The Recent Appeal On Burden Of Proof Of Persecution
In a recent Removal Proceedings Appeal, an Egyptian citizen successfully appealed an Immigration Judge’s denial of her application for asylum. Her appeal was based on worsening conditions in Egypt, particularly for the Christian community. The IJ in that case stated that evidence presented did not establish a pattern or practice of persecution against the Christian community in Egypt (the woman was beaten unconscious, her son nearly kidnapped, she received threatening calls at home and discrimination at work). Moreover, the IJ indicated that the evidence did not show that the Egyptian police expressed an unwillingness or inability to address the Egyptian citizen’s reported abuses.
The appellate court remanded the case back to court to reconsider the asylum application. In particular, the Court found that the IJ may have imposed an unreasonable expectation for the Egyptian citizen to establish the exact basis for her underlying abuse.
Importantly, the Court held that a persecutor may have several motives for harming a victim and proving the exact reason for the past or feared persecution may be impossible in some cases. Thus, such inability may not bar an asylum application.
The Court ordered the IJ to review whether the Egyptian citizen’s mistreatment could form a viable asylum claim due to her religion or other protected ground. The Egyptian woman’s asylum claim was based on her testimony that she was an active member in a religious organization, known as Lost Lambs, that assisted Christian girls who had been abused by Islamic jihadists.
The motivation of the persecutors can be proven by testimonial evidence, supporting documents, and corroborative background evidence. The Court also ordered the IJ to provide a clear and explicit analysis of the Egyptian citizen’s well-founded fear claim.
Thus, if you are involved in a similar asylum application during removal proceedings, you may wish to ensure that your testimony on the statutory central reason for asylum is given full consideration and weight by the immigration judge. Also keep in mind that an IJ’s failure to give such proper consideration may be grounds for an appeal.
The Code Used In The Case
The Immigration and Nationality Act (the “INA”) Section 208 provides for the authority to apply for asylum; exceptions to such authority; conditions for granting asylum, including eligibility, the burden of proof and exceptions; asylum status and termination; and the asylum procedure, including consideration of asylum applications.
Section 208(b)(1)(B)(i) states that an asylum applicant must establish that one of the INA’s statutory grounds was or will be at least one central reason for the claimed persecution. These statutory grounds are race, religion, nationality, membership in a particular social group, or political opinion.
Testimony of the person applying for asylum may be sufficient to sustain the above burden of proof, even where such testimony has no corroboration.
INA Section 241 provides for the detention and removal of aliens ordered removed. Section 241(b)(3) discusses the restriction on removal to a country where an alien’s life or freedom would be threatened. This rule states that the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
However, this restriction does not apply if the Attorney General decides that the alien was involved in similar persecution of individuals, the alien is a danger to the U.S. community; the alien is believed to have committed a serious nonpolitical crime outside the U.S.; or the alien is believed to be a danger to U.S. security.
Those individuals who are considering applying for asylum would be well served by reviewing the law on asylum, particularly the full provisions of INA Section 208 and 241. The full text of the INA is available online for free. You can go to www.USCIS.gov and type in “INA” in the search box.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.