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Refugee Law And Policy Outline

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1 The U.N. Convention & Protocol and the U.S. Response: UN Convention 1951: US did Matter of Dunar: 14 I&N Dec. 310 not sign convention however signed 1967 Protocol. UN Manual paragraph 196.: burden of proof (BIA 1973) - Expression 'well founded fear lies on the person submitting a claim. In most cases a person fleeing from persecution will have of being a victim of persecution for reasons arrived with the barest necessities and very frequently even without personal documents. Duty to of race, religion, nationality or political ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. opinion' means that a person has either been 1951 Convention Protection for Forced Migrants: Defines 'Refugee' as: ones outside their actually a victim of persecution or can show country and cannot return to it 'owing to a well founded fear of being persecuted for (nexus good reason why he fears persecution. Held requirement) reasons of race, religion, nationality, membership in particular social group or no persecution.- Conclude that Article 33 has political opinion'. effected no substantial changes in the Guarantees: 1.) No refugees may be returned to a land where her life or freedom would be application of section 243(h), either by way of burden of proof, coverage, or manner of threatened 2.) specific minimum standards of treatment in exercising specific rights. arriving at decisions. convention and law Nonrefoulement: Article 33(1): prohibits states from turning away refugees in they would were already compatible and did not need to be returned to countries in which they are likely to face persecution. Limited exception in Art. change anything however Congress later 33(2) based on crimes and security risks. legislated Refugee Act 1980.
- Prohibits return but does not require admission, the granting of any specific rights or INS v. Cardoza-Fonseca 480 U.S. permanent residency 421 (1987): on basis plain meaning and Protection under US Law/ Nonrefoulment in the United States: legislative history, held that, to show 'wellWithholding of Removal. Refugee Act of 1980: AG may not remove an alien to a country if founded fear of persecution,' alien seeking the alien's life or freedom would be threatened because of the alien's race, religion, nationality, asylum need not prove that it is 'more likely membership in a particular social group, or political opinion. Refugee Act 1980 made s243(h)(now than not' that he or she will be persecuted in s241(b)) mandatory - previously discretionary. Originally not considered that accession to 1967 his or her own country. Standard of proof for Protocol would require legislative change. asylum less than for withholding. Court cited
- End of Vietnam generated tones of refugees and had to got to Congress every time to admit more Stevic case in support, in which held SS208 refugees. Cuba boat lift in 1980: Not well designed to deal with the boat lift. Asylum: 1980 standard did not apply to s243(h) cases.Refugee Act added Asylum status to INA under new SS208 (addressed procedural deficiencies) 10% rule (Justice Stevens): simply no room however still no right to asylum. Prior to SS208, no statutory basis to grant asylum from within the in UN convention that if individual has 10%
US. Convention equivalent provision - Article 34; SS207 covers overseas refugee admissions. chance of being killed that they have no U.S. Refugee definition INA SS 101(a)(42), 8 U.S.C SS 1101(a)(42) elements: outside ability to have well-founded fear. country of nationally, unwilling or unable to return because of persecution or well founded fear of Matter of B-R, 26 I&N Dec. 119 persecution on account of race, religion, particular social group or political opinion. Clear in US not (BIA 2013) - BIA uses UN definition to limit just future persecution, as the UN Convention suggests. Persecution is not defined in UN the scope of U.S. refugee definition. DLR Convention or in Refugee Act 1980. Language UN Handbook: guidance regarding specific problem areas - mentally disturbed and unaccompanied minors. Adjudicating Asylum Claims Agency Deference: Kang v. Att'y Gen. of U.S: 611 F.3d 157 (3d Cir. 2010) - Can only reverse in the United States: Statutory basis: the board on facts when evidence compels a different result. When court is looking at BIA fact finding. Asylum INA SS208(a), Withholding Reasonable fact-finder standard.- BIA review of IJ, fact-finding must be accepted unless clearly
SS241(3)(b). U.N. basis - Asylum: erroneous, legal review is de novo. Predictions of future harms are legal rulings and not fact findings.

