In re H-

• Decision Date: 30 May 1996
• Docket Number: Interim Decision No. 3276.
• Citation: 21 I&N Dec. 337
• Parties: In re H-, Applicant.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 337

In re H-, Applicant.

Interim Decision No. 3276.

Board of Immigration Appeals.

Decided May 30, 1996.

(1) Membership in a clan can constitute membership in a "particular social group" within the meaning of section 208(a) of the Immigration & Nationality Act, 8 U.S.C. § 1158(a)(1994); the Marehan subclan of Somalia, the members of which share ties of kinship and linguistic commonalities, is such a "particular social group."

(2) While interclan violence may arise during the course of civil strife, such circumstances do not preclude the possibility that harm inflicted during the course of such strife may constitute persecution within the meaning of section 208(a) of the Act; and, persecution may occur irrespective of whether or not a national government exists.

(3) An alien who has demonstrated past persecution is presumed to have a well-founded fear of future persecution unless it is demonstrated by a preponderance of the evidence that, since the time the persecution occurred, conditions in the applicant's country have changed to such an extent that the applicant no longer has a well-founded fear of persecution in that country.

(4) In the consideration of whether a favorable exercise of discretion should be afforded an applicant who has established eligibility for asylum on the basis of past persecution, careful attention should be given to compelling, humanitarian considerations that would be involved if the refugee were to be forced to return to a country where he or she was persecuted in the past.

FOR APPLICANT: Joyce Antila Phipps, Esquire, Newark, New Jersey.

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Charles Parker, Jr., District Counsel.

BEFORE: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, ROSENBERG, MATHON, and GUENDELSBERGER, Board Members. Dissenting Opinion: HEILMAN, Board Member.

ROSENBERG, Board Member.

In a decision dated December 19, 1994, an Immigration Judge found the applicant to be excludable as alleged, denied his applications for relief, and ordered him excluded and deported from the United States to Somalia. The applicant, who sought asylum on the basis of persecution that he suffered as a member of a particular social group in Somalia, the Marehan subclan, appealed. For the reasons discussed herein, we sustain the applicant's appeal in part, with respect to his claim that he has established past persecution, and remand for further proceedings to determine whether discretionary asylum or withholding of deportation shall be granted.

I. DECISION OF THE IMMIGRATION JUDGE

The decision of the Immigration Judge denying the applicant's request for relief rested on the conclusion that "there is no evidence there is a government in Somalia. A person is not entitled to political asylum in the United States because of clan warfare or because of civil warfare." The Immigration Judge opined that an individual is not entitled to asylum because he was beaten by members of a party to a conflict, or incarcerated by such group for a period of 5 days. The Immigration Judge also found that the applicant had safe haven in Kenya, the country to which he initially fled, where he ultimately lived in a refugee camp for over 2 years. The Immigration Judge made no specific finding as to the applicant's credibility.

This Board makes a de novo review of the record with respect to the claim presented by the applicant, and, based on that review, makes its own independent findings. Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). We find that the Immigration Judge erred as a matter of law in dismissing the factual and political context in which the claim arose, and in failing to give appropriate consideration to the claim of persecution on account of membership in a particular social group made by the applicant.

II. ISSUE BEFORE THE BOARD

Based upon our de novo review of the record, we conclude that the applicant has established that he suffered past persecution in Somalia on account of his membership in a particular social group. However, that is not the end of the inquiry. Remaining for determination is whether a grant of asylum is warranted and/or whether withholding of deportation is required. In light of our finding of past persecution in this case and because we are not satisfied that the record was sufficiently developed, we will remand to the Immigration Judge for further proceedings. Further, because this Board has not previously fully addressed the current law and procedure governing the assessment of past persecution claims, we now take this opportunity to do so.

III. LAW GOVERNING THE APPLICANT'S CLAIM OF PAST PERSECUTION

In the adjudication of an application for asylum or withholding of deportation, the first issue to be resolved is whether the applicant qualifies as a refugee. An applicant may so qualify based upon past persecution, a well-founded fear of persecution, or a clear probability of persecution, on account of a ground provided for by the Act. We limit our discussion here given the facts of the case before us, to the adjudication of cases involving claims of past persecution.

