INS v. AGUIRRE-AGUIRRE
While the Immigration and Nationality Act (INA) provides asylum to aliens who can demonstrate that they will be persecuted if deported, it does not protect aliens who commit "serious nonpolitical crimes" before their arrival in the United States. After burning busses, assaulting passengers, and vandalizing private property in his native Guatemala, Juan Aguiree fled to and, sought asylum in, the United States. Despite Aguirre's claims that his acts constituted political protest, the Board of Immigration Appeals (BIA) overturned an administrative court's finding in favor of asylum. On appeal, the Ninth Circuit reversed as it found the BIA's analysis deficient in three parts: it failed to balance the severity of Aguirre's offenses against the threat of political persecution; it failed to qualify the atrocities of Aguiree's acts in comparison with others it faced in the past; and it did not consider whether Aguree's acts were politically necessary or successful. When the Immigration and Naturalization Service (INS) appealed, the Supreme Court granted certiorari.
Does the Immigration and Nationality Act require deportation boards, who face aliens that committed nonpolitical crimes prior to seeking asylum, to: balance the severity of the alien's offenses against the threat of political persecution, compare the atrocities of the crimes with others it faced in the past, or consider whether the crimes were politically necessary or successful?
Legal provision: Immigration and Naturalization, Immigration, Nationality, or Illegal Immigration Reform and Immigrant Responsibility Acts, as amended
No. In a unanimous opinion, the Court noted that withholding of deportation is mandatory if an alien establishes that it is more likely than not that he or she will suffer political persecution if deported. The Court added that the BIA was not required to balance the severity of the acts in question against threats of political persecution, compare the actions with others, or pronounce on their political success or necessity. Likelihood of political persecution is the overarching issue when considering an alien's deportability, followed by a determination of whether the crimes at issue were serious and nonpolitical.
Argument of Patricia A. Millett
Chief Justice Rehnquist: We'll hear argument first this morning in Number 97-1754, Immigration and Naturalization Service v. Juan Anibal Aguirre.
Is that the correct pronunciation of your name?
Ms Millett: Yes.
Mr. Chief Justice, and may it please the Court:
In the Immigration and Nationality Act, Congress expressly invested in the Attorney General the authority to determine whether an alien who has committed a serious, nonpolitical crime should be denied withholding of deportation.
Congress further made clear that once the Attorney General has serious reasons for considering that such a crime occurred, the bar on withholding is mandatory.
The issue in this case is whether the Attorney General, through the Board of Immigration Appeals, had serious reasons for considering that respondent's acts of burning buses, destroying private stores, and hitting, binding, and stoning innocent civilians constituted serious nonpolitical crimes.
Justice Breyer: What, by the way, if you have a chance, are we supposed to do about the fact that the individual now says that isn't a correct translation; he didn't stone any individuals.
What he said was, he threw stones against the side of the bus or something to stop the bus, but they didn't actually throw stones at individuals, which might be important.
What should we do about that?
Ms Millett: First of all, we disagree it is important, but even if the Court considered that it was, the respondent has filed a motion to remand with the Board of Immigration Appeals and, I think consistent with this Court's decision in Stone v. INS, this Court can go ahead and proceed to review the judgment that's before it and allow that motion to proceed on its own track.
Chief Justice Rehnquist: Well, this tape question is a very late-in-the-day thing, is it not?
Ms Millett: It most certainly is.
It didn't appear until the brief in opposition in this Court, and that was...
Chief Justice Rehnquist: It wasn't presented to the Ninth Circuit at all.
Ms Millett: Not at all, even though the same counsel represented Mr. Aguirre there, but that... again, the motion is pending before the Board of Immigration Appeals.
We believe it should have no impact on this Court's resolution of this case, or ability to proceed and decide this case.
Justice O'Connor: Now, it is suggested by the respondent that somehow the board's and the Government's interpretation of the statutory standard differs in some way from that recommended pursuant to the convention and the protocol that bind other nations generally.
Ms Millett: Uh-huh.
Justice O'Connor: The language in the convention and protocol looks about the same, but they say the Handbook somehow establishes a more egregious standard.
How have other countries interpreted the protocol and the convention, do we know?
Ms Millett: In this particular regard, on the question of balancing the risk of persecution there are a couple of other things...
Justice O'Connor: Uh-huh, yes.
Ms Millett: the Ninth Circuit required that haven't, as far as we know, been addressed by other countries.
But on the question of balancing the risk of persecution...
Justice O'Connor: Yes.
Ms Millett: there are two courts that have directly ruled on it, and they are split.
The Canadian court applied the balancing test that is recommended in the Handbook, without saying that it was compelled, but choosing to apply it.
The British House of Lords has held that the balancing test does not apply, so we have a one-one split.
The respondent... or, I'm sorry, the United Nations High Commissioner in his amicus brief also cites a decision from the French Commissioner of Refugees in a case called Pham, P-h-a-m.
That case, however, did not... first of all, has been vacated, and secondly did not address the serious nonpolitical crime exception.
It addressed Article 33's particularly serious crime of sexual...
Justice O'Connor: Is that question, whether there are serious reasons for considering that a particular offense qualifies as serious and nonpolitical, is that a question of fact or law, do you think?
Ms Millett: Well, it has two tiers.
Whether the test the Attorney General has adopted for identifying serious nonpolitical crimes could, of course, be reviewed for whether... its consistency with the statute, but because of the language that the Attorney General may determine, and because of the serious reasons for considering language, that would be an extremely deferential review.
If the test is legally correct, then the application of any facts in the record in a given case would be... against that test would be reviewed for substantial evidence.
Chief Justice Rehnquist: Is the U.N. convention binding on the United States?
Ms Millett: The convention is not.
The proto... the United States is a party to the protocol relating to the status of refugees, and that has incorporated virtually all of the provisions of the convention, including this definition of refugee, which includes... this portion of its definition of refugee, which includes a serious nonpolitical crime exception.
The only thing that is not carried over is the original limitations, original European limitations on the definition of refugee.
Justice Kennedy: Is the Handbook incorporated in the protocol?
Ms Millett: No, it is not.
In fact, we... nothing... nothing in the text of the protocol or the convention mentions, let alone compels, balancing the risk of persecution.
Justice Scalia: Nor in our statute.
Is that protocol self-executing?
Ms Millett: No, it is not, and so even... I guess even if it did, if the Attorney General's reasonable interpretation was that that had not been effectuated via United States law, again that would not become...
Justice Scalia: We need a statute that implements it.
If we don't have a statute that says you take into account the degree of persecution that will be received at home, then there just isn't a statute that does that.
Ms Millett: Absolutely, although again...
Justice Ginsburg: The protocol doesn't do that either, does it?
It's just the Handbook that sets up this balancing test, so there's no inconsistency.
In fact, our statute seems to be very close to the protocol.
There isn't a significant difference between those two.
Ms Millett: No, there is absolutely no, as we see, tension between the protocol or the convention and the United States law and the Attorney General's interpretation of that.
The only question is whether we are inconsistent with a recommendation in a Handbook written by the United Nations High Commissioner of Refugees.
Chief Justice Rehnquist: Why is that a question at all?
