Subjective and Objective Components of a Well-Founded Fear of Persecution, 16 Nw. J. L. & Soc. Pol’y. (2021).

      [11].    See Ronald C. Silberstein, United States, Canadian, and International Refugee Law: A Critical Comparison, 12 Hastings Int’l & Compar. L. Rev. 261, 278 (1988).

      [12].    See, e.g., Liang v. Garland, 10 F.4th 106 (2d Cir. 2021); Demiraj v. Holder, 631 F.3d 194 (5th Cir. 2011); In re E-F-N-, 28 I. & N. Dec. 591 (B.I.A. June 30, 2022); In re A-S-, 21 I. & N. Dec. 1106 (B.I.A. Feb. 19, 1998).

      [13].    See, e.g., Chavez-Chilel v. Garland, 20 F.4th 138 (3d Cir. 2021); In re A-B-, 27 I. & N. Dec. 316 (U.S. Att’y Gen. June 11, 2018); In re A-B-, 28 I. & N. Dec. 199 (U.S. Att’y Gen. Jan. 14, 2021).

      [14].    See Bill Ong Hing, Addressing the Intersection of Racial Justice and Immigrant Rights, 9 Belmont L. Rev. 357 (2022).

      [15].    Judge-by-Judge Asylum Decisions in Immigration Courts
FY 2016-2021, TRAC Immigr., https://trac.syr.edu/immigration/reports/judge2021/denialrates.html [https://perma.cc/UY5H-RYWR].

      [16].    Id.

      [17].    Id.

      [18].    Id.

      [19].    Dana Marks served as an Immigration Judge from January 1987 to December 2021. Paul Wickham Schmidt, Flash: Judicial Maven Hon. Dana Leigh Marks Retires, Joines Round Table!, ImmigrationCourtside.com Blog (Jan. 9, 2022), https://immigrationcourtside.com/2022/01/09/%F0%9F%98%8E%F0%9F%97%BD%E2%9A%96%EF%B8%8F%F0%9F%91%A9%E2%80%8D%E2%9A%96%EF%B8%8F-flash-judicial-maven-hon-dana-leigh-marks-retires-joins-round-table-%F0%9F%9B%A1%E2%9A%94%EF%B8%8F/ [https://perma.cc/B83J-Y2WS].

      [20].    Judge-by-Judge Asylum Decisions in Immigration Courts FY 2016-2021, supra note 15.

      [21].    Id.

      [22].    Id.

      [23].    See Bill Ong Hing, A Well-Founded Fear that INS v. Cardoza-Fonseca Has Been Circumvented, 14 Geo. Immig. L.J. 849 (2000).

      [24].    See id. at 850–52.

      [25].    See Hing, supra note 14, at 365.

      [26].    Bill Ong Hing, Abolish ICE, (Beacon Press) (forthcoming 2023).

      [27].    See Hing, supra note 14.

      [28].    See Brief of Respondent-Appellee at 20–21, INS v. Cardoza-Fonseca, No. 85-782 (U.S. July 14, 1986), 1986 WL 727540.

      [29].    INS v. Cardoza-Fonseca, 480 U.S. 421, 438–39 (1987); see id.

      [30].    U.N. Refugee Agency, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection: Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, at 203, U.N. Doc. HCR/GIP/15/11 (2019) (emphasis added).

      [31].    In re Mogharrabi, 19 I. & N. Dec. 439, 445–46 (B.I.A. June 12, 1987).

      [32].    Id. at 445.

      [33].    See Cardoza-Fonseca, 480 U.S. at 440.

      [34].    Id.

      [35].    See, e.g., N.Y. Crim. Jury Instr. 2d Preliminary Instructions, at 16.

      [36].    The Presumption of Innocence, Fair Trials, https://www.fairtrials.org/the-right-to-a-fair-trial/the-presumption-of-innocence/ [https://perma.cc/Q32A-YTT8]; see also N.Y. Crim. Jury Instr. 2d Preliminary Instructions, at 15.