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REAL ID - 208(a)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
(LOCATION)
File No:
In the Matter of )
)
_____________ ) IN REMOVAL PROCEEDINGS
)
Respondent )
CHARGE(S): Section 212(a)( )( ) [Or 237(a)( )( )] of the Immigration and Nationality Act -
APPLICATION(S): Asylum; withholding of removal under section 241(b)(3); withholding / deferral of removal under the Convention Against Torture; voluntary departure
ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:
___________________, Attorney at Law ________________________
ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE
The respondent is a ___ year old, single/married, male/female, native and citizen of ______________________. The United States Department of Homeland Security (DHS) has brought these removal proceedings against the respondent under the authority of the Immigration and Nationality Act (the Act). Proceedings were commenced with the filing of the Notice to Appear (NTA) with the Immigration Court. See Exhibit 1.
The respondent admits as alleged in the Notice to Appear that ___________. He concedes / denies that he is removable as charged under __________. On the basis of the respondent’s admissions and concession, (and the supporting I-213 / conviction records / other records admitted into evidence) the Court finds that the respondent’s removability has been established,
[for section 212 charges:] in that the respondent has not shown that he is clearly and beyond doubt entitled to be admitted and is not inadmissible, or in that the respondent has not shown by clear and convincing evidence that he is lawfully present in the United States pursuant to a prior admission. Section 240(c)(2) of the Act.
[for section 237 charges:] by the INS by clear and convincing evidence. Section 240(c)(3) of the Act.
The respondent declined to designate a country of removal, and _________ was directed by the Court upon recommendation by the Government. The respondent applied for relief from removal in the form of asylum under section 208(a) of the Act. Applications for asylum shall also be considered as applications for withholding of removal under section 241(b)(3) of the Act. The respondent also requests withholding / deferral of removal under the Convention Against Torture. The respondent seeks voluntary departure under section 240B(b) of the Act in the alternative.
The respondent in this case has satisfied the requirement of showing by clear and convincing evidence that he applied for asylum within one year of his last arrival (or April 1, 1998, whichever is later). See 8 C.F.R. § 1208.4(a)(2). At the time of filing the respondent was also advised of the consequences of knowingly filing a frivolous application for asylum. See 8 C.F.R. § 1208.18.
The respondent’s Form I-589 application for asylum is contained in the record as Exhibit __. Prior to admission of the application the respondent was given an opportunity to make any necessary corrections and then swore or affirmed before this Court that the contents of the application, as corrected, were all true and correct to the best of his knowledge.
The application was forwarded to the State Department for comment. The response is included in the record at Exhibit ___.
STATEMENT OF THE LAW
The burden of proof is on the respondent to establish that he is eligible for asylum or withholding of removal under section 241(b)(3) of the Act, or relief under the United Nations Convention Against Torture. The provisions of the “REAL ID Act of 2005" apply to the respondent’s application as it was filed on or after May 11, 2005
.
To qualify for withholding of removal under section 241(b)(3) of the Act, the respondent’s facts must show a clear probability that his life or freedom would be threatened in the country directed for deportation on account of race, religion, nationality, membership in a particular social group or political opinion. See INS v. Stevic, 467 U.S. 407 (1984).
To qualify for asylum under section 208 of the Act the respondent must show that he is a refugee within the meaning of section 101(a)(42) of the Act. See Section 208(a) of the Act. The definition of refugee includes a requirement that the respondent demonstrate either that he suffered past persecution or that he has a well-founded fear of future persecution in his country of nationality or, if stateless, his country of last habitual residence on account of one of the same five statutory grounds. The REAL ID Act specifies that the applicant must establish that one of the five grounds was or will be at least one central reason for persecuting the applicant. To establish a well-founded fear of future persecution the alien must show he has a subjective fear of persecution and that the fear has an objective basis. The well-founded fear standard required for asylum is more generous than the clear probability standard of withholding of removal. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Finally, an applicant must also establish that asylum is warranted in the exercise of discretion.
The applicant for withholding of removal under the Convention Against Torture bears the burden of proving that it is “more likely than not” that he or she would be tortured, as defined in the regulations, if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). The torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). “Acquiescence” requires that the public official have prior awareness of the activity and “thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7).
CREDIBILITY
The testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee. In determining whether the applicant has met the applicant's burden, the trier of fact may weigh the credible testimony along with other evidence of record. Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise credible testimony, such evidence must be provided unless the applicant does not have the evidence and cannot reasonably obtain the evidence.
Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.
FURTHER ANALYSIS AND FINDINGS
Persecution is harm or harm threaten on account of a belief or trait held by, or imputed to, an alien, and the belief or trait must be protected under one of the five grounds: race, religion, nationality, membership in a particular social group, or political opinion.
On page 5 of the Respondent’s application for asylum he checks the following boxes as the basis for his claim for asylum and withholding of removal:
The respondent claims that __: (short summary of the claim, not a resuscitation of the testimony).
Upon careful consideration of all the facts of record individually and cumulatively, the Court makes a firm finding that the respondent was / was not a credible witness for the following reasons:
LEGAL THEORY OF THE CLAIM
1. In Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), the Board of Immigration Appeals instructed that persecution exists where: (1) the alien possesses a belief or characteristic that a persecutor seeks to overcome in others by means of a punishment of some sort; (2) the persecutor is aware or could become aware of the person’s belief or trait; (3) the persecutor has the capability to punish the alien; and (4) the persecutor has the inclination to punish the alien. [Note: Certain case law in the Ninth Circuit questions whether the Mogharrabi standard of “reasonable person in the respondent’s circumstances would fear persecution” is consistent with the regulations’ formulation of “reasonable possibility of actually suffering such persecution.”]
2. Relevant Questions:
a. Statutory or regulatory ineligibility? (E.g., persecutor; conviction of an aggravated felony, resettlement, bilateral treaty under section 208(a)).
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b. Who is the persecutor? (E.g., Government, guerilla, both, other)
i. If the persecutor is other than the government, did the respondent seek the protection of the government? Would it be useless to require him to seek protection as the group is clearly outside of the control of the government? See McMullen v. INS, 658 F.2d 1312 (9th Cir. 1981).
c. What is the harm feared?
i. Not all harm (e.g., inability to pursue chosen profession, or brief detention) is serious enough to constitute persecution.
d. What is the belief or immutable characteristic / trait held by the alien? INS v. Elias-Zacarias, 502 U.S. 478 (1992), made clear that persecution must be on account of the victim’s belief or characteristic, not the persecutor’s. Define carefully:
i. The belief or characteristic held by the alien is:
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ii. Is it a protected belief or characteristic?
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iii. Is the belief or characteristic not held by, but imputed to the alien?
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iv. The following generally do not constitute protected beliefs or immutable traits:
(1) Employment;
(2) Recruitment by rebels (Recruitment of an individual by a guerrilla organization is not, in and of itself, persecution “on account of political opinion.” INS v. Elias-Zacarias, 502 U.S. 478 (1992));
(3) Conscription by government, unless punishment is disproportionately severe, or soldier would be required to perform internationally-condemned acts;
(4) Forced contributions to rebels;
(5) Threat of retribution in personal dispute;
(6) Threat of prosecution for violation of laws of general application;
(7) Generalized disagreement with political and/or economic system;
(8) Threat of harm to combatants, policemen, soldier, or rebel as a result of performance of current duties;
(9) General conditions of strife and anarchy;
(10) Threat of harm as a result of civil war;
(11) Detention does not by itself suffice to show alien has trait or belief protected by the Act.
e. Is the persecutor aware, could the persecutor become aware, of the respondent’s belief or trait? (See Country Reports; Profiles; Amnesty International Reports; other background documentation)
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f. Does the persecutor have the capability to persecute the respondent?
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g. Does the persecutor have the inclination to persecute the respondent?
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i. The applicant does not have to provide evidence he would be singled out individually for persecution if he establishes that there is a pattern or practice in his home country of persecution of groups of persons similarly situated to the applicant on one of the 5 enumerated grounds, and that the applicant is included or identified with such group. 8 C.F.R. § 1208.13(b)(2).
h. If the respondent does not meet the well-founded fear standard:
i. “Inasmuch as the respondent has failed to satisfy the lower burden of proof required for asylum, it necessarily follows that he has failed to satisfy the more stringent clear probability of persecution standard required for withholding of removal.”
i. If the respondent has met the well-founded fear standard does his evidence also meet the clear probability standard?
j. If the respondent has met the well-founded fear standard, is asylum merited in the exercise of discretion? Matter of Pula, 19 I&N Dec. 467 (BIA 1987). If asylum is denied in discretion, but withholding is granted, the IJ must reconsider the denial of asylum to take into account factors relevant to family unification including whether there are “reasonable alternatives available” for reunification with family (third country, family applies for refugee processing abroad, etc.) Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007).
k. Be certain to analyze the UNCAT claim separately and independently even though the evidence offered for the CAT claim is the same as the asylum claim.