Ms Millett: Because that's what the Ninth Circuit relied on.
Justice O'Connor: Oh.
Ms Millett: It's not our question.
Justice Scalia: Well...
Ms Millett: We, in fact, agree and think it should not be a question.
The Attorney General was, of course, entitled to give that document weight if she chooses in interpreting the statute, but is not bound by it.
Justice Stevens: Well, now, as I understand the...
Justice Kennedy: Go on.
As I understand the respondent, they say, well, you can't really talk about McMullen proportionality, the seriousness of the crime in light of the political objectives, if you don't also talk about persecution, which I take it you're going to tell us is a non sequitur, or...
Ms Millett: Yes, that would be our position.
The test for a serious nonpolitical crime and the proportionality test that that applies are tests that focus on the character of the crime itself.
Whether someone later faces a risk of persecution for protected status or protected conduct has no bearing on whether an earlier committed crime had a serious nonpolitical character.
It either was or was not a serious nonpolitical crime when it was committed, and the fact that a risk of persecution materializes doesn't change that.
Chief Justice Rehnquist: Why not?
Justice Breyer: That is to say, why... you might think... normally words in statutes have a context, and suppose a person... your idea is you're just going to list every crime in the U. S. Code and put it on two lists, it's serious or not serious.
Well, I... why wouldn't you in this kind of situation, where you say a person, let's say, has a minor drug offense that you might consider serious.
Well, doesn't it make a difference whether we consider it serious for the purpose of the statute, whether that's seriousness because you called it that, it's so serious that it means the person will be sent back to the same country where he'll be killed immediately, as compared with, he'll be sent back to the same country rather than a different country, where he will serve 1 day's imprisonment?
I mean, I might think... you tell me... if this person's going to be killed because I have to send him back to the same country, I don't think that that previous marijuana crime is such a big deal.
If you tell me, well, we're going to send him back to the same country rather than a different country, and all that will happen, he'll spend 7 hours in a cell, I'll say, well, okay, I'll give it to you.
I mean, why not make that kind of all-factors considered?
You're doing that with nonpolitical.
Ms Millett: The first thing to keep in mind is, the question in this case is whether the Attorney General is compelled by the statute or the convention to adopt that approach.
Whether or not one thinks it would be a good approach to adopt, she most definitely is not, in our opinion, by the text, legislative history, drafting history of either the statute or the convention and protocol.
The second thing to keep in your mind is, you mentioned the history of terms.
The term nonpolitical crime does have a history.
It's a term with meaning in immigration... I'm sorry, in international law and in extradition law, and the balancing that the Attorney General has used to identify whether something is political or nonpolitical draws upon that history, but it is still... both of them are describing the crime itself.
The risk of persecution doesn't change the crime.
The question is whether it's a serious nonpolitical crime...
Justice Ginsburg: Ms. Millet, may I clarify... ask you to clarify one thing, because I think when Justice Breyer said, it's just you list everything in the U.S. Code as serious or not serious, do I understand correctly that in defining what is a nonpolitical crime, that the Attorney General is in sync with the Handbook, that the dissonance comes up only at the tail end on the question of, do you then balance against the risk of persecution.
But I thought in defining what is a nonpolitical crime it isn't simply a matter of going through the U.S. Code and saying this is serious and this is less serious.
Ms Millett: No, that is correct.
That is correct, and sometimes the analysis of serious and nonpolitical can overlap, but it's... as I explained, the term nonpolitical and the definition that the Attorney General has adopted is consistent with the Handbook, is consistent with the Ninth Circuit's at least prior articulation...
Justice Souter: But the Attorney General rejects the gross disproportionality test, as I understand it.
Ms Millett: The Attorney General rejects the notion that things have to be tantamount to atrocious conduct.
Justice O'Connor: Yes.
Ms Millett: How...
Justice Souter: Which I take it is what the Ninth Circuit was getting at on the second reason that it...
Ms Millett: Yes.
That is how we interpreted that.
Justice Scalia: Ms. Millett, do I have to give the Attorney General's interpretation deference if I think the Attorney General's interpretation may be wrong for a reason quite different from the reason that respondent here says?
Specifically, I don't care what the Handbook says.
I care what Congress passed and what the fair meaning of our statute is.
And, frankly, when I... I find it quite incredible that we are adopting an interpretation that takes into this country people who commit any crime at all, even murder, so long as it's for a political reason, and so long as it's not disproportionate.
Now, there's a totally different reading of political... non... I mean, I've never heard nonpolitical crime.
It's the opposite of a political crime.
And my normal understanding of a political crime is a crime whose definition... it's not the motivation of the criminal in committing a murder.
It's rather, the very definition of the crime is a political crime, such as the law in Cuba under which some journalists have just gone to jail because they criticized the Government in the press, a law that prohibits criticism of the Government, perhaps a law that prohibits... even a law that prohibits treason.
But when you're committing a crime that is independently criminal... murder, rape, whatever... the fact that you're doing it for a political motive, why should that make any difference as to whether we want those people in this country?
We don't allow those things to be done for political motives in this country.
Do we want to admit immigrants who have that philosophy?
Ms Millett: Well, that is a choice again for Congress and the executive branch, particularly Congress to make.
Justice Scalia: Well, all Congress said was, nonpolitical crime, and that's a perfectly reasonable interpretation of what a political crime consists of.
In fact, I think it's the more normal one.
It's not, you know, well, I murdered somebody, but it was proportionate.
It was really sort of necessary for my political goal.
We're admitting people on those bases?
Ms Millett: The question would be if... the way in which that would come up, and sometimes there are things that are so... how serious it is can be factored into whether or not it can even be accepted as nonpolitical.
Again, the history of the term political or nonpolitical is a contextual inquiry, and the more drastic means that are employed is often a factor.
On the other hand, someone who attempted to kill Hitler during World War II, or if they'd even, in fact, succeeded, would not necessarily have to be excluded from a country under this definition.
And there are...
Chief Justice Rehnquist: What about Lee Harvey Oswald, who succeeded in killing President Kennedy?
Is that a political crime?
Ms Millett: I don't think that would be the position of the United States, and I don't know whether it was a political motive...
Justice O'Connor: Well, no, but I mean...
Unidentified Justice: [Laughter]
Chief Justice Rehnquist: backing off and looking at it...
Ms Millett: Right.
Chief Justice Rehnquist: as an act of someone... an assassin, but who disagreed with the President and wanted him out of the way.
Could that be a political crime?
Ms Millett: Could the acts of an assassin ever be considered a political crime?
I think yes, the Attorney General would have the discretion to do that under this statute.
Justice Scalia: To assassinate Queen Elizabeth, to take a current and quite likely...
Unidentified Justice: [Laughter]
Justice Scalia: scenario, that, we'd have... we'd just weigh it, was it proportionate, you know.
Could he have achieved his end by some lesser means, maybe assassinating somebody else?
Unidentified Justice: [Laughter]
Justice Scalia: I find it extraordinary that that's what we're going to go through in deciding whether to admit people.
Ms Millett: Well, again, Justice Scalia, even if this Court finds it extraordinary, the question is what Congress and the executive branch have determined.
This is a question of...
