On March 9, 1987, the United States Supreme Court announced a new standard of proof governing asylum applications under § 208(a) of the Immigration and Nationality Act (INA)’ in INS v. Cardoza-Fonseca. Cardoza- Fonseca is only the second case decided under the Refugee Act of 1980. The first case, INS v. Stevic,4 held that an alien is eligible for the immigration remedy of the withholding of deportation, only if she demonstrates that “it is more likely than not that she would be subject to persecution” in the country to which return was proposed. However, the Stevic Court deliberately left unanswered the question of what the appropriate standard of proof should be in asylum cases. In Cardoza-Fonseca, the Court answered that question by holding that the well-founded fear standard which governed asylum was more liberal than the Stevic “probability” standard. While the Court did not definitively define well-founded fear, its rationale in Cardoza-Fonseca provides useful guidance on the criteria to be applied in future refugee status determinations. This rationale and its implications are the subjects of this article.
As long as authority remains divided between the Department of State andthe Department of Justice, it is almost inevitable that perceived imperatives of foreign policy and restricted immigration will take precedence over humanitarian considerations.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.