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[Federal Register: December 7, 2000 (Volume 65, Number 236)]
[Proposed Rules]               
[Page 76588-76598]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de00-16]                         

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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 208

[INS No. 2092-00; AG Order No. 2339-2000]

RIN 1115-AF92

 
Asylum and Withholding Definitions

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service (Service) regulations that govern establishing asylum and 
withholding eligibility. This rule provides guidance on the definitions 
of ``persecution'' and ``membership in a particular social group,'' as 
well as what it means for persecution to be ``on account of'' a 
protected characteristic in the definition of a refugee. It restates 
that gender can form the basis of a particular social group. It also 
establishes principles for interpretation and application of the 
various components of the statutory definition of ``refugee'' for 
asylum and withholding cases generally, and, in particular, will aid in 
the assessment of claims made by applicants who have suffered or fear 
domestic violence. The Service believes these issues require further 
examination after the Board of Immigration Appeals (Board) decision in 
In re R-A-, Interim Decision 3403 (BIA 1999). Further, the rule 
clarifies that the factors considered in cases in the Court of Appeals 
for the Ninth Circuit regarding membership in a particular social group 
are not determinative. Finally, the rule clarifies procedural handling 
of asylum and withholding claims in which past persecution has been 
established. This proposed rule has been prepared and is published in 
conjunction with the final rule on asylum procedures, which 
incorporates both the interim rule amending the Department of Justice 
(Department) regulations to implement the Illegal Immigration Reform 
and Immigrant Responsibility Act, 62 FR 10312 (1997), and the proposed 
past persecution rule, 63 FR 31945 (1998).

DATES: Written comments must be submitted on or before January 22, 
2001.

ADDRESSES: Please submit written comments in triplicate to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 
20536. To ensure proper handling, please reference INS No. 2092-00 on 
your correspondence. Comments are available for public inspection at 
the above address by calling (202) 514-3048 to arrange for an 
appointment.

FOR FURTHER INFORMATION CONTACT: Dorothea Lay, 425 I Street, NW, 
Washington, D.C. 20536, telephone number (202) 514-2895.

SUPPLEMENTARY INFORMATION:

Background

    The purpose of this rule is to provide guidance on certain issues 
that have arisen in the context of asylum and withholding 
adjudications. The 1951 Geneva Convention relating to the Status of 
Refugees (1951 Convention) contains the internationally accepted 
definition of a refugee. United States immigration law incorporates an 
almost identical definition of a refugee as a person outside his or her 
country of origin ``who is unable or unwilling to return to, and is 
unable or unwilling to avail himself or herself of the protection of, 
that country because of persecution or a well-founded fear of 
persecution on account of race, religion, nationality,

[[Page 76589]]

membership in a particular social group, or political opinion.'' 
Section 101(a)(42) of the Immigration and Nationality Act (Act) (8 
U.S.C. 1101(a)(42)). (The definition was amended by section 601 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 
Pub. L. 104-208, Div. C, 110 Stat. 3009, to include a provision on 
coercive family planning practices.) In order to establish eligibility 
for a discretionary grant of asylum under section 208 of the Act, 8 
U.S.C. 1158, an alien must meet the definition of ``refugee'' under 
section 101(a)(42) of the Act. To qualify for withholding of removal 
under section 241(b)(3) of the Act, an alien must meet a higher burden 
of proof: That it is more likely than not that the alien would be 
persecuted on account of one of the five grounds listed within the 
definition of ``refugee.'' 8 U.S.C. 1231.
    A sizable body of interpretive case law has developed about the 
meaning of the refugee definition. Historically, much of this case law 
has addressed more traditional asylum and withholding claims based on 
an applicant's political opinion. In recent years, however, the United 
States increasingly has encountered asylum and withholding applications 
with more varied bases, related, for example, to an applicant's gender 
or sexual orientation. Many of these new types of claims are based on 
the ground of ``membership in a particular social group,'' which is the 
least well-defined of the five grounds within the refugee definition. 
As the Court of Appeals for the Seventh Circuit noted in Lwin v. INS, 
``[t]he legislative history behind the term * * * is uninformative, and 
judicial and agency interpretations are vague and sometimes divergent. 
As a result, courts have applied the term reluctantly and 
inconsistently.'' 144 F.3d 505, 510 (7th Cir. 1998).
    Some of these cases have raised difficult analytical questions 
about the interpretation of the refugee definition, questions that have 
not always been addressed consistently through the administrative 
adjudication and judicial review process. This rule sets out a number 
of generally applicable principles to promote uniform interpretation of 
the relevant statutory provisions. Though applicable to all asylum and 
withholding cases, these principles are also designed to provide 
guidance for the resolution of novel issues in some of the asylum and 
withholding claims that the Department has encountered in recent years.
    One of these novel issues is the extent to which victims of 
domestic violence may be considered to have been persecuted under the 
asylum laws. The Board considered and rejected such a persecution claim 
in its decision in In re R-A-. This proposed rule removes certain 
barriers that the In re R-A- decision seems to pose to claims that 
domestic violence, against which a government is either unwilling or 
unable to provide protection, rises to the level of persecution of a 
person on account of membership in a particular social group. The 
proposed rule does not specify how a claim of persecution based on 
domestic violence should be fashioned--in particular, it does not set 
forth what the precise characteristics of the particular social group 
might be. The Department has taken this approach in part because it 
recognizes that the way in which a victim of domestic violence who 
believes she has been persecuted may characterize the particular social 
group of which she is a member likely will vary depending upon the 
social context in her country. The Department also recognizes that 
whether domestic violence can be so characterized in a given case will 
turn on difficult and subtle evaluations of particular facts. Given 
these realities, it seems ill-advised to try to establish a universal 
model for persecution claims based on domestic violence. The Department 
has instead decided to propose a rule that states generally applicable 
principles that will allow for case-by-case adjudication of claims 
based on domestic violence or other serious harm inflicted by 
individual non-state actors.
    The Department solicits comments both on the questions that we have 
left open and on whether the Department should seek to provide more 
direct guidance to adjudicators and the public on their resolution. We 
expect the questions addressed during the comment period would include: 
How persecution claims based on domestic violence might be 
conceptualized and evaluated within the framework of asylum law; how 
asylum officers, immigration judges, and the Board should determine 
whether a particular victim of domestic violence (or other acts of 
persecution by an individual non-state actor) has suffered this 
treatment ``on account of'' membership in a particular social group 
(e.g., gender or status of being in a domestic relationship); and 
whether, in view of the fact that claims based on harm inflicted by 
individual non-state actors are relatively new in the United States, 
such claims raise distinct issues concerning statutory eligibility or 
the exercise of discretion in granting asylum.

The Meaning of Persecution

    A fundamental question in any asylum or withholding adjudication is 
whether the harm that an applicant has suffered or fears amounts to 
persecution. Neither the 1951 Convention nor the Refugee Act of 1980 
defines ``persecution.'' Two years before enacting the Refugee Act, 
Congress specifically debated whether to include a definition of 
``persecution'' in the Act in the related context of a bill that 
eventually added the deportation ground aimed at Nazi persecutors (now 
section 241(a)(4)(D) of the Act). Congress rejected adding a definition 
of ``persecution'' to the immigration laws, concluding that the meaning 
of the term was well-established by administrative and court decisions 
and meant ``the infliction of suffering or harm, under government 
sanction, upon persons who differ in a way regarded as offensive (e.g., 
race, religion, political opinion, etc.), in a manner condemned by 
civilized governments. The harm or suffering need not be physical, but 
may take other forms, such as the deliberate imposition of severe 
economic disadvantage or the deprivation of liberty, food, housing, 
employment or other essentials of life.'' H.R. Rep. 95-1452 at 5 
(1978).
    The Board adopted this meaning as well. Matter of Acosta, 19 I. & 
N. Dec. 211, 220 (BIA 1985), modified on other grounds, Matter of 
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The courts, too, generally 
have accepted this definition, describing ``persecution'' as `` `the 
infliction of suffering or harm upon those who differ (in race, 
religion or political opinion) in a way regarded as offensive.'' ' 
Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir. 1999) (quoting 
Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998)); accord Miranda 
v. INS, 139 F.3d 624, 626 (8th Cir. 1998); Fisher v. INS, 79 F.3d 955, 
961 (9th Cir. 1996) (en banc); Abdel-Maieh v. INS, 73 F.3d 579, 583 
(5th Cir. 1996); Schellong v. INS, 805 F.2d 655, 661-62 (7th Cir. 
1986). This definition recognizes that ``persecution is an extreme 
concept that does not include every sort of treatment our society 
regards as offensive.'' Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 
1993); see also Bastanipour v. INS, 980 F.2d 1129, 1133 (7th Cir. 1992) 
(distinguishing persecution ``as distinct from mere discrimination or 
harassment''). These cases sometimes defined ``persecution'' as 
including other, separate elements of the ``refugee'' definition, such 
as the requirement that the persecution be ``on account of'' a 
protected characteristic. This rule is intended to provide

