RETURN TO GENERIC ORAL DECISION FORMAT


Pre-REAL ID Act



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/she 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 DHS 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

(Trim to fit the case)


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) or relief under the Convention Against Torture.


A. Withholding under section 241(b)(3) of the Act


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). This means that the respondent’s facts must establish it is more likely than not that he would be subject to persecution for one of the grounds specified.


B. Asylum under section 208 of the Act


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)(A) 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 alien must show he has a subjective fear of persecution and that the fear has an objective basis. The objective basis of a well-founded fear of future persecution is referred to in the regulations as a “reasonable possibility of suffering such persecution” if the alien were to return to his home country. 8 C.F.R. § 1208.13(b)(2). The objective component must be supported by credible, direct, and specific evidence in the record. De Valle v. INS, 901 F.2d 787 (9th Cir. 1990). The alien must also be both unable and unwilling to return to or avail herself of the protection of his home country because of such fear. Finally, an applicant must also establish that he merits asylum in the exercise of discretion.


In evaluating a claim of future persecution the Immigration Judge does not have to require the alien to provide evidence he would be singled out individually for persecution if the alien 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 five enumerated grounds, and that the alien is included or identified with such group. 8 C.F.R. § 1208.13(b)(2).


An alien who establishes he suffered past persecution within the meaning of the Act shall be presumed also to have a well-founded fear of future persecution. The presumption may be rebutted if a preponderance of the evidence establishes that, since the time the persecution occurred, conditions in the applicant’s home country have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he were to return. An alien who establishes past persecution, but not ultimately a well-founded fear of future persecution, will be denied asylum unless there are compelling reasons for not returning him which arise out of the severity of the past persecution. 8 C.F.R. § 1208.13(b)(1); see also Matter of Chen, 20 I&N Dec. 16 (BIA 1989).


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). We first, therefore, apply the more liberal “well-founded fear” standard when reviewing the respondent’s application, because if he fails to meet this test, it follows that he necessarily would fail to meet the clear probability test required for withholding of removal.


C. Withholding / deferral of removal under the Convention Against Torture


In adjudicating the request for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture”) I have applied the regulations at 8 C.F.R. Part 1208, particularly sections 1208.16, 1208.17, and 1208.18.


Among the important tenants of this law are the following:

 

Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is 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).


To constitute torture, the “act must be directed against a person in the offender’s custody or physical control.” 8 C.F.R. § 1208.16(a)(6). The pain or suffering 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). Torture is an “extreme form of cruel and inhuman treatment” and does not include pain or suffering arising from lawful sanctions. 8 C.F.R. §1208.18(a)(2) and (3).


In order to constitute torture, mental pain or suffering must be “prolonged.” 8 C.F.R. § 1208.18(a)(4). It also must be caused by or resulting from intentional or threatened infliction of severe physical pain or suffering, threatened or actual administration or application of mind altering substances or similar procedures, or threatened imminent death. Id. These causes or results can be directed towards the applicant or another. Id.


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). In assessing whether the applicant has satisfied the burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including:

 

(i) Evidence of past torture inflicted upon the applicant;

 

(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;

 

(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and

 

(iv) Other relevant information regarding conditions in the country of removal.


8 C.F.R. §1208.16(c)(3)(i-iv).



CREDIBILITY


A. General Law [NINTH CIRCUIT]


An Immigration Judge’s finding regarding the credibility of a witness is ordinarily given significant deference since the judge is in the best position to observe the witness’s demeanor. Paredes-Urrestarazu v. INS, 36 F.3d 801, 818-21 (9th Cir. 1994); Matter of Kulle, 19 I&N Dec. 318 (BIA 1985).


“The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R. § 1208.13. Adverse credibility determinations must be based on “specific cogent reasons,” which are substantial and “bear a legitimate nexus to the finding.” Lopez-Reyes v. INS, 79 F.3d 908 (9th Cir. 1996). Once an alien’s testimony on specific facts is found to be credible, corroborative evidence of that testimony is not required (although the facts established by that testimony may be insufficient to establish asylum). Ladha v. INS, 215 F.3d 889 (9th Cir. 2000).


Where an Immigration Judge has reason to question the applicant’s credibility, and that applicant fails to produce non-duplicative, material, easily available corroborating evidence, and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review. Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000); Mejia-Paiz v. INS, 111 F.3d 720, 724 (9th Cir. 1997).



A. General Law [BIA]


An Immigration Judge’s finding regarding the credibility of a witness is ordinarily given significant deference since the Judge is in the best position to observe the witness’ demeanor. Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998); Matter of Kulle, 19 I&N Dec. 318 (BIA 1985); Matter of Boromand, 17 I&N Dec. 450 (BIA 1980).


The testimony of an applicant for asylum may in some cases be the only evidence available, and it can suffice where the testimony is believable, consistent, and sufficiently detailed, in light of general conditions in the home country, to provide a plausible and coherent account of the basis for the alleged fear. Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989); 8 C.F.R. § 208.13(a) (2000).


Where an alien’s asylum claim relies primarily on personal experiences not reasonably subject to verification, corroborating documentary evidence of the alien’s particular experience is not essential. But where it is reasonable to expect such corroborating evidence for certain alleged facts pertaining to the specifics of the claim, such evidence should be provided or an explanation should be given as to why it was not provided. Matter of S-M-J-, 21 I&N Dec. 72 (BIA 1997); see also Matter of M-D-, 21 I&N Dec. 1180 (BIA 1998).


