In re N-M-a-

Decision Date21 October 1998
Docket NumberInterim Decision #3368
PartiesIn re N-M-A-, Applicant
CourtU.S. DOJ Board of Immigration Appeals

The applicant, a native and citizen of Afghanistan, has appealed from the Immigration Judge's decision of July 10, 1995, denying him asylum and withholding of exclusion and deportation under sections 208 and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h) (1994).1 The applicant has also filed a motion to remand the record for further proceedings based on changes in country conditions in Afghanistan that have arisen since the time of his hearing. The Immigration and Naturalization Service has filed an opposition to the applicant's motion to remand. The appeal will be dismissed, and the motion to remand will be granted.


As per our regulatory authority, our review is de novo with regard to issues on appeal, unless otherwise noted, e.g., as with credibility determinations by Immigration Judges, which are given deference. See generally Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The principal issue before us on appeal is the scope of the regulatory presumption of 8 C.F.R. § 208.13(b)(1)(i) (1998). The dispositive issue in the motion to remand is the effect of the new conditions in Afghanistan in relation to the applicant's fear of religious persecution. We address each issue in turn.

But before we turn to the questions raised by this case, it is appropriate to add a cautionary note. On June 11, 1998, a proposed rule was published in the Federal Register. If adopted as proposed, that rule would make meaningful changes in the regulatory language we address today. See 63 Fed. Reg. 31,945-50 (1998). Importantly, our reading of the existing regulations should not be seen as an indication of how we might construe the language of the proposed rule.

We return to the case at hand. The current regulatory presumption of 8 C.F.R. § 208.13(b)(1)(i) provides that an applicant who has

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established that he has suffered past persecution on account of a statutorily-protected ground will be presumed to have a well-founded fear of future persecution unless a preponderance of the evidence establishes that conditions in the applicant's country of nationality or last habitual residence have changed to such an extent that the applicant no longer has a well-founded fear of future harm if he were to return. We hold that 8 C.F.R. § 208.13(b)(1)(i) (1998) sets forth an evidentiary presumption and that the presumption is extinguished by changed conditions in the applicant's country revealing that the particular threat, which led to the past harm, no longer exists. Accordingly, once an applicant has demonstrated that he has suffered past persecution on account of a statutorily-protected ground, and the record reflects that country conditions have changed to such an extent that the applicant no longer has a well-founded fear of persecution from his original persecutors, the applicant bears the burden of demonstrating that he has a well-founded fear of persecution from any new source.

We also find that the applicant did not sufficiently demonstrate at the hearing that he has a well-founded fear of harm from the Jamiat faction or any other Afghan mujahidin faction on account of a statutorily-protected ground. We further determine that the applicant did not meet his burden of proving compelling reasons arising out of the severity of his past persecution for his unwillingness to return to Afghanistan, such that he may be granted asylum on the strength of past persecution alone. 8 C.F.R. § 208.13(b)(1)(ii) (1998).

In his motion to remand, the applicant argues that the rise of the Taliban in Afghanistan gives him both new and continuing fears of harm on account of his political opinion and his religious beliefs. We first acknowledge that the applicant has met the regulatory requirements of providing evidence of changed circumstances arising in Afghanistan which is material and was not available at the prior hearing. 8 C.F.R. § 3.2(c)(3) (1998). The Service, however, argues that the applicant has failed to provide any evidence other than generalized country conditions. We disagree. In addition to considerable documentation regarding the Taliban's dominance of Afghanistan, the applicant has provided an affidavit detailing his religious views and his concerns about the Taliban's control in Afghanistan. While we conclude that the applicant has not established that he has a well-founded fear of persecution on account of his actual or imputed political opinion, we do find that he has a made an adequate showing that he has a well-founded fear of harm on account of his religious views such that a remand for further proceedings is appropriate.

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At his hearing, the applicant testified to having suffered persecution in Afghanistan in 1989 during the mujahidin's struggle to overthrow the communist-supported government. In October 1988, the communist secret police (KHAD) came to the applicant's home in the middle of the night and kidnaped his father, who had been providing clothing and medical supplies to the Jamiat party, a mujahidin faction. The applicant related that he had not seen his father since that night and that he assumed his father was dead. Two weeks after his father's disappearance, the KHAD returned to the family's home in the middle of the night and searched the residence. The KHAD told the applicant that the search was routine, but the applicant discovered the next day that no other homes in the neighborhood had been searched. Shortly after his father's disappearance, the applicant agreed to distribute anti-communist flyers on behalf of the Jamiat party. In 1989, the KHAD again returned to his home to conduct another search. During this search, the KHAD found one of the flyers in the applicant's home.

The applicant testified that after the KHAD found the flyer they took him to a small house where he was questioned about the contraband flyer, his family, and his educational background. He was detained for approximately 1 month and was beaten periodically by the KHAD. The applicant described being hit and kicked during questioning, as well as deprived of food for 3 days. He lost consciousness and was hospitalized while under KHAD custody. He related that his entire body was covered with bruises and that he had a deep wound on his right leg. He escaped from the hospital with the assistance of his father's friend and fled to Pakistan, where he stayed for 6 weeks recovering from his injuries before coming to the United States. He testified that he is afraid to return to Afghanistan because of the ongoing fighting and because he is now culturally different from his fellow Afghans.

The Immigration Judge denied relief to the applicant because he found that the country conditions in Afghanistan had changed to the extent that the communists no longer posed a threat to the applicant. The Immigration Judge found that the applicant's fear of harm from the Jamiat party was unreasonable because the applicant had previously assisted them. Instead, the Immigration Judge found that the applicant's fear of returning to Afghanistan was based on the factional civil war plaguing Afghanistan. The record contains a 1995 Department of State profile of asylum claims and country conditions for Afghanistan, which discloses that the situation in

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Afghanistan changed dramatically in April 1992 when the communist regime of President Najibullah was toppled by a coalition of mujahidin forces. Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Afghanistan-Profile of Asylum Claims & Country Conditions (Jan. 1995) [hereinafter Profile]. The coalition forces took control of the capital and proclaimed an amnesty for all the former regime members except the deposed president. In October 1992, Burhanuddin Rabbani of the Jamiat faction was elected president for a 2-year term. The Profile discusses the lack of control that the central government has been able to wield over the factional fighting that then persisted among the armed militia groups. But the Profile makes it clear that the "civil war . . . between the resistance fighters and communist or pro-communist central governments . . . no longer exists." Profile, supra, at 4.


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