[[Page 76590]]

guidance on the meaning of persecution, to clarify that persecution 
includes objective and subjective components, as well as an analysis of 
state action or state inability or unwillingness to protect.
    It has sometimes been suggested that persecution entails a 
subjective intent on the part of the persecutor to ``inflict harm'' or 
``punish'' the victim. In Matter of Acosta, the Board found that, to be 
persecution, the harm or suffering must be inflicted upon an individual 
in order to punish. Some circuits have followed this early approach to 
defining persecution. See, e.g., Osaghae v. INS, 942 F.2d 1160, 1163 
(7th Cir. 1991) (`` `Persecution' means, in immigration law, punishment 
for political, religious, or other reasons that our country does not 
recognize as legitimate.''). Certainly, in more traditional claims 
involving political persecution, such a ``punitive'' or ``malignant'' 
intent to visit harm upon the victim is usually present. In recent 
years, however, applicants have successfully presented novel claims in 
which the claimed persecution is not necessarily inflicted with the 
subjective intent to cause harm. In 1996, for example, the Board 
decided that a young woman from Togo qualified for asylum based on her 
fear of being subjected to female genital mutilation (FGM). Matter of 
Kasinga, 21 I. & N. Dec. 357 (BIA 1996) (en banc). This case squarely 
raised the question whether a subjective intent to harm the victim is a 
necessary component of an asylum or withholding claim, because, 
presumably, most practitioners of FGM believe that they are performing 
an important cultural rite that bonds the individual to society, not 
that they are punishing or harming the victim. In Matter of Kasinga, 
the Board held that a ``subjective `punitive' or `malignant' intent is 
not required for harm to constitute persecution.'' Id. at 365.
    In its 1997 decision in Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 
1997), the Ninth Circuit further advanced this concept. In that case, a 
lesbian woman claimed that she had been forced to undergo psychiatric 
treatments and threatened with institutionalization in the 1980s by 
officials of the Soviet Union in an effort to change her sexual 
orientation. The Board held that the psychiatric measures taken by the 
officials did not constitute persecution because they were intended to 
``cure'' her, not to punish her. On review, the Ninth Circuit reversed 
this portion of the Board's decision, and remanded the case for further 
consideration of other aspects of the case.\1\ The Ninth Circuit, 
citing Matter of Kasinga, decided by the Board after the Board's 
decision in Pitcherskaia, concluded that an intent to harm or punish is 
not required for persecution to exist, and that the ``definition of 
persecution is objective, in that it turns not on the subjective intent 
of the persecutor but rather on what a reasonable person would deem 
`offensive.' '' Pitcherskaia, 118 F.3d at 646.
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    \1\ Pitcherskaia was remanded to the immigration court, where 
the case is currently pending.
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    This rule addresses the definition of persecution by clarifying 
that it includes both objective and subjective elements. First, the 
proposed rule defines persecution in Sec. 208.15(a) as ``the infliction 
of objectively serious harm or suffering.'' This general definition 
does not diminish the level of harm that has been recognized by the 
Board and generally sustained by the Courts of Appeals as sufficiently 
serious to constitute persecution. The definition does not preclude 
reference to other sources for guidance on what type of harm can 
constitute persecution. See, e.g., United Nations High Commissioner for 
Refugees, Handbook on Procedures and Criteria for Determining Refugee 
Status (UNHCR Handbook), para. 51 (re-edited 1992) (``From Article 33 
of the 1951 Convention it may be inferred that a threat to life or 
freedom on account of race, religion, nationality, political opinion or 
membership of a particular social group is always persecution. Other 
serious violations of human rights--for the same reasons--would also 
constitute persecution.''). This proposed language in Sec. 208.15(a), 
consistent with the Ninth Circuit's approach in Pitcherskaia, imposes 
an objective standard on the concept of persecution by requiring that 
the harm must be recognizable as serious harm. Generally, persecution 
cannot be established simply upon a showing of discrimination, 
harassment, or the denial of equal protection of the laws. Guided by 
existing case law, the decision-maker will deduce from the nature of 
the claim whether or not the harm is serious enough to constitute 
persecution.
    The proposed language also provides that harm is persecution only 
if it is ``experienced as serious harm by the applicant, regardless of 
whether the persecutor intends to cause harm.'' The Department believes 
that it is appropriate to codify an interpretation that is drawn from 
the conclusion reached by both the Board in Kasinga and the Ninth 
Circuit in Pitcherskaia: that the existence of persecution does not 
require a ``malignant'' or ``punitive'' intent on the part of the 
persecutor. At the same time, the Department believes that it is 
necessary to emphasize that the victim must experience the treatment as 
harm in order for persecution to exist. For example, there are many 
women from cultures that practice FGM who view the process positively 
and believe that they are acting in the victim's best interests, even 
as the victim experiences the action as harmful. For the purpose of 
asylum and withholding adjudications, a key question is whether the 
applicant at hand would experience or has experienced the procedure as 
serious harm, not whether the perpetrator means it as punitive. 
Generally, an applicant's own testimony would be the best evidence in 
determining whether that applicant subjectively experienced or would 
experience the treatment as harm.

State Action Requirement

    Inherent in the meaning of persecution is the long-standing 
principle that the harm or suffering that an applicant experienced or 
fears must be inflicted by either the government of the country where 
the applicant fears persecution, or a person or group that government 
is unable or unwilling to control. See, e.g., Matter of Villalta, 20 I. 
& N. Dec. 142, 147 (BIA 1990); Matter of H-, 21 I. & N. Dec. 337 (BIA 
1996); Matter of Kasinga, supra; Matter of Acosta, supra. This is also 
consistent with the understanding of Congress two years before the 
Refugee Act was passed that ``persecution'' is ``the infliction of 
suffering or harm, under government sanction,'' H.R. Rep. 95-1452 at 5, 
and with the position of UNHCR and Convention-based interpretations of 
the meaning of persecution. See UNHCR Handbook, para. 65.\2\
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    \2\ ``Persecution is normally related to action by the 
authorities of a country. It may also emanate from sections of the 
population that do not respect the standards established by the laws 
of the country concerned. A case in point may be religious 
intolerance, amounting to persecution, in a country otherwise 
secular, but where sizeable fractions of the population do not 
respect the religious beliefs of their neighbours. Where serious 
discriminatory or other offensive acts are committed by the local 
populace, they can be considered as persecution if they are 
knowingly tolerated by the authorities, or if the authorities 
refuse, or prove unable, to offer effective protection.''
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    U.S. court and administrative decisions have looked to a variety of 
factors in considering the requirement that an applicant must show that 
the harm or suffering is inflicted by the government or a person or 
group the government is ``unable or unwilling to control.'' Courts have 
concluded the government is ``unable or unwilling to

