Repairing the Legacy of INS v. Elias-Zacarias

This Article examines the evolution of the nexus requirement in United States refugee law since the Elias-Zacarias decision. Part I discusses the Supreme Court’s decision in Elias-Zacarias, identifying the choices the Court made among the arguments presented before it that resulted in the motive-oriented approach to nexus. This Part also delves into the Court’s statement about the evidence required to demonstrate motive, concluding that the Court’s treatment of the evidence before it foreshadows the confusion lower courts have demonstrated in evaluating evidence of motive. Part II looks at appellate decisions on the nexus issue since 1992, highlighting cases that exemplify the disparity among appellate decisions. This Part concludes that the appellate courts’ differing evidentiary requirements have resulted in a lack of uniformity that is both unfair to asylum applicants and contrary to the United States’ treaty obligations. Part III addresses how asylum decisionmakers could work within the precedent of Elias-Zacarias to bring the United States closer to compliance with international law. Specifically, this Part argues that a thoughtful use of inferences from circumstantial evidence of the applicant’s predicament could ensure that applicants receive fair and uniform treatment in the application of the nexus requirement. This Article concludes that, to comply with the mandates of both the Convention and Elias-Zacarias, courts must focus on the predicament from which the asylum applicant fled, and use circumstantial evidence to infer motive instead of placing an undue burden on the applicant to prove the persecutor’s state of mind.