OCTOBER TERM, 1998
Syllabus
IMMIGRATION AND NATURALIZATION SERVICE
v.
AGUIRRE-AGUIRRE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 97-1754. Argued March 3, 1999-Decided May 3,1999
The Immigration and Nationality Act (INA) permits withholding of
deportation to a country when "the Attorney General determines that
[an] alien's life or freedom would be threatened in such country on
account of ... political opinion." 8 U. S. C. § 1253(h)(1). In
general, withholding is mandatory if an alien establishes that he
is more likely than not to "be subject to persecution on [that
ground],"
INS v.
Stevie, 467 U. S. 407,429-430.
However, as relevant here, it is not available if the Attorney
General finds that the alien committed a "serious nonpolitical
crime" before arriving in the United States, § 1253(h)(2)(C).
Respondent, a Guatemalan, requested,
inter alia, withholding
of his deportation by the Immigration and Naturalization Service.
He testified at an administrative hearing that, in protesting
various government policies and actions in Guatemala, he had burned
buses, assaulted passengers, and vandalized and destroyed private
property. The Immigration Judge granted his request, but the Board
of Immigration Appeals (BIA) vacated the order, finding that his
were "serious nonpolitical crime[s]." Applying the weighing test it
had developed in an earlier decision, the BIA concluded that the
common-law or criminal character of respondent's acts outweighed
their political nature. The Ninth Circuit remanded the case,
finding the BIA's analysis deficient in three respects:
It should have balanced respondent's admitted offenses against
the threat of persecution; it should have considered whether his
acts were grossly disproportionate to their alleged objective and
were atrocious, especially with reference to Circuit precedent; and
it should have considered the political necessity and success of
respondent's methods.
Held: In ruling that the BIA must supplement its weighing
test by examining these additional factors, the Ninth Circuit
failed to accord the BIA's interpretation the level of deference
required under
Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837. Pp.
423-433.
(a) Because the Ninth Circuit confronted questions implicating
"an agency's construction of the statute which it administers,"
that court should have asked whether "the statute is silent or
ambiguous with respect to the specific issue" before it, and, if
so, "whether the agency's
416
Syllabus
answer is based on a permissible construction of the statute."
Chevron, supra, at 843. It is clear that
Chevron
deference applies to this statutory scheme. The Attorney General is
charged with the INA's administration and enforcement, and §
1253(h) expressly makes an alien's entitlement to withholding turn
on the Attorney General's determination whether the statutory
conditions for withholding have been met. Judicial deference to the
Executive Branch is especially appropriate in the immigration
context.
INS v.
Abudu, 485 U. S. 94, 110. The
BIA, which is vested with the Attorney General's discretion and
authority in cases before it, should be accorded
Chevron
deference when it gives ambiguous statutory terms meaning through a
process of caseby-case adjudication.
INS v.
Cardoza-Fonseca, 480 U. S. 421, 448-449.
Pp. 423-425.
(b) The Ninth Circuit's error is clearest with respect to its
holding that the BIA must balance respondent's criminal acts
against his risk of persecution in Guatemala. The BIA has rejected
any such interpretation, and § 1253(h)'s text and structure are
consistent with that conclusion. By its terms, the statute requires
independent consideration of the persecution risk facing an alien
before granting withholding. It is reasonable to decide, as the BIA
has done, that this factor can be considered on its own and not
also as a factor in determining whether the crime itself is serious
and nonpolitical. A United Nations handbook relied on by the Ninth
Circuit is not binding on the Attorney General, the BrA, or the
United States courts. Pp. 425-428.
(c) The Ninth Circuit erred in finding that the BrA should have
considered whether respondent's acts were grossly disproportionate
to their alleged objective and atrocious in light of Circuit
precedent. The BIA does not dispute that such considerations may be
important in applying the serious nonpolitical crime exception.
