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ASYLUM

Asylum Law

Quick Reference

Asylum Quick Reference Outline

I. Definition of a Refugee

II. Persecution or Well-Founded Fear of Persecution

III. On Account of a Protected Ground

IV. Nexus

V. Applicant's Burden of Proof and Credibility

VI. Statutory Bars to Asylum

VII. Discretion


PSG Quick Reference Outline

I. Foundational Principles and Definitions

II. Evolution of the PSG Framework (Three-Part Test)

III. Significant PSG Categories and Related Case Law

IV. Nexus Requirement in PSG Claims

V. Procedural Considerations

VI. Circuit Splits and Evolving Law


BASIC

BASIC

Establishing Eligibility for Asylum

Establishing Eligibility For Asylum

ELIGIBILITY CHART

based on the law as of October 28, 2021
 
ASYLUM
WITHHOLDING
CAT PROTECTION
Type of Harm
Persecution
Future threat to life or freedom
Torture
Likelihood of Harm
Reasonable possibility. A 10% chance can be sufficient
More likely than not. > 50%
More likely than not. > 50%
Nexus Requires
Yes—protected ground must be one central reason for the harm.
Yes—harm must be based on a protected ground.
No nexus required
Who Inflicts Harm
The government
    
or
A non-government actor the government is unable or unwilling to control. | The government
or
A non-government actor the government is unable or unwilling to control. | A public official or person acting in an official capacity or any person acting at the instigation of or with the consent or acquiescence of a public official |
INA §208.13 Establishing asylum eligibility
See INA §208.13
(a) Burden of proof. The burden of proof is on the applicant for asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the Act. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The fact that the applicant previously established a credible fear of persecution for purposes of section 235(b)(1)(B) of the Act does not relieve the alien of the additional burden of establishing eligibility for asylum.
(b) Eligibility. The applicant may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution.
(1) Past persecution. An applicant shall be found to be a refugee on the basis of past persecution if the applicant can establish that he or she has suffered persecution in the past in the applicant's country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to, or avail himself or herself of the protection of, that country owing to such persecution. An applicant who has been found to have established such past persecution shall also be presumed to have a well-founded fear of persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph (b)(1)(i) of this section. If the applicant's fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.
(i) Discretionary referral or denial. Except as provided in paragraph (b)(1)(iii) of this section, an asylum officer shall, in the exercise of his or her discretion, refer or deny, or an immigration judge, in the exercise of his or her discretion, shall deny the asylum application of an alien found to be a refugee on the basis of past persecution if any of the following is found by a preponderance of the evidence:

FUNDAMENTAL CHANGE IN CIRCUMSTANCES

(A) There has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality or, if stateless, in the applicant's country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion; or

INTERNAL RELOCATION

(B) The applicant could avoid future persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, and under all the circumstances, it would be reasonable to expect the applicant to do so.
(ii) Burden of proof. In cases in which an applicant has demonstrated past persecution under paragraph (b)(1) of this section, the Service shall bear the burden of establishing by a preponderance of the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this section.
GRANT IN THE ABSENCE OF WELL-FOUNDED FEAR
(iii) Grant in the absence of well-founded fear of persecution. An applicant described in paragraph (b)(1)(i) of this section who is not barred from a grant of asylum under paragraph (c) of this section, may be granted asylum, in the exercise of the decision-maker's discretion, if:
(A) The applicant has demonstrated compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or
(B) The applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country.
WELL-FOUNDED FEAR
(2) Well-founded fear of persecution.
(i) An applicant has a well-founded fear of persecution if:
(A) The applicant has a fear of persecution in his or her country of nationality or, if stateless, in his or her country of last habitual residence, on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) There is a reasonable possibility of suffering such persecution if he or she were to return to that country; and
(C) He or she is unable or unwilling to return to, or avail himself or herself of the protection of, that country because of such fear.
(ii) An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, if under all the circumstances it would be reasonable to expect the applicant to do so.

WHEN EVIDENCE OF BEING SINGLED OUT IS NOT REQUIRED

(iii) In evaluating whether the applicant has sustained the burden of proving that he or she has a well-founded fear of persecution, the asylum officer or immigration judge shall not require the applicant to provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution if:
(A) The applicant establishes that there is a pattern or practice in his or her country of nationality or, if stateless, in his or her country of last habitual residence, of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
(B) The applicant establishes his or her own inclusion in, and identification with, such group of persons such that his or her fear of persecution upon return is reasonable.

REASONABLENESS OF INTERNAL RELOCATION

(3) Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1)(i) and (ii) and (b)(2) of this section, adjudicators should consider the totality of the relevant circumstances regarding an applicant's prospects for relocation, including the size of the country of nationality or last habitual residence, the geographic locus of the alleged persecution, the size, reach, or numerosity of the alleged persecutor, and the applicant's demonstrated ability to relocate to the United States in order to apply for asylum.
(i) In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored.
(ii) In cases in which the persecutor is a government or is government-sponsored, it shall be presumed that internal relocation would not be reasonable, unless DHS establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate.
(iii) Regardless of whether an applicant has established persecution in the past, in cases in which the persecutor is not the government or a government-sponsored actor, or otherwise is a private actor, there shall be a presumption that internal relocation would be reasonable unless the applicant establishes, by a preponderance of the evidence, that it would be unreasonable to relocate.
(iv) For purposes of determinations under paragraphs (b)(3)(ii) and (iii) of this section, persecutors who are private actors—including persecutors who are gang members, officials acting outside their official capacity, family members who are not themselves government officials, or neighbors who are not themselves government officials—shall not be considered to be persecutors who are the government or government-sponsored absent evidence that the government sponsored the persecution.
Persecution
Particular Social Group
POINT TO ADDRESS IN CLOSING ARGUMENT
UNABLE OF UNWILLING TO CONTROL
BARS TO ASYLUM
DUAL NATIONALITY

Zepeda-Lopez, et al. v. Garland, No. 19-145 (2d Cir. 2022)

The Second Circuit granted Petitioners' petition for review and held that to qualify as a "refugee" under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. The court explained that to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. Section 1158(b)(1)(A).
BASIC

Persecution

What is persecution?

  1. Severe harm or suffering
    1. May involve physical violence
    2. Non-physical violence may also constitute persecution Example: deliberate imposition of severe economic disadvantage or deprivation of liberty, food, housing, employment, or education
  2. Inflicted to punish a person for possessing a belief or characteristic that the persecutor seeks to overcome

References: • Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), (modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)) • Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007)

How is alleged harm assessed?

• When considering whether alleged harm constitutes persecution, the Immigration Judge considers the harm in the aggregate.

• Threats of harm alone usually are not enough to constitute persecution. Actual harm is generally required.

• Multiple incidents, considered together, may constitute persecution, especially if escalating in nature.

References: • Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998) • Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007)

WHAT IS NOT PERSECUTION

The following, without more, generally do NOT constitute persecution:

This list is non-exhaustive—

Well-founded Fear of Persecution

Definition of Persecution

Although persecution is not specifically defined within the INA, the courts have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.” 7 The United Nations High Commission on Refugees (UNHCR) has endorsed a similar standard in its Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. 8 Persecution has also frequently been defined as “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” 9 Persecution is usually physical but can also be emotional or psychological. 10

Recognizing persecution is extremely fact-dependent and fact-specific. Although asylum adjudicators will determine what constitutes persecution on a case-by-case basis, they have consistently recognized certain types of behavior as persecution. The following five broad categories describe abuse that adjudicators may find rise to the level of persecution:

  1. serious physical harm;
  2. coercive medical or psychological treatment;
  3. invidious prosecution or disproportionate punishment for a criminal offense;
  4. severe discrimination and economic persecution, and
  5. severe criminal extortion or robbery.

As explored below, successful applicants must demonstrate that the persecution was motivated by one of the five protected grounds (race, religion, nationality, membership in a PSG or political opinion).

Serious Physical Harm

The most recognized form of persecution is the infliction of serious physical harm, including confinement, kidnapping, torture, and beatings. 11 Rape, sexual assault and other forms of gender-based violence are also persecution. 12

The rape and beating of an LGBTQ/H person on account of their sexual orientation, gender identity, and/or HIV status constitutes persecution. Many LGBTQ individuals have been raped or sexually assaulted as “punishment” for their sexual orientation or gender identity. In the case of Hernandez-Montiel, the Ninth Circuit found that there was persecution when a “gay man with a female sexual identity” was detained, strip-searched, sexually assaulted, and raped by police officers on more than one occasion and sexually assaulted and attacked by a group of men. 13

Threats of violence will generally not be sufficient to establish past persecution unless the threats themselves cause significant harm. “Threats standing alone…constitute persecution in only a small category of cases and only when the threats are so menacing as to cause significant actual suffering or harm.” 14 Threats will be more likely to establish future persecution if the applicant can demonstrate that the group who is making the threats has the will and ability to carry them out. 15

Female genital mutilation (FGM) is also a form of persecution. 16 Although the threat of FGM in the future can demonstrate a well-founded fear of persecution, a recent Ninth Circuit case has held that genital mutilation is an ongoing act of persecution “which cannot constitute a change in circumstances sufficient to rebut the presumption of a well-founded fear.” 17 Thus, both past FGM and the threat of having the procedure can be the basis for a well-founded fear of persecution.

Violence against an applicant’s family members can also support a case for asylum. 18

Coercive Medical and Psychological Treatment

Certain types of medical and psychological treatment will demonstrate a well-founded fear of persecution. The Board of Immigration Appeals has found that “forced institutionalization, electroshock treatments and drug injections could constitute persecution.” 19 The coercive family planning practiced by the Chinese government may also constitute persecution. 20

The most significant holding in this area is the Ninth Circuit decision in Pitcherskaia v. INS. 21 Pitcherskaia, a lesbian from Russia, was arrested and imprisoned on several occasions for protesting violence and discrimination against gays and lesbians in Russia. The militia threatened her with forced institutionalization and required her to attend therapy sessions. She was prescribed sedative medication which she successfully refused. In addition, an ex-girlfriend of hers was institutionalized against her will and was subjected to electric shock treatment and other treatments meant to ‘cure’ her of her sexual orientation. The Ninth Circuit ruled that it is not necessary for the persecutor to intend harm in order for unwanted medical or psychological treatment to amount to persecution, as long as the victim experiences the treatment as harmful. The proper test is whether or not a reasonable person would have found the suffering inflicted as offensive. 22

Lack of access to adequate medical treatment, however, is generally not considered persecution. HIV-positive asylum applicants will have difficulty securing asylum status on this basis. Nevertheless, at least two international human rights law tribunals have recognized that a country’s failure or inability to provide life-sustaining medical treatment can allow for protection under refugee law. 23 In addition, lack of adequate medical treatment for HIV/AIDS has been one of several factors that have been considered when a claim is made based on HIV status. 24 The discrepancy within the cases may be attributed to the difference between not receiving the best quality medical care and government refusal to provide basic medical care to people with HIV/AIDS.

There have also been successful non-precedential Convention Against Torture claims for individuals living with HIV who were able to demonstrate that they would be incarcerated in sub-standard conditions if returned to their home countries. Finding that such incarceration would like lead to death, at least two Immigration Judges (IJs) have granted CAT under these circumstances. 25

Invidious Prosecution or Disproportionate Punishment for a Criminal Offense

Asylum status will not be granted for criminal prosecution as a result of a violation of a fairly administered law. 26 Prosecution may be considered persecution, however, if there is either severe punishment or pretextual prosecution. 27 Asylum adjudicators will focus on whether the punishment under a country’s laws is disproportionately severe or whether the law or punishment is contrary to international human rights standards. 28 In determining whether a particular law is considered to be in violation of human rights standards, asylum adjudicators may use U.S. law as comparison. 29 Since Lawrence v. Texas, private consensual same-sex activity cannot be prohibited by law in the United States. 30 This ruling helps demonstrate that sodomy laws in other countries are in violation of rights explicitly recognized by the United States.

Many countries still prohibit homosexual acts in their criminal codes. The existence of such a law, however, may not be sufficient to demonstrate persecution. Several unpublished decisions emphasize the importance of evidence that the laws are actually enforced. 31

3.1.1.4 Economic Persecution and Other Forms of Severe Discrimination

Generally, harassment and discrimination will not constitute persecution. Persecution is regarded as an extreme concept that differs from general discrimination against minority groups, 32 which requires “more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty.” 33 Severe forms of discrimination may however amount to persecution in some instances. Discrimination will amount to persecution “if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.” 34 Cumulative discrimination that is increasing in severity will have a higher chance of being considered persecution. 35 For instance, the inability to travel safely within a country and forced expulsion from the country amount to persecution.3 36

One form of severe discrimination recognized by the courts is in the form of economic persecution. Economic persecution requires a probability of deliberate imposition of substantial economic disadvantage based on a protected ground. 37 In a non-precedential case, the Ninth Circuit found that a lesbian from the Philippines had not experienced economic persecution when she could not continue working as a dentist because no patients would patronize her after they learned of her sexual orientation. The Court found that the inability to pursue one’s chosen profession, as opposed to the complete inability to find any livelihood, did not rise to the level of persecution, particularly considering that there was no showing that the government was unable or unwilling to address the problem. 38

Severe discrimination may be a ground for applicants living with HIV to claim asylum. The discrimination, however, must go beyond inadequate medical treatment. In one unpublished decision, an IJ found that a married woman living with HIV would be subject to persecution on account of severe discrimination. 39 In making this decision, the IJ considered documentary evidence that people living with HIV lost their jobs when employers learned of their status and that hospitals turned away HIV-positive patients. Additionally, the IJ determined that the woman could face criminal prosecution for being married despite a law barring people with HIV from marrying.

In another non-precedential case, a man living with HIV from Togo was granted asylum by an IJ. The IJ considered evidence that drugs for treating HIV/AIDS were scarce or nonexistent in Togo, that a cousin of the applicant had been sent home to die when he was sick from AIDS-related illnesses, and that the applicant would be ostracized by the community and would be unable to secure work. 40 In contrast, the BIA, in an unpublished decision, affirmed a denial of withholding of removal based on future persecution based on HIV status. In the decision, the BIA suggested that the evidence needs to demonstrate social stigma and not just an increasing infection rate in a particular country. The BIA also noted the importance of showing that poor treatment of those suffering from AIDS is due to severe discrimination against those living with AIDS rather than a reflection of widespread poverty and unemployment. 41

Severe Criminal Extortion or Robbery

Extortion can constitute persecution when the extortion clearly and selectively occurs on account of one of the five statutorily listed grounds (including PSG membership). 42 Threatening to disclose one’s sexual orientation to a hostile community may constitute persecution if the applicant can put forth evidence that makes it reasonable to believe that the extortion was at least partially based on the fact that the individual is gay or imputed to be gay. 43

Crime alone will most likely not reach the level of persecution. 44 If, however, the applicant can demonstrate that a robbery or assault was motivated by a protected characteristic and that the police failed to provide protection, it may constitute persecution. 45

A gay man from Mexico failed to gain asylum because the BIA found that incidents where police had called him immoral and extorted money from him, thieves had robbed him while calling him gay, and a group of men had beat him up while yelling ‘faggot’ did not constitute persecution, but were rather only harassment and discrimination. 46 The case illustrates how robbery and extortion will generally have to reach a certain level of extremity in order to amount to persecution.

Proving that robbery and extortion amount to persecution will be difficult if the country in question is experiencing civil unrest and economic strife, conditions which greatly increase the incidence of both forms of crime against the general population. 47

3.1.2 Establishing a Well-Founded Fear

In order to demonstrate a well-founded fear of return, an asylum applicant must establish that they have both a subjective and objective fear of returning to their country of origin. 48 The subjective component requires that the applicant demonstrate a genuine fear of persecution. 49 “An asylum applicant’s candid, credible, and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.” 50 The UNHCR stated that “an evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions.” 51 Although not binding on U.S. asylum applications, the Handbook is persuasive authority.

The test for the objective component is whether a reasonable person in the applicant’s circumstances would fear persecution. The objective element requires credible, direct, and specific evidence that supports a reasonable fear of persecution. 52 According to the Supreme Court, a chance of persecution that is as low as ten percent may result in a well-founded fear sufficient for asylum. 53 54 As long as the objective component is established by the evidence, it need not be shown that the situation will probably result in persecution. It “is enough that persecution is a reasonable possibility.” 55

Past Persecution

An applicant may be granted asylum based on past persecution alone. If an applicant sufficiently demonstrates past persecution, they are presumed to have a well-founded fear of persecution. 56 The presumption of a well-founded fear of persecution, however, can be rebutted if a preponderance of the evidence demonstrates that there has been a fundamental change in circumstances or that the applicant could reasonably relocate to another part of the country of origin. 57

Even without a demonstration of a well-founded fear of persecution, the applicant may be granted asylum if there are compelling reasons that they are unwilling or unable to return based on the severity of the past persecution of if the applicant has established that there is a reasonable possibility that they may suffer other serious harm. 58

Making a case for a well-founded fear of persecution based on past persecution may be weakened if the applicant remained in their country of origin for a lengthy period of time after the initial persecution without any additional incidents. 59 Adjudicators may also find it damaging to a case if the applicant has returned to the country of origin since arriving in the United States. 60 Return trips without incident may be one factor that can contribute to a rebuttal of the presumption of future persecution established by past persecution. 61 In one unpublished Ninth Circuit opinion, the Court found that return trips alone do not rebut a presumption of well-founded fear. 62 The case, Pena-Torres v. Gonzales, involved a gay applicant who took several trips back to his native Mexico after he was the victim of persecution by the police. The Court found that the return trips alone did not rebut the presumption of well-founded fear, particularly since the State Department report corroborated violence against gay men.

If the applicant’s fear of future persecution is unrelated to the past persecution, the applicant bears the burden of demonstrating that the fear is well-founded. 63 Establishing past persecution generally provides the strongest case for an asylum claim because it puts the burden on DHS to demonstrate that the fear is not well-founded.

