76588 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules

§ 301.75–1 Definitions.

ACC coverage. The crop insurance

coverage against Asiatic citrus canker

(ACC) provided under the Florida Fruit

Tree Pilot Crop Insurance Program

authorized by the Federal Crop

Insurance Corporation.

* * * * *

3. In Subpart—Citrus Canker, a new

§ 301.75–16 would be added to read as

follows:

§ 301.75–16 Payments for the recovery of

lost production income.

Subject to the availability of

appropriated funds, the owner of a

commercial citrus grove may be eligible

to receive payments in accordance with

the provisions of this section to recover

income from production that was lost as

the result of the removal of commercial

citrus trees to control citrus canker.

(a) Eligibility. The owner of a

commercial citrus grove may be eligible

to receive payments to recover income

from production that was lost as the

result of the removal of commercial

citrus trees to control citrus canker if the

trees were removed pursuant to a public

order between 1986 and 1990 or on or

after September 28, 1995.

(b) Calculation of payments. (1) The

owner of a commercial citrus grove who

is eligible under paragraph (a) of this

section to receive payments to recover

lost production income will, upon

approval of an application submitted in

accordance with paragraph (c) of this

section, receive a payment calculated

using the following rates:

Citrus variety Payment

(per acre)

Grapefruit ................................ $2,925

Orange, Valencia .................... 5,729

Orange, navel ......................... 5,693

Tangelo ................................... 1,666

Lime ........................................ 4,829

Other or mixed citrus .............. 2,925

(2) Payment adjustments.

(i) In cases where the owner of a

commercial citrus grove had obtained

ACC coverage for trees in his or her

grove and received crop insurance

payments following the destruction of

the insured trees, the payment provided

for under paragraph (b)(1) of this section

will be reduced by the total amount of

the crop insurance payments received

by the commercial citrus grove’s owner

for the insured trees.

(ii) In cases where ACC coverage was

available for trees in a commercial citrus

grove but the owner of the grove had not

obtained ACC coverage for his or her

insurable trees, the per-acre payment

provided for under paragraph (b)(1) of

this section will be reduced by 5

percent.

(c) How to apply for lost production

payments. The form necessary to apply

for lost production payments may be

obtained from any local citrus canker

eradication program office in Florida, or

from the USDA Citrus Canker Project,

10300 SW 72nd Street, Suite 150,

Miami, FL 33173. The completed

application should be accompanied by a

copy of the public order directing the

destruction of the trees and its

accompanying inventory that describes

the acreage, number, and the variety of

trees removed. Your completed

application must be sent to the USDA

Citrus Canker Eradication Project, Attn:

Lost Production Payments Program, c/o

Division of Plant Industry, 3027 Lake

Alfred Road, Winter Haven, FL 33881.

Claims for losses attributable to the

destruction of trees on or before [the

effective date of this rule] must be

received within 60 days after [the

effective date of this rule]. Claims for

losses attributable to the destruction of

trees after [the effective date of this rule]

must be received within 60 days after

the destruction of the trees.

Done in Washington, DC, this 1st day of

December 2000.

Bobby R. Acord,

Acting Administrator, Animal and Plant

Health Inspection Service.

[FR Doc. 00–31142 Filed 12–4–00; 11:17 am]

BILLING CODE 3410–34–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 208

[INS No. 2092–00; AG Order No. 2339–

2000]