However, the BIA's formulation does not purport to provide a
comprehensive definition of the exception, and the standard's full
elaboration should await further cases. The BIA's test identifies
the general standard whether an offense's political aspect
outweighs its common-law character and then provides two specific
inquiries that may be used in applying the rule: whether there is a
gross disproportion between means and ends, and whether the acts
are atrocious. Although an offense involving atrocious acts will
result in denial of withholding, an offense's criminal element may
outweigh its political aspect even if none of the acts are
atrocious. Thus, the BIA did not need to give express consideration
to atrociousness before determining that respondent had committed
serious nonpolitical crimes. This approach is consistent with the
statute, which does not equate every serious nonpolitical crime
with atro-
417
cious acts. Nor is there any reason to find such equivalence. In
common usage, "atrocious" suggests a deed more culpable and
aggravated than a serious one. In light of this conclusion, the
Court rejects the Ninth Circuit's suggestion that the BIA was
required to compare the facts of this case with Circuit precedent
on atrociousness. Pp. 428-431.
(d) The Ninth Circuit also erred to the extent it believed the
BrA had to give more express consideration to the necessity and
success of respondent's actions than it did. Although the Attorney
General has suggested that a crime will not be deemed political
unless it has a causal link to the alleged political purpose and
object, the BIA was required to do no more than find that
respondent's acts were not political based on the lack of
proportion with his objectives. Even with a clear causal
connection, a lack of proportion may render crimes nonpolitical.
Moreover, respondent had the burden of proving entitlement to
withholding, yet he failed to submit a brief to the BIA and the
Immigration Judge did not address this point. In these
circumstances, the BIA's rather cursory discussion does not warrant
reversal. Pp.431-432.
(e) The Court does not address respondent's argument, raised at
this late stage, that there are errors in the translation and
transcription of his testimony. Should the BIA determine
modification of the record is necessary, it can decide whether to
consider the withholding issue further. Pp. 432-433.
121 F.3d
521, reversed and remanded.
KENNEDY, J., delivered the opinion for a unanimous Court.
Patricia A. Millett argued the cause for petitioner. With her on
the briefs were Solicitor General Waxman, Assistant Attorney
General Hunger, Deputy Solicitor General Kneedler, Alison R.
Drucker, and M. Jocelyn Lopez Wright.
Nadine K. Wettstein argued the cause for respondent.
With her on the brief were Ira J. Kurzban, Karen Musalo, and
Carolyn Patty Blum. *
*Briefs of
amici curiae urging affirmance were filed for
the Massachusetts Law Reform Institute et al. by
Iris Gomez;
for the Lawyers Committee for Human Rights by
Sheldon E.
Hochberg; and for the Office of the United Nations High
Commissioner for Refugees by
Daniel Wolf, Regina Germain,
and
Andrew I. Schoenholtz.
418
JUSTICE KENNEDY delivered the opinion of the Court.
We granted certiorari to consider the analysis employed by the
Court of Appeals in setting aside a determination of the Board of
Immigration Appeals (BIA). The BIA ruled that respondent, a native
and citizen of Guatemala, was not entitled to withholding of
deportation based on his expressed fear of persecution for earlier
political activities in Guatemala. The issue in the case is not
whether the persecution is likely to occur, but whether, even
assuming it is, respondent is ineligible for withholding because he
"committed a serious nonpolitical crime" before his entry into the
United States. 8 U. S. C. § 1253(h)(2)(C). The beginning point for
the BIA's analysis was its determination that respondent, to
protest certain governmental policies in Guatemala, had burned
buses, assaulted passengers, and vandalized and destroyed property
in private shops, after forcing customers out. These actions, the
BIA concluded, were serious nonpolitical crimes. In reaching this
conclusion, it relied on a statutory interpretation adopted in one
of its earlier decisions,
Matter of McMullen, 19 1. & N.
Dec. 90 (BIA 1984), aff'd,
788 F.2d
591 (CA9 1986).
On appeal, the Court of Appeals for the Ninth Circuit concluded
the BIA had applied an incorrect interpretation of the serious
nonpolitical crime provision, and it remanded for further
proceedings. In the Court of Appeals' view, as we understand it,
the BIA erred by misconstruing the controlling statute and by
employing an analytical framework insufficient to take account of
the Court of Appeals' own precedent on this subject. According to
the court, the BIA erred in failing to consider certain factors,
including "the political necessity and success of Aguirre's
methods"; whether his acts were grossly out of proportion to their
objective or were atrocious; and the persecution respondent might
suffer upon return to Guatemala.
121 F.3d
521, 524 (1997).