Pattern and Practice of Persecution against Similarly Situated Persons

An applicant can demonstrate a well-founded fear of persecution by showing that there is a pattern or practice in their country of persecution of LGBTQ/H individuals. The applicant must establish that they are LGBTQ/H and that their fear upon return is reasonable. 64 Persecution against a specific group must be systemic, pervasive, or organized in order to amount to a pattern or practice sufficient for establishing a fear of future persecution. 65 An applicant will not have a well-founded fear of persecution if it would be reasonable for them to relocate to another part of their country of origin. 66

Fear of future persecution tends to be the more difficult route for demonstrating asylum eligibility. The applicant will need to provide documentation from compelling, accurate, and clearly identified sources in order to establish a pattern of mistreatment. Helpful documents include reports by recognized and respected human rights and LGBTQ/H international rights organizations, such as Amnesty International, Human Rights Watch, the OutRight Action Internatoinal, and the International Lesbian and Gay Association. The applicant should also include newspaper articles regarding violence against LGBTQ/H individuals in the country of origin. Testimony by experts on conditions in the country in question will also be considered. U.S. State Department Reports on country conditions will by highly influential in the absence of contradictory evidence. 67

Individualized Fear of Future Persecution

An individual who has not suffered persecution can nevertheless demonstrate a well-founded fear. In Matter of Mogharrabi, the BIA set forth the following four elements that an applicant for asylum must show in order to establish a well-founded fear of persecution:

  1. the applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
  2. the persecutor is already aware, or could become aware, that the applicant possesses this belief or characteristic;
  3. the persecutor has the capability of punishing the applicant; and
  4. the persecutor has the inclination to punish the applicant. 68

Karouni v. Gonzales is a significant precedential case for sexual-orientation based asylum claims because it is based only on a finding of a well-founded fear of future persecution. Karouni, a gay man living with AIDS from Lebanon, had satisfied the requirements for both a subjective and objective fear based on future persecution by providing evidence that Hizballah militants frequently persecuted gay men, that his cousin had been killed on the basis of his sexual orientation, and that his own sexual orientation had been disclosed to the police by other gay men who had been beaten by authorities. 69

On Account of Membership in a Particular Social Group

The applicant must prove that the persecution they fear in the future is motivated by their actual or imputed membership in a PSG. Since 1994, when Attorney General Janet Reno designated Matter of Toboso-Alfonso as precedent, “homosexual men” has been recognized as a PSG under asylum law. More recently, the Ninth Circuit has ruled that “all alien homosexuals are members of a ‘particular social group.’” 70 In the case Amanfi v. Ashcroft, the Third Circuit held that imputed membership in the PSG of gay men can also be grounds for an asylum claim. In Amanfi, the Court recognized that persecution on account of sexual orientation may be sufficient for an asylum claim even if the victim is actually not gay but is thought to be by the persecutor. 71 In that case, a man from Ghana engaged in homosexual activity with another man in order to be spared from being ritually sacrificed, after which he was continuously beaten by police for his perceived homosexuality.

The Ninth Circuit has also found in the case of Hernandez-Montiel that “gay men with female sexual identities” constitute a PSG. 72 The Court rejected the argument that Hernandez-Montiel’s female identity was volitional, concluding that his presentation as female was immutable and inherent in his identity and that he could not be required to change it. The Court reaffirmed its holding in Reyes-Reyes v. Ashcroft. 73 Although transgender persons have not been explicitly found to constitute a PSG, there have been many successful non-precedential cases. 74

People living with HIV have not explicitly been found to constitute a PSG for the purposes of asylum. In 1996, the legacy INS Office of the General Counsel recommended that the PSG of people with HIV be recognized for the purposes of asylum law. 75 Some IJs have found that HIV status can form the basis of a PSG membership. 76 The BIA has also recognized, in an unpublished opinion, that people living with AIDS can comprise a PSG. 77 Although these decisions are significant for applicants living with HIV, because the rulings are not precedential, such applicants will still need to individually establish that people living with HIV in their countries constitute a PSG.

An essential component of an asylum application for a lesbian, gay, or bisexual applicant will be proving that they are in fact lesbian, gay, or bisexual. Relevant proof may include testimony or documentation by past partners or friends living in the United States.

The applicant must also provide evidence, either direct or circumstantial, that the persecution is on account of their sexual orientation, gender identity, or HIV status. 78 In an unpublished decision, Pena-Torres v. Gonzales, the Ninth Circuit reversed an IJ’s decision that a gay man from Mexico had suffered from police brutality rather than persecution on account of his sexual orientation. 79 The Ninth Circuit remanded the case for a new determination regarding asylum eligibility because it found that an incident where the applicant was beaten to the point where he required medical attention and was threatened by the police after leaving a gay bar, did amount to past persecution on account of his sexual orientation. The Court reached this conclusion by citing evidence that the police had attacked the applicant only after they asked him whether he was gay.

Significantly, the BIA has consistently followed the doctrine of “mixed motives” which holds that there can be more than one motivation for the persecution, as long as the harm was motivated in part by an actual or imputed ground as shown by direct or circumstantial evidence produced by the applicant. 80

If an applicant does not clearly fit within a precedentially defined PSG, they must establish that they are a member of a PSG. The major case setting forth what constitutes membership in a PSG is Matter of Acosta. 81

‘Persecution on account of membership in a particular social group’ mean[s] persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. 82

PSGs should be defined in specific terms rather than in broad, generally applicable terms such as youth and gender. For instance, the following PSGs have met the requirements for asylum: young women of the Tchamba-Kunsuntu tribe who have not suffered FGM, as practiced by that tribe, and who oppose the practice,  and HIV-positive individuals living in the Ivory Coast and Togo.

As noted, broad PSGs, such as gender, will not satisfy the membership requirement as it is currently construed. This exclusion long created difficulties for those who sought asylum in order to escape domestic violence or other forms of violence within the private sphere, before the BIA’s precedential decision in Matter of A-R-C-G-.  Even today, PSGs must be defined with sufficient particularity that its boundaries are discrete and definable.  The group must also be socially distinct—that is, the society in question must distinguish individuals who share the defining characteristic of the PSG from those who do not.  This “visibility” does not mean ocular or literal visibility, or explicit, outward identification by the applicant with the PSG.

Political opinion may be an additional ground that LGBTQ/H individuals can claim asylum. LGBTQ/H people who are involved with gay rights groups may use political opinion as a supplemental ground for asylum claims. In addition, the BIA has found that persecution can be based on an imputed political opinion.

BASIC

Refugee

REFUGEE

A refugee is defined at INA §§208(B)(1)(A), 101(a)(42)(A) as:

Any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

DUAL NATIONALITY

Zepeda-Lopez, et al. v. Garland, No. 19-145 (2d Cir. 2022)

The Second Circuit granted Petitioners' petition for review and held that to qualify as a "refugee" under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. The court explained that to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. Section 1158(b)(1)(A). But this is only one step in the asylum process. Even if an individual is a refugee, there are other bars to asylum, see 8 U.S.C. Sections 1158(a)(2) (exceptions to authority to apply for asylum), 1158(b)(2) (exceptions to eligibility for asylum), and even assuming all bars are overcome, the decision of whether to grant a particular asylum application is still a matter of discretion for the Attorney General. Further, the court held that to be considered a "refugee" under Section 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality.

BASIC

Definition of Refugee

Definition of Refugee

8 USC 1101(a); INA 101(a)

(42) The term "refugee" means

(A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or

(B) in such special circumstances as the President after appropriate consultation (as defined in section 1157(e) of this title) may specify, any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

The term "refugee" does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion. For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion

BASIC

Basic Eligibility

INA § 208 (8 USC 1158) Asylum

Authority to apply for asylum

1. In general

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b) of this Act [8 U.S.C 1225(b)] .

2. Exceptions

A. Safe third country

Paragraph (1) shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

B. Time limit

Subject to subparagraph (D), paragraph (1) shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States.

C. Previous asylum applications

Subject to subparagraph (D), paragraph (1) shall not apply to an alien if the alien has previously applied for asylum and had such application denied.

D. Changed circumstances

An application for asylum of an alien may be considered, notwithstanding subparagraphs (B) and (C) , if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the period specified in subparagraph (B).

E. Applicability

Subparagraphs (A) and (B) shall not apply to an unaccompanied alien child (as defined in section 279(g) of title 6).


Limitation on judicial review

No court shall have jurisdiction to review any determination of the Attorney General under paragraph (2).

b. Conditions for granting asylum

1. In general

A. Eligibility

The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General under this section if the Secretary of Homeland Security or the Attorney General determines that such alien is a refugee within the meaning of section 101(a)(42)(A) of this Act [8 U.S.C 1101(a)(42)(A)] .

B. Burden of proof

i. In general

The burden of proof is on the applicant to establish that the applicant is a refugee, within the meaning of section 101(a)(42)(A) of this Act [8 U.S.C 1101(a)(42)(A)] . To establish that the applicant is a refugee within the meaning of such section, the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.

ii. Sustaining burden

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.

iii. Credibility determination

Considering 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.

2. Exceptions

A. In general

Paragraph (1) shall not apply to an alien if the Attorney General determines that—

i. the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

ii. the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;

iii. there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States;

iv. there are reasonable grounds for regarding the alien as a danger to the security of the United States;

v. the alien is described in subclause (I), (II), (III), (IV), or (VI) of section 212(a)(3)(B)(i) of this Act [8 U.S.C 1182(a)(3)(B)(i)] or section 237(a)(4)(B) of this Act [8 U.S.C 1227(a)(4)(B)] (relating to terrorist activity), unless, in the case only of an alien described in subclause (IV) of section 212(a)(3)(B)(i) of this Act [8 U.S.C 1182(a)(3)(B)(i)] , the Attorney General determines, in the Attorney General's discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or

vi. the alien was firmly resettled in another country prior to arriving in the United States.

B. Special rules

i. Conviction of aggravated felony

For purposes of clause (ii) of subparagraph (A), an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.

ii. Offenses

The Attorney General may designate by regulation offenses that will be considered to be a crime described in clause (ii) or (iii) of subparagraph (A).

C. Additional limitations

The Attorney General may by regulation establish additional limitations and conditions, consistent with this section , under which an alien shall be ineligible for asylum under paragraph (1).

D. No judicial review

There shall be no judicial review of a determination of the Attorney General under subparagraph (A)(v).

3. Treatment of spouse and children

A. In general

A spouse or child (as defined in section 101(b)(1)(A) [8 U.S.C 1101(b)(1)(A)] , (B), (C), (D), or (E) of this Act ) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section , be granted the same status as the alien if accompanying, or following to join, such alien.

B. Continued classification of certain aliens as children

An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section , shall continue to be classified as a child for purposes of this paragraph and section 209(b)(3) of this Act [8 U.S.C 1159(b)(3)] , if the alien attained 21 years of age after such application was filed but while it was pending.

C. Initial jurisdiction

An asylum officer (as defined in section 235(b)(1)(E) of this Act [8 U.S.C 1225(b)(1)(E)] ) shall have initial jurisdiction over any asylum application filed by an unaccompanied alien child (as defined in section 279(g) of title 6), regardless of whether filed in accordance with this section or section 235(b) of this Act [8 U.S.C 1225(b)] .

c. Asylum status

1. In general

In the case of an alien granted asylum under subsection (b) of this section , the Attorney General—

A. shall not remove or return the alien to the alien's country of nationality or, in the case of a person having no nationality, the country of the alien's last habitual residence;

B. Shall authorize the alien to engage in employment in the United States and provide the alien with appropriate endorsement of that authorization; and

C. may allow the alien to travel abroad with the prior consent of the Attorney General.

2. Termination of asylum

Asylum granted under subsection (b) of this section does not convey a right to remain permanently in the United States, and may be terminated if the Attorney General determines that—

A. the alien no longer meets the conditions described in subsection (b)(1) of this section owing to a fundamental change in circumstances;

B. the alien meets a condition described in subsection (b)(2) of this section ;

C. the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien is eligible to receive asylum or equivalent temporary protection;

D. the alien has voluntarily availed himself or herself of the protection of the alien's country of nationality or, in the case of an alien having no nationality, the alien's country of last habitual residence, by returning to such country with permanent resident status or the reasonable possibility of obtaining such status with the same rights and obligations pertaining to other permanent residents of that country; or

E. the alien has acquired a new nationality and enjoys the protection of the country of his or her new nationality.

3. Removal when asylum is terminated

An alien described in paragraph (2) is subject to any applicable grounds of inadmissibility or deportability under   section 212(a) [8 U.S.C 1182(a)] and section 237(a) of this Act [8 U.S.C 1227(a)] , and the alien's removal or return shall be directed by the Attorney General in accordance with section 240 [8 U.S.C 1229a] and section 241 of this Act [8 U.S.C 1231] .

BASIC

ONE-YEAR FILING DEADLINE

1-Year Filing Deadline

8 CFR §1208.4(a)(2)

Calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later.

BASIC

Statutes & Regulations

STATUTES

Asylum

sections 208(b)(1)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1158(b)(1).

Withholding of removal

Section 241(b)(3)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §1231(b)(3)(A).

ELIGIBILITY

In order to establish a “well-founded fear” of persecution, an asylum applicant need only show a reasonable possibility that she will be persecuted. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). An applicant who establishes past persecution by the government (or an entity the government cannot or will not control) on account of one of the five protected grounds has met that test and established a rebuttable presumption that she has a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(1).

An applicant can also establish asylum eligibility by demonstrating an independent well-founded fear of future persecution, i.e., a reasonable possibility that she will be persecuted by the government (or an entity the government cannot or will not control) on account of one of the five protected grounds. See 8 C.F.R. § 208.13(b)(2); Ayele v. Holder, 564 F.3d 862, 868 (7th Cir. 2009).

The Supreme Court has stated that the following is sufficient to establish a well-founded fear: 1. “having a fear of an event happening when there is less than a 50% chance that it will take place, and 2. “establishing a 10% chance of being shot, tortured, or…otherwise persecuted.” Cardoza-Fonseca, 480 U.S. 421.

REGULATIONS

8 CFR §1208.4 Filing the application

8 CFR § 1208.4(a)(4) Changed Circumstances

(i) The term “changed circumstances” in section 208(a)(2)(D) of the Act shall refer to circumstances materially affecting the applicant's eligibility for asylum. They may include, but are not limited to:

(A) Changes in conditions in the applicant's country of nationality or, if the applicant is stateless, country of last habitual residence;

(B) Changes in the applicant's circumstances that materially affect the applicant's eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk; or

(C) In the case of an alien who had previously been included as a dependent in another alien's pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorce, death, or attainment of age 21.

(ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”

8 CFR § 1208.13 Establishing asylum eligibility.

8 CFR §1208.16 Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.

8 CFR §1208.17 Deferral of removal under the Convention Against Torture.




Unable or Unwilling to Protect

Establishing that the government of the home country is unable or unwilling to protect the applicant. 

Unable or Unwilling to Protect

Unable or Unwilling

Establishing that the Government is "Unable or Unwilling" to Protect the Respondent 

REQUIREMENT

An applicant for asylum and withholding of removal has the burden to establish past persecution or fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. §§ 1208.13(a), 1208.16(b). Evidence of physical abuse and violence at the hands of government agents is relevant to whether the petitioner has experienced past persecution or has a well- founded fear of future persecution. See Beskovic v. Gonzales, 467 F.3d 223, 225‒26 (2d Cir. 2006).

“Private acts can also constitute persecution if the government is unable or unwilling to control such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015). Evidence of physical abuse and violence at the hands of government agents is relevant to whether the petitioner has experienced past persecution or has a well-founded fear of future persecution. See Beskovic v. Gonzales, 467 F.3d 223, 225‒26 (2d Cir. 2006). “Private acts can also constitute persecution if the government is unable or unwilling to control such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).

“Under the unwilling-or-unable standard, a finding of persecution ordinarily requires a determination that government authorities, if they did not actually perpetrate or incite the persecution, condoned it or at least demonstrated a complete helplessness to protect the victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021) (quotation marks omitted).

“[F]ailure to report harm is not necessarily fatal to a claim of persecution if the applicant can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.” Matter of C-G-T-, 28 I. & N. Dec. 740, 743 (B.I.A. 2023) (quotation marks omitted); cf. Quintanilla-Mejia v. Garland, 3 F.4th 569, 593 (2d Cir. 2021) (“[F]ailure to ask for police help is not enough, by itself, to preclude a finding of acquiescence.”).

BIA CASE LAW

C-G-T, 28 I. & N. Dec. 740 (BIA 2023)

(1) Determining whether the government is or was unable or unwilling to protect the respondent from harm is a fact-specific inquiry based on consideration of all evidence.

(2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecution if the respondent can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.

(3) When considering future harm, adjudicators should not expect a respondent to hide his or her sexual orientation if removed to his or her native country.

the Immigration Judge should consider the reasonableness of the respondent’s failure to seek assistance rom the authorities in his country as part of considering all evidence regarding whether the government was unable or unwilling to protect the respondent. See id. at 1069 (stating that whether or not a victim reports harm, and evidence explaining why not, are factors in the unable or unwilling analysis). This analysis should include the respondent’s testimony, available corroborating evidence, and country conditions reports. See, e.g., Rosales Justo, 895 F.3d at 166 (emphasizing the importance of reviewing the entire record); Matter of S-A-, 22 I&N Dec. at 1332–33, 1335 (evaluating record evidence). 5 For example, the record indicates the respondent testified that children do not make reports to the authorities in the Dominican Republic and they do what they are told. He testified that his father would have killed him if he reported the abuse to the authorities, that he did not report to a teacher because everyone knew his father, and that he reported the abuse to his grandmother but she did not take any action. The respondent also testified that his access to government assistance was further limited because he lived in a small town far from the nearest city. Determining whether it was reasonable for the respondent not to seek help from the authorities in his own country is a fact-based inquiry. Cf. Rosales Justo, 895 F.3d at 161 n.6. A mere “subjective belief” that reporting would be futile is not sufficient to establish that a government is unable or unwilling to provide protection. Morales-Morales, 857 F.3d at 135. Rather, a respondent must demonstrate, based on the record as a whole, that the government is unable or unwilling to protect him or her from persecution. Compare Morales-Morales, 857 F.3d at 136 (concluding that the respondent did not satisfy his burden because he testified that if he had reported incidents, the perpetrators “would go to jail”), with Doe v. Att’y Gen. of U.S.,

 

Higher Burden For Showing Unable or Unwilling in the Context of CAT 

Matter of O-A-R-G-, 29 IN Dec. 30 (BIA 2025)

(1) Where a particular social group is defined by “former” status, Immigration Judges must ensure the persecutor’s conduct was based on a desire to overcome or animus toward the respondent’s membership in a group defined specifically by that former status, not retribution for conduct the respondent engaged in while a current member of the group.

(2) Acquiescence in the context of protection under the Convention Against Torture requires a greater degree of governmental complicity than is required to establish a government is unable or unwilling to protect a respondent in the asylum context.

 

SECOND CIRCUIT CASE LAW

Castellanos-Ventura v. Garland, No. 21-6293 (2d Cir. 2024)

https://law.justia.com/cases/federal/appellate-courts/ca2/21-6293/21-6293-2024-09-13.html

The United States Court of Appeals for the Second Circuit reviewed the case. The court found that the agency incorrectly applied the "unable or unwilling to control" standard. It noted the agency failed to consider whether it would have been futile or dangerous for Castellanos-Ventura, as an abused child, to seek protection. Additionally, the agency did not evaluate significant evidence indicating the Honduran government's inability to protect women and children from violence. The court granted the petition for review and remanded the case to the BIA for further proceedings consistent with its opinion.

Castellanos-Ventura v. Garland, 21-6293 (2d Cir. 2024)

https://www.courtlistener.com/opinion/10116086/castellanos-ventura-v-garland/

A woman was being victimized by members of her family and criminals in her community in Honduras. She never went to the police or reported the abuse. Nevertheless, the Second Circuit found that due to her being under 17 for most of the abuse and due to the country condition reports showing how difficult it is for women and children to report crime in Honduras, the BIA erred by finding that she did not prove that the government of Honduras was unable or unwilling to protect her.

“Under the unwilling-or-unable standard, a finding of persecution ordinarily requires a determination that government authorities, if they did not actually perpetrate or incite the persecution, condoned it or at least demonstrated a complete helplessness to protect the victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021) (quotation marks omitted). “[F]ailure to report harm is not necessarily fatal to a claim of persecution if the applicant can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.” Matter of C-G-T-, 743 (B.I.A. 2023) (quotation marks omitted); cf. Quintanilla-Mejia v. Garland, 593 (2d Cir. 2021) (“[F]ailure to ask for police help is not enough, by itself, to preclude a finding of acquiescence.”).