RIN 1115–AF92

Asylum and Withholding Definitions

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend

the Immigration and Naturalization

Service (Service) regulations that govern

establishing asylum and withholding

eligibility. This rule provides guidance

on the definitions of ‘‘persecution’’ and

‘‘membership in a particular social

group,’’ as well as what it means for

persecution to be ‘‘on account of’’ a

protected characteristic in the definition

of a refugee. It restates that gender can

form the basis of a particular social

group. It also establishes principles for

interpretation and application of the

various components of the statutory

definition of ‘‘refugee’’ for asylum and

withholding cases generally, and, in

particular, will aid in the assessment of

claims made by applicants who have

suffered or fear domestic violence. The

Service believes these issues require

further examination after the Board of

Immigration Appeals (Board) decision

in In re R–A–, Interim Decision 3403

(BIA 1999). Further, the rule clarifies

that the factors considered in cases in

the Court of Appeals for the Ninth

Circuit regarding membership in a

particular social group are not

determinative. Finally, the rule clarifies

procedural handling of asylum and

withholding claims in which past

persecution has been established. This

proposed rule has been prepared and is

published in conjunction with the final

rule on asylum procedures, which

incorporates both the interim rule

amending the Department of Justice

(Department) regulations to implement

the Illegal Immigration Reform and

Immigrant Responsibility Act, 62 FR

10312 (1997), and the proposed past

persecution rule, 63 FR 31945 (1998).

DATES: Written comments must be

submitted on or before January 22, 2001.

ADDRESSES: Please submit written

comments in triplicate to the Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street, NW., Room 4034,

Washington, DC 20536. To ensure

proper handling, please reference INS

No. 2092–00 on your correspondence.

Comments are available for public

inspection at the above address by

calling (202) 514–3048 to arrange for an

appointment.

FOR FURTHER INFORMATION CONTACT:

Dorothea Lay, 425 I Street, NW,

Washington, D.C. 20536, telephone

number (202) 514–2895.

SUPPLEMENTARY INFORMATION:

Background

The purpose of this rule is to provide

guidance on certain issues that have

arisen in the context of asylum and

withholding adjudications. The 1951

Geneva Convention relating to the

Status of Refugees (1951 Convention)

contains the internationally accepted

definition of a refugee. United States

immigration law incorporates an almost

identical definition of a refugee as a

person outside his or her country of

origin ‘‘who is unable or unwilling to

return to, and is unable or unwilling to

avail himself or herself of the protection

of, that country because of persecution

or a well-founded fear of persecution on

account of race, religion, nationality,

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules 76589

membership in a particular social group,

or political opinion.’’ Section 101(a)(42)

of the Immigration and Nationality Act

(Act) (8 U.S.C. 1101(a)(42)). (The

definition was amended by section 601

of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,

Pub. L. 104–208, Div. C, 110 Stat. 3009,

to include a provision on coercive

family planning practices.) In order to

establish eligibility for a discretionary

grant of asylum under section 208 of the

Act, 8 U.S.C. 1158, an alien must meet

the definition of ‘‘refugee’’ under

section 101(a)(42) of the Act. To qualify

for withholding of removal under

section 241(b)(3) of the Act, an alien

must meet a higher burden of proof:

That it is more likely than not that the

alien would be persecuted on account of

one of the five grounds listed within the

definition of ‘‘refugee.’’ 8 U.S.C. 1231.

A sizable body of interpretive case

law has developed about the meaning of

the refugee definition. Historically,

much of this case law has addressed

more traditional asylum and

withholding claims based on an

applicant’s political opinion. In recent

years, however, the United States

increasingly has encountered asylum

and withholding applications with more

varied bases, related, for example, to an

applicant’s gender or sexual orientation.

Many of these new types of claims are

based on the ground of ‘‘membership in

a particular social group,’’ which is the

least well-defined of the five grounds

within the refugee definition. As the

Court of Appeals for the Seventh Circuit

noted in Lwin v. INS, ‘‘[t]he legislative

history behind the term * * * is

uninformative, and judicial and agency

interpretations are vague and sometimes

divergent. As a result, courts have

applied the term reluctantly and

inconsistently.’’ 144 F.3d 505, 510 (7th

Cir. 1998).

