U.S. Department of Justice http://eoirweb/library/lib_index.htm Executive Office for Immigration Review Published since 2007

Immigration Law Advisor

August 2009 A Monthly Legal Publication of the Executive Office for Immigration Review Vol. 3 No.8

Changed Circumstances and Country Conditions In this issue... with Respect to Asylum

Page 1: Feature Article: by Dina Sewell Finkel Changed Circumstances and hree discrete areas in the Immigration and Nationality Act and Country Conditions with its implementing regulations contain asylum eligibility provisions Respect to Asylum related to changed circumstances or to changed country conditions. Page 6: T Federal Court Activity The first is an exception to the requirement that an asylum applicant file an Page 13: Regulatory Update application within 1 year of entry. This exception applies if the applicant establishes “changed circumstances which materially affect the applicant’s eligibility for asylum.” Section 208(a)(2)(D) of the Act, 8 U.S.C. § 1158(a)(2)(D). The second is the exception to toll the time limitations for filing a motion to reopen if an asylum applicant can establish “changed The Immigration Law Advisor is country conditions arising in the country of nationality” or removal since a professional monthly newsletter of the prior proceeding if the evidence is material and not previously available. the Executive Office for Immigration Section 240(c)(7)(C)(ii) of the Act, 8 U.S.C. § 1229a(c)(7)(C)(ii). The third Review (“EOIR”) that is intended is the regulatory provision that an alien who establishes past persecution solely as an educational resource is entitled to a rebuttable presumption of a future fear of persecution to disseminate information on unless the Department of Homeland Security (“DHS”) establishes by a developments in immigration law preponderance of the evidence that “[t]here has been a fundamental change pertinent to the Immigration Courts and the Board of Immigration Appeals. in circumstances such that the applicant no longer has a well-founded fear Any views expressed are those of the of persecution.” 8 C.F.R. § 1208.13(b)(1)(i)(A). authors and do not represent the positions of EOIR, the Department of Although the language of only one of these provisions currently Justice, the Attorney General, or the utilizes the phrase “changed country conditions,” these three are easily U.S. Government. This publication conflated and all are sometimes referred to as involving “changed country contains no legal advice and may conditions.” However, each provision has separate requirements and not be construed to create or limit burdens of proof. A survey of case law is instructive to elucidate how each any rights enforceable by law. EOIR area is analyzed. will not answer questions concerning the publication’s content or how it 1-Year Bar—Changed Circumstances may pertain to any individual case. Guidance concerning proceedings before EOIR may be found in the One permutation of the concept of changed country conditions Immigration Court Practice Manual or circumstances arises with respect to the 1-year bar for filing asylum and/or the Board of Immigration claims. The Act requires an asylum applicant to “demonstrate[] by clear Appeals Practice Manual. and convincing evidence that the application has been filed within 1 year 1 after the date of the alien’s arrival in the United States.” case law consists primarily of the courts’ assertion of a Section 208(a)(2)(B) of the Act. One of the two statutory lack of jurisdiction to review this issue. See, e.g., Chibwe exceptions to the 1-year requirement can be met if “the v. Holder, 569 F.3d 818, 820 (8th Cir. 2009). alien demonstrates to the satisfaction of the Attorney General . . . the existence of changed circumstances which The United States Court of Appeals for the Ninth materially affect the applicant’s eligibility for asylum.” Circuit provides an exception, however. In Ramadan v. Section 208(a)(2)(D) of the Act. As relevant here, the Gonzales, 479 F.3d 646, 656 (9th Cir. 2007), the court regulations provide a nonexhaustive list of what could held that under section 242(a)(2)(D) of the Act, it has constitute “changed circumstances”: jurisdiction to review a determination that an asylum applicant failed to show changed circumstances if the (A) Changes in conditions in the inquiry involves a “mixed question of law and fact.” By applicant’s country of nationality or, if this, the court was referring to situations involving “the the applicant is stateless, country of last application of statutes and regulations to undisputed habitual residence; historical facts.” Id. at 654. (B) Changes in the applicant’s circumstances that materially affect The Board has issued one precedent decision that the applicant’s eligibility for asylum, provides a somewhat brief analysis of whether an asylum including changes in applicable U.S. applicant had successfully established the existence law and activities the applicant becomes of changed circumstances that materially affected his involved in outside the country of feared eligibility for asylum. See Matter of A-M-, 23 I&N Dec. persecution that place the applicant at 737 (BIA 2005). There, an Indonesian citizen entered risk. the United States in January 2001; he filed an asylum application in March 2003 and posited that the nightclub 8 C.F.R. § 1208.4(a)(4)(i). bombing in Bali, Indonesia, in October 2002 was a sufficient change in circumstances to permit untimely Finally, the regulations require that the asylum filing. The Board disagreed and found that he “failed to application be filed “within a reasonable period given those demonstrate how this event materially affected or advanced ‘changed circumstances.’ If the applicant can establish his asylum claim.” Id. at 738 (emphasis added). The Board that he or she did not become aware of the changed made the following observations about the applicant: his circumstances until after they occurred, such delayed asylum claim was “based on his Chinese ethnicity and awareness shall be taken into account in determining Christian faith,” he had lived on the island of Java and not what constitutes a ‘reasonable period.’” 8 C.F.R. the island of Bali, the majority of the bombing victims had § 1208.4(a)(4)(ii). been foreign tourists, and he had admitted that he delayed filing because he had been paying a debt. Id. at 738-39. The Act contains a strict limitation that divests Therefore, the Board concluded that “[w]hen considered courts of jurisdiction to review any determination in the context of his asylum claim, the respondent has made under section 208(a)(2) of the Act, including failed to demonstrate that either the Bali incident or other on the issue of timeliness. See section 208(a)(3) of the recent developments have materially affected his eligibility Act. However, courts can review “constitutional claims for asylum.” Id. at 739 (emphasis added). or questions of law.” Section 242(a)(2)(D) of the Act, 8 U.S.C. § 1252(a)(2)(D). In most jurisdictions, the Some extrapolations can be drawn from this circuit courts have declined to review findings that short opinion. First, the Board highlighted that the asylum applications were untimely and that no exception change in circumstances must be “material.” Id. at 738- to the timeliness requirement was established. See, e.g., 39. Additionally, the change in circumstances must El-Labaki v. Mukasey, 544 F.3d 1, 5 (1st Cir. 2008); Pan have some causal connection to the asylum applicant’s v. Gonzales, 489 F.3d 80, 84 (1st Cir. 2007). Because of claim for asylum, as underscored by the Board’s refusal this limitation, scant precedential case law exists in which to find that the occurrence of a terrorist bombing that a court has evaluated whether a change in circumstances predominantly killed foreign tourists affected the claim of that materially affected eligibility had been sufficiently an ethnic Chinese Christian who hailed from a different established by the asylum applicant. Instead, the relevant island in Indonesia. 