Unable or Unwilling to Protect

Unable or Unwilling Case Law

Primary Case Law

C-G-T, 28 I. & N. Dec. 740 (BIA 2023)

(1) Determining whether the government is or was unable or unwilling to protect the respondent from harm is a fact-specific inquiry based on consideration of all evidence.

(2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecution if the respondent can demonstrate that reporting private abuse to government
authorities would have been futile or dangerous.

(3) When considering future harm, adjudicators should not expect a respondent to hide his or her sexual orientation if removed to his or her native country.


INS v. CARDOZA-FONSECA, 480 U.S. 421 (1987)

Standard of proof for asylum:
The 243(h) "clear probability" standard of proof does not govern asylum applications under 208(a). Pp. 427-449.

(a) The plain meaning of the statutory language indicates a congressional intent that the proof standards under 208(a) and 243(h) should differ. Section 243(h)'s "would be threatened" standard has no subjective component, but, in fact, requires objective evidence that it is more likely than not that the alien will be subject to persecution upon deportation. In contrast, 208(a)'s reference to "fear" makes the asylum eligibility determination turn to some extent on the alien's subjective mental state, and the fact that the fear must be "well founded" does not transform the standard into a "more likely than not" one. Moreover, the different emphasis of the two standards is highlighted by the fact that, although Congress simultaneously drafted 208(a)'s new standard and amended 243(h), it left 243(h)'s old standard intact. Pp. 430-432.

(b) The legislative history demonstrates the congressional intent that different standards apply under 208(a) and 243(h). Pp. 432-443.

(c) The argument of the Immigration and Naturalization Service (INS) that it is anomalous for 208(a) to have a less stringent eligibility standard than 243(h) since 208(a) affords greater benefits than 243(h) fails because it does not account for the fact that an alien who satisfies the 208(a) standard must still face a discretionary asylum decision by the Attorney General, while an alien satisfying 243(h)'s stricter standard is automatically entitled to withholding of deportation. Pp. 443-445.

(d) The INS's argument that substantial deference should be accorded BIA's position that the "well-founded fear" and "clear probability" standards are equivalent is unpersuasive, since the narrow legal question of identicality is a pure question of statutory construction within the traditional purview of the courts, and is not a question of case-by-case interpretation of the type traditionally left to administrative agencies. Pp. 445-448.

REQUIREMENT

An applicant for asylum and withholding of removal has the burden to establish past persecution or fear of future persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. §§ 1208.13(a), 1208.16(b). Evidence of physical abuse and violence at the hands of government agents is relevant to whether the petitioner has experienced past persecution or has a well- founded fear of future persecution. See Beskovic v. Gonzales, 467 F.3d 223, 225‒26

(2d Cir. 2006). “Private acts can also constitute persecution if the government is unable or unwilling to control such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015). Evidence of physical abuse and violence at the hands of government agents is relevant to whether the petitioner has experienced past persecution or has a well-founded fear of future persecution. See Beskovic v. Gonzales, 467 F.3d 223, 225‒26 (2d Cir. 2006). “Private acts can also constitute persecution if the government is unable or unwilling to control such actions.” Pan v. Holder, 777 F.3d 540, 543 (2d Cir. 2015).

“Under the unwilling-or-unable standard, a finding of persecution ordinarily requires a determination that government authorities, if they did not actually perpetrate or incite the persecution, condoned it or at least demonstrated a complete helplessness to protect the victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021) (quotation marks omitted).

“[F]ailure to report harm is not necessarily fatal to a claim of persecution if the applicant can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.” Matter of C-G-T-, 28 I. & N. Dec. 740, 743 (B.I.A. 2023) (quotation marks omitted); cf. Quintanilla-Mejia v. Garland, 3 F.4th 569, 593 (2d Cir. 2021) (“[F]ailure to ask for police help is not enough, by itself, to preclude a finding of acquiescence.”).

BIA CASE LAW

C-G-T, 28 I. & N. Dec. 740 (BIA 2023)

(1) Determining whether the government is or was unable or unwilling to protect the respondent from harm is a fact-specific inquiry based on consideration of all evidence.

(2) A respondent’s failure to report harm is not necessarily fatal to a claim of persecution if the respondent can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.

(3) When considering future harm, adjudicators should not expect a respondent to hide his or her sexual orientation if removed to his or her native country.

the Immigration Judge should consider the reasonableness of the respondent’s failure to seek assistance rom the authorities in his country as part of considering all evidence regarding whether the government was unable or unwilling to protect the respondent. See id. at 1069 (stating that whether or not a victim reports harm, and evidence explaining why not, are factors in the unable or unwilling analysis). This analysis should include the respondent’s testimony, available corroborating evidence, and country conditions reports. See, e.g., Rosales Justo, 895 F.3d at 166 (emphasizing the importance of reviewing the entire record); Matter of S-A-, 22 I&N Dec. at 1332–33, 1335 (evaluating record evidence). 5 For example, the record indicates the respondent testified that children do not make reports to the authorities in the Dominican Republic and they do what they are told. He testified that his father would have killed him if he reported the abuse to the authorities, that he did not report to a teacher because everyone knew his father, and that he reported the abuse to his grandmother but she did not take any action. The respondent also testified that his access to government assistance was further limited because he lived in a small town far from the nearest city. Determining whether it was reasonable for the respondent not to seek help from the authorities in his own country is a fact-based inquiry. Cf. Rosales Justo, 895 F.3d at 161 n.6. A mere “subjective belief” that reporting would be futile is not sufficient to establish that a government is unable or unwilling to provide protection. Morales-Morales, 857 F.3d at 135. Rather, a respondent must demonstrate, based on the record as a whole, that the government is unable or unwilling to protect him or her from persecution. Compare Morales-Morales, 857 F.3d at 136 (concluding that the respondent did not satisfy his burden because he testified that if he had reported incidents, the perpetrators “would go to jail”), with Doe v. Att’y Gen. of U.S.,

SECOND CIRCUIT CASE LAW

Castellanos-Ventura v. Garland, No. 21-6293 (2d Cir. 2024)

https://law.justia.com/cases/federal/appellate-courts/ca2/21-6293/21-6293-2024-09-13.html

The United States Court of Appeals for the Second Circuit reviewed the case. The court found that the agency incorrectly applied the "unable or unwilling to control" standard. It noted the agency failed to consider whether it would have been futile or dangerous for Castellanos-Ventura, as an abused child, to seek protection. Additionally, the agency did not evaluate significant evidence indicating the Honduran government's inability to protect women and children from violence. The court granted the petition for review and remanded the case to the BIA for further proceedings consistent with its opinion.

Castellanos-Ventura v. Garland, 21-6293 (2d Cir. 2024)

https://www.courtlistener.com/opinion/10116086/castellanos-ventura-v-garland/

A woman was being victimized by members of her family and criminals in her community in Honduras. She never went to the police or reported the abuse. Nevertheless, the Second Circuit found that due to her being under 17 for most of the abuse and due to the country condition reports showing how difficult it is for women and children to report crime in Honduras, the BIA erred by finding that she did not prove that the government of Honduras was unable or unwilling to protect her.

“Under the unwilling-or-unable standard, a finding of persecution ordinarily requires a determination that government authorities, if they did not actually perpetrate or incite the persecution, condoned it or at least demonstrated a complete helplessness to protect the victims.” Singh v. Garland, 11 F.4th 106, 114–15 (2d Cir. 2021) (quotation marks omitted). “[F]ailure to report harm is not necessarily fatal to a claim of persecution if the applicant can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.” Matter of C-G-T-, 743 (B.I.A. 2023) (quotation marks omitted); cf. Quintanilla-Mejia v. Garland, 593 (2d Cir. 2021) (“[F]ailure to ask for police help is not enough, by itself, to preclude a finding of acquiescence.”).

CREDIBILITY


CREDIBILITY

Credibility

Credibility

When applying for relief or protection from removal, an applicant has the burden of proof. INA § 240(c)(4)(A). In all applications for relief, the Court must first make a threshold determination of an applicant’s credibility. INA § 241(b)(3)(C); Matter of O-D-, 21 I&N Dec. 1079, 1081 (BIA 1998). Applications for relief made on or after May 11, 2005, are subject to the credibility assessment standards articulated in the REAL ID Act. Matter of S-B-, 24 I&N Dec. 42, 45 (BIA 2006).

In making a credibility determination, the Court considers the totality of the circumstances and all relevant factors. INA § 240(c)(4)(C); Matter of J-Y-C-, 24 I&N Dec. 260, 266 (BIA 2007). A credibility determination may be based on the applicant’s demeanor, candor, or responsiveness, and the inherent plausibility of his account. INA § 240(c)(4)(C). An applicant’s own testimony, without corroborating evidence, may be sufficient proof to support a fear-based application if that testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear of persecution. 8 C.F.R. § 1208.13(a); Matter of Mogharrabi, 19 I&N Dec. 439, 445 (BIA 1987). However, “the weaker [a noncitizen’s] testimony, the greater the need for corroborative evidence.” Matter of Y-B-, 21 I&N Dec. 1136, 1139 (BIA 1998).

CASE LAW

Matter of H-C-R-C-, 28 I&N Dec. 809 (BIA 2024)

(1) Applicants bear the burden of establishing their own credibility, and no statute or legal
precedent compels an Immigration Judge to conclude that an applicant’s testimony is
credible.

(2) Rape is sufficiently severe to constitute torture and can never be a lawful sanction
under the Convention Against Torture.

 

Matter of B-, 21 I&N Dec. 66 (BIA 1995)   

FULL DECISION                               BIA Declines to Adopt Adverse Cred Finding

Under the circumstances of this case, where an asylum applicant's testimony was plausible, detailed, internally consistent, consistent with the asylum application, and unembellished during the applicant's repeated relating of events in a probing cross-examination, the Board declines to adopt the Immigration Judge's adverse credibility finding.

 

In Matter of B-Y-, 25 I&N Dec. 236 (BIA 2010)              (PDF) 

(1) In making a frivolousness determination, an Immigration Judge may incorporate by reference any factual findings made in support of an adverse credibility finding, so long as the Immigration Judge makes explicit findings that the incredible aspects of the asylum application were material and were deliberately fabricated. Matter of Y-L-, 24 I&N Dec. 151 (BIA 2007), clarified.
(2) In considering an asylum applicant's explanations for inconsistencies or discrepancies, an Immigration Judge making a frivolousness determination must separately address the applicant's explanations in the context of how they may have a bearing on the materiality and deliberateness requirements unique to that determination. 
(3) When the required frivolousness warnings have been given to an asylum applicant prior to the merits hearing, the Immigration Judge is not required to afford additional warnings or to seek further explanation in regard to inconsistencies that have become obvious during the course of the hearing.

 

Inconsistencies

Respondent provided inconsistent and implausible testimony regarding various aspects of his alleged harm. Additionally, when given the opportunity to explain these inconsistencies and implausible testimony, Respondent failed to provide reasonable and plausible explanations. See INA § 240(c)(4)(C); Tewabe, 446 F.3d at 538. Respondent also failed to provide sufficient corroborative evidence to support his claims, particularly given the numerous inconsistencies in the record. See Matter of Y-B-, 21 I&N Dec. at 1139. See Kourouma v. Holder, 588 F.3d 234 (4th. Cir. 2009) (noting that “omissions and inconsistencies which go to the heart of an asylum seeker’s claim are greater cause for concern.”).
CREDIBILITY

Fourth Circuit Case Law

Fourth Circuit Case Law on Credibility

 

When making an adverse credibility finding, the Court must provide “specific, cogent reason[s].” Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). “Examples of specific and cogent reasons include inconsistent statements, contradictory evidence, and inherently improbable testimony.” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006). “The existence of only a few such inconsistencies, omissions, or contradictions can be sufficient for the agency to make an adverse credibility determination as to the applicant's entire testimony regarding past persecution.” Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011); see also Camara v. Ashcroft, 378 F.3d 361, 369 (4th Cir. 2004) (upholding an immigration judge’s adverse credibility determination based on two inconsistencies).

CREDIBILITY

Overturning Asylum Denials Under the Compelling Evidence Standard

The Ninth Circuit routinely overturns asylum denials that should be upheld under the compelling evidence standard set forth in 8 U.S.C. 1252 (b)(4) and INS v. Elias-Zacarias, 502 U.S. 478 (1992). The court isolates the individual elements of the adverse credibility determination, discarding even partially flawed elements, and reweighing the evidence in light of any plausible alternative arguments.

This contrasts with the practice of other circuits, even in cases not covered by the REAL ID Act. See, e.g., Diadjou v. Holder, 662 F.3d 265, 278 (4th Cir. 2011)(cumulative effect of “seemingly minor and tangential inconsistencies” can justify adverse credibility finding); Zine v. Mukasey, 517 F.3d 535, 541 (8th Cir. 2008)(even where individual reasons are inadequate support, the issue is whether “their cumulative weight” is sufficient); Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007) (although individual inconsistencies may “seem like small potatoes . . . their cumulative effect is great”); Xiao Ji Chen v. U.S. DOJ, 434 F.3d 144, 160 n.15 (2d Cir. 2006) (“the IJ did not err in stressing the cumulative impact” of the inconsistencies); Yu v. Ashcroft, 364 F.3d 700, 704 (6th Cir. 2004) (although minor inconsistencies about dates would alone be inadequate, “their cumulative effect gives support to the other grounds”); Chun v. INS, 40 F.3d 76, 78-79 (5th Cir. 1994) (upholding an adverse credibility finding based upon collective significance of inconsistencies).

This problem has plagued government litigators for over 20 years. In 1990, Judge Sneed noted developing problems in the circuit’s asylum case law, including heightened obstacles to adverse credibility findings. Mendoza Perez v. INS, 902 F.2d 760, 764 (9th Cir. 1990) (Sneed, J., concurring specially). The government anticipated that first the Supreme Court’s 1992 Elias-Zacarias decision, and later the 1996 IIRIRA amendments, would rein in the court’s overreaching; only the passage of time revealed that the court would ignore both.

Individual judges began dissenting with more frequency and a greater sense of urgency. See, e.g,. Borja v. INS, 175 F.3d 732, 738 (9th Cir. 1999) (en banc) (O’Scannlain, Kleinfeld, JJ., dissenting); Mgoian v. INS, 184 F.3d 1029, 1037 (9th Cir. 1999) ( Rymer, J., dissenting). The government responded by filing a series of rehearing petitions in a concerted effort to challenge the Ninth Circuit’s judge-made rules, such as the “divide-and-conquer” analysis, that usurp the agency’s factfinding authority. Although the Ninth Circuit denied our rehearing petitions, the effort produced a remarkable dissent in Abovian v. INS, 257 F.3d 971 (9th Cir. 2001), in which Judges O’Scannlain, Trott, T.G. Nelson, Kleinfeld, Graber, Tallman, and Rawlinson joined Judge Kozinski in soundly criticizing the court’s approach. In light of the Ninth Circuit’s unwillingness to reconsider its credibility jurisprudence, the Solicitor General filed a petition for a writ of certiorari. Chen v. INS, 266 F.3d 1094 (9th Cir. 2001), cert. granted, judgment vacated and remanded for reconsideration in light of INS v. Ventura, 537 U.S. 1016, on remand, 326 F.3d 1316 (9th Cir. 2003).

The Supreme Court’s vacatur and remand for reconsideration in light of the Ventura ruling failed to persuade the Ninth Circuit to change its approach. The Solicitor General subsequently asked the Ninth Circuit to reconsider and reject its credibility rules in response to a sua sponte call for the parties’ views on whether the court should rehear Suntharalinkam v. Keisler, 506 F.3d 822 (9th Cir. 2007). T h e court granted en banc rehearing, but Suntharalinkam mooted out when the petitioner withdrew his petition following oral argument. Both adverse credibility losses and individual dissents continued.

The Supreme Court found the Ninth Circuit’s “evaluation and rejection of . . . factors in isolation from each other does not take into account the ‘totality of the circumstances’” and explicitly rejected the “divide-and-conquer analysis.” Id. at 274. It held that it was “reasonable for [the agent] to infer from his observations, his registration check, and his experience as a border control agent. . . .” Id. at 277. It stated that “A determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct,” ibid., meaning that the possibility that each separate factor might relate to innocent conduct does not prevent their aggregate from giving rise to reasonable suspicion.

After granting en banc rehearing and ordering that the panel decision not be cited, 714 F.3d 1134 (April 25, 2013), the en banc court found reasonable suspicion. 738 F.3d 1074 (Dec. 24, 2013) (Pregerson, Reinhardt, Thomas, J.J., dissenting). The court noted that reasonable suspicion requires more than a hunch but less than probable cause and “is not a particularly high threshold to reach.” 738 F.3d at 1078. The court observed that the correct approach “precludes a ‘divide-and-conquer analysis’ because even though each of the suspect’s ‘acts was perhaps innocent in itself . . . taken together, they [may] warrant[] further investigation.” Ibid., quoting Arvizu, 534 U.S. at 274. “The nature of the totality-of-the circumstances analysis also precludes us from holding that certain factors are presumptively given no weight without considering those factors in the full context of each particular case.” 738 F.3d at 1079. Proper evaluation “cannot be done in the abstract by divorcing factors from their context in the stop at issue.” Id.

“And the facts must be filtered through the lens of the agents’ training and experience.” Ibid. The en banc court stated that the district court’s findings were not clearly erroneous and that, given the totality of the circumstances, “many of the facts found relevant by the district court are highly probative in our view as well.” Ibid. “In light of the totality of the circumstances, giving due weight to the agents’ experience and reasonable deductions, we hold that the agents had a reasonable, particularized basis. . . .” Id. at 1080. There is no need for an officer to rule out an innocent explanation; . . . [a] series of innocent acts may be enough for reasonable suspicion. . . .” Ibid. “We need not decide whether any single fact would be enough to support suspicion because we are not called upon to review single facts in isolation.” Id. at 1081.

The threshold for according deference to agency adverse credibility findings should be even lower, because the substantial evidence standard – a more deferential standard – applies to them.

By statute, “the administrative findings of fact [underlying an immigration petition for review] are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. 1252(b)(4)(B).

The relevance of Arvizu is particularly strong in petition for review cases in which the REAL ID Act applies, i.e., cases in which an application for asylum, withholding, and/or protection under the Convention Against Torture originally was filed on or after May 11, 2005. Section 101(a)(3)(B)(iii) of the REAL ID Act added new language to the INA on the subject of credibility determinations. That language begins: “Considering the totality of the circumstances, and all relevant factors. . . .” 8 U.S.C. 1158(b)(1)(B)(iii) (asylum). See also 8 U.S.C. 1231(b) (3 (C) (withholding); 8 C.F.R. 208.16 (b) (Convention Against Torture).

CREDIBILITY

How Can IJ Find Lack of Credibility?

THREE MAIN REASONS

1. Lack of Detail

If the Applicant provides answers that lack specific details, dates, times, descriptions of people and what they were wearing, etc.

This is probably the most common reason cited.