[[Page 76591]]

control'' the infliction of harm or suffering if the applicant has 
shown a pattern of government unresponsiveness. See Mgoian v. INS, 184 
F.3d 1029, 1036-37 (9th Cir. 1999). Both courts and the Board have also 
looked to whether an applicant has shown government complicity in the 
face of persecution. See Korablina, 158 F.3d at 1045. Courts have often 
considered the applicant's attempts to obtain protection from 
government officials and the government response or lack thereof. See 
Surita v. INS, 95 F.3d 814, 819-20 (9th Cir. 1996) (finding persecution 
where the police refused to respond to the applicant's request for 
assistance or provide a reasonable explanation for their failure to 
respond); Singh v. INS, 134 F.3d 962, 968 (9th Cir. 1998) (holding that 
the applicant failed to establish persecution, in part because the 
police responded to her call even though police took no further 
action). In the recent case of In re S-A-, Interim Decision 3433 (BIA 
2000), the Board considered the applicant's testimony and country 
conditions information in concluding that any attempts by the applicant 
to seek protection would be futile and potentially dangerous. Other 
Board decisions illustrate the relevance of government responses to 
persecution by non-state actors. See, e.g., Matter of V-T-S-, 21 I. & 
N. Dec. 792 (holding that the record did not support claim that the 
government was unable or unwilling to protect when evidence indicated 
that the government mounted massive rescue efforts to find kidnapped 
family members); In re O-Z- & I-Z-, Interim Decision 3346 (BIA 1998) 
(finding that the government was unable or unwilling to control the 
respondent's attackers and protect him or his son from the anti-Semitic 
acts of violence when the respondent reported at least three incidents 
of harm to the Ukrainian government, which took no action beyond 
writing a report). The UNHCR Handbook emphasizes that the inability to 
seek government protection may arise from circumstances beyond the 
applicant's control, such as grave disruptions within the country, or 
may result from a denial of protection to the applicant. UNHCR 
Handbook, para. 98. When assessing whether a government has denied 
protection, one factor to consider is whether the applicant has been 
denied services (e.g., refusal of a national passport) normally 
accorded to other nationals of that country. UNHCR Handbook, para. 99.
    Section 208.15(a)(1) of this rule provides further guidance as to 
what is meant by the state action requirement and, specifically, the 
requirement that the government be ``unable or unwilling to control'' 
non-government persecutors. The proposed rule states that ``[i]n 
evaluating whether a government is unwilling or unable to control the 
infliction of harm or suffering, the immigration judge or asylum 
officer should consider whether the government takes reasonable steps 
to control the infliction of harm or suffering and whether the 
applicant has reasonable access to the state protection that exists.'' 
The rule goes on to provide a non-exclusive list of evidentiary 
considerations that may be considered as helpful in determining whether 
a government is ``unable or unwilling'' to control the non-state actor. 
This new language codifies existing administrative interpretations and 
provides further guidance on this relatively undeveloped area of the 
law. This proposed list of evidentiary considerations is not intended 
to change the law, but merely to illustrate what types of evidence may 
be relevant in evaluating whether a government is unable or unwilling 
to control the infliction of suffering or harm. Of course, no 
government is able to guarantee the safety of each of its citizens at 
all times. This is not the standard for determining that a government 
is ``unable or unwilling to control'' the infliction of harm or 
suffering. See, e.g., Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir. 
1999) (``Although action by non-governmental entities can constitute 
persecution, the law requires at least some showing that the alleged 
persecutors are not subject to the government's control.'') (citations 
omitted). Rather, the decision-maker should consider the government's 
policies with respect to the harm or suffering at issue, and what 
steps, if any, the government has taken to prevent the infliction of 
such harm or suffering. In addition, the decision-maker should consider 
what kind of access the individual applicant has to whatever protection 
is available, and any steps the applicant has taken to seek such 
protection. Any attempts by an applicant to seek protection within the 
country of persecution are relevant but are not determinative of the 
state's inability or unwillingness to control the infliction of 
suffering or harm. An applicant's failure to attempt to gain access to 
protection is not in itself determinative of the state's inability or 
unwillingness to control nor does this failure bar an applicant from 
establishing by other evidence the state's inability or unwillingness 
to control the infliction of suffering or harm. The adequacy of access 
to protection may vary within a given society depending on the 
individual applicant's circumstances and general country conditions. 
For example, in some countries, there generally may be reasonable 
access to state protection, but an applicant's access to such 
protection may be limited if the persecutor is influential with 
government officials. As another example, in some countries a female 
victim of spousal abuse may be able to obtain state protection if she 
has the support of her family of origin in seeking it, but her access 
to such protection may be more limited without such support. In each 
case, all factors relevant to the availability of and access to state 
protection should be examined in determining whether the government of 
the country in question is unwilling or unable to protect the applicant 
from a non-state persecutor. It is the applicant's burden to come 
forward with the evidence that the harm or suffering is inflicted by 
the government, or an entity that the government is unable or unwilling 
to control.

The ``on account of'' Requirement in General

    Even if it is determined that the harm an applicant has suffered or 
fears may constitute persecution, the applicant may qualify for asylum 
or withholding only if that persecution is inflicted ``on account of'' 
the applicant's race, religion, nationality, membership in a particular 
social group, or political opinion. The Supreme Court has held that, in 
order for persecution to be ``on account of'' one of these protected 
grounds, there must be evidence that the persecutor seeks to harm the 
victim on account of the victim's possession of the characteristic at 
issue. INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). As 
administrative decision-makers and the courts have applied this test to 
individual cases, the determination about when persecution is inflicted 
``on account of'' a protected ground has raised difficult interpretive 
issues. This rule provides guidance on several of these issues.
    Under long-standing principles of U.S. refugee law, it is not 
necessary for an applicant to show that his or her possession of a 
protected characteristic is the sole reason that the persecutor seeks 
to harm him or her. Both the Board and the federal courts have 
recognized that a persecutor may have mixed motivations, and have 
stated that the ``on account of'' requirement is satisfied if the 
persecutor acts ``at least in part'' because of a protected 
characteristic. See, e.g., Matter of T-M-B-, 21 I. & N. Dec. 775 (BIA 
1997), overruled on other grounds sub nom.

[[Page 76592]]

Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc). Some court 
decisions provide conflicting interpretations of the extent to which 
the persecutor's motivation must relate to a protected characteristic. 
Compare Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) (``[T]he 
BIA failed to recognize that persecutory conduct may have more than one 
motive, and so long as one motive is one of the statutorily enumerated 
grounds, the requirements have been satisfied.''); with Gebremichael v. 
INS, 10 F.3d 28, 35 (1st Cir. 1993) (alien must show that one of the 
five characteristics is ``at the root of persecution, such that [the 
characteristic] itself generates a 'specific threat to the 
[applicant]'') (internal quotations and citation omitted). This rule 
proposes new language at Sec. 208.15(b) that would require an applicant 
to show that the protected characteristic is central to the 
persecutor's motivation to act. Consistent with current law, this 
language allows for the possibility that a persecutor may have mixed 
motives. It does not require that the persecutor be motivated solely by 
the victim's possession of a protected characteristic. It does, 
however, require that the victim's protected characteristic be central 
to the persecutor's decision to act against the victim. For example, 
under this definition it clearly would not be sufficient if the 
protected characteristic was incidental or tangential to the 
persecutor's motivation.
    A refugee is traditionally an individual as to whom the bonds of 
trust, loyalty, protection, and assistance existing between a citizen 
and his country have been broken and have been replaced by the 
relationship of an oppressor to a victim. Inherent in the concept of 
refugee status is the principle that an individual requires 
international protection because his country of origin or of habitual 
residence is not safe for him, or cannot protect him, because of 
persecution on account of one of the five grounds specified in the 
definition of ``refugee.'' See, e.g., Matter of Acosta, 19 I. & N. Dec. 
at 234-35; 1 A. Grahl-Madsen, The Status of Refugees In International 
Law 97, 100 (1966). The proposed language that the protected 
characteristic of the refugee be central to the persecutor's motivation 
is thus supported by the purposes of the 1951 Convention.
    The proposed language also incorporates the doctrine of ``imputed 
political opinion'' into the regulation. Under this doctrine, an 
applicant may establish persecution on account of political opinion if 
he or she can show that the persecutor was or is inclined to persecute 
because the persecutor perceives the applicant to possess a particular 
political opinion, even if the applicant does not in fact possess such 
an opinion. See, e.g., Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 
1997). The proposed language provides that an applicant may satisfy the 
``on account of'' requirement by showing that the persecutor acts 
against him or her ``on account of the applicant's race, religion, 
nationality, membership in a particular social group, or political 
opinion, or on account of what the persecutor perceives to be the 
applicant's race, religion, nationality, membership in a particular 
social group, or political opinion.'' Thus, this language codifies the 
existing doctrine of imputed political opinion, as well as the existing 
administrative interpretation that this doctrine also extends to the 
protected grounds other than political opinion.