2 Additional guidance can be drawn from two Ninth the burden of establishing changed country conditions. Circuit cases. In Ramadan, the asylum applicant—an See Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007). Egyptian woman who taught aerobics, dressed in Western In contrast to the concept of “changed circumstances” attire, and was outspoken about women’s independence— related to the 1-year bar to asylum, and the “fundamental had fled to the United States because of threats from Islamic change[s] in circumstances” related to the rebuttable men. Ramadan, 479 F.3d at 649. More than 1 year after presumption of future persecution to be discussed next, her arrival, she expressed her views about women’s rights this is the only provision that specifically limits the change in Egypt at a meeting; thereafter, her parents and a friend in circumstances to “changed country conditions.” were told that someone in Egypt had threatened her because of her participation in the meeting. She filed an This provision most frequently arises when asylum application and alleged changed circumstances on an asylum applicant seeks to file a successive asylum the basis that the past persecution had been based on her application more than 90 days after a removal job and because she wore Western clothing, whereas her order was entered. These applicants can only current fear was based on her political opinion espoused succeed if they show “changed country conditions.” at the meeting. The Ninth Circuit found that the asylum Section 240(c)(7)(C)(ii) of the Act. In contrast, outside applicant had not established changed circumstances, the motion to reopen context, first-time asylum applicants as her testimony revealed that both her original and her who seek to overcome the 1-year bar need only establish alleged new fear were on account of the same ground materially changed circumstances, which can include and from the same persecutors. Id. at 657-58. This case circumstances other than changed country conditions, underscores that the asylum applicant cannot merely recast including changed personal circumstances. See section the nexus or the identity of the persecutors: there must 208(a)(2)(D) of the Act. be an actual and demonstrable change in circumstances. In another case, the Ninth Circuit held that an asylum The Board and circuit courts have clarified the applicant’s subjective intent to apply for asylum prior to tension between a successive asylum applicant who has the occurrence of the relevant change in circumstances missed the deadline for motions to reopen and an untimely does not negate the fact that the circumstances could first-time asylum applicant. InMatter of C-W-L-, 24 I&N warrant an exception to the 1-year requirement. Fakhry v. Dec. 346 (2007), an applicant, whose original claim of Mukasey, 524 F.3d 1057, 1063 (9th Cir. 2008) (“[T]here feared sterilization because of the birth of two children can be ‘changed circumstances which materially affect the in the United States was denied, filed a “Motion to File applicant’s eligibility for asylum’ even if the alien always Successive Asylum Application pursuant to 8 C.F.R. meant to apply for asylum and always feared persecution; § 208.4” based on a third child’s birth. He argued that a sudden ‘Eureka!’ state of mind is not necessary.”). he need not meet the requirement of “changed country conditions” at section 240(c)(7)(C)(ii) of the Act, but Motion to Reopen—Changed Country Conditions that he could rely on section 208(a)(2)(D) and merely show a change in circumstances that materially affected The second area in which the concept of changed his eligibility for asylum. In rejecting his argument, the country conditions or circumstances arises in asylum Board noted that section 208(a)(2)(D) of the Act was not law relates to an exception to the requirement that a a stand-alone provision. Moreover, once a removal order motion to reopen must be filed within 90 days of the was issued and the deadline for motions to reopen had date of entry of a final administrative order of removal. passed, to permit the filing of an asylum application not See section 240(c)(7)(C) of the Act. That time limitation predicated on changed country conditions “would render may be waived, however, when reopening is requested section 240(c)(7)(C)(ii) . . . superfluous and would negate to allow the applicant to file an asylum or withholding the effect of regulations granting jurisdiction to this Board of removal claim “based on changed country conditions and the Immigration Courts.” Id. at 351. The Board arising in the country of nationality or the country to held that an asylum application filed by an alien under which removal has been ordered, if such evidence is a final order of removal must satisfy the requirements material and was not available and would not have been of a motion to reopen. Therefore, an applicant with a discovered or presented at the previous proceeding.” previously denied asylum claim who seeks to file a second Section 240(c)(7)(C)(ii) of the Act; see also 8 C.F.R. claim after the deadline for motions to reopen has passed §§ 1003.2(c)(3), 1003.23(b)(4)(i). The applicant bears must establish the requisite change in country conditions 3 rather than the broader changes permitted to negate the (2d Cir. 2003); see also Zheng v. Mukasey, 509 F.3d 869 1-year bar. Accord Chen v. Mukasey, 524 F.3d 1028 (9th (8th Cir. 2007). A change in conditions will be labeled Cir. 2008). as a change in personal circumstances if the change is self-induced. As reasoning for this categorization, the Under section 240(c)(7)(C)(ii) of the Act, an Second Circuit noted that “it would be ironic, indeed, asylum applicant must show that there has been a change if petitioners . . . , who have remained in the United in country conditions, not merely that the same fear of States illegally following an order of deportation, were harm on which the original application was based persists. permitted to have a second and third bite at the apple Continuing fear predicated on a previously denied asylum simply because they managed to marry and have children claim is not a change in country conditions. Betouche while evading authorities.” Wang, 437 F.3d at 274; see v. Ashcroft, 357 F.3d 147, 152 (1st Cir. 2004); Matter of also Liu v. Att’y Gen. of U.S., 555 F.3d 145, 151 (3d Cir. J-J-, 21 I&N Dec. 976, 980-82 (BIA 1997). In order 2009); Zhao, 440 F.3d at 407. While the birth of two to establish that a change in country conditions has or more children in the United States will constitute a occurred, there must be evidence in the record of what the change in personal circumstances, increased enforcement country conditions were when the initial proceeding took of the one-child policy since the original asylum hearing place. Zheng v. Mukasey, 523 F.3d 893 (8th Cir. 2008). can constitute a change in country conditions. See Li v. An applicant who alluded to an affidavit that stated that U.S. Att’y Gen., 488 F.3d 1371, 1375 (11th Cir. 2007) Chinese police were still looking for him because of his (holding that “evidence of a recent campaign of forced attendance at a Falun Gong rally had not met his burden sterilization in [the asylum applicant’s] home village” that because the rally was the basis of the original asylum was consistent with recent State Department reports “was claim. See Zhao v. Gonzales, 440 F.3d 405 (7th Cir. 2005). material and previously unavailable evidence of changed However, a changed country condition can compound conditions in China”). the applicant’s original fear of harm. An applicant who establishes that the potential persecutors have, since Note, however, that even if the potential the original hearing, developed additional motives for persecution would be self-induced by the asylum persecution may meet the exception. Kebe v. Gonzales, applicant, the increased ability of the potential persecutor 473 F.3d 855, 858 (7th Cir. 2007) (remanding for the to effectuate the persecution can constitute “changed Board to reevaluate whether changed country conditions country conditions.” See Larngar v. Holder, 562 F.3d 71, were established where an increased governmental 78 (1st Cir. 2009) (remanding after the Board denied crackdown occurred as a result of elections revealing that reopening to an applicant who feared return to Liberia opposition groups had gained political traction). Further, because a man he had once assaulted had lately come to a the reemergence of a political party that had previously position of prominence in that country’s Special Security persecuted the asylum applicant but that had not been in Service and could therefore be able to exact vengeance power at the time of the original hearing can constitute through his official capacity). a change in country conditions. Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 314-16 (3d Cir. 2007). Finally, there Rebuttable Presumption—Fundamental Change in is no requirement that the changed country condition Circumstances relate to an entirely new fear of harm; the relevant inquiry is “whether the new information was unavailable or A third area involving changed country undiscoverable” previously. Malty v. Ashcroft, 381 F.3d conditions or circumstances relates to the rebuttable 942, 945-46 (9th Cir. 2004). presumption that arises when an asylum applicant has established past persecution. Under the regulations, an The change in conditions for purposes of reopening applicant who establishes past persecution is entitled to a cannot be a change in personal circumstances. The birth rebuttable presumption of a well-founded fear of future of additional children subsequent to the original asylum persecution on the basis of the original claim, unless the hearing constitutes changed personal circumstances rather DHS establishes by a preponderance of the evidence that than changed conditions in China. See Wang v. Board of “[t]here has been a fundamental change in circumstances Immigration Appeals, 437 F.3d 270, 273 (2d Cir. 2006); such that the applicant no longer has a well-founded fear Guan v. Board of Immigration Appeals, 345 F.3d 47, 49 of persecution in the applicant’s country of nationality.”