Justice O'Connor: No.
No, it isn't.
Justice Scalia: If it's extraordinary, you shouldn't interpret the statute that way.
Ms Millett: If it's permitted by the plain language... it is not foreclosed.
It is not foreclosed by the plain language of the statute or the plain language of the convention.
In fact, we believe that that is the type of deference that the Attorney General was granted under...
Justice Souter: All right, but Ms. Millett, has the Attorney General ever, let's say, given a favorable interpretation to an allegedly political crime when the political objective was at least not an acceptable political objective to the Government of the United States?
Ms Millett: I'm having a little...
Justice Souter: Have we rewarded the enemies of our side, for example, during the Cold War... when the Attorney General looks to what is, let's say, the political motivation, the political side of the equation, does the Attorney General simply count as political those political objectives which are acceptable to the Government of the United States at the time?
Ms Millett: It's a larger inquiry than that, and for example, with the hypothetical about Queen Elizabeth, the Attorney General will also consider the structure of the country in which... first of all, we think it's perfectly... the Attorney General is free to consider political relations in this aspect of the test.
Justice O'Connor: So that somebody who tries to assassinate Saddam Hussein, with whom we're having a current disagreement, and who fails, and then wants to come here and get refugee status, we would take the position, the Attorney General would take the position possibly that that's... that that person is admissible, because we're having a disagreement with the regime?
Ms Millett: I hesitate to identify any particular leader or country or anything in a way that would suggest we would open the doors for killing or not, and in fact often an assassination...
Justice O'Connor: Well, I just want to know if that's possible...
Ms Millett: But whether...
Justice O'Connor: under your view.
Ms Millett: I mean, actually, historically in the late 1800s and early 1900s, the political offense exception to extradition often had in mind the lone assassin who would go and shoot a head of State, but the...
Justice O'Connor: So...
Ms Millett: The Attorney General would not...
Justice O'Connor: So the answer is yes, that person would be admissible, given refugee status, possibly?
Ms Millett: The... given... the question is withholding of deportation, not refugee status.
Possibly, yes, but what would the Attorney General consider...
Justice Scalia: I mean, you like Kennedy, you don't like Hitler.
It's a question of where Saddam falls in... you know, in that...
Unidentified Justice: [Laughter]
Ms Millett: What's more important... what is important...
Justice Ginsburg: on that graph.
Ms Millett: In the... what is important for the Attorney General to consider and has considered, in fact in the Doherty case that came before this Court a few years ago, is whether there is a... how there's... the means chosen relates to the ability to express and obtain... express political views and obtain political change in a given country.
In the United Kingdom, which was at issue in Doherty, the Attorney General concluded that it was a critical or an important factor that there are peaceful means for changing Government and expressing views in that country.
There may be countries and there may be times in this world when there will be a country and there is no way of safely protesting, expressing your view, or changing the Government, except through violence.
Now, that does not mean that all violence will be proper, or will be acceptable.
Justice Kennedy: I was going to suggest that this line of inquiry takes us somewhat far afield from the issues in this case, but maybe it doesn't.
Must we confront in this case the issue whether or not the political motivation of the crime bears on its political character, as opposed to, on the other hand, defining a category of crimes, speech, protest, that are political?
Must we do that in this case?
Ms Millett: I don't think there's any question that political motive is one factor, but it is not the exclusive or driving factor.
The question is whether it's a serious nonpolitical crime, not a serious nonpolitical criminal, and so the inquiry...
Justice Stevens: But it seems to me that as soon as you agree to that, and I... certainly that's the Attorney General's position, the question is not how political it was, but whether it was nonpolitical, and as soon as you've got any political ingredient in the incident involved, it cannot be described as totally nonpolitical.
Ms Millett: That is not something we agree with at all, Justice Stevens.
The term nonpolitical crime, as interpreted by the Attorney General, is a term with a history, and we're focusing on the crime, not the criminal.
And the history in international law, and in particular in extradition law, is a contextual inquiry.
It's quite clear that countries... in fact, the French test is an objective test that doesn't look at motivation at all.
Justice Stevens: Are you telling me that every case, every crime involving the burning of a couple of buses would always be nonpolitical?
Ms Millett: No, but there's not a bright line of yes it would be, or no it would not be for political... but what is clear is that the fact that they have a political motivation alone is not going to make that a political crime, any more than blowing up a Federal day care center in Oklahoma City is going to be considered political.
Justice Stevens: Let me be sure I understand your position.
The motivation, is it the motivation required to satisfy a statutory element of what the crime... how the crime is defined, or is it the motivation of the particular person who seeks withholding or deportation?
Ms Millett: Motivation is one factor in deciding what that... if what the person did qualifies as a nonpolitical crime.
It is only one factor.
Justice Stevens: But it's the motivation of the individual, not necessarily the term motive as used in the statutory definition of the crime, is that right?
Ms Millett: Yes.
Oh, it's... for mens rea, you mean, or...
Justice Stevens: Well, whatever the... whatever the term, mens rea, or intent, or malice, whatever.
It's not that term that you're talking about.
You're talking about the subjective intent of the defendant in the particular case.
Ms Millett: The subjective political motive is... yes...
Justice Scalia: Okay.
Ms Millett: is one factor, although again, in this contextual inquiry on the nature, of whether something is a political or nonpolitical crime, we look not only, again, at the motivation, but at the nature of the crime, and one factor that has been critically important in that analysis historically, and is now for the Attorney General, is whether civilians have been the target.
And a political motivation that takes... that vents its political anger on innocent civilians, as occurred here, is... carries a heavy presumption in international law and in the eyes of the Attorney General that it is non...
Justice O'Connor: Ms. Millett...
Justice Kennedy: But I...
Justice Ginsburg: let me go back to Justice Kennedy's question, because I am frankly getting lost.
I thought that it was the position of both the Attorney General and even the Ninth Circuit that we are dealing with a nonpolitical crime, and that the only question is, given that nonpolitical status of the crime, for whatever reason... I think Justice Scalia has suggested maybe it was the wrong reason for typing it a nonpolitical, but anyway, I thought that the Attorney General's position and the Ninth Circuit was, this falls in that category, but you still have to weigh the persecution.
I thought that's what this case was about.
Ms Millett: Well, there were a couple of other... it's not absolutely clear to me where the other two factors of the Ninth Circuit mentioned the atrociousness and the necessity and success, where they come into this calculus.
But certainly on a question of balancing the risk of persecution, it's only been argued about deciding whether or not it's serious.
And again, our position is not only that it is not compelled in any means by the statutory language, indeed it's a strained one, but also to keep in mind that adopting such a balancing test would result in a complicated matrix of withholding judgments under which you're going to be having varying degrees of seriousness of the crime weighed against varying gradations of actual threats to life and liberty, and the nature of those judgments reviewed by courts all over the country.
And the Attorney General has determined that not... because it's not compelled by the language, she elects not to impose that interpretive and administrative thicket on the withholding provision.
I would like to...
Justice Scalia: But you're already willing to make the, it seems to me, more difficult determination of how necessary it was for the political objective.
I mean, that requires a knowledge of the political situation in the country and so forth and so on.
That seems to me even harder than these other factors.