419
We granted certiorari. 525 U. S. 808 (1998). We disagree with
the Court of Appeals and address each of the three specific areas
in which it found the BIA's analysis deficient. We reverse the
judgment of the court and remand for further proceedings.
I
The statutory provision for withholding of deportation that is
applicable here provides that "[t]he Attorney General shall not
deport or return any alien ... to a country if the Attorney General
determines that such alien's life or freedom would be threatened in
such country on account of race, religion, nationality, membership
in a particular social group, or political opinion." 8 U. S. C. §
1253(h)(1). The provision was added to the Immigration and
Nationality Act (IN A), 66 Stat. 166, 8 U. S. C. § 1101
et
seq. (1994 ed. and Supp. III), by the Refugee Act of 1980
(Refugee Act), Pub. L. 96-212, 94 Stat. 102. See
INS v.
Stevie, 467 U.
S. 407, 414-416, 421422 (1984). As a general rule, withholding
is mandatory if an alien "establish[es] that it is more likely than
not that [he] would be subject to persecution on one of the
specified grounds," id., at 429-430, but the statute has some
specific exceptions. As is relevant here, withholding does not
apply, and deportation to the place of risk is authorized, "if the
Attorney General determines that"
"there are serious reasons for considering that the alien has
committed a serious nonpolitical crime outside the United States
prior to the arrival of the alien in the United States." 8 U. S. C.
§ 1253(h)(2)(C).
Under the immigration laws, withholding is distinct from asylum,
although the two forms of relief serve similar purposes. Whereas
withholding only bars deporting an alien to a particular country or
countries, a grant of asylum permits an alien to remain in the
United States and to apply for permanent residency after one year.
See
INS v.
Cardoza-
420
Fonseca, 480 U. S. 421, 428-429,
n. 6 (1987). In addition, whereas withholding is mandatory unless
the Attorney General determines one of the exceptions applies, the
decision whether asylum should be granted to an eligible alien is
committed to the Attorney General's discretion.
Ibid. As a
consequence, under the law then in force, respondent was able to
seek asylum irrespective of his eligibility for withholding.
As an incidental point, we note that in the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L.
104-208, 110 Stat. 3009-546, Congress revised the withholding and
asylum provisions. The withholding provisions are now codified at 8
U. S. C. § 1231(b)(3) (1994 ed., Supp. III), and the asylum
provisions at § 1158. Under current law, as enacted by IIRIRA, the
Attorney General may not grant asylum if she determines "there are
serious reasons for believing that the alien has committed a
serious nonpolitical crime outside the United States prior to the
arrival of the alien in the United States." § 1158(b)(2)(A)(iii).
The parties agree IIRIRA does not govern respondent's case. See
IIRIRA, Tit. III-A, §§ 309(a), (c), 110 Stat. 3009-625; IIRIRA,
Div. C, Tit. VI-A, § 604(c), 110 Stat. 3009-692. Prior to IIRIRA,
in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. 104-132, Tit. IV-B, §413(f), 110 Stat. 1269,
Congress granted the Attorney General discretion to withhold
deportation when necessary to ensure compliance with the
international treaty upon which the Refugee Act was based, see
infra, at 427-429. This provision was made applicable to
"applications filed before, on, or after" April 24, 1996, "if final
action has not been taken on them before such date." AEDPA §
413(g), 110 Stat. 1269-1270. The BIA's decision constituted final
action when rendered on March 5, 1996, 8 CFR §243.1 (1995), App. to
Pet. for Cert. 12a, so AEDPA §413(f) was not applicable to
respondent's case.
421
We turn to the matter before us. In 1994, respondent was charged
with deportability by the Immigration and N aturalization Service
(INS) for illegal entry into the United States. Respondent conceded
deportability but applied for asylum and withholding. At a hearing
before an Immigration Judge respondent testified, through an
interpreter, that he had been politically active in Guatemala from
1989 to 1992 with a student group called Estudeante Syndic ado (ES)
and with the National Central Union political party. App. 19-20,
36-37. He testified about threats due to his political activity.
The threats, he believed, were from different quarters, including
the Guatemalan Government, right-wing government support groups,
and left-wing guerillas. App. to Pet. for Cert. 23a.
