*** The following is the unformatted law and authority portion of a brief we filed in a case where our client was persecuted for religious and imputed political beliefs, among other reasons.  The case was particularly strong, and the brief was tailored as such.  The brief is available for educational purposes only.  It may be outdated or incorrect.  It is not legal advice and should not be relied upon or reproduced to submit to a court unless as updated and edited by a competed immigration attorney.  There is no attorney-client relationship between you and our office until if and when a written legal services agreement is obtained pursuant to payment in the discretion of the attorney. 

 

STATEMENT OF LAW

ASYLUM

Under 8 U.S.C. § 1158(b)(1), the Attorney General may grant asylum to any applicant who qualifies as a “refugee.” “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.” 8 C.F.R. § 1208.13(b).  If the applicant meets the burden to show past persecution, there is a presumption of eligibility that can only be rebutted if a preponderance of the evidence establishes that conditions in the country of persecution have fundamentally changed, or the applicant could reasonably relocate safely to another part of the country.   8 C.F.R. § 1208.13(b)(1)(i)(A),(B).

The court may also grant humanitarian asylum to a victim of past persecution, even where the government has rebutted the applicant’s fear of future persecution, “if the asylum seeker establishes (1) ‘compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution,’ 8 C.F.R. § 1208.13(b)(1)(iii)(A), or (2) ‘a reasonable possibility that he or she may suffer other serious harm upon removal to that country,’ 8 C.F.R. § 1208.13(b)(1)(iii)(B).”  In other words, when an asylum applicant shows she experienced “past persecution so severe that repatriation would be inhumane,” she may be eligible for a discretionary, humanitarian grant of asylum even when no future danger of persecution exists. Baka v. INS, 963 F.2d 1376, 1379 (10th Cir.1992).

A well-founded fear must be subjectively genuine and objectively reasonable.  See Montecino v. INS, 915 F.2d 518, 520-21 (9th Cir. 1990) (noting the importance of the applicant’s subjective state of mind).  A “‘well-founded fear’ … can only be given concrete meaning through a process of case-by-case adjudication.” INS v. Cardoza-Fonseca, 480 U.S. 421, 448 (1987). The objective component requires the asylum applicant to show a  “reasonable possibility of actually suffering . . . persecution if he were to return” to the country of persecution. See Kapcia v. INS, 944 F.2d 702, 706 (10th Cir. 1991); see also 8 C.F.R § 208.13(b)(2). The Supreme Court has stated that a one in ten chance may constitute a “reasonable possibility” of persecution. Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir. 1996)(citing INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987). See also, Basnet v. Gonzales, 168 Fed. Appx. 278, 281 (10th Cir. 2006)(holding that “Basnet need only show . . . ‘a 10% chance of being shot, tortured or otherwise persecuted’”).

The burden of meeting this objective component lies with the asylum applicant, and must be met by “credible, direct, and specific evidence in the record.” Kapcia, 944 F.2d at 707 (quotation and citation omitted).

Current country conditions may be relevant to whether the applicant has demonstrated an objectively reasonable fear of future persecution.  See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002).  However, in determining whether an applicant’s fear of future persecution is objectively reasonable in light of current country conditions, the agency must conduct an individualized analysis of how such conditions will affect the applicant’s specific situation.  Krastev v. INS, 292 F.3d 1268 (10th Cir. 2002) (holding that the Board erred in finding evidence of changed conditions sufficient to rebut a presumption of well-founded fear when “the BIA’s conclusory reliance of the Country Report reflect[ed] no consideration of the individualized circumstances facing the petitioners).

An applicant need not show that she will be singled out individually for persecution if:

(A) The applicant establishes that there is a pattern or practice in his or her country … 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.

8 C.F.R. § 1208.13(b)(2)(iii)(emphasis added).

The term “persecution” is not defined by the Immigration and Nationality Act. According to the Tenth Circuit:

Although persecution is not defined in the INA, we have held that a finding of persecution requires the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive and must entail more than just restrictions or threats to life and liberty. Such persecution may be inflicted by the government itself, or by a non-governmental group that the government is unwilling or unable to control.

Hayrapetyan v. Mukasey, 534 F.3d 1330, 1337 (10th Cir. 2008). Physical harm is not required for a finding of persecution.  See Kovac v. INS, 407 F.2d 102, 105-07 (9th Cir. 1969).  “Persecution may be emotional or psychological, as well as physical.”  Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004); see also Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir. 2004). However, if the applicant is physically attacked, “Nothing in the pertinent statutes or relevant precedents suggests that an applicant must be permanently maimed in order to demonstrate past persecution.” Karki v. Holder, 715 F.3d 792, 804 (10th Cir. 2013). Moreover, physical beatings are obviously very probative of persecution.