Ms Millett: And so the Attorney General is here opposing the adoption of a necessity test.
Justice Breyer: Is it right...
Justice Souter: May I ask you...
No, please go ahead.
May I ask you this question about the BIA's application of what it at least understood was the Attorney General's test?
The BIA stated in a rather conclusory way that here the, let's say the political character of the crime was outweighed by its seriousness, which it described as being great enough to come to the attention of the warring or the contending parties in Guatemala, which sounds to me as though it's saying, whenever the crime, given its political motivation, is effective in getting the attention of the political contenders, they've gone too far, that the criminality by definition at that point outweighs whatever political character they might have... it might have.
So it sounds as though, to put it crudely, nothing fails like success, seems to be the reasoning of the BIA here.
Would it be appropriate, even if we do not accept the Ninth Circuit's opinion, to send it back to the circuit, presumably to be sent back to the BIA to explain its reasons for concluding, as it did here, a little better than that conclusory reasoning that I've just characterized as if you're successful enough you necessarily fail under the statute?
Would that be appropriate?
Ms Millett: No, it would not, for two reasons.
First of all, it's the Ninth Circuit that wants to look at necessity and success, not the board.
The board's reference to the fact...
Justice Souter: Well, I thought... did I mischaracterize the board?
I didn't mean to.
Ms Millett: Well, I... the board's reference... the board's reference to the level, attracting the attention of the Governments was not to say you're disqualified because of that, but to use that to describe how much violence was involved against civilians here.
There was sufficient violence against civilians that it would attract this atten... this level of attention, so that is again evidence this was not, as the Ninth Circuit characterized, minimal or harmless violence...
Justice Souter: So you're saying it was emphasizing the violence rather than the merely criminal character of what was being done.
Ms Millett: The level of violence targeted at civilians is what was done.
I would like to reserve the...
Justice Kennedy: May I just ask one... I know that you want to reserve some time for rebuttal.
Are you saying that the crime is grossly out of proportional to the political objectives?
Ms Millett: Violence against civilians, in this case, yes, the board...
Justice Kennedy: And that's the test?
Ms Millett: I'm sorry.
Is... I'm sorry.
Justice Kennedy: And that's the test?
Ms Millett: The test is either proportion... a proportionality between the objective and the means used, or... or atrociousness.
I would like to reserve the balance of my time.
Justice Kennedy: Thank you, Ms. Millett.
Argument of Nadine K. Wettstein
Chief Justice Rehnquist: Ms. Wettstein, we'll hear from you.
Mr. Wettstein: Mr. Chief Justice, and may it please the Court:
I'd like to pick up on the point we just left off with Ms. Millett, that in answer to Justice Kennedy's question the Court does not have to grapple or decide on the difficult, what is a political crime, what is not a political crime.
The issue really facing the Court is whether or not the Board of Immigration Appeals properly reversed the decision of the immigration judge.
Chief Justice Rehnquist: Well, the issue before us is whether the court of appeals correctly decided this case, isn't it, and there are... the question presented is whether the court of appeals erred in reversing the decision of the BIA.
Maybe you see it as the same thing, but it isn't quite the same.
Mr. Wettstein: Well, Your Honor...
Chief Justice Rehnquist: If the Ninth Circuit was wrong, even if the BIA was wrong, that does not mean that we would simply say, go back to the BIA.
Mr. Wettstein: Your Honor, the BIA... rather, the court of appeals gave three reasons for reversing the BIA, and two of those three reasons were that the board did not correctly apply its own test set out in the Matter of McMullen, which is a BIA decision setting forth the standards for determining serious nonpolitical crime.
And to just clarify with Justice Ginsburg for a moment, nobody says that this is a political crime.
Everyone said that this was a... rather, no one said it's a nonpolitical crime.
Everyone said it's a political crime.
The board... the immigration judge held that it was a political crime.
The Board of Immigration Appeals did not say that it was on balance.
It said on balance that it was too serious to be political, but it didn't say that the motives were unpolitical, or nonpolitical.
In other words, the board misapplied its own... well, the board purported to apply the McMullen test, and it did not apply the five factors of the McMullen test, it only concluded as to one factor.
Justice Ginsburg: I really find that difficult to follow, because the McMullen test was a test that was said on the way to saying that the applicant there did not qualify for any dispensation.
So to take a test that picks somebody who doesn't qualify, and then you say, but now somebody else who wasn't a terrorist, isn't a terrorist and therefore didn't satisfy those factors.
I just don't think that you can get very far from taking a case that says, this person has these five characteristics and he's out, then say that means well, when you don't have those five characteristics you're in.
I really don't think that McMullen can be worked that way in reverse.
Mr. Wettstein: Your Honor, McMullen mirrors and incorporates the Handbook standard, paragraph 152 of the Handbook, which sets out five tests, and when you apply those tests in this case...
Justice Ginsburg: I thought the board has always said, up until the other case, that it isn't taking any position on this balancing.
It notes that that's the position that the Handbook takes, but as far as I know, there has never been a time when the board said, we embrace that test.
Mr. Wettstein: Well, Your Honor, there are two different kinds of balancing here.
Perhaps if we separate them, that might be clearer.
There's a balancing, the so-called balancing in paragraph 152 of the Handbook, if we may call it that, and that really is... provides five tests for the political-nonpolitical question.
And then there's the separate question in paragraph 156 of the Handbook, which is whether or not you consider the risk of persecution once you have already determined that the crime is...
Chief Justice Rehnquist: Isn't it agreed that the Attorney General and the United States are not bound by the Handbook?
Mr. Wettstein: Yes, Your Honor, that's certainly agreed, but the board has adopted the paragraph 152 in the matter of McMullen, so it wouldn't necessarily be bound otherwise, but...
Justice Scalia: That balancing is a balancing of what?
Mr. Wettstein: It's a balancing of the political-nonpolitical question, Your Honor.
It includes the motivation of the actor, whether or not the crime was out of proportion, whether or not there's a causal link between the acts and the goals, whether or not the crime was atrocious.
So in answer to some of the Court's questions earlier...
Justice Kennedy: Do you mean, it's out of proportion to the political objections...
Mr. Wettstein: That's right.
Justice Kennedy: objectives, or out of proportion to the common law character of the crime?
Mr. Wettstein: Whether the act is out of proportion to the goals.
The question in 15... in the 152 Handbook is whether or not this is a political crime, so if it's out of proportion, I think that was some of what... an answer to some of your questions earlier about killing someone that, you may have a valid political goal, but if you overstep your bounds, if you did too much to meet that goal, then the crime loses its political character.
It becomes a nonpolitical crime.
Justice Breyer: Is there in the Handbook or, more particularly, are there in previous board opinions... think of previous board opinions.
Is there anything in those opinions that either says directly, or says by incorporating the Handbook, that in deciding whether a particular crime is political or not political, one will look to see... and these are the... whether or not the nonpolitical part is a) disproportionate, b) grossly disproportionate, or c) some other set of words.
What in the previous board's opinion either says directly, or through incorporating the Handbook, whether that standard should be proportionate, grossly disproportionate, or some other set of words.
And, if so, what does it say?
