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

Majority Opinion

Under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42), any alien who is "unable or unwilling to return to his home country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion" is eligible for asylum in the United States. The Court emphasized that, when a refugee applies for asylum on account of political opinion, the refugee must actually be expressing a political opinion, and it is the political opinion of the refugee that is important, not that of his persecutors. Because neither of these applied to Elias-Zacarias, the Court had to ultimately deny his application for asylum.

There were many reasons apparent to the Court why a person might not want to join a guerrilla organization, and not all of them were related to a political opinion. He might be afraid of combat, he might want to remain with his family and friends, he might wish to "earn a better living in civilian life." None of these explanations was germane to any political opinion Elias-Zacarias might have been expressing.

And as for the political motives of the guerrillas, the Court found these to be beside the point. The statute, after all, made a refugee eligible for asylum only if the persecution he experienced was "on account of political opinion." The Court thought that the "ordinary meaning" of these words referred to the victim's political opinion, not the persecutor's. "If a Nazi regime persecutes Jews, it is not, within the ordinary meaning of language, engaging in persecution on account of political opinion; and if a fundamentalist Moslem regime persecutes democrats, it is not engaging in persecution on account of religion. Thus, the mere existence of a generalized 'political' motive underlying the guerrillas' forced recruitment is inadequate to establish... the proposition that Elias-Zacarias fears persecution on account of political opinion."

Further, even if the Court were to accept the proposition that not taking a political opinion was in itself a political opinion, Elias-Zacarias had to establish that he feared the guerrillas would persecute him because of that political opinion. The crucial deficiency on this score was that there was no evidence in the record of what the guerrillas' motives were.