Immigration and Naturalization Service V. Cardoza-Fonseca - Dissenting Opinion

Dissenting Opinion

Writing for the three dissenting Justices, Justice Powell said he would reverse the decision of the Ninth Circuit because the BIA's interpretation of the definition of "refugee" was reasonable. He pointed out that the BIA's interpretation of both "well-founded fear" and "clear probability of persecution" were not mathematical in nature; they were instead qualitative determinations. The heart of the standard articulated by the BIA was its "empirical conclusion, based on its experience in adjudicating asylum applications, that if the facts establish such a basis for an alien's fear, it rarely will make a difference whether the judge asks if persecution is 'likely' to occur or 'more likely than not' to occur. If the alien can establish such a basis, he normally will be eligible for relief under either standard."

Second, Justice Powell observed that both a "well-founded fear" and a "clear probability" had an objective component. The question in this case—whether those objective components are materially different, and if so, how—"is just the type of expert judgment—formed by the entity to whom Congress has committed the question—to which we should defer." Persecution is an individualized activity, and the BIA had undertaken of evaluate the probability of persecution qualitatively. There was no reason to suppose that the BIA's formulation of the standard was inconsistent with Congress's definition of the statute, particularly in light of what Powell considered an ambiguous legislative history.

Third, Powell asserted the BIA had actually applied the lower standard the Court had identified to the evidence presented in this case. Cardoza's other family members, after all, were still in Nicaragua and presumably subject to the persecution she and her brother claimed to fear. Cardoza admitted that she herself had not taken any action against the Nicaraguan government. In fact, she said she was not politically active, and had never been singled out for persecution by the government. The BIA accordingly held that Cardoza was not entitled to relief under any standard, including the "good reason" standard ultimately adopted by the Ninth Circuit, a standard Powell described as the "least burdensome" standard available to the BIA. Accordingly, Powell felt that the BIA had applied the correct legal standard to Cardoza's claim for asylum.