2. Implausibility

The story the Applicant tells seems implausible.

3. Inconsistencies

Testimony in Court is not consistent with written statement, I-589, or what was said at credible fear interview. Or something you said in the beginning of your testimony does not match something you said later in your testimony.

This is probably tied for the most common reason cited.

Particular Social Group (PSG)

Formulating a successful PSG for asylum.

Particular Social Group (PSG)

PSG REGULATIONS

PSG REGULATIONS

8 CFR 208.1(c)

Particular social group. For purposes of adjudicating an application for asylum under section 208 of the Act or an application for withholding of removal under section 241(b)(3) of the Act, a particular social group is one that is based on an immutable or fundamental characteristic, is defined with particularity, and is recognized as socially distinct in the society at question. Such a particular social group cannot be defined exclusively by the alleged persecutory acts or harms and must also have existed independently of the alleged persecutory acts or harms that form the basis of the claim.
The Secretary, in general, will not favorably adjudicate claims of aliens who claim a fear of persecution on account of membership in a particular social group consisting of or defined by the following circumstances: Past or present criminal activity or association (including gang membership); presence in a country with generalized violence or a high crime rate; being the subject of a recruitment effort by criminal, terrorist, or persecutory groups; the targeting of the applicant for criminal activity for financial gain based on perceptions of wealth or affluence; interpersonal disputes of which governmental authorities were unaware or uninvolved; private criminal acts of which governmental authorities were unaware or uninvolved; past or present terrorist activity or association; past or present persecutory activity or association; or status as an alien returning from the United States. This list is nonexhaustive, and the substance of the alleged particular social group, rather than the precise form of its delineation, shall be considered in determining whether the group falls within one of the categories on the list. No alien shall be found to be a refugee or have it decided that the alien's life or freedom would be threatened based on membership in a particular social group in any case unless that person articulates on the record, or provides a basis on the record for determining, the definition and boundaries of the alleged particular social group. A failure to define, or provide a basis for defining, a formulation of a particular social group before an immigration judge shall waive any such claim for all purposes under the Act, including on appeal. Any waived claim on this basis shall not serve as the basis for any motion to reopen or reconsider for any reason, including a claim of ineffective assistance of counsel unless the alien complies with the procedural requirements for such a motion and demonstrates that counsel's failure to define, or provide a basis for defining, a formulation of a particular social group constituted egregious conduct.

THE PSG MUST BE ARTICULATED TO THE COURT ON THE RECORD

No alien shall be found to be a refugee or have it decided that the alien's life or freedom would be threatened based on membership in a particular social group in any case unless that person articulates on the record, or provides a basis on the record for determining, the definition and boundaries of the alleged particular social group. A failure to define, or provide a basis for defining, a formulation of a particular social group before an immigration judge shall waive any such claim for all purposes under the Act, including on appeal. Any waived claim on this basis shall not serve as the basis for any motion to reopen or reconsider for any reason, including a claim of ineffective assistance of counsel unless the alien complies with the procedural requirements for such a motion and demonstrates that counsel's failure to define, or provide a basis for defining, a formulation of a particular social group constituted egregious conduct.

 

Formulating a PSG

When trying to formulate your PSG, one can take into consideration:
Particular Social Group (PSG)

LGBT Particular Social Group Cases

LGBT Particular Social Group

The applicant must prove that the persecution they fear in the future is motivated by their actual or imputed membership in a PSG. Since 1994, when Attorney General Janet Reno designated Matter of Toboso-Alfonso as precedent, “homosexual men” has been recognized as a PSG under asylum law. More recently, the Ninth Circuit has ruled that “all alien homosexuals are members of a ‘particular social group.’” ~LINK~ 
In the case Amanfi v. Ashcroft, the Third Circuit held that imputed membership in the PSG of gay men can also be grounds for an asylum claim. In Amanfi, the Court recognized that persecution on account of sexual orientation may be sufficient for an asylum claim even if the victim is actually not gay but is thought to be by the persecutor.  In that case, a man from Ghana engaged in homosexual activity with another man in order to be spared from being ritually sacrificed, after which he was continuously beaten by police for his perceived homosexuality.
The Ninth Circuit has also found in the case of Hernandez-Montiel that “gay men with female sexual identities” constitute a PSG. The Court rejected the argument that Hernandez-Montiel’s female identity was volitional, concluding that his presentation as female was immutable and inherent in his identity and that he could not be required to change it. The Court reaffirmed its holding in Reyes-Reyes v. Ashcroft. [link] Although transgender persons have not been explicitly found to constitute a PSG, there have been many successful non-precedential cases. -link-

Proving LGBT

An essential component of an asylum application for a lesbian, gay, or bisexual applicant will be proving that they are in fact lesbian, gay, or bisexual. Relevant proof may include testimony or documentation by past partners or friends living in the United States.
The applicant must also provide evidence, either direct or circumstantial, that the persecution is on account of their sexual orientation, gender identity, or HIV status. In an unpublished decision, Pena-Torres v. Gonzales, the Ninth Circuit reversed an IJ’s decision that a gay man from Mexico had suffered from police brutality rather than persecution on account of his sexual orientation. The Ninth Circuit remanded the case for a new determination regarding asylum eligibility because it found that an incident where the applicant was beaten to the point where he required medical attention and was threatened by the police after leaving a gay bar, did amount to past persecution on account of his sexual orientation. The Court reached this conclusion by citing evidence that the police had attacked the applicant only after they asked him whether he was gay.

Applicants Living With HIV

People living with HIV have not explicitly been found to constitute a PSG for the purposes of asylum. In 1996, the legacy INS Office of the General Counsel recommended that the PSG of people with HIV be recognized for the purposes of asylum law. ~LINK~ Some IJs have found that HIV status can form the basis of a PSG membership. ~link~ The BIA has also recognized, in an unpublished opinion, that people living with AIDS can comprise a PSG*. Although these decisions are significant for applicants living with HIV, because the rulings are not precedential, such applicants will still need to individually establish that people living with HIV in their countries constitute a PSG.

Mixed Motives Doctrine

Unsupported block
Significantly, the BIA has consistently followed the doctrine of “mixed motives” which holds that there can be more than one motivation for the persecution, as long as the harm was motivated in part by an actual or imputed ground as shown by direct or circumstantial evidence produced by the applicant. 
If an applicant does not clearly fit within a precedentially defined PSG, they must establish that they are a member of a PSG. The major case setting forth what constitutes membership in a PSG is Matter of Acosta. 

‘Persecution on account of membership in a particular social group’ mean[s] persecution that is directed toward an individual who is a member of a group of persons all of whom share a common, immutable characteristic. The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. 

PSGs should be defined in specific terms rather than in broad, generally applicable terms such as youth and gender. For instance, the following PSGs have met the requirements for asylum: young women of the Tchamba-Kunsuntu tribe who have not suffered FGM, as practiced by that tribe, and who oppose the practice, and HIV-positive individuals living in the Ivory Coast and Togo. 
As noted, broad PSGs, such as gender, will not satisfy the membership requirement as it is currently construed. This exclusion long created difficulties for those who sought asylum in order to escape domestic violence or other forms of violence within the private sphere, before the BIA’s precedential decision in Matter of A-R-C-G-. Even today, PSGs must be defined with sufficient particularity that its boundaries are discrete and definable.  The group must also be socially distinct—that is, the society in question must distinguish individuals who share the defining characteristic of the PSG from those who do not. This “visibility” does not mean ocular or literal visibility, or explicit, outward identification by the applicant with the PSG.
Political opinion may be an additional ground that LGBTQ/H individuals can claim asylum. LGBTQ/H people who are involved with gay rights groups may use political opinion as a supplemental ground for asylum claims. In addition, the BIA has found that persecution can be based on an imputed political opinion.
Particular Social Group (PSG)

Recognized PSG's

TESTIFYING AGAINST GANG MEMBER OR OTHERWISE COOPERATING WITH LAW ENFORCEMENT

 Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021).

Summary of the Facts

Mr. H-L-S-A-, the applicant, a Salvadoran national, was removed from the United States pursuant to an in absentia removal order. Upon returning to El Salvador, he learned that a family member was murdered for failure to pay extortion to gang members and was warned that MS-13 was looking for him.  Ten years after his reentry, he was arrested. While in detention, he began to be extorted and threatened by his cellmate, an MS-13 gang member. The cellmate warned him that if he complained to guards, he would be placed in protective custody, marking him as a snitch. The gang member at one point revealed to the applicant that he had a weapon. The applicant informed authorities, was placed in protective custody, and then transferred to another facility.

Mr. H-L-S-A- was transferred back for his hearing, detainees called him a “rat” and threatened to kill him. He was then transferred back to the second facility, where he later met with federal prosecutors and agents to discuss his knowledge of gang activity and to identify suspected gang members from a photo line-up. As a result, the gang members were convicted of and sentenced for various crimes. Because Mr. H-L-S-A had a prior removal order, he was placed in withholding-only proceedings. He expressed a fear that the gang members in the United States would inform gang members in El Salvador of the applicant’s cooperation and that his life would be in danger if he returned.

Holding

Individuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.

BIA Analysis

In its analysis in H-L-S-A-, the BIA stated that victims of, or witnesses to crime, without more, cannot satisfy the particularity or social distinction requirements. The BIA likewise found that confidential informants lack social distinction due to their anonymity and their similarity in position to anyone who is merely “perceived to be a threat” to a cartel’s interests.

The BIA narrowly reviewed circuit law regarding witness PSGs and ultimately found that to satisfy both the social distinction and particularity requirements of the PSG analysis under M-E-V-G-, an applicant must satisfy two criteria: (1) they must formally or publicly cooperate with prosecution against their persecutors in their country of origin; and (2) that country must recognize the members of the proposed PSG through legislation or other form of witness protection. The BIA distinguished between circumstances in which an individual testifies against his or her persecutors in court proceedings in a country that has enacted a special witness protection law and those where a person has filed a police report in a country where no law protects those who report criminal activity. In excluding the latter PSG, the BIA suggested that a lack of general community knowledge of an applicant making a police report is a significant factor against an immigration judge finding social distinction. The BIA stated that any retaliation.

 

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

 

Matter of C-A-, 23 I&N Dec. 951 (BIA 2006):

 

Link: https://www.cliniclegal.org/resources/asylum-and-refugee-law/bia-rules-witnesses-eligibility-asylum-psg

BOARD OF IMMIGRATION APPEALS

The Many Revisions of what a PSG is over the course of the past couple of decades: See Matter of C-A-, 23 I. & N. Dec. 951, 951 (BIA 2006); Matter of A-M-E- & JG-U-, 24 1. & N. Dec. 69, 69 (BIA 2007); Matter of S-E-G-, 24 1. & N. Dec. 597, 597 (BIA 2008); Matter of E-A-G-, 24 I. & N. Dec. 591, 591 (BIA 2008); Matter of M-E-V-G-, 26 1. & N. Dec. 227, 227 (BIA 2014); Matter of W-G-R-, 26 1. & N. Dec. 208, 208 (BIA 2014), aff'd in relevant part sub nom. Garay-Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), cert. denied, 138 S. Ct. 736 (2018); Matter ofA-R-C-G-, 26 I. & N. Dec. 388, 388 (BIA 2014).

Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021)

Individuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.

SECOND CIRCUIT

Resistance to Female Subordination to Male Dominance in El Salvador

Hernandez Chacon v. Barr, No. (2d Cir. Jan. 23, 2020): “resistance to the norm of female subordination to male dominance that pervades El Salvador.”
• “There is ample evidence in the record to support her claim: Gangs control much of El Salvador, including the neighborhood in which Hernandez-Chacon lived. The law enforcement systems that would normally protect women -- police, prosecutors, judges, officials -- do not have the resources or desire to address the brutal treatment of women, and the Salvadoran justice system “favors aggressors and assassins” and “punish[es] victims of gender violence.

OTHER CIRCUITS

Women of Country X

Miguelina De Pena-Paniagua v. Barr, (1st Cir. 2020)
It is not clear why a larger group defined as "women," or "women in country X" -- without reference to additional limiting terms -- fails either the "particularity" or "social distinction" requirement. Certainly, it is difficult to think of a country in which women are not viewed as "distinct" from other members of society…. It is equally difficult to think of a country in which women do not form a "particular" and "well-defined" group of persons.”
It is unsurprising, then, that if race, religion, and nationality typically refer to large classes of persons, particular social groups -- which are equally based on innate characteristics -- may sometimes do so as well. See Perdomo v. Holder.

Female Victims of Domestic Violence

• Garcia v. U.S. Att’y Gen., 665 F.3d 496 (3d Cir. 2011) (PSG: individuals who testify against gang members)v • Valdiviezo-Galdamez v. Holder, 663 F.3d 582 (3d Cir. 2011) (PSG: young men who have been actively recruited by gangs and who have refused to join the gangs” is a “particular social group) • Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011) (PSG: family members of those who actively oppose gangs in El Salvador by agreeing to be prosecutorial witnesses) • Martinez v. Holder, 740 F.3d 902 (4th Cir. 2014) (PSG: former gang members) • Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010) (PSG: Guatemalan women) • Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (PSG: people who testify against gang members) • Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013) (PSG: landowners in X country) • Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) (PSG: females within a particular tribe)
Particular Social Group (PSG)

Formulating PSG's

Formulating a PSG

During the past decade, it has become increasingly important that attorneys formulate PSGs carefully and with a clear understanding of the current law in their jurisdictions. Moreover, since PSG claims are now more likely to result in federal litigation, it is important that the strongest PSG(s) possible be preserved at the IJ level since new PSG definitions cannot be introduced on appeal.

Practice Tips

When determining the parameters of a PSG, attorneys should first follow these steps:
  1. Explore why the persecutor targeted or will target your client and determine whether those reasons are characteristics your client cannot change or should not be required to change.
  2. Be sure to differentiate between the initial reason for targeting and the subsequent targeting based on an action by your client. For example, Central American gangs often target young men for recruitment and the population generally for extortion. But once an individual opposes recruitment or extortion, or takes steps such as reporting the gang to the police, the gang’s persecution frequently shifts and becomes more severe. It is generally best to focus on that secondary reason – the act in opposition or violation of the gang’s demands, rules, or norms – as the characteristic forming the social group, rather than the general socio-economic reasons the gang may have targeted the individual in the first place.
  3. Do NOT define the PSG by the harm suffered or feared. Although referencing the harm suffered does not necessarily invalidate the social group, it will make the nexus element almost impossible to prove because of the circularity problem – “young Salvadoran men who have been targeted by gangs” are not targeted by gangs because they “have been targeted by gangs” and “Guatemalan women who have suffered domestic violence” are not targeted with domestic violence because they “have suffered domestic violence.” In many instances, young men in Central American are targeted after taking the irretrievable step of refusing the gang and that is what prompts the harm. Similarly, many women are abused because of their gender. These characteristics – having opposed the gang and/or being female – are immutable characteristics that exist independent of the persecution. Attorneys must clearly explain the difference and be prepared to respond to government attorneys who will assert the characteristic and the harm are one.
    The First Circuit’s decision in De Pena-Paniagua v. Barr, 957 F.3d 88 (1st Cir. 2020) (discussing the reasons why a woman may be unable to leave a relationship other than the persecution itself) and the Ninth Circuit’s decision in Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020) (explaining why the mere reference to the feared persecution does not disqualify an otherwise valid group), while not binding in the Seventh Circuit, are particularly useful for strategizing on this point.
  4. When looking for supportive case law, look to Seventh Circuit law first, then to BIA precedent that may have found viable social groups in cases with similar rationales, but different countries of origin; and then to other circuits. For example, the Seventh Circuit has recognized the PSG of “former Salvadoran gang members,” Benitez Ramos, 589 F.3d at 429; “the educated, landowning class of cattle farmers in Colombia,” Tapiero de Orejuela v. Gonzales, 423 F.3d 666 (7th Cir. 2005); and “Jordanian women who have allegedly flouted moral norms,” Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011). The Seventh Circuit has not yet recognized a group based on resistance to gangs, but it has recognized a group based on resistance to the FARC. Escobar v. Holder, 657 F.3d 537 (7th Cir. 2011). Similarly, the Seventh Circuit has not had occasion to recognize a group that followed the A-R-C-G- definition, but it has recognized the group of “single women in Albania who live alone.” Cece, 733 F.3d at 671. Significantly, the BIA has also recognized a particular social group related to gender and resistance to a particular activity. In Matter of Kasinga, (which the BIA has repeatedly asserted remains viable even under the BIA’s new PSG test, see M-E-V-G-), the BIA found viable the PSG of “young women of the Tchamba Kunsuntu tribe who had not been subjected to female genital mutilation and opposed the practice.” 21 I&N Dec. 357.

 

Domestic violence/forced relationships claims:

“Ms. X belongs to the particular social group of “Salvadoran women,” or more narrowly “Salvadoran women in [domestic/intimate/marital] relationships they are unable to leave” or “women in the X family/immediate family members of Mr. X” or “Salvadoran women who have flouted or resisted Salvadoran social norms.”

Gang-based claims:

“Mr. X belongs to the particular social group of “Salvadorans who have [violated/opposed/disobeyed] gang norms;” “Salvadoran small business owners who have opposed the MS-13;” “Salvadorans who have witnessed gang crimes and reported them to law enforcement;” “family members of MS-13 gang members,” or more narrowly, “the immediate family members of Mr. X.”
Particular Social Group (PSG)

Family Membership

Family Membership as Particular Social Group

Practice Advisories on the Topic

PSG practice advisory_final 7 19 21.pdf
Nexus_-_Particular_Social_Group_PSG_LP_RAIO.pdf


Case Law

Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023)

If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.


Nexus

Regardless of whether an asylum applicant seeks protection on account of race, religion, nationality, political opinion, or membership in a particular social group, he or she must establish that the protected ground is “at least one central reason” for the feared harm. Id. at 758; INA 208(b)(1)(B)(i).

For nexus in Family Membership cases go to Family Membership Nexus & Matter of M-R-M-S (BIA 2023).

Particular Social Group (PSG)

Female Victims of Sexual Violence & Abuse by a Family Member

Membership in a Particular Social Group for Victims of Sexual Violence & Abuse by a Family Member

Membership in a Particular Social Group (PSG) - PSGs cannot be circular and “must have existed independently of the alleged persecutory acts.”

FGM/C was recognized as a basis for asylum in Matter of Kasinga, in which the cognizable PSG was “Young women who are members of the TchambaKunsuntu Tribe of northern Togo who have not been subjected to FGM, and who oppose it.”

Subsequently, many cases involving IPV have been brought by members of PSGs defined in part by elements of domestic abuse itself; eg, Matter of A-C-R-G: “Married women in Guatemala who suffer domestic abuse but are unable to leave their marriages due to cultural and legal constraints.” Neither PSG would be acceptable under the rule.

Matter of W-Y-C & H-O-B was a PSG proposed as "single Honduran women age 14 to 30 who are victims of sexual abuse within the family and who cannot turn to the government."


