[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR208.13]

[Page 193-196]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER I--IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE
 
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of Contents
 
              Subpart A--Asylum and Withholding of Removal
 
Sec. 208.13  Establishing asylum eligibility.

    (a) Burden of proof. The burden of proof is on the applicant for 
asylum to establish that he or she is a refugee as defined in section 
101(a)(42) of the Act. The testimony of the applicant, if credible, may 
be sufficient to sustain the burden of proof without corroboration. The 
fact that the applicant previously established a credible fear of 
persecution for purposes of section 235(b)(1)(B) of the Act does not 
relieve the alien of the additional burden of establishing eligibility 
for asylum.
    (b) Persecution. The applicant may qualify as a refugee either 
because he or she has suffered past persecution or because he or she has 
a well-founded fear of future persecution.
    (1) Past persecution. An applicant shall be found to be a refugee on 
the basis of past persecution if he or she can establish that he or she 
has suffered persecution in the past in his or her country of 
nationality or last habitual residence on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion, and that he or she is unable or unwilling to return to or avail 
himself or herself of the protection of that country owing to such 
persecution.
    (i) If it is determined that the applicant has established past 
persecution, he or she shall be presumed also to have a well-founded 
fear of persecution unless a preponderance of the evidence establishes 
that since the time the persecution occurred 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 being persecuted if he or she were to return.
    (ii) An application for asylum shall be denied if the applicant 
establishes past persecution under this paragraph but it is also 
determined that he or she does not have a well-founded fear of future 
persecution under paragraph (b)(2) of this section, unless it is 
determined that the applicant has demonstrated compelling reasons for 
being unwilling

[[Page 194]]

to return to his or her country of nationality or last habitual 
residence arising out of the severity of the past persecution. If the 
applicant demonstrates such compelling reasons, he or she may be granted 
asylum unless such a grant is barred by paragraph (c) of this section .
    (2) Well-founded fear of persecution. An applicant shall be found to 
have a well-founded fear of persecution if he or she can establish 
first, that he or she has a fear of persecution in his or her country of 
nationality or last habitual residence on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; second, that there is a reasonable possibility of suffering 
such persecution if he or she were to return to that country; and third, 
that he or she is unable or unwilling to return to or avail himself or 
herself of the protection of that country because of such fear. In 
evaluating whether the applicant has sustained his or her burden of 
proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that he or she would be singled out individually for 
persecution if:
    (i) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or last habitual residence of 
persecution of a group of persons similarly situated to the applicant on 
account of race, religion, nationality, membership in a particular 
social group, or political opinion; and
    (ii) The applicant establishes his or her own inclusion in and 
identification with such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (c) Mandatory denials--(1) Applications filed on or after April 1, 
1997. For applications filed on or after April 1, 1997, an applicant 
shall not qualify for asylum if section 208(a)(2) or 208(b)(2) of the 
Act applies to the applicant. If the applicant is found to be ineligible 
for asylum under either section 208(a)(2) or 208(b)(2) of the Act, the 
applicant shall be considered for eligibility for withholding of removal 
under section 241(b)(3) of the Act. The applicant shall also be 
considered for eligibility for withholding of removal under the 
Convention Against Torture if the applicant requests such consideration 
or if the evidence presented by the alien indicates that the alien may 
be tortured in the country of removal.
    (2) Applications filed before April 1, 1997. (i) An immigration 
judge or asylum officer shall not grant asylum to any applicant who 
filed his or her application before April 1, 1997, if the alien:
    (A) Having been convicted by a final judgment of a particularly 
serious crime in the United States, constitutes a danger to the 
community;
    (B) Has been firmly resettled within the meaning of Sec. 208.15;
    (C) Can reasonably be regarded as a danger to the security of the 
United States;
    (D) Has been convicted of an aggravated felony, as defined in 
section 101(a)(43) of the Act; or
    (E) Ordered, incited, assisted, or otherwise participated in the 
persecution of any person on account of race, religion, nationality, 
membership in a particular social group, or political opinion.
    (ii) If the evidence indicates that one of the above grounds apply 
to the applicant, he or she shall have the burden of proving by a 
preponderance of the evidence that he or she did not so act.
    (d) Discretionary denial. An asylum application may be denied in the 
discretion of the Attorney General if the alien can be removed to a 
third country which has offered resettlement and in which the alien 
would not face harm or persecution.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999]

    Effective Date Note: At 65 FR 76133, Dec. 6, 2000, Sec. 208.13 was 
amended by revising the heading of paragraph (b), (b)(1) and (b)(2), by 
adding paragraphs (b)(3) and (c)(2)(i)(F), and by removing paragraph 
(d), effective Jan. 5, 2001. For the convenience of the user, the 
revised and added text is set forth as follows:

Sec. 208.13  Establishing asylum eligibility.