4 8 C.F.R. § 1208.13(b)(1)(i)-(ii). Until 2000, the rights violations by countries that the United States wants presumption was much narrower and could only be to have good relations with.” Gramatikov v. INS, 128 rebutted if “a preponderance of the evidence establishes F.3d 619, 620 (7th Cir. 1997). In a subsequent opinion, that since the time the persecution occurred conditions the Seventh Circuit added that “[t]he country report is in the applicant’s country of nationality or last habitual evidence and sometimes the only evidence available, but residence have changed to such an extent that the applicant the Board should treat it with a healthy skepticism, rather no longer has a well-founded fear of being persecuted if than, as is its tendency, as Holy Writ.” Galina v. INS, he or she were to return.” 8 C.F.R. § 208.13(b) (2000) 213 F.3d 955, 959 (7th Cir. 2000). Similarly, the Second (emphasis added). The expansion from a change in country Circuit has stated that DOS country reports “often conditions to a “fundamental change in circumstances” provide a ‘useful and informative overview of conditions allows Immigration Judges to factor “other changes in the in the applicant’s home country,’” but that adjudicators circumstances surrounding the asylum claim, including a should not “‘place excessive reliance’ on them.” Passi v. fundamental change in personal circumstances . . . so long Mukasey, 535 F.3d 98, 101 (2d Cir. 2008) (quoting Tian- as those changes are fundamental in nature and go to the Yong Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004)). basis of the fear of persecution.” Asylum Procedures, 65 Despite the potential for politically based biases, however, Fed. Reg. 76,121, 76,127 (Dec. 6, 2000) (Supplementary the Ninth Circuit has noted that the DOS country Information). The Board has characterized the regulatory reports are often the best source because “this inquiry is presumption of future persecution as “an evidentiary directly within the expertise of the Department of State.” presumption founded on the probability of a past event Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir. 1998). In being indicative of a future event.” Matter of N-M-A-, 22 addition, the Fourth Circuit has proven somewhat more I&N Dec. 312, 317 (BIA 1998). deferential to the DOS reports than some of the other circuits, stating that they are “highly probative” and that Once an asylum applicant has established past “[a]bsent powerful contradictory evidence, the existence of persecution, the burden shifts to the DHS to prove by a State Department report supporting the BIA’s judgment a preponderance of the evidence that there has been will generally suffice to uphold the Board’s decision. Any a “fundamental change in circumstances.” 8 C.F.R. other rule would invite courts to overturn the foreign § 1208.13(b)(1)(i)-(ii). Failure to shift the burden to affairs assessments of the executive branch.” Gonahasa v. the DHS is error. Matter of D-I-M-, 24 I&N Dec. 448 U.S. INS, 181 F.3d 538, 542-43 (4th Cir. 1999). (BIA 2008); see also Bace v. Ashcroft, 352 F.3d 1133 (7th Cir. 2003). Generally, the term “fundamental change Circuit courts have issued decisions regarding the in circumstances” refers to changed political conditions weight DOS country reports should be afforded relative in the country of persecution, but it may still apply to to the record as a whole. If the asylum applicant fails personal changes that affect the asylum applicant’s well- to submit any evidence contradicting the DOS country founded fear. Ixtlilco-Morales v. Keisler, 507 F.3d 651, report other than conclusory assertions about continuing 654-55 (8th Cir. 2007). danger, the Immigration Judge may rely exclusively on the DOS country report. Yatskin v. INS, 255 F.3d 5, 10-11 Generally, Immigration Judges and the Board (1st Cir. 2001). Sole reliance on the DOS country report rely on Department of State (“DOS”) country reports is inappropriate, however, where the asylum applicant has to determine whether the DHS has established that a submitted evidence that contradicts the DOS country fundamental change in circumstances occurred such that report’s assertions, or where the Immigration Judge the asylum applicant no longer has a well-founded fear of relied solely on general statements in the DOS country return. For the most part, circuit courts have cautioned report. Manzoor v. U.S. Dep’t of Justice, 254 F.3d 342, against unwavering reliance on the information contained 348-49 (1st Cir. 2001). The Immigration Judge need in country reports. The efficacy of such general reports not favor an asylum applicant’s opinion testimony about to determine specific changes for particular asylum current conditions: “An alien who has lived in this applicants is the subject of debate. The Seventh Circuit country for years and is not an expert on the politics of noted that “[t]he advice of the State Department is not his native country will ordinarily have no credible basis binding, either on the service or on the courts; there is for testifying about the secret power structure of that perennial concern that the Department softpedals human continued on page 13 5 FEDERAL COURT ACTIVITY

CIRCUIT COURT DECISIONS FOR JULY 2009 by John Guendelsberger

he United States courts of appeals issued 590 The Second Circuit reversed in five cases, including decisions in July 2009 in cases appealed from a remand to clarify the requirements for showing a pattern Tthe Board. The courts affirmed the Board in and practice of persecution; two cases in which the Board 530 cases and reversed or remanded in 60, for an overall overlooked relevant evidence; a case in which it found reversal rate of 10.2% compared to last month’s 11.1%. that the Board engaged in impermissible fact-finding; and The Ninth Circuit issued 45% of the total decisions and a motion to reopen for ineffective assistance. 68% of the reversals. There were no reversals from the First and Tenth Circuits. The Third Circuit reversed or remanded in five cases. These included a remand for further explanation of reasons for The chart below provides the results from each denial of asylum; two remands for further discussion of circuit for July 2009 based on electronic database reports country conditions evidence in support of a motion to of published and unpublished decisions. reopen (both involving Yemen); a remand to separately address the request for protection under the Convention Circuit Total Affirmed Reversed % Against Torture; and a remand to further consider the denial of a continuance for adjustment of status based on 1st 8 8 0 0.0 a labor certification. 2nd 196 191 5 2.6 3rd 24 19 5 20.8 The chart below shows the combined numbers 4th 17 16 1 5.9 for the months of January through July 2009 arranged by 5th 17 16 1 5.9 circuit from highest to lowest rate of reversal. 6th 23 21 2 8.7 7th 5 4 1 20.0 Circuit Total Affirmed Reversed % 8th 6 5 1 16.7 9th 264 223 41 15.5 9th 1201 978 223 18.6 10th 5 5 0 0.0 3rd 167 138 29 17.4 11th 25 22 3 12.0 7th 46 41 5 10.9 All: 590 530 60 10.2 6th 111 100 11 9.9 8th 46 42 4 8.7 Of the 41 reversals in the Ninth Circuit, 24 11th 188 175 13 6.9 involved asylum claims, 10 of which found fault with an 2nd 863 817 46 5.3 adverse credibility determination. Other issues involved 5th 140 133 7 5.0 level of harm for past persecution (three cases); failure 10th 26 25 1 3.8 to address a “disfavored group” claim (three cases); the 1st 47 46 1 2.1 1-year bar finding (two cases); particular social group; 4th 109 107 2 1.8 corroboration; and application of the presumption of continuing persecution after a finding of past persecution. All: 2945 2603 342 11.6 Reversals not involving asylum included motions to reopen in a variety of contexts (six cases); failure to provide Last year at this point there were 2674 total a continuance to complete fingerprints or background decisions and 381 reversals for a 14.2% overall reversal checks (four cases); adjustment of status (two cases); and rate. criminal grounds for removal (two cases). John Guendelsberger is a Member of the Board of Immigration Appeals.