POTENTIAL PSG FORMULATIONS

Combined Family and Vulnerability Characteristics:

Key Considerations for Any Proposed PSG:

Particular Social Group (PSG)

Particular Social Groups Generally

Matter of Acosta held that a particular social group is comprised of persons who hold a common, immutable characteristic. 19 I&N Dec. at 211. A particular social group must also be defined with particularity and be socially distinct. Matter of S-E-G-, 24 I&N Dec. 579 (BIA 2008); see also Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014). Immutability has been defined as a characteristic that one cannot change or is so fundamental that individual should not be required to change it. Mater of Acosta, 19 I&N Dec. at 211. Particularity means that the group cannot be indeterminate, too subjective, inchoate, or variable. Matter of A-M-E- & J-G-U-, 24 I&N Dec. 69, 76 (BIA 2007). Lastly, social distinction requires that the group be perceived as a group by the society in which it exists. Matter of W-G-R-, 26 I&N Dec. at 216.

Particular Social Group (PSG)

PSG: Individualizes Who Have Testified Against Criminals or Otherwise Cooperated With Law Enforcement

TESTIFYING AGAINST GANG MEMBER OR OTHERWISE COOPERATING WITH LAW ENFORCEMENT

 Matter of H-L-S-A-, 28 I&N Dec. 228 (BIA 2021)

Summary of the Facts

Mr. H-L-S-A-, the applicant, a Salvadoran national, was removed from the United States pursuant to an in absentia removal order. Upon returning to El Salvador, he learned that a family member was murdered for failure to pay extortion to gang members and was warned that MS-13 was looking for him.  Ten years after his reentry, he was arrested. While in detention, he began to be extorted and threatened by his cellmate, an MS-13 gang member. The cellmate warned him that if he complained to guards, he would be placed in protective custody, marking him as a snitch. The gang member at one point revealed to the applicant that he had a weapon. The applicant informed authorities, was placed in protective custody, and then transferred to another facility.

Mr. H-L-S-A- was transferred back for his hearing, detainees called him a “rat” and threatened to kill him. He was then transferred back to the second facility, where he later met with federal prosecutors and agents to discuss his knowledge of gang activity and to identify suspected gang members from a photo line-up. As a result, the gang members were convicted of and sentenced for various crimes. Because Mr. H-L-S-A had a prior removal order, he was placed in withholding-only proceedings. He expressed a fear that the gang members in the United States would inform gang members in El Salvador of the applicant’s cooperation and that his life would be in danger if he returned.

Holding

Individuals who cooperate with law enforcement may constitute a valid particular social group under the Immigration and Nationality Act if their cooperation is public in nature, particularly where testimony was given in public court proceedings, and the evidence in the record reflects that the society in question recognizes and provides protection for such cooperation.

BIA Analysis

In its analysis in H-L-S-A-, the BIA stated that victims of, or witnesses to crime, without more, cannot satisfy the particularity or social distinction requirements. The BIA likewise found that confidential informants lack social distinction due to their anonymity and their similarity in position to anyone who is merely “perceived to be a threat” to a cartel’s interests.

The BIA narrowly reviewed circuit law regarding witness PSGs and ultimately found that to satisfy both the social distinction and particularity requirements of the PSG analysis under M-E-V-G-, an applicant must satisfy two criteria: (1) they must formally or publicly cooperate with prosecution against their persecutors in their country of origin; and (2) that country must recognize the members of the proposed PSG through legislation or other form of witness protection. The BIA distinguished between circumstances in which an individual testifies against his or her persecutors in court proceedings in a country that has enacted a special witness protection law and those where a person has filed a police report in a country where no law protects those who report criminal activity. In excluding the latter PSG, the BIA suggested that a lack of general community knowledge of an applicant making a police report is a significant factor against an immigration judge finding social distinction. The BIA stated that any retaliation.

 

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
Matter of C-A-, 23 I&N Dec. 951 (BIA 2006)


Link: https://www.cliniclegal.org/resources/asylum-and-refugee-law/bia-rules-witnesses-eligibility-asylum-psg

Nexus

Nexus between the PSG and the harm/persecution. 

Nexus

Family Membership Nexus & Matter of M-R-M-S (BIA 2023)

Family Membership Asylum Nexus

CANNOT BE TARGETING THE FAMILY FOR REASONS UNRELATED TO THEM BEING MEMBERS OF THE SAME FAMILY.
The persecution that is targeting a particular family can't be doing so as a means of achieving some other ultimate goal that is unrelated to the protected ground. If a Government is persecuting a family because that family lives on land that they want seize then the reason that they are persecuting them is more so related to their goal of taking the land not those people being the members of that particular family. If someone who wasn't a member of that family were to move onto that land they would be persecuted just the same.

Controlling Case for Family Membership Nexus

Matter of M-R-M-S-, 28 I&N Dec. 757 (BIA 2023)

If a persecutor is targeting members of a certain family as a means of achieving some other ultimate goal unrelated to the protected ground, family membership is incidental or subordinate to that other ultimate goal and therefore not one central reason for the harm. Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017), reaffirmed.

Practice Advisory for Matter of M-R-M-S

2023_advisory-matter-M-R-M-S.pdf

Restrictions on Asylum

Restrictions on Asylum

Safe Third Country

In December 2004, the United States and Canada agreed to begin the implementation of the Safe Third Country Agreement between the two countries.

As a result, most asylum-seekers must apply for asylum in whichever of these two countries they land in first. That is, an asylum-seeker who travels through the United States and wishes to seek asylum at the Canadian land border will be turned back and told to pursue their claim in the United States, and vice versa. If an asylum applicant loses their claim in the United States and hopes to file a new claim in Canada, as was fairly common a few years ago, they will be unable to do so.

There are several exceptions to the Safe Third Country Agreement. These include:

For all others who do not fall within one of the above exceptions, they can only pursue asylum in the country in which they first landed.

This Manual is intended to provide information to attorneys and accredited representatives. It is not intended as legal advice. Asylum seekers should speak with qualified attorneys before applying.

The information contained herein is for reference only and may not be up to date. It does not constitute legal advice. You should always consult an attorney regarding your matter.

Restrictions on Asylum

Safe Third Countries

Dual Citizens

Zepeda-Lopez, et al. v. Garland, No. 19-145 (2d Cir. 2022)

Case Summary
Petitioners sought review of a December 14, 2018, decision of the Board of Immigration Appeals (the "BIA") affirming a decision of an Immigration Judge (the "IJ") denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT").
The Second Circuit granted Petitioners' petition for review and held that to qualify as a "refugee" under the INA, a dual national asylum applicant need only show persecution in any singular country of nationality. The court explained that to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. Section 1158(b)(1)(A). But this is only one step in the asylum process. Even if an individual is a refugee, there are other bars to asylum, see 8 U.S.C. Sections 1158(a)(2) (exceptions to authority to apply for asylum), 1158(b)(2) (exceptions to eligibility for asylum), and even assuming all bars are overcome, the decision of whether to grant a particular asylum application is still a matter of discretion for the Attorney General. Further, the court held that to be considered a "refugee" under Section 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality. Accordingly, the court granted the petition for review, vacated the BIA's December 14, 2018, decision, and remanded to the BIA for further proceedings in accordance with the proper legal standard.

 

As a general matter, to be eligible for asylum and withholding of removal, an individual must be a "refugee." 8 U.S.C. § 1158(b)(1)(A). But this is only one step in the asylum process. Even if an individual is a refugee, there are other bars to asylum, see 8 U.S.C. §§ 1158(a)(2) (exceptions to authority to apply for asylum), 1158(b)(2) (exceptions to eligibility for asylum), and even assuming all bars are overcome, the decision whether to grant a particular asylum application is still a matter of discretion for the Attorney General. See, e.g., Ojo v. Garland, 25 F.4th 152, 163 (2d Cir. 2022). Here, the IJ denied asylum and withholding of removal to all Petitioners at the initial step, concluding that they did not meet the definition of refugee. The IJ found that Petitioners did not meet the definition of refugee because of what it described as the "Dual Nationality Bar to Asylum." Cert. Admin. R. at 139. In doing so, the IJ relied on Matter of B-R-, which interpreted5 the INA to require that a dual national asylum applicant demonstrate persecution in both countries of nationality to qualify as a refugee. 26 I. & N. Dec. 119, 121 (B.I.A. 2013). The IJ found that Petitioners made the necessary showing as to Honduras -- but not as to Nicaragua -- and therefore were not "refugees" under 8 U.S.C. § 1101(a)(42)(A). The BIA dismissed Petitioners' appeal, which requested, in part, that the BIA overrule Matter of B-R-.We hold that to be considered a "refugee" under § 1101(a)(42)(A), a dual national need only show persecution in any singular country of nationality.

FULL DECISION

Restrictions on Asylum

Failure to Report

The Second Circuit has remanded an asylum claim for a Honduran woman who had been the victim of family violence. “The agency reasonably relied in part on Castellanos-Ventura’s failure to report. But it failed to consider whether it would have been ‘futile or dangerous for an abused child,’ as Castellanos-Ventura was during much of her abuse, ‘to seek protection from the authorities.’”

The full text of Castellanos-Ventura v. Garland can be found here:

https://ww3.ca2.uscourts.gov/decisions/isysquery/ac1b6a99-f14d-423b-a6e6-c89990596c3c/4/doc/21-6293_opn.pdf

Circumventing Lawful Pathway Rule (CLPR)

Circumventing Lawful Pathway Rule (CLPR)

Circumvention of Lawful Pathways Final Rule

Summary

The Circumventing Lawful Pathways (CLPFR) applies to entries between May 11, 2023 and May 11, 2025 who entered by crossing the US/Mexico border or adjacent coastal borders who traveled through a third country (so all other than Mexicans). Exceptions being:

(1) availed themselves of an existing lawful process,

(2) presented at a port of entry at a pre-scheduled time using the CBP One app, or

(3) been denied asylum in a third country through which they traveled, are presumed ineligible for asylum unless they meet certain limited exceptions.


The rule applies to anyone who enters the United States between May 11, 2023, and May 11, 2025, including minors traveling with their parents.

Exceptions 

Noncitizens who cross the southwest land border or adjacent coastal borders of the United States without authorization after traveling through a third country will be presumed ineligible for asylum unless they, or a member of their family with whom they are traveling, meet one of three exceptions: 

✳️ Unaccompanied children are exempted from the rebuttable presumption. 

Rebutting the Presumption 

Noncitizens can rebut the presumption of asylum ineligibility in exceptionally compelling circumstances, including if they demonstrate that, at the time of their unauthorized entry, they or a member of their family with whom they were traveling: 

Process 

Pursuant to the Immigration and Nationality Act, noncitizens who attempt to enter the United States without authorization and cannot establish a legal basis to remain in the United States may be subject to expedited removal. The rebuttable presumption established by the final rule would be evaluated by an asylum officer as part of the credible fear interview, subject to review by an immigration judge.   


The rebuttable presumption will apply in expedited removal proceedings, as well as to asylum applications affirmatively filed with the Asylum Office or filed in immigration court proceedings as a defense to removal. 

To avoid separating members of a family traveling together, the final rule establishes that if one family member is exempted from or rebuts the presumption, all family members will be similarly treated.   

Consequences 

Noncitizens who are subject to the rebuttable presumption, do not rebut the presumption, and do not establish a reasonable fear of persecution or torture in the country of removal will be promptly removed. 

Those ordered removed will be subject to at least a five-year bar to reentry and potential criminal prosecution if they subsequently re-enter without authorization. Those ordered removed also will be ineligible for the parole processes available to nationals of Cuba, Haiti, Nicaragua, and Venezuela.   

Rescission of the Transit Ban and Entry Ban 

The Departments are also rescinding the Trump-era transit ban and entry ban, which – unlike this new final rule – imposed categorical bars on eligibility for asylum and thus conflict with the approach taken in this final rule. 

Time-limited 

The final rule is an emergency measure that is intended to respond to the elevated levels of encounters expected after the lifting of the Title 42 Order. As such, it is designed to be temporary in duration, applying to those who enter the United States at the southwest land border and adjacent coastal borders during the 24-month period following the rule’s effective date and subsequent to the lifting of the Title 42 order. The rule’s presumption will continue to apply to these noncitizens after the end of that 24-month period. 


Changes from Notice of Proposed Rulemaking

The final rule incorporates a small number of changes from the proposed rule that are responsive to comments received. These changes do not alter the purpose or structure of the rule. The changes from the proposed rule are: 

The final rule also includes a few other clarifications and non-substantive changes.


PRACTICE ADVISORIES

https://www.ilrc.org/sites/default/files/2023-10/How%20the%20%E2%80%9CLawful%20Pathways%E2%80%9D%20Asylum%20Ban%20Impacts%20Children%20%26%20Youth.pdf

Circumventing Lawful Pathway Rule (CLPR)

Exceptions to Circumvention of Lawful Pathways Rule

Exceptions to the Circumvention of Lawful Pathways Rules

The rule makes the right to seek asylum conditioned upon being denied asylum in a country the individual traveled through on his or her way to the United States, assuming the country is a signatory to the 1951 Refugee Convention  or the 1967 Protocol Relating to the Status of Refugees. This presumption of ineligibility is rebuttable if a noncitizen:

To rebut the presumption of asylum ineligibility on the basis of a technical CBP One application failure or because of an imminent threat, the asylum seeker must demonstrate a preponderance of evidence. This places a significant

burden on asylum seekers who in many cases will not have access to counsel.

Withholding of Removal

8 CFR § 208.16 - Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.

Withholding of Removal

Withholding of Removal

§ 208.16 Withholding of removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against Torture.

This amendment was delayed until Mar. 22, 2021, at 86 FR 6847, Jan. 25, 2021.
This amendment was further delayed until Dec. 31, 2021, at 86 FR 15069, Mar. 22, 2021.
This amendment was further delayed until Dec. 31, 2022, at 86 FR 73615, Dec. 28, 2021.
This amendment was further delayed until Dec. 31, 2024, at 87 FR 79789, Dec. 28, 2022.
This amendment was further delayed until Dec. 31, 2025, at 89 FR 105386, Dec. 27, 2024.


(a) Consideration of application for withholding of removal. An asylum officer shall not determine whether an alien is eligible for withholding of the exclusion, deportation, or removal of the alien to a country where the alien's life or freedom would be threatened, except in the case of an alien who is determined to be an applicant for admission under section 235(b)(1) of the Act, who is found to have a credible fear of persecution or torture, whose case is subsequently retained by or referred to USCIS pursuant to the jurisdiction provided at § 208.2(a)(1)(ii) to consider the application for asylum, and whose application for asylum is not granted; or in the case of the spouse or child of such an alien who is included in the alien's asylum application and who files a separate application for asylum with USCIS that is not granted. In such cases, the asylum officer will determine, based on the record before USCIS, whether the applicant is eligible for statutory withholding of removal under paragraph (b) of this section or withholding or deferral of removal pursuant to the Convention Against Torture under paragraph (c) of this section. Even if the asylum officer determines that the applicant has established eligibility for withholding of removal under paragraph (b) or (c) of this section, the asylum officer shall proceed with referring the application to the immigration judge for a hearing pursuant to § 208.14(c)(1). In exclusion, deportation, or removal proceedings, an immigration judge may adjudicate both an asylum claim and a request for withholding of removal whether or not asylum is granted.

(b) Eligibility for withholding of removal under section 241(b)(3) of the Act; burden of proof. The burden of proof is on the applicant for withholding of removal under section 241(b)(3) of the Act to establish that his or her life or freedom would be threatened in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration. The evidence shall be evaluated as follows:

(1) Past threat to life or freedom.

(i) If the applicant is determined to have suffered past persecution in the proposed country of removal on account of race, religion, nationality, membership in a particular social group, or political opinion, it shall be presumed that the applicant's life or freedom would be threatened in the future in the country of removal on the basis of the original claim. This presumption may be rebutted if an asylum officer or immigration judge finds by a preponderance of the evidence:

(A) There has been a fundamental change in circumstances such that the applicant's life or freedom would not be threatened on account of any of the five grounds mentioned in this paragraph upon the applicant's removal to that country; or

(B) The applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so.

(ii) In cases in which the applicant has established past persecution, the Service shall bear the burden of establishing by a preponderance of the evidence the requirements of paragraphs (b)(1)(i)(A) or (b)(1)(i)(B) of this section.

(iii) If the applicant's fear of future threat to life or freedom is unrelated to the past persecution, the applicant bears the burden of establishing that it is more likely than not that he or she would suffer such harm.

(2) Future threat to life or freedom. An applicant who has not suffered past persecution may demonstrate that his or her life or freedom would be threatened in the future in a country if he or she can establish that it is more likely than not that he or she would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion upon removal to that country. Such an applicant cannot demonstrate that his or her life or freedom would be threatened if the asylum officer or immigration judge finds that the applicant could avoid a future threat to his or her life or freedom by relocating to another part of the proposed country of removal and, under all the circumstances, it would be reasonable to expect the applicant to do so. In evaluating whether it is more likely than not that the applicant's life or freedom would be threatened in a particular country on account of race, religion, nationality, membership in a particular social group, or political opinion, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for such persecution if:

(i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and

(ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or her life or freedom would be threatened upon return to that country.

(3) Reasonableness of internal relocation. For purposes of determinations under paragraphs (b)(1) and (2) of this section, adjudicators should consider the totality of the relevant circumstances regarding an applicant's prospects for relocation, including the size of the country of nationality or last habitual residence, the geographic locus of the alleged persecution, the size, reach, or numerosity of the alleged persecutor, and the applicant's demonstrated ability to relocate to the United States in order to apply for withholding of removal.

(i) In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecutor is a government or is government-sponsored.

(ii) In cases in which the persecutor is a government or is government-sponsored, it shall be presumed that internal relocation would not be reasonable, unless DHS establishes by a preponderance of the evidence that, under the totality of the circumstances, it would be reasonable for the applicant to relocate.

(iii) Regardless of whether an applicant has established persecution in the past, in cases in which the persecutor is not the government or a government-sponsored actor, or otherwise is a private actor, there shall be a presumption that internal relocation would be reasonable unless the applicant establishes, by a preponderance of the evidence, that it would be unreasonable to relocate.

(iv) For purposes of determinations under paragraphs (b)(3)(ii) and (iii) of this section, persecutors who are private actors, including but not limited to persecutors who are gang members, public officials who are not acting under color of law, or family members who are not themselves government officials or neighbors who are not themselves government officials, shall not be considered to be persecutors who are the government or government-sponsored absent evidence that the government sponsored the persecution.

(c) Eligibility for withholding of removal under the Convention Against Torture.

(1) For purposes of regulations under Title II of the Act, “Convention Against Torture” shall refer to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture contained in § 208.18(a) of this part shall govern all decisions made under regulations under Title II of the Act about the applicability of Article 3 of the Convention Against Torture.

(2) The burden of proof is on the applicant for withholding of removal under this paragraph to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal. The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration.

(3) In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:

(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.

