[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR208.16]



[Page 153-155]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 208_PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL--Table of 

Contents

 

               Subpart A_Asylum and Withholding of Removal

 

Sec. 208.16  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 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



[[Page 154]]



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. 208.18(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:

    (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. 

208.17(a).

    (d) Approval or denial of application--(1) General. Subject to 

paragraphs (d)(2)



[[Page 155]]



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 

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. 

208.17 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]