6 A Crummy Summer Rerun: the credibility determination but concluding that because Still More on Corroboration, Credibility, and of the generalized nature of the respondent’s testimony, the REAL ID Act there was a greater need for corroborative evidence. See Matter of Y-B-, 21 I&N Dec. 1136, 1139 (BIA 1998). by Edward R. Grant Neither decision mentioned the REAL ID Some readers will recall when television’s summer Act. See REAL ID Act of 2005, Div. B of Pub. L. No. reruns started in, well, summer. Take for example the 109-13, 119 Stat. 231, 302 (effective May 11, 2005). “Classic 39” Honeymooners episodes from 1955-1956: Since Owino’s applications were all filed after May 11, a full nine To-Da-Moon’s worth of original episodes, 2005, the amendments made by the REAL ID Act, enough for September through May of that auspicious particularly to sections 208(b)(1)(B)(ii) (“clause (ii)”) and year. A decade later, would you believe there were 30 Get 208(b)(1)(B)(iii) (“clause (iii)”) of the Act, governed the Smarts in its original season? (How about 20 and a couple issues of credibility and corroboration. Matter of S-B-, 24 of bonus tracks?) The numbers continued to dwindle, I&N Dec. 42 (BIA 2006). The confusion extended to down to 22 in recent years. Thus, reruns of Seinfeld and Owino himself, who argued to the Ninth Circuit that the Friends would start when their Gothamite characters were Board erroneously required him to corroborate his credible still donning their woolies and their wellies. testimony, citing Karapetyan v. Mukasey, 543 F.3d 1118 (9th Cir. 2008) (holding that, in a pre-REAL ID Act case, This month, the Advisor takes this trend to its the Immigration Judge may not require corroboration of absurd extreme: a summer rerun of a summer rerun. Yes, credible testimony). it was just weeks ago that we were all in Washington, D.C., and the lucky few patiently endured a lecture on the Somewhat oddly, the Ninth Circuit chose to application of the REAL ID Act. For those of you who publish its decision granting the Government’s motion missed the original—or who simply cannot get enough to remand for application of the REAL ID standards. of this stuff—I offer the following encore, complete with Owino v. Holder, __F.3d__, 2009 WL 2392992 (9th a few pertinent circuit court decisions issued since our Cir. Aug.4, 2009). Odd or not, the publication could August confab. set a clear standard: if the REAL ID Act governs but its standards are not cited or applied by the Immigration This discussion will be brief and will focus on Judge or the Board, the case will come back for that to four topics: (1) Does the REAL ID Act apply? (2) What be done. In Owino’s case, it is not difficult to determine does “totality of the circumstances” mean in assessing why application of the REAL ID Act could make a real credibility? (3) Is lack of corroboration a factor in assessing difference. credibility? (4) When can a claim be denied for lack of corroboration? The case has been made in successive annual training conferences, and in these pages, that the REAL Does the REAL ID Act Apply? ID Act, in particular clause (ii) and clause (iii), represent more a codification than a change of Board precedent on Sylvester Owino, a Kenyan, came to the attention issues of credibility and corroboration. See Matter of A-S-, of immigration authorities in November 2005 as he was 21 I&N Dec. 1106 (BIA 1998); Matter of O-D-, 21 I&N completing service of a 3-year sentence for second-degree Dec. 1079 (BIA 1998); Matter of T-M-B-, 21 I&N Dec. robbery in California. At subsequent removal proceedings, 775 (BIA 1997); Matter of S-M-J-, 21 I&N Dec. 722 he applied for asylum, withholding of removal under both (BIA 1997). Thus, it is conceivable that a “REAL ID” the Immigration and Nationality Act and the Convention case that is adjudicated without reference to its specific Against Torture (“CAT”), and deferral of removal under standards might pass muster because the failure to apply the CAT. The Immigration Judge, concluding that his those standards would not have affected the outcome. offense constituted a “particularly serious crime,” found Cases arising in the Ninth Circuit, however, constitute an him ineligible for all forms of relief except CAT deferral. exception—as the Ninth Circuit itself has recognized, the He denied CAT deferral, making an adverse credibility adoption of the REAL ID Act works a sea change in its determination and citing the lack of corroborative jurisprudence. See Jibril v. Gonzales, 423 F.3d 1129 n.1 evidence. The Board affirmed, stating disagreement with