Some of these cases have raised

difficult analytical questions about the

interpretation of the refugee definition,

questions that have not always been

addressed consistently through the

administrative adjudication and judicial

review process. This rule sets out a

number of generally applicable

principles to promote uniform

interpretation of the relevant statutory

provisions. Though applicable to all

asylum and withholding cases, these

principles are also designed to provide

guidance for the resolution of novel

issues in some of the asylum and

withholding claims that the Department

has encountered in recent years.

One of these novel issues is the extent

to which victims of domestic violence

may be considered to have been

persecuted under the asylum laws. The

Board considered and rejected such a

persecution claim in its decision in In

re R-A-. This proposed rule removes

certain barriers that the In re R-Adecision seems to pose to claims that

domestic violence, against which a

government is either unwilling or

unable to provide protection, rises to the

level of persecution of a person on

account of membership in a particular

social group. The proposed rule does

not specify how a claim of persecution

based on domestic violence should be

fashioned—in particular, it does not set

forth what the precise characteristics of

the particular social group might be.

The Department has taken this approach

in part because it recognizes that the

way in which a victim of domestic

violence who believes she has been

persecuted may characterize the

particular social group of which she is

a member likely will vary depending

upon the social context in her country.

The Department also recognizes that

whether domestic violence can be so

characterized in a given case will turn

on difficult and subtle evaluations of

particular facts. Given these realities, it

seems ill-advised to try to establish a

universal model for persecution claims

based on domestic violence. The

Department has instead decided to

propose a rule that states generally

applicable principles that will allow for

case-by-case adjudication of claims

based on domestic violence or other

serious harm inflicted by individual

non-state actors.

The Department solicits comments

both on the questions that we have left

open and on whether the Department

should seek to provide more direct

guidance to adjudicators and the public

on their resolution. We expect the

questions addressed during the

comment period would include: How

persecution claims based on domestic

violence might be conceptualized and

evaluated within the framework of

asylum law; how asylum officers,

immigration judges, and the Board

should determine whether a particular

victim of domestic violence (or other

acts of persecution by an individual

non-state actor) has suffered this

treatment ‘‘on account of’’ membership

in a particular social group (e.g., gender

or status of being in a domestic

relationship); and whether, in view of

the fact that claims based on harm

inflicted by individual non-state actors

are relatively new in the United States,

such claims raise distinct issues

concerning statutory eligibility or the

exercise of discretion in granting

asylum.

The Meaning of Persecution

A fundamental question in any

asylum or withholding adjudication is

whether the harm that an applicant has

suffered or fears amounts to

persecution. Neither the 1951

Convention nor the Refugee Act of 1980

defines ‘‘persecution.’’ Two years before

enacting the Refugee Act, Congress

specifically debated whether to include

a definition of ‘‘persecution’’ in the Act

in the related context of a bill that

eventually added the deportation

ground aimed at Nazi persecutors (now

section 241(a)(4)(D) of the Act).

Congress rejected adding a definition of

‘‘persecution’’ to the immigration laws,

concluding that the meaning of the term

was well-established by administrative

and court decisions and meant ‘‘the

infliction of suffering or harm, under

government sanction, upon persons who

differ in a way regarded as offensive

(e.g., race, religion, political opinion,

etc.), in a manner condemned by

civilized governments. The harm or

suffering need not be physical, but may

take other forms, such as the deliberate

imposition of severe economic

disadvantage or the deprivation of

liberty, food, housing, employment or

other essentials of life.’’ H.R. Rep. 95–

1452 at 5 (1978).

The Board adopted this meaning as

well. Matter of Acosta, 19 I. & N. Dec.

211, 220 (BIA 1985), modified on other

grounds, Matter of Mogharrabi, 19 I. &

N. Dec. 439 (BIA 1987). The courts, too,

generally have accepted this definition,

describing ‘‘persecution’’ as ‘‘ ‘the

infliction of suffering or harm upon

those who differ (in race, religion or

political opinion) in a way regarded as

offensive.’’ ’ Duarte de Guinac v. INS,

179 F.3d 1156, 1161 (9th Cir. 1999)

(quoting Korablina v. INS, 158 F.3d

1038, 1043 (9th Cir. 1998)); accord

Miranda v. INS, 139 F.3d 624, 626 (8th

Cir. 1998); Fisher v. INS, 79 F.3d 955,

961 (9th Cir. 1996) (en banc); AbdelMaieh v. INS, 73 F.3d 579, 583 (5th Cir.

