Doe v. Immigration and Naturalization Service

Abstract

The plaintiff, a Chinese citizen who entered the United States under a nonimmigrant student visa, appealed from a decision by the Immigration and Naturalization Service (INS) to deny his request for asylum. Plaintiff claimed that he had a “well-founded fear of persecution,” the prerequisite to attaining “refugee” status under the Immigration and Nationality Act of 1952 (the Act) and implementing regulations promulgated by the INS. He also claimed that the immigration judge had erred by refusing to obtain a second advisory opinion from the Department of State’s Bureau of Human Rights and Humanitarian Affairs (BHRHA). The U.S. Court of Appeals for the Sixth Circuit (per Nelson, J.) held that (1) the immigration judge had abused his discretion by not requesting a second advisory opinion from the BHRHA; and (2) the judge had incorrectly applied an objective standard in evaluating plaintiffs asylum request, when credible evidence demonstrated that plaintiff had a subjectively valid fear of persecution if deported to China. The court remanded the case to the immigration judge with instructions to obtain a second opinion from the BHRHA and to consider plaintiffs asylum request on the assumption that he qualified as a “refugee.”