MATTER OF MOGHARRABI
A-23267920 A-26850376
Board of Immigration Appeals
June 12, 1987
Interim Decision #3028
Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
Decided by Board June 12, 1987. In Deportation Proceedings.
(2) The well-founded fear of persecution standard used in
(3) An applicant for asylum under
(4) A reasonable person may well fear persecution even where its likelihood is significantly less than clearly probable.
(5) An alien‘s own testimony in an asylum case may be sufficient, without corroborative evidence, to prove a well-founded fear of persecution where that testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear.
(6) Matter of Acosta‘s requirement that an applicant for asylum show, inter alia, that the potential persecutor “could easily become aware” that the applicant possesses a belief or characteristic the persecutor seeks to overcome by some punishment is changed by omitting the word “easily.”
CHARGE:
Order: Act of 1952—Sec. 241(a)(2) [
ON BEHALF OF RESPONDENTS:
Mark Raymond Quinn, Esquire
Bragar & Quinn
1200 18th Street, N.W., Suite 210
Washington, D.C. 20036
ON BEHALF OF SERVICE:
Arthur H. Gottlieb
General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
The respondents, husband and wife, are both natives and citizens of Iran. Both respondents were admitted to the United States as nonimmigrant students on or about September 8, 1978. The female respondent‘s status was subsequently changed to that of a spouse of a nonimmigrant student. The respondents were authorized to remain in this country until February 27, 1982, but they remained beyond that time. Orders to Show Cause and Notice of Hearing (Forms I-221) were issued against them on August 28, 1984, charging them with deportability as overstays under
An alien who is seeking withholding of deportation from any country must show that his “life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.”
In order to establish eligibility for a grant of asylum, an alien must demonstrate that he is a “refugee” within the meaning of
In INS v. Cardoza-Fonseca, supra, the Court reiterated the rule in INS v. Stevic, supra, that in ordеr to establish a clear probability of persecution under
It is clear that to a large degree the meaning of “well-founded fear” can in fact only be determined in the contexts of individual
Although, as noted above, the Supreme Court in INS v. Cardoza-Fonseca, supra, did not attempt to define “well-founded fear,” the Court in dictum in INS v. Stevic, supra, offered this guide for the meaning of well-founded fear: “[S]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.” INS v. Stevic, supra, at 424-25 (emphasis added). In INS v. Cardoza-Fonseca, supra, the Court noted the “obvious focus on the individual‘s subjective beliefs” in assessing whether a fear is well founded. Id. at 431. Perhaps more helpful, however, was the direction provided by the Court in Cardoza-Fonseca when it compared the well-founded fear standard with the clear probability standard of
As suggested by Justice Blackmun in his concurring opinion in INS v. Cardoza-Fonseca, supra, some guidance regarding the meaning of well-founded fear can be found in decisions of the United States courts of appeals. Prior to the Supreme Court‘s decision in
[t]he applicant must present specific facts establishing that he or she has actually been the victim of persecution or has some other good reason to fear that he or she will be singled out for persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.
Id. at 574. The court also elaborated on the type of evidence necessary to make this showing:
Ordinarily, this must be done through objective evidence supporting the applicant‘s contentions. Sometimes, however, the applicant‘s own testimony will be all that is available regarding past persecution or the reasonable possibility of persecution. In these situations, the applicant‘s uncorroborated testimony will be insufficient to meet the evidentiary burden unless it is credible, persuasive, and points to specific facts that give rise to an inference that the applicant has been or has a good reason to fear that he or she will be singled out for persecution on one of the specified grounds, or, alternatively or in addition thereto, must show through testimony and corroborative objective evidence that he or she has good reason to fear persecution on one of the specified grounds.
Id. at 574. Thus, the Seventh Circuit emphasized the need for the applicant to be specific in his claims, to show that there is a “reasonable possibility” of persecution, and to show that he has “good reason” for his fear of persecution.