(4) In considering an application for withholding of removal under the Convention Against Torture, the adjudicator shall first determine whether the alien is more likely than not to be tortured in the country of removal. If the adjudicator determines that the alien is more likely than not to be tortured in the country of removal, the alien is eligible for protection under the Convention Against Torture, and the adjudicator shall determine whether protection under the Convention Against Torture should be granted either in the form of withholding of removal or in the form of deferral of removal. The adjudicator shall state that an alien eligible for such protection is eligible for withholding of removal unless the alien is subject to mandatory denial of withholding of removal under paragraph (d)(2) or (3) of this section. If an alien eligible for such protection is subject to mandatory denial of withholding of removal under paragraph (d)(2) or (3) of this section, the adjudicator shall state that the alien is eligible for deferral of removal under § 208.17(a). For cases under the jurisdiction of USCIS pursuant to § 208.2(a)(1)(ii), the asylum officer may make such a determination based on the application and the record before USCIS; however, the asylum officer shall not issue an order granting either withholding of removal or deferral of removal because that is referred to the immigration judge pursuant to § 208.14(c)(1) and 8 CFR 1240.17.

(d) Approval or denial of application—(1) General. Subject to paragraphs (d)(2) and (d)(3) of this section, an application for withholding of deportation or removal to a country of proposed removal shall be granted if the applicant's eligibility for withholding is established pursuant to paragraphs (b) or (c) of this section.

(2) Mandatory denials. Except as provided in paragraph (d)(3) of this section, an application for withholding of removal under section 241(b)(3) of the Act or under the Convention Against Torture shall be denied if the applicant falls within section 241(b)(3)(B) of the Act or, for applications for withholding of deportation adjudicated in proceedings commenced prior to April 1, 1997, within section 243(h)(2) of the Act as it appeared prior to that date. For purposes of section 241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it appeared prior to April 1, 1997, an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community. If the evidence indicates the applicability of one or more of the grounds for denial of withholding enumerated in the Act, the applicant shall have the burden of proving by a preponderance of the evidence that such grounds do not apply.

(3) Exception to the prohibition on withholding of deportation in certain cases. Section 243(h)(3) of the Act, as added by section 413 of Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications adjudicated in proceedings commenced before April 1, 1997, and in which final action had not been taken before April 24, 1996. The discretion permitted by that section to override section 243(h)(2) of the Act shall be exercised only in the case of an applicant convicted of an aggravated felony (or felonies) where he or she was sentenced to an aggregate term of imprisonment of less than 5 years and the immigration judge determines on an individual basis that the crime (or crimes) of which the applicant was convicted does not constitute a particularly serious crime. Nevertheless, it shall be presumed that an alien convicted of an aggravated felony has been convicted of a particularly serious crime. Except in the cases specified in this paragraph, the grounds for denial of withholding of deportation in section 243(h)(2) of the Act as it appeared prior to April 1, 1997, shall be deemed to comply with the Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 6577.

(e) [Reserved]

(f) Removal to third country. Nothing in this section or § 208.17 shall prevent the Service from removing an alien to a third country other than the country to which removal has been withheld or deferred.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 FR 76135, Dec. 6, 2000; 85 FR 67259, Oct. 21, 2020; 85 FR 80388, Dec. 11, 2020; 87 FR 18218, Mar. 29, 2022]

Withholding of Removal

Differences Between Withholding & Asylum

What is the Difference Between Asylum and Withholding of Removal?

A person granted asylum is protected from being returned to his or her home country, is eligible to apply for authorization to work in the United States, may apply for a Social Security card, may request permission to travel overseas, and can petition to bring family members to the United States.

Asylees may also be eligible for certain government programs, such as Medicaid or Refugee Medical Assistance. Asylum is technically a discretionary benefit, and certain individuals by law are not eligible for asylum. For example, individuals who have previously been deported and then reentered the United States, or who did not apply for asylum within one year of arriving in the United States, are barred from applying for asylum. Individuals who have been banned from asylum are instead eligible in most cases for “withholding of removal.”

As in the case of asylum, a person who is granted withholding of removal is protected from being returned to his or her home country and receives the right to remain in the United States and work legally. But at the end of the court process, an immigration judge enters a deportation order and then tells the government they cannot execute that order. That is, the “removal” to a person’s home country is “withheld.” However, the government is still allowed to deport that person to a different country if the other country agrees to accept them.

Withholding of removal provides a form of protection that is less certain than asylum, leaving its recipients in a sort of limbo. A person who is granted withholding of removal may never leave the United States without executing that removal order, cannot petition to bring family members to the United States, and does not gain a path to citizenship. And unlike asylum, when a family seeks withholding of removal together a judge may grant protection to the parent while denying it to the children, leading to family separation. Withholding of removal also does not offer permanent protection or a path to permanent residence. If conditions improve in a person’s home country, the government can revoke withholding of removal and again seek the person’s deportation. This can occur even years after a person is granted protection.

Some individuals, including those who were convicted of “particularly serious crimes,” are not eligible for withholding of removal. These individuals are limited to applying for relief under the Convention Against Torture, a protection that is harder to win than withholding of removal and that offers even fewer benefits.

Second Circuit Explains

Since 1980, the Act as amended has provided two methods by which a deportable alien, already in the United States, may seek relief: asylum or withholding of deportation. INS v. CardozaFonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1209, 94 L.Ed.2d 434 (1987) (articulating the difference between asylum and withholding of deportation); see also Sale v. Haitian Ctrs. Council, Inc., ___ U.S. ___, ___, 113 S.Ct. 2549, 2552-53, 125 L.Ed.2d 128 (1993). Section 208(a) of the Act authorizes the Attorney General, at her discretion, to grant asylum to eligible aliens. 8 U.S.C. § 1158(a). Section 243(h) of the Act requires the Attorney General to withhold the deportation of an alien who demonstrates that if deported his or her "life or freedom would be threatened" on account of one of several enumerated factors. 8 U.S.C. § 1253(h) (setting forth requirements for withholding of deportation).

Asylum and withholding of deportation are "'closely related and appear to overlap.'" Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir. 1993) (quoting Carvajal-Munoz v. INS, 743 F.2d 562, 564 (7th Cir. 1984)). Nevertheless, there are two important distinctions. First, "[t]he burden of proof that an alien must meet to be eligible for asylum is lower than that required of an alien who seeks withholding of deportation." CarranzaHernandez, 12 F.3d at 7 (emphasis added) (citing Cardoza-Fonseca, 480 U.S. at 443-50, 107 S.Ct. at 1219-23 (1987); INS v. Stevic, 467 U.S. 407, 428-30, 104 S.Ct. 2489, 2500-01, 81 L.Ed.2d 321 (1984); Saleh v. United States Dep't of Justice, 962 F.2d 234, 240 (2d Cir. 1992); Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991)).

Second, once eligibility for asylum has been established, a grant of asylum remains within the Attorney General's discretion. In contrast, "withholding of deportation for those who qualify [is] mandatory rather than discretionary." Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed.Reg. 30674 (July 27, 1990). Thus, although the Attorney General has the discretion to deny asylum to an alien eligible under section 208(a), she may not deny withholding of deportation to the same alien if the alien satisfies the stricter standards of section 243(h). See Cardoza-Fonseca, 480 U.S. at 443 n. 28, 107 S.Ct. at 1219 n. 28 (noting certain statutory exceptions not applicable to this case). For both asylum and withholding of deportation, an *1022 otherwise deportable alien bears the burden of establishing eligibility. See 8 C.F.R. §§ 208.13, 208.16(b) (1993).

INS v. CardozaFonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1209, 94 L.Ed.2d 434 (1987)

*🔗[FULL DECISION](<https://supreme.justia.com/cases/federal/us/480/421/>)

Held:* The § 243(h) "clear probability" standard of proof does not govern asylum applications under § 208(a). Pp.

480 U. S. 427

(a) The plain meaning of the statutory language indicates a congressional intent that the proof standards under §§ 208(a) and 243(h) should differ. Section 243(h)'s "would be threatened" standard has no subjective component, but, in fact, requires objective evidence that it is more likely than not that the alien will be subject to persecution upon deportation. In contrast, § 208(a)'s reference to "fear" makes the asylum eligibility determination turn to some extent on the alien's subjective mental state, and the fact that the fear must be "well founded" does not transform the standard into a "more likely than not" one. Moreover, the different emphasis of the two standards is highlighted by the fact that, although Congress simultaneously drafted § 208(a)'s new standard and amended § 243(h), it left § 243(h)'s old standard intact. Pp. 480 U. S. 430 432.

(b) The legislative history demonstrates the congressional intent that different standards apply under §§ 208(a) and 243(h). Pp. 480 U.S. 432-443.

(c) The argument of the Immigration and Naturalization Service (INS) that it is anomalous for § 208(a) to have a less stringent eligibility standard than § 243(h), since § 208(a) affords greater benefits than § 243(h), fails, because it does not account for the fact that an alien who satisfies the § 208(a) standard must still face a discretionary asylum decision by the Attorney General, while an alien satisfying § 243(h)'s stricter standard is automatically entitled to withholding of deportation. Pp. 480 U. S. 443 445.

(d) The INS's argument that substantial deference should be accorded BIA's position that the "well founded fear" and "clear probability" standards are equivalent is unpersuasive, since the narrow legal question of identicality is a pure question of statutory construction within the traditional purview of the courts, and is not a question of case-by-case interpretation of the type traditionally left to administrative agencies. Pp. 480 U. S. 445 448.

Withholding of Removal Statutes

INA § 241(b)

(3) Restriction on removal to a country where alien’s life or freedom would be threatened

(A) In general Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,

(B) Exception Subparagraph (A) does not apply to an alien if the Attorney General determines that– (i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

INA § 241(b)

(3) Restriction on removal to a country where alien’s life or freedom would be threatened

(A) In general Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,

(B) Exception Subparagraph (A) does not apply to an alien if the Attorney General determines that– (i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

INA § 241(b)

(3) Restriction on removal to a country where alien’s life or freedom would be threatened

(A) In general Notwithstanding paragraphs (1) and (2), the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion,

(B) Exception Subparagraph (A) does not apply to an alien if the Attorney General determines that– (i) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;

Regulations

**8 CFR §208.16 and 8 CFR §1208.16 and INA § 241(b)**

In summary, while both sections deal with the eligibility for withholding of removal under section 241(b)(3) of the INA, 8 CFR §208.16 provides guidance on eligibility consideration by a DHS officer, whereas 8 CFR §1208.16 deals with adjudication by an immigration judge in exclusion, deportation, or removal proceedings.

8 CFR §208.16 and 8 CFR §1208.16 are both sections of the Code of Federal Regulations that deal with the eligibility for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA) 123.

8 CFR §208.16 provides guidance on the consideration of eligibility for statutory withholding of removal and protection under the Convention Against Torture by a DHS officer 2. In contrast, 8 CFR §1208.16 deals with the adjudication of both an asylum claim and a request for withholding of removal by an immigration judge in exclusion, deportation, or removal proceedings 2.

**8 CFR §208.16 and 8 CFR §1208.16 and INA § 241(b)**

8 CFR §208.16 and 8 CFR §1208.16 are both sections of the Code of Federal Regulations that deal with the eligibility for withholding of removal under section 241(b)(3) of the Immigration and Nationality Act (INA)1.

8 CFR §208.16 provides guidance on the consideration of eligibility for statutory withholding of removal and protection under the Convention Against Torture by a DHS officer 2. In contrast, 8 CFR §1208.16 deals with the adjudication of both an asylum claim and a request for withholding of removal by an immigration judge in exclusion, deportation, or removal proceedings3.

In summary, while both sections deal with the eligibility for withholding of removal under section 241(b)(3) of the INA, 8 CFR §208.16 provides guidance on eligibility consideration by a DHS officer, whereas 8 CFR §1208.16 deals with adjudication by an immigration judge in exclusion, deportation, or removal proceedings.

Are People in Withholding-Only Proceedings Eligible for Release on Bond?

Most individuals who are placed in withholding-only proceedings are held in ICE detention throughout the entire process of seeking protection and are not given the opportunity to ask a judge for release. ICE takes the legal position that people in withholding-only proceedings are not eligible for bond and must be held in “mandatory detention.” This means that some people are held for months or years in detention even if ICE or an immigration judge would normally have released them.

However, in some locations, federal courts have ruled that individuals in withholding-only proceedings are eligible for release on bond. In the jurisdiction of the Second Circuit Court of Appeals (New York, Connecticut, and Vermont) and the Fourth Circuit Court of Appeals (Maryland, North Carolina, South Carolina, Virginia, and West Virginia), immigrants in withholding-only proceedings may ask an immigration judge for release on bond. The Supreme Court is set to decide this issue in 2021.

HUMANITARIAN/DISCRETIONARY ASYLUM GRANT

Asylum granted for humanitarian reasons in the IJ's discretion, even if the applicant has not met their burden of proof as to the likelihood of future harm but only if the applicant establishes that they suffered past persecution so severe that returning to their country would be inhumane. This is based on compelling reasons arising out of the severity of the past persecution.

HUMANITARIAN/DISCRETIONARY ASYLUM GRANT

Humanitarian Grant Case Law

Humanitarian Grants

Matter of L-S-, 25 I&N Dec. 705 (BIA 2012)

(1) An asylum applicant who has established past persecution but no longer has a well-founded fear of persecution may nevertheless warrant a discretionary grant of humanitarian asylum based not only on compelling reasons arising out of the severity of the past persecution, but also on a “reasonable possibility that he or she may suffer other serious harm” upon removal to his or her country under 8 C.F.R. § 1208.13(b)(1)(iii)(B) (2011).

(2) “Other serious harm”may be wholly unrelated to the applicant’s past harm and need not be inflicted on account of race, religion, nationality, membership in a particular social group, or political opinion, but the harm must be so serious that it equals the severity of persecution.

(3) In determining whether an applicant has established a “reasonable possibility” of “other serious harm,” adjudicators should focus on current conditions that could severely affect the applicant, such as civil strife and extreme economic deprivation, as well as on the potential for new physical or psychological harm that the applicant might suffer.

HUMANITARIAN/DISCRETIONARY ASYLUM GRANT

Asylum Grant Discretion & Humanitarian Asylum

If an applicant meets the statutory definition of a refugee and is not subject to any mandatory bars to asylum, the grant of asylum is ultimately discretionary.

Discretionary Grant

The Immigration and Nationality Act states that the Attorney General (and by delegation, Immigration Judges and Asylum Officers) may grant asylum to an alien who is found to be a refugee. This means that even if an applicant is eligible, asylum is not guaranteed. Adjudicators consider positive and negative factors in exercising discretion.

Relevant Law: INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A).

Relevant Case Law: Matter of Pula, 19 I&N Dec. 467 (BIA 1987) outlines factors considered in the exercise of discretion, such as the seriousness of any criminal or immigration violations, family ties in the U.S., and humanitarian concerns.

Humanitarian Asylum

This is a specific basis for granting asylum even if the applicant does not demonstrate a well-founded fear of future persecution. Humanitarian asylum can be granted if the applicant establishes that they suffered past persecution so severe that returning to their country would be inhumane, even if there is no likelihood of future harm. This is based on compelling reasons arising out of the severity of the past persecution.

Relevant Regulation: 8 CFR § 208.13(b)(1)(iii).

Relevant Case Law: Matter of Chen, 20 I&N Dec. 16 (BIA 1989) is a key precedent decision establishing the basis for humanitarian asylum due to exceptionally severe past persecution.

CONVENTION AGAINST TORTURE (CAT)

CONVENTION AGAINST TORTURE (CAT)

What is the Convention Against Torture?

What is the U.N. Convention Against Torture?

• An international human rights treaty aimed at preventing torture worldwide.

• The U.S. ratified the treaty in 1994.

• Under the CAT, the Government cannot send a noncitizen back to a country where it is more likely than not that they will be tortured.

• The U.S. may remove the noncitizen to a safe third country.

• Status may be terminated if the Government establishes that the noncitizen is no longer likely to be tortured in their home country.

An applicant must establish that it is more likely than not that they would be tortured if removed to the proposed country of removal.

• Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment.

• Proscribed purposes include, but are not limited to: intimidation, coercion, punishment, or discrimination. • Unlike persecution, torture does not require a nexus to statutorily protected grounds.

References: 8 C.F.R. §§ 1208.16(c), 1208.17, 1208.18(a)

CAT

Under international and U.S. law, individuals cannot be sent back to a country where they are at risk of torture. The United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (referred to as "CAT" or "the Convention") mandates that countries which are signatories condemn and prohibit torture.

Article III of the Convention specifies that a nation that has signed it must refrain from "expelling, returning, or extraditing" individuals to a country where there are "substantial grounds for believing that they would be in danger of being subjected to torture." The United States became a signatory to CAT in 1988, and Congress ratified the treaty in 1994. In 1998, as part of the Foreign Affairs Reform and Restructuring Act (FARRA), the U.S. formally announced its plan to implement CAT. The former Immigration and Naturalization Service established regulations in 1999, outlining the standards and procedures for protection under the Convention. These regulations can be found in 8 C.F.R. §§ [1]208.16 to [1]208.18.

Protection under Article III of the Convention is a critical avenue for noncitizens who do not meet the criteria for asylum but can demonstrate that they would face torture upon returning to their home country. Relief under the Convention is not subject to discretion. For those who meet the eligibility requirements, the immigration judge (IJ) is obliged to grant protection.

There are two types of CAT protection, both of which can only be pursued in Immigration Court: withholding of removal under CAT and deferral of removal under CAT. Both forms of relief rely on the same general legal standard above, but withholding of removal under CAT is only available to those who are not barred from withholding of removal under the Immigration and Nationality Act (INA). CAT withholding of removal5 under 8 CFR § 1208.16 is only available to individuals who have not: been convicted of a “particularly serious crime” or an aggravated felony for which the term of imprisonment was five years or more; engaged in the persecution of others; committed a serious non-political crime outside of the U.S.; and/or been deemed a danger to the security of the United States.

The second type of CAT protection, deferral of removal under 8 CFR § 1208.17(a), offers protection under CAT for those individuals who are ineligible for withholding due to one or more grounds for mandatory denial. The only difference in the benefits conferred by withholding under CAT versus deferral under CAT is that the procedures for terminating deferral of removal benefits is easier for the government than terminating withholding under CAT. Otherwise, both allow the individual to stay in the United States and apply for work authorization.

CAT protection can never be denied as a matter of discretion.7 8 C.F.R. § 1208.16(c)(2) provides that to prove eligibility for CAT protection, “[t]he burden of proof is on the applicant . . . to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” If that standard is met, the IJ must grant withholding of removal if one of the mandatory denial grounds listed above do not apply. Ifone of the mandatory denial grounds applies, the IJ must grant deferral of removal.

An IJ can consider a CAT application in two contexts: (1) removal proceedings (or old deportation or exclusion proceedings that are still pending); and (2) withholding-only proceedings where the government seeks to reinstate a prior removal order8 or seeks to enter an administrative order of removal against a noncitizen who has been convicted of an aggravated felony.9 In removal proceedings, a respondent’s intent to apply for CAT relief should be stated at the master calendar hearing when pleadings are entered.10 In withholding-only proceedings, the respondent’s options for relief will be limited to withholding of removal under the INA and/or CAT relief, and only with respect to the country or countries previously designated in the original removal order if a prior removal order is being reinstated.

TORTURE

8 CFR § 1208.18(a)(1)

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.

Torture has three essential elements:

(1) the intentional infliction, (2) of severe pain and suffering (physical or mental),

(3) committed by or at the acquiescence of the government.

The regulation goes on to provide the following limitations to the definition: • Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not amount to torture. • Torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture.