Respondent described activities he and other ES members engaged
in to protest various government policies and actions, including
the high cost of bus fares and the government's failure to
investigate the disappearance or murder of students and others.
App. 20-21; App. to Pet. for Cert. 22a-23a. For purposes of our
review, we assume that the amount of bus fares is an important
political and social issue in Guatemala. We are advised that bus
fare represents a significant portion of many Guatemalans' annual
living expense, and a rise in fares may impose substantial economic
hardship. See Brief for Massachusetts Law Reform Institute et al.
as
Amicus Curiae 18-19. In addition, government involvement
with fare increases, and other aspects of the transportation
system, has been a focus of political discontent in that country.
Id., at 16-21.
According to the official hearing record, respondent testified
that he and his fellow members would "strike" by "burning buses,
breaking windows or just attacking the police, police cars." App.
20. Respondent estimated that he participated in setting about 10
buses on fire, after dousing them with gasoline.
Id., at 46.
Before setting fire to the buses, he and his group would order
passengers to leave
422
the bus. Passengers who refused were stoned, hit with sticks, or
bound with ropes.
Id., at 46-47. In addition, respondent
testified that he and his group "would break the windows of ...
stores," "t[ake] the people out of the stores that were there," and
"throw everything on the floor."
Id., at 48.
The Immigration Judge granted respondent's applications for
withholding of deportation and for asylum, finding a likelihood of
persecution for his political opinions and activities if he was
returned to Guatemala. App. to Pet. for Cert. 31a-32a. The INS
appealed to the BIA. Respondent did not file a brief with the BIA,
although his request for an extension of time to do so was granted.
Brief for Petitioner 10, n. 6; Record 13-15. The BIA sustained the
INS's appeal from this decision, vacated the Immigration Judge's
order, and ordered respondent deported. App. to Pet. for Cert. 18a.
With respect to withholding, the BIA did not decide whether
respondent had established the requisite risk of persecution
because it determined that, in any event, he had committed a
serious nonpolitical crime within the meaning of §
1253(h)(2)(C).
In addressing the definition of a serious nonpolitical crime,
the BIA applied the interpretation it first set forth in
Matter
of McMullen, 19 1. & N. Dec., at 97-98: "In evaluating the
political nature of a crime, we consider it important that the
political aspect of the offense outweigh its common-law character.
This would not be the case if the crime is grossly out of
proportion to the political objective or if it involves acts of an
atrocious nature." In the instant case, the BIA found, "the
criminal nature of the respondent's acts outweigh their political
nature." App. to Pet. for Cert. 18a. The BIA acknowledged
respondent's dissatisfaction with the Guatemalan Government's
"seeming inaction in the investigation of student deaths and in its
raising of student bus fares."
Ibid. It said, however: "The
ire of the ES manifested itself disproportionately in the
destruction of property and
423
assaults on civilians. Although the ES had a political agenda,
those goals were outweighed by their criminal strategy of strikes
.... "
Ibid. The BIA further concluded respondent should not
be granted discretionary asylum relief in light of "the nature of
his acts against innocent Guatemalans."
Id., at 17a.
A divided panel of the Court of Appeals granted respondent's
petition for review and remanded to the BIA.
121
F.3d 521 (CA9 1997). According to the majority, the BIA's
analysis of the serious nonpolitical crime exception was legally
deficient in three respects. First, the BIA should have
"consider[ed] the persecution that Aguirre might suffer if returned
to Guatemala" and "balance[d] his admitted offenses against the
danger to him of death."
Id., at 524. Second, it should have
"considered whether the acts committed were grossly out of
proportion to the[ir] alleged objective" and were "of an atrocious
nature," especially with reference to Ninth Circuit precedent in
this area.
Ibid. (internal quotation marks and citation
omitted). Third, the BIA "should have considered the political
necessity and success of Aguirre's methods."
Id., at
523-524.
Judge Kleinfeld dissented. In his view, "[t]he BIA correctly
identified the legal question, whether 'the criminal nature of the
respondent's acts outweigh their political nature.'"
Id., at
524 (quoting
McMullen v.
