Immigration & Naturalization Service v. Elias-Zacarias

502 U.S. 478, 112 S. Ct. 812, 117 L. Ed. 2d 38, 1992 U.S. LEXIS 550

• Court: Supreme Court of the United States
• Decided: January 22, 1992
• Docket: 90-1342
• Status: Published

Opinions

Justice Scalia

delivered the opinion of the Court.

The principal question presented by this case is whether a guerrilla organization’s attempt to coerce a person into performing military service necessarily constitutes “persecution on account of . . . political opinion” under § 101(a)(42) of the Immigration and Nationality Act, as added, 94 Stat. 102, 8 U. S. C. § 1101(a)(42).

I

Respondent Elias-Zacarias, a native of Guatemala, was apprehended in July 1987 for entering the United States without inspection. In deportation proceedings brought by petitioner Immigration and Naturalization Service (INS), Elias-Zacarias conceded his deportability but requested asylum and withholding of deportation.

The Immigration Judge summarized Elias-Zacarias’ testimony as follows:

“[A]round the end of January in 1987 [when Elias-Zacarias was 18], two armed, uniformed guerrillas with handkerchiefs covering part of their faces came to his home. Only he and his parents were there. . . . [T]he guerrillas asked his parents and himself to join with them, but they all refused. The guerrillas asked them why and told them that they would be back, and that they should think it over about joining them.

“[Elias-Zacarias] did not want to join the guerrillas because the guerrillas are against the government and he was afraid that the government would retaliate against him and his family if he did join the guerrillas. [H]e left Guatemala at the end of March [1987] . . . because he was afraid that the guerrillas would return.” App. to Pet. for Cert. 40a-41a.

The Immigration Judge understood from this testimony that Elias-Zacarias’ request for asylum and for withholding of deportation was “based on this one attempted recruitment by the guerrillas.” Id., at 41a. She concluded that Elias-Zacarias had failed to demonstrate persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, and was not eligible for asylum. See 8 U. S. C. §§ 1101(a)(42), 1158(a). She further concluded that he did not qualify for withholding of deportation.

The Board of Immigration Appeals (BIA) summarily dismissed Elias-Zacarias’ appeal on procedural grounds. Elias-Zacarias then moved the BIA to reopen his deportation hearing so that he could submit new evidence that, following his departure from Guatemala, the guerrillas had twice returned to his family’s home in continued efforts to recruit him. The BIA denied reopening on the ground that even with this new evidence Elias-Zacarias had failed to make a prima facie showing of eligibility for asylum and had failed to show that the results of his deportation hearing would be changed.

The Court of Appeals for the Ninth Circuit, treating the BIA’s denial of the motion to reopen as an affirmance on the merits of the Immigration Judge’s ruling, reversed. 921 F. 2d 844 (1990). The court ruled that acts of conscription by a nongovernmental group constitute persecution on account of political opinion, and determined that Elias-Zacarias had a “well-founded fear” of such conscription. Id., at 850-852. We granted certiorari. 500 U. S. 915 (1991).

II

Section 208(a) of the Immigration and Nationality Act, 8 U. S. C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is a "refugee" as defined in the Act, i. e., an 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." § 101(a)(42)(A), 8 U. S. C. § 1101(a)(42)(A). See INS v. Cardoza-Fonseca, 480 U. S. 421, 423, 428, n. 5 (1987). The BIA's determination that Elias-Zacarias was not eligible for asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U. S. C. § 1105a(a)(4). It can be reversed only if the evidence presented by Elias-Zacarias was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. NLRB v. Columbian Enameling & Stamping Co., 306 U. S. 292, 300 (1939).¹

The Court of Appeals found reversal warranted. In its view, a guerrilla organization's attempt to conscript a person into its military forces necessarily constitutes "persecution on account of. . . political opinion," because "the person resisting forced recruitment is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political." 921 F. 2d, at 850. The first half of this seems to us untrue, and the second half irrelevant.

Even a person who supports a guerrilla movement might resist recruitment for a variety of reasons — fear of combat, a desire to remain with one’s family and friends, a desire to earn a better living in civilian life, to mention only a few. The record in the present case not only failed to show a political motive on Elias-Zacarias’ part; it showed the opposite. He testified that he refused to join the guerrillas because he was afraid that the government would retaliate against him and his family if he did so. Nor is there any indication (assuming, arguendo, it would suffice) that the guerrillas erroneously believed that Elias-Zacarias’ refusal was politically based.

As for the Court of Appeals’ conclusion that the guerrillas’ “motive in carrying out the kidnapping is political”: It apparently meant by this that the guerrillas seek to fill their ranks in order to carry on their war against the government and pursue their political goals. See 921 F. 2d, at 850 (citing Arteaga v. INS, 836 F. 2d 1227, 1232, n. 8 (CA9 1988)); 921 F. 2d, at 852. But that does not render the forced recruitment “persecution on account of . . . political opinion.” In construing statutes, “we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.” Richards v. United States, 369 U. S. 1, 9 (1962); see Cardoza-Fonseca, supra, at 431; INS v. Phinpathya, 464 U. S. 183, 189 (1984). The ordinary meaning of the phrase “persecution on account of . . . political opinion” in § 101(a)(42) is persecution on account of 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 (and, indeed, goes far to refute) the proposition that Elias-Zacarias fears persecution on account of political opinion, as §101(a)(42) requires.

Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a “narrow, grudging construction of the concept of ‘political opinion,’ ” post, at 487, would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a “well-founded fear” that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at all.²

Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done.

The BIA’s determination should therefore have been upheld in all respects, and we reverse the Court of Appeals’ judgment to the contrary.

It is so ordered.

1 Quite beside the point, therefore, is the dissent's assertion that "the record in this case is more than adequate to support the cone lusion that this respondent's refusal [to join the guerrillas] was a form of expressive conduct that constituted the statement of a `political opinion," post, at 488 (emphasis added). To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it-and also compels the further conclusion that Elias-Zacarias had a well-founded fear that the guerrillas would persecute him because of that political opinion.

2 The dissent misdescribes the record on this point in several respects. For example, it exaggerates the “well foundedness” of whatever fear Elias-Zacarias possesses, by progressively transforming his testimony that he was afraid the guerrillas would “ ‘take me or kill me,’ ” post, at 484, into, first, “the guerrillas’ implied threat to ‘take’ him or to ‘kill’ him,” post, at 489 (emphasis added), and, then, into the flat assertion that the guerrillas “responded by threatening to ‘take’ or to ‘kill’ him,” post, at 490 (emphasis added). The dissent also erroneously describes it as “undisputed” that the cause of the harm Elias-Zacarias fears, if that harm should occur, will be “the guerrilla organization’s displeasure with his refusal to join them in their armed insurrection against the government.” Post, at 484 (emphasis added). The record shows no such concession by the INS, and all Elias-Zacarias said on the point was that he feared being taken or killed by the guerrillas. It is quite plausible, indeed likely, that the taking would be engaged in by the guerrillas in order to augment their troops rather than show their displeasure; and the killing he feared might well be a killing in the course of resisting being taken.