CREDIBLE FEAR & THRESHOLD MATTERS

CREDIBLE FEAR & THRESHOLD MATTERS

Withholding Only Proceedings

CREDIBLE FEAR & THRESHOLD MATTERS

Credible Fear Interviews

“Credible” and “Reasonable” Fear Interviews

Fear interviews are part of the expedited removal process. When a person is put into the expedited removal process, if they express a fear of returning to their home country or request to seek asylum, they are first screened to see if they could establish that they have a fear of persecution or torture.

Generally speaking, there are two “levels” of fear interviews, most commonly referred to as “credible fear” and “reasonable fear.” A person is said to have a “credible fear” if they can demonstrate a “significant possibility” that they will be able to establish eligibility for asylum or withholding of removal under the Immigration and Nationality Act  or withholding of removal or deferral of removal under the Convention Against Torture. A person establishing a “reasonable fear” of persecution or torture has to demonstrate a higher likelihood that they would be eligible for relief from removal.

The fear screening process has been periodically altered by new rules issued by various presidential administrations. Those rules are also often the subject of litigation, making the exact process an individual is subjected to (including the standard of proof needed to establish a “credible” fear) subject to regular change. Additionally, many of the rules are applied only to a subset of individuals, often seemingly at random, due to changing logistical, diplomatic, or humanitarian factors. Therefore, the credible and reasonable fear interview process may be applied differently to different people depending on things such as when they arrived at the border, where they arrived, what country they arrived from, whether they entered at a port of entry or between ports of entry, and other considerations.

At the credible or reasonable fear interview, if an individual is found by the asylum officer to have met the standard applied to them, they are then referred to proceedings where they can submit an application for asylum or other similar protections. Usually, this is done via a referral to an immigration court, where a person is put in removal proceedings initiated with a Notice to Appear. Some pilot programs such as that created by the Asylum Processing Rule created an alternative venue, where people would have their full asylum cases reviewed by an asylum officer rather than an immigration judge, on a significantly truncated timeline. If the asylum officer determines the person did not establish either credible or reasonable fear, their expedited removal order stays in place. Before removal, the individual may request review of the fear determination by an immigration judge. If the immigration judge overturns a negative fear finding, the individual is treated as if they passed their fear interview and is placed in further removal proceedings through which the individual can seek protection from removal, including asylum. If the immigration judge upholds the negative finding by the asylum officer, the individual will be removed from the United States.

PRACTICE POINTERS FOR ASYLUM CASES

Representing clients at individual hearings on the merits of their asylum claim. 

PRACTICE POINTERS FOR ASYLUM CASES

Points to Address At Hearing

ASYLUM

To be statutorily eligible for asylum, an applicant bears the burden of establishing that they are a refugee, 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), 208(b)(1)(A); 8 C.F.R. §§ 1208.13, 1240.8(d). If eligibility is established, asylum may be granted in the exercise of discretion. INA § 208(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).

Applicant Has Burden of Proof

An applicant requesting asylum bears the evidentiary burden of proof and persuasion in connection with any application under INA § 208. Under the REAL ID Act, after considering “the totality of the evidence, and all relevant factors,”

A. One Year Filing Deadline

As a threshold matter, an applicant must prove by clear and convincing evidence that their asylum application was filed within one year of the date of their last arrival into the United States. INA § 208(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). If the applicant files after the one-year deadline, they must show to the satisfaction of the Court that they qualify for an exception to the filing deadline. Id.

B. Past Persecution

To establish past persecution, an asylum applicant must demonstrate that they suffered persecution in their country of nationality on account of a protected ground, and that they are unable or unwilling to return to, or avail themself of the protection of, that country because of such persecution. INA §§ 101(a)(42)(A), 208(b)(1)(B); 8 C.F.R. § 1208.13(b)(1). “Persecution is the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground,” and includes “non-life-threatening violence and physical abuse.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal quotation marks and citations omitted). Moreover, persecution must be inflicted by either the government or by a person or entity the government is “unwilling or unable to control.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). When evaluating whether persecution has occurred, events must be considered cumulatively. Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).

MIXED MOTIVATIONS ARE OK

Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008) We have held that asylum claims are subject to mixed-motive analysis: "The protected ground need not be the sole motive: `the plain meaning of the phrase "persecution on account of the victim's political opinion," does not mean persecution solely on account of the victim's political opinion.'" Uwais v. U.S. Att'y Gen., 478 F.3d 513, 517 (2d Cir.2007) (quoting Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994)). "Where there are mixed motives for a persecutor's actions, an asylum applicant need not show with absolute certainty why the events occurred, but rather, only that the harm was motivated, in part, by an actual or imputed protected ground." Id. at 517 (citing Matter of S-P-, 21 I. & N. Dec. 486, 494-95 (B.I.A.1996)).

C. Well-Founded Fear of Future Persecution

If past persecution is established, a regulatory presumption arises that the applicant has a well-founded fear of future persecution on the basis of their original claim. *See *8 C.F.R. § 1208.13(b)(1).

The U.S. Department of Homeland Security may rebut this presumption if it 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 because the applicant could avoid future persecution by relocating to another part of the country and that it would be reasonable to expect them to do so. 8 C.F.R. § 1208.13(b)(1)(i)-(ii).

Must Show Subjective Fear AND Objective Fear

To establish a well-founded fear of future persecution, the applicant must establish both that they have a subjective fear of persecution and that the fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

Subjective Fear

The applicant’s credible testimony may satisfy the subjective component. Id. at 178; see also Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000).

Objective Fear

To meet the objective element of the test, the applicant need only show that such fear is grounded in reality; that is, they must present “reliable, specific, objective” evidence that their fear is reasonable. Ramsameachire, 357 F.3d at 178. The applicant’s fear may be well-founded even if there is “only a slight, though discernible, chance of persecution.” Diallo, 232 F.3d at 284 (citing Cardoza-Fonseca, 480 U.S. at 431).

To demonstrate that their fear of persecution is objectively well-founded, an applicant must provide evidence:

(1) that [they] ha[ve] a belief or characteristic that a persecutor seeks to overcome by means of some mistreatment, that the persecutor has the (2) capability and (3) inclination to impose such mistreatment, and (4) that the persecutor is, or could become, aware of the applicant’s possession of the disfavored belief or characteristic.

Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir. 2006).

Pattern or Practice

An applicant is not required to provide evidence that they would be “singled out individually” for persecution in the country of removal if they establish that, in the country from which they are seeking asylum, “there is a pattern or practice . . . of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion,” and that the applicant is included in and identifies with that group, such that their “fear of persecution upon return is reasonable.” 8 C.F.R. § 1208.13(b)(2)(iii); see also Shao v. Mukasey, 546 F.3d 138, 150 n.6 (2d Cir. 2008) (“Pattern-and-practice analysis affords a petitioner who cannot credibly demonstrate a reasonable possibility that he will be targeted as an individual for future persecution an alternative means to demonstrate that his fear of persecution is objectively reasonable.”).

To establish eligibility for asylum based upon a pattern or practice of persecution, an applicant must demonstrate that the persecution against the group in which they are included is “systemic or pervasive.” Matter of A-M-, 23 I&N Dec. 737, 741 (BIA 2005).

D. Nexus to a Protected Ground

An applicant for asylum must also demonstrate that the persecution they fear was or would be “on account of” their race, religion, nationality, membership in a particular social group, or political opinion. INA §§ 101(a)(42)(A), 208(b)(1)(A); 8 C.F.R. §§ 1208.13, 1240.8(d).

In post-REAL ID Act cases, the applicant must demonstrate that a protected ground was or will be “at least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i); see, e.g., Acharya v. Holder, 761 F.3d 289, 297 (2d Cir. 2014); Matter of N-M-, 25 I&N Dec. 526, 526, 531 (BIA 2011) (“In cases arising under the REAL ID Act . . . an alien must demonstrate that the persecutor would not have harmed the applicant if the protected trait did not exist.”); Matter of J-B-N- & S-M-, 24 I&N Dec. 208, 212 (BIA 2007); Matter of A-B-, 28 I&N Dec. 307 (AG 2021) (“A-B- III”); Matter of A-C-A-A-, 28 I&N Dec. 351 (AG 2021).

In discerning persecutory motives, the Court must consider the “totality of the circumstances.” Matter of S-P-, 21 I&N Dec. 486, 494 (BIA 1996); see Vumi v. Gonzales, 502 F.3d 150, 157-58 (2d Cir. 2007).

i. Race/Nationality

As a threshold matter in determining eligibility for asylum, the applicant bears the burden of establishing their nationality. See Wangchuck v. Dep’t of Homeland Security, 448 F.3d 524, 528 (2d Cir. 2006); 8 C.F.R. § 1208.13(a). An applicant bears the burden of establishing his or her race or nationality when claiming persecution on account of this protected ground. INA §§ 101(a)(42)(A), 208(b)(1)(A); 8 C.F.R. § § 1208.13, 1240.8(d) 8 C.F.R. § 1208.16(b). “A national is a person owing permanent allegiance to a state,” and “[n]ationality is a status conferred by a state, and will generally be recognized by other states provided it is supported by a genuine link between the individual and the conferring state.” Dhoumo v. BIA, 416 F.3d 172, 175 (2d Cir. 2005) (citing INA § 101(a)(21) and Restatement (Third) of Foreign Relations § 211) (internal quotations omitted). Race, on the other hand, includes “all kinds of ethnic groups that are referred to as ‘races’ in common usage.” United Nations High Commissioner on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 68 (1992); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1160 n.5 (9th Cir. 1999) (noting that race and nationality “may sometimes overlap”).

ii. Religion

“The critical showing that an applicant must make to demonstrate eligibility for asylum on religious persecution grounds is that he [or she] has suffered past persecution, or fears future persecution, on the basis of religion.” Rizal v. Gonzales, 442 F.3d 84, 90 (2d Cir. 2006). The applicant must establish that they identify with a particular religion or that others perceive the applicant as an adherent to that religion, but the applicant need not demonstrate detailed knowledge of the religion’s doctrinal tenets. Id. Evidence of treatment of religious groups is probative of a threat against an applicant claiming religious persecution. See, e.g., Ivanishvili, 433 F.3d at 339- 43 (IJ failed to evaluate Jehovah’s Witness testimony about religious persecution in Georgia).

Evidence of an applicant’s religious conversion where the applicant converted after leaving his or her home country is also probative. See Rafiq v. Gonzales, 468 F.3d 165, 166 (2d Cir. 2006) (reversing denial of CAT claim of Muslim who converted to Christianity).

iii. Particular Social Group

A “particular social group” must be (1) composed of members who share a common immutable characteristic; (2) defined with particularity; and (3) socially distinct within the society in question. Matter of M-E-V-G-, 26 I&N Dec. 227, 237 (BIA 2014). The characteristic may be innate or based upon a shared past experience. Matter of Acosta, 19 I&N Dec. at 233; see Matter of C-A-, 23 I&N Dec. 951, 958 (BIA 2006).

The “common, immutable characteristic” is determined on a case-by-case basis and “must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.” Matter of Acosta, 19 I&N Dec. at 233. Next, the particularity requirement is “definitional in nature” and focuses on delineation—whether the particular social group definition is sufficiently discrete and precise as opposed to amorphous. Matter of M-E-V-G-, 26 I&N Dec. at 239-41; Matter of W-G-R-, 26 I&N Dec. 208, 214 (BIA 2014). The proposed particular social group should address the “outer limits” of the group’s boundaries and “provide a clear benchmark for determining who falls within the group.” Matter of M-E-V-G-, 26 I&N Dec. at 239-41. In making this determination, the definition should be analyzed in the context of the society in question and focus on whether members of the society “generally agree on who is included in the group.” Matter of W-G-R-, 26 I&N Dec. at 221. Lastly, “social distinction” requires that members of the proposed group would be perceived as a separate or distinct group by society. Matter of M-E-V-G-, 26 I&N Dec. at 242 (clarifying that the perception of the society, and not the persecutor, is determinative for social distinction purposes); Quintanilla-Mejia v. Garland, 3 F.4th 569, 588 (2d Cir. 2021). In other words, the society in question must meaningfully distinguish those with the common immutable characteristic from those who do not have it. Id. at 238.

Particular Social Group

E. Government Unwilling or Unable

<aside> <img src="/icons/new-alert_blue.svg" alt="/icons/new-alert_blue.svg" width="40px" /> Matter of C-G-T-, 28 I&N Dec. 740 (BIA 2023)

(1) A respondent’s failure to report harm is NOT necessarily fatal to a claim of persecution if the respondent can demonstrate that reporting private abuse to government authorities would have been futile or dangerous.

(2) Determining whether the government is or was unable or unwilling to protect the respondent from harm is a fact-specific inquiry based on consideration of all evidence.

</aside>

Persecution must be inflicted by either the government or by a person or entity the government is “unwilling or unable to control.” See Matter of Acosta, 19 I&N Dec. at 222; see also Pavlova v. INS, 441 F.3d 82, 91 (2d Cir. 2006) (“[W]e have never held that direct governmental action is required to make out a claim of persecution. On the contrary, ‘it is well established that private acts may be persecution if the government has proved unwilling to control such actions.’”) (internal citations omitted). The unwilling-or-unable standard contains two distinct prongs: the “unwilling” prong and the “unable” prong, only one of which must be satisfied. See Scarlett v. Barr, 957 F.3d 316, 330 (2d Cir. 2020) (finding that even though applicant may not have demonstrated that the Jamaican police were unwilling to protect him from gang violence, the BIA overlooked evidence that the Jamaican authorities were unable to protect him).

F. Discretion

An applicant who establishes statutory eligibility for asylum still bears the burden of demonstrating that they merit a grant of asylum as a matter of discretion. INA § 208(b)(1)(A); Cardoza-Fonseca, 480 U.S. at 429 n.5 (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, 473-74 (BIA 1987) (superseded by regulation on other grounds). General humanitarian factors, such as age, health, or family ties, should also be considered in the exercise of discretion. Matter of H-, 21 I&N Dec. 337, 347-48 (BIA 1996); Matter of Pula, 19 I&N Dec. at 474. In the absence of any adverse factors, asylum should be granted. Matter of Pula, 19 I&N Dec. at 474. In addition, the danger of persecution should outweigh all but the most egregious adverse factors. Wu Zheng Huang v. INS, 436 F.3d 89, 98 (2d Cir. 2006) (citing Matter of Kasinga, 21 I&N Dec. 357, 367 (BIA 1996)); see 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 noncitizen’s use of a smuggler to enter the United States or on a partial adverse credibility determination. Wu Zheng Huang, 436 F.3d at 99. Rather, “the totality of the circumstances and actions of an alien in his flight from the country where he fears persecution should be examined in determining whether a favorable exercise of discretion is warranted.” Matter of Pula, 19 I&N Dec. at 473; see Wu Zheng Huang, 436 F.3d at 99.

When an Immigration Judge denies asylum solely in the exercise of discretion and grants withholding of removal, they must reconsider the denial to take into account factors relevant to family unification. See 8 C.F.R. § 1208.16(e); see also Matter of T-Z-, 24 I&N Dec. 163, 176 (BIA 2007). Factors to be considered include the reasons for the denial and reasonable alternatives available to the applicant such as reunification with their spouse or minor children in a third country. 8 C.F.R. § 1208.16(e).

OTHER POINTS

Firm Resettlement

An applicant is ineligible for asylum if he or she was “firmly resettled in another country prior to arriving in the United States.” INA § 208(b)(2)(A)(vi). The regulations provide that an applicant “is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.” 8 C.F.R. § 1208.15.

The Second Circuit has adopted a “totality of the circumstances” approach to determining whether an applicant was firmly resettled. See Tchitchui v. Holder, 657 F.3d 132, 136 (2d Cir. 2011); Jin Yi Liao v. Holder, 558 F.3d 152, 157 (2d Cir. 2009) (citing Sall v. Gonzales, 437 F.3d 229, 234-35 (2d Cir. 2006) (per curiam)). Under this approach, an official government offer is not necessary for a person to be firmly resettled in another country. Sall, 437 F.3d at 233; Liao, 558 F.3d at 157. Although an actual offer of permanent residence is of “particular importance,” it is one of many factors, including “whether [the applicant] has family ties [in the country where he or she may have been firmly resettled], whether he [or she] has business or property connections that connote permanence, and whether he [or she] enjoyed the legal rights—such as the right to work and to enter and leave the country at will—that permanently settled persons can expect to have.” Sall, 437 F.3d at 235. The totality of the applicant’s activities in the third country prior to his or her arrival in the United States are relevant to the question of whether he or she was firmly resettled, regardless of whether such activities occurred pre- or postpersecution. See 8 C.F.R. § 1208.15; Tchitchui, 657 F.3d at 136-37.

The BIA has established a four-step analysis for making firm resettlement determinations. Matter of A-G-G-, 25 I&N Dec. 486, 501 (BIA 2011); see also Matter of D-X- & Y-Z-, 25 I&N Dec. 664, 665 (BIA 2012).

In the first step, the Department bears the burden of presenting prima facie evidence of an offer of firm resettlement. Matter of A-G-G-, 25 I&N Dec. at 501. The Department should first secure and produce “direct evidence of governmental documents indicating an alien’s ability to stay in a country indefinitely.” Matter of A-G-G-, 25 I&N Dec. at 501. This may include evidence of refugee status, a passport, a travel document, or other evidence indicative of permanent residence. Matter of D-X- & Y-Z-, 25 I&N Dec. at 665. A facially valid permit allowing an asylum applicant to reside in a third country constitutes prima facie evidence of an offer of firm resettlement, even if the permit was obtained fraudulently. See Matter of D-X- & Y-Z-, 25 I&N Dec. 664, 665-66 (BIA 2012).

If direct evidence of an offer of firm resettlement is unavailable, indirect evidence may be used to show that an offer of firm resettlement has been made “if it has a sufficient level of clarity and force to establish that an alien is able to permanently reside in the country.” Matter of A-G-G-, 25 I&N Dec. at 502. Moreover, “[t]he existence of a legal mechanism in the country by which an alien can obtain permanent residence may be sufficient to make a prima facie showing of an offer of firm resettlement” whether or not the individual applies for that status. Matter of A-G-G-, 25 I&N Dec. at 502.

Accordingly, “a viable and available offer to apply for permanent residence in a country of refuge is not negated by the alien’s unwillingness or reluctance to satisfy the terms for acceptance.” Matter of K-S-E-, 27 I&N Dec. 818, 821 (BIA 2020) (citing Matter of A-G-G-, 25 I&N Dec. at 503 (“The regulations only require that an offer of firm resettlement was available, not that the alien accepted the offer.”)). In the second step of the firm resettlement analysis, the applicant may rebut the Department’s evidence of an offer of firm resettlement “by showing by a preponderance of the evidence that such an offer has not, in fact, been made or that he or she would not qualify for it.” Matter of A-G-G-, 25 I&N Dec. 486, 503 (BIA 2011); see also 8 C.F.R. § 1240.8(d). In the third step, the Immigration Judge is required to consider the totality of the evidence presented by the parties to determine whether the applicant has rebutted the evidence of firm resettlement. See Matter of A-G-G-, 25 I&N Dec. at 503.