2 Section of UN Convention Art. 34, Withholding: UN Convention Art. 33. Burden of proof: Asylum: Well founded fear(~10%), Withholding: More likely then not (50%+) Affirmative/defensive application: Asylum: both Affirm/Def, Withholding: defensively only. Note also small number from credible fear process. Mandatory/discretionary: Asylum: discretion , Withholding: Mandatory. "Aggravated Felony" bar: Asylum: yes, Withholding: No, but many cases will bar. If get asylum, can't be removed to a third country. If get withholding, may be removed to third country. Expedited Removal Proceedings: INA SS235(b)(1) noncitizens arriving to port of entry can be removed on the order of an immigration officer, not an immigration judge, if found inadmissible under INA
SS212(a)(6)(C) or (7). Work Authorization: INA SS208(d)(2) - constraints on issuing of work authorization. Basic Structure of Review: Found in INA SS242. Section 242 limits review of certain cases, such as ones found deportable under most of the crime-related deportation grounds, except for a single crime of moral turpitude. Standard of Review: Very deferential standard to finding of facts, unless any 'reasonable adjudicator would be compelled to conclude to the contrary'. Discretionary decisions will be 'conclusive unless manifestly contrary to the law and an abuse of

Chevron set forth the two-step process for reviewing an agency's construction of a statue that it administers: 1.) has Congress directly spoke to the precise question at issue. If not clear what congress meant than the question for the court is whether the agency's answer is based on a permissible construction of the statue. Court cannot substitute its construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Chevron deference may be defended: 1.) agency works with the statue on a daily basis and is likely to have a better understanding of the operational implications of a narrow or broad construction of a particular provision. 2.) agency may have assisted in drafting the statute and therefore have better understanding of intent behind the statutory language. 3.) may create greater uniformity in application of the statute.
- Agency reasonable interpretation of ambiguous provision of statute must be given deference. Conversely, only requiring BIA to come up with a plausible interpretation of the law is subject to criticism.
- BIA only designates a few dozen precedent decisions/year - see BIA website for these. BIA has nationwide jurisdiction. National Cable v. Brand X Internet Services: stated that agency is not bound by previous judicial interpretation of an ambiguous statute. If court ruling came first it would inform the agency interpretation, if the agency interpretation came first it would require Chevron deference in future cases. - agency not bound to follow prior judicial interpretation. Can interpret it anyway it wants, subject to reasonableness. Negusie v. Holder: 555 U.S. 511 (2009) - Court says that 'the deliberate omission of the work 'voluntary' from SS2(a) compels the conclusion that the statute make all those assisted in persecution of civilians ineligible for visas.
- concluded that the BIA has not yet exercised its Chevron discretion to interpret the statue in question, ' the proper course, expect in rare circumstances, it to remand to the agency for additional investigation or explanation.'. Still no guidance from BIA here. 4 ways of avoiding deference: 1.) plain meaning, 2.) unreasonable arbitrary interpretation, 3.) not field of expertise, ie BIA not empowered so to merit deference, 4.) if ambiguous, send back with directions to create a precedent
- Matter of M-H- 26 I&N Dec. 46 (BIA 2012): we conclude that the court did not expressly find the language of section 241(b)(3)(B) of the Act to be unambiguous and thereby leave no room for agency discretion." "We conclude that the respondent need not have been convicted of an aggravated felony to be subject to the particularly serious crime bars for asylum and withholding of removal. - Particularly serious crime had to be aggravated felony, BIA used deference and overruled. Aggressive use of Brand X deference. Court was not explicit that it found no ambiguity. Judulang v Holder 132 S.Ct. 476 (2011) - Justice Kagan criticized the BIA as