INS, 788
F.2d 591, 592 (CA9 1986)). Given the violent nature of
respondent's acts, and the fact the acts were in large part
directed against innocent civilians, the BIA "reasonably
conclude[d] that [his] crimes were disproportionate to his
political objectives." 121 F. 3d, at 525.
II
As an initial matter, the Court of Appeals expressed no
disagreement with the Attorney General or the BIA that the phrase
"serious nonpolitical crime" in § 1253(h)(2)(C) should be applied
by weighing "the political nature" of an act against its
"common-law" or "criminal" character. See Mat-
424
ter of McMullen, supra, at 97-98; App. to Pet. for Cert.
18a;
Deportation Proceedings for Doherty, 13 Op. Off. Legal
Counsell, 23 (1989) (an act" 'should be considered a serious
nonpolitical crime if the act is disproportionate to the
objective"') (quoting
McMullen v.
INS, supra, at
595), rev'd on other grounds,
Doherty v.
INS,
908 F.2d
1108 (CA2 1990), rev'd,
502 U. S. 314 (1992). Nor
does respondent take issue with this basic inquiry.
The Court of Appeals did conclude, however, that the BIA must
supplement this weighing test by examining additional factors. In
the course of its analysis, the Court of Appeals failed to accord
the required level of deference to the interpretation of the
serious nonpolitical crime exception adopted by the Attorney
General and BIA. Because the Court of Appeals confronted questions
implicating "an agency's construction of the statute which it
administers," the court should have applied the principles of
deference described in
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 842
(1984). Thus, the court should have asked whether "the statute is
silent or ambiguous with respect to the specific issue" before it;
if so, "the question for the court [was] whether the agency's
answer is based on a permissible construction of the statute."
Id., at 843. See also
INS v.
Cardoza-Fonseca,
480 U. S., at 448-449.
It is clear that principles of
Chevron deference are
applicable to this statutory scheme. The INA provides that "[t]he
Attorney General shall be charged with the administration and
enforcement" of the statute and that the "determination and ruling
by the Attorney General with respect to all questions of law shall
be controlling." 8 U. S. C. § 1103(a)(1) (1994 ed., Supp. III).
Section 1253(h), moreover, in express terms confers decisionmaking
authority on the Attorney General, making an alien's entitlement to
withholding turn on the Attorney General's "determin[ation]"
whether the statutory conditions for withholding have been
425
met. 8 U. S. C. §§ 1253(h)(1), (2). In addition, we have
recognized that judicial deference to the Executive Branch is
especially appropriate in the immigration context where officials
"exercise especially sensitive political functions that implicate
questions of foreign relations."
INS v.
Abudu, 485 U.
S. 94, 110 (1988). A decision by the Attorney General to deem
certain violent offenses committed in another country as political
in nature, and to allow the perpetrators to remain in the United
States, may affect our relations with that country or its
neighbors. The judiciary is not well positioned to shoulder primary
responsibility for assessing the likelihood and importance of such
diplomatic repercussions.
The Attorney General, while retaining ultimate authority, has
vested the BIA with power to exercise the "discretion and authority
conferred upon the Attorney General by law" in the course of
"considering and determining cases before it." 8 CFR § 3.1(d)(1)
(1998). Based on this allocation of authority, we recognized in
Cardoza-Fonseca, supra, that the BIA should be accorded
Chevron deference as it gives ambiguous statutory terms
"concrete meaning through a process of case-by-case adjudication"
(though we ultimately concluded that the agency's interpretation in
that case was not sustainable). 480 U. S., at 448-449. In the case
before us, by failing to follow
Chevron principles in its
review of the BIA, the Court of Appeals erred.
A
The Court of Appeals' error is clearest with respect to its
holding that the BIA was required to balance respondent's criminal
acts against the risk of persecution he would face if returned to
Guatemala. In
Matter of RodriguezCoto, 19 1. & N. Dec.
208, 209-210 (1985), the BIA "reject[ed] any interpretation of the
phras[e] ... 'serious nonpolitical crime' in [§ 1253(h)(2)(C)]
which would vary with the nature of evidence of persecution." The
text and structure of § 1253(h) are consistent with this
conclusion. Indeed, its
426
words suggest that the BIA's reading of the statute, not the
interpretation adopted by the Court of Appeals, is the more
appropriate one. As a matter of plain language, it is not obvious
that an already-completed crime is somehow rendered less serious by
considering the further circumstance that the alien may be subject
to persecution if returned to his home country. See
ibid.
