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Lesson Plan Overview Participant Workbook Lesson Plan Overview Course Asylum Officer Basic Training Lesson Asylum Eligibility Part IV: Burden of Proof, Standards of Proof, and Evidence Rev. Date September 14, 2006 Lesson Description This lesson describes the various standards of proof that are required in adjudicating affirmative asylum and credible fear cases. The lesson also explains the operation of the burden of proof in the affirmative asylum process. Field Performance Given a request for asylum to adjudicate, the asylum officer will Objective correctly apply the law to determine eligibility for asylum in the United States. Academy Training Given written and roleplay scenarios, trainees will correctly identify Performance Objectives which party bears the burden of proof and what standard of proof is required, and apply the law appropriately to determine eligibility for asylum in the United States. Interim (Training) 1. Distinguish the applicant’s burden of proof from the standards of Performance Objectives proof necessary to establish eligibility for asylum. 2. Identify the applicant’s burden of proof to establish eligibility to apply for asylum. 3. Identify applicant’s burden of proof to establish eligibility for asylum. 4. Identify types of evidence that may establish eligibility for asylum. 5. Identify DHS’s burden of proof in asylum adjudication. Instructional Methods Lecture, Discussion Student References Participant Workbook Method of Evaluation Observed Lab exercise with critique from evaluator, practical exercise exam, Written test US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION ASYLUM OFFICER BASIC TRAINING COURSE SEPTEMBER 14, 2006 ELIGIBILITY PART IV: BURDEN OF PROOF, STANDARDS OF PROOF, AND EVIDENCE AILA Doc. No. 19110711. (Posted 11/7/19) 1 Participant Workbook CRITICAL TASKS SOURCE: Asylum Officer Validation of Basic Training Final Report (Phase One), Oct. 2001 Task/ Task Description Skill # 001 Read and apply all relevant laws, regulations, procedures, and policy guidance. 003 Adjudicate Application for Asylum and for Withholding of Removal (I-589). 019 Request/accept additional evidence. SS 8 Ability to read and interpret statutes, precedent decisions and regulations. US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION ASYLUM OFFICER BASIC TRAINING COURSE SEPTEMBER 14, 2006 ELIGIBILITY PART IV: BURDEN OF PROOF, STANDARDS OF PROOF, AND EVIDENCE AILA Doc. No. 19110711. (Posted 11/7/19) 2 Participant Workbook TABLE OF CONTENTS I. INTRODUCTION.......................................................................................................................... 4 II. BURDEN OF PROOF.................................................................................................................... 4 A. Definition ................................................................................................................................. 4 B. Special Consideration for Burden of Proof Requirements in the Asylum Context ................. 5 C. Applicant's Burden................................................................................................................... 5 D. Burden Shifts to DHS .............................................................................................................. 9 III. STANDARDS OF PROOF – COMPARISON .......................................................................... 10 A. Preponderance of the Evidence.............................................................................................. 11 B. Well-Founded Fear (Asylum) and Reasonable Fear (Screening for Withholding of Removal Eligibility).............................................................................................................................. 11 C. “More Likely Than Not” (Withholding of Removal)............................................................ 12 D. Credible Fear (Expedited Removal) ...................................................................................... 13 E. Clear and Convincing Evidence (Filed Within One-Year Period) ........................................ 14 F. “To the Satisfaction of the Attorney General” (Exceptions to Certain Filing Requirements)14 IV. EVIDENCE................................................................................................................................... 15 A. Testimonial Evidence............................................................................................................ 16 B. Documentary Evidence.......................................................................................................... 17 C. Administrative Notice............................................................................................................ 