An adverse credibility finding can be based on inconsistent statements and fraudulent documents. See Matter of O-D-, 21 I&N Dec. 107 (BIA 1998); see also Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir. 1997) (upholding adverse credibility finding where differences in asylum applications related to “heart” of asylum claim). A trier of fact’s determination that testimony lacks credibility must be accompanied by specific, cogent reasons for such a finding. Matter of A-S-, supra.


A finding of credible testimony is not dispositive as to whether asylum should be granted; rather, the specific content of the testimony and any other relevant evidence is considered. Matter of E-P-, 21 I&N Dec. 860 (BIA 1997); see also Matter of Y-B-, 21 I&N Dec. 113 (BIA 1998) (the weaker an alien’s testimony, the greater the need for corroborative evidence; testimony lacking in specific details; significant omissions in the written application).


B. Analysis on Credibility


Question 1. Was there corroborative evidence that was reasonably expected but not presented? Are the reasons given for failing to present the evidence persuasive? For BIA - See Matter of S-M-J-, supra, Matter of M-D-, supra. For NINTH CIRCUIT See Sidhu v. INS, supra; Mejia-Paiz v. INS, supra.


Question 2. Note demeanor factors / inconsistencies / omissions / lack of detail and other difficulties with respect to the respondent’s testimony (within the testimony itself; between the testimony and the application; between the testimony and the declaration; etc).


Question 3. Then decide if difficulties are significant enough to render respondent lacking in credibility on all or certain issues.


Question 4. If respondent is credible, or assuming the alien is credible as an alternate finding, is the evidence sufficient to establish the elements of asylum, withholding under section 241(b)(3), or withholding / deferral under the Convention Against Torture? See Matter of Y-B-, supra; Matter of E-P-, supra; Matter of Dass, supra.

 


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.

 

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)).

                        ________________________________________________________________

                        ________________________________________________________________

 

            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:

                                     ___________________________________________________________

                                     ___________________________________________________________

 

                        ii.         Is it a protected belief or characteristic?

                                     ___________________________________________________________

                                     ___________________________________________________________

 

                        iii.        Is the belief or characteristic not held by, but imputed to the alien?

                                     ___________________________________________________________

                                     ___________________________________________________________

 

                        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)      Neutrality (exceptions in certain circuits);

 

                                     (6)      Threat of retribution in personal dispute;

 

                                     (7)      Threat of prosecution for violation of laws of general application;

 

                                     (8)      Threat of discipline by rebel group;

 

                                     (9)      Generalized disagreement with political and/or economic system;

 

                                     (10)    Threat of harm to combatants, policemen, soldier, or rebel as a result of performance of duties;

 

                                     (11)    General conditions of strife and anarchy;

 

                                     (12)    Threat of harm as a result of civil war;

 

                                     (13)    Mistreatment during police interrogation. But see “extrajudicial punishment” deemed to be persecution. A government has a legitimate right to investigate crimes and subversive acts or groups. However, “extrajudicial punishment” may constitute persecution. See Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995); Blanco-Lopez, 858 F.2d 531 (9th Cir. 1988); Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985); and,

 

                                     (14)    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)

                        ________________________________________________________________

                        ________________________________________________________________

 

            f.         Does the persecutor have the capability to persecute the respondent?

                        ________________________________________________________________

                        ________________________________________________________________

 

            g.         Does the persecutor have the inclination to persecute the respondent?

                        ________________________________________________________________

                        ________________________________________________________________

 

                        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).




VOLUNTARY DEPARTURE


Pending before this court is also the respondent's request to depart the United States without expense to the Government in lieu of removal under section 240B(b) of the Act. To qualify for voluntary departure, 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 shall be required to post a voluntary departure bond. In addition, the respondent must be in possession of a travel document that will assure his lawful reentry into his home country.


Discretionary consideration of an application for voluntary departure involves a weighing of factors, including the respondent's prior immigration history, the length of his residence in the United States, and the extent of his family, business and societal ties in the United States.


SAMPLE ANALYSIS: The respondent testified that he has never been arrested or convicted of any crime other than traffic violations. He has never been deported or granted voluntary departure by the United States Government. He testified that he will abide by the Court's order and depart the United States when and as required, has the financial means to depart the United States without expense to the Government, and will only return to the United States by lawful means. The respondent has a __________ birth certificate and will pay a voluntary departure bond as required.


There are no other issues raised by the DHS that will further negatively affect the respondent's eligibility for this minimal form of relief. The Court finds the respondent statutorily eligible and deserving of this relief in the exercise of discretion. Accordingly, the following order(s) are entered:



ORDERS


IT IS HEREBY ORDERED that the respondent’s application for asylum be granted Footnote

 

/ 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 Footnote

 

/ denied.


IT IS FURTHER ORDERED that the respondent’s request for withholding of removal to _____ (country) under the Convention Against Torture be denied / granted.


IT IS FURTHER ORDERED that the respondent’s request for deferral of removal to _______ (country) under the Convention Against Torture be denied / granted.


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. Footnote

 


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. Footnote

 


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. Footnote

 




                                                                                    ______________________________

                                                                                    Immigration Judge