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Asylum

The Burden of Proof for Asylum and Withholding of Removal


English: United States Supreme Court building ...

English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)

 

This article briefly addresses the two distinct burdens of proof to establish eligibility for asylum and to establish entitlement to withholding of removal. The article intends to show the similarity of considerations, and the disparity of the burden.

 

 

We recommend reviewing these four cases:

 

English: Examples of burden of proof for state...

English: Examples of burden of proof for statements. (Photo credit: Wikipedia)

 

Fahim v. U.S. Atty. Gen., 278 F. 3d 1216 (11th Cir. 2002);

 

Mendoza v. U.S. Atty. Gen., 327 F. 3d 1283 (11th Cir. 2003);

 

D-Muhumed v. U.S. Atty. Gen., 388 F. 3d 814 (11th Cir. 2004);

 

Henrys v. U.S. Atty. Gen., 184 Fed. Appx. 822 (11th Cir. 2006).

 

 

 

First, an applicant should note that uncorroborated but credible testimony from the applicant may be sufficient alone to sustain the burden of proof for asylum or withholding of removal. See 8 C.F.R. § 208.13(a). However, when applying, each applicant should consider that the standard to establish withholding of removal is more stringent than the ‘well-founded fear’ standard for asylum.

 

proof.front

proof.front (Photo credit: bhrome)

 

 

 

ASYLUM: the burden of proof

 

To establish asylum eligibility, an applicant must establish a ‘well-founded fear’ that his or her political opinion (or other statutorily listed factor) will cause harm or suffering that rises to the level of persecution. See 8 U.S.C. § 1101(a)(42)(A). Demonstrating such a connection requires the applicant to present specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of such an opinion (or other factor). The fear of persecution had to be both “subjectively genuine and objectively reasonable.”

 

If the applicant establishes past persecution, the burden shifts to the government to prove by a preponderance of the evidence that (1) there has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution, or (2) the applicant could avoid future persecution by relocating to another part of his or her country. See 8 C.F.R. § 208.12(b)(1)(i-ii) and (b)(2).

 

 

 

An American judge talking to a lawyer.

An American judge talking to a lawyer. (Photo credit: Wikipedia)

 

WITHHOLDING OF REMOVAL: the burden of proof

 

An applicant is entitled to withholding of removal if his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion.

 

An applicant should not be removed to a country if his or her 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. See INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). An applicant bears the burden of demonstrating that he more-likely-than-not would be persecuted or tortured upon his return to the country in question. If the applicant demonstrates past persecution on account of one or more of these factors-race, religion, nationality, membership in a particular social group or political opinion-he or she is presumed to have a well-founded fear of future persecution (on such basis) unless the government rebuts the presumption. See 8 C.F.R. § 208.16(b)(1)(i). As above, the government must show by a preponderance of the evidence that, among other things, (1) the country’s conditions have changed such that the applicant’s life or freedom would no longer be threatened upon his removal; or (2) that the alien could avoid a future threat to his life or freedom by relocating to another part of the proposed country of removal, and it would be reasonable to expect him to do so.

 

If, however, the applicant does not establish such past persecution, the applicant may still be entitled to withholding of removal if he can demonstrate a future threat to his life or freedom on a protected ground in his country. The applicant bears the burden of showing a well-founded fear of future persecution by showing that (1) he or she fears persecution based on one or more of the above factors; (2) there is a reasonable possibility he or she will suffer such persecution if he or she returns to his or her country; and (3) he or she could not avoid such persecution by relocating to another part of the country, if under all the circumstances it would be reasonable to expect relocation. See 8 C.F.R. § 208.16(b)(2). If credible, the applicant ‘s testimony may be sufficient to sustain the applicant’s burden of proof without corroboration.

 

English: A statue of Justice on the tympanum o...

English: A statue of Justice on the tympanum of the Old Supreme Court Building, . (Photo credit: Wikipedia)

 

 

 

THE TAKEAWAY:

 

Note the similarity in both tests. However, again, the standard to establish withholding of removal is more stringent than the ‘well-founded fear’ standard for asylum. Thus, if an applicant fails to meet the standard for asylum, his or her petition for withholding of removal necessarily fails.

 

Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.

 

Best of luck!
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

 

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

 

 

 

 

 

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Welcome to MiamiVisaHelp.com’s law blog … discussing everything visa from the perspective of those that have a need, desire, or tendency to move from country to country for the purpose of work, survival, education, living, play, and everything in between. Please feel free to send Andrew John Bernhard, Esq. a message! We are always trying to enhance your experience, and help all of us movers, migrators, immigrants, ex-pats and travelers have an easier, happier, and more satisfying experience in the often confusing world of U.S. Immigration. Please feel free to visit our friends at USImmigrationMiami.wordpress.com and TheMitochondrialMigrator.wordpress.com to see more from similar minded people like yourself! Most of all…ENJOY! - Andrew John Bernhard, Esq.

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