("We find that the modifie[r] ... 'serious' ... relate[s] only to
the nature of the crime itself").
It is important, too, as
Rodriguez-Coto points out,
id., at 209-210, that for aliens to be eligible for
withholding at all, the statute requires a finding that their "life
or freedom would be threatened in [the country to which deportation
is sought] on account of their race, religion, nationality,
membership in a particular social group, or political opinion," i.
e., that the alien is at risk of persecution in that
country. 8 D. S. C. § 1253(h)(1). By its terms, the statute thus
requires independent consideration of the risk of persecution
facing the alien before granting withholding. It is reasonable to
decide, as the BIA has done, that this factor can be considered on
its own and not also as a factor in determining whether the crime
itself is a serious, nonpolitical crime. Though the BIA in the
instant case declined to make findings respecting the risk of
persecution facing respondent, App. to Pet. for Cert. 18a, this was
because it determined respondent was barred from withholding under
the serious nonpolitical crime exception.
Ibid. The BIA, in
effect, found respondent ineligible for withholding even on the
assumption he could establish a threat of persecution. This
approach is consistent with the language and purposes of the
statute.
In reaching the contrary conclusion and ruling that the risk of
persecution should be balanced against the alien's criminal acts,
the Court of Appeals relied on a passage from the Office of the
United Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status (Geneva,
1979) (D. N. Handbook).
427
We agree the U. N. Handbook provides some guidance in construing
the provisions added to the INA by the Refugee Act.
INS v.
Cardoza-Fonseca, 480 U. S., at 438-439, and n. 22. As we
explained in
Cardoza-Fonseca, "one of Congress' primary
purposes" in passing the Refugee Act was to implement the
principles agreed to in the 1967 United Nations Protocol Relating
to the Status of Refugees, Jan. 31, 1967, 19 U. S. T. 6224, T. 1.
A. S. No. 6577 (1968), to which the United States acceded in 1968.
480 U. S., at 436-437. The Protocol incorporates by reference
Articles 2 through 34 of the United Nations Convention Relating to
the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951),
reprinted in 19 U. S. T., at 6259, 6264-6276. The basic withholding
provision of § 1253(h)(1) parallels Article 33, which provides that
"[n]o Contracting State shall expel or return ('refouler') a
refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social
group or political opinion."
Id., at 6276. The Convention,
in a part incorporated by the Protocol, also places certain limits
on the availability of this form of relief; as pertinent here, the
Convention states that its provisions "shall not apply to any
person with respect to whom there are serious reasons for
considering that ... he has committed a serious non-political crime
outside the country of refuge prior to his admission to that
country as a refugee." Convention Art. I(F)(b), 19 U. S. T., at
6263-6264. Paragraph 156 of the U. N. Handbook, the portion relied
upon by the Court of Appeals, states that in applying the serious
nonpolitical crime provision of Convention Art. I(F)(b), "it is ...
necessary to strike a balance between the nature of the offence
presumed to have been committed by the applicant and the degree of
persecution feared .... "
The U. N. Handbook may be a useful interpretative aid, but it is
not binding on the Attorney General, the BIA, or United States
courts. "Indeed, the Handbook itself dis-
428
claims such force, explaining that 'the determination of refugee
status under the 1951 Convention and the 1967 Protocol ... is
incumbent upon the Contracting State in whose territory the refugee
finds himself.'"
INS v.
Cardoza-Fonseca, 480 U. S.,
at 439, n. 22 (quoting U. N. Handbook ~ (ii), at 1). See also 480
U. S., at 439, n. 22 ("We do not suggest, of course, that the
explanation in the U. N. Handbook has the force of law or in any
way binds the INS ... "). For the reasons given,
supra, at
425-426, we think the BIA's determination that § 1253(h)(2)(C)
requires no additional balancing of the risk of persecution rests
on a fair and permissible reading of the statute. See also
T. v.
Secretary of State for the Home Dept., 2 All E.
