Matter of Chen
| Decision Date | 25 April 1989 |
| Docket Number | Interim Decision Number 3104,A-26219652 |
| Citation | 20 I&N Dec. 16 |
| Parties | MATTER OF CHEN In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
This case was before us on October 14, 1988, when we sustained the respondent's appeal from an immigration judge's November 1, 1984, decision finding the respondent deportable and denying his applications for asylum, withholding of deportation, and voluntary departure. We granted the respondent's application for asylum. The Immigration and Naturalization Service requested that execution of our decision and order be stayed pending consideration of a motion to reconsider. We granted this request on October 21, 1988. On November 16, 1988, the Service filed a motion to reconsider in which it asks that we change or clarify certain aspects of our October 14, 1988, decision. The Service motion to reconsider will be granted. Upon reconsideration, the respondent's appeal will again be sustained and his application for asylum granted.
The respondent is a 31-year-old native and citizen of China. He was admitted to the United States on November 23, 1980, as a nonimmigrant student. He was authorized to remain in this country until August 31, 1982, but remained beyond that time. On April 26, 1984, an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) was issued against him charging him with deportability as an overstay under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982). At a deportation hearing held on September 28, 1984, the respondent admitted that he was deportable as charged. The issue at the hearing, and the issue on appeal, involves the respondent's applications for asylum and withholding of deportation.
An alien who is seeking withholding of deportation from any country must show that his "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h)(1) of the Act, 8 U.S.C. § 1253(h)(1) (1982). In order to make this showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407, 413 (1984). This clear probability standard requires a showing that it is more likely than not that an alien would be subject to persecution if returned to the country from which he seeks withholding.
In order to establish eligibility for a grant of asylum, an alien must demonstrate that he is a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). See section 208 of the Act, 8 U.S.C. § 1158 (1982). That definition includes the requirement that an alien demonstrate that he is unwilling or unable to return to his 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. Case law has focused primarily on the meaning of "well-founded fear," and the Supreme Court has held that a well-founded fear of persecution may be established upon a lesser showing than the clear probability of persecution which must be shown under section 243(h). INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Adopting the view of the United States Court of Appeals for the Fifth Circuit, we have held in Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), that an applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution. See Guevara Flores v. INS, 786 F.2d 1242 (5th Cir. 1986); see also Carcamo-Flores v. INS, 805 F.2d 60 (2d Cir. 1986).
Alternatively, eligibility for asylum may be established by a showing of past persecution. There has, heretofore, been less emphasis in the courts and within this Board on situations where past persecution is the main, or only, basis for an asylum applicant's claim. However, it is clear from the plain language of the statute that past persecution can be the basis for a persecution claim, and the case law has acknowledged this, if not focused on it. See Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988); Blanco-Comarribas v. INS, 830 F.2d 1039, 1043 (9th Cir. 1987); cf. INS v. Cardoza-Fonseca, supra, at 1218. Similarly, Immigration and Naturalization Service Operations Instruction 208.4 and the Service Worldwide Guidelines for Overseas Refugee Processing ("Guidelines") recognize that past persecution and a well-founded fear of persecution are alternative methods of establishing eligibility for refugee status. The Guidelines specifically point out that "where a person claims to have been persecuted, he need only establish that objective fact," whereas Guidelines, supra, at 10 (emphasis added).
If an alien establishes that he has been persecuted in the past for one of the five reasons listed in the statute, he is eligible for a grant of asylum. The likelihood of present or future persecution then becomes relevant as to the exercise of discretion, and asylum may be denied as a matter of discretion if there is little likelihood of present persecution. Where past persecution is established by the applicant, the Service ordinarily will have to present, as a factor militating against the favorable exercise of discretion, evidence that there is little likelihood of present persecution, or the immigration judge or this Board may take administrative notice of changed circumstances in appropriate cases, such as where the government from which the threat of persecution arises has been removed from power.1 Thus, a rebuttable presumption arises that an alien who has been persecuted in the past by his country's government has reason to fear similar persecution in the future.
However, there may be cases where the favorable exercise of discretion is warranted for humanitarian reasons even if there is little likelihood of future persecution. That victims of past persecution should in some cases be treated as refugees or asylees even when the likelihood of future persecution may not be great has been recognized by the Office of the United Nations High Commissioner for Refugees, in The Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (Geneva, 1988). There, referring to a "general humanitarian principle," it is written:
It is frequently recognized that a person who—or whose family—has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee.
Id. at § 136. Thus, while the likelihood of future persecution is a factor to consider in exercising discretion in cases where an asylum application is based on past persecution, asylum may in some situations be granted where there is little threat of future persecution. Moreover, as with any case involving the exercise of discretion, all other factors, both favorable and adverse, should also be considered, with recognition of the special considerations present in asylum cases. See Matter of Pula, 19 I&N Dec. 467 (BIA 1987). It is in the contexts of all these factors that we view the respondent's claim.
The respondent testified at the hearing that both he and his family were persecuted in China during the so-called Cultural Revolution, from approximately 1966 through the mid-1970's. The respondent also submitted a lengthy statement in conjunction with his Request for Asylum in the United States (Form I-589). The immigration judge found the respondent's descriptions of the events of those years credible, and we find no reason to doubt that judgment. The respondent's testimony and statement reflect the following.
The respondent is the son of Oikai Chen, who was a Christian minister in China. In the fall of 1966, when the Cultural Revolution began, the respondent's father became a target of the Red Guards....
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