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SCALIA, J., concurring in judgment

legislators' intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent.

Even by its own lights, however, the Court's explication of the legislative history of the Act is excessive. The INS makes a number of specific arguments based upon the legislative history of the Act. It would have sufficed, it seems to me, for the Court to determine whether these specific arguments establish a "clearly expressed legislative intent" that the two standards be equivalent. I think it obvious that they do not, as apparently does the Court. That being so, there is simply no need for the lengthy effort to ascertain the import of the entire legislative history. And that effort is objectionable not only because it is gratuitous. I am concerned that it will be interpreted to suggest that similarly exhaustive analyses are generally appropriate (or, worse yet, required) in cases where the language of the enactment at issue is clear. I also fear that in this case the Court's conduct of that inquiry will be interpreted as a betrayal of its assurance that it does "not attempt to set forth a detailed description of how the well-founded fear test should be applied," ante, at 448. See, e. g., ante, at 438-440 (appearing to endorse a particular interpretation of "well-founded fear").

I am far more troubled, however, by the Court's discussion of the question whether the INS's interpretation of "wellfounded fear" is entitled to deference. Since the Court quite rightly concludes that the INS's interpretation is clearly inconsistent with the plain meaning of that phrase and the structure of the Act, see ante, at 431-432, 449, and n. 12, there is simply no need and thus no justification for a discussion of whether the interpretation is entitled to deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984) ("If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress" (footnote omitted)). Even more

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unjustifiable, however, is the Court's use of this superfluous discussion as the occasion to express controversial, and I believe erroneous, views on the meaning of this Court's decision in Chevron. Chevron stated that where there is no “unambiguously expressed intent of Congress," id., at 843, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency," id., at 844. This Court has consistently interpreted Chevron-which has been an extremely important and frequently cited opinion, not only in this Court but in the Courts of Appeals -as holding that courts must give effect to a reasonable agency interpretation of a statute unless that interpretation is inconsistent with a clearly expressed congressional intent. See, e. g., Japan Whaling Assn. v. American Cetacean Soc., 478 U. S. 221, 233-234 (1986); United States v. Fulton, 475 U. S. 657, 666-667 (1986); Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U. S. 707, 714 (1985); Chemical Manufacturers Assn. v. Natural Resources Defense Council, Inc., 470 U. S. 116, 125, 126 (1985). The Court's discussion is flatly inconsistent with this well-established interpretation. The Court first implies that courts may substitute their interpretation of a statute for that of an agency whenever, "[e]mploying traditional tools of statutory construction," they are able to reach a conclusion as to the proper interpretation of the statute. Ante, at 446. But this approach would make deference a doctrine of desperation, authorizing courts to defer only if they would otherwise be unable to construe the enactment at issue. This is not an interpretation but an evisceration of Chevron.

The Court also implies that courts may substitute their interpretation of a statute for that of an agency whenever they face "a pure question of statutory construction for the courts to decide," ante, at 446, rather than a "question of interpretation [in which] the agency is required to apply [a legal standard] to a particular set of facts," ante, at 448.

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POWELL, J., dissenting

No support is adduced for this proposition, which is contradicted by the case the Court purports to be interpreting, since in Chevron the Court deferred to the Environmental Protection Agency's abstract interpretation of the phrase "stationary source."

In my view, the Court badly misinterprets Chevron. More fundamentally, however, I neither share nor understand the Court's eagerness to refashion important principles of administrative law in a case in which such questions are completely unnecessary to the decision and have not been fully briefed by the parties.

I concur in the judgment.

JUSTICE POWELL, with whom THE CHIEF JUSTICE and JUSTICE WHITE join, dissenting.

Many people come to our country because they fear persecution in their homeland. Congress has provided two forms of relief for such people: asylum, see Immigration and Nationality Act of 1952, § 208(a), as added by 94 Stat. 105, 8 U. S. C. § 1158(a); and withholding of deportation, see 66 Stat. 212, §243(h), as amended, 94 Stat. 107, 8 U. S. C. § 1253(h). The Board of Immigration Appeals (BIA) has concluded that there is no practical distinction between the objective proofs an alien must submit to be eligible for these two forms of relief. The Court rejects this conclusion. Because I believe the BIA's interpretation of the statute is reasonable, I dissent.