                                * * * * *

    (b) Eligibility. * * *
    (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

[[Page 195]]

in the applicant's country of nationality or, if stateless, in 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. That 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.
    (i) Discretionary referral or denial. Except as provided in 
paragraph (b)(1)(iii) of this section, an asylum officer shall, in the 
exercise of his or her discretion, refer or deny, or an immigration 
judge, in the exercise of his or her discretion, shall deny the asylum 
application of an alien found to be a refugee on the basis of past 
persecution if any of the following is found by a preponderance of the 
evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant no longer has a well-founded fear of persecution in the 
applicant's country of nationality or, if stateless, in the applicant's 
country of last habitual residence, on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; or
    (B) The applicant could avoid future persecution by relocating to 
another part of the applicant's country of nationality or, if stateless, 
another part of the applicant's country of last habitual residence, and 
under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) Burden of proof. In cases in which an applicant has 
demonstrated past persecution under paragraph (b)(1) of this section, 
the Service shall bear the burden of establishing by a preponderance of 
the evidence the requirements of paragraphs (b)(1)(i)(A) or (B) of this 
section.
    (iii) Grant in the absence of well-founded fear of persecution. An 
applicant described in paragraph (b)(1)(i) of this section who is not 
barred from a grant of asylum under paragraph (c) of this section, may 
be granted asylum, in the exercise of the decision-maker's discretion, 
if:
    (A) The applicant has demonstrated compelling reasons for being 
unwilling or unable to return to the country arising out of the severity 
of the past persecution; or
    (B) The applicant has established that there is a reasonable 
possibility that he or she may suffer other serious harm upon removal to 
that country.
    (2) Well-founded fear of persecution. (i) An applicant has a well-
founded fear of persecution if:
    (A) The applicant has a fear of persecution in his or her country of 
nationality or, if stateless, in his or her country of last habitual 
residence, on account of race, religion, nationality, membership in a 
particular social group, or political opinion;
    (B) There is a reasonable possibility of suffering such persecution 
if he or she were to return to that country; and
    (C) He or she is unable or unwilling to return to, or avail himself 
or herself of the protection of, that country because of such fear.
    (ii) An applicant does not have a well-founded fear of persecution 
if the applicant could avoid persecution by relocating to another part 
of the applicant's country of nationality or, if stateless, another part 
of the applicant's country of last habitual residence, if under all the 
circumstances it would be reasonable to expect the applicant to do so.
    (iii) In evaluating whether the applicant has sustained the burden 
of proving that he or she has a well-founded fear of persecution, the 
asylum officer or immigration judge shall not require the applicant to 
provide evidence that there is a reasonable possibility he or she would 
be singled out individually for persecution if:
    (A) The applicant establishes that there is a pattern or practice in 
his or her country of nationality or, if stateless, in his or her 
country of last habitual residence, of persecution of a group of persons 
similarly situated to the applicant on account of race, religion, 
nationality, membership in a particular social group, or political 
opinion; and
    (B) The applicant establishes his or her own inclusion in, and 
identification with, such group of persons such that his or her fear of 
persecution upon return is reasonable.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1)(i), (b)(1)(ii), and (b)(2) of 
this section, adjudicators should consider, but are not limited to 
considering, whether the applicant would face other serious harm in the 
place of suggested relocation; any ongoing civil strife within the 
country; administrative, economic, or judicial infrastructure; 
geographical limitations; and social and cultural constraints, such as 
age, gender, health, and social and familial ties. Those factors may, or 
may not, be relevant, depending on all the circumstances of the case, 
and are not necessarily determinative of whether it would be reasonable 
for the applicant to relocate.
    (i) In cases in which the applicant has not established past 
persecution, the applicant shall bear the burden of establishing that it

[[Page 196]]

would not be reasonable for him or her to relocate, unless the 
persecution is by a government or is government-sponsored.
    (ii) In cases in which the persecutor is a government or is 
government-sponsored, or the applicant has established persecution in 
the past, it shall be presumed that internal relocation would not be 
reasonable, unless the Service establishes by a preponderance of the 
evidence that, under all the circumstances, it would be reasonable for 
the applicant to relocate.

                                * * * * *

    (c) * * *
    (2) * * *
    (i) * * *
    (F) Is described within section 212(a)(3)(B)(i)(I),(II), and (III) 
of the Act as it existed prior to April 1, 1997, and as amended by the 
Anti-terrorist and Effective Death Penalty Act of 1996 (AEDPA), unless 
it is determined that there are no reasonable grounds to believe that 
the individual is a danger to the security of the United States.