7 (9th Cir. 2005) (stating that the REAL ID amendments Before discussing Tang, it is worth noting the “will mean that in the future only the most extraordinary expectations of Congress in drafting clause (iii). It is circumstances will justify overturning an adverse well noted that Congress intended to “rein in” credibility credibility determination”). Owino tactily recognizes this rulings by the Ninth Circuit that conflicted with those of as well, simply noting that because clause (ii) of the REAL the Board and other circuits, and to establish a uniform ID Act—permitting an Immigration Judge to require standard for judicial deference to administrative findings corroboration of otherwise credible testimony—applies, on credibility. H.R. Rep. No. 109-72, at 167-68 (2005); the rule in Karapetyan v. Mukasey and its antecedents do Mitondo v. Mukasey, 523 F.3d 784, 787 (7th Cir. 2008) not. See Kataria v. INS, 232 F.3d 1107 (9th Cir. 2000). (noting that Congress was “dissatisfied with judicial reluctance to accept immigration judges’ credibility The short lesson: scrutinize in all cases whether decisions”). It is less well known that Congress cautioned the REAL ID Act governs the respondent’s application for against Immigration Judges and the Board using their relief. Note that this does not extend only to applications new toolkit on credibility too aggressively. Clause (iii) for asylum and related relief, but to all forms of relief. was designed so that “commonsense” standards could be See section 240(c)(4) of the Act. It is also helpful to used in identifying false and fraudulent claims. However, include specific findings regarding the date that is used reliance on any of the specified factors in clause (iii) has to to calculate whether the REAL ID Act applies—this is at be “reasonable and take into consideration the individual times a contested issue, as when the respondent claims to circumstances” of the applicant. H.R. Rep. No. 109-72, have sent an application to the former Immigration and at 167. Naturalization Service or the Department of Homeland Security, but the agency claims no record of the filing. Tang does not cite these provisions of legislative history, but its reversal of the adverse credibility Assessing Credibility by the “Totality of the determination entered by the Immigration Judge and Circumstances” affirmed by the Board reflects the same themes. Ms. Tang, who was an “arriving alien,” stated during the course of her Clause (iii) of the REAL ID Act amendments may airport interview that she was a Christian who never went be referred to as the “credibility clause”: it both identifies to church but worshiped at other people’s homes. At a the list of factors (demeanor, plausibility, consistency or subsequent credible fear interview, she testified in greater inconsistency, country conditions evidence) that may be detail about her underground church, being arrested and taken into account in making a credibility determination detained twice, and being beaten to the point of requiring and specifies that any inconsistencies, inaccuracies, or medical attention. The Immigration Judge found Tang falsehoods do not have to go to “the heart of the . . . claim” not credible, stating in part that it was implausible that in order to support an adverse credibility determination. her mother (a family planning official) would pay bribes The “credibility clause” has two other significant aspects: to get her daughter out of detention or assist her in leaving it begins by stating that the “totality of the circumstances” China illegally, or that Ms. Tang herself, as the daughter should be considered in addressing credibility and of a Government official, would be detained and beaten concludes by stating that if no adverse credibility simply for attending a house church. The Immigration determination is “explicitly made,” the applicant enjoys a Judge also noted a discrepancy between Tang’s statements rebuttable presumption of credibility on appeal. (in her airport and credible fear interviews, and in her asylum application) that she “never” went to church and The case of one Lin Lin Tang, recently decided by had no religion prior to 2004, whereas she testified that the Eleventh Circuit, demonstrates how precisely the courts her grandmother had brought her to the state-sponsored may analyze the relatively open-ended authority granted Catholic church in China while she was growing up. to Immigration Judges by clause (iii). Tang v. U.S. Att’y The Immigration Judge also relied on the respondent’s Gen., __F.3d__, 2009 WL 2432054 (11th Cir. Aug. 11, demeanor. (Other factors relied on the by Immigration 2009). In particular, Tang demonstrates that factors such Judge were not affirmed by the Board, so are of no further as plausibility and demeanor, while inherently subjective, concern.) will nevertheless be assessed to determine if reliance upon them in making an adverse credibility determination was The Eleventh Circuit first criticized the reasonable. Immigration Judge’s “plausibility” analysis, stating that 8 he “invented out of whole cloth” his conclusion “that The answer, according to the court, is that the respondent Tang’s mother was a high ranking member of the Chinese had a reasonable explanation for the inconsistency—she government who could protect her from police brutality.” never accepted the religion of the state-sponsored church Tang, 2009 WL 2432054, at *5. The court further stated and considered herself a Christian only after she joined that concluding the mother would not have violated the the house church movement. The court concluded that law to protect her daughter is “contrary to common sense.” Tang “said nothing that cannot be squared with her earlier Id. The court emphasized that a “plausibility” factor statements.” Id. at *7. must be based on evidence, not “personal perceptions” or speculation regarding the reasonableness of a person’s The court found the issue of demeanor more actions. Id. difficult to address. It stated that it could find no support in the record for the Immigration Judge’s conclusion The court also faulted the Immigration Judge’s that the respondent was unable to answer questions reliance on the airport interview for failing to consider, that were “posed differently” from her “rehearsed” direct as called for in clause (iii), “the circumstances under examination. Id. “However, because we were not there to which” prior inconsistent statements were made. Id. at *6 hear or see the testimony, we cannot reject this criticism (quoting clause (iii)). out of hand.” Id. Finally, the court found that the Board erred in not considering corroboration of the respondent’s We conclude that when an IJ “consider[s] injuries from medical records that it mistakenly concluded the circumstances” of an airport interview, had not been admitted into evidence. the IJ should keep in mind that an airport interview is not an application for asylum. While mindful not to draw too many conclusions An IJ may of course consider whether there from a single case, we can sense from Tang the boundaries are contradictions between the airport on use of the more “subjective” factors such as demeanor interview and later testimony. However, and plausibility in making credibility determinations. If when considering whether later testimony such reliance is based on speculation and conjecture or is qualifies as a contradiction, as opposed to conclusory, it will be subject to greater scrutiny. Likewise, an elaboration, of an applicant’s airport if a court concludes that the “totality of the circumstances” interview statements, an IJ should note have not been considered, producing a credibility ruling that during an airport interview, unlike in that does not seem grounded in common sense, the court a hearing with full due process accorded, may use the very tools granted to Immigration Judges and the alien is not represented by counsel and the Board by the REAL ID Act to revise or undo their may be markedly intimidated by official handiwork. questioning, particularly if the alien has indeed been subject to government abuse Is Lack of Corroboration a Factor in Assessing in her country of origin. Credibilty?

Id. (emphasis added). The italicized portions here are The best answer to this question has been a qualified critical—the court is emphasizing the distinction between “no.” The primary reason is that lack of corroboration is (a) contradictions between an airport interview and later not among the credibility factors identified in clause (iii) testimony and (b) omissions from the airport interview of the REAL ID amendments. Congress instead treated later elaborated upon in testimony. If only the latter are corroboration as a separate factor in clause (ii), stating that present, then the Immigration Judge should not “focus even if an applicant’s testimony is considered credible, an exclusively” on those omissions. Id. Immigration Judge may require corroboration, if reasonably available. The phrasing suggests that a determination of The question, of course, is whether the failure to credibility is a threshold to be crossed before considering mention her attendance at the state-sponsored Catholic the matter of corroboration. Several courts appear to church—which occurred at the credible fear interview agree. See Zhao v. Holder, 569 F.3d 238, 239-40 (6th Cir. and in the asylum application—was a mere omission, or 2009) (finding reliance on the absence of corroboration a clear contradiction, as the Immigration Judge saw it. to be proper, especially where the alien’s testimony was

