Withholding of Removal, CAT
an asylum adjudication, the applicant bears the burden of establishing
statutory eligibility, which requires a showing of past persecution
or a well-founded fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA § 101(a)(42)(A). If eligibility is established,
asylum may be granted in the exercise of discretion. INS
v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).
all applications for asylum, the
Court must make a threshold determination of the alien’s credibility.
Matter of O-D-, 21
I&N Dec. 1079, 1081 (BIA 1998). An applicant’s own testimony
is sufficient to meet his burden of proving his asylum claim if it
is believable, consistent, and sufficiently detailed to provide a
plausible and coherent account of the basis of his fear. Matter
of Dass, 20 I&N Dec. 120, 124 (BIA 1989); 8 C.F.R. §
1208.13(a). An applicant may be given the “benefit of the doubt”
if there is some ambiguity regarding an aspect of his asylum claim.
Matter of Y-B-, 21
I&N Dec. 1136, 1139 (BIA 1998). In some cases, an applicant may
be found to be credible even if he has trouble remembering specific
facts. See, e.g.,
Matter of B-, 21 I&N
Dec. 66, 70-71 (BIA 1995).
minor and isolated discrepancies in the applicant’s testimony
are not necessarily fatal to credibility, omission of key events coupled
with numerous inconsistencies may lead to a finding that the applicant
is not credible. Matter of
A-S-, 21 I&N Dec. 1106, 1109-1110 (BIA 1998). Testimony
is not considered credible when it is inconsistent, contradictory
with current country conditions, or inherently improbable. Matter
of S-M-J-, 21 I&N Dec. 722, 729 (BIA 1997).
adverse credibility finding must be supported by “specific
and cogent” reasons that have a legitimate nexus to the finding
in the case. Matter
Act of 2005 amended various sections of the Immigration and
Nationality Act relating to the adjudication of asylum applications.
Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005). For asylum applications
initially filed on or after May 11, 2005, whether with an asylum officer
or Immigration Judge, the following factors may be considered in the
assessment of an applicant’s credibility: demeanor, candor,
responsiveness, inherent plausibility of the claim, the consistency
between oral and written statements, the internal consistency of such
statements, the consistency of such statements with evidence of record,
and any inaccuracy or falsehood in such statements, whether or not
such inaccuracy or falsehood goes to the heart of the applicant’s
claim. INA § 208(b)(1)(B)(iii); In
re J-Y-C-, 24 I&N Dec. 260 (2007);
In re S-B-, 24 I&N Dec. 42 (BIA 2006).
alien requesting asylum bears the evidentiary burdens of proof and
persuasion in connection with any application under section 208 of
the Act. 8 C.F.R. § 1208.13(a). Uncorroborated testimony that
is credible, persuasive, and specific may be sufficient to sustain
the burden of proof to establish a claim for asylum. See
INA § 208(b)(1)(B)(ii); 8 C.F.R. § 1208.13(a); Matter
of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987). The Board
has recognized the difficulties an asylum applicant may face obtaining
documentary or other corroborative evidence to support his claim of
persecution. Matter of Dass,
20 I&N Dec. at 124. As such, “unreasonable demands are not
placed on an asylum applicant to present evidence to corroborate particular
experiences (e.g., corroboration from the persecutor).” See
Matter of S-M-J-,
21 I&N Dec. at 725.
where it is reasonable to expect corroborating evidence for certain
alleged facts pertaining to the specifics of an applicant’s
claim, such evidence must be provided as long as the applicant has
the evidence or can reasonably obtain it. Matter
of S-M-J-, 21 I&N Dec. at 725. If such evidence is unavailable,
the applicant must explain its unavailability and the immigration
judge must ensure that the applicant’s explanation is included
in the record. Id.
asylum applicant may demonstrate that he is a “refugee”
in either of two ways. First, he may demonstrate that he has suffered
past persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion. INA § 101(a)(42)(A).
Second, he may demonstrate a well-founded fear of future persecution
on account of a protected ground through credible testimony that he
subjectively fears persecution and that his fear is objectively reasonable.
In mixed motive asylum cases, the REAL ID Act of 2005, requires an
applicant to prove that race, religion, nationality, membership in
a particular social group or political opinion was or will be at least
one central reason for the claimed persecution. Section 103(a)(3)
of the REAL ID Act of 2005 , Div. B of Pub. L. 109-13, 119 Stat. 302,303;
In J-B-N & S-M-,
24 I&N Dec. 208 (BIA 2007).
establish past persecution, the applicant must demonstrate that he
suffered persecution in his country of nationality or, if stateless,
in his country of last habitual residence, on account of an actual
or imputed protected ground, and that he is unable or unwilling to
return to, or avail himself of the protection of, that country because
of such persecution. 8 C.F.R. § 1208.13(b)(1). If past persecution
is established, a presumption arises that the applicant has a well-founded
fear of future persecution on the basis of his original claim. Id.