In re R-A-

    The proposed new language in Sec. 208.15(b) is intended to address 
analytical issues that have arisen in the context of some claims based 
on domestic violence, and in particular in the Board's decision in In 
re R-A-, Interim Decision 3403 (BIA 1999). In that case, the Board 
denied asylum to a Guatemalan woman who had been the victim of severe 
domestic violence by her husband in Guatemala and who feared that she 
would be at risk of continuing violence if she returned there. Certain 
elements of the Board's analysis in this case affect the ``on account 
of'' inquiry in asylum and withholding cases in general, and the 
``particular social group'' cases especially. This rule sets forth a 
modified statement of the principles governing the ``on account of'' 
inquiry.
    The applicant in In re R-A- presented alternative claims of 
persecution on account of political opinion (the applicant's opposition 
to male domination) and on account of membership in a particular social 
group (defined as ``Guatemalan women who have been intimately involved 
with Guatemalan male companions, who believe that women are to live 
under male domination''). Id. at 10-14. The Board found that the 
applicant's husband did not seek to harm her either on account of her 
political opinion or on account of her membership in a particular 
social group. Id. at 14.
    The Board's analysis of the political opinion claim is consistent 
with long-standing principles of asylum law and is not altered by this 
rule. The Board reasoned that the abuse in this case was not on account 
of the applicant's political opinion because there was no evidence that 
the applicant's husband was aware of the applicant's opposition to male 
dominance, or even that he cared what her opinions on this matter were. 
Rather, he continued to abuse her regardless of what she said or did. 
Id. at 13-14. This portion of the decision is consistent with the 
Supreme Court's reasoning in Elias-Zacarias, supra, and with the 
Board's own precedent that harm is not on account of political opinion 
when it is inflicted regardless of the victim's opinion rather than 
because of that opinion. See Matter of Chang, 20 I. & N. Dec. 38, 44-45 
(BIA 1989), superceded on other grounds, Matter of X-P-T-, 21 I. & N. 
Dec. 634 (BIA 1996).
    The Board's particular social group analysis in In re R-A-, 
however, requires some clarification. The Board found that the violence 
in this case was not ``on account of'' the applicant's membership in 
the particular social group asserted--essentially Guatemalan women 
intimately involved with abusive Guatemalan men.\3\ Id. at 17. The 
Service argued, and the Board agreed, that there was no indication that 
the applicant's husband would harm any other member of the asserted 
particular social group. In other words, there was no evidence that he 
would seek to harm other women who live with other abusive partners. 
Id. This was an important factor in the Board's decision that the harm 
in that case was not on account of membership in a particular social 
group. The Board did consider other factors in reaching its conclusion 
that no nexus had been shown between the husband's violence and the 
claimed particular social group. However, the Board's reasoning on this 
point could be construed to foreclose the possibility of satisfying the 
``on account of'' requirement when the persecutor does not seek to harm 
other members of the asserted particular social group.
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    \3\ To the extent that the asserted particular social group in 
In re R-A- could be interpreted to have been defined by the 
persecution feared, this rule clarifies below that a social group 
must exist independently of the feared persecution.
---------------------------------------------------------------------------

    As an evidentiary matter, it often would be reasonable to expect 
that a person who is motivated to harm a victim because of a 
characteristic the victim shares with others would be prone to harm or 
threaten others who share the targeted characteristic. Such a showing 
should not necessarily be required as a matter of law, however, in 
order for an applicant to satisfy the ``on account of'' requirement. In 
some cases, a persecutor may in fact target an individual victim 
because of a shared characteristic, even though the persecutor does not 
act against others

[[Page 76593]]

who possess the same characteristic. For example, in a society in which 
members of one race hold members of another race in slavery, that 
society may expect that a slave owner who beats his own slave would not 
beat the slave of his neighbor. It would nevertheless be reasonable to 
conclude that the beating is centrally motivated by the victim's race. 
Similarly, in some cases involving domestic violence, an applicant may 
be able to establish that the abuser is motivated to harm her because 
of her gender or because of her status in a domestic relationship. This 
may be a characteristic that she shares with other women in her 
society, some of whom are also at risk of harm from their partners on 
account of this shared characteristic. Thus, it may be possible in some 
cases for a victim of domestic violence to satisfy the ``on account 
of'' requirement, even though social limitations and other factors 
result in the abuser having the opportunity, and indeed the motivation, 
to harm only one of the women who share this characteristic, because 
only one of these women is in a domestic relationship with the abuser.
    To allow for this possibility, this rule provides that, when 
evaluating whether an applicant has met his or her burden of proof to 
establish that the harm he or she suffered or fears is ``on account 
of'' a protected characteristic, ``[b]oth direct and circumstantial 
evidence may be relevant to the inquiry.'' The rule further provides 
that ``[e]vidence that the persecutor seeks to act against other 
individuals who share the applicant's protected characteristic is 
relevant and may be considered but shall not be required.''
    In every asylum or withholding case, of course, it remains the 
applicant's burden to establish that the specific persecutor involved 
in her claim is motivated to act against her because of her possession 
or perceived possession of a protected characteristic. As this rule 
underscores, both direct and circumstantial evidence may be relevant to 
this determination. As in any asylum or withholding case, evidence 
about the persecutor's statements and actions will be considered. In 
addition, evidence about patterns of violence in the society against 
individuals similarly situated to the applicant may also be relevant to 
the ``on account of'' determination. For example, in the domestic 
violence context, an adjudicator would consider any evidence that the 
abuser uses violence to enforce power and control over the applicant 
because of the social status that a woman may acquire when she enters 
into a domestic relationship. This would include any direct evidence 
about the abuser's own actions, as well as any circumstantial evidence 
that such patterns of violence are (1) supported by the legal system or 
social norms in the country in question, and (2) reflect a prevalent 
belief within society, or within relevant segments of society, that 
cannot be deduced simply by evidence of random acts within that 
society. Such circumstantial evidence, in addition to direct evidence 
regarding the abuser's statements or actions, would be relevant to 
determining whether the abuser believes he has the authority to abuse 
and control the victim ``on account of'' her status in the 
relationship.
    Further, a claim involving domestic violence in which the applicant 
has satisfied the ``on account of'' requirement remains subject to the 
full range of generally applicable requirements under the asylum and 
withholding laws. For example, as in any other case, the fear of future 
abuse cannot be speculative, it must be ``well-founded.'' A woman who 
is not in an abusive relationship, for example, would not have a 
``well-founded'' fear of domestic violence even if there is a high 
incidence of domestic violence in her country of origin. The harm 
feared must be serious enough to constitute persecution; isolated 
incidents of discrimination or lesser forms of harm would not qualify 
as persecution. As in any asylum or withholding case in which the 
persecutor is not the state itself, the applicant would have to show 
that the state is unwilling or unable to protect her. Generally, an 
applicant's claim based on domestic violence will rest on personal 
experiences not addressed in general country conditions information. 
General country conditions information may, however, support such a 
claim. The applicant should come forward with testimony regarding her 
personal experience, and, if available, documentary evidence relating 
to her claim.
    This rule will also affect the analysis of asylum or withholding 
claims made by alleged abusers. A perpetrator of domestic violence 
serious enough to be persecution, who has abused the victim because of 
the victim's membership in a particular social group, would be barred 
from seeking asylum under section 101(a)(42) of the Act. 8 U.S.C. 
1101(a)(42). The Service will consider ways to identify these 
individuals. Of course, if removable, these individuals would normally 
be entitled to a full hearing prior to removal, during which all 
evidence relevant to eligibility could be presented and considered. 
This will allow the government to protect our asylees and residents 
against persecutors.

