[Code of Federal Regulations]
[Title 8, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 8CFR1208.16]

[Page 858-861]
 
                     TITLE 8--ALIENS AND NATIONALITY
 
CHAPTER V--EXECUTIVE OFFICE OF IMMIGRATION REVIEW, DEPARTMENT OF JUSTICE
 
PART 1208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of 
Contents
 
               Subpart A_Asylum and Withholding of Removal
 
Sec. 1208.16  Withholding of removal under section 241(b)(3)(B) of 

the Act and withholding of removal under the Convention Against 
Torture.

    (a) Consideration of application for withholding of removal. An 
asylum officer shall not decide whether the exclusion, deportation, or 
removal of an alien to a country where the alien's life or freedom would 
be threatened must be withheld, except in the case of an alien who is 
otherwise eligible for asylum but is precluded from being granted such 
status due solely to section 207(a)(5) of the Act. In exclusion, 
deportation, or removal proceedings, an immigration judge may adjudicate 
both an asylum claim and a request for withholding of removal whether or 
not asylum is granted.
    (b) Eligibility for withholding of removal under section 241(b)(3) 
of the Act; burden of proof. The burden of proof is on the applicant for 
withholding of removal under section 241(b)(3) of the Act to establish 
that his or her life or freedom would be threatened in the proposed 
country of removal on account of race, religion, nationality, membership 
in a particular social group, or political opinion. The testimony of the 
applicant, if credible, may be sufficient to sustain the burden of proof 
without corroboration. The evidence shall be evaluated as follows:
    (1) Past threat to life or freedom. (i) If the applicant is 
determined to have suffered past persecution in the proposed country of 
removal on account of race, religion, nationality, membership in a 
particular social group, or political opinion, it shall be presumed that 
the applicant's life or freedom would be threatened in the future in the 
country of removal on the basis of the original claim. This presumption 
may be rebutted if an asylum officer or immigration judge finds by a 
preponderance of the evidence:
    (A) There has been a fundamental change in circumstances such that 
the applicant's life or freedom would not be threatened on account of 
any of the five grounds mentioned in this paragraph upon the applicant's 
removal to that country; or
    (B) The applicant could avoid a future threat to his or her life or 
freedom by relocating to another part of the proposed country of removal 
and, under all the circumstances, it would be reasonable to expect the 
applicant to do so.
    (ii) In cases in which the applicant has established past 
persecution, the Service shall bear the burden of establishing by a 
preponderance of the evidence the requirements of paragraphs 
(b)(1)(i)(A) or (b)(1)(i)(B) of this section.
    (iii) If the applicant's fear of future threat to life or freedom is 
unrelated to the past persecution, the applicant bears the burden of 
establishing that it is more likely than not that he or she would suffer 
such harm.
    (2) Future threat to life or freedom. An applicant who has not 
suffered past

[[Page 859]]

persecution may demonstrate that his or her life or freedom would be 
threatened in the future in a country if he or she can establish that it 
is more likely than not that he or she would be persecuted on account of 
race, religion, nationality, membership in a particular social group, or 
political opinion upon removal to that country. Such an applicant cannot 
demonstrate that his or her life or freedom would be threatened if the 
asylum officer or immigration judge finds that the applicant could avoid 
a future threat to his or her life or freedom by relocating to another 
part of the proposed country of removal and, under all the 
circumstances, it would be reasonable to expect the applicant to do so. 
In evaluating whether it is more likely than not that the applicant's 
life or freedom would be threatened in a particular country on account 
of race, religion, nationality, membership in a particular social group, 
or political opinion, the asylum officer or immigration judge shall not 
require the applicant to provide evidence that he or she would be 
singled out individually for such persecution if:
    (i) The applicant establishes that in that country there is a 
pattern or practice 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 it is more likely 
than not that his or her life or freedom would be threatened upon return 
to that country.
    (3) Reasonableness of internal relocation. For purposes of 
determinations under paragraphs (b)(1) and (b)(2) of this section, 
adjudicators should consider, among other things, 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. These 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 
would not be reasonable for him or her to relocate, unless the 
persecutor is 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) Eligibility for withholding of removal under the Convention 
Against Torture. (1) For purposes of regulations under Title II of the 
Act, ``Convention Against Torture'' shall refer to the United Nations 
Convention Against Torture and Other Cruel, Inhuman or Degrading 
Treatment or Punishment, subject to any reservations, understandings, 
declarations, and provisos contained in the United States Senate 
resolution of ratification of the Convention, as implemented by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Pub. 
L. 105-277, 112 Stat. 2681, 2681-821). The definition of torture 
contained in Sec. 1208.18(a) of this part shall govern all decisions 
made under regulations under Title II of the Act about the applicability 
of Article 3 of the Convention Against Torture.
    (2) The burden of proof is on the applicant for withholding of 
removal under this paragraph to establish that it is more likely than 
not that he or she would be tortured if removed to the proposed country 
of removal. The testimony of the applicant, if credible, may be 
sufficient to sustain the burden of proof without corroboration.
    (3) In assessing whether it is more likely than not that an 
applicant would be tortured in the proposed country of removal, all 
evidence relevant to the possibility of future torture shall be 
considered, including, but not limited to:

[[Page 860]]

    (i) Evidence of past torture inflicted upon the applicant;
    (ii) Evidence that the applicant could relocate to a part of the 
country of removal where he or she is not likely to be tortured;
    (iii) Evidence of gross, flagrant or mass violations of human rights 
within the country of removal, where applicable; and
    (iv) Other relevant information regarding conditions in the country 
of removal.
    (4) In considering an application for withholding of removal under 
the Convention Against Torture, the immigration judge shall first 
determine whether the alien is more likely than not to be tortured in 
the country of removal. If the immigration judge determines that the 
alien is more likely than not to be tortured in the country of removal, 
the alien is entitled to protection under the Convention Against 
Torture. Protection under the Convention Against Torture will be granted 
either in the form of withholding of removal or in the form of deferral 
of removal. An alien entitled to such protection shall be granted 
withholding of removal unless the alien is subject to mandatory denial 
of withholding of removal under paragraphs (d)(2) or (d)(3) of this 
section. If an alien entitled to such protection is subject to mandatory 
denial of withholding of removal under paragraphs (d)(2) or (d)(3) of 
this section, the alien's removal shall be deferred under Sec. 
1208.17(a).
    (d) Approval or denial of application--(1) General. Subject to 
paragraphs (d)(2) and (d)(3) of this section, an application for 
withholding of deportation or removal to a country of proposed removal 
shall be granted if the applicant's eligibility for withholding is 
established pursuant to paragraphs (b) or (c) of this section.
    (2) Mandatory denials. Except as provided in paragraph (d)(3) of 
this section, an application for withholding of removal under section 
241(b)(3) of the Act or under the Convention Against Torture shall be 
denied if the applicant falls within section 241(b)(3)(B) of the Act or, 
for applications for withholding of deportation adjudicated in 
proceedings commenced prior to April 1, 1997, within section 243(h)(2) 
of the Act as it appeared prior to that date. For purposes of section 
241(b)(3)(B)(ii) of the Act, or section 243(h)(2)(B) of the Act as it 
appeared prior to April 1, 1997, an alien who has been convicted of a 
particularly serious crime shall be considered to constitute a danger to 
the community. If the evidence indicates the applicability of one or 
more of the grounds for denial of withholding enumerated in the Act, the 
applicant shall have the burden of proving by a preponderance of the 
evidence that such grounds do not apply.
    (3) Exception to the prohibition on withholding of deportation in 
certain cases. Section 243(h)(3) of the Act, as added by section 413 of 
Pub. L. 104-132 (110 Stat. 1214), shall apply only to applications 
adjudicated in proceedings commenced before April 1, 1997, and in which 
final action had not been taken before April 24, 1996. The discretion 
permitted by that section to override section 243(h)(2) of the Act shall 
be exercised only in the case of an applicant convicted of an aggravated 
felony (or felonies) where he or she was sentenced to an aggregate term 
of imprisonment of less than 5 years and the immigration judge 
determines on an individual basis that the crime (or crimes) of which 
the applicant was convicted does not constitute a particularly serious 
crime. Nevertheless, it shall be presumed that an alien convicted of an 
aggravated felony has been convicted of a particularly serious crime. 
Except in the cases specified in this paragraph, the grounds for denial 
of withholding of deportation in section 243(h)(2) of the Act as it 
appeared prior to April 1, 1997, shall be deemed to comply with the 
Protocol Relating to the Status of Refugees, Jan. 31, 1967, T.I.A.S. No. 
6577.
    (e) Reconsideration of discretionary denial of asylum. In the event 
that an applicant is denied asylum solely in the exercise of discretion, 
and the applicant is subsequently granted withholding of deportation or 
removal under this section, thereby effectively precluding admission of 
the applicant's spouse or minor children following to join him or her, 
the denial of asylum shall be reconsidered. Factors to be considered 
will include the reasons for the denial and reasonable alternatives

[[Page 861]]

available to the applicant such as reunification with his or her spouse 
or minor children in a third country.
    (f) Removal to third country. Nothing in this section or Sec. 
1208.17 shall prevent the Service from removing an alien to a third 
country other than the country to which removal has been withheld or 
deferred.

[62 FR 10337, Mar. 6, 1997, as amended at 64 FR 8488, Feb. 19, 1999; 65 
FR 76135, Dec. 6, 2000]