Any individual who is physically present in the United States, irrespective of status, may receive asylum in the exercise of discretion, provided that he or she timely files an application and qualifies as a refugee, INA §101(a)(42)(A) and INA §208. The applicant has the burden of proving that he or she is statutorily eligible for asylum under 8 CFR §208.13(207).
The applicant meets the definition of a refugee if he or she proves that he or she is a person outside his or her country of nationality who is unable or unwilling to return to, and is unable or unwilling to avail him or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of:
- membership in any particular social group or political opinion
- political (these are the protected grounds)INA §§ 208(b)(1). The applicant must establish a “reasonable possibility” of persecution in his or her country of nationality.
An applicant who demonstrates past persecution creates a formidable presumption that he or she has a well-founded fear of persecution, 8 CFR §208.13(b)(1). In addition, the applicant’s fear of persecution must be country-wide.
Finally, the applicant must demonstrate that he or she is eligible for asylum as a matter of discretion, 8 CFR §208.13(b)(1)(i).
Section I. – Timeliness
The applicant must establish by clear and convincing evidence that he or she filed his or her asylum application within one year of arrival in the United States, 8 CFR §208.4(a)(2)(2007). The applicant is considered ‘filed’ on the date it is received.
Section II. – Credibility
When assessing an applicant’s asylum credibility, the Immigration Court attaches significant weight to the applicant’s credibility, Matter of O-D, 21 I&N Dec. 1079, 1081 (BIA 1998). The court determines an applicant’s credibility by considering the totality of the circumstances and all relevant factors. These factors include:
- the applicant’s demeanor
- consistency on direct and cross-examination
- consistency with the written application
- the absence of embellishment
Matter of B, 21 I&N Dec. 66, 70 (BIA 1995). The court generally does not consider testimony credible when it is inconsistent and contradictory with the current country conditions, or inherently improbable or implausible, Matter of S-M-J, 21 I&N Dec. 722, 728-29 (BIA 1997)
An asylum applicant’s testimony can satisfy the burden or proof without additional corroboration if the testimony is “believable, consistent and sufficiently detailed to provide a plausible and coherent account on the basis of his (or her) alleged fear”, Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989).
However, an adverse credibility finding alone may suffice to support the court’s denial of an applicant’s asylum claim, especially if the applicant failed to produce corroborating evidence.
Section III. Past Persecution
To establish asylum based on past persecution, the applicant must show that he or she was persecuted on account of a protected ground. Persecution is the “infliction of suffering or harm upon an individual to punish him or her for possessing a belief or characteristic a persecutor seeks to overcome.” Matter of Acosta, 19 I&N Dec. 211, 223 (BIA 1985), modified on other grounds by Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
Persecution is an extreme concept that requires “more than a few isolated incidents of verbal harassment or intimidation.” However, harassment or intimidation accompanied by physical punishment, infliction of harm, or serious depravation of liberty could rise to the level of persecution, Mikhailevitch v. INS, 146 F3d 385, 390 (6th Cir. 1998).
In determining whether or not the applicant suffered persecution, the court must consider the cumulative effect of the allegedly persecutory incidents.
When he or she establishes that he or she has suffered persecution, the applicant must then show that the persecution was on account of race, religion, nationality, membership in a particular social group, or political opinion, INA § 101, 8 CFR §1208.13(b).
Persecution can be imputed, rather than actual, protected grounds to satisfy the refugee definition. See Matter of T-M-B, 21 I&N Dec. 775, 777 (BIA 1997), stating that the applicant must produce evidence from which it is reasonable to believe that harm was motivated, at least in part, by an actual imputed protective ground.
a. Regarding ‘any particular social group’, in Matter of Acosta the board interpreted membership in a ‘particular social group’ to mean:
An individual is a member of a group of persons, all of whom share a common, immutable characteristic. A shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be shared past experience such as former military leadership or land ownership. A 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 members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.
See Acosta at 19 I&N Dec. 223(I)(b) “On account of” requirement. In addition to establishing membership in a particular social group, an asylum applicant must provide “specific detailed facts” that provide an applicant has a good reason to fear that he or she will be singled out for persecution on account of the protective ground. The applicant’s proof may be in the form of direct or circumstantial evidence. The applicant need not show that persecution was solely motivated by the protective ground. Instead, the applicant can establish asylum eligibility so long as the persecution was motivated “at least in part” by the protective ground.
IV. State Action Required
To establish eligibility for asylum, the applicant must demonstrate that the persecution he or she experiences or fears was inflicted by the government or by an entity the government is unable or unwilling to control. See Acosta, 19 I&N Dec. 222.
In examining whether a government is unwilling or unable to protect an applicant, the court generally considers it fatal to the asylum claim if the applicant has failed to report persecution to the local authorities. However, the board has excused an applicant’s failure to report where the applicant convincingly establishes that the authorities would have been unable or unwilling to protect him or her, and for that reason, he or she could not rely on the authorities, Matter of S-A, 22 I&N Dec. 1328, 1335 (BIA 2000). This can be shown sometimes by U.S. State Department Country Reports, and reports from other agencies.
V. Well-founded Fear of Persecution
Once an asylum applicant establishes past persecution on account of a protected ground, the burden shifts to DHS to provide, with a preponderance of evidence, that the applicant no longer has a well-founded fear of persecution because of a fundamental change in circumstances, or that the applicant could avoid future persecution by relocating to another part of the country, 8 CFR § 208.13(p)(1)(i)-(ii).