R. 865, 882 (H. L. 1996) (Lord Mustill) ("[T]he crime either is or
is not political when committed, and its character cannot depend on
the consequences which the offender may afterwards suffer if he is
returned").
B
Also relying on the U. N. Handbook, the Court of Appeals held
that the BIA "should have considered whether the acts committed
were 'grossly out of proportion to the alleged objective.' ... The
political nature of the offenses would be 'more difficult to
accept' if they involved 'acts of an atrocious nature.'" 121 F. 3d,
at 524 (quoting U. N. Handbook ~ 152, at 36). The court further
suggested that the BIA should have considered prior Circuit case
law that "cast[s] light on what under the law are acts of [an]
atrocious nature." 121 F. 3d, at 524. Citing its own opinion
affirming the BIA's decision in
Matter of McMullen, see
McMullen v.
INS, 788 F. 2d 591 (CA9 1986), the Court
of Appeals stated that "[a] comparison of what the
McMullen
court found atrocious with the acts committed by Aguirre suggests a
startling degree of difference." 121 F. 3d, at 524. It reasoned
that while
McMullen had involved "indiscriminate bombing,
murder, torture, [and] the maiming of innocent civilians,"
respondent's "only acts against innocent Guatemalans were
429
the disruption of some stores and his use of methods that we
would all find objectionable if practiced upon us on a bus in the
United States but which fall far short of the kind of atrocities
attributed to McMullen and his associates." 121 F. 3d, at 524.
We do not understand the BIA to dispute that these
considerations-gross disproportionality, atrociousness, and
comparisons with previous decided cases-may be important in
applying the serious nonpolitical crime exception. In fact, by the
terms of the BIA's test (which is similar to the language quoted by
the Court of Appeals from the U. N. Handbook), gross disproportion
and atrociousness are relevant in the determination. According to
the BIA: "In evaluating the political nature of a crime, we
consider it important that the political aspect of the offense
outweigh its common-law character. This would not be the case if
the crime is grossly out of proportion to the political objective
or if it involves acts of an atrocious nature."
Matter of
McMullen, 19 1. & N. Dec., at 97-98. See also
Deportation Proceedings for Doherty, 13 Op. Off. Legal
Counsel, at 22-26, rev'd on other grounds,
Doherty v.
INS, 908 F. 2d
1108 (CA2 1990), rev'd,
502 U. S. 314 (1992). The
BIA's formulation does not purport to provide a comprehensive
definition of the § 1253(h)(2)(C) exception, and the full
elaboration of that standard should await further cases, consistent
with the instruction our legal system always takes from considering
discrete factual circumstances over time. See also 13 Op. Off.
Legal Counsel, at 23 ("[T]he statute recognizes that cases
involving alleged political crimes arise in myriad circumstances,
and that what constitutes a 'serious nonpolitical crime' is not
susceptible of rigid definition"). Our decision takes into account
that the BIA's test identifies a general standard (whether the
political aspect of an offense outweighs its common-law character)
and then provides two more specific inquiries that may be used in
applying the rule: whether there is a gross disproportion between
means and
430
ends, and whether atrocious acts are involved. Under this
approach, atrocious acts provide a clear indication that an alien's
offense is a serious nonpolitical crime. In the BIA's judgment,
where an alien has sought to advance his agenda by atrocious means,
the political aspect of his offense may not fairly be said to
predominate over its criminal character. Commission of the acts,
therefore, will result in a denial of withholding. The criminal
element of an offense may outweigh its political aspect even if
none of the acts are deemed atrocious, however. For this reason,
the BIA need not give express consideration to the atrociousness of
the alien's acts in every case before determining that an alien has
committed a serious nonpolitical crime.
The BIA's approach is consistent with the statute, which does
not equate every serious nonpolitical crime with atrocious acts.
