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A Latinx Resource Guide: Civil Rights Cases and Events in the United States

1987: INS v. Cardoza-Fonseca

"This argument sorely fails because it does not take into account the fact that an alien who satisfies the applicable standard under 208(a) does not have a right to remain in the United States; he or she is simply eligible for asylum, if the Attorney General, in his discretion, chooses to grant it."

—Justice John Paul Stevens

New York - Welcome to the land of freedom - An ocean steamer passing the Statue of Liberty: Scene on the steerage deck / from a sketch by a staff artist. 1887. Library of Congress Prints and Photographs Division.

Nicaraguan Luz Maria Cardoza-Fronseca entered the United States in 1979 on a non-immigrant permit and overstayed her visit. When she refused to depart voluntarily, the Immigration and Naturalization Services (INS) opened deportation proceedings against her.

Cardoza-Fonseca looked to sections 208(a) and 243(h) of the Immigration and Nationality Act to avoid deportation. Under the first sections, she could attain political asylum through a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion”. Under the second, she could legally stay in the U.S. by claiming a “clear probability of persecution” upon returning to Nicaragua. Cardoza-Fonseca testified that Sandinistas had tortured her brother because of his political alignment with overthrown President, Anastasio Somoza Jr. Cardoza-Fonseca feared for her safety by extension as a relation.

The immigration judge rejected Cardoza-Fonseca's argument, claiming she did not provide evidence of  "clear probability of persecution”, and without such evidence she could not avoid deportation under 243(h) and file for political asylum under 208(a). Cardoza-Fonseca appealed to the Board of Immigration Appeals (BIA), which upheld the ruling. The United States Court of Appeals for the Ninth Circuit eventually reversed the decision, stating that proceedings under 208(a) and 232(h) are distinct and that the “clear probability of danger” could not be applied to both and that “well-founded fear” under 208(a), which grants political asylum, was more considerate than “clear probability.”

The United States appealed to the Supreme Court, which ruled that “clear probability of persecution” did not apply to section 208(a) to request for political asylum. Justice John Paul Stevens wrote the majority opinion on behalf of Cardoza-Fonseca and held that two separate standards apply to section 243(h) and section 208(a), which enabled broader definition for the word “refugee”.


1979  The Sandinistas gain control of the government after overthrowing President Anastasio Somoza Jr.
June 25, 1979 Luz Maria Cardoza-Fronseca enters the U.S. from Nicaragua with a non-immigrant permit.
March 12, 1980 US House and Senate pass the Refugee Act of 1980 guaranteeing resettlement to refugees arriving in the U.S.
December 14, 1981 Cardoza-Fonseca has a hearing with an immigration judge who denies her U.S. asylum and deportation protection.
October 7, 1986 The U.S. Supreme Court hears arguments.
March 9, 1987 The Supreme Court issues its opinions on behalf of Cardoza-Fronseca and rules that separate standards apply to Section 243(h) and Section 208(a).


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