1996); Schellong v. INS, 805 F.2d 655,

661–62 (7th Cir. 1986). This definition

recognizes that ‘‘persecution is an

extreme concept that does not include

every sort of treatment our society

regards as offensive.’’ Fatin v. INS, 12

F.3d 1233, 1243 (3d Cir. 1993); see also

Bastanipour v. INS, 980 F.2d 1129, 1133

(7th Cir. 1992) (distinguishing

persecution ‘‘as distinct from mere

discrimination or harassment’’). These

cases sometimes defined ‘‘persecution’’

as including other, separate elements of

the ‘‘refugee’’ definition, such as the

requirement that the persecution be ‘‘on

account of’’ a protected characteristic.

This rule is intended to provide

76590 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules

1Pitcherskaia was remanded to the immigration

court, where the case is currently pending.

2 ‘‘Persecution is normally related to action by the

authorities of a country. It may also emanate from

sections of the population that do not respect the

standards established by the laws of the country

concerned. A case in point may be religious

intolerance, amounting to persecution, in a country

otherwise secular, but where sizeable fractions of

the population do not respect the religious beliefs

of their neighbours. Where serious discriminatory

or other offensive acts are committed by the local

populace, they can be considered as persecution if

they are knowingly tolerated by the authorities, or

if the authorities refuse, or prove unable, to offer

effective protection.’’

guidance on the meaning of persecution,

to clarify that persecution includes

objective and subjective components, as

well as an analysis of state action or

state inability or unwillingness to

protect.

It has sometimes been suggested that

persecution entails a subjective intent

on the part of the persecutor to ‘‘inflict

harm’’ or ‘‘punish’’ the victim. In Matter

of Acosta, the Board found that, to be

persecution, the harm or suffering must

be inflicted upon an individual in order

to punish. Some circuits have followed

this early approach to defining

persecution. See, e.g., Osaghae v. INS,

942 F.2d 1160, 1163 (7th Cir. 1991)

(‘‘ ‘Persecution’ means, in immigration

law, punishment for political, religious,

or other reasons that our country does

not recognize as legitimate.’’). Certainly,

in more traditional claims involving

political persecution, such a ‘‘punitive’’

or ‘‘malignant’’ intent to visit harm

upon the victim is usually present. In

recent years, however, applicants have

successfully presented novel claims in

which the claimed persecution is not

necessarily inflicted with the subjective

intent to cause harm. In 1996, for

example, the Board decided that a

young woman from Togo qualified for

asylum based on her fear of being

subjected to female genital mutilation

(FGM). Matter of Kasinga, 21 I. & N. Dec.

357 (BIA 1996) (en banc). This case

squarely raised the question whether a

subjective intent to harm the victim is

a necessary component of an asylum or

withholding claim, because,

presumably, most practitioners of FGM

believe that they are performing an

important cultural rite that bonds the

individual to society, not that they are

punishing or harming the victim. In

Matter of Kasinga, the Board held that

a ‘‘subjective ‘punitive’ or ‘malignant’

intent is not required for harm to

constitute persecution.’’ Id. at 365.

In its 1997 decision in Pitcherskaia v.