Finally, if the Immigration Judge finds that the applicant has not rebutted the evidence of firm resettlement, the burden shifts to the applicant to establish by a preponderance of the evidence that he or she is eligible for one of the regulatory exceptions to the firm resettlement bar. See Matter of A-GG-, 25 I&N Dec. 486, 503 (BIA 2011); 8 C.F.R. § 1208.15 (a)-(b). An applicant can qualify for an exception to the firm resettlement bar if he establishes that:

(1) his entry into that country was a necessary consequence of his flight from persecution, that he remained in that country only as long as was necessary to arrange onward travel, and that he did not establish significant ties to that country; or

(2) the conditions of his residence in that country were so substantially and consciously restricted in that county that he was not in fact resettled. 8 C.F.R. § 1208.15 (a)-(b); see Matter of A-G-G-, 25 I&N Dec. at 503; see, e.g., Matter of K-S-E-, 28 I&N Dec. at 822 (determining that the respondent’s evidence did not establish that the Brazilian Government “actively supports any mistreatment of Haitians that would constitute a conscious and substantial restriction of the respondent’s residence”).

Where an asylum applicant who has resettled in a third country travels to the United States and then returns to the country of resettlement, the applicant did not remain in that country “only as long as was necessary to arrange onward travel” for purposes of establishing an exception to firm resettlement. See Matter of D-X- & Y-Z-, 25 I&N Dec. 664, 667-68 (BIA 2012).

Internal Relocation

For an applicant to be able to internally relocate safely, there must be an area of the country where the circumstances are “substantially better” than those giving rise to a well-founded fear of persecution on the basis of the original claim. Matter of M-Z-M-R-, 26 I&N Dec. 28, 33 (BIA 2012). When determining whether it is reasonable to expect an applicant to relocate in the proposed country of removal, the IJ should consider, but is not limited to considering, the following factors:

  1. whether the respondent would face other serious harm in the place of suggested relocation;
  2. any ongoing civil strife within the country; administrative, economic, or judicial infrastructure;
  3. geographic limitations; and
  4. social and cultural constraints, such as age, gender, health, and social and familial ties.

See 8 C.F.R. § 1208.13(b)(3); see also Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 288 n.7 (2d Cir. 2009). **

See Singh v. Garland, 11 F.4th 106, 117 (2d Cir. 2021) (concluding the Board’s finding that respondent could internally relocate was supported by substantial evidence, where: (1) the record contained evidence that there are 1.2 billion people, including 19 million Sikhs, living in India and that Indian citizens—Sikhs in particular—do not face difficulties relocating within the country; (2) the record also reflected that there is no central countrywide registration system or nationwide police database that members of the Akali Dal Badal could use to track rivals and that only high-profile militants—not local party organizers such as respondent— are of interest to national authorities; and (3) there were no recent reports of persecution against members of the Akali Dal Mann anywhere in India and respondent did not identify any, let alone enough to be arguably nationwide).

Internal Relocation Presumed Not To Be Reasonable

Where the persecutor is a government or is government-sponsored, it shall be presumed that internal relocation would not be reasonable, unless the Department establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate. 8 C.F.R. § 1208.13(b)(3)(ii). An applicant’s allegation that he was persecuted by members of a political party—even one that is in power nationally or is aligned with a party in power nationally—does not establish that the applicant was persecuted by the government. Singh v. Garland, 11 F.4th 106, 115 (2d Cir. 2021).

§ 1208.13(b)(3); see also id. § 1208.16(b)(3) (“[A]djudicators should con-sider the totality of the relevant circumstances regarding an applicant’s     prospects for relocation, including the size of the country of na-tionality or last habitual residence, the geographic locus of the alleged persecution, the size, reach, or numerosity of the alleged persecuto-r.”).
***Singh Bhagtana v. Garland***, 20-1673 (2d Cir. 2023)

Voluntary Return Trips Standing Alone DOESN’T Kill Claim

The mere fact that an applicant may have made voluntary return trips to his home country, standing alone, does not suggest either any fundamental change in circumstances or the possibility of internal relocation, but rather should be considered as one factor among others in determining whether a presumption of future persecution has been rebutted. See Kone v. Holder, 596 F.3d 141, 148 (2d Cir. 2010).

WITHHOLDING OF REMOVAL

To qualify for withholding of removal, an applicant must establish a “clear probability” of persecution, meaning that it is “more likely than not” that they would be subject to persecution on account of a protected ground. Cardoza Fonseca, 480 U.S. at 430 (citing INS v. Stevic, 467 U.S. 407 (1984)); see INA § 241(b)(3). A withholding applicant must establish that a protected ground “was or will be at least one central reason” for the persecution they will face. Matter of C-T-L-, 25 I&N Dec. 341, 348 (BIA 2010).

Where the applicant establishes that they suffered past persecution on the basis of one such statutory ground, it is presumed that the applicant’s life or freedom will be threatened in the future, and the burden shifts to DHS to demonstrate by a preponderance of the evidence that (1) a fundamental change in circumstances has occurred in that country such that the applicant’s life or freedom will not be threatened or (2) the applicant could safely relocate to another area in the proposed country of removal and that it would be reasonable to expect them to do so. 8 C.F.R. § 1208.16(b)(1); see also Makadji v. Gonzales, 470 F.3d 450, 458 (2d Cir. 2006); Serafimovich v. Ashcroft, 456 F.3d 81, 85 (2d Cir. 2006). If the applicant did not suffer past persecution, or if the fear of future threat to life or freedom is unrelated to the past persecution that they suffered, the applicant must establish “that it is more likely than not” that they “would be persecuted” in the future on account of a protected ground. 8 C.F.R. § 208.16(b)(2); Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 339 (2d Cir. 2006).

See more at:

Withholding of Removal

Persecution

Proving Past Persecution

CONVENTION AGAINST TORTURE

The Convention Against Torture (“CAT”) and its implementing regulations provide that no person shall be removed to a country where it is “more likely than not” that such person will be subject to torture. 8 C.F.R. § 1208.16(c)(2). Where an application for asylum is denied because the applicant failed to demonstrate the “slight, though discernible, chance of persecution” required for asylum, the applicant necessarily fails to meet the “more likely than not to be tortured” standard for CAT relief. Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). 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, 917-18 (A.G. 2006).

“Torture” is “an extreme form of cruel and inhuman treatment,” 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)(2); see Pierre v. Gonzales, 502 F.3d 109, 115 (2d Cir. 2007). The definition of torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions, unless such sanctions defeat the object and purpose of the CAT. 8 C.F.R. § 1208.18(a)(3); see, e.g., Pierre, 502 F.3d at 121*; Matter of R-A-F- ,* 27 I&N Dec. 778 (A.G. 2020); Matter of J-R-G-P-, 27 I&N Dec. 482 (BIA 2018); see also Gallina v. Wilkinson, 988 F.3d 137 (2d Cir. 2021) (finding no basis to overturn the BIA’s finding that applicant’s pain and suffering in Italian prison were “inherent in or incident to a lawful sanction and thus not intentionally inflicted”). “Torture” does not include “negligent acts” or harm stemming from a lack of resources. Matter of J-R-G-P-, 27 I&N Dec. at 484. Instead, a torturous act must “be specifically intended to inflict severe physical or mental pain or suffering.” Matter of R-A-F-, 27 I&N Dec. at 778. The act must be motivated by “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.” Id.

Torturous conduct committed by a public official who is acting “in an official capacity,” that is, “under color of law,” is covered by the CAT. Matter of O-F-A-S-, 28 I&N Dec. 35 (A.G. 2020); see also Matter of J-G-R-, 28 I&N Dec. 733 (BIA 2023); 8 C.F.R. § 1208.18(a)(1). The “under color of law” standard makes no categorical distinction between the acts of low and high level officials. Matter of O-F-A-S-, 28 I&N Dec. at 40. A public official, regardless of rank, acts “under color of law” when he exercises power “possessed by virtue of . . . law and made possible only because [he was] clothed with the authority of . . . law.” Id. The key consideration in determining if an official’s tortuous conduct was undertaken “in an official capacity” is “whether the official was able to engage in the conduct because of his or her government position, or whether the official could have done so without connection to the government.” Matter of J-G-R-, 28 I&N Dec. at 738. There is no distinct “rogue official” test for determining whether a public official or other person is acting “in an official capacity.” Matter of O-F-A-S-, 28 I&N Dec. at 41. 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 their legal responsibility to intervene to prevent such activity. 8 C.F.R. § 1208.18(a)(7); Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).

In assessing whether an applicant has satisfied their 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 they are 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); see Ramsameachire, 357 F.3d at 184. The regulations do not require the applicant to establish relocation is not possible. Manning v. Barr, 954 F.3d 477, 488 (2d Cir. 2020) (holding the IJ erred in placing the burden on the applicant to demonstrate that it was not possible to relocate to a different area of the country to avoid torture). Rather, evidence that an applicant can relocate to another part of the country where they are “not likely to be tortured” is only one of a number of factors the IJ must consider. Id. Internal relocation is not satisfied “by assuming that a petitioner must essentially live incommunicado and isolated from loved ones.” Id. at 488.

PRACTICE POINTERS FOR ASYLUM CASES

Asylum Application Requirements

 Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA 2025)

 Matter of C-A-R-R-, 29 I&N Dec. 13 (BIA 2025)

(1) An Immigration Judge is not required to consider an Application for Asylum and for Withholding of Removal (Form I-589) on the merits if it is incomplete, and incomplete applications may be considered waived or abandoned, particularly where an opportunity to cure has been offered.

(2) Because declarations are not a constituent part of an asylum application, a Form I-589 is not incomplete, and an Immigration Judge may not deem it abandoned, solely because the respondent did not submit a declaration. Matter of Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010), reaffirmed.

In this decision, a pro se asylum applicant made three separate attempts to submit I-589 applications to the immigration court; all were rejected for failure to properly answer each of the questions on the form. On the fourth attempt, the I-589 was finally accepted by the IJ. However, the judge rejected the supporting declaration because it did not contain a proper certificate of translation or the original Spanish-language version of the document. The IJ further found that a supporting statement was a required part of the I-589 and thus deemed the entire asylum application waived and abandoned.  

The BIA reversed on appeal, finding that a supporting statement was not a “constituent part” of the I-589. The BIA noted that it is within the IJ’s authority to set deadlines for the acceptance of evidence, and that the IJ was entitled to reject the supporting statement for failure to comply with the requirements of the immigration court practice manual. However, the IJ erred in finding that this meant that the entire I-589 was abandoned and waived. The IJ was entitled to consider the absence of supporting evidence when evaluating the merits of the I-589, however, the IJ erred in finding that this necessarily meant that the chance to apply for relief had been abandoned and waived by the respondent.  

The BIA reiterated that, under 8 CFR § 1208.3(c)(3), a Form I-589 is considered incomplete if it (1) lacks a response to each question on the form, (2) is unsigned, or (3) is missing required materials. The BIA confirmed that “required materials” do not include a declaration. For regulatory purposes, “a response to each of the questions” means that every question must be answered specifically and responsively, but not necessarily that every space on the form must be filled. In a footnote, the BIA clarified that blank spaces are permissible when it is not necessary to use every line to fully respond to a question. For example, an applicant who has no children may leave blank the sections requesting details about children. Conversely, applicants should use continuation pages where the space provided on the form is insufficient to provide a full response. See Form I-589, Supplements A and B (Mar. 1, 2023). Notably, the BIA went beyond the regulations to cite commentary regarding U.S. Citizenship and Immigration Service’s justification for promulgating the I-589 and to stress the importance of the applicant’s providing specific, legally relevant details to their claim.


Pointers for Practitioners:  

 EOIR PM 25-28, issued on April 11, 2025. Under this policy, IJs are allowed to pretermit — or summarily dismiss — an asylum application as legally insufficient without a merits hearing, based solely on the I-589 application. EOIR claims that current regulations and BIA case law require a hearing only when there are disputed factual issues. IJs from across the country have already started to dismiss cases on these grounds according to a post from Catholic Legal Immigration Network.

Corroboration

IJ Must Give Meaningful Notice to the Applicant of Evidence that the IJ Believes to be Significant and Missing

Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d Cir. 2006)

Precedent requires that “before denying an asylum petition because of insufficient corroboration, an IJ [must give] adequate and meaningful notice to the applicant of evidence that the IJ believed was significant and missing.”

Chen v. Holder, Jr., No. 10-2434 (2d Cir. 2011)

If there is a family member who is available to provide corroborating testimony as a witnes

Petitioner, a native and citizen of China, sought review of the BIA's order affirming the IJ's decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture on the basis that her testimony regarding an alleged forced abortion was insufficient to carry her burden of proof and she failed to produce reasonably available corroborative testimony from her husband, an undocumented immigrant. The principal issue on appeal was whether substantial evidence supported the IJ's determination that petitioner failed to provide reasonably available corroborating evidence to support her claim. The court held that the IJ's determination that petitioner's testimony was insufficient by itself to meet her burden of proof was supported by substantial evidence; the IJ's determination that petitioner's husband was available to provide corroborating testimony was reasonable; and the IJ's consequent conclusion that petitioner had failed to meet her burden of proof, despite providing arguably credible testimony, was reasonable. Accordingly, the petition for review was denied.


Persecution

Overview of Persecution

The BIA has defined “persecution” as “either a threat to life or freedom of, or infliction of suffering or harm upon those who differ in a way regarded as offensive.” See Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). The BIA and the Second Circuit have found that although persecution must rise above mere harassment, the infliction of suffering or harm “need not be physical, but may take other forms, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment or other essentials of life.”Matter of Laipenieks, 18 I&N Dec. 433, 456-457 (BIA 1983). Persecution can thus include threats to freedom or life and non-life-threatening violence. Ivanishvili v. DHS, 433 F.3d 332, 341 (2d Cir. 2006); see also, Laipenieks, 18 I&N Dec. at 457 (persecution may encompass “mental” aspects); see also, Zaman v. Gonzales, 168 Fed. Appx. 470, 472 (2d Cir. 2006) (remanding for IJ to “explicitly consider the evidence” of death threats, “decide whether that evidence is credible, and if so, whether such threats constitute past persecution”); Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 25-26 (BIA 1998) (persecution “encompasses a variety of forms of adverse treatment, including…non-physical forms of harm”).

Harm is Cumulative & Each Instance of Harm Cannot be Considered in Isolation

Adjudicators must weigh the “cumulative” significance of multiple instances of harm. Poradisova v. Gonzales, 420 F.3d 70, 79 (2d Cir. 2005) (finding that the IJ below erred in “addressing the severity of each event in isolation, without considering its cumulative significance”); Manzur v. DHS, 494 F.3d 281, 290 (2d Cir. 2007) (taking isolated incidents out of context may be misleading; the cumulative effect of the applicant’s experience must be taken into account); Matter of O-Z- & I-Z-, 22 I&N Dec. at 25–26 (beatings and threats may constitute persecution “in the aggregate”).

Defining Persecution

Although persecution is not specifically defined within the INA, the courts have held that “a threat to life or freedom on account of race, religion, nationality, political opinion or membership of a particular social group is always persecution.” See Matter of Laipenieks, 18 I&N Dec. 433, 457 (BIA 1983). 

The following five broad categories describe abuse that adjudicators may find rise to the level of persecution:

1. serious physical harm;
2. coercive medical or psychological treatment;
3. invidious prosecution or disproportionate punishment for a criminal offense;
4. severe discrimination and economic persecution, and
5. severe criminal extortion or robbery.

Serious Physical Harm

The most recognized form of persecution is the infliction of serious physical harm, including confinement, kidnapping, torture, and beatings. Rape, sexual assault and other forms of gender-based violence are also persecution.

The rape and beating of an LGBTQ/H person on account of their sexual orientation, gender identity, and/or HIV status constitutes persecution. Many LGBTQ individuals have been raped or sexually assaulted as “punishment” for their sexual orientation or gender identity. In the case of Hernandez-Montiel, the Ninth Circuit found that there was persecution when a “gay man with a female sexual identity” was detained, strip-searched, sexually assaulted, and raped by police officers on more than one occasion and sexually assaulted and attacked by a group of men.

Threats of violence will generally not be sufficient to establish past persecution unless the threats themselves cause significant harm. “Threats standing alone…constitute persecution in only a small category of cases and only when the threats are so menacing as to cause significant actual suffering or harm.”  Threats will be more likely to establish future persecution if the applicant can demonstrate that the group who is making the threats has the will and ability to carry them out.

Coercive Medical and Psychological Treatment

Certain types of medical and psychological treatment will demonstrate a well-founded fear of persecution. The Board of Immigration Appeals has found that “forced institutionalization, electroshock treatments and drug injections could constitute persecution.”  The coercive family planning practiced by the Chinese government may also constitute persecution. 

The most significant holding in this area is the Ninth Circuit decision in Pitcherskaia v. INS.  Pitcherskaia, a lesbian from Russia, was arrested and imprisoned on several occasions for protesting violence and discrimination against gays and lesbians in Russia. The militia threatened her with forced institutionalization and required her to attend therapy sessions. She was prescribed sedative medication which she successfully refused. In addition, an ex-girlfriend of hers was institutionalized against her will and was subjected to electric shock treatment and other treatments meant to ‘cure’ her of her sexual orientation. The Ninth Circuit ruled that it is not necessary for the persecutor to intend harm in order for unwanted medical or psychological treatment to amount to persecution, as long as the victim experiences the treatment as harmful. The proper test is whether or not a reasonable person would have found the suffering inflicted as offensive. 

Lack of access to adequate medical treatment, however, is generally not considered persecution. HIV-positive asylum applicants will have difficulty securing asylum status on this basis. Nevertheless, at least two international human rights law tribunals have recognized that a country’s failure or inability to provide life-sustaining medical treatment can allow for protection under refugee law. In addition, lack of adequate medical treatment for HIV/AIDS has been one of several factors that have been considered when a claim is made based on HIV status.  The discrepancy within the cases may be attributed to the difference between not receiving the best quality medical care and government refusal to provide basic medical care to people with HIV/AIDS.

HIV DIAGNOSIS IN THE SUB-STANDARD PRISON CONDITIONS OF THE COUNTRY OF CITIZENSHIP WOULD RESULT IN DEATH. There have also been successful non-precedential Convention Against Torture claims for individuals living with HIV who were able to demonstrate that they would be incarcerated in sub-standard conditions if returned to their home countries. Finding that such incarceration would like lead to death, at least two Immigration Judges (IJs) have granted CAT under these circumstances

Invidious Prosecution or Disproportionate Punishment for a Criminal Offense

Asylum status will not be granted for criminal prosecution as a result of a violation of a fairly administered law.  Prosecution may be considered persecution, however, if there is either severe punishment or pretextual prosecution. Asylum adjudicators will focus on whether the punishment under a country’s laws is disproportionately severe or whether the law or punishment is contrary to international human rights standards. In determining whether a particular law is considered to be in violation of human rights standards, asylum adjudicators may use U.S. law as comparison.  Since Lawrence v. Texas, private consensual same-sex activity cannot be prohibited by law in the United States.  This ruling helps demonstrate that sodomy laws in other countries are in violation of rights explicitly recognized by the United States.

Many countries still prohibit homosexual acts in their criminal codes. The existence of such a law, however, may not be sufficient to demonstrate persecution. Several unpublished decisions emphasize the importance of evidence that the laws are actually enforced