3 "arbitrary and capricious" Vitug v. Holder, --- F.3d ----, 2013 WL 3814772 (9th Cir. 2013): Recent example of the Ninth Circuit reversing the BIA on standard of proof issues in a withholding of removal case involving a gay respondent from the Philipppines. The court found that (1) the BIA failed to apply the "clearly erroneous" standard to IJ's factfindings; and (2) "no reasonable factfinder" could have concluded that the respondent did not suffer past persecution on these facts. (In other words, the BIA "abused its discretion.") Rosiles-Camarena v. Holder, ___ F.2d ___, 2013 WL 4457283 (7th Cir. 2013): 7th says BIA should have applied "clear error" standard to IJ's prediction of future harm. Margulis v. Holder, ___ F.3d ___, 2013 WL 3970051 (7th Cir. 2013): 7th says Brand X does not permit BIA's unreasoned departure from prior precedent. The Asylum Process: Credibility &
Matter of Dass: 20 I&N Dec. 120 (BIA 1989) that an alien's own testimony may Corroboration: Evidentiary Requirements: in some cases be the only evidence available, and it can suffice where the testimony is Applicant has the burden. - 3 Factual findings. 1.) believable, consistent, and sufficiently detailed to provide a plausible and coherent account broad determinations about conditions in the country of the basis of the alien's alleged fear. of origin, including the practices of the government or
- Should have provided additional information, context and background other alleged persecutors in the country. 2.) decide information. Looked to UN Handbook, saying that adjudicators needed context to about the events specific to the claimant. 3.) must adjudicate claims. If expect something could be provided, when it is not, start making determine the degree and type of danger the applicant negative inferences. Failure to provide legislative facts makes life difficult. is likely to face upon return. Zarouite v. Gonzales: 424 F.3d 60 (1st Cir. 2005) - Forced to move to certain Speculation - trial judge reasonable inference region within Morocco. - If Morocco once had a policy and then abandoned that policy that appellate judge disagrees with. that would undermine the asylum claim. Interpretation of country report from State Reasonable inference - trial judge speculation Department. BIA selectively read the report; Court held not sufficient level of inquiry. that appellate judge agrees with. Matter of S-M-J-: 21 I&N Dec. 722 (BIA 1997) (corroboration) Burden is on Legislative facts: findings concerning the way applicant to provide country conditions information. INS should play active role in the government and other social organizations operate introducing evidence regarding current country conditions. but where the IJ relies on in the asylum seeker's homeland. Documentary country conditions as key part of decision the IJ must site to where his/her knowledge of evidence submitted in court, or expert testimony the situation comes from. In reality, the burden is therefore a shared one. - If unavailable regarding particular issues. Generally known, not the applicant must explain the reason for its unavailability. Rosenberg J concurrence - if individual specific. Adjudicative Facts: Deciding INS fails to provide country conditions evidence, the applicant should win. Reflected to what actually happened to this individual, his family, small extent in REAL ID presumption of credibility on appeal if no adverse credibility friends, and associates. - Two central issues: determination made at first instance. credibility and corroboration Abovian v. INS: 219 F.3d 972 (9th Cir. 2000), as amended, 228 F.3d 1127, 234 F.3d 492 (9th Cir. 2000), rehearing and rehearing en banc denied, 257 F.3d 971 (9th Administrative notice: widely accepted and Cir.2001) - To deny asylum on credibility grounds, the BIA must have a 'legitimate known facts. Limited ability for IJ, when inferring from administratively noticed facts, should hear from articulable basis to question the petitioner's credibility, and must offer a specific, cogent the parties. reason for any stated disbelief'. - Special deference should be given to IJ finding of credibility because in best position to make such a finding. Un-refuted testimony does not discretion. INA 242(f)(2). Note DHS has no right to appeal BIA decisions - all can do is ask AG to take case.
- INA SS 208, 8 U.S.C. SS 1158 (asylum process) (CW) - Saved in folder - INA SS 241(b)(3), 8 U.S.C. SS
1231(b)(3) (withholding of removal) 8 C.F.R. SSSS 208.9, 208.14 (asylum process) US Asylum organizations: DHS, EOIR.

4 Credibility: BIA says credibility is whether the "testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear"
- Consistency important consideration in credibility. Plausibility and detail. The Handbook: role of the asylum applicant. (i) Tell the truth and assist the examiner to the full in establishing the facts of his case.(ii) Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure necessary evidence. (iii) Supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts. Shared burden to produce basic background information. DHS must provide basic country information. - Judge must make sure the country report is in the record. Failure to do so does not win case for applicant - BIA will remand to IJ. REAL ID Act of 2005: one of the five statutory grounds must be 'one (not the) central reason' for the feared persecution. - Codified SMJ and attempted to remedy circuit split. The REAL ID Act and Current Corroboration Rules: - reiterated the basic proposition that corroborating evidence is not necessary in every case, but it heightened the importance of corroboration and essentially commanded judicial deference to the administrative determination that corroboration can reasonably be expected. - Failure to provide corroborating evidence could be basis for denying claim even if the testimony is credible. If don't have it, explain why/demonstrate attempt to get it.- Presumed to be credible if the IJ does not make a credibility finding (new). Totality of the case (no cherry-picking). Still loss if you fail to provide corroborating evidence that was requested. Conversely, little