An applicant is eligible for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1994), if he or she can meet the burden of showing that he or she is a refugee within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994). That section provides in relevant part:

The term "refugee" means (A) any person who is outside any country of such person's nationality . . . and 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, membership in a particular social group, or political opinion . . . .

Section 101(a)(42)(A) of the Act; see also INS v. Cardoza-Fonseca, 480 U.S. 421, 441 (1987).¹

That past persecution can be the basis for a successful asylum claim is clear from the language of the statute. Section 208 of the Act provides that an alien may be granted asylum if he is found to be a "refugee" within the meaning of section 101(a)(42)(A) of the Act "because of persecution." (Emphasis added.)

Both this Board and the federal courts have recognized past persecution as a basis for granting asylum. See Matter of D-V-, 21 I&N Dec. 77 (BIA 1995) (recognizing as persecution grievous harm suffered in Haiti in direct retaliation for activities on behalf of Aristide); Matter of B-, 21 I&N Dec. 66 (BIA 1995) (recognizing that the 1988 arrest of a Mujahidin supporter in Afghanistan, and his subsequent interrogation and severe physical abuse constituted persecution); Matter of Chen, 20 I&N Dec. 16 (BIA 1989) (recognizing that the severe repression of the applicant during China's "Cultural Revolution" constituted persecution); see also, e.g., Acewicz v. INS, 984 F.2d 1056, 1061-62 (9th Cir. 1993); Ravindran v. INS, 976 F.2d 754 (1st Cir. 1992); Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988); Blanco-Comarribas v. INS, 830 F.2d 1039 (9th Cir. 1987); cf. INS v. Cardoza-Fonseca, supra. Moreover, as we pointed out in Matter of Chen, supra, the Operations Instructions of the Immigration and Naturalization Service and the Service Worldwide Guidelines for Overseas Refugee Processing ("Guidelines") acknowledge that past persecution and a well-founded fear of future persecution are alternative methods of establishing refugee status.

In order for an applicant to meet his or her burden of establishing past persecution, the applicant's credible testimony, if plausible in light of general conditions in his or her country of nationality or last habitual residence, may be sufficient to sustain the burden of proof without corroboration. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); see also Matter of Dass, 20 I&N Dec. 120 (BIA 1989); 8 C.F.R. § 208.13(a) (1995). An applicant's request for asylum will be granted if he or she proves eligibility for asylum, there are no mandatory reasons for denying asylum,² and, relief is warranted in the exercise of discretion. See section 208(a) of the Act; 8 C.F.R. §§ 208.13, 208.14 (1995).

IV. EVIDENCE OF PERSECUTION SUFFERED BY THE APPLICANT

The applicant is a native of Somalia and an undisputed member of the Darood clan and the Marehan subclan, an entity which is identifiable by kinship ties and vocal inflection or accent. For 21 years Somalia had been ruled by Mohammed Siad Barre, a member of the Marehan subclan, which constitutes less than 1 percent of the population of Somalia. In December of 1990, an uprising was instituted by members of the other clans, which ultimately caused Mohammed Siad Barre to relinquish his power and to flee the capital city of Mogadishu on January 21, 1991.

As a result of favoritism that had been shown to members of the Marehan subclan during the course of Mohammed Siad Barre's often brutal regime, the clans which rebelled against his rule sought to retaliate against those who had benefited from the regime. The applicant's father, a businessman who had greatly benefitted from his membership in the Marehan subclan, was murdered at his place of business in Mogadishu on January 12, 1991, by members of the opposition United Somali Congress, composed mostly of members of the Hawiye clan. The applicant's family home, located in the Marehan section of the city, was targeted 2 days later by the same group. During the course of that attack, the applicant's brother was shot. He was later murdered at the hospital to which he had been brought for the treatment of his injury.

On January 13, 1991, 1 day after the attack on the applicant's home, he fled Mogadishu with his step-mother and younger siblings to a smaller town, Kismayu, which was a stronghold of the Darood clan. Approximately 1 month later, that town was attacked by the United Somali Congress. As a...