Mr. Wettstein: Well, McMullen, Your Honor, is the chief board decision about this.
This has not... this issue has not come up very often in the board.
There are some early cases in the early eighties with Marielito Cubans.
This issue did not really come up with those, in those cases.
There have been... this issue has come up in the extradition context, and there are some district court cases in a case called Doherty and also in McMullen, where extradition was refused because they were political crimes, and...
Chief Justice Rehnquist: Why isn't the test not whether the board has followed an earlier precedent of its own, but whether the board's action conforms to the statute?
Why does the Ninth Circuit say the board is wrong for not following McMullen if, in fact, the board's decision is consistent with the statute?
McMullen isn't part of the statute.
Mr. Wettstein: No, Your Honor, but McMullen is the board's own decision deciding what the statute means, and...
Justice O'Connor: Well, to whom do we owe deference here, to the Attorney General, or to board precedent, or what?
Mr. Wettstein: Well, Your Honor, to return to the Chief Justice's question earlier, the question is, was the court of appeals correct.
And the court of appeals said, here are the tests that you have laid out, and here is circuit law, and here is how these tests are supposed to be applied, and you did not correctly apply them in this case.
Justice O'Connor: Well, is there any room for interpretation of the statute here, and if so, do we look to the Attorney General's interpretation and give it deference, or what do we do?
Mr. Wettstein: Well, you certainly can do that, Your Honor.
The statute itself only says, serious nonpolitical crimes.
So the Court could say you don't like the McMullen test, and you think some other test should apply.
But, of course, no one was able to apply that new test in this case, so then a remand would be appropriate if you...
Chief Justice Rehnquist: The board is a creature of the Attorney General, is it not?
Mr. Wettstein: That's correct.
Chief Justice Rehnquist: I mean, she can overrule anything it does.
Mr. Wettstein: Right, but she has not done that here.
The Attorney General, neither on the 156 political crime balancing nor on the risk of persecution balancing, the Attorney General has not issued any precedent decisions on either of these questions.
Her decision is limited to McMullen, and in the McMullen decision the risk of persecution balancing did not come up.
Justice Breyer: Well, doesn't it apply here... to go back to the Chief Justice's question, is there some reason that the most basic rule of administrative law wouldn't apply, namely, an agency cannot change its decision without focusing on it?
You have to follow your own rules.
An agency has to follow its own rules.
If that really hornbook rule applies, then I would have thought, since there's certainly nothing in this one paragraph...
Mr. Wettstein: Right.
Justice Breyer: of the BIA's decision that purports to change anything, I would have thought the question would be whether it's consistent with its prior rules.
Of course it can change those rules, if it wants, but it hasn't.
Mr. Wettstein: That's correct.
Justice Breyer: And that's why I asked you, what is the prior rule.
Is the prior rule adopt the Handbook?
Is the prior rule the word grossly disproportionate, or is the prior rule something else, because whatever that prior rule is, I guess they should have applied it here in the one paragraph, so what is it?
Mr. Wettstein: Well, yes, Your Honor, I think the Government would agree that the prior rule is Matter of McMullen, and there has been no other decision by the Attorney General.
Chief Justice Rehnquist: Well, are... do you agree with Justice Breyer that an agency could not come out differently in a particular case from the way it had before without some sort of an elaborate procedure?
Mr. Wettstein: Well, Your Honor, since McMullen is... was the precedent decision here, I think if the board...
Chief Justice Rehnquist: Well, supposing this were just the Attorney General, you know, not a BIA or something like that, the Attorney General under the... and last year she says, well, I think McMullen is right, then this year she says, well, no, I'm not... I'm going to back away from McMullen some.
Mr. Wettstein: She certainly could do that.
Chief Justice Rehnquist: Is there some administrative law rule that says she can't do that?
Mr. Wettstein: Well, Your Honor, she has, in fact, done that in a case where...
Justice Breyer: Aren't you going to answer yes to that, that an agency does have to focus on it?
Mr. Wettstein: Well, the Attorney General, Your Honor, is... has authority over the Board of Immigration Appeals.
As you've noted, the board is a creature of the Attorney General, so at least under the statute she can overrule a decision the Board of Immigration Appeals has made.
Justice Scalia: Without focusing on it, even.
Without focusing on it.
That's what Justice Breyer...
Mr. Wettstein: Without focusing on it.
Justice Scalia: Does Arizona Grocery apply...
Justice Breyer wants you to adopt the position that an agency cannot alter its course from a prior adjudication without focusing specifically on that adjudication.
Mr. Wettstein: Well...
Justice Scalia: Now, if you say that you agree with Justice Breyer, I'm going to ask you what case you have in mind that says...
Justice Breyer: Arizona Grocery.
Justice Kennedy: You say Arizona Grocery is the hornbook...
Unidentified Justice: [Laughter]
Mr. Wettstein: Arizona Grocery.
Justice Breyer: It's, an agency has to follow its own rules.
Mr. Wettstein: Well, we don't even have to reach that here, of course.
Justice Scalia: The agency does have to follow its own rules...
Mr. Wettstein: Right.
Justice Scalia: in the sense of regulations.
Justice Breyer: Arizona Grocery had no regulations.
Mr. Wettstein: Well, I don't think we even have to reach that here, because the board did not purport to change its policy.
Justice O'Connor: Well, I thought here the board had taken the position in McMullen and in this case that the question of whether a crime is a political offense is primarily one of fact.
I mean, that is primarily a fact issue, and the board here determined as a matter of fact that it was one that followed the language of the statute.
Mr. Wettstein: Uh-huh, that it was... the criminal nature outweighed the political nature.
Justice O'Connor: Right.
Mr. Wettstein: But Your Honor, that's all they said.
They just simply announced it, and they violated another cardinal principle of administrative law that the agency is supposed to show that it reasoned and not merely reacted, and here the agency just simply concluded, so it isn't as if they overturned McMullen, or... they purported to apply McMullen, but they did not adequately apply... they did not...
Justice O'Connor: Well, have we applied some special rule in the area of fact determination that says they have to explain it, or can they just determine the facts, and do we owe some deference to that factual determination?
Mr. Wettstein: Well, Your Honor, in this case, certainly if they had properly applied the tests they would have reached a separate... a different result.
They simply concluded that the political element outweighed the criminal element, but if they had considered whether Mr. Aguirre had political motivation, whether there was a link between his acts and the goals, they would have reached a separate decision.
So yes, I think the facts... if it were... was just a fact determination, if they had properly applied their tests, they would have reached a different determination.
Justice Souter: Well, advert if you will for a minute to what the Ninth Circuit said.
You... in the first place, I guess the third reason for which the Ninth Circuit thought there had been error was the failure to consider the seriousness of the persecution.
And I think you mentioned earlier that McMullen didn't involve that, so that's an open question so far as McMullen goes.
Mr. Wettstein: That's right.
Justice Souter: And quite obviously the board did not in this case think that whatever the relevance of that factor might be, if relevant at all, would have been in favor of your client.
Go to the second... I think it was the second reason that the Ninth Circuit gave, and that was that the board had failed to consider the possibility of a gross disproportionality, or the significance of gross disproportionality between the political and the common law character.