The United States Court of Appeals for the Ninth Circuit, after first deciding in Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir. 1984), that the well-founded fear standard is a lesser one than the clear probability standard, turned to the meaning of well-founded fear in Cardoza-Fonseca v. United States INS, 767 F.2d 1448 (9th Cir. 1985). The court accepted the rationale of the Seventh Circuit that an applicant for asylum is required to “present ‘specific facts’ through objective evidence to prove either past persecution or ‘good reason’ to fear future persecution.” Id. at 1453, citing Carvajal-Munoz v. INS, supra, at 574. Like the Seventh Circuit, the Ninth Circuit also addressed the issue of corroborative evidence. Recogniz
must point to specific, objective facts that support an inference of past persecution or risk of future persecution. That the objective facts are established through the credible and persuasive testimony of the applicant does not make those facts less objective. “Mere assertions of possible fear” are still insufficient. Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir. 1983). It is only after objective evidence sufficient to suggest a risk of persecution has been introduced that the alien‘s subjective fears and desire to avoid the risk-laden situation in his or her native land become relevant.
Cardoza-Fonseca v. United States INS, supra, at 1453.
In Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir. 1986), the Ninth Circuit attempted to refine its requiremеnt that there be both subjective and objective showings, saying: “The subjective component requires a showing that the alien‘s fear is genuine. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution.” Id. at 1492 (emphasis added). The court concluded: “What is critical is that the alien prove his fear is subjectively genuine and objectively reasonablе.” Id. The inquiry into the reasonableness of an applicant‘s fear was also alluded to by the Ninth Circuit in Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir. 1985), where the court stated that the well-founded fear standard “implicates a requirement of objective reasonableness. In other words, there must be some basis in reality or reasonable possibility that a petitioner would be persecuted.” Id. at 1374.
The Sixth Circuit has similarly embraced the notion that the “more generous” well-founded fear standard of proof comprises both a subjective and an objective element. In Yousif v. INS, 794 F.2d 236 (6th Cir. 1986), the court held that while an applicant for asylum “may prevail upon establishing a subjective fear of persecution, the [applicant‘s] assertions of fear must nonetheless be supported by objective evidence.” Id. at 243-44; see also Youkhanna v. INS, 749 F.2d 360 (6th Cir. 1984).
Like the Seventh, Ninth, and Sixth Circuits, the Fifth Circuit foretold the Supreme Court‘s decision in INS v. Cardoza-Fonseca, supra, and held that the well-founded fear standard requires a lesser degree of proof than the clear probability standard. Guevara Flores v. INS, 786 F.2d 1242 (5th Cir. 1986).3 The Fifth Circuit also
We agree with and adopt the general approach set forth by the Fifth Circuit; that is, that an applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution. As noted by the Second Circuit, this “reasonable person standard appropriately captures the various formulations that have been advanced to explain the well-founded fear test.” Carcamo-Flores v. INS, supra, at 68. It is a standard thаt provides a “common sense” framework for analyzing whether claims of persecution are well founded. Moreover, a reasonable person may well fear persecution even where its likelihood is significantly less than clearly probable.
In determining whether the alien has met his burden of proof, we recognize, as have the courts, the difficulties faced by many aliens in obtaining documentary or other corroborative evidence to support their claims of persecution. Although every effort should be made to obtain such evidence, the lack of such evidence will not necessarily be fatal to the application. The alien‘s own testimony may in some cases be the only evidence available, and it can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear.4 On the other hand, as pointed out in the Office of the
Where the country at issuе in an asylum case has a history of persecuting people in circumstances similar to the asylum applicant‘s, careful consideration should be given to that fact in assessing the applicant‘s claims. A well-founded fear, in other words, can be based on what has happened to others who are similarly situated. The situation of each person, however, must be assessed on its own merits. See Handbook, supra, at para. 43.
We note that although our decision in Matter of Acosta has been effectively overruled by INS v. Cardoza-Fonseca, supra, insofar as Acosta held that the well-founded fear standard and the clear probability standard may be equated, much of our decision remains intact and good law. Indeed, we still find in Acosta some guidance regarding the meaning of a well-founded fear. In Acosta, we set forth four elements which an applicant for asylum must show in order to establish a well-founded fear of persecution. What we required was that the evidence establish that
(1) the alien 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 easily become aware, that the alien possesses this belief or characteristic; (3) the persecutor has the capability of punishing the alien; and (4) the persecutor has the inclination to punish the alien.