Membership in a Particular Social Group

    Once an applicant has established that the harm he or she has 
suffered or fears is ``on account of'' the characteristic asserted, the 
applicant must establish that the characteristic qualifies as race, 
religion, nationality, membership in a particular social group, or 
political opinion. Membership in a particular social group is perhaps 
the most complex and difficult to understand of these five grounds. 
There is relatively little precedent about the meaning of ``a 
particular social group,'' and that which exists has at times been 
subject to conflicting interpretations. This rule sets out the 
requirements for determining what qualifies as ``a particular social 
group,'' clarifies the relevance of past experience, and provides a 
list of non-determinative factors to be considered.
    The key Board decision on the meaning of ``a particular social 
group'' requires that members of the group share a ``common, 
immutable'' trait. Matter of Acosta, 19 I. & N. Dec. at 233. This rule 
codifies this basic approach at Sec. 208.15(C)(1), by providing that 
``[a] particular social group is composed of members who share a 
common, immutable characteristic, such as sex, color, kinship ties, or 
past experience, that a member either cannot change or that is so 
fundamental to the identity or conscience of the member that he or she 
should not be required to change it.'' The crucial aspect of this 
definition is that, to be immutable, the common trait must be 
unchangeable or truly fundamental to an applicant's identity. Gender is 
clearly such an immutable trait, is listed as such in Matter of Acosta, 
and is incorporated in this rule. Further, there may be circumstances 
in which an applicant's marital status could be considered immutable. 
This would be the case, for example, if a woman could not reasonably be 
expected to divorce because of religious, cultural, or legal 
constraints. Any intimate relationship, including marriage, could also 
be immutable if the evidence indicates that the relationship is one 
that the victim could not reasonably be expected to leave. Thus, this 
rule further provides in Sec. 208.15(C)(1) that ``[i]n determining 
whether an applicant cannot change, or should not be expected to 
change, the shared characteristic, all relevant evidence should be 
considered, including the applicant's individual circumstances and 
country conditions information about the applicant's society.''

[[Page 76594]]

    This rule also includes the principle that the particular social 
group in which an applicant claims membership cannot be defined by the 
harm which the applicant claims as persecution. It is well-established 
in the case law that this type of circular reasoning does not suffice 
to articulate a particular social group. See Gomez v. INS, 947 F.2d 
660, 664 (2d Cir. 1991) (rejecting the applicant's claim to membership 
in a particular social group of women who have been previously battered 
and raped by Salvadoran guerrillas). It is also supported by 
Convention-based understandings of the definition of membership in a 
particular social group. See, e.g., Islam v. Secretary of State for the 
Home Department, 2 App. Cas. 629 (H.L. 1999) (United Kingdom) (``It is 
common ground that there is a general principle that there can only be 
a `particular social group' if the group exists independently of the 
persecution'') (Lord Steyn).
    Proposed Sec. 208.15(c)(2) provides that, ``[w]hen past experience 
defines a particular social group, the past experience must be an 
experience that, at the time it occurred, the member either could not 
have changed or was so fundamental to his or her identity or conscience 
that he or she should not have been required to change it.'' This is 
consistent with current case law that recognizes that past experiences 
can be the basis for membership in a particular social group. See 
Matter of Fuentes, 19 I. & N. Dec. 658, 662 (BIA 1988). The regulatory 
language preserves the key requirement from Matter of Acosta, supra, 
that the trait defining a particular social group must be a fundamental 
one, which an individual should not be required to change. In reality, 
of course, no past experience can be changed, as it has already 
occurred. But not all past experiences should qualify as traits which, 
if shared by others, can define a particular social group for asylum 
and withholding purposes. The experience of joining a violent gang in 
the past, for example, cannot be changed. At that point in the past, 
however, that experience could have been avoided or changed. In other 
words, the individual could have refrained from joining the group. 
Certainly, it is reasonable for any society to require its members to 
refrain from certain forms of illegal activity. Thus, for example, 
under this language, persons who share the past experience of having 
joined a gang would not constitute a particular social group on the 
basis of a past experience.
    The requirement in Sec. 208.15(C)(1) that the persecution exist 
independently of the harm is equally applicable to claims of membership 
in a particular social group based on past experience. At least in 
theory, a shared past experience that defines a social group could be 
harm suffered by the applicant and other group members in the past. In 
such a claim however, the past harm that defines the social group 
cannot be the same harm that the applicant claims as persecution. 
Rather, in order for persecution to be ``on account of'' membership in 
such a group, the past experience must exist independently of the 
persecution. In fact, the past experience must be the reason the 
persecutor inflicted or is inclined to inflict the persecution on the 
applicant.
    Finally, the proposed language in Sec. 208.15(C)(3) provides a non-
exclusive list of additional factors that may be considered in 
determining whether a particular social group exists. These factors are 
drawn from existing administrative and judicial precedent on the 
meaning of the ``particular social group'' ground. These precedents 
have been subject to conflicting interpretations, however, and this 
provision resolves those ambiguities by providing that, while these 
factors may be relevant in some cases, they are not requirements for 
the existence of a particular social group.
    The first three factors in this section are drawn from the Ninth 
Circuit's decision in Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 
1986). In that case, the Ninth Circuit stated that ``the phrase 
`particular social group' implies a collection of people closely 
affiliated with each other, who are actuated by some common impulse or 
interest,'' id. at 1576, and that ``[o]f central concern is the 
existence of a voluntary associational relationship among the purported 
members,'' id. These factors have often been interpreted as 
prerequisites for the existence of a particular social group in the 
Ninth Circuit. The Ninth Circuit clarified the significance of these 
factors in the recent case of Hernandez-Montiel v. INS, 225 F.3d 1084 
(9th Cir. 2000). The court held that its decision in Sanchez-Trujillo 
should be interpreted as consistent with the Board's decision in Matter 
of Acosta and that the voluntary associational test is an alternative 
basis for establishing membership in a particular social group. See 225 
F.3d at 1093 n.6. Other circuits have not applied this factor, and, 
instead have simply relied on the Board's determination that the group 
must share a ``common, immutable'' characteristic. See, e.g., Fatin v. 
INS, 12 F.3d 1233, 1239 (3d Cir. 1993) (quoting Matter of Acosta, 19 I. 
& N. Dec. at 233). In cases arising outside the Ninth Circuit, the 
Board has decided that a particular social group may exist without 
reference to these factors. See, e.g., Matter of Toboso-Alfonso, 20 I. 
& N. Dec. 819, 820-21 (BIA 1990) (Cuban homosexuals are a particular 
social group); Matter of Kasinga, 21 I. & N. Dec. at 365 (young women 
who belong to a specific Togolese tribe and who oppose FGM are a 
particular social group). To ensure uniform and fair administrative 
adjudications of particular social group asylum claims, this rule 
clarifies that the Department views the Sanchez-Trujillo factors as 
considerations that may be relevant in some cases, but not as 
requirements for a particular social group.
    Similarly, the next three factors in this proposed section are 
drawn from the Board's decision in In re R-A-. In that case, the Board 
found it highly significant for ``particular social group'' analysis 
that the applicant had not shown that the group she asserted ``is a 
group that is recognized and understood to be a societal faction, or is 
otherwise a recognized segment of the population, within Guatemala,'' 
or that ``the victims of spouse abuse view themselves as members of 
this group.'' Id. at 15. The Board also focused on whether ``it is more 
likely that distinctions will be drawn within the society between those 
who share and those who do not share the characteristic'' at issue. Id. 
at 16. This, of course, could be an important inquiry in asylum and 
withholding cases. The Board did not characterize these elements as 
requirements, however. This rule incorporates them as factors, but 
confirms that they are considerations, which, while they may be 
relevant in some cases, are not determinative of the question of 
whether a particular social group exists.
    In applying the factor at Sec. 208.15(c)(3)(vi)--whether members of 
a given group are distinguished for different treatment--it would be 
relevant to consider any evidence about societal attitudes toward group 
members or about harm to group members, including whether the 
institutions of the society at hand offer fewer protections or benefits 
to members of the group than to other members of society. In In re R-A-
, for example, evidence presented that would be relevant to this 
inquiry included the applicant's testimony that the police did not 
respond to her calls for help, and that, when she appeared before a 
judge, he told her that he would not interfere in domestic disputes. 
Further, the Board's conclusion that documentary country conditions 
evidence indicates that ``Guatemalan society still tends to view 
domestic violence as a family problem'' would also be relevant. This 
type of evidence