With regard to the Service’s contention that the harm suffered by the respondent and his son does not rise to level of persecution, we note that the respondent was physically attacked on three occasions. His son endured beatings at school and required surgery to treat an injury he incurred during the July 3, 1993, beating. Furthermore, the respondent’s apartment was broken into, his furniture and possessions were destroyed, and valuables were stolen. The respondent repeatedly received anti-Semitic fliers and written threats at his home. Finally, the respondent’s son suffered extreme humiliation when he was forced to undress by his classmates. We find that these incidents constitute more than mere discrimination and harassment. In the aggregate, they rise to the level of persecution as contemplated by the Act.

Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 25-26 (BIA 1998).  As the above case highlights, the courts must aggregate past harm when making a determination as to past persecution.  It is not appropriate to look at individual incidents of harm in isolation. The court “look[s] at the totality of the circumstances in deciding whether a finding of persecution is compelled.” Guo v. Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004).

Prolonged and arbitrary detention by the government with incidents of mistreatment because of an assumption that the political views of the applicant are antithetical to those of the government will almost always rise to the level of past persecution. See, e.g., Matter of S-P-, 21 I&N Dec. 486 (BIA 1996) (Asylum was granted where the applicant was detained and abused by the Sri Lankan Government, not only to obtain information about the identity of guerrilla members and the location of their camps, but also because of an assumption that his political views were antithetical to those of the Government.), see also; Matter of B—, Interim Decision 3251 (BIA 1995).

Threats of serious harm, particularly when combined with confrontation or other mistreatment, may constitute persecution.  “Threats on one’s life, within a context of political and social turmoil or violence, have long been held sufficient to satisfy a petitioner’s burden of showing an objective basis for fear of persecution.”  Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004).  “What matters is whether the group making the threat has the will or the ability to carry it out.”  Id.  The fact that threats are unfulfilled is not dispositive.  See Id. at 658-59.

In cases where the applicant has not established past persecution, the applicant bears the burden of establishing that it would be either unsafe or unreasonable for him to relocate, unless the persecution is by a government or is government sponsored.  Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004); 8 C.F.R. § 1208.13(b)(3)(i).  Reasonableness of internal relocation is based on “whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health, and social and familial ties.” 8 C.F.R. § 1208.13(b)(3) (emphasis added); see also Boer-Sedano v. Gonzales, 418 F.3d 1082, 1090 (9th Cir. 2005) (explaining that the regulation precludes relocation when a petitioner’s age, limited job prospects, and lack of family or cultural connections to the proposed place of relocation militate against a finding that relocation would be reasonable).

Once an “applicant establishes statutory eligibility for asylum, the Attorney General must, by a proper exercise of [] discretion, determine whether to grant that relief.”  8 U.S.C. § 1158(b).  In exercising its discretion, the court must consider both favorable and unfavorable factors, including the severity of the past persecution suffered.  See Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir. 1995) (discussing likelihood of future persecution, severity of past persecution, alcohol rehabilitation, circumstances surrounding departure and entry into United States, and criminal record in the United States).

WITHHOLDING OF REMOVAL UNDER INA § 241(b)(3)(B)

“To qualify for withholding of removal, an alien must demonstrate that it is more likely than not that he would be subject to persecution on one of the specified grounds.” 8 C.F.R. § 1208.16(b)(2).

“Unlike asylum, withholding of removal is not discretionary. The Attorney General is not permitted to deport an alien to a country where his life or freedom would be threatened on account of one of the [] protected grounds … .” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001) (internal quotation marks and citation omitted).

Similar to asylum, if an applicant meets the burden to show past “persecution,” there is a presumption of eligibility that can only be rebutted if a preponderance of the evidence establishes that conditions on the country of persecution have fundamentally changed, or the applicant could reasonably relocate safely to another part of the country.   8 C.F.R. § 1208.13(b)(1).

PROTECTED GROUNDS FOR THE PURPOSES OF ASYLUM AND WITHHOLDING OF REMOVAL

Applicants 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.”  8 U.S.C. § 1158(b)(1)(B)(i) (emphasis added).

[A] motive is a ‘central reason’ if the persecutor would not have harmed the applicant if such motive did not exist. Likewise, a motive is a ‘central reason’ if that motive, standing alone, would have led the persecutor to harm the applicant. … [P]ersecution may be caused by more than one central reason, and an asylum applicant need not prove which reason was dominant. Nevertheless, to demonstrate that a protected ground was ‘at least one central reason’ for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.

Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009).  Although widespread civil unrest does not, on its own, establish asylum eligibility, the existence of general civil strife does not preclude relief.  See Ahmed v. Keisler, 504 F.3d 1183, 1194-95 n.9 (9th Cir. 2007) (“[E]ven though generalized violence as a result of civil strife does not necessarily qualify as persecution, neither does civil strife eliminate the possibility of persecution).

The persecutor’s motivation may be established by direct or circumstantial evidence.  See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).

Persecution for “imputed” grounds (e.g., where one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a religious sect) can satisfy the “refugee” definition. Matter of A— G—, 19 I. & N. Dec. 502, 507 (BIA 1987). Notably, the United Nations Handbook on Refugees recognizes that persecution based on political opinion may include situations in which “such opinions have come to the notice of the authorities or are attributed by them to the applicant.” Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para. 80, at 19 (Geneva 1979).

RELIGION

Persecution on the basis of religion may assume various forms, including:

prohibition of membership of a religious community, or worship in private or in public, of religious instruction, or serious measures of discrimination imposed on persons because they practice their religion or belong to a particular religious community.

Handbook on Procedures and Criteria for Determining Refugee Status, U.N. Doc. HCR/IP/4/Eng./REV.2 (ed. 1992) (“UNHCR Handbook”), para. 72. “The Universal Declaration of Human Rights and the Human Rights Covenant proclaim the right to freedom of thought, conscience, and religion, which right includes the freedom of a person to change his religion and his freedom to manifest it in public or private, in teaching, practice, worship and observance.”  UNHCR Handbook, para. 72.

An applicant cannot be required to practice his religious beliefs in private in order to escape persecution.  See Zhang v. Ashcroft, 388 F.3d 713, 719 (9th Cir. 2004) (“[T]o require [petitioner] to practice his beliefs in secret is contrary to our basic principles of religious freedom and the protection of religious refugees.”).

POLITICAL OPINION

“[P]olitical opinion encompasses more than electoral politics or formal political ideology or action.”   Ahmed v. Keisler, 504 F.3d 1183,1192 (9th Cir. 2007); see, e.g., Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (recognizing that an applicant’s statements regarding the unfair distribution of food resulted in the imputation of an anti-government political opinion), amended by 355 F.3d 1140 (9th Cir. 2004) (order); Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc) (refusal to pay revolutionary tax in the face of threats constitutes an expression of political belief), superseded by statute on other grounds as stated by Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).

PARTICULAR SOCIAL GROUP

The “phrase ‘particular social group’ is ambiguous.”  See Cordoba v. Holder, 726 F.3d 1106, 1114 (9th Cir. 2013).  In response to growing criticism, the Board of Immigration Appeals (hereinafter “BIA”) published two decisions in 2014 to clarify the phrase in light of previous confusion over prior BIA interpretation.  Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R, 26 IQN Dec. 3008 (BIA 2014).  The following standard is now applicable:

Thus, we clarify that an applicant for asylum or withholding of removal seeking relief based on “membership in a particular social group” must establish that the group is

(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).

In a Ninth Circuit case, the Ninth Circuit held that the first prong of the Board’s decisions – “immutable characteristic” – was clearly met.

“Immutability” is not at issue here, and, in any event, Pirir-Boc’s proposed group clearly satisfies the BIA’s standard. The steps Pirir-Boc took in opposition to the gang are a “shared past experience” and “something . . . that cannot be changed.” W-G-R-, 26 I. &N. Dec. at 212-13 (“In Acosta we determined that any characteristic that defines a particular social group must be immutable . . . . The defining characteristic can be an innate characteristic or a shared past experience. The critical requirement is that the defining characteristic of the group must be something that either cannot be changed or that the group members should not be required to change in order to avoid persecution.”).

Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir 2014)(emphasis added).

The second prong of the Board’s three part test – particularity – seeks to avoid circumstances where the definition can be interpreted in a subjective, rather than objective, manner.

A particular social group must be defined by characteristics that provide a clear benchmark for determining who falls within the group. Matter of A-M-E- & J-G-U-, 24 I. & N. Dec. at 76 (holding that wealthy Guatemalans lack the requisite particularity to be a particular social group) . It is critical that the terms used to describe the group have commonly accepted definitions in the society of which the group is a part. Id. (observing that the concept of wealth is too subjective to provide an adequate benchmark for defining a particular social group).

Matter of M-E-V-G, 26 I&N Dec. 227, 229-30 (BIA 2014)(emphasis added).

