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480 U. S.

federal policies reflected in the enactment and enforcement of § 1983 mandate a strong presumption against the enforceability of such agreements and that the presumption is not overcome in this case by the facts or by any of the policy concerns discussed by the plurality." The very existence of the statute identifies the important federal interests in providing a remedy for the violation of constitutional rights and in having

412, and because police have been afforded qualified immunity, see Harlow v. Fitzgerald, 457 U. S. 800 (1982). Thus, the vast majority of "marginal or frivolous" § 1983 suits can be dismissed under existing standards with little more burden on the defendants than is entailed in defending a releasedismissal agreement. Moreover, there is an oddly suspect quality to this extra protection; the agreement is one that a public official signs, presumably in good faith, but that a court must conclude is invalid unless that official proves otherwise. Ante, at 399 (O'CONNOR, J., concurring in part and in judgment). In most cases, if social and judicial resources are to be expended at all, they would seem better spent on an evaluation of the merits of the § 1983 claim rather than on a detour into the enforceability of a release-dismissal agreement.

"The Courts of Appeals which have found agreements not to sue void as against public policy demonstrate, in my view, much more sensitivity to the possibility of prosecutorial abuse than does the Court's opinion today. As the Seventh Circuit has held:

“[W]e think that the release is void as against public policy. . . . As well stated in Dixon v. District of Columbia, 129 U. S. App. D. C. 341, 394 F. 2d 966, 968-969 (1968), a case where the arrestee violated his tacit' agreement not to sue and the prosecutor retaliated by filing the traffic charges, which had been held in abeyance pursuant to the tacit agreement: ""The Government may not prosecute for the purpose of deterring people from exercising their right to protest official misconduct and petition for redress of grievances.

"The major evil of these agreements is not that charges are sometimes dropped against people who probably should be prosecuted. Much more important, these agreements suppress complaints against police misconduct which should be thoroughly aired in a free society. And they tempt the prosecutor to trump up charges for use in bargaining for suppression of the complaint. The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest."" Boyd v. Adams, 513 F. 2d, at 88-89.

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STEVENS, J., dissenting

the merits of such claims resolved openly by an impartial adjudicator rather than sub silentio by a prosecutor whose primary objective in entering release-dismissal agreements is definitely not to ensure that all meritorious § 1983 claims prevail. The interest in vindication of constitutional violations unquestionably outweighs the interest in avoiding the expense and inconvenience of defending unmeritorious claims. Paradoxically, the plurality seems more sensitive to that burden than to the cost to the public and the individual of denying relief in meritorious cases. In short, the plurality's decision seems to rest on the unstated premise that § 1983 litigation imposes a net burden on society. If that were a correct assessment of the statute, it should be repealed. Unless that is done, however, we should respect the congressional decision to attach greater importance to the benefits associated with access to a federal remedy than to the burdens of defending these cases.24

The plurality also suggests that these agreements must be enforced in order to give proper respect to the prosecutor's exercise of discretion. I must confess that I do not understand this suggestion.25 The prosecutor is adequately pro

"JUSTICE O'CONNOR suggests that these agreements might serve a legitimate purpose when the charges dismissed are misdemeanors rather than felonies. "Sparing the local community the expense of litigation associated with some minor crimes for which there is little or no public interest in prosecution may be a legitimate objective of a release-dismissal agreement." Ante, at 399-400 (concurring in part and in judgment). Implicit in this reasoning, I think, is the assumption that the court has independently determined that the arrest was proper. Otherwise, a valid § 1983 claim could be barred under this reasoning because of a factor wholly unrelated to the merits of the claim-the public's lack of interest in prosecuting the misdemeanor charges that were dismissed. These agreements could then be routinely upheld in circumstances where they were improperly employed. For example, one would expect that an officer attempting to cover up an illegal arrest would find it easier to trump up misdemeanor charges (such as resisting arrest) than felony charges.

"Particularly, I do not understand the relevance of the statistics in footnote 6, ante, at 396, of the plurality's opinion. In support of the proposi

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480 U. S.

tected by the shield of absolute immunity. Moreover, in this case it is police misconduct—not that of the prosecutor-that is challenged in the § 1983 litigation. A holding that the agreement is unenforceable need not rest on an assumption that "prosecutors will seize the opportunity for wrongdoing.” Ante, at 396. On the contrary, it would merely respect the wholly unrelated premise that undergirds § 1983 itself—that law enforcement officers sometimes violate the constitutional rights of individual citizens." The public interest in identifying and redressing such violations is, in my judgment, paramount to the prosecutor's interest in using the threat of a felony indictment and trial as a means of avoiding an independent appraisal of the merits of a § 1983 claim.

