Immigration and Naturalization Service V. Elias-Zacarias - Dissenting Opinion

Dissenting Opinion

Justice Stevens, writing for himself and two other dissenting Justices, criticized the majority's holding for being too harsh. After all, if he had prevailed, he would simply have been eligible for asylum; the ultimate decision to grant him that status still rested with the United States Attorney General. In his view, the majority's decision overlooked this critical fact.

The discretion that rests with the Attorney General was Stevens's point of departure for two other criticisms. First, "a political opinion can be expressed negatively as well as affirmatively." Choosing not to take sides in a political dispute is itself a political choice, one that the asylum laws should protect just as much as an affirmative political statement. Because the Attorney General ultimately retains discretion to grant or deny an application for asylum, Stevens found it to be imprudent to take away from him or her the discretion to extend that protection to an equally deserving class of refugees. Second, the guerrillas' threat to kill Elias-Zacarias for refusing to join their cause was indisputably "on account of" the political opinion to remain neutral with respect to their fight against the government.