9 riddled with inconsistencies); Khrystotodorov v. Mukasey, The Second Circuit, relying on clause (ii) of the 551 F.3d 775, 782 (8th Cir. 2008) (“Credibility and the REAL ID amendments, as well as its own pre-REAL ID need for corroboration are intertwined such that a denial precedents and those of the Board, concluded that the of asylum based on a lack of corroboration must include an REAL ID Act “codifies the rule that an IJ, weighing the explicit ruling on the applicant’s credibility, an explanation evidence to determine if the alien has met his burden, of why it is reasonable to expect additional corroboration, may rely on the absence of corroborating evidence or an assessment of the sufficiency of the explanations adduced by an otherwise credible applicant unless such for the absence of corroborating evidence.” (emphasis evidence cannot be reasonably obtained.” Id. at *3. The added)); Rapheal v. Mukasey, 533 F.3d 521, 528 (7th court also noted that pursuant to the REAL ID Act, its Cir. 2008) (finding that the Board should first address own review of the issue is limited: “No court shall reverse the Immigration Judge’s adverse credibility finding a determination . . . with respect to the availability of before ruling on the need for corroborative evidence). corroborating evidence . . . unless the court finds . . . that But see Balachandran v. Holder, 566 F.3d 269, 273 (1st a reasonable trier of fact is compelled to conclude that Cir. 2009) (referring to the Board’s corroboration-based such corroborating evidence is unavailable.” Id. (quoting denial as an adverse credibility determination); Ying Jin section 242(b)(4) of the Act). Lin v. Holder, 561 F.3d 68, 73 (1st Cir. 2009) (noting that the lack of corroboration supported an adverse credibility The court concluded that the requirement for determination that was also based on “myriad” other corroboration in this case was reasonable, and proceeded factors). to hold that such requirements for corroboration do not have to be raised prior to the applicant’s testimony, or even The “no” is qualified because the case law is not yet prior to the disposition of the claim. definitive. Also, questions regarding the very availability of corroboration, or the reliability of corroboration that After all, [an Immigration Judge] may not has been provided, may raise credibility concerns separate be able to decide sufficiency of evidence from an applicant’s testimony regarding the events of until all the evidence has been presented; his or her claim. With those disclaimers, as stated at insufficiency cannot be determined the conference, the most advisable route is to address while there is evidence to be introduced. credibility first and independently of corroboration. The Likewise, it is not easy to know when an final case for discussion suggests why. explanation would be required for a lack of corroboration, because an IJ may not When Can a Claim Be Denied for Lack of determine that corroboration is necessary Corroboration? until all the evidence is in, and the IJ has had an opportunity to weigh the evidence The value of clear findings on credibility and and prepare an opinion – steps that may corroboration, even when stated in the alternative, is not occur until days after the hearing. demonstrated in a recent REAL ID Act case decided by Accordingly, while we have sometimes the Second Circuit. Liu v. Holder, __F.3d__, 2009 WL remanded a case if the IJ failed to explain 2382749 (2d Cir. Aug. 5, 2009). The Immigration Judge his reliance on a lack of corroborating found the respondent not credible and then decided evidence, the alien bears the ultimate that even if he was credible, he had failed to corroborate burden of introducing such evidence his fear of persecution for engaging in pro-democracy without prompting from the IJ. activities. The respondent had experienced no persecution in China, and his fears were based on reports by his wife Id. at *4. that security officials had visited their home. However, no letter or affidavit from the wife was submitted, and Liu provides an apparent safe harbor for there was no corroboration of the pro-democracy activity, “corroboration denials.” But be wary again of reading too which had taken place in Hong Kong. The Board did not much into one case. As indicated, the Second Circuit has address the issue of credibility but affirmed the specific, occasionally remanded such cases in the past and could alternate finding based on lack of corroboration. well do so under the REAL ID Act if it concludes that the

10 reliance on lack of corroboration has not been sufficiently respondents were granted asylum by the DHS and later explained. As for the question of when an alien should adjusted their status, but they were placed in removal be informed of the need to provide corroboration, some proceedings after an investigation uncovered evidence measure of “prompting,” while clearly not required under that they obtained asylum through fraud. The court Liu, will at least make it clear on the record that an found that the Government was not time barred from applicant has been informed of his or her burden. initiating the proceedings, holding that the 5-year statute of limitation on rescission proceedings does not apply Conclusion to removal proceedings. The court further affirmed the Board’s reliance on Matter of Smriko in finding no error In time, and assuming no further legislative in the Immigration Judge’s failure to first revoke their change, there will be no need for separate presentations asylee status. The court further found that the record or articles on the REAL ID Act. Its specific provisions supported the Board’s determination that the respondents on burden of proof, credibility, and corroboration will were removable because they had obtained immigration gradually fold into the general corpus of law applicable benefits by fraud and were inadmissible as immigrants to virtually all cases before Immigration Judges and the with no valid visas or entry documents. Lastly, the court Board. That transition will be smoother—and the need found no due process violation in the Immigration Judge’s for further “re-runs” mandated by the courts minimized— denial of the respondents’ motion to subpoena material if the tools provided by Congress in the Act are applied witnesses based on their failure to comply with agency clearly and prudently. procedures for obtaining a subpoena.

Edward R. Grant was appointed to the Board of Immigration Seventh Circuit: Appeals in January 1998. He is grateful to attorney-advisor Jan v. Holder, __F.3d__, 2009 WL 2392872 (7th Cir. Aug. Andrea Cali for ongoing research assistance on this topic. 6, 2009): The Seventh Circuit denied the respondent’s petition for review of the denial of his applications for RECENT COURT OPINIONS asylum, withholding of removal, and CAT protection. The respondent’s asylum and withholding claims were Second Circuit: based on his purported membership in a particular social Rotimi v. Holder, __F.3d__, 2009 WL 2476648 (2d Cir. group comprised of “Pakistanis who are threatened by Aug. 14, 2009): The Second Circuit afforded Chevron government officials bribed to settle private disputes.” deference to the Board’s decision in Matter of Rotimi, When the respondent was unable to pay substantial which held that for purposes of establishing that an business debts, one of his creditors complained to applicant “lawfully resided continuously” in the United Pakistan’s national law enforcement agency, whose agents States for not less than 7 years in order to qualify for a (according to the respondent) are known to engage in section 212(h) waiver, an alien may not count any period human rights abuses and to take bribes to intimidate in which he or she could claim no legal status other than individuals to settle private disputes. The respondent also a pending application for asylum or adjustment of status. claimed that members of his family were ambushed by As a result, the petitioner was ineligible to apply for such armed men demanding payment of his business debts and a waiver, because a gap of 1 year and 8 months between threatening to kill him should he fail to pay. The court the expiration of his B-2 visa and his adjustment of status found that the respondent failed to establish a likelihood (during which time he had applications pending for of torture, as there was no evidence that the Pakistani asylum and adjustment of status) rendered him unable Government was behind the ambush or threats, or that it to establish the requisite period of lawful continuous had contacted the respondent or his family in the 10 years residence. since those events occurred. The court further found the evidence of police corruption and abuse overly general Sixth Circuit: and vague. Lastly, the court rejected the proposed social Stolaj v. Holder, __F.3d__, 2009 WL 2513608 (6th group, noting that the element of indebtedness was not Cir. Aug. 19, 2009): The Sixth Circuit denied the an immutable characteristic and therefore did not satisfy respondents’ petition for review of a Board decision that the requirement for a social group. affirmed the Immigration Judge’s order of removal. The

