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).
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.
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.
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. §
“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. §
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.
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.
ANALYSIS AND FINDINGS
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.
page 5 of the Respondent’s application for asylum he checks
the following boxes as the basis for his claim for asylum and withholding
respondent claims that __: (short summary of the claim, not a resuscitation
of the testimony).
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:
THEORY OF THE CLAIM
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
or regulatory ineligibility? (E.g., persecutor; conviction of an aggravated
felony, resettlement, bilateral treaty under section 208(a)).
is the persecutor? (E.g., Government, guerilla, both, other)
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).
is the harm feared?
all harm (e.g., inability to pursue chosen profession, or brief detention)
is serious enough to constitute persecution.
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.
belief or characteristic held by the alien is:
it a protected belief or characteristic?
the belief or characteristic not held by, but imputed to the alien?
following generally do not constitute protected beliefs or immutable
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));
by government, unless punishment is disproportionately severe, or
soldier would be required to perform internationally-condemned acts;
contributions to rebels;
of retribution in personal dispute;
of prosecution for violation of laws of general application;
disagreement with political and/or economic system;
of harm to combatants, policemen, soldier, or rebel as a result of
performance of current duties;
conditions of strife and anarchy;
of harm as a result of civil war;
does not by itself suffice to show alien has trait or belief protected
by the Act.
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)
the persecutor have the capability to persecute the respondent?
the persecutor have the inclination to persecute the respondent?
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).
the respondent does not meet the well-founded fear standard:
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.”
the respondent has met the well-founded fear standard does his evidence
also meet the clear probability standard?
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).
certain to analyze the UNCAT claim separately and independently even
though the evidence offered for the CAT claim is the same as the asylum
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.
IS HEREBY ORDERED that the respondent’s application for asylum