20 D. Asylum Officer's Personal Opinions...................................................................................... 20 V. CORROBORATION ...................................................................................................................21 A. General Country Conditions Information.............................................................................. 22 B. Documentary Evidence Specific to the Applicant................................................................. 23 VI. SUMMARY................................................................................................................................... 32 US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION ASYLUM OFFICER BASIC TRAINING COURSE SEPTEMBER 14, 2006 ELIGIBILITY PART IV: BURDEN OF PROOF, STANDARDS OF PROOF, AND EVIDENCE AILA Doc. No. 19110711. (Posted 11/7/19) 3 Participant Workbook Presentation References I. INTRODUCTION This lesson plan provides guidance on an asylum applicant’s burden of proof, the Department of Homeland Security’s (DHS) burden of proof, and evidence that may be considered in evaluating eligibility for asylum in the affirmative asylum program. This lesson plan also discusses the various standards of proof asylum officers apply in adjudicating asylum applications and compares those standards with standards of proof applicable to other adjudications that asylum officers perform. II. BURDEN OF PROOF A. Definition “Burden of proof” has been defined as “the necessity or duty of Black’s Law Dictionary, 178 affirmatively proving a fact or facts in dispute in an issue raised (5th ed. 1979) between the parties in a cause.” In the asylum context, the “dispute” in issue is whether the applicant is eligible for asylum. The “parties” are the applicant and DHS. The applicant has the obligation to provide enough evidence to establish eligibility for asylum. The asylum officer is in the unique position of being both a representative of one of the parties (DHS) and the adjudicator. How this plays out in the affirmative asylum process is discussed further below. Burdens of production and persuasion: The phrase “burden of proof” comprises two separate and Graham C. Lilly, An distinct responsibilities of parties to an adjudication: the “burden Introduction to the Law of of production” and the “burden of persuasion.” In the asylum Evidence, 3rd ed., § 3.1 context, this means that the party who bears the burden of proof (1996). bears the burden to produce evidence with regard to the issue at hand, as well as the burden to persuade the adjudicator of argument being made. In addition, given the unique non- adversarial nature of the asylum adjudication, the asylum officer has a duty to develop a complete record of facts through eliciting testimony and researching country conditions. US CITIZENSHIP AND IMMIGRATION SERVICES – RAIO – ASYLUM DIVISION ASYLUM OFFICER BASIC TRAINING COURSE SEPTEMBER 14, 2006 ELIGIBILITY PART IV: BURDEN OF PROOF, STANDARDS OF PROOF, AND EVIDENCE AILA Doc. No. 19110711. (Posted 11/7/19) 4 Participant Workbook B. Special Consideration for Burden of Proof Requirements in the Asylum Context The Board of Immigration Appeals (BIA) has recognized that, Matter of S-M-J-, 21 I&N although the burden of proof is on the applicant, a “cooperative Dec. 722 (BIA 1997) approach” is required in adjudicating asylum requests. The BIA explained that this is because the BIA, IJ’s, and DHS “all bear the responsibility of ensuring that refugee protection is provided where such protection is warranted by the circumstances of an asylum applicant’s claim.” Although the applicant bears the burden of proof to establish 8 C.F.R. § 208.9(b); Matter eligibility for asylum, the asylum officer has an affirmative duty of S-M-J-, 21 I&N Dec. 722 (BIA 1997);UNHCR to elicit sufficient information and to research country conditions Handbook, paras 196 and information to properly evaluate whether the applicant is eligible 205(b)(i). See also lessons, for protection. Interviewing Part III, Eliciting Testimony; and Country Conditions Research and the Resource Information Center (RIC). C. Applicant's Burden The burden of proof is on the applicant to establish that he or she INA §§ 208(a)(2); (1) is eligible to apply for asylum, (2) is a refugee within the (b)(1)(B)(i); (b)(2)(A); 8 meaning of section 101(a)(42)(A) of the Act, and (3) merits C.F.R. 208.13(a); 1240.8(d). asylum as a matter of discretion. Furthermore, if the evidence indicates that a ground for mandatory denial of asylum applies, the applicant shoulders the additional burden of demonstrating that the bar to asylum does not apply (i.e., that he or she is eligible to receive asylum). 1. “The testimony of the applicant may be sufficient to sustain INA § 208(b)(1)(B)(ii), as the applicant’s burden
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