INS, 118 F.3d 641 (9th Cir. 1997), the

Ninth Circuit further advanced this

concept. In that case, a lesbian woman

claimed that she had been forced to

undergo psychiatric treatments and

threatened with institutionalization in

the 1980s by officials of the Soviet

Union in an effort to change her sexual

orientation. The Board held that the

psychiatric measures taken by the

officials did not constitute persecution

because they were intended to ‘‘cure’’

her, not to punish her. On review, the

Ninth Circuit reversed this portion of

the Board’s decision, and remanded the

case for further consideration of other

aspects of the case.1 The Ninth Circuit,

citing Matter of Kasinga, decided by the

Board after the Board’s decision in

Pitcherskaia, concluded that an intent to

harm or punish is not required for

persecution to exist, and that the

‘‘definition of persecution is objective,

in that it turns not on the subjective

intent of the persecutor but rather on

what a reasonable person would deem

‘offensive.’ ’’ Pitcherskaia, 118 F.3d at

646.

This rule addresses the definition of

persecution by clarifying that it includes

both objective and subjective elements.

First, the proposed rule defines

persecution in § 208.15(a) as ‘‘the

infliction of objectively serious harm or

suffering.’’ This general definition does

not diminish the level of harm that has

been recognized by the Board and

generally sustained by the Courts of

Appeals as sufficiently serious to

constitute persecution. The definition

does not preclude reference to other

sources for guidance on what type of

harm can constitute persecution. See,

e.g., United Nations High Commissioner

for Refugees, Handbook on Procedures

and Criteria for Determining Refugee

Status (UNHCR Handbook), para. 51 (reedited 1992) (‘‘From Article 33 of the

1951 Convention it may be inferred that

a threat to life or freedom on account of

race, religion, nationality, political

opinion or membership of a particular

social group is always persecution.

Other serious violations of human

rights—for the same reasons—would

also constitute persecution.’’). This

proposed language in § 208.15(a),

consistent with the Ninth Circuit’s

approach in Pitcherskaia, imposes an

objective standard on the concept of

persecution by requiring that the harm

must be recognizable as serious harm.

Generally, persecution cannot be

established simply upon a showing of

discrimination, harassment, or the

denial of equal protection of the laws.

Guided by existing case law, the

decision-maker will deduce from the

nature of the claim whether or not the

harm is serious enough to constitute

persecution.

The proposed language also provides

that harm is persecution only if it is

‘‘experienced as serious harm by the

applicant, regardless of whether the

persecutor intends to cause harm.’’ The

Department believes that it is

appropriate to codify an interpretation

that is drawn from the conclusion

reached by both the Board in Kasinga

and the Ninth Circuit in Pitcherskaia:

that the existence of persecution does

not require a ‘‘malignant’’ or ‘‘punitive’’

intent on the part of the persecutor. At

the same time, the Department believes

that it is necessary to emphasize that the

victim must experience the treatment as

harm in order for persecution to exist.

For example, there are many women

from cultures that practice FGM who

view the process positively and believe

that they are acting in the victim’s best

interests, even as the victim experiences

the action as harmful. For the purpose

of asylum and withholding

adjudications, a key question is whether

the applicant at hand would experience

or has experienced the procedure as

serious harm, not whether the

perpetrator means it as punitive.

Generally, an applicant’s own testimony

would be the best evidence in

determining whether that applicant

subjectively experienced or would

experience the treatment as harm.

State Action Requirement

Inherent in the meaning of

persecution is the long-standing

principle that the harm or suffering that

an applicant experienced or fears must

be inflicted by either the government of

the country where the applicant fears

persecution, or a person or group that

government is unable or unwilling to

control. See, e.g., Matter of Villalta, 20

I. & N. Dec. 142, 147 (BIA 1990); Matter

of H–, 21 I. & N. Dec. 337 (BIA 1996);

