Luz Marina Cardoza-Fonseca v. U.S. Immigration and Naturalization Service, Francisca Rosa Arguello-Salguera v. Immigration and Naturalization Service

In both these cases the Board of Immigration Appeals applied an incorrect legal standard when it determined that the petitioners failed to establish their eligibility for asylum under section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158 (a) (1982). Rather than applying the “well-founded fear” standard, which governs asylum determinations, the Board applied the “clear probability” standard, which governs prohibitions against deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253 (h). Because the Board failed to apply the correct legal standard in evaluating the petitioners’ claims, we reverse the Board’s orders denying asylum and remand for reconsideration. In addition, the Board failed clearly to articulate the basis for its refusal to grant Arguello-Salguera relief under section 243(h). We reverse that determination as well.

I. FACTS

A.. Cardoza-Fonseca

Petitioner Luz Marina Cardoza-Fonseca is a citizen of Nicaragua who entered this country as a non-immigrant visitor on Juné 25, 1979. She remained beyond her authorized stay and the INS initiated deportation proceedings. At her deportation hearing on December 14, 1981, Cardoza-Fonseca…