[[Page 76595]]

may be considered in determining whether, because the applicant 
possesses a particular characteristic, harm inflicted on the applicant 
may be tolerated by society while it would not be tolerated if 
inflicted on members of the society at large.
    The Department has elected at this point to propose that the 
relationship of In re R-A- and domestic violence claims to the 
definition of ``refugee'' be addressed by articulating broadly 
applicable principles to guide adjudicators in applying the refugee 
definition and other statutory and regulatory provisions generally. The 
Department has tentatively concluded that this approach would be more 
useful than simply announcing a categorical rule that a victim of 
domestic violence is or can be a refugee on account of that experience 
or fear, or that persons presenting such claims may be found eligible 
for relief or granted relief as a matter of discretion in certain 
specified circumstances. The current proposal of the Department would 
encourage development of the law in the area of domestic violence as 
well as in other new claims that may arise. Asylum and withholding 
cases are typically highly fact specific. A case-by-case approach would 
reflect that reality, and would also leave the refinement of applicable 
principles open to further development. The Department is nonetheless 
seeking comments on the relative merits of this approach, and other 
possible approaches, to providing for consideration of domestic 
violence claims as a basis for asylum and withholding of removal.
    This rule does not modify the definition of ``firm resettlement.'' 
The rule merely changes its placement to Sec. 208.15(d) of the 
regulations.

Burden of Proof

    Under U.S. law, a showing of past persecution qualifies an 
applicant for refugee status. Section 101(a)(42) of the Act, (8 U.S.C. 
1101(a)(42)). A showing of past persecution is also strongly indicative 
of the possibility of future harm. Under the current regulations as 
modified by the final rule on asylum procedures published in 
conjunction with this rule, a presumption of well-founded fear applies 
to applicants who qualify as refugees based on past persecution. The 
presumption places the burden on the U.S. government to show by a 
preponderance of the evidence that a refugee no longer has a well-
founded fear of future persecution. The Department believes that this 
allocation of the burden generally is appropriate in light of the 
applicant's refugee status.
    The final rule on asylum procedures published in conjunction with 
this rule broadens the evidence with which the government can rebut the 
presumption of well-founded fear. The presumption can be rebutted by 
evidence of a fundamental change in circumstances, including country 
conditions information, or a showing of a reasonable internal 
relocation alternative. The Department recognizes that some cases 
involving past persecution by non-government persecutors may present 
questions about whether the presumption of a well-founded fear of 
future persecution is appropriate. For example, to some commenters, the 
presumption of internal relocation may seem less warranted in cases 
involving non-government actors, or especially in those cases involving 
individual non-government actors, for which there may be more reason to 
believe that the victim could relocate. Some commenters may believe 
that certain types of individual non-government actor cases warrant a 
presumption more than others and should therefore be treated 
differently.
    The Violence Against Women Office of the Department of Justice has 
offered the following observations about domestic violence, based on 
its experience in the U.S. as well as with foreign governments and non-
governmental organizations:

    It is our experience that domestic violence manifests similar 
characteristics across all racial, ethnic and socioeconomic groups, 
and that many cultures have a variety of ways in which they condone 
and perpetuate domestic violence. See, e.g., Lori J. Heise, Violence 
Against Women: The Hidden Health Burden (World Bank Discussion 
Papers 1994); Ending Violence Against Women, 27 Population Reports 5 
(Johns Hopkins School of Public Health, Dec. 1999) (summarizing 
surveys from many countries discussing domestic violence). See 
generally H.R. Rep. 103-395, at 25-28 (1993) (congressional findings 
of fact about domestic violence). First, in relationships involving 
domestic violence, past behavior is a strong predictor of future 
behavior by the abuser. See, e.g., United States Department of 
Justice, Understanding Domestic Violence: A handbook for Victims and 
Professionals. Victims report patterns of abuse--rather than single, 
isolated incidents--that tend to include the repeated use of 
physical, sexual and emotional abuse, threats, intimidation, 
isolation and economic coercion. See, e.g., Anne L. Ganley, 
``Understanding Domestic Violence,'' in Improving The Health Care 
Response to Domestic Violence: A Resource Manual for Health Care 
Providers 15 (Debbie Lee et al. eds., 1996). Second, both 
domestically and internationally, domestic violence centers on power 
and control over the victim. See, e.g., Violence against Women in 
the International Community, 7 Cardozo J. Int'l & Comp. L. 205-318 
(multiple authors discussing violence against women 
internationally). See generally Violence Against Women: An 
International and Interdisciplinary Journal (multiple volumes). 
Consequently, when victims attempt to flee the abusive relationship, 
or otherwise assert their independence, abusers often pursue them 
and escalate the violence to regain or reassert control. See, e.g., 
United States Department of Justice, Stalking and Domestic Violence: 
The Third Annual Report to Congress under the Violence Against Women 
Act (1998); see also Barbara J. Hart, ``The Legal Road to Freedom,'' 
in Battering and Family Therapy: A Feminist Perspective 13 (Marsali 
Hansen & Michele Harway eds., 1993) (citing a variety of studies on 
separation violence). The risk of lethality to the victim is 
typically greatest when she attempts to escape the abuse and, in 
contrast to other persecution cases where the persecutor's desire to 
harm the victim may wane if the victim leaves, the victim's attempt 
to leave typically increases the abuser's motivation to locate and 
harm her. See, e.g., Kerry Healey et al., Batterer Intervention: 
Program Approaches and Criminal Justice Strategies (United States 
Department of Justice, National Institute of Justice, Feb. 1998); 27 
Population Reports 7 (discussing this issue in foreign countries); 
Evan Stark & Anne Flintcraft, ``Violence Among Intimates: An 
Epidemiological Review,'' in Handbook of Family Violence 293 
(Vincent B. Van Hasselt et al. eds., 1988); Martha R. Mahoney, Legal 
Images of Battered Women: Redefining the Issues of Separation, 90 
Mich. L. Rev. 1, 64-65 (1991). Third, because of the abuser's 
intimate relationship with the victim, he is likely to possess 
important information about where the victim could go or to whom she 
would turn for assistance.