In McMullen, did the board adopt a gross disproportionality?
Mr. Wettstein: Yes, it did, Your Honor.
Chief Justice Rehnquist: Did they use that term?
Mr. Wettstein: That's right.
Justice O'Connor: They used that term?
Mr. Wettstein: It applied the gross, and it also applied the atrociousness test.
So it applied both of those tests and found that McMullen's actions, contrary to Mr. Aguirre's actions, were in fact grossly disproportionate and were atrocious, and...
Justice Scalia: Did they say that that was a condition, that that condition always had to exist in order for the crime to be nonpolitical?
Mr. Wettstein: No, Your Honor, they didn't say it was a condition, but it does... those were the tests that they applied, and that again mirrors...
Justice Souter: They considered it a relevant factor, is that... would that be a fair way to...
Mr. Wettstein: I'm sorry, Your Honor.
Justice Souter: In McMullen did they say, look, it's just one of the things that ought to be considered, is there gross disproportionality or isn't there?
Mr. Wettstein: Yes.
Justice Souter: Without saying that if you satisfy that test a particular result necessarily follows.
Mr. Wettstein: That's right.
Justice Ginsburg: Okay.
Mr. Wettstein: They did not say, this is an absolute condition, but they said, here is what we consider, and what they consider mirrors the Handbook...
Justice Scalia: But they found it nonpolitical here even without finding it to be atrocious.
Why should they then move on to consider the atrociousness factor?
Having found that the other factors have already rendered it nonpolitical, if the atrociousness factor is not essential, as you say it isn't, then what's the harm that's been done?
They looked at the other factors and they said, I look at these other... it's nonpolitical.
Mr. Wettstein: Well, Your Honor...
Justice Scalia: I don't even have to consider whether it's atrocious.
Justice Stevens: Maybe it is, maybe it isn't.
Justice Scalia: Who cares?
Mr. Wettstein: Uh-huh.
Justice Scalia: It's nonpolitical because of these other reasons.
Mr. Wettstein: Your Honor, I don't want to mischaracterize what I said.
It isn't that the board in McMullen said it isn't a necessary factor.
Those are the factors they considered.
They didn't say which ones of those are necessary and which ones are not...
Justice Scalia: Well, then...
Mr. Wettstein: so it may be that's a necessary factor.
Justice Scalia: But then it seems to me the agency could have done just exactly what I've said, and certainly we give the agency the benefit of the doubt.
What... I mean, I assume we apply a substantial evidence test on all those factual matters, right, so there's some evidence that could support the agency's determination, is that right?
Although I'm not sure the Ninth Circuit did that.
It seems to me they reviewed all the factual determinations de novo.
Mr. Wettstein: Well, Your Honor, it isn't so much a factual determination here as a procedural determination.
The Ninth Circuit did not reach its own substantive conclusion.
It simply remanded to the board for it to apply its test, so it's really more procedural errors.
Justice Ginsburg: I... let's concentrate on what the BIA did, because it seems to me that in characterizing what went on here, it did even what the Handbook says, and it says, in determining whether this is political or nonpolitical, its closest to the political camp when you're acting against the Government or Government personnel, much more iffy if your target, the person you're actually hitting on, is a private individual, or a private company, and then weakest of all when you're hitting on private individuals and you're trying to produce general chaos.
Now, here the people who were hurt, even if just temporarily, because they were lassoed and hit... we'll leave out the stones... were private individuals.
The shopkeepers whose merchandize was trashed were private individuals.
So it seems to me that that falls in a category where to call it political is highly questionable even on the... all the U.N. standards.
Mr. Wettstein: Well, Your Honor, the statute does not say, and the Government seems to be trying to read into the statute, the word civilians, or noncivilians.
The statute doesn't exempt political actions taken that happen to affect civilians.
Justice Ginsburg: Do you agree with the statement that's made in that U.N. brief that the political link is strongest when the target of the activity is Government personnel and property, or is that wrong?
Mr. Wettstein: I would agree with that, Your Honor, but that does not mean that actions that by necessity are diffused, and not as they were in Guatemala... it wasn't as if you had an armed insurrection against...
Justice Ginsburg: But we're talking about what the applicant's acts were.
And the next thing I read from the U.N. brief is, the link is weakest when the politically motivated act... nobody disputes that these acts were politically motivated... when the politically motivated act is principally directed against private interests.
Mr. Wettstein: Mm-hmm.
Justice Ginsburg: And the... whatever... the bus was privately owned, was it not?
Mr. Wettstein: Yes, Your Honor, but as in one of the other amicus briefs, the buses were not just simply privately owned.
The Government had enormous involvement in the bus...
Justice Ginsburg: The individuals who were on the bus were just ordinary individuals.
Mr. Wettstein: That's true, Your Honor, but of course...
Justice Breyer: Government servants.
Mr. Wettstein: the goal here was to prevent harm to the passengers, not to hurt the passengers.
The passengers were not targeted.
Justice Ginsburg: So that's why they burned them?
Mr. Wettstein: I'm sorry?
Chief Justice Rehnquist: That's why they burned them, the buses?
Mr. Wettstein: Well, no, the buses... the people were moved off the buses before the buses were moved, Your Honor.
That was the goal of moving the passengers, so they would not be harmed.
The goal was to prevent greater harm to the passengers.
The buses were burned as a protest of the 100-percent bus fare increases, which the Government approved.
The Government in Guatemala approves the bus fare increases.
It regulates the bus routes, it regulates the...
Justice Ginsburg: What about the shopkeepers whose merchandise was just trashed?
Did the Government... has no... you describe the bus transportation that's in close with the Government, but these private shopkeepers who had their merchandise trashed, for what reason?
Mr. Wettstein: Well, Your Honor, obviously in this country in this day and age we don't like these acts.
These acts are offensive to us, but that's not really the test.
The test is, under the conditions that Mr. Aguirre found himself in Guatemala, was this out of proportion to his political goals?
Justice Breyer: Suppose I agreed with you, purely for the sake of argument, on three points... two anyway.
Suppose I disagree... suppose I thought the law prior to this case in the board is really murky.
There isn't a clear rule.
Assume that with me.
I'm not saying whether that's so, so assuming.
Assume, second, that this administrative law judge really went into this in the greatest depth.
And after really going into it he says, you know, on balance this is a political crime.
There are some things for, some against, but I think it is basically.
Then he gets reversed by the appellate, the BIA, and they do it with one sentence, just saying, well, we think it outweighs, nobody focusing on the right test, nobody doing anything.
That's disturbing to me, if those assumptions are true.
What principle of law would justify my sending the case back for further work by the board?
Mr. Wettstein: Your Honor, the principle that you mentioned earlier, which is...
Chief Justice Rehnquist: No.
Justice Breyer: I've assumed that out of it, because I've said that the previous... I'm assuming... I'm going to read all that stuff, but I'm now assuming against you that the previous state of the art in the board is all murky.
They don't have a clear rule, and there's nothing that says you have to follow a rule that isn't there, so if it's murky, you see... let's assume that's all murky.
And now let's also assume, which I think is true, that the ALJ here really went into this factually, and then what I think is also true is, he gets reversed by the board with a simple sentence which doesn't analyze anything, which doesn't purport to say what's the right test, it's nothing.