This regulatory presumption may be rebutted if the Department establishes
by a preponderance of the evidence that the applicant’s fear
is no longer well-founded due to a fundamental change in circumstances
or that the applicant could avoid future persecution by relocating
to another part of the country and that it would be reasonable to
expect him to do so. 8 C.F.R. § 1208.13(b)(1)(i)-(ii). An applicant
who fails to present a credible basis for a claim of past persecution
may nevertheless prevail on a theory of future persecution as long
as the factual predicate of the claim of future persecution is independent
from the testimony found not to be credible.
establish a well-founded fear of future persecution, the applicant
must satisfy both a subjective and an objective component. Credible
testimony by an applicant may be enough to satisfy the subjective
component, depending on the circumstances. Once a subjective fear
of persecution is established, the applicant need only show that such
fear is grounded in reality to meet the objective element of the test;
that is, he must present credible, specific and detailed evidence
that a reasonable person in his position would fear persecution.
The applicant’s fear may be well-founded
even if there is only a slight, though discernible, chance of persecution.
480 U.S. at 431 (1987).
applicant who establishes statutory eligibility for asylum still bears
the burden of demonstrating that he merits a grant of asylum as a
matter of discretion. INA § 208(b)(1); see
480 U.S. at 428 (noting that the Attorney General is not required
to grant asylum to everyone who meets the refugee definition). In
determining whether a favorable exercise of discretion is warranted,
both favorable and adverse factors should be considered. Matter
of Pula, 19 I& N Dec. 467, 473 (BIA 1987). Humanitarian
factors, such as age, health, or family ties, should be considered
in the exercise of discretion. Matter
of H-, 21 I&N Dec. 337, 347-348 (BIA 1996) (citing Matter
of Pula, 19 I&N Dec. 467). The danger of persecution should
outweigh all but the most egregious adverse factors. Matter
of Pula, 19 I&N Dec. at 474. A decision to deny asylum
in the exercise of discretion should not be based solely on the alien’s
use of a smuggler to enter the United States or on a partial adverse
An applicant may warrant a grant of asylum in the exercise
of discretion, even where there is little likelihood of future persecution,
if compelling, humanitarian considerations would be involved if he
were forced to return to the country where he suffered persecution
in the past. Matter of H-,
21 I&N Dec. at 347 (noting that “asylum should be granted
in the exercise of discretion... where the asylum applicant has suffered
such severe persecution that he or she should not be expected to repatriate”);
Matter of Chen, 20
I&N Dec. 16, 20-21 (BIA 1989) (granting asylum to a respondent
who suffered severe past persecution in China and demonstrated other
compelling factors to warrant a favorable exercise of discretion).
standard for any bars to asylum (omit if not applicable)
Within One Year of Admission
to Security of U.S.
of Removal under INA § 241(b)(3)
with asylum, a threshold determination must be made as to the credibility
of the applicant for withholding of removal. INA § 241(b)(3)(C);
see also INA §§
1208(b)(1)(B)(ii) and (iii). A claim for withholding of removal is
factually related to an asylum claim, but the applicant bears a heavier
burden of proof to merit relief. For withholding, the applicant must
demonstrate that, if returned to his country, his life or freedom
threatened on account of one of the protected grounds. INA §
241(b)(3). To make this showing, the applicant must establish a “clear
probability” of persecution, meaning that it is “more
likely than not” that he will be subject to persecution on account
of a protected ground if returned to the country from which he seeks
withholding of removal. Cardoza-Fonseca,
480 U.S. 421. The applicant’s credible testimony alone may be
sufficient to sustain this burden of proof. 8 C.F.R. § 1208.16(b).
If an alien demonstrates that s/he suffered past persecution in the
proposed country of removal, the burden shifts to the Department to
demonstrate that a fundamental change in circumstances has occurred
in that country or that the applicant could safely relocate to another
area in the proposed country of removal. 8 C.F.R. § 1208.16(b)(1).
There is no discretionary element. Therefore, if the applicant establishes
eligibility, withholding of removal must be granted. INA § 241(b)(3).
Additionally, there is no statutory time limit for bringing a withholding
of removal claim.
asylum and withholding claims rely on the same factual basis, but
there is a heavier burden for withholding, an applicant who fails
to establish his eligibility for asylum necessarily fails to establish
eligibility for withholding..
applicant is precluded from applying for relief under INA § 241(b)(3)
if he participated in the persecution of others, if he was convicted
of a particularly serious crime, if there are serious reasons to believe
he committed a serious nonpolitical crime outside of the United States,
or if there are reasonable grounds to believe he is a danger to the
security of the United States. INA § 241(b)(3)(B). A particularly
serious crime need not be an aggravated felony. Once the elements
of the offense are examined and found to potentially bring the offense
within the ambit of a particularly serious crime, all reliable information
may be considered in making a particularly serious crime determination,
including but not limited to the record of conviction and sentencing
information. In re N-A-M-,
24 I&N Dec.336 (BIA 2007). When an Immigration Judge issues a
decision granting an alien’s application for withholding of
removal under section 241(b)(3) of the Immigration and Nationality
Act, without a grant of asylum, the decision must include an explicit
order of removal. Matter
of I-S- & C-S-, 24 I&N Dec. 432 (BIA 2008). A grant
of withholding does not prevent DHS from removing the alien to a country
other than the one to which removal has been withheld. 8 C.F.R. §1208.16(f).
of Removal under the Convention Against Torture
Convention Against Torture and its implementing regulations provide
that no person may be removed to a country where it is “more
likely than not” that such person will be subject to torture.
Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”), G.A. Res. 39/46, U.N.
Doc. A/39/51 (Dec.
10, 1984); Pub. L. 105-277 (1998); 8 C.F.R. §§ 1208.16,
1208.17, 1208.18; see also
Matter of M-B-A-,
23 I&N Dec. 474, 477-478 (BIA 2002).
is defined, in part, as the intentional infliction of severe pain
or suffering by, or at the instigation of, or with the consent or
acquiescence of a public official. 8 C.F.R. § 1208.18(a)(1).
It does not include pain or suffering arising only from, inherent
in, or incidental to lawful sanctions, unless such sanctions defeat
the purpose of the CAT. 8 C.F.R. § 1208.18(a)(3). For an act
to constitute torture, it must be directed against a person. Acquiescence
of a public official requires that the official have awareness of
or remain “willfully blind” to the activity constituting
torture, prior to its commission, and thereafter breach his or her
legal responsibility to intervene to prevent such activity. 8 C.F.R.
applicant for CAT relief bears the burden of proof. 8 C.F.R. §
1208.16(c)(2). As with asylum adjudications, the applicant’s
testimony, if credible, may be sufficient to sustain the burden of
proof without corroboration. Id.,
see also Matter
of Y-B-, 21 I&N Dec. at 1139. However,
if the applicant’s testimony is the primary basis for the CAT
claim and it is found not to be credible, that adverse credibility
finding may provide a sufficient basis for denial of CAT relief.
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 that the applicant has suffered
torture in the past; evidence that the applicant could relocate to
a part of the country of removal where he is not likely to be tortured;
evidence of gross, flagrant or mass violations of human rights within
the country of removal; and other relevant information on country
conditions. 8 C.F.R. § 1208.16(c)(3). A pattern of human rights
violations alone is not sufficient to show that a particular person
would be in danger of being subjected to torture upon his return to
that country; specific grounds must exist to indicate that the applicant
will be personally at risk of torture. Matter
of S-V-, 22 I&N Dec. at 1313. To meet his burden of proof,
an applicant for CAT relief must establish that someone in his particular
alleged circumstances is more likely than not to be tortured in the
country designated for removal. Matter
of J-E-, 23 I&N Dec. 291, 303-304 (BIA 2002); Matter
of G-A-, 23 I&N Dec. 366, 371-72 (BIA 2002); Matter
of M-B-A-, 23 I&N Dec. at 478-79. Eligibility for CAT relief
cannot be established by stringing together a series of suppositions
to show that torture is more likely than not to occur unless the evidence
shows that each step in the hypothetical chain of events is more likely
than not to happen. Matter
of J-F-F-, 23 I&N
Dec. 912, 917-918 (A.G. 2006). There is no statutory time limit
for filing a claim under the Convention Against Torture.
applicant who establishes that he or she is entitled to CAT protection
shall be granted withholding of removal unless he or she is subject
to mandatory denial of that relief, in which case he or she shall
be granted deferral of removal. 8 C.F.R. §§ 1208.16(c)(4),
1208.17(a); An applicant is subject to mandatory denial of withholding
of removal under CAT if he or she participated in the persecution
of others, if he or she was convicted of a particularly serious crime,
if there are serious reasons to believe he or she committed a serious
nonpolitical crime outside of the United States, or if there are reasonable
grounds to believe he or she is a danger to the security of the United
States. 8 C.F.R. § 1208.16(d)(2); see
also INA § 241(b)(3)(B). Yet, an alien’s criminal
convictions, no matter how serious, are not a bar to deferral of removal
under the Convention Against Torture. See
8 C.F.R. § 1208.17(a); Matter
of G-A-, 23 I&N Dec. at 368.
an Immigration Judge grants deferral of removal under the Convention
Against Torture, he or she must first issue an explicit order of removal.
The regulations at 8 C.F.R. §
1208.17(b) require that when the Immigration Judge grants deferral
of removal to an alien the judge must inform the alien that the
alien’s removal to the country where the alien is more likely
than not to be tortured shall be deferred until such time as the deferral
is terminated. The Immigration Judge shall further inform the alien
that the grant of deferral of removal:
Does not confer upon the alien any lawful or permanent immigration
status in the United States;
Will not necessarily result in the alien being released from the custody
of the DHS if the alien is subject to such custody;
Is effective only until terminated;
Is subject to review and termination based on a DHS motion if the
Immigration Judge determines that it is not likely that the alien
would be tortured in the country to which removal has been deferred,
or upon the alien’s request; and
Defers removal only to the country where it has been determined that
the alien is likely to be tortured and does not preclude the DHS from
removing the alien to another country where it is not likely the alien
would be tortured.
TO GENERIC ORAL DECISION FORMAT