11 Lemus-Losa v. Holder, __F.3d__, 2009 WL 2461353 resistance to China’s coercive family planning policy. The (7th Cir. Aug. 13, 2009): The Seventh Circuit declined court distinguished its decision in Jin (which involved an to grant deference to the Board’s decision in Matter of applicant who was not legally married to the victim of the Lemus-Losa and remanded for further proceedings. The abortion) from the instant respondent, whose marriage respondent, an applicant for adjustment of status, had was established. previously entered the United States without inspection, remained for 2 years, and departed. Some 2 years later, Ninth Circuit: he reentered without inspection. In removal proceedings, Fregozo v. Holder, __F.3d__, 2009 WL 2449673 (9th Cir. the Immigration Judge found him ineligible to adjust Aug. 12, 2009): The Board dismissed the respondent’s his status under section 245(i) of the Act, because he appeal from the decision of an Immigration Judge denying was inadmissible under section 212(a)(9)(B)(i)(II) of his application for cancellation of removal on the grounds the Act based on his prior period of unlawful status. that he was convicted of an offense involving child abuse. On appeal, the Board agreed, finding the situation The Ninth Circuit granted the respondent’s petition comparable to that in Matter of Briones, where it found for review, finding that his conviction for misdemeanor that an alien who was inadmissible under section child endangerment under California Penal Code section 212(a)(9)(C)(i)(I) was ineligible to adjust under section 237a(b) was not categorically a conviction for a crime of 245(i). The Seventh Circuit granted deference to the Board’s “child abuse” under the Act, because the statute did not decision in Briones but found that the Board overlooked necessarily require actual injury to the child to support an important distinction between the two grounds of a conviction. The court further found that because inadmissibility involved, focusing on the fact that section the police reports were not incorporated by reference 212(a)(9)(B)(i)(II) involves one who seeks lawful into either the respondent’s nolo plea or the record of readmission (which the court analogized to an alien conviction, they could not be relied on by the Board or physically present in the United States without inspection, the circuit court in determining whether the conviction who is entitled to section 245(i) adjustment). The court was for child abuse within the meaning of the Act. The noted that although section 245(i)(2)(A) requires that an record was remanded for the purpose of conducting a applicant be admissible, clearly all applicants applying modified categorical analysis. under that section are inadmissible, in that they entered without inspection. Reading the statute to exclude Prakash v. Holder, __F.3d__, 2009 WL 2605381 (9th Cir. applicants who are inadmissible for any reason would Aug. 26, 2009): The court held that the California crimes negate the purpose of the statute, so the court held that of soliciting another to commit assault by means of force there must be a line dividing inadmissible aliens who are likely to produce great bodily injury with the intent that nevertheless eligible to adjust under 245(i) from those the crime be committed, and soliciting another to commit who are ineligible to adjust. rape by force and violence with the intent that the crime be committed, are aggravated felony crimes of violence. The Chen v. Holder, __F.3d__, 2009 WL 2514042 (7th Cir. Immigration Judge found these crimes were aggravated Aug. 19, 2009): The court granted the respondent’s felony crimes of violence under section 101(a)(43)(F) petition for review of the Board’s dismissal of his appeal of the Act because they involved a substantial risk that in light of the Attorney General’s decision in Matter of physical force may be used against the person or property J-S-. Prior to the issuance of that decision, the respondent’s of another in the course of committing the offense, and asylum application (which was based on his claim that his the Board upheld that decision. The petitioner argued wife was subjected to a forcible abortion) had been denied that his offenses did not involve a substantial risk that by the Immigration Judge, who did not find him credible. physical force may be used “in the course of committing While his appeal was pending with the Board, Matter of the offense,” because solicitation could be committed J-S- was issued. Relying on the Seventh Circuit’s decision with the mere utterance of words, and any actual force in Jin v. Holder, the Board dismissed the appeal. The court would not come until after the solicitation offense had found that the respondent was denied due process, as the been completed. The court rejected that contention, Board’s action precluded him from attempting to meet the finding that 18 U.S.C. § 16(b) turns on the riskof new legal standard for asylum, which requires evidence of physical force as a consequence of the criminal conduct past or future persecution based on the husband’s own at issue, not on the timing of the force. The court also

12 distinguished its cases finding that solicitation to commit without considering the asylum applicant’s specific claim. certain drug offenses do not qualify as aggravated felonies The Seventh Circuit noted that the recent DOS country under section 101(a)(43)(B) of the Act, and it dismissed report should not be contrasted to the asylum applicant’s the petitioner’s argument that solicitation offenses were testimony; instead, “the proper baseline for comparison not aggravated felonies because they were not included in is . . . an earlier country report.” Galina, 213 F.3d at section 101(a)(43)(U) (attempt or conspiracy to commit 959. The court remanded to the Board because the aggravated felony offenses). Finally, the court rejected the DOS country report for the period in which the asylum petitioner’s argument that the existence of a distinct and applicant was persecuted contained the same general separate Federal statute for solicitation crimes precluded platitudes on which the Immigration Judge relied in the his crimes from falling under section 101(a)(43)(F). later DOS country report to find that circumstances had changed. Id.; accord Krastev v. INS, 292 F.3d 1268, 1276 REGULATORY UPDATE (10th Cir. 2002). 74 Fed Reg 42909 (2009) DEPARTMENT OF HOMELAND SECURITY Both the circuit courts and the Board have held U.S. Customs and Border Protection that neither the occurrence of dramatic political events nor a general improvement in country conditions will Notice of Postponement of H-2A and H-2B Temporary absolutely rebut the presumption of a well-founded fear Worker Visa Exit Program Pilot of return. The Board, in Matter of N-M-A-, declined to establish a categorical rule that a change in regime would ACTION: General notice; postponement of automatically rebut the presumption of a well-founded commencement date. fear of future persecution. Matter of N-M-A-, 22 I&N SUMMARY: U.S. Customs and Border Protection (CBP) Dec. at 320. To find that a change in government has announces the postponement of the commencement date rebutted the asylum applicant’s presumed fear of return, of the H–2A and H–2B Temporary Worker Visa Exit “the record would have to reflect that circumstances had Program Pilot, originally set for August 1, 2009. The pilot changed to such an extent that the applicant no longer has program will require temporary workers within H–2A and a well-founded fear of persecution.” Id. at 321. Matter of H–2B nonimmigrant classifications that enter the United N-M-A- was decided under the pre-2001 version of 8 C.F.R. States at either the port of San Luis, Arizona or the port of § 208.13(b), which, as noted above, set out a standard Douglas, Arizona, to depart from one of those ports and for rebutting the presumption of future persecution that to submit certain biographical and biometric information was more difficult for the DHS to meet, given that it had at one of the kiosks established for this purpose. A delay to show that country conditions had changed, as opposed of the commencement date is necessary to ensure that the to the more nebulous “circumstances.” However, the kiosks are fully operational. general holding of Matter of N-M-A- has been echoed DATES: The pilot program will commence December 8, in circuit court decisions under the current regulations: 2009. The mere change in government in the country where the persecutory acts occurred will not be sufficient to rebut the presumption, especially if the asylum applicant Changed Circumstances continued submits materials to establish that the persecutors are still country.” Gramatikov, 128 F.3d at 620. If the applicant politically involved or that the protected group remains did submit evidence, the DOS country report can still be a target for persecution. See Youkhana v. Gonzales, 460 used to rebut the presumption if the Immigration Judge’s F.3d 927, 932 (7th Cir. 2006) (noting that “[t]he fact that opinion contains a detailed reference to how the report the Ba’ath Party has been removed from power does not establishes a fundamental change in circumstances. See necessarily mean that conditions in Iraq have improved Chreng v. Gonzales, 471 F.3d 14, 22-23 (1st Cir. 2006). for Assyrian Christians”). The First Circuit declined to find that the presumption had been rebutted solely Another line of cases suggests that DOS country because the former Communist regime in Bulgaria was reports of current conditions should not be read in isolation no longer in power: “A regime change does not necessarily and that general pronouncements of improvement should eliminate the objective basis for an applicant’s fear of not be interpreted as categorical proof of material change persecution at the hands of his former oppressors, even if

