[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Proposed Rules]
[Pages 31945-31950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15590]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Part 208
[INS Order No. 1865-97; AG Order No. 2164-98]
RIN 1115-AE93
Executive Office for Immigration Review; New Rules Regarding
Procedures for Asylum and Withholding of Removal
AGENCY: Immigration and Naturalization Service; Executive Office for
Immigration Review, Department of Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Department regulations that
govern asylum and withholding of removal. The amendments focus on
portions of the regulations that deal with cases where an applicant has
established past persecution or where the applicant may be able to
avoid persecution in his or her home country by relocating to another
area of that country. In the current regulation, these portions set out
restrictive guidelines about how the Attorney General's discretion
should be exercised in cases where past persecution is established and
about what kind of relevant evidence can be considered in determining
whether an applicant has a well-founded fear of future persecution.
This rule is intended to establish new guidelines about these issues.
The rule continues to provide that, in cases where the applicant has
established past persecution, the Attorney General may deny asylum in
the exercise of discretion if it is established by a preponderance of
the evidence that the applicant does not face a reasonable possibility
of future persecution in the applicant's country of nationality or, if
stateless, the applicant's country of last habitual residence. In this
regard, however, the rule has been changed to make clear that the
asylum officer or immigration judge may rely on any evidence relating
to the likelihood of future persecution. The rule makes similar changes
to regulations regarding withholding of deportation. The rule also
identifies new factors that may be considered in the exercise of
discretion in asylum cases where the alien has established past
persecution but may not have a
[[Page 31946]]
well-founded fear of future persecution. The rule further provides that
the asylum and withholding standards require a showing that a risk of
harm exists throughout the country in question.
DATES: Written comments must be submitted on or before July 13, 1998.
ADDRESSES: Please submit written comments in triplicate to Director,
Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, N.W., Room 5307, Washington, D.C.
20536. To ensure proper handling, please reference INS No. 1865-97 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange for an
appointment.
FOR FURTHER INFORMATION CONTACT: Christine Davidson, Senior Policy
Analyst, Asylum Division, Immigration and Naturalization Service, 425 I
Street, N.W., Washington, D.C. 20536, Attn: ULLICO Bldg., 3rd Floor,
(202) 305-2663; Margaret M. Philbin, General Counsel, Executive Office
for Immigration Review, Suite 2400, 5107 Leesburg Pike, Falls Church,
Virginia 22041, (703) 305-0470.
SUPPLEMENTARY INFORMATION: Section 208 of the Immigration and
Nationality Act (Act) provides that an alien may be granted asylum in
the discretion of the Attorney General if the Attorney General
determines that such alien is a refugee within the meaning of section
101(a)(42)(A) of the Act. Under this section, a refugee is defined as:
[A]ny 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 * * *
Although this provision is based on the refugee definition found in
the 1951 Convention Relating to the Status of Refugees (as modified by
the 1967 Protocol Relating to the Status of Refugees), it differs
slightly from the international definition by providing that a person
may qualify as a refugee on the basis of past persecution alone,
without having a well-founded fear of future persecution. Nevertheless,
the fact that a person is a refugee does not automatically entitle the
person to asylum. The Attorney General must determine whether the
person warrants a grant of asylum in the exercise of discretion. INS v.
Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987); 8 CFR 208.14 (a) and
(b).
Consistent with the statute, the current regulations provide that
an applicant who establishes that he or she has suffered past
persecution qualifies as a refugee. 8 CFR 208.13(b)(1). The regulations
go on to describe how the Attorney General will exercise discretion
with respect to a person who qualifies as a refugee on the basis of
past persecution. The regulations first provide that such person shall
be presumed to have a well-founded fear of future persecution unless a
preponderance of the evidence establishes that, since the time of the
persecution, conditions in the applicant's country of origin have
changed to such an extent that the applicant no longer has a well-
founded fear of persecution. 8 CFR 208.13(b)(1)(i). The regulations
further provide that an applicant who has established past persecution,
but does not have a well-founded fear of future persecution, will be
denied asylum unless the applicant demonstrates compelling reasons for
being unwilling to return to his or her country of origin arising out
of the severity of the past persecution the applicant has suffered. 8
CFR 208.13(b)(1)(ii).
