Any individual who is physically present in the United States, irrespective of status, may receive asylum in the exercise of discretion, provided that they timely file an application and qualify as a refugee (INA §101(a)(42)(A) and INA §208). The applicant has the burden of proving that they are statutorily eligible for asylum under 8 CFR §208.13(207).
The applicant meets the definition of a refugee if they prove that they are unable or unwilling to return to (or avail themselves of the protection of) their country of origin because of persecution or a well-founded fear of persecution.
This persecution must be country-wide and on account of:
- Membership in any particular social group
- Political opinion
The applicant must establish a “reasonable possibility” of persecution in their country of nationality. If they demonstrate past persecution, they create a formidable presumption that they have a well-founded fear of persecution. They also must demonstrate the following eligibility factors.
Section I. – Timeliness
The applicant must establish by clear and convincing evidence that they filed their 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
The court generally does not consider testimony credible when it is inconsistent and contradictory with the current country conditions, or it is 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 of 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 they were 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.
Once they establish that they 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).
In Matter of Acosta, the board interpreted membership in a “particular social group” as follows:
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.
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 they 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.
Section IV. – State Action Required
To establish eligibility for asylum, the applicant must demonstrate that the persecution they experience or fear was/would be 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 they, and, for that reason, they 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.
Section 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).
If DHS cannot prove either factor, it should approve the applicant for asylum status.