    These observations seem to support retaining the presumption of 
well-founded fear of future persecution for those applicants who have 
established past persecution by an individual non-state actor in the 
domestic violence context. The Department recognizes however, that this 
rule does not address other types of individual, non-state actor cases 
that may arise in the future. Therefore, the Department solicits 
suggestions as to whether it should continue to maintain the 
presumption of well-founded fear of future persecution, including the 
presumption of internal relocation, in cases involving persecutors who 
are non-state actors. The Department welcomes the views of the public 
on the merits of the approach proposed in this rule and will carefully 
weigh all comments in articulating the final rule.
    In all cases of past persecution the government may rebut the 
presumption of well-founded fear of future persecution. The Department 
recognizes that, especially if the general rule concerning burden of 
proof is retained for cases involving individual non-state actors, some 
of the new types of claims

[[Page 76596]]

based on persecution by individuals may present a question of 
production of evidence useful to rebuttal that may be uniquely in the 
hands of the applicant claiming persecution. Moreover, whether or not 
the burden of proof is retained in this context, the Department has 
concluded that it would be appropriate to codify long-standing 
principles of law relating to the applicant's burden of production in 
asylum and withholding cases. For example, in the domestic violence 
context, an applicant's claim will rest on direct evidence regarding 
her experiences with the persecutor that are not addressed in general 
country conditions information. Circumstantial evidence, such as 
general country conditions information also may support such a claim. 
Under current case law, evidence relating to the applicant's personal 
experiences or personal knowledge of the likelihood of future harm 
should be provided by the applicant if reasonably available, or an 
explanation should be given as to why such information was not 
presented. This is well-established in the case law. See Matter of S-M-
J-, 21 I. & N. Dec. 722, 724 (BIA 1997)(en banc). Furthermore, ``where 
there are significant, meaningful evidentiary gaps, applications will 
ordinarily have to be denied for failure of proof.'' Matter of Dass, 20 
I. & N. Dec. 120, 124 (BIA 1989) (citing 8 CFR 208.5, 242.17(c)(1988)).
    Being accorded the presumption of well-founded fear does not 
relieve the applicant of the burden of producing testimony or 
documentation reasonably available, especially evidence within the 
knowledge of the applicant. Failure to do so can be considered in (1) 
making a factual determination that the presumption has been rebutted, 
(2) in credibility determinations, and (3) in the exercise of 
discretion in granting asylum. The inquiry of an immigration judge or 
asylum officer considering evidence relevant to a discretionary grant 
of asylum or a grant of withholding will normally include factors 
relating to future persecution even in cases where past persecution has 
been shown. For example, the adjudicator should make inquiries into 
factors such as whether there has been a fundamental change in 
circumstances, the ability of the applicant to relocate, the location 
and status of the persecutor if known, and any evidence of a pattern of 
pursuit by the persecutor. This is consistent with the adjudicator's 
ability to consider all facts he or she deems relevant to an asylum or 
withholding claim.
    Finally, this proposed rule adds language to Secs. 208.13(b)(1)(ii) 
and 208.16(b)(1)(ii) clarifying the procedural handling of asylum and 
withholding claims in cases where the government has the burden of 
rebutting a presumption of well-founded fear of persecution or 
likelihood of future threat to life or freedom. The final regulations 
on asylum procedures published in conjunction with this proposed rule 
provide that, when an applicant for asylum establishes that he or she 
suffered past persecution, the applicant will be presumed also to have 
a well-founded fear of persecution, unless a preponderance of the 
evidence establishes that there has been a fundamental change in 
circumstances such that the applicant no longer has a well-founded fear 
of persecution, or the applicant could reasonably avoid future 
persecution by relocating to another part of the applicant's country 
or, if stateless, the applicant's country of last habitual residence. 
See 8 CFR 208.13(b)(1)(i). A similar presumption applies to applicants 
for withholding of removal. See 8 CFR 208.16(b)(1) (upon showing of 
past persecution, presumption arises that it is more likely than not 
that applicant will face future persecution, unless a preponderance of 
the evidence demonstrates fundamental change of circumstances or that 
it would be reasonable for the applicant to relocate within the country 
of persecution).
    Confusion has arisen concerning the proper disposition of cases in 
which a finding of no past persecution is reversed on appeal. This rule 
will codify a principle that, when an immigration judge or the Board 
finds that the applicant has failed to establish past persecution, the 
question of fundamental changed circumstances and reasonable internal 
relocation shall be deemed reserved, and the Service shall not be 
required to present evidence on fundamental changed circumstances or 
reasonable internal relocation to preserve the issues. Accordingly, if 
the immigration judge's or Board's finding of no past persecution is 
set aside, the Service will remain free on remand to present evidence 
and argument on the question of changes in country conditions or 
internal relocation.
    This rule is consistent with established rules governing judicial 
review of agency action and of civil procedure. When a federal court 
reviews final agency action such as a decision of the Board:

[i]f the record before the agency does not support the agency 
action, if the agency has not considered all relevant factors, or if 
the reviewing court simply cannot evaluate the challenged agency 
action on the basis of the record before it, the proper course, 
except in rare circumstances, is to remand to the agency for 
additional investigation or explanation. The reviewing court is not 
generally empowered to conduct a de novo inquiry into the matter 
being reviewed and to reach its own conclusions based on such an 
inquiry.

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). 
Similarly, in ordinary civil litigation, absent a contrary order in the 
particular case, if a party moves for, or a district court grants, 
summary judgment for a party on one of a number of potentially 
dispositive grounds, that ruling does not mean that the party is 
abandoning or the court is addressing sub silentio possible alternative 
grounds of decision. And, if that narrow grant of summary judgment is 
reversed on appeal, the court of appeals does not proceed to enter 
summary judgment for the opposing party on a ground that was not 
addressed by the district court's ruling. Rather, the case is remanded 
for further proceedings.
    We have concluded that a similar approach should be made explicit 
in the context of immigration judge or Board decisions finding an 
absence of past persecution--the immigration judge's or Board's silence 
on the question of fundamental changed circumstances or reasonable 
internal relocation should not be considered an implicit resolution of 
the question, and the case should be remanded for the presentation of 
evidence and a decision by the Board or immigration judge in the first 
instance. The contrary practice is not only inconsistent with ordinary 
practice, but encourages the Board, immigration judges, and the Service 
to engage in potentially wasteful expenditures of resources litigating 
and deciding issues that may not ever need to be resolved in the 
proceeding if the initial finding of no past persecution is sustained.
    This rule, once final, will apply to all cases currently pending 
before the asylum office, the immigration courts and the Board of 
Immigration Appeals.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving 
it, certifies that this rule will not have a significant impact on a 
substantial number of small entities because this rule involves the 
process for adjudication of certain requests for asylum and withholding 
of removal. This process affects individuals and not small entities.

[[Page 76597]]

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any 1-year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Act of 1996. 5 U.S.C. 804. This 
rule will not result in an annual effect on the economy of $100 million 
or more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of the United States-based companies to 
compete with foreign-based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Justice to be a 
``significant regulatory action'' under Executive Order 12866, 
Regulatory Planning and Review. Accordingly, this regulation has been 
submitted to the Office of Management and Budget for review.

Executive Order 13132

    This rule will not have substantial direct effects on the states, 
on the relationship between the national Government and the states, or 
on the distribution of power and responsibility among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988

    This interim rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Pub. L. 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting or recordkeeping 
requirements inherent in a final rule. This rule does not impose any 
new reporting or recordkeeping requirements under the Paperwork 
Reduction Act.

List of Subjects in 8 CFR Part 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.
    Accordingly, part 208 of chapter I of title 8 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

    1. The authority citation for part 208 continues to read as 
follows:

    Authority: 8 U.S.C. 1103, 1158, 1226, 1252, 1282; 8 CFR part 2.

    2. Section 208.13 is amended by revising paragraphs (b)(1) and 
(b)(1)(ii)(B) to read as follows:


Sec. 208.13  Establishing asylum eligibility.