I

The Court's opinion seems to assume that the BIA has adopted a rigorous mathematical approach to asylum cases, requiring aliens to demonstrate an objectively quantifiable risk of persecution in their homeland that is more than 50%. The Court then argues that such a position is inconsistent with the language and history of the Act. But this has never been the BIA's position. Thus, it is useful to examine the BIA's approach in some detail before evaluating the Court's

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rejection of the BIA's approach. After all, the BIA is the tribunal with the primary responsibility for applying the Act and the greatest experience in doing so.

The BIA's interpretation of the statutory term "wellfounded fear" appears in Matter of Acosta, Interim Decision No. 2986 (Mar. 1, 1985).' Under the BIA's analysis, an immigration judge evaluating an asylum application should begin by determining the underlying historical facts. The burden of persuasion rests on the applicant, who must establish the truth of these facts by a preponderance of the evidence. See id., at 7 (citing, inter alia, 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure §5.10b, p. 5-121 (rev. ed. 1986)).

Once the immigration judge has decided what historical facts the applicant has demonstrated, he then decides whether those facts meet the definition of "refugee" set forth in § 101(a)(42)(A) of the Act, 8 U. S. C. § 1101(a)(42)(A). The major point of contention in this case concerns that section's requirement that the fear be "well-founded.""

In

'The Court suggests that the BIA's interpretation of the "well-founded fear" standard has been "erratic." Ante, at 446-447, n. 30. An examination of the relevant BIA decisions leads to a contrary conclusion. The BIA first addressed the standard in Matter of Dunar, 14 I. & N. Dec. 310 (1973). In that case, the BIA considered the meaning of the term “wellfounded fear" in the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 6225, T.I.A.S. No. 6577 (1968). When Congress inserted this language in the asylum provisions of the Act in 1980, the BIA interpreted the language to mean exactly the same thing as the language in the Protocol. Matter of Acosta, Interim Decision No. 2986 (Mar. 1, 1985). Thus, the BIA's position has never changed. The Court bases its characterization of the BIA's record on decisions applying the more lenient "fear" standard. If anything about these statutes is clear, it is that a "well-founded fear" is something more than a "fear." It is unfair to characterize the BIA's decisions as “erratic" when the agency was in fact interpreting two different standards.

The BIA has interpreted the statutory definition to require proof of four elements: (i) the alien must have a "fear" of "persecution"; (ii) the fear must be "well-founded"; (iii) the persecution must be "on account of race,

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POWELL, J., dissenting

Acosta, the BIA adhered to the interpretation of that language it had developed in Matter of Dunar, 14 I. & N. Dec. 310 (1973):

"[T]he requirement that the fear be "well-founded" rules out an apprehension which is purely subjective. . . . Some sort of showing must be made and this can ordinarily be done only by objective evidence. The claimant's own testimony as to the facts will sometimes be all that is available; but the crucial question is whether the testimony, if accepted as true, makes out a realistic likelihood that he will be persecuted." Acosta, supra, at 18-19 (quoting Dunar, supra, at 319) (emphasis added by Acosta Board).

999

The Acosta Board went on to caution:

"By use of such words [as 'realistic likelihood'] we do not mean that 'a well-founded fear of persecution' requires an alien to establish to a particular degree of certainty, such as a 'probability' as opposed to a 'possibility,' that he will become a victim of persecution. Rather as a practical matter, what we mean can best be described as follows: the evidence must demonstrate that (1) the alien possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; (2) the persecutor is already aware, or could easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien." Acosta, supra, at 22.

Finally, the Acosta opinion compared this "realistic likelihood" standard to the "clear probability" standard applied to

religion, nationality, membership in a particular social group, or political opinion"; and (iv) the alien must be unable or unwilling to return to his homeland because of persecution or his well-founded fear of persecution. See id., at 11.