Since the promulgation of these regulations in 1990, important
questions have arisen about the meaning of 8 CFR 208.13(b)(1)(i) and
(ii). For example, some have questioned the relevance of paragraph
(b)(1)(i) regarding the presumption of a well-founded fear of future
persecution to be accorded an applicant who has suffered past
persecution if such applicant already qualifies as a refugee. Others
have expressed confusion about which party bears the burden of proof in
showing whether the presumption identified in paragraph (b)(1)(i) has
been overcome. Others have interpreted this paragraph to preclude
consideration of evidence other than changes in country conditions in
cases where the applicant has established past persecution. Paragraph
(b)(1)(ii) also created ambiguity as to whether an applicant who has
established past persecution also bears the burden of establishing a
well-founded fear of future persecution in order to be granted asylum.
Recent decisions by the Board of Immigration Appeals (BIA or Board) and
by the Federal courts have interpreted these regulatory provisions and
highlighted the need to change them.
This rule leaves intact the important principle that an applicant
who has established past persecution on account of one of the five
grounds is a refugee. It also continues to provide that a person who
has established past persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion shall be presumed to have a well-founded fear of future
persecution on account of these same grounds. This presumption is
relevant to whether the applicant warrants a grant of asylum in the
exercise of discretion. The rule then makes clear that, in cases where
the applicant has established past persecution, the application shall
be referred or denied if it is established by a preponderance of the
evidence that there is not a reasonable possibility of future
persecution against the applicant on account of one of the five
grounds, unless paragraph (b)(1)(iii) applies. This approach is
consistent with longstanding principles articulated in case law. See
Matter of Chen, 20 I&N 16 (BIA 1989).
In cases involving past persecution, we propose to maintain the use
of a presumption and, for cases in immigration proceedings, the
shifting to the Government of the burden of proof for rebutting the
presumption. This burden-shifting fits well within the context of
immigration court proceedings, with separate litigants appearing before
an independent decisionmaker. Where an applicant establishes past
persecution before an asylum officer during a non-adversarial asylum
interview, it will be incumbent on the officer to elicit from the
applicant or otherwise gather evidence bearing on future persecution
and to evaluate whether a preponderance of the evidence indicates that
the applicant no longer faces a reasonable possibility of persecution.
This rule also makes clear that, in determining whether there is a
reasonable possibility of future persecution, the asylum officer or
immigration judge may rely on any evidence relating to the possibility
of future persecution against the applicant. This is an important
change in light of the recent Board decision in Matter of C-Y-Z,
Intertim Decision #3319 (BIA 1997), which raises questions about how
the existing regulation should be interpreted. In that decision, the
Board addressed the case of an applicant who had suffered past
persecution and was therefore entitled under the existing regulation to
the presumption of a well-founded fear of future persecution. the Board
interpreted 8 CFR 208.13(b)(1)(i) to preclude the consideration of any
factors other than changed country conditions in determining whether
the presumption of a well-founded fear was rebutted. In Matter of Chen,
however,
[[Page 31947]]
which the existing regulatory provisions were intended to codify, the
Board stated that, in cases where an applicant establishes past
persecution, asylum may be denied as a matter of discretion if there is
little likelihood of future persecution. To avoid any uncertainty about
whether there is tension among the existing regulation, Matter of Chen,
and Matter of C-Y-Z, we are changing the regulation so that it clearly
allows consideration of any evidence, or lack thereof, bearing on
future persecution in such cases. Administrative determinations under
this rule, of course, remain subject to review by the Board of
Immigration Appeals under current regulatory and statutory provisions.
We have also used the phrase ``no reasonable possibility of future
persecution'' in lieu of the phrase ``little likelihood of present
persecution'' used by the BIA in Matter of Chen in defining the
standard of proof that the Government must meet to deny asylum in such
cases. The ``reasonable possibility'' language is consistent with the
Supreme Court's and the Department's regulatory interpretation of the
well-founded fear standard. See INS v. Cardoza-Fonseca, 480 U.S. at
440; 8 CFR Sec. 208.13(b)(2). We believe it is appropriate, therefore,
to restate the reasonable possibility standard as the one that the
Government must apply to determine whether a favorable exercise of
discretion may be unwarranted in cases where applicants have
established past persecution.