* * * * *
    (b) * * *
    (1) Past persecution. An applicant shall be found to be a refugee 
on the basis of past persecution if the applicant can establish that he 
or she has suffered persecution in the past in the applicant's country 
of nationality or, if stateless, his or her country of last habitual 
residence, on account of race, religion, nationality, membership in a 
particular social group, or political opinion, and is unable or 
unwilling to return to or avail himself or herself of the protection of 
that country owing to such persecution. An applicant who has been found 
to have established such past persecution shall also be presumed to 
have a well-founded fear of persecution on the basis of the original 
claim. This presumption may be rebutted if an asylum officer or 
immigration judge makes one of the findings described in paragraph 
(b)(1)(i) of this section. If the applicant's fear of future 
persecution is unrelated to the past persecution, the applicant bears 
the burden of establishing that the fear is well-founded. Although a 
presumption of future persecution is raised by a finding of past 
persecution, this does not relieve the applicant of the burden of 
producing testimonial evidence or, where reasonably available to the 
applicant, documentary evidence relating to future persecution, 
including to a fundamental change in circumstances or the 
reasonableness of internal relocation.
    (i) * * *
    (ii) * * *
    (B) When the immigration judge or Board finds that the applicant 
has failed to establish past persecution, the questions of fundamental 
changed circumstances and reasonable internal relocation shall be 
deemed reserved and the Service shall not be required to present 
evidence to preserve the issues. If that finding is set aside, the 
Service and the applicant shall be permitted on remand to submit 
evidence and argument on the questions of fundamental changed 
circumstances and reasonable internal relocation before any ruling on 
these matters is issued.
* * * * *
    3. Section 208.15 is revised to read as follows:


Sec. 208.15  Definitions.

    (a) Persecution. Persecution is the infliction of objectively 
serious harm or suffering that is subjectively experienced as serious 
harm or suffering by the applicant, regardless of whether the 
persecutor intends to cause harm. Inherent in the meaning of the term 
persecution is that the serious harm or suffering that an applicant 
experienced or fears must be inflicted by the government of the country 
of persecution or by a person or group that government is unwilling or 
unable to control. In evaluating whether a government is unwilling or 
unable to control the infliction of harm or suffering, the immigration 
judge or asylum officer should consider whether the government takes 
reasonable steps to control the infliction of harm or suffering and 
whether the applicant has reasonable access to the state protection 
that exists. Evidence of the following are pertinent and may be 
considered: Government complicity with respect to the infliction of 
harm or suffering at issue; attempts by the applicant, if any, to 
obtain protection from government officials and the government's 
response to these attempts; official action that is perfunctory; a 
pattern of government unresponsiveness; general country conditions and 
the government's denial of services; the nature of the government's 
policies with respect to the harm or suffering at issue; and any steps 
the government has taken to prevent infliction of such harm or 
suffering.
    (b) On account of the applicant's protected characteristic. An 
asylum applicant must establish that the persecutor acted, or that 
there is a reasonable possibility that the persecutor would act, 
against the applicant on account of the applicant's race, religion, 
nationality, membership in a particular social group, or political 
opinion, or on account of what the persecutor perceives to be the

[[Page 76598]]

applicant's race, religion, nationality, membership in a particular 
social group, or political opinion. In cases involving a persecutor 
with mixed motivations, the applicant must establish that the 
applicant's protected characteristic is central to the persecutor's 
motivation to act against the applicant. Both direct and circumstantial 
evidence may be relevant to the inquiry. Evidence that the persecutor 
seeks to act against other individuals who share the applicant's 
protected characteristic is relevant and may be considered but shall 
not be required.
    (c) Membership in a particular social group.
    (1) A particular social group is composed of members who share a 
common, immutable characteristic, such as sex, color, kinship ties, or 
past experience, that a member either cannot change or that is so 
fundamental to the identity or conscience of the member that he or she 
should not be required to change it. The group must exist independently 
of the fact of persecution. In determining whether an applicant cannot 
change, or should not be expected to change, the shared characteristic, 
all relevant evidence should be considered, including the applicant's 
individual circumstances and information country conditions information 
about the applicant's society.
    (2) When past experience defines a particular social group, the 
past experience must be an experience that, at the time it occurred, 
the member either could not have changed or was so fundamental to his 
or her identity or conscience that he or she should not have been 
required to change it.
    (3) Factors that may be considered in addition to the required 
factors set forth in paragraph (b)(2)(i) of this section, but are not 
necessarily determinative, in deciding whether a particular social 
group exists include whether:
    (i) The members of the group are closely affiliated with each 
other;
    (ii) The members are driven by a common motive or interest;
    (iii) A voluntary associational relationship exists among the 
members;
    (iv) The group is recognized to be a societal faction or is 
otherwise a recognized segment of the population in the country in 
question;
    (v) Members view themselves as members of the group; and
    (vi) The society in which the group exists distinguishes members of 
the group for different treatment or status than is accorded to other 
members of the society.
    (d) Firm resettlement. An alien is considered to be firmly 
resettled if, prior to arrival in the United States, he or she entered 
into another country with, or while in that country received, an offer 
of permanent resident status, citizenship, or some other type of 
permanent resettlement unless he or she establishes:
    (1) That his or her entry into that country was a necessary 
consequence of his or her flight from persecution, that he or she 
remained in that country only as long as was necessary to arrange 
onward travel, and that he or she did not establish significant ties in 
that country; or
    (2) That the conditions of his or her residence in that country 
were so substantially and consciously restricted by the authority of 
the country of refuge that he or she was not in fact resettled. In 
making his or her determination, the asylum officer or immigration 
judge shall consider the conditions under which other residents of the 
country live, the type of housing made available to the refugee, 
whether permanent or temporary, the types and extent of employment 
available to the refugee, and the extent to which the refugee received 
permission to hold property and to enjoy other rights and privileges, 
such as travel documentation including a right of entry or reentry, 
education, public relief, or naturalization, ordinarily available to 
others resident in the country.
    4. Section 208.16 is amended by revising paragraphs (b)(1) and 
(b)(1)(ii)(B) to read as follows:


Sec. 208.16  Withholding of removal under section 241(b)(3) of the Act 
and withholding of removal under the Convention Against Torture.

* * * * *
    (b) * * *
    (1) Past threat to life or freedom. (i) If the applicant is 
determined to have suffered past persecution in the proposed country of 
removal on account of race, religion, nationality, membership in a 
particular social group, or political opinion, it shall be presumed 
that the applicant's life or freedom would be threatened in the future 
in the country of removal on the basis of the original claim. This 
presumption may be rebutted if an asylum officer or immigration judge 
finds by a preponderance of the evidence that paragraph (b)(1)(i)(A) or 
(B) of this section applies. If the applicant's fear of future threat 
to life or freedom is unrelated to the past persecution, the applicant 
bears the burden of establishing that it is more likely than not that 
he or she would suffer such harm. Although a presumption of future 
persecution is raised by a finding of past persecution, this does not 
relieve the applicant of the burden of producing testimonial evidence, 
or where reasonably available to the applicant, documentary evidence, 
relating to future persecution, including to a fundamental change in 
circumstances or the reasonableness of internal relocation.
    (i) * * *
    (ii) * * *
    (B) When the immigration judge or Board finds that the applicant 
has failed to establish past persecution, the questions of fundamental 
change in circumstances and reasonable internal relocation shall be 
deemed reserved and the Service shall not be required to present 
evidence to preserve the issues. If that finding is set aside, the 
Service and the applicant shall be permitted on remand to submit 
evidence and argument on the questions of fundamental change in 
circumstances and reasonable internal relocation before any ruling on 
these matters is issued.
* * * * *

    Dated: November 22, 2000.
Janet Reno,
Attorney General.
[FR Doc. 00-30602 Filed 12-6-00; 8:45 am]
BILLING CODE 4410-10-P

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