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Carcamo-Flores v. Immigration and Naturalization Service

decided: November 6, 1986.


Petition for review of an order of the Board of Immigration Appeals denying an alien political asylum on the ground that he had not met the burden of showing a "well-founded fear of persecution" as required by Immigration and Nationality Act § 208(a), 8 U.S.C. § 1158(a) (1986), and § 101(a)(42)(A) (1986). Reversed and Remanded

Author: Pratt

PRATT, Circuit Judge:

This appeal calls upon us to determine the proper standard to be applied in cases where an alien seeks political asylum pursuant to Immigration and Nationality Act ("INA") § 208(a), 8 U.S.C. § 1158(a)(1986), and, more specifically, the meaning of the statutory phrase "well-founded fear of persecution". 8 U.S.C. § 1101(a)(42)(A)(1986). Because we conclude that the Board of Immigration Appeals ("BIA") applied an improper standard, we reverse and remand for further proceedings in which the proper standard shall be applied.


Petitioner Juan Carcamo-Flores ("Carcamo-Flores") is a native of El Salvador. According to his testimony before the immigration judge, he left El Salvador as a result of his fear of harm arising from three separate incidents.

The first of these occurred in March 1980 when, Carcamo-Flores testified, he was involved in a strike at the Adoc Shoe Factory which was broken up by troops and police called in by the factor owner. Seven strikers were killed in that incident. He further testified that those participants who had survived the strike were known to the factory owners and felt threatened by them.

Carcamo-Flores also feared that he was targeted by right-wing "death squads", one of which had murdered his father. According to Carcamo-Flores, his father's labor activities led to his murder.

Finally, Carcamo-Flores testified that after being fired from the Adoc factory on February 24, 1981, he went to the labor ministry to press a claim that he was owed approximately five thousand Salvadoran colonies in severance pay. While there he was warned by a friend to leave or he would be killed, and, moreover, that anyone who complained to the labor ministry would be killed. He later read that other workers he had seen at the ministry pressing similar claims had been killed by "death squads".

Carcamo-Flores testified that as a result of these three incidents he came to fear for his safety and, some months later, fled El Salvador. In short, Carcamo-Flores believed that because of his own labor activities and his relationship to his assassinated father, he might be targeted for persecution, possibly murder.

Carcamo-Flores arrived in the United States on approximately September 1, 1981. On April 14, 1983, he filed an application for asylum and withholding of deportation. An order to show cause was issued on May 22, 1984, charging Carcamo-Flores with having entered the United States without inspection in violating of § 241(a)(2), 8 U.S.C. § 1251(a)(2) (1986). A hearing was then held on July 20, 1984, before an immigration judge. At that hearing, Carcamo-Flores conceded his deportability as an alien who had entered the United States without inspection under INA § 241(a)(2). His applications for political asylum pursuant to INA § 208(a) and for withholding of deportation under INA § 243(h), 8 U.S.C. § 1253(h)(1986), were denied. The immigration judge stated in his decision that to succeed "[an] alien must demonstrate a likelihood that he, individually, will be singled out and subjected to persecution."

Carcamo-Flores then appealed the immigration judge's decision to the BIA, which, affirming, specifically noted that "the eligibility standards for withholding of deportation and asylum are not meaningfully different and, in practical application, converge." Carcamo-Flores contends that this view of the applicable standards is erroneous, and we agree.


To qualify for political asylum under the INA, an alien must demonstrate a "well-founded fear of persecution." INA § 208(a); INA § 101(a)(42)(A). At issue here is the showing necessary to establish such a well-founded fear. Carcamo-Flores argues that an alien has met his burden by showing "'the existence of a valid reason for fear.'" Petitioner's Brief at 29, quoting Bolanos-Hernandez v. INS, 749 F.2d 1316, 1322 (9th Cir. 1984).

The INS contends that an alien must show that persecution is more likely than not, a standard that would make the burden for political asylum under § 208(a) identical to that for a grant of withholding of deportation, a distinct form of relief that is governed by § 243(h) of the INA. We reject the interpretation offered by the INS for two reasons. First, the law in this circuit has already been decided on this question. Second, even if the question were open to us, we would find, along with the fifth, sixth, seventh, and ninth circuits, that the standard urged by the INS is inconsistent with a proper understanding of the term "well-founded fear of persecution".

A. The Law in this Circuit.

A central consideration in this case is the relationship between two sections of the INA: §§ 208(a) and 243(h). Aliens in Carcamo-Flores's position, seeking affirmative relief after having conceded deportability, may apply for relief either under § 208(a), which provides for political asylum, or under § 243(h), which authorizes the withholding of deportation. In practice, applications for political asylum are automatically deemed simultaneous applications for withholding of deportation. 8 C.F.R. § 208.3(b) (1986). In INS v. Stevic, 467 U.S. 407, 104 S. Ct. 2489, 2501, 81 L. Ed. 2d 321 (1984), the Supreme court held that under § 243(h), relief is granted only upon a showing that persecution is more likely than not. Whether the same standard should be applied to § 208 is the critical question on this appeal.

On this question the Supreme Court in Stevic specifically reserved decision, 104 S. Ct. at 2501, but in our treatment of the same case at the circuit level we faced the issue, Stevic v. Sava, 678 F.2d 401 (2d Cir. 1982), rev'd, INS v. Stevic, 467 U.S. 407, 104 S. Ct. 2489, 81 L. Ed. 2d 321 (1984). The Supreme Court recognized our conclusion that the two standards are different:

We may assume, as the Court of Appeals concluded, that the well-founded-fear standard is more generous than the ...

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