Asylum, Withholding of Removal, CAT

 

            A.        Asylum

 

            In 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).

                                                 

                        1.         Credibility 

 

            In 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).


            While 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). An adverse credibility finding must be supported by “specific and cogent” reasons that have a legitimate nexus to the finding in the case. Matter of A-S-, supra.


            The REAL ID 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).

            

                        

2.         Corroboration


            An 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.

 

            However, 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.

 

                        3.         Statutory Eligibility


            An 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).


            To 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.


            To 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. INS v.Cardoza-Fonseca, 480 U.S. at 431 (1987).



 

                        4.         Discretion


            An 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 also Cardoza-Fonseca, 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 credibility determination. 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).

 

                        5.         Legal standard for any bars to asylum (omit if not applicable)

 

                                    Filing Within One Year of Admission

                                    Persecutor

Particularly Serious Crime

                                       Serious Nonpolitical Crime

                                       Terrorist/Danger to Security of U.S.

Firm Resettlement

 

            B.        Withholding of Removal under INA § 241(b)(3)

            As 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 would be 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.


            Because 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..


            An 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).


 

            C.        Withholding of Removal under the Convention Against Torture


            The 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. See United 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).


            “Torture” 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. § 1208.18(a)(7).

   

            The 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.


            An 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.

 

             When 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:

 

1. Does not confer upon the alien any lawful or permanent immigration status in the United States;

2. Will not necessarily result in the alien being released from the custody of the DHS if the alien is 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 the alien would be tortured in the country to which removal has been deferred, or upon the alien’s request; and

5. 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.

 

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