require corroborative testimony. Mitondo v. Mukasey: 523 F.3d 784 (7th Cir. 2008) When documentary proof one way or the other is unavailable, the agency must use the details of an alien's story to make an evaluation of its truth. SS208(b)(1)(B)(iii) permits it to do so.
- details are most important, should be concerned with details rather then heart of the case. Demeanor evidence is not valid because impossible to accurately determine credibility based on demeanor - somewhat undermines IJ as best placed to make factual determination of applicant's credibility. Shrestha v. Holder: 590 F.3d 1034 (9th Cir. 2010) US REAL ID Act requires that credibility determinations be made on the basis of the 'totality of the circumstances, and all relevant factors'. - Under ID Act, IJ must provide 'specific and cogent reasons in support of an adverse credibility determination'. REAL ID not a blank check for IJ/BIA. Ren v. Holder: 648 F.3d 1079 (9th Cir. 2011) An applicant must be given notice of the corroboration required, and an opportunity to either provide that corroboration or explain whey he cannot do so. 1.) IJ must determine whether an applicant's credible testimony alone meets the applicant's burden of proof. 2.) If so, no corroboration evidence is necessary,

3.) If not, then the IJ may require corroborative evidence. IF needed, IJ must give the applicant notice that it is required and an opportunity either to produce evidence or explain why it is not reasonably available. Most circuits have not followed 9th Circuit on this point. Matter of J-Y-C: 24 I & N Dec. 260 (BIA 2007) China Christian faith case. Contradicting testimony between brother and sister. Different account of passport color from smugglers. REAL ID act governs - totality test used.

Matter of M-D: 21 I&N Dec. 1180 (BIA 1998) - No supporting evidence from sister even though had regular contact with her at refugee camp. when given opportunity to present corroborating evidence he did not provide it. Dissenting Schmidt - testimony and consistent country conditions enough : Court of Appeals: Used right SMJ standards but majority did not get affirmed because did not explain why it was reasonable for an illiterate farmer who has been stuck in a refugee camp to collect corroboration information. Said should have considered circumstances of individual and record as a whole. Diallo v. INS, 232 F.3d 279 (2d Cir. 2000): Judicial Review of M-D-. Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998): Board accords deference to an Immigration Judge's findings concerning credibility and credibility-related issues. (1) the discrepancies and omissions described by the Immigration Judge are actually present; (2) these discrepancies and omissions provide specific and cogent reasons to conclude that the alien provided incredible testimony; and (3) a convincing explanation for the discrepancies and omissions has not been supplied by the alien. - Since an Immigration Judge is in the unique position to observe the testimony of an alien, a credibility finding which is supported by a reasonable adverse inference drawn from an alien's demeanor generally should be accorded a high degree of deference, - BIA giving deference to IJ Dissenting: Rosenberg: thinks they must look at totality of the record. Got to take a holistic view of cases,

5 credibility with lots of corroboration can be sufficient. No more 'heart of the claim', you can look at any inconsistencies. - REAL ID does not say when corroboration may be required - this is a point of confusion; down to IJ discretion.Note: Schmidt not like the separation of credibility and corroboration, as in the Abovian case.

later adopted by REAL ID. Note: Deference here (BIA to IJ on facts) is not the same Chevron deference (CoA to BIA on legal interpretation). Oshodi v Holder: ___ F.3d ___, 2013 WL 4511636 (9th Cir. 2013)
- Optional case referred to - split 9th Circuit re/ credibility and due process, demonstrating REAL ID has not settled the matter. Embattled en banc 9th expounds on credibility, REAL ID, necessity for oral testimony, due process, IJ interference, case managemen Qing Hua Lin v. Holder, --- F.3d ----, 2013 WL 6136413 (4th Cir. 2013): Recent Fourth Circuit case deals with credibility, airport statements, and independent evidence under the "Camara" case

