421

Opinion of the Court

JUSTICE STEVENS delivered the opinion of the Court.

Since 1980, the Immigration and Nationality Act has provided two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief. Section 243(h) of the Act, 8 U. S. C. § 1253(h), requires the Attorney General to withhold deportation of an alien who demonstrates that his "life or freedom would be threatened" on account of one of the listed factors if he is deported. In INS v. Stevic, 467 U. S. 407 (1984), we held that to qualify for this entitlement to withholding of deportation, an alien must demonstrate that "it is more likely than not that the alien would be subject to persecution" in the country to which he would be returned. Id., at 429-430. The Refugee Act of 1980, 94 Stat. 102, also established a second type of broader relief. Section 208(a) of the Act, 8 U. S. C. § 1158(a), authorizes the Attorney General, in his discretion, to grant asylum to an alien who is unable or unwilling to return to his home country "because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." § 101(a)(42), 8 U. S. C. § 1101(a)(42).

In Stevic, we rejected an alien's contention that the § 208(a) "well-founded fear" standard governs applications for withholding of deportation under § 243(h).' Similarly, today we reject the Government's contention that the §243(h) standard, which requires an alien to show that he is more likely than not to be subject to persecution, governs applications for asylum under § 208(a). Congress used different, broader language to define the term "refugee" as used in § 208(a) than it used to describe the class of aliens who have

'We explained that the Court of Appeals' decision had rested "on the mistaken premise that every alien who qualifies as a 'refugee' under the statutory definition is also entitled to a withholding of deportation under § 243(h). We find no support for this conclusion in either the language of §243(h), the structure of the amended Act, or the legislative history." INS v. Stevic, 467 U. S., at 428.

a right to withholding of deportation under § 243(h). The Act's establishment of a broad class of refugees who are eligible for a discretionary grant of asylum, and a narrower class of aliens who are given a statutory right not to be deported to the country where they are in danger, mirrors the provisions of the United Nations Protocol Relating to the Status of Refugees, which provided the motivation for the enactment of the Refugee Act of 1980. In addition, the legislative history of the 1980 Act makes it perfectly clear that Congress did not intend the class of aliens who qualify as refugees to be coextensive with the class who qualify for § 243(h) relief.

I

Respondent is a 38-year-old Nicaraguan citizen who entered the United States in 1979 as a visitor. After she remained in the United States longer than permitted, and failed to take advantage of the Immigration and Naturalization Service's (INS) offer of voluntary departure, the INS commenced deportation proceedings against her. Respondent conceded that she was in the country illegally, but requested withholding of deportation pursuant to § 243(h) and asylum as a refugee pursuant to § 208(a).

To support her request under §243(h), respondent attempted to show that if she were returned to Nicaragua her "life or freedom would be threatened" on account of her political views; to support her request under § 208(a), she attempted to show that she had a "well-founded fear of persecution" upon her return. The evidence supporting both claims related primarily to the activities of respondent's brother who had been tortured and imprisoned because of his political activities in Nicaragua. Both respondent and her brother testified that they believed the Sandinistas knew that the two of them had fled Nicaragua together and that even though she had not been active politically herself, she would be interrogated about her brother's whereabouts and

activities. Respondent also testified that because of her brother's status, her own political opposition to the Sandinistas would be brought to that government's attention. Based on these facts, respondent claimed that she would be tortured if forced to return.

The Immigration Judge applied the same standard in evaluating respondent's claim for withholding of deportation under § 243(h) as he did in evaluating her application for asylum under § 208(a). He found that she had not established "a clear probability of persecution" and therefore was not entitled to either form of relief. App. to Pet. for Cert. 27a. On appeal, the Board of Immigration Appeals (BIA) agreed that respondent had "failed to establish that she would suffer persecution within the meaning of section 208(a) or 243(h) of the Immigration and Nationality Act." Id., at 21a.

In the Court of Appeals for the Ninth Circuit, respondent did not challenge the BIA's decision that she was not entitled to withholding of deportation under § 243(h), but argued that she was eligible for consideration for asylum under § 208(a), and contended that the Immigration Judge and BIA erred in applying the "more likely than not" standard of proof from § 243(h) to her § 208(a) asylum claim. Instead, she asserted, they should have applied the "well-founded fear" standard, which she considered to be more generous. The court agreed. Relying on both the text and the structure of the Act, the court held that the "well-founded fear" standard which governs asylum proceedings is different, and in fact more generous, than the "clear probability" standard which governs withholding of deportation proceedings. 767 F. 2d 1448, 1452-1453 (1985). Agreeing with the Court of Appeals for the Seventh Circuit, the court interpreted the standard to require asylum applicants to present "specific facts' through objective evidence to prove either past persecution or 'good reason' to fear future persecution." Id., at 1453 (citing Carvajal-Munoz v. INS, 743 F. 2d 562, 574 (CA7 1984)).