It's just somebody saying, oh, you're wrong.
Mr. Wettstein: Uh-huh.
Chief Justice Rehnquist: Okay.
Justice Breyer: Now, if all that's true, what principle of law will justify your victory, which is victory in the sense of getting it sent back?
Mr. Wettstein: Right.
Well, Your Honor, the board itself has said on numerous occasions that the immigration judge's decision is itself entitled to deference, because the immigration judge is the one who observes the witness, and that's certainly what happened here, and heard the testimony, including the mistakes in the testimony.
Justice Scalia: I didn't understand that this was your appeal, that what you were complaining about here is the procedural failure of the board to have an adequate opinion explaining its overruling of the administrative law judge.
Is that in your... I don't recall reading that portion of your brief.
Mr. Wettstein: Yes, it is, Your Honor, because after all the court of appeals gave three reasons for reversing the board.
And two of those reasons, the first two of those reasons were the failure to apply its previous precedent and the Ninth Circuit precedent.
The third reason was the persecution balancing, and that's what's the balance of the Government's brief and, of course, the balance...
Justice Scalia: Was any... please, let me... was any of the reasons the failure of the board to explain itself in adequate detail?
Mr. Wettstein: Yes, Your Honor, it certainly was.
If you'd like me to point to that section of the brief...
Justice Kennedy: Yes, I'd... I'd...
Mr. Wettstein: Okay.
Justice Scalia: I mean, I know they said the board was wrong, but I don't think that they... I don't recall just a procedural objection.
Even if the board was right, they didn't have an adequate opinion, which is...
Mr. Wettstein: Beginning on page 29 of our brief...
Justice Scalia: Of the...
Mr. Wettstein: Your Honor, there's a correct standard for...
Justice Scalia: 29 of what?
Mr. Wettstein: Of... sorry, of our brief.
Justice Scalia: Yes.
Mr. Wettstein: Of the respondent's brief, and...
Justice Ginsburg: Was Justice Scalia asking about your brief, or about the Ninth Circuit?
Mr. Wettstein: Well, I thought he was asking about...
Justice Scalia: Well, both.
Mr. Wettstein: The issue was whether the case concerned... in other words... we're arguing that the court of appeals did not... that the board's failure to apply properly the... it's own test was...
Justice Kennedy: No, no.
Justice Scalia: That is different.
That isn't the point.
Justice Breyer was making a purely procedural... and you know, I like procedure.
I used to teach administrative procedure.
Unidentified Justice: [Laughter]
Justice Scalia: And he was making a purely procedural point, that even if the board was right, it didn't explain itself.
And I don't recall that being in this case, either at the Ninth Circuit level or in your submissions to the Court.
Now, if it's there I...
Mr. Wettstein: I think it certainly was in the court of appeals decision too, Your Honor.
If we look at...
Justice Breyer: If you can't find it, maybe you can just file it with...
Mr. Wettstein: No, I have it here.
Chief Justice Rehnquist: Do you have it there?
Mr. Wettstein: Yes.
It's... this is in the petition for certiorari, page 5a, 4a and 5a.
The court said...
Chief Justice Rehnquist: Whereabouts on the page are you going to reading from?
Mr. Wettstein: Let's see, 4a on the second full paragraph.
First, the board looked only at the offenses of Aguirre, et cetera.
Under the protocol, the board should have first determined the nature and purpose of Aguirre's acts, that is, whether they were committed out of genuine political motives... this is in the McMullen...
Justice Scalia: That's saying that they didn't apply the proper tests, which I understand that to be in the case.
You're saying they didn't apply the rule that the board had before it.
But I'm not talking about whether they didn't apply the proper rule.
I'm just talking about the fact that they didn't explain themselves.
It was simply unexplained, and I don't recall that being in the case.
Mr. Wettstein: Well, I think that's putting it generously, Your Honor.
If you say that the board did not apply the proper rule, that's actually what the court accused them of having done, and that's what we accuse them of having done, too, but I think the question here is, if they applied the proper rule but didn't explain themselves correctly.
Chief Justice Rehnquist: Well, but that's in... you say the question here is if they didn't explain themselves, but I simply don't see that in the part of the Ninth Circuit opinion you just quoted, that they are... that the Ninth Circuit is saying that, that... they're saying several reasons why the board was wrong, but as I read it, one of them was not that it didn't fully... that it didn't explain itself in its opinion reversing the immigration judge.
Mr. Wettstein: Well, I think, Your Honor, because the Ninth Circuit assumed that there were tests in place.
Now, Justice Breyer's question was that, let's assume there are no tests in place, but the court had a test to work with, so it was not dealing with the situation you suggested, which is where there's no test.
And then you say, well, you just didn't explain yourself correctly, but in fact this is worse...
Chief Justice Rehnquist: But they're still reversing the immigration judge, and I understood part of Justice Breyer's question to be, you know, was the board wrong for reversing the immigration judge without giving any explanation for doing it, and I don't see that as being in the case.
Justice Breyer: Do you think it is?
Mr. Wettstein: Well...
Chief Justice Rehnquist: You can answer that yes or no.
Mr. Wettstein: No, Your Honor, because the court had more to work with.
The court had the test that the board did not apply, that Justice Breyer wrote out of our hypothetical.
So therefore the court didn't have to say, there's no test here but you just didn't explain yourself, because the court had something more concrete to use, which was, here's this test, you have adopted the test, you didn't apply the test, go back and do it.
That's really what the court said.
Justice Ginsburg: There's one issue of at least, it seems to me clear, and I think we have to decide it one way or another, whatever else we decide.
The Ninth Circuit said, the board erred as a matter of law in failing to consider the persecution that the applicant might suffer if he returned to Guatemala.
We have, as was noted, a square conflict.
The House of Lords goes one way on that, a lower court in Canada goes the other way on that.
We are being asked to decide that question of law.
The House of Lords decided as crisply as it could the crime either is or is not political when committed.
Its character cannot depend on consequences the offender may... actually would suffer if he returned.
Mustn't we decide at least that question, either the Canada court is right, or the House of Lords is right?
You said we don't have to...
Mr. Wettstein: No, Your Honor.
In fact, the Attorney General has not determined that question, so it may be appropriate to remand to the Attorney General to determine that question in the first instance, whether, in fact, the risk of persecution needs to be considered when you're applying this exclusion ground, so this Court certainly does not have to reach that question.
Justice Ginsburg: Well, I'll ask for clarification whether indeed it's true that the Attorney General has not resolved that issue.
Mr. Wettstein: Right.
The only precedential decision that the Government cites for that position is Matter of Rodriguez-Coto, Your Honor, which is a 1985 decision, has never been cited again for that principle, and in fact...
Justice Ginsburg: It's never been rejected, and it's a flat-out statement, right in the thing, we reject the balancing test.
Mr. Wettstein: Well, Your Honor, the case did not... rejected the balancing test for two different exclusion grounds, and it did not... the case itself did not deal with this exclusion ground, and it has never come up subsequently.
And the Attorney... so there has never been an opportunity, in fact, the board here in this case didn't decide it, either, so there's never been an opportunity for the Attorney General to make a decision.
