Withholding of deportation is a form of relief that prohibits the Immigration and Naturalization Service from deporting an individual to a country where his or her life or freedom would be threatened on account of race, religion, nationality, political opinion, or membership in a particular social group.  A similar form of relief, withholding of removal, is available to individuals in removal proceedings.  Unlike asylum, withholding is a mandatory form of relief that must be provided to eligible individuals.   However, individuals are not eligible for withholding if they committed a "serious nonpolitical crime" before coming to the U.S.

In this case, the respondent is a Guatemalan national.  The evidence at his deportation hearing established that he was active in a student group in Guatemala from 1989 to 1992.  He testified that, to protest government policies, he had participated in setting about ten buses on fire after forcing the passengers out of the buses.   Passengers who refused to leave were stoned, hit with sticks, or bound with ropes.   The protesters also vandalized private shops after forcing the customers out of them.

The immigration judge found that the respondent had established a clear probability of persecution and granted him withholding of deportation and asylum.  The BIA reversed, without addressing the likelihood that the respondent would be persecuted in Guatemala.   Rather, the BIA found the respondent ineligible for withholding because "the criminal nature of the respondent’s acts outweigh their political nature."   The BIA also denied his asylum application in the exercise of discretion.

On petition for review, the Ninth Circuit reversed and ordered the case remanded.   The court did not disagree with the BIA’s procedure of weighing the political nature of the respondent’s acts against their criminal character, to determine whether the acts are "disproportionate to the [political] objective" and constitute a serious nonpolitical crime.  However, the court concluded that the BIA had erred by not taking into account three additional considerations.  First, the BIA should have considered the persecution that the respondent faced if returned to Guatemala and should have balanced "his admitted offenses against the danger to him of death."  Second, the BIA failed to consider whether the respondent’s actions were "of an atrocious nature" rather than simply criminal.   Finally, the BIA failed to consider the respondent’s offenses in relation to his "declared political objectives" and the "political necessity" for his methods.

On petition for writ of certiorari, the Supreme Court reversed.  The Court concluded that the Ninth Circuit failed to afford adequate deference to the BIA’s interpretation of the statute.  Citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), the Court noted that where a statute is "silent or ambiguous" with respect to an issue, the question for the court is whether the interpretation of the agency charged with administering the statute "is based on a permissible construction of the statute."

With respect to the BIA’s failure to consider the risk of the respondent’s persecution as a factor in determining whether he committed a serious nonpolitical crime, the Court found that it was reasonable for the BIA to interpret the statute in this manner.  It noted that the risk of persecution must be considered in order to find the respondent eligible for withholding but that it need not be considered in determining whether he committed a serious nonpolitical crime.

Regarding whether the BIA should have assessed the "atrocious nature" of the respondent’s acts, the Court said that "gross disproportion and atrociousness are relevant in the determination" of whether an act is a serious nonpolitical crime under the BIA’s test.  "In the BIA’s judgement, 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."  However, even where none of the acts are considered "atrocious," the criminal element of an act may outweigh its political aspect, and therefore the BIA does not need to consider atrociousness in every case.

Finally, the Court found that the BIA’s weighing of the criminal and political aspects of the respondent’s acts was sufficient to satisfy the requirement that the "necessity" of those acts be considered.