13 those individuals were part of the old regime.” Mihaylov asylum applicant produced evidence of continued troubles v. Ashcroft, 379 F.3d 15, 23 (1st Cir. 2004). In that case, in his home town. The Second Circuit found that the the asylum applicant had provided documentary evidence Board’s failure to conduct an individualized analysis was that former Communist leaders had reemerged as part of an impermissible inference. Id. at 103. Other circuits the new Socialist government’s leadership. have reached similar conclusions. See Chreng, 471 F.3d at 21 (noting that, under First Circuit case law, dramatic Note, however, that the Fifth Circuit found that changes in a country will likely rebut the presumption, a complete change in power structure that included the but changes of a very general nature will not suffice unless total absence of the persecutors from the region sufficiently the Immigration Judge accounts for the “individual’s rebutted the presumption. There, the departure of particularized substantiated fear”); Lopez v. Ashcroft, 366 Serbian paramilitary forces from Kosovo and the F.3d 799, 805 (9th Cir. 2004); Krastev v. INS, 292 F.3d at installation of the United Nations Interim Administrative 1276-77. Therefore, courts have cautioned against viewing Mission in Kosovo and the Provisional Institutions of Self statements of improved general conditions in isolation Government established that the “identity of the current without assessing the asylum applicant’s particularized Kosovar government is . . . different from that of the past fear of return. government that persecuted the [asylum applicants].” Shehu v. Gonzales, 443 F.3d 435, 437 (5th Cir. 2006). The Board and circuit courts have reviewed whether the occurrence of two types of persecutory acts— Additionally, the presumption is not rebutted by involuntary sterilization and female genital mutilation merely showing that general conditions have improved in (“FGM”)—serve to rebut the presumption of a well- the asylum applicant’s country. Case law instructs that founded fear of future persecution. In Matter of Y-T-L-, the DHS must still establish an individualized analysis of 23 I&N Dec. 601 (BIA 2003), the Board declined to find how the changed circumstances affect a particular asylum that an asylum applicant who had been forcibly sterilized applicant in order to meet the burden. The Third Circuit lacked a well-founded fear of future persecution. The noted a limitation on the inferences that may properly Board rejected the argument that because the procedure be made from the fact of improved or changed general could not be repeated, no fear of future persecution conditions: existed. Noting that Congress had specifically amended the definition of a refugee to account for victims of [E]vidence of changed country conditions coercive population control policies, the Board stated that can successfully rebut an alien’s fear “[c]oerced sterilization is better viewed as a permanent of future persecution based on past and continuing act of persecution that has deprived a persecution only if that evidence addresses couple of the natural fruits of conjugal life, and the society the specific basis for the alien’s fear of future and comfort of the child or children that might eventually persecution; generalized improvements have been born to them.” Id. at 607. The Board has in country conditions will not suffice as not been as absolute with respect to the occurrence of rebuttals to credible testimony and other FGM. Initially, the Board held that a woman who had evidence establishing past persecution. already been subjected to FGM could not establish a well- founded fear of persecution based on FGM because the Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004). procedure had already occurred. Matter of A-T-, 24 I&N Dec. 296 (BIA 2007). However, in Matter of A-T-, 24 Other cases illustrate this point as well. In Passi v. I&N Dec. 617 (A.G. 2008), the Attorney General found Mukasey, 535 F.3d 98, a citizen of the Republic of Congo error with “the Board’s legal conclusion that the past established persecution by a militia loyal to Congo’s infliction of female genital mutilation by itself rebuts” the former president on the basis of his ethnicity and imputed presumption of future persecution. The Board recently political opinion. The Board found that the presumption remanded the case for further proceedings under the of future persecution was rebutted based on a DOS Attorney General’s decision. Matter of A-T-, 25 I&N country report that noted the end of civil unrest. That Dec. 4 (BIA 2009). Circuit courts have also faulted the same report, however, indicated that the exact militia original Matter of A-T- presumption that FGM can only that had persecuted him now controlled Congo, and the occur once and have refused to find that the occurrence

14 of FGM rebuts the presumption of future persecution. of an appreciable portion of asylum claims.” Passi, 535 See, e.g., Bah v. Mukasey, 529 F.3d 99, 111 (2d Cir. 2008) F.3d at 103. But see Banks v. Gonzales, 453 F.3d 449, 453 (holding that “under the governing regulations the fact (7th Cir. 2006) (warning that “[a]n IJ is not an expert that an applicant has undergone female genital mutilation on conditions in any given country, and a priori views in the past cannot, in and of itself, be used to rebut the about how authoritarian regimes conduct themselves are presumption that her life or freedom will be threatened no substitute for evidence”). in the future”); Hassan v. Gonzales, 484 F.3d 513 (8th Cir. 2007). Based on these cases, the occurrence of a Conclusion seemingly one-time persecutory act likely does not, by itself, negate the asylum applicant’s well-founded fear of The preceding overview clarifies the requirements future persecution. of each of the three statutory provisions related to changed circumstances and changed country conditions. As noted The review of case law reveals a conflict in the role above, the following framework applies. First, with Immigration Judges should play in assessing the impact of respect to untimely asylum applications, the applicant changed conditions. The Second Circuit has loosened the must establish a material change in circumstances related rule that an Immigration Judge must make particularized to the asylum claim. Second, applicants filing untimely findings as to fundamental changes in a specific asylum motions to reopen face a higher burden, as they have applicant’s country of nationality for frequently asserted to show changed country conditions, as opposed to the asylum claims and has stated that a “robotic incantation” broader “changed circumstances” standard. Finally, in of changes within the country is not required. Hoxhallari cases where the asylum applicant has established past v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006). There, persecution, the DHS bears the burden of establishing the the court held that where “changed conditions evidently occurrence of a fundamental change in circumstances that prevail in a country that is the subject of an appreciable affects the applicant’s well-founded fear of persecution. proportion of asylum claims (and, as a result, we can In general, this requires a particularized finding as to how safely assume that IJs have developed considerable any changed circumstance affects the individual asylum expertise related to that country’s current conditions), applicant’s specific fear of return, rather than a reliance on an immigration judge need not enter specific findings general statements in a DOS country report of improved premised on record evidence when making a finding of conditions, especially if the applicant has introduced changed country conditions under the INA.” Id. The evidence that contradicts the DOS country report. Second Circuit later noted, however, that this easing of the requirements for particularized findings is not appropriate Dina Sewell Finkel is an Attorney Advisor in the Office of the when the change in conditions is not dramatic and there Chief Immigration Judge. is no indication that the country involved “is the source

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