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Follow the Bouncing Ball: Persecution and the Shifting Burden of Proof - Jeffrey S. Chase

August 14, 2020 (8 min read)

Jeffrey S. Chase, Aug. 13, 2020

"On July 24, the U.S. Court of Appeals for the Third Circuit reversed the BIA as to what constitutes past persecution.  In Blanco v. Att’y Gen., the asylum-seeker had been abducted by police in his native Honduras because he had participated in marches in support of the LIBRE party.  Police officers there detained him for 12 hrs in an abandoned house, where he was subjected to multiple beatings lasting 40 to 60 minutes each.  The police also  threatened to kill him and his family if he continued to participate in LIBRE party marches, and further insulted him with racial slurs.  Learning that other LIBRE supporters had been killed by the police, the petitioner moved from city to city within Honduras over the next 14 months.  However, he received three letters and one phone call during that time threatening that he and his family would be killed if he did not leave the country.

The immigration judge believed the petitioner, but nevertheless denied asylum, finding the harm to have not been severe enough to constitute past persecution.  The B.I.A. agreed, saying that the treatment was “more akin to harassment” than persecution.  The B.I.A. also found that the petitioner had not even established a well-founded fear of future persecution, concluding that there wasn’t a ten percent chance that a mere supporter who had last participated in a demonstration almost 2 years earlier would be persecuted.

The 3d Circuit reversed.  It first quoted the oft-cited phrase that “persecution does not encompass all forms of unfair, unjust, or even unlawful treatment.”  But the court continued that it has found persecution to include “threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.”  Of course, the facts described above include multiple threats to life, as well as confinement and torture.  So then how did the Board find what was obviously persecution several times over to be “more akin to harassment?”

As the Third Circuit explained, the BIA and the immigration judge committed three errors.  The first was in finding that the past harm was not severe enough.  But the court noted that persecution does not require severe injury; in fact, it requires no physical injury at all, as evidenced by the fact that a death threat alone may constitute past persecution.  Thus, the court corrected the Board in holding that “physical harm is not dispositive in establishing past persecution.”

The court next corrected the Board’s discrediting of the threats on the ground that it was not “imminent,” citing  the fact that the threat was not carried out in the 14 months until the petitioner’s departure.  The court observed that in order to constitute persecution, a threat must be concrete and menacing, but explained that neither term relates to its immediacy.  Rather, concrete and menacing go to the likelihood of the threatened harm, and excludes threats that are merely “abstract or ideal.”  The court rejected the idea that an asylum-seeker must wait “to see if his would-be executioners would go through with their threats” before qualifying for protection, which “would upend the fundamental humanitarian concerns of asylum law.”

The last error pointed to by the court was the Board’s failure to weigh the various harms cumulatively.  The court distinguished between the Board’s claim to have considered the harm cumulatively, and its actual analysis, which considered the individual instances of harm in isolation.

The court observed that, having shown past persecution, there was a presumption that the petitioner possessed a well-founded fear of persecution, which is what one must prove to merit asylum.  But as both the IJ and the Board erred in their conclusion regarding past persecution, no determination regarding whether ICE had rebutted the regulatory presumption was ever reached.

*     *    *

Although Blanco did not reach the question of what happens following a showing of past persecution, I would like to continue the conversation in order to discuss this point.  I don’t believe that the shifting burden of proof that arises upon a showing of past persecution is properly taught by EOIR in its training.  For that reason, years ago, when I was still with EOIR, I conducted a training in which I tried to clarify the concept by using a tennis analogy.  I will attempt to recreate the lesson here.

Imagine the asylum applicant as serving in a tennis match.  In tennis, only the serve must go into one specific box on the court, as opposed to anywhere on the opponent’s side of the net.  Here, I have marked that service box “past persecution,” as it is only by “serving” into that specific box that the asylum-seeker can create a presumption of well-founded fear, and thus shift the burden of proof to the government.

In the above illustration, the respondent has served into the “past persecution” box by establishing facts that constitute past persecution.  This doesn’t require a showing of severe or extreme persecution; any harm rising to the level of what has been found to constitute persecution will suffice.  Examples includes multiple instances of lesser harm that cumulatively rise to the level of persecution (see, e.g. Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA 1998); a concrete and menacing threat (not accompanied by actual physical harm); or persecution in the guise of criminal prosecution or conscription.

Once the respondent establishes past persecution, the ball is then in the DHS’s “court.”  The only way DHS can “return the serve” to the respondent’s side of the net (i.e. shift the burden of proof back to the asylum applicant) is to demonstrate either (1) changed circumstances such that the respondent no longer has a well-founded fear of persecution on account of a protected ground; or (2) that the respondent could reasonably safely relocate to another part of the home country.  If DHS can’t prove either of the above, the respondent has “won the point” of establishing persecution.

Only if DHS succeeds in establishing one of those two points is the ball returned to the respondent.  But just as in tennis, after the serve is returned, the respondent is no longer limited to hitting into the service box only.  The respondent now has a wider court in which to win the point: 


Just as there are three boxes on each side of a tennis court (i.e. the two service boxes and the backcourt), the respondent now has three options for meeting the burden of proof.

The two service boxes (closest to the net)  represent the two ways in which one who has suffered past persecution can still merit a grant of “humanitarian asylum” even where there is no longer a basis to fear future persecution.

The first of these is where a humanitarian grant is merited based on the severity of the past persecution.  This is the only time that the severity of the past persecution matters.  (I believe that errors such as those committed in Blanco arise because the immigration judge remembers learning something about the severity of the past persecution, but isn’t quite clear on the context in which it arises.)

This rule is a codification of the BIA’s holding in a 1989 precedent decision, Matter of Chen.  In a concurring opinion in that decision, former Board Member Michael Heilman pointed out that our asylum laws are designed to conform to our international law obligations.  He continued that the source of those obligations, the 1951 Convention, came into effect years after the majority of those refugees it was meant to protect, i.e. those who had suffered past persecution during WW II, were clearly no longer at risk from the same persecutors following the defeat of the Axis powers

From this history, Heilman concluded that “the historical underpinnings of the Convention, from which the Refugee Act of 1980 receives its genesis, would have to be totally ignored if one were inclined to adopt the position that present likelihood of persecution is also required where past persecution has been established.”

The majority of the Board adopted this position only where it deemed the past persecution sufficiently severe, and it was that view that the regulations codified in 1990.

Years later, a second basis for humanitarian asylum was added to the regulations for those who suffered past persecution but had their presumption of well-founded fear rebutted by the government.  This second category (represented by the second service box in the third illustration) applies to those who might reasonably suffer “other serious harm” in their country of origin.  This rule (which became effective in January 2001) looks to whether the asylum applicant might suffer harm as severe as persecution, but unrelated to any specific ground or motive.  Thus, an asylum-seeker who suffered past persecution but whose original basis for asylum has dissipated due to changed conditions may merit a humanitarian grant where their return might give rise to mental anguish, put their health at risk due to the unavailability of necessary medical treatment or medication, or subject them to abject poverty or severe criminal extortion, to provide a few examples.

Lastly, an asylum applicant who no longer has a well-founded fear due to changed conditions in their country of origin may still “win the point” by establishing a different well-founded fear of persecution under the new conditions."

Copyright 2020 Jeffrey S. Chase.  All rights reserved.