The rule also amends 8 CFR 208.13(b)(1)(ii) regarding discretionary
grants of asylum in circumstances where a victim of past persecution no
longer has a well-founded fear of persecution. The existing regulation
allows that an applicant who has suffered past persecution, but who has
no well-founded fear of future persecution, may be granted asylum in
the exercise of discretion only if the applicant demonstrates
compelling reasons for being unwilling to return to his or her country
``arising out of the severity of the past persecution'' for such a
grant. In Matter of H-, Interim Decision #3276 (BIA 1996), the Board
specifically addressed the exercise of discretion in cases where an
applicant has established past persecution but has no well-founded fear
of future persecution. The Board noted earlier decisions indicating
that general humanitarian factors, unrelated to the circumstances that
led to refugee status, such as age, health, or family ties, should also
be considered in the exercise of discretion. One possible
interpretation of this portion of the Board's decision is that it
authorizes the granting of asylum based on factors other than
``compelling reasons arising out of the severity of the past
persecution'' to an applicant who has established past persecution but
who has no well-founded fear of future persecution. In order to avoid
any possible tension between this reading and the current regulation,
which allows a grant of asylum only when there are compelling reasons
related to the severity of the past persecution, we are amending the
regulation.
The Department recognizes, however, that the existing regulation
may represent an overly restrictive approach to the exercise of
discretion in cases involving past persecution, but no well-founded
fear of future persecution. The Department believes it is appropriate
to broaden the standards for the exercise of discretion in such cases.
For example, there may be cases where it is appropriate to offer
protection to applicants who have suffered persecution in the past and
who are at risk of future harm that is not related to a protected
ground. Therefore, the rule includes, as a factor relevant to the
exercise of discretion, whether the applicant may face a reasonable
possibility of ``other serious harm'' upon return to the country of
origin or last habitual residence. See Matter of B-, Int. Dec. #3251
(BIA 1995) (citing both the current civil strife in Afghanistan and the
severity of the past persecution suffered by the applicant as grounds
for a discretionary grant of asylum, despite of conclusion that the
applicant no longer has a well-founded fear of persecution in that
country). As with any other element of an asylum claim, the burden is
on the applicant to establish that such grounds exist and warrant a
humanitarian grant of asylum based on past persecution alone.
By ``other serious harm,'' we mean harm that may not be inflicted
on account of race, religion, nationality, membership in a particular
social group, or political opinion, but such harm would have to be so
``serious'' as to equal the severity of persecution. We would not
expect, for example, that mere economic disadvantage or the inability
to practice one's chosen profession would qualify as ``other serious
harm.'' We believe that this emphasis on the applicant's risk of future
harm is consistent with the protection function of the 1951 Convention
Relating to the Status of Refugees, which governs the international
legal obligations implemented through the domestic asylum and
withholding laws.
The proposed rule would also amend 8 CFR 208.13(b)(2) to provide
that, to meet the well-founded fear standard, the applicant must
establish a reasonable possibility of harm throughout the applicant's
country of nationality or last habitual residence. The Board and the
Federal courts have long acknowledged the requirement of countrywide
persecution as an integral component of the refugee definition, which
cannot be met if the applicant reasonably could be expected to seek
protection by relocating to another part of the country in question.
See Matter of Acosta, 19 I&N Dec. 211,235 (BIA 1985), modified on other
grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); Etugh v.
INS, 921 F.2d 36, 39 (3d Cir. 1990); Quintanilla-Ticas v. INS, 783 F.2d
955,957 (9th Cir. 1986). In the context of a case involving only a fear
of future persecution, it is important to note that the requirement of
a reasonable possibility of harm throughout the country in question
relates to the applicant's eligibility as a refugee, and is not merely
a factor to be considered in the exercise of discretion.
This proposed rule emphasizes, however, that an applicant should
not be denied asylum based on the fact that he or she could avoid
future persecution be relocating within the country in question unless
it would be reasonable to expect him or her do so. This approach is
consistent with the position taken by the United Nations High
Commissioner for Refugees that ``[t]he fear of being persecuted need
not always extend to the whole territory of the refugee's country of
nationality * * *. [A] person will not be excluded from refugee status
merely because he [or she] could have sought refuge in another part of
the same country [] if[,] under all the circumstances, it would not
have been reasonable to expect him [or her] to do so.'' United Nations
High Commissioner for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status para. 91 (1992).