Matter of Kasinga, supra; Matter of

Acosta, supra. This is also consistent

with the understanding of Congress two

years before the Refugee Act was passed

that ‘‘persecution’’ is ‘‘the infliction of

suffering or harm, under government

sanction,’’ H.R. Rep. 95–1452 at 5, and

with the position of UNHCR and

Convention-based interpretations of the

meaning of persecution. See UNHCR

Handbook, para. 65.2

U.S. court and administrative

decisions have looked to a variety of

factors in considering the requirement

that an applicant must show that the

harm or suffering is inflicted by the

government or a person or group the

government is ‘‘unable or unwilling to

control.’’ Courts have concluded the

government is ‘‘unable or unwilling to

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules 76591

control’’ the infliction of harm or

suffering if the applicant has shown a

pattern of government

unresponsiveness. See Mgoian v. INS,

184 F.3d 1029, 1036–37 (9th Cir. 1999).

Both courts and the Board have also

looked to whether an applicant has

shown government complicity in the

face of persecution. See Korablina, 158

F.3d at 1045. Courts have often

considered the applicant’s attempts to

obtain protection from government

officials and the government response or

lack thereof. See Surita v. INS, 95 F.3d

814, 819–20 (9th Cir. 1996) (finding

persecution where the police refused to

respond to the applicant’s request for

assistance or provide a reasonable

explanation for their failure to respond);

Singh v. INS, 134 F.3d 962, 968 (9th Cir.

1998) (holding that the applicant failed

to establish persecution, in part because

the police responded to her call even

though police took no further action). In

the recent case of In re S–A–, Interim

Decision 3433 (BIA 2000), the Board

considered the applicant’s testimony

and country conditions information in

concluding that any attempts by the

applicant to seek protection would be

futile and potentially dangerous. Other

Board decisions illustrate the relevance

of government responses to persecution

by non-state actors. See, e.g., Matter of

V–T–S–, 21 I. & N. Dec. 792 (holding

that the record did not support claim

that the government was unable or

unwilling to protect when evidence

indicated that the government mounted

massive rescue efforts to find kidnapped

family members); In re O–Z– & I–Z–,

Interim Decision 3346 (BIA 1998)

(finding that the government was unable

or unwilling to control the respondent’s

attackers and protect him or his son

from the anti-Semitic acts of violence

when the respondent reported at least

three incidents of harm to the Ukrainian

government, which took no action

beyond writing a report). The UNHCR

Handbook emphasizes that the inability

to seek government protection may arise

from circumstances beyond the

applicant’s control, such as grave

disruptions within the country, or may

result from a denial of protection to the

applicant. UNHCR Handbook, para. 98.

When assessing whether a government

has denied protection, one factor to

consider is whether the applicant has

been denied services (e.g., refusal of a

national passport) normally accorded to

other nationals of that country. UNHCR

Handbook, para. 99.

Section 208.15(a)(1) of this rule

provides further guidance as to what is

meant by the state action requirement

and, specifically, the requirement that

the government be ‘‘unable or unwilling

to control’’ non-government persecutors.

The proposed rule states that ‘‘[i]n

evaluating whether a government is

unwilling or unable to control the

infliction of harm or suffering, the

immigration judge or asylum officer

should consider whether the

government takes reasonable steps to

control the infliction of harm or

suffering and whether the applicant has

reasonable access to the state protection

that exists.’’ The rule goes on to provide

a non-exclusive list of evidentiary

considerations that may be considered

as helpful in determining whether a

government is ‘‘unable or unwilling’’ to

control the non-state actor. This new

language codifies existing

administrative interpretations and

provides further guidance on this

relatively undeveloped area of the law.