Accordingly, although I am not prepared to endorse all of the reasoning of the Court of Appeals, I would affirm its judgment.

tion that the criminal justice system lacks sufficient resources to litigate every serious criminal charge, the plurality refers to statistics which indicate that most serious criminal charges are not taken through a full criminal trial. The facts that most criminal cases are settled by a guilty plea and that only 12.8 percent go to trial tell us nothing about the number in which the prosecution is completely abandoned, either for no special consideration or in connection with the execution of a release-dismissal agreement. Moreover, the plurality's invocation of prosecutorial discretion not to prosecute reinforces my view that release-dismissal agreements are unnecessary. If the pressure of being unable to bring every serious criminal charge to trial is immense, it will encourage the prosecutor to drop charges in marginal cases.

"The purpose of § 1983 is to "give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position." Monroe v. Pape, 365 U. S. 167, 172 (1961).

Syllabus

IMMIGRATION AND NATURALIZATION SERVICE v. CARDOZA-FONSECA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 85-782. Argued October 7, 1986-Decided March 9, 1987 Section 243(h) of the Immigration and Nationality Act (Act) requires that the Attorney General withhold deportation of an alien who demonstrates that his "life or freedom would be threatened" thereby on account of specified factors. The above-quoted phrase requires a showing that "it is more likely than not that the alien would be subject to persecution" in the country to which he would be returned. In contrast, § 208(a) of the Act authorizes the Attorney General, in his discretion, to grant asylum to a "refugee," who, under § 101(a)(42)(A) of the Act, is unable or unwilling to return to his home country because of persecution or “a well founded fear" thereof on account of particular factors. At respondent illegal alien's deportation hearing, the Immigration Judge applied the § 243(h) "more likely than not" proof standard to her § 208(a) asylum claim, holding that she had not established "a clear probability of persecution" and therefore was not entitled to relief. The Board of Immigration Appeals (BIA) affirmed, but the Court of Appeals reversed, holding that § 208(a)'s "well-founded fear" standard is more generous than the § 243(h) standard in that it only requires asylum applicants to show either past persecution or "good reason" to fear future persecution. Accordingly, the asylum claim was remanded so that BIA could evaluate it under the proper legal standard.

Held: The § 243(h) "clear probability" standard of proof does not govern asylum applications under § 208(a). Pp. 427-449.

(a) The plain meaning of the statutory language indicates a congressional intent that the proof standards under §§ 208(a) and 243(h) should differ. Section 243(h)'s "would be threatened" standard has no subjective component, but, in fact, requires objective evidence that it is more likely than not that the alien will be subject to persecution upon deportation. In contrast, § 208(a)'s reference to "fear" makes the asylum eligibility determination turn to some extent on the alien's subjective mental state, and the fact that the fear must be "well founded" does not transform the standard into a "more likely than not" one. Moreover, the different emphasis of the two standards is highlighted by the fact that, although Congress simultaneously drafted § 208(a)'s new standard and amended § 243(h), it left § 243(h)'s old standard intact. Pp. 430–432.

(b) The legislative history demonstrates the congressional intent that different standards apply under §§ 208(a) and 243(h). Pp. 432-443.

(c) The argument of the Immigration and Naturalization Service (INS) that it is anomalous for § 208(a) to have a less stringent eligibility standard than § 243(h) since § 208(a) affords greater benefits than § 243(h) fails because it does not account for the fact that an alien who satisfies the § 208(a) standard must still face a discretionary asylum decision by the Attorney General, while an alien satisfying § 243(h)'s stricter standard is automatically entitled to withholding of deportation. Pp. 443-445.

(d) The INS's argument that substantial deference should be accorded BIA's position that the "well-founded fear" and "clear probability" standards are equivalent is unpersuasive, since the narrow legal question of identicality is a pure question of statutory construction within the traditional purview of the courts, and is not a question of case-by-case interpretation of the type traditionally left to administrative agencies. Pp. 445-448.

767 F. 2d 1448, affirmed.

STEVENS, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a concurring opinion, post, p. 450. SCALIA, J., filed an opinion concurring in the judgment, post, p. 452. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE, J., joined, post, p. 455.

Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Kuhl, Bruce N. Kuhlik, and David V. Bernal.

Dana Marks Keener argued the cause for respondent. With her on the brief was Bill Ong Hing.*

*Briefs of amici curiae urging affirmance were filed for the United Nations High Commissioner for Refugees by Ralph G. Steinhardt; for the American Civil Liberties Union et al. by Carol Leslie Wolchok, Burt Neuborne, Lucas Guttentag, Jack Novik, and Robert N. Weiner; for the American Immigration Lawyers Association by Ira J. Kurzban; for the International Human Rights Law Group et al. by E. Edward Bruce; and for the Lawyers Committee for Human Rights et al. by Richard F. Ziegler, Arthur C. Helton, Samuel Rabinove, Richard T. Foltin, Ruti G. Teitel, Steven M. Freeman, and Richard J. Rubin.