Now, the Attorney General could have drafted regulations adopting one position or another, but that has not happened, so there actually is no precedent.
Justice Ginsburg: Well, you point to the ambiguity in a statement that we reject any interpretation of the phrase, particularly serious crime, serious nonpolitical crime, which would vary with the nature of the... of evidence of persecution.
Mr. Wettstein: Right.
No, Your Honor, I'm not saying the language itself they use there is ambiguous.
I'm simply saying that the board... that was... this was not the issue in that case, and so it's dictum for that reason.
It's also dictum for the other reason that the board had three other reasons for its decision in that case before it got to this.
That case dealt with...
Justice Ginsburg: Well, am I wrong in getting the picture that the board has twice said, it's an open question with us?
One said, in dicta, it's closed, we're rejecting it.
Mr. Wettstein: That's correct, Your Honor, and I think the board would say it was not bound by Rodriguez-Coto if it wanted to reach the opposite decision.
Rebuttal of Patricia A. Millett
Chief Justice Rehnquist: Thank you, Ms. Wettstein.
Ms. Millett, you have 4 minutes remaining.
Justice Ginsburg: Is it true that the Government has no position on the balancing test, the third ground of the Ninth Circuit's decision?
Ms Millett: Absolutely not.
The position was taken in Rodriguez-Coto, it needed to be taken there because he had committed crimes in Cuba and in the United States; those had to be addressed and, if nothing else, the Attorney General's position is clearly reflected in our brief in this case.
Now, the reason it was not mentioned specifically in the board's decision is... I would like this Court to keep in mind that the respondent didn't file a brief before the Board of Immigration Appeals, so before this Court sends it back for the board to do it again, please keep that in mind.
Secondly, on the question of the test, and was it correctly applied, and consistently, I'd like to refer the Court to petition appendix 17a, 18a, where the test is quoted.
The carry-over paragraph at the top of 17a, right near the end, in evaluating the political nature of a crime, we consider it important that the...
Chief Justice Rehnquist: 17a of the petition?
Ms Millett: Petition appendix.
We consider it important that the political aspect of the offense outweigh its common law character.
Where the phrase grossly out of proportion comes in is simply in the next sentence as an example of something that would be outweighed.
Grossly out of proportion is not the test.
It is proportionality or atrociousness.
The Ninth Circuit made it, and, and we believe that they should not have done that.
Second, the discussion in the following paragraph, right under analysis and conclusions, and then on the next page, 18a, there's an entire paragraph saying why that balancing was struck against the respondent in this case.
Now, not only did they not file a brief, but... it is our position that some crimes don't require a lot of explanation, and that masked men wielding sticks, lobbing stones, forcing people out of stores, destroying stores, and splashing gasoline on buses and setting them on fire doesn't require a lot more than what the board said here.
Justice Ginsburg: With all that, suppose it were established crystal clear that if this person is sent back to Guatemala he will be horribly tortured, the answer would still be the same?
Ms Millett: The answer under the withholding of deportation provision would be the same.
However, as we reference in our reply brief, there is now a torture on convention that the United States is a party to, and that the Immigration and Naturalization Service has recently issued regulations on, and that sets up a procedure...
Justice Scalia: Convention on Torture, you mean.
Ms Millett: Convention on Torture.
Justice Scalia: There are those of us who think that there should be torture for a convention, maybe...
Unidentified Justice: [Laughter]
Ms Millett: I apologize, Convention on Torture.
And that sets up the regulations, which I would be happy to lodge with the Court if it's interested, set up a procedure called deferral of removal for someone who is disqualified from withholding of deportation, but meet... can show and meet the convention's definition of torture.
Justice Breyer: What's bothering me, and I can't quite get my hands on it, is this... is purports to be, as it's presented, an argument about what standard to apply.
But looking at the paragraph that you just read, and the Ninth Circuit, it may be that everybody agreed on what the standard was, and it's that McMullen standard, and this is really a case about whether or not that BIA board applied the standard that they purported to apply.
Ms Millett: The problem is that...
Justice Breyer: And if I read through this record and come to that conclusion, I'm not sure what to do.
That's why I ask the question.
If this isn't really a case where people are disagreeing about standards, at least in the political... they may be on the serious word, the word serious, but they may not be on the word political.
It may be grossly disproportional is what they mean.
Ms Millett: The problem is that in addition to balancing the risk of persecution the Ninth Circuit added two new factors, and it is not at all clear to us that those are not intended to weigh upon this political analysis.
Two new factors to add on top of this disproportionate analysis.
Justice Breyer: Which are?
Ms Millett: One is changing the or atrocious to and atrocious, or and approaching atrociousness.
Secondly is necessity and success.
Now, maybe they would come under both factors, but it's... I think it's critically important that this Court hold that the Attorney General is not compelled to adopt those standards.
Chief Justice Rehnquist: Thank you, Ms. Millett.
The case is submitted.
Argument of Speaker
Mr. Speaker: Justice Kennedy has an opinion to announce.
Argument of Justice Kennedy
Mr. Kennedy: I have the opinion of the court to announce in No. 97-1754, Immigration and Naturalization Service versus Aguirre-Aguirre.
One and above Aguirre-Aguirre is a native and citizen of Guatemala.
He is the respondent here.
He was charged with deportability by the Immigration and Naturalization Service for illegal entry into this country.
Aguirre-Aguirre conceded that he was deportable but he applied for withholding of the deportation based on his expressed fear as prosecution for earlier political activities in Guatemala.
As if relevant here withholding will not apply and deportation is authorized where there are serious reasons for considering that the alien has committed a “serious nonpolitical crime” -- and that's the statutory phrase -- outside the United States prior to arrival in this country.
The Board of Immigration Appeals ordered the respondent deported, it determine that to protest certain government policies in Guatemala that he and a group of which he was a member had burned the buses, assaulted passengers, and vandalized and destroyed property in private shops.
Applying the test, it had developed in a prior decision.
Now, the Board of Immigration Appeals concluded that these were “serious nonpolitical crimes” within the meaning of the statute because their common law or criminal character outweighed their political nature.
On appeal the Court of Appeals for the Ninth Circuit concluded that the BIA had applied an incorrect interpretation of the serious nonpolitical crime exception and it remanded for further proceedings.
According to the Court of Appeals, the Board erred in failing to consider the prosecution respondent might suffer upon return to Guatemala, whether his acts were grossly out of proportion to their objectives or were atrocious, and the political necessity and success of his methods.
We disagree with the Court of Appeals.
The Court of Appeals failed to accord the required level of deference to the interpretation adapted by the BIA.
As we have recognized before the Board should be accorded judicial deference as it gives ambiguous statutory terms, concrete meaning through a process of case-by-case adjudication.
The Court of Appeals error is clear with respect to its holding that the Board was required to balance respondent’s criminal acts against the risk of persecution he would face if returned to Guatemala.
For an alien to eligible for withholding at all, the statute requires a finding that he is at risk of persecution.
It is reasonable to decide 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.
The other reasons given by the court for reversing BIA also do not withstand scrutiny.
The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with out opinion, and the opinion is unanimous.