In re S-M-J-
| Decision Date | 31 January 1997 |
| Docket Number | Interim Decision #3303 |
| Parties | In re S-M-J-, Applicant File A70 852 705 - Atlanta |
| Court | U.S. DOJ Board of Immigration Appeals |
The applicant, a citizen of Liberia, has timely appealed from the Immigration Judge's decision dated June 7, 1995, denying asylum and withholding of exclusion and deportation. The sole issue on appeal is whether the applicant is eligible for those forms of relief. The record will be remanded.
According to the applicant's affidavit attached to her Request for Asylum in the United States (Form I-589), in 1989, when the Liberian Government was overthrown, the applicant was living in Zaire. She had been living there since 1987 with her uncle, who had been appointed the Liberian ambassador to Zaire. She remained in Zaire until 1991, when she was evacuated to the United States through the assistance of the American Embassy in Zaire, and she was granted parole until March 29, 1992.
The applicant indicated that in 1990, while living in Zaire, she saw on television on the Cable News Network that the area where she used to live in Liberia, including her father's house, had been burned down. She indicated that her father's house had been singled out and burned. She said that her father was the governor of the Vai tribe in Liberia and stated, "I'm scared if I go back to Liberia I might be affected too." She indicated that although the Vai tribe, of which she is a member, has not had any trouble with the Liberian Government, she feared that members of other tribes might seek to harm her because of her father's position. The applicant has not spoken to either of her parents since 1989 and does not know their whereabouts. The applicant also testified that "Prince Anderson" is her brother-in-law and that she fears repercussions as a result of her relationship to him.
Before we turn to the review of the applicant's case, we set out the analysis which we apply in determining whether an asylum applicant has met his or her burden of proof.
Although we recognize that the burden of proof in asylum and withholding of deportation cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief. See United Nations Convention Relating to the Status of Refugees, July 5, 1951, 189 U.N.T.S. 150. Congress incorporated the international obligation into domestic United States law when it enacted the withholding of deportation provision of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, prohibiting the refoulement of refugees. Going beyond the nonrefoulement provision, Congress also established asylum as a discretionary form of relief for those who could meet a lesser standard of proof. See section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). Because this Board, the Immigration Judges, and the Immigration and Naturalization Service are all bound to uphold this law, we all bear the responsibility of ensuring that refugee protection is provided where such protection is warranted by the circumstances of an asylum applicant's claim. Further, in light of the bifurcated process experienced by many asylum applicants, whereby applicants begin with a nonadversarial approach at a Service Asylum Office and move to a more "adversarial" proceeding before an Immigration Judge, a cooperative approach in Immigration Court is particularly appropriate.
The burden of proof is on an applicant to establish her asylum claim. 8 C.F.R. § 208.13(a) (1996). We held in Matter of Dass, 20 I&N Dec. 120 (BIA 1989), that an alien's own testimony may in some cases be the only evidence available, and it can suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis of the alien's alleged fear. See also Matter of Mogharrabi, 19 I&N Dec. 439, 446 (BIA 1987). Similarly, the regulations indicate that "[t]he testimony of the applicant, if credible in light of general
conditions in the applicant's country of nationality or last habitual residence, may be sufficient to sustain the burden of proof without corroboration." 8 C.F.R. § 208.13(a). Implicit in these statements is an assumption that the adjudicator will have some background information against which to measure an applicant's claim. In order to determine if an alien's claim is "credible in light of general conditions in the applicant's country," 8 C.F.R. § 208.13(a), or "plausible," Matter of Dass, supra, at 124, 125, an adjudicator must understand the general country conditions. Therefore, general background information about a country, where available, must be included in the record as a foundation for the applicant's claim. This point bears emphasis because many applicants, such as the applicant here, seek to rely solely on their testimony without either offering any background information or explaining its absence.
Because the burden of proof is on the alien, an applicant should provide supporting evidence, both of general country conditions and of the specific facts sought to be relied on by the applicant, where such evidence is available. Matter of Dass, supra, at 124. If such evidence is unavailable, the applicant must explain its unavailability, and the Immigration Judge must ensure that the applicant's explanation is included in the record. Moreover, general country condition information may be necessary to support an applicant's testimony where the alien's claim is based on allegations which may be independently verified. "[W]hen the basis of an asylum claim becomes less focused on specific events involving the respondent personally and instead is more directed to broad allegations regarding general conditions in the respondent's country of origin, corroborative background evidence that establishes a plausible context for the persecution claim (or an explanation for the absence of such evidence) may well be essential." Matter of Dass, supra, at 125. As we indicated in Dass, this position is consistent with the Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees para. 42, at 12 (Geneva, 1992) ("Handbook"), which notes that an "applicant's statements cannot, however, be considered in the abstract, and must be viewed in the context of the relevant background situation." The Handbook summarizes the role of the asylum applicant, stating that he or she should do the following:
(i) Tell the truth and assist the examiner to the full in establishing the facts of his case.
(ii) Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure necessary evidence.
(iii) Supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.
Id. para. 205(a)(i)-(iii), at 48-49.
The Handbook recognizes that
[a]fter the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements . . . . [I]t is hardly possible for a refugee to "prove" every part of his case . . . . It is therefore frequently necessary to give the applicant the benefit of the doubt.
Id. para. 203, at 48. The Handbook recommends, however, that the benefit of the doubt only be given Id. para. 204, at 48.
Where the record contains general country condition information, and an applicant's claim relies primarily on...
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...for certain alleged facts pertaining to the specifics of an applicant's claim, such evidenceshould be provided." In re S-M-J-, 21 I. & N. Dec. 722, 725 (BIA 1997); see also Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir. 2009). The agency did not err in faulting Liu for failing to corrobor......