The third prong  – social distinction – replaced the prior “social visibility” standard that resulted in much confusion (e.g., some courts improperly required ocular visibility).  Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).  The persecutor’s perspective is one factor among others to be considered in determining a group’s social visibility. M-E-V-G-, 26 I. & N. Dec. at 242. The BIA noted at least two ways in which the “perception of the applicant’s persecutors may be relevant.” Id. First, the persecution of a group may cause a group for the first time to recognize itself and be recognized by society as a group. Id. For instance, taking the example of a proposed social group of former employees of a country’s attorney general, the BIA explained that such employees may not consider themselves to be a separate group until they are mistreated by a persecutor. “Upon their maltreatment, it is possible that these people would experience a sense of ‘group,’ and society would discern that this group of individuals, who share a common immutable characteristic, is distinct in some significant way.” Id. at 243. Second, the persecutor’s perceptions may be relevant in cases involving persecution on account of “imputed” grounds, where “one is erroneously thought to hold particular political opinions or mistakenly believed to be a member of a particular social group.” Id.

An applicant seeking asylum or withholding of removal based on membership in a particular social group must clearly indicate on the record before the Immigration Judge the exact delineation of any proposed particular social group, and the Board generally will not address a newly articulated particular social group that was not advanced before the Immigration Judge.  Matter of W-Y-C- & H-O-B, 27 I&N Dec. 189 (BIA 2018).

RELIEF UNDER THE CONVENTION AGAINST TORTURE

A respondent seeking protection under the Convention Against Torture bears the burden of showing that he “is more likely than not to be tortured in the country of removal.” 8 C.F.R. § 208.16(c)(4) (emphasis added). The applicant need not show that torture will occur on account of a statutorily protected ground. Ritonga v.Holder, 633 F.3d 971, 978 (10th Cir. 2011).

In determining whether the respondent is likely to be tortured, a court shall consider, inter alia:

  • Evidence of past torture inflicted upon the applicant;
  • Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and
  • Other relevant information regarding conditions in the country of removal.

8 C.F.R. § 208.16(c)(3). “[I]f an individual has been tortured and has escaped to another country, It is likely that he will be tortured again if returned to the site of his prior suffering, unless circumstances or conditions have changed significantly, not just in general, but with respect to the particular individual.”  Nuru v. Gonzales, 404 F.3d 1207, 1217-18 (9th Cir. 2005)(emphasis added)(noting that an “individualized analysis” of how changed conditions will affect the specific applicant’s situation is required).  However, while past torture is perhaps the most relevant evidence of likely future torture, there is no automatic presumption of future torture, and “a petitioner is not entitled to a presumption of future torture based on evidence of past torture; nor does a showing of past torture automatically render [him] CAT eligible.” Niang v. Gonzales, 422 F.3d 1187, 1202 (10th Cir. 2005) (citation omitted).

The term “torture” is defined as follows:

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.

8 C.F.R. § 208.18(a)(1) (emphasis added).  As shown above, to qualify for relief, the torture must be “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.” 8 C.F.R. § 208.18(a)(1) (emphasis added). Obviously, the entire government must not be involved or acquiesce, and there is no requirement that the government employ a policy of torture from top down akin to the Nazi policy of the extermination of the Jewish population.  The law is written in the singular, not in the plural.

“[G]overnment acquiescence need not necessarily be an officially sanctioned state action; instead, an act is under color of law when it constitutes a misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” Garcia v. Holder, 756 F.3d 885, 891-92 (5th Cir. 2014). “[A]cts motivated by an officer’s personal objectives are ‘under color of law’ when the officer uses his official capacity to further those objectives.” Id. at 892 (citing Marmorato v. Holder, 376 F. App’x 380, 385 (5th Cir. 2010) (per curiam)).   Nor does precedent require that the public official in question “be the nation’s president or some other official at the upper echelons of power. Rather . . . the use of official authority by low-level officials, such a[s] police officers, can work to place actions under the color of law even where they are without state sanction.” Id. (alterations in original) (quoting Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009)).

“‘Acquiescence of a public official requires that the public official, prior to the activity constituting the torture, have awareness of such activity and thereafter breach his or her legal responsibility to prevent such activity.'” Cruz—Funez v. Gonzales, 406 F.3d 1187, 1192 (10th Cir. 2005) (quoting 8 C.F.R. § 1208.18(a)(7)). This standard does not require “actual knowledge, or willful acceptance” by the government. Id. (quotation omitted). “Rather, willful blindness suffices to prove acquiescence.” Id. (quotation and alteration omitted).

Relief under the Convention Against Torture is not discretionary, but mandatory. See 8 C.F.R. § 208.16(c)(4) (stating that “an alien entitled to such protection shall be granted” relief).  Protection under the Convention Against Torture will be granted either in the form of withholding of removal or in the form of deferral of removal. An alien entitled to such protection shall be granted withholding of removal unless the alien is subject to mandatory denial of withholding of removal in which case the alien’s removal shall be deferred under 8 C.F.R. § 208.17(a).  8 C.F.R. § 208.16(c)(4).