Matter of Acosta, supra, at 226.
In our view, these requirements, for the most part, survive the Supreme Court‘s decision in Cardoza-Fonseca and are still useful guidelines in assessing an asylum application. However, we have determined that one small but significant change in these requirements should be made in view of the Court‘s ruling. The second requirement should be changed by omitting the word “easily.” Thus, it is enough for the applicant to show that the persecutor could become aware that the applicant possesses the belief or characteristic in question. The omission of the word “easily” lightens the applicant‘s burden of proof and moves the requirements as a whole into line with Cardoza-Fonseca. Of course, all these requirements
It must also be remembered that an alien who succeeds in establishing a well-founded fear of persecution will not necessarily be granted asylum. He must also show that the feared persecution would be on account of his race, religion, nationality, membership in a particular social group, or political opinion. Thus, for example, aliens fearing retribution over purely personal matters, or aliens fleeing general conditions of violence and upheaval in their countries, would not qualify for asylum. Such persons may have well-founded fears, but such fears would not bе on account of their race, religion, nationality, membership in a particular social group, or political opinion. See, e.g., Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986); Contreras-Aragon v. INS, 789 F.2d 777 (9th Cir. 1986); Diaz-Escobar v. INS, supra; Lopez v. INS, 775 F.2d 1015 (9th Cir. 1985); Zepeda-Melendez v. INS, 741 F.2d 285 (9th Cir. 1984); Martinez-Romero v. INS, 692 F.2d 595 (9th Cir. 1982); Matter of Pierre, 15 I&N Dec. 461 (BIA 1975). Finally, an applicant for asylum must also show that he merits the relief as a matter of discretion.
While under Matter of Acosta, supra, we were able to consider an application for asylum and withholding of deportation as, for most purposes, one, this approach requires some modification after INS v. Cardoza-Fonseca, supra. Given that the core of evidence and testimony presented in support of thе asylum and withholding applications will in almost every case be virtually the same, such evidence and testimony may still be presented in a single hearing. However, in actually adjudicating the applications, a clear delineation of the findings should be made as to each application. We anticipate that as a general rule the asylum application, with its lower burden of proof, will be adjudicated first. If the applicant is found eligible for asylum, and worthy of the relief as a matter of discretiоn, there may be no need to determine as well whether a clear probability of persecution exists.
We now turn to the application of these new standards to the case presently before us. The respondent fears persecution in Iran primarily because of an altercation he had with an official or agent of the regime of the Ayatollah Khomeini. The respondent testified and attested to the following facts regarding that incident. In February of 1981, while in the United States, the respondent wеnt with an Iranian friend to the Iranian Interests Section at the Algerian Embassy. His purpose was to document his continuing student status in order to enable him to continue receiving funds from relatives in Iran. To this end, he took with him photocopies of his pass
After careful consideration of the entire record, we have concluded that a reasonable person in the respondent‘s circumstances would fear persecution if returned to Iran. We find the respondent‘s account of why he fears persecution based on his political opinions to be plausible, detailed, and coherent. The respondent‘s account of the incident at the Embassy appears to us to be credible, and there is nothing in the record to otherwise suggest that the respondent lacks credibility. The respondent clearly expressed his political views at the Iranian Interests Section and his opinions were extremely derogatory to the regime in power. The Service does not dispute that opponents of the Ayatollah Khomeini are often persecuted for their opposition. In this case, a reasonable person in the respondent‘s position would fear that his opposition to that regime has become known to those who are both in a position, and who have the inclination, to рunish him for it. Under these circumstances, we find that the respondent has met his burden of showing
There are no adverse factors of record in this case. We find no basis for considering a discretionary denial of relief. The application for asylum will accordingly be granted. We therefore find it unnecessary to decide whether the respondent has also established a clear probability of persecution for
ORDER: The appeal is sustained.
FURTHER ORDER: The application for asylum is granted.
Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members