6 Persecution Definition & Standard of Proof: Standard of Review: - Court of Appeals v BIA: no reasonable fact-finder, compels a different result. BIA only overrule IJ if clear error. Legal finding review - de novo, lot of deference, no cheveron to IJ, lot of Chevron deference to BIA by court of appeals. If BIA reaches reasonable interpretation of an ambiguous statutory provision, Court should not interrupt this even if would have come to a different decision itself on the merits. Can argue Shrestha shows not uniformly adhered to. Persecution: Neither 1951 Convention or INA provide a definition of persecuted. 9th Circuit has said: "the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive" - Very extreme concept not meant to include everything. More than mere discrimination or harassment. Economic Harm as Persecution: 1978 House Report: Persecution requires a showing of more than mere economic discrimination. Ahmed v. Ashcroft, 341 F.3d 214 (3d Cir.2003) . The economic difficulties must be above and beyond those generally shared by others in the country of origin and involve noticeably more than mere loss of social advantages or physical comforts. Cheng Kai Fu v. INS, 386 F.2d 750, 753 (2d Cir.1967)
. Rather, the harm must be "of a deliberate and severe nature and such that is condemned by civilized governments
- Need not demonstrate a total deprivation of livelihood or a total withdrawal of all economic opportunity in order to demonstrate harm amounting to persecution. In general terms, non-physical harm must be severe in nature.

Persecution by Nongovernmental Actors: Harm or threats form non-state actors can give rise to a valid basis for asylum. - Can amount to persecution where shown that the government of the proposed country of deportation is unwilling or unable to control that group. When willing becomes unable is a factual question - BIA tend

Economic Harm as Persecution: Mirisawo v. Holder: 599 F.3d 391 (4th Cir. 2010) Zimbabwe, came on G-5 visa to work as housekeeper. IJ found destruction of home did not amount to past persecution because Respondent had never lived in the house or relied on it for her livelihood. economic persecution rise to level of persecution? She was not living there however unclear if was asked if she intended to do so. Matter of T-Z-: 24 I&N Dec. 163, 170-75 (BIA 2007) Nonphysical forms of harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life, may amount to persecution. Must be more than inconvenient. Uniform National Policy: Matter of Chang: 20 I&N Dec. 38 (BIA 1989) - Do not find that the 'one couple, on child' policy is on its face persecutive. No evidence that the goal of the China's policy is other than as stated.
- Cannot grant asylum claim for simply being subject to the policy, without some showing of it being particularly enforced due to another affiliation. - No evidence that policy is being applied in coercive manner, it seems to be being applied equally across the board. Overruled by legislation that allows for forced abortion or sterilization or coercive population control is basis for asylum. Congress added that to refugee definition so that this qualifies under political opinion nexus. Intent to Harm: Pitcherskaia v. INS: 118 F.3d 641 (9th Cir. 1997) - Neither the Supreme Court nor this court has construed the Act as imposing a requirement that the alien prove that her persecutor was motivated by a desire to punish or inflict harm.- Persecutors intent. Board majority said they were trying to cure her. Schmidt dissent said it was an objective standard therefore evil motive is not necessary. Malicious intent does not matter. 9th Circuit referred to Kasinga as providing an appropriate analogy. Now accepted in all circuits and by BIA.Prosecution versus Persecution: Dwomoh v. Sava: 696 F. Supp. 970 (S.D.N.Y. 1988) participated in coup. Political acts exception. If you live in a state where you can peacefully challenge government then punishment for coup acts are prosecution. Otherwise, may be persecution. See also Matter of Izatula. Somewhat read out of the law due to the material support bar for terrorist organizations.

Matter of O-Z- & I-Z-: 22 I&N Dec. 23 (BIA 1998) cumulative harm; nongovernmental actors. Involved nongovernmental actors. Failure of state protection. "Unwilling or unable to control". - important if you did go to the police. Stanojkova v. Holder: 645 F.3d 943 (7th Cir. 2011) persecution/harassment/discrimination defined by J Posner however note the BIA has still not provided a definition. J. Posner defines persecution: physical harm without direct application of force, such as starve someone in locked cell or refusal to practice religion. Posner defines discrimination: something that normally does not involve the application of physical force, such as Jim-crow laws, unequal treatment without physical force. Harassment: targeting members of a group for adverse treatment, something short of physical force. Very egregious harassment may rise to the level of persecution. Level of Risk: INS v. Stevic: 467 U.S. 407 (1984) Establishes that withholding of deportation requires an application be supported by evidence establishing that it is more likely than not that the alien would be subject to

