ACOSTA
19 I. & N. Dec. 211 (1985)
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Rule of Law:
An alien seeking asylum or withholding of deportation must demonstrate by a preponderance of the evidence a 'well-founded fear of persecution' (for asylum) or a 'clear probability of persecution' (for withholding of deportation), both of which require objective facts showing a realistic likelihood of country-wide persecution on account of race, religion, nationality, membership in an immutable social group, or the alien's genuine political opinion.
Facts:
- Acosta, a 36-year-old native and citizen of El Salvador, co-founded COTAXI, a taxi cooperative in San Salvador, in 1976.
- From 1978 to 1981, Acosta held various management positions with COTAXI, including general manager.
- Beginning in 1978, COTAXI and its drivers received anonymous requests, believed to be from anti-government guerrillas, to participate in work stoppages aimed at disrupting El Salvador's economy.
- COTAXI's board of directors refused these requests, leading to threats of retaliation against the cooperative and its members.
- From 1979 onwards, COTAXI taxis were seized or burned, and five members, including three of Acosta's friends and fellow founders, were killed after receiving death threats.
- In January and February 1981, Acosta personally received three anonymous death threats, and in February 1981, he was beaten and robbed of his taxi by three men.
- Acosta believed guerrillas were responsible for the threats and assault due to his role in COTAXI, and he left El Salvador fearing for his life.
- Acosta testified that if he returned to El Salvador, he would not work as a taxi driver and that the terrorists are no longer active.
Procedural Posture:
- An Immigration Judge found Acosta deportable for entering the United States without inspection.
- The Immigration Judge denied Acosta's applications for a grant of asylum and for withholding of deportation to El Salvador.
- The Immigration Judge granted Acosta the privilege of voluntary departure in lieu of deportation.
- Acosta appealed the denial of his applications for asylum and withholding of deportation to the Board of Immigration Appeals.
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Issue:
Does an alien seeking asylum under § 208 or withholding of deportation under § 243(h) of the Immigration and Nationality Act establish a "well-founded fear of persecution" or "clear probability of persecution" when their fear stems from threats related to their profession during civil strife, rather than persecution for an immutable characteristic or genuine political opinion throughout their country?
Opinions:
Majority - Milhollan, Chairman
No, Acosta did not establish a well-founded fear of persecution for asylum or a clear probability of persecution for withholding of deportation, nor did he demonstrate that the feared persecution was on account of a protected ground (membership in a particular social group or political opinion) or existed country-wide. The Board determined that an alien bears the burden of proving eligibility for asylum or withholding of deportation by a preponderance of the evidence. While Acosta's testimony was found credible, his fear of persecution by the government was purely subjective and lacked objective basis. His fear of guerrilla persecution was also not well-founded because the factual circumstances had changed since his departure (he would not work as a taxi driver, and guerrilla strength had diminished), thus failing to show a present likelihood or inclination for persecution. The Board clarified that "persecution" means harm inflicted to punish a belief/characteristic, not general civil strife. The "well-founded fear" standard for asylum and "clear probability" standard for withholding of deportation converge in practice, both requiring objective facts showing a "realistic likelihood" of persecution based on four factors (alien possesses characteristic, persecutor aware, persecutor capable, persecutor inclined). Regarding protected grounds, "membership in a particular social group" is interpreted using ejusdem generis to refer to immutable characteristics (those that cannot be changed or are fundamental to identity/conscience and should not be required to change). Being a taxi driver or refusing work stoppages are not immutable characteristics as Acosta could change his job or cooperate. "Persecution on account of political opinion" requires the persecutor to target the alien's own individual political opinion, not just act to further the persecutor's political goals; Acosta did not show the guerrillas sought to overcome his specific political opinion. Finally, the threat of persecution must be country-wide, not limited to a particular locality, and Acosta only demonstrated threats in San Salvador, not throughout El Salvador. Therefore, Acosta failed to meet multiple statutory elements for both asylum and withholding of deportation.
Analysis:
This case significantly shaped U.S. asylum and withholding of deportation law by articulating the standards for 'well-founded fear' and 'clear probability of persecution,' emphasizing an objective likelihood rather than purely subjective fear. Its narrow interpretation of 'particular social group' and 'political opinion' profoundly impacts who qualifies for protection, specifically excluding those fleeing general civil conflict or economic hardship. The establishment of the 'country-wide' persecution requirement further restricts eligibility, requiring a showing that internal relocation is not a safe alternative. Acosta set a rigorous analytical framework that has been consistently applied to evaluate claims based on these protected grounds, influencing countless future immigration decisions.