This proposed list of evidentiary

considerations is not intended to change

the law, but merely to illustrate what

types of evidence may be relevant in

evaluating whether a government is

unable or unwilling to control the

infliction of suffering or harm. Of

course, no government is able to

guarantee the safety of each of its

citizens at all times. This is not the

standard for determining that a

government is ‘‘unable or unwilling to

control’’ the infliction of harm or

suffering. See, e.g., Aguilar-Solis v. INS,

168 F.3d 565, 573 (1st Cir. 1999)

(‘‘Although action by non-governmental

entities can constitute persecution, the

law requires at least some showing that

the alleged persecutors are not subject to

the government’s control.’’) (citations

omitted). Rather, the decision-maker

should consider the government’s

policies with respect to the harm or

suffering at issue, and what steps, if any,

the government has taken to prevent the

infliction of such harm or suffering. In

addition, the decision-maker should

consider what kind of access the

individual applicant has to whatever

protection is available, and any steps

the applicant has taken to seek such

protection. Any attempts by an

applicant to seek protection within the

country of persecution are relevant but

are not determinative of the state’s

inability or unwillingness to control the

infliction of suffering or harm. An

applicant’s failure to attempt to gain

access to protection is not in itself

determinative of the state’s inability or

unwillingness to control nor does this

failure bar an applicant from

establishing by other evidence the

state’s inability or unwillingness to

control the infliction of suffering or

harm. The adequacy of access to

protection may vary within a given

society depending on the individual

applicant’s circumstances and general

country conditions. For example, in

some countries, there generally may be

reasonable access to state protection, but

an applicant’s access to such protection

may be limited if the persecutor is

influential with government officials. As

another example, in some countries a

female victim of spousal abuse may be

able to obtain state protection if she has

the support of her family of origin in

seeking it, but her access to such

protection may be more limited without

such support. In each case, all factors

relevant to the availability of and access

to state protection should be examined

in determining whether the government

of the country in question is unwilling

or unable to protect the applicant from

a non-state persecutor. It is the

applicant’s burden to come forward

with the evidence that the harm or

suffering is inflicted by the government,

or an entity that the government is

unable or unwilling to control.

The ‘‘on account of’’ Requirement in

General

Even if it is determined that the harm

an applicant has suffered or fears may

constitute persecution, the applicant

may qualify for asylum or withholding

only if that persecution is inflicted ‘‘on

account of’’ the applicant’s race,

religion, nationality, membership in a

particular social group, or political

opinion. The Supreme Court has held

that, in order for persecution to be ‘‘on

account of’’ one of these protected

grounds, there must be evidence that the

persecutor seeks to harm the victim on

account of the victim’s possession of the

characteristic at issue. INS v. EliasZacarias, 502 U.S. 478, 482 (1992). As

administrative decision-makers and the

courts have applied this test to

individual cases, the determination

about when persecution is inflicted ‘‘on

account of’’ a protected ground has

raised difficult interpretive issues. This

rule provides guidance on several of

these issues.

Under long-standing principles of

U.S. refugee law, it is not necessary for

an applicant to show that his or her

possession of a protected characteristic

is the sole reason that the persecutor

seeks to harm him or her. Both the

Board and the federal courts have

recognized that a persecutor may have

mixed motivations, and have stated that

the ‘‘on account of’’ requirement is

satisfied if the persecutor acts ‘‘at least

in part’’ because of a protected

characteristic. See, e.g., Matter of T–M–

B–, 21 I. & N. Dec. 775 (BIA 1997),

overruled on other grounds sub nom.

76592 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules

3To the extent that the asserted particular social

group in In re R–A– could be interpreted to have

been defined by the persecution feared, this rule

clarifies below that a social group must exist

independently of the feared persecution.

Borja v. INS, 175 F.3d 732 (9th Cir.

1999) (en banc). Some court decisions

provide conflicting interpretations of

the extent to which the persecutor’s

motivation must relate to a protected

characteristic. Compare Singh v. Ilchert,

63 F.3d 1501, 1509 (9th Cir. 1995)

(‘‘[T]he BIA failed to recognize that

persecutory conduct may have more

than one motive, and so long as one

motive is one of the statutorily

enumerated grounds, the requirements

have been satisfied.’’); with

Gebremichael v. INS, 10 F.3d 28, 35 (1st

Cir. 1993) (alien must show that one of

the five characteristics is ‘‘at the root of

persecution, such that [the

characteristic] itself generates a ’specific

