TO GENERIC ORAL DECISION FORMAT
STATES DEPARTMENT OF JUSTICE
OFFICE FOR IMMIGRATION REVIEW
the Matter of )
IN REMOVAL PROCEEDINGS
Section 212(a)( )( ) [Or 237(a)( )( )] of the Immigration and Nationality
Asylum; withholding of removal under section 241(b)(3); withholding
/ deferral of removal under the Convention Against Torture; voluntary
BEHALF OF RESPONDENT: ON
BEHALF OF DHS:
Attorney at Law ________________________
DECISION AND ORDER OF THE IMMIGRATION JUDGE
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
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,
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.
section 237 charges:] by the DHS by clear and convincing evidence.
Section 240(c)(3) of the Act.
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.
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.
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.
application was forwarded to the State Department for comment. The
response is included in the record at Exhibit ___.
OF THE LAW
to fit the case)
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.
Withholding under section
241(b)(3) of the Act
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.
Asylum under section 208
of the Act
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
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).
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).
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.
Withholding / deferral of removal under the Convention Against Torture
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.
the important tenants of this law are the following:
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.
constitute torture, the “act must be directed against a person
in the offender’s custody or physical control.” 8 C.F.R.
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. §
“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. §
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)
order to constitute torture, mental pain or suffering must be “prolonged.”
8 C.F.R. §
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.
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.
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:
Evidence of past torture inflicted upon the applicant;
Evidence that the applicant could relocate to a part of the country
of removal where he or she is not likely to be tortured;
Evidence of gross, flagrant or mass violations of human rights within
the country of removal, where applicable; and
Other relevant information regarding conditions in the country of
General Law [NINTH CIRCUIT]
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).
testimony of the applicant, if credible, may be sufficient to sustain
the burden of proof without corroboration.” 8 C.F.R. §
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).
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
Mejia-Paiz v. INS,
111 F.3d 720, 724 (9th Cir. 1997).
General Law [BIA]
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).
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. §
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).
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
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.
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).
Analysis on Credibility
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-,
of M-D-, supra.
For NINTH CIRCUIT See
Sidhu v. INS, supra;
Mejia-Paiz v. INS,
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).
3. Then decide if difficulties are significant enough to render respondent
lacking in credibility on all or certain issues.
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.
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.
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;
(exceptions in certain circuits);
of retribution in personal dispute;
of prosecution for violation of laws of general application;
of discipline by rebel group;
disagreement with political and/or economic system;
of harm to combatants, policemen, soldier, or rebel as a result of
performance of duties;
conditions of strife and anarchy;
of harm as a result of civil war;
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,
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).
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.
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.
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.
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:
IS HEREBY ORDERED that the respondent’s application for asylum