Cf. 8 U. S. C. § 1253(h)(2)(B) (establishing an exception to
withholding for a dangerous alien who has been convicted of a
"particularly serious crime," defined to include an "aggravated
felony"). Nor is there any reason to find this equivalence under
the statute. In common usage, the word "atrocious" suggests a deed
more culpable and aggravated than a serious one. See Webster's
Third New International Dictionary 139 (1971) (defining "atrocious"
as, "marked by or given to extreme wickedness ... [or] extreme
brutality or cruelty"; "outrageous: violating the bounds of common
decency"; "marked by extreme violence: savagely fierce: murderous";
"utterly revolting: abominable"). As a practical matter, if
atrocious acts were deemed a necessary element of all serious
nonpolitical crimes, the Attorney General would have severe
restrictions upon her power to deport aliens who had engaged in
serious, though not atrocious, forms of criminal activity. These
restrictions cannot be discerned in the text of § 1253(h), and the
Attorney General and BIA are not bound to impose the restrictions
on themselves.
431
In the instant case, the BIA determined that "the criminal
nature of the respondent's acts outweigh their political nature"
because his group's political dissatisfaction "manifested itself
disproportionately in the destruction of property and assaults on
civilians" and its political goals "were outweighed by [the
group's] criminal strategy of strikes." App. to Pet. for Cert. 18a.
The BIA concluded respondent had committed serious nonpolitical
crimes by applying the general standard established in its prior
decision, so it had no need to consider whether his acts might also
have been atrocious. The Court of Appeals erred in holding
otherwise.
We further reject the Court of Appeals' suggestion that reversal
was required due to the BIA's failure to compare the facts of this
case with those of
McMullen. The court thought doing so was
necessary because of the guidance provided by
McMullen on
the meaning of atrociousness. In light of our holding that the BIA
was not required expressly to consider the atrociousness of
respondent's acts, the BIA's silence on this point does not provide
a ground for reversal.
C
The third reason given by the Court of Appeals for reversing the
BIA was what the court deemed to be the BIA's failure to consider
respondent's "offenses in relation to [his] declared political
objectives" and to consider "the political necessity and success of
[his] methods." 121 F. 3d, at 523-524. As we have discussed,
supra, at 422-423 and this page, the BIA did address the
relationship between respondent's political goals and his criminal
acts, concluding that the violence and destructiveness of the
crimes, and their impact on civilians, were disproportionate to his
acknowledged political objectives. To the extent the court believed
the BIA was required to give more express consideration to the
"necessity" and "success" of respondent's actions, it erred.
432
It is true the Attorney General has suggested that a crime will
not be deemed political unless there is a "'close and direct causal
link between the crime committed and its alleged political purpose
and object.' "
Deportation Proceedings for Doherty, 13 Op.
Off. Legal Counsel, at 23 (quoting
McMullen v.
INS,
788 F.2d
591 (CA9 1986)). The BIA's analysis, which was quite
brief in all events, did not explore this causal link beyond noting
the general disproportion between respondent's acts and his
political objectives. Whatever independent relevance a causal link
inquiry might have in another case, in this case the BIA determined
respondent's acts were not political based on the lack of
proportion with his objectives. It was not required to do more.
Even in a case with a clear causal connection, a lack of proportion
between means and ends may still render a crime nonpolitical.
Moreover, it was respondent who bore the burden of proving
entitlement to withholding, see 8 CFR § 208. 16(c)(3) (1995) ("If
the evidence indicates that one or more of the grounds for denial
of withholding of deportation ... apply, the applicant shall have
the burden of proving by a preponderance of the evidence that such
grounds do not apply"). He failed to submit a brief on the causal
link or any other issue to the BIA, and the decision of the
Immigration Judge does not address the point. In these
circumstances, the rather cursory nature of the BIA's discussion
does not warrant reversal.
III
Finally, respondent contends the record of his testimony before
the Immigration Judge contains errors. He testified in Spanish and
now contends there are errors in translation and transcription.
Brief for Respondent 11-22. Respondent advanced this argument for
the first time in his Brief in Opposition to Certiorari in this
Court, see Brief in Opposition 1-5, having failed to raise it
before either the BIA or the Court of Appeals. We decline to
address the argument at this late stage.
433
Respondent has filed a motion in the BIA for a new hearing in
light of the alleged errors. App. to Brief for Respondent la-6a.
Should the BIA determine modification of the record is necessary,
it can determine whether further consideration of the withholding
issue is warranted.
***
The reasons given by the Court of Appeals for reversing the BIA
do not withstand scrutiny. We reverse the judgment of the Court of
Appeals and remand the case for further proceedings consistent with
this opinion.
It is so ordered.
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