VOLUNTARY DEPARTURE
To qualify for voluntary departure at the conclusion of proceedings, the respondent must establish that he has been physically present in the United States for a period of at least one year immediately preceding the date the NTA was served; he is, and has been a person of good moral character for at least 5 years immediately preceding such application; he is not deportable under section 237(a)(2)(A)(iii) or 237(a)(4) of the Act; he establishes by clear and convincing evidence that he has the means to depart the United States and intends to do so; and he must be able to post a voluntary departure bond of a minimum of $500. In addition, the respondent must be in possession of a travel document that will assure his lawful reentry into his home country. Voluntary departure must also be warranted in the exercise of discretion.
Analysis.
ORDERS
IT IS HEREBY ORDERED that the respondent’s application for asylum be granted
/ denied.
IT IS FURTHER ORDERED that the respondent be removed from the United States to ______ (country), or in the alternative to _______ (country), on the charge(s) contained in the Notice to Appear.
IT IS FURTHER ORDERED that the respondent’s application for withholding of removal under section 241(b)(3) of the Act to _______ (country) be granted
/ denied.
IT IS FURTHER ORDERED that the respondent’s request for withholding of removal to _____ (country) under the Convention Against Torture be granted / denied.
IT IS FURTHER ORDERED that the respondent’s request for deferral of removal to _______ (country) under the Convention Against Torture be granted / denied.
NOTICE TO ALIEN GRANTED DEFERRAL OF REMOVAL (8 CFR 1208.17(b)): Your removal to _______ (country) shall be deferred until such time as the deferral is terminated. This grant of deferral of removal:
1. Does not confer upon you any lawful or permanent immigration status in the United States;
2. Will not necessarily result in you being released from the custody of the DHS if you are subject to such custody;
3. Is effective only until terminated;
4. Is subject to review and termination based on a DHS motion if the Immigration Judge determines that it is not likely that you would be tortured in the country to which removal has been deferred, or upon your request; and
5. Defers removal only to _____ (country) and does not preclude the DHS from removing you to another country where it is not likely you would be tortured.
(Voluntary departure)
IT IS FURTHER ORDERED that the respondent’s request for voluntary departure in lieu of removal be denied. (OR)
IT IS FURTHER ORDERED that the respondent be granted voluntary departure, in lieu of removal, and without expense to the United States Government on or before _____________ (maximum 60 calendar days from the date of this order).
IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond in the amount of $_______________ with the Department of Homeland Security on or before ______________ (five business days from the date of this order).
IT IS FURTHER ORDERED that, if required by the DHS, the respondent shall present to the DHS all necessary travel documents for voluntary departure within 60 days.
IT IS FURTHER ORDERED that, if the respondent fails to comply with any of the above orders, the voluntary departure order shall without further notice or proceedings vacate the next day, and the respondent shall be removed from the United States to __________ on the charge(s) contained in the Notice to Appear.
WARNING TO THE RESPONDENT: Failure to depart as required means you could be removed from the United States, you may have to pay a civil penalty of $1000 to $5000, and you would become ineligible for voluntary departure, cancellation of removal, and any change or adjustment of status for 10 years to come.
Also, if you fail to depart as required, and then fail to comply with the removal order, you could also be fined $500 for each day of noncompliance.
In addition, if you are removable for being deportable under section 237 of the Act, and you fail to comply with your removal order, you shall face additional fines and/or could be imprisoned for up to 4 and in some cases up to 10 years.
______________________________
Immigration Judge
APPENDIX: NOTE TAKING
REAL ID ACT - Pretrial Notes on Consistency/Inconsistency of Prior Statements:
Sworn Statement: (Date: ____)
I-213 (Date: ____)
Credible Fear Interview: (Date: ____)
I-589 (Date: ____)
Affidavit (Date: ____)
REAL ID ACT - Organizing Hearing Notes:
One Central Reason
Persuasiveness of Claim
Refers to Sufficient Specific Facts
CREDIBILITY: Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on any of the following factors:
The Demeanor, candor, or responsiveness of the applicant
The Inherent plausibility of the applicant’s account
The Consistency between the applicant’s written and oral statements
The Internal consistency of the applicant’s statements and testimony
The Consistency between applicant’s statements and other evidence of record
Reasonably Expected Corroborative evidence
Comments on the Legal theory of the claim
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