The court remanded respondent's asylum claim to the BIA to evaluate under the proper legal standard. We granted certiorari to resolve a Circuit conflict on this important question.2 475 U. S. 1009 (1986).3

Compare Carcamo-Flores v. INS, 805 F. 2d 60 (CA2 1986); GuevaraFlores v. INS, 786 F. 2d 1242 (CA5 1986), cert. pending, No. 86-388; Cardoza-Fonseca v. INS, 767 F. 2d 1448 (CA9 1985) (case below); CarvajalMunoz v. INS, 743 F. 2d 562, 574 (CA7 1984); Youkhanna v. INS, 749 F.2d 360, 362 (CA6 1984); with Sankar v. INS, 757 F. 2d 532, 533 (CA3 1985).

The Third Circuit is the only Circuit to decide since our decision in INS v. Stevic, 467 U. S. 407 (1984), that the standards remain identical. It reached this conclusion, however, not because post-Stevic analysis compelled it, but because it considered itself bound by its pre-Stevic decision in Rejaie v. INS, 691 F. 2d 139 (1982). See Sankar, supra, at 533.

"We have considered whether this case has been rendered moot by the recent enactment of the Immigration Reform and Control Act of 1986. Pub. L. No. 99-603, 100 Stat. 3359. While nothing in that Act affects the statutory provisions related to asylum or withholding of deportation, Title II of the 1986 Act creates a mechanism by which certain aliens may obtain legalization of their status. Section 201(a) of the 1986 Act establishes that, with certain exceptions, an alien who has resided continuously in the United States in an unlawful status since before January 1, 1982, is entitled to have his or her status adjusted to that of an alien lawfully admitted for temporary residence. An alien who obtains this adjustment of status under the new Act is then eligible for a second adjustment to the status of permanent resident after a waiting period of 18 months. See § 245A(a). An alien who obtains permanent residence status through this route is not, however, eligible for all benefits usually available to permanent residents. For example, aliens who obtain permanent residence through this program are not eligible for certain public welfare benefits for five years after the grant of the new status. See § 245A(H).

The record indicates that respondent may well be eligible for eventual adjustment of status if she makes a timely application after the Attorney General establishes the procedures for administering Title II. It would therefore appear that respondent might become a permanent resident by invoking the new procedures even if she is unsuccessful in her pending request for asylum. Nonetheless the possibility of this relief does not render her request for asylum moot. First, the legalization provisions of the 1986 Act are not self-executing, and the procedures for administering the new Act are not yet in place. Even if the benefits were identical, therefore,

The Refugee Act of 1980 established a new statutory procedure for granting asylum to refugees. The 1980 Act added a new § 208(a) to the Immigration and Nationality Act of 1952, reading as follows:

"The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title." 94 Stat. 105, 8 U. S. C. §1158(a).

Under this section, eligibility for asylum depends entirely on the Attorney General's determination that an alien is a

there is no way of knowing at this time whether respondent will be able to satisfy whatever burden is placed upon her to demonstrate eligibility. Cf. INS v. Chadha, 462 U. S. 919, 937 (1983). Second, respondent might be able to obtain permanent residence through the asylum procedure sooner than through the legalization program; if she satisfies certain conditions, she may become eligible for adjustment of status to that of permanent resident 12 months after a grant of asylum. See 8 CFR §§ 209.1-209.2 (1986). Under Title II of the new Act, by contrast, there is an 18-month waiting period. In light of these factors, we are persuaded that the controversy is not moot.

Nor do we believe that the new Act makes it appropriate to exercise our discretion to dismiss the writ of certiorari as improvidently granted. The question presented in this case will arise, and has arisen, in hosts of other asylum proceedings brought by aliens who arrived in the United States after January 1, 1982, or who are seeking entry as refugees from other countries. The importance of the legal issue makes it appropriate for us to address the merits now.

'Prior to the amendments, asylum for aliens who were within the United States had been governed by regulations promulgated by the INS, pursuant to the Attorney General's broad parole authority. See n. 14, infra. Asylum for applicants who were not within the United States was generally governed by the now-repealed § 203(a)(7) of the Act, 8 U. S. C. § 1153(a)(7) (1976 ed.). See infra, at 433.