The proposed rule provides that internal relocation will not be
considered reasonable if there is a reasonable possibility that the
applicant would face other serious harm in the place of potential
relocation. We intend that this ``other serious harm'' standard for
determining when internal relocation is not reasonable refers to the
same type of ``other serious harm'' that may warrant a humanitarian
grant of asylum to an applicant who shows past persecution but who has
no well-founded fear of future persecution. In cases where the
applicant has established past persecution, the Service would bear the
burden of showing that
[[Page 31948]]
internal relocation is reasonable. In cases where the applicant has not
established past persecution, it would be the applicant's burden to
show that he or she is at risk of persecution in the country in
question and that internal relocation is not reasonable in order to
establish a well-founded fear of persecution. Regardless of who bears
the burden of proof on the issue of internal relocation, such burden
requires supporting such claims by documentary evidence, if available,
including evidence on economic and regional conditions that would
provide an objective context for the claim that relocation is, or is
not, possible.
As with other aspects of the refugee definition, we expect that the
Board and the federal courts, as they interpret this regulation in
individual cases, will provide guidance on the question of when
internal relocation is reasonable. We would expect, however, that the
difficulties associated with an internal relocation option would have
to be substantial to render relocation unreasonable. Underlying our
approach to this issue is a recognition that the principle of internal
relocation is intended to apply to cases where the applicant does not
need protection abroad.
This proposed rule would also amend 8 CFR 208.16, governing
entitlement to withholding of removal, to be consistent with amendments
relating to asylum eligibility. First, the rule would provide that an
applicant is eligible for withholding of removal only if the applicant
establishes that it is more likely than not that he or she would be
persecuted in the country of proposed removal and that internal
relocation is not reasonable. Thus, as in the asylum context, the rule
requires that the applicant must show that the threat of harm exists
countrywide to be eligible for withholding, and further makes clear
that a withholding applicant must seek protection through internal
relocation only if it is reasonable to expect him or her to do so.
Second, as is currently the case, the rule affords the applicant a
presumption of a future threat to life or freedom on account of race,
religion, nationality, membership in a particular social group, or
political opinion if the applicant establishes that he or she has
suffered persecution in the past on account of these same grounds. This
rule also provides an opportunity to rebut such a presumption if it can
be established that the applicant no longer would face a threat to life
or freedom. The rule makes an important change by indicating that
evidence other than changed conditions in the country of proposed
removal can be taken into consideration in determining whether the
applicant continues to face a threat to his or her life or freedom in
that country. This is significant because, unlike asylum
determinations, where the Attorney General has discretion to grant or
deny asylum to a person who qualifies as a refugee, the Attorney
General is required to grant withholding of removal to a person who
establishes that his or her life or freedom would be threatened on
account of race, religion, nationality, membership in a particular
social group, or political opinion. The current language in 8 CFR
208.16(b)(2) appears to mandate a grant of withholding of removal where
an applicant establishes that he or she has suffered persecution in the
past unless there have been ``changes in conditions'' in the proposed
country of removal. Significantly, this language appears to preclude
consideration of other relevant types of evidence, including whether
the applicant might safely relocate to a different part of the same
country, and has been so construed by the courts. See Singh v. Ilchert,
63 F.3d 1501, 1510-11 (9th Cir. 1995). We believe that this result in
Singh v. Ilchert, and in other decisions interpreting this regulatory
provision, imposes unwarranted restrictions on the Attorney General's
ability to consider relevant evidence. Under both domestic and
international law, the requirement of a countrywide risk of persecution
is an accepted element of refugee protection standards. Imposition of a
regulatory restriction that precludes consideration of internal
relocation options is inconsistent with a basic principle of
international refugee protection: if an applicant is able to avail
himself or herself of protection in any part of his or her country of
origin, such applicant should not ordinarily need, or be entitled to,
protection from another country. This rule changes the current
regulation so that it clearly authorizes consideration of internal
relocation options, as well as of any other evidence relevant to the
possibility that an applicant would be at risk of future persecution,
in determining whether an applicant has shown a likelihood of
persecution or whether a presumption of a likelihood of persecution is
rebutted.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving
it, certifies that this rule will not have a significant impact on a
substantial number of small entities for the following reason: this
rule clarifies certain legal standards involved in the adjudication of
applications for asylum and withholding of removal; this clarification
will not affect small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget for review.
Executive Order 12612
The regulation adopted herein will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this rule
does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
Executive Order 12988--Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
[[Page 31949]]
List of Subjects in 8 CFR Part 208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements
Accordingly, part 208 of chapter I of title 8 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
1. The authority citation for part 208 continues to read as
follows:
Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.
2. In Sec. 208.13, paragraph (b) is revised to read as follows:
Sec. 208.13 Establishing asylum eligibility.
* * * * *
(b) * * *
(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, 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 past persecution shall also be presumed to have a
well-founded fear of persecution in the future on account of one of the
five grounds mentioned above. This 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.
(i) Discretionary referral or denial. Except as provided in
(b)(1)(iii) of this section, the asylum application of an alien found
to be a refugee on the basis of past persecution shall be, in the
exercise of discretion, referred or denied by an asylum officer or
denied by an immigration judge if it is found by a preponderance of the
evidence that:
(A) the applicant does not face a reasonable possibility of future
persecution in the applicant's country of nationality or, if stateless,
the applicant's country of last habitual residence on account of race,
religion, nationality, membership in a particular social group, or
political opinion; or
(B) the applicant could reasonably avoid future persecution by
relocating to another part of the applicant's country of nationality
or, if stateless, the applicant's country of last habitual residence.
(ii) Burden of proof. In cases where an applicant has demonstrated
past persecution under paragraph (b)(1) of this section before an
immigration judge, the Service shall bear the burden of establishing
the requirements of paragraphs (b)(1)(i) (A) or (B) of this section.
(iii) Discretionary grant. An applicant who has suffered past
persecution and who does not face a reasonable possibility of future
persecution or who could reasonably avoid future persecution by
relocating within his or her country of nationality or, if stateless,
his or her country of last habitual residence, may be granted asylum in
the exercise of discretion if:
(A) the applicant has demonstrated compelling reasons for being
unwilling or unable to return to that 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, unless such a grant of asylum is barred under
paragraph (c) of this section.
(2) Well-founded fear of future 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, 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 reasonably avoid persecution by relocating to
another part of the applicant's country of nationality or, if
stateless, the applicant's country of last habitual residence.
(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, 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.
(3) Reasonableness of internal relocation. For purposes of
determinations under paragraphs (b)(1) (i) and (ii), and (b)(2) of this
section, it would not be reasonable to expect an applicant to relocate
within his or her country of nationality or, if stateless, his or her
country of last habitual residence, to avoid persecution if the asylum
officer or immigration judge finds that there is a reasonable
possibility that the applicant would face other serious harm in the
place of potential relocation. In cases where the persecutor is a
national government, it shall be presumed that internal relocation
would not be reasonable, unless the Service establishes that it would
be reasonable for the applicant to relocate. In cases where the
applicant has established past persecution before an immigration judge,
the Service shall bear the burden of establishing that it would be
reasonable for the applicant to relocate. In cases where 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.
* * * * *
3. In Sec. 208.16, paragraphs (b)(1), (b)(2), and (b)(3) are
revised to read as follows:
Sec. 208.16 Withholding of removal.
* * * * *
(b) * * *
(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 for the same
reasons if removed to that country. This presumption may be rebutted if
an asylum officer or immigration judge finds by a preponderance of the
evidence that:
(A) The applicant's life or freedom would not be threatened on
account of any of the five above-mentioned grounds upon the applicant's
removal to that country; or
(B) The applicant could reasonably avoid a future threat to his or
her life or
[[Page 31950]]
freedom by relocating to another part of the proposed country of
removal.
(ii) In cases where the applicant has established past persecution
before an immigration judge, the Service shall bear the burden of
establishing the requirements of paragraphs (b)(1)(i)(A) or (B) of this
section.
(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 reasonably avoid a future threat to his
or her life or freedom by relocating to another part of the proposed
country of removal. 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
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 (b)(2) of this section, it
would not be reasonable to expect an applicant to relocate within a
country to avoid persecution if the asylum officer or immigration judge
finds that there is a reasonable possibility that the applicant would
face other serious harm in the place of potential relocation. In cases
where the persecutor is a national government, it shall be presumed
that internal relocation would not be reasonable, unless the Service
establishes that it would be reasonable for the applicant to relocate.
In cases where the applicant has established past persecution before an
immigration judge, the Service shall bear the burden of establishing
that it would be reasonable for the applicant to relocate. In cases
where 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.
* * * * *
Dated: June 5, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-15590 Filed 6-10-98; 8:45 am]
BILLING CODE 4410-10-M