7 to say other countries are doing their best. If no report made to police, need to explain why, e.g. infiltration. INA SS 212(a) (3)(B), 8 U.S.C. SS 1182(a)(3) (B) (terrorist bar) Individual Threat: many courts employ the 'singled out' formulation, or similar ones like 'a specific threat to the petitioner'. Vp Schmidt- Requirement to be "singled out" inconsistent with motive of Convention, which is to apply to groups.

persecution on one of the specified grounds. INS v. Cardoza-Fonseca: 480 U.S. 421 (1987) well founded fear means something different. Most famous rule to come out of Cardoza-Fonseca: 10% rule, if could happen to 1 out of 10 people it does meet the standard. Matter of Mogharrabi: 19 I&N Dec. 439 (BIA 1987) - a reasonable person may well fear persecution even where its likelihood is significantly less than clearly probable. lowering the standard, a objectively reasonable basis. Significantly less then clearly probable. Generous standard. Vitug v. Holder, --- F.3d ----, 2013 WL 3814772 (9th Cir. 2013): In this recent case, also posted in the Optional Readings for Class 3, the 9th Circuit finds that the BIA erroneously concluded that multiple beatings and other harm did not "rise to the level" of past persecution. Boika v. Holder, ___ F.3d ___, 2013 WL 4399231 (7th Cir. 2013): 7th says applicant need not show "personally targeted," cites "pattern or practice" regulation Romeike v. Holder, 718 F.3d 528 (6th Cir. 2013): Homeschoolers flunk the test for asylum administered by the BIA and the 6th Circuit Bondarenko v. Holder, --- F.3d ----, 2013 WL 5763201 (9th Cir. 2013): 9th Circuit reverses BIA on Due Process (failure to continue case to give Respondent a chance to examine and challenge forensic report) and "rise to the level." Asylum Application Silva v. U.S. Att'y Gen: 448 F.3d 1229 (11th Cir. 2006) judicial review of Luz Marina Silva: - Failed to
& Asylum Hearing: Past establish that the shooting incident was connected to ongoing persecution on basis of her political opinion. persecution as Evidence of - To establish asylum based on past persecution, the applicant must prove (1) that she was persecuted, and (2) that Future Persecution: the persecution was on account of a protected ground. well-founded fear of future persecution. (1) a "subjectively Burden shifts to government genuine and objectively reasonable" fear of persecution, Al Najjar, 257 F.3d at 1289, that is (2) on account of a and the government must protected ground. Ayala v. U.S. Att'y Gen.,: 605 F.3d 941 (11th Cir. 2010) Board nor the immigration judge even show changed mentioned the police officers' slurs about Ayala's homosexuality; relied on evidence not in the record. outrageous circumstances or relocation finding that extreme violence and humiliation does not rise to past persecution. Seems BIA deference to IJ goes too possibilities. By far. Board should pay more attention to cases. preponderance of the Matter of L-S-: 25 I&N Dec. 705 (BIA 2012) - Respondent bears the burden of proof to show either form of evidence. If persecution is humanitarian aid is warranted. 1.) that he has 'compelling reasons,' arising out of the severity of the past by the government then persecution, for being unable or unwilling to return to his country. 2.) that there is a 'reasonable possibility' that he always presume it is country may suffer 'other serious harm' upon removal to his country (which need not be linked to the past persecution). wide. - If lose on past humanitarian grant of asylum if DHS rebuts the presumption to show changed circumstances/internal relocation persecution, can still argue alternative (shows no well-founded fear). Must equal a severity of persecution, not traceable to any of the 5 grounds well-founded fear (objective for asylum. Totality of circumstances, reasonable possibility. You cannot ask for humanitarian asylum, it must follow reason). from establishing past persecution and a rebutting of the presumption by DHS. Note: BIA had found in Matter of DI-M-, 24 I & N Dec. 448, 450 (BIA 2008) (FM, 176-77, 180) that IJ must make a specific finding on question of past Asylum Based persecution. Solely on Past Forced Sterilization: Matter of Y-T-L-: 23 I&N Dec. 601 (BIA 2003 - Cannot say that act of persecution itself is Persecution: Matter of the change in circumstance which would result in the denial of asylum. Continuing act of persecution. Chen: could be granted in Regulatory presumption of well-founded fear of persecution arising from such past persecution has not been discretion in the absence of rebutted. Note: While the holding about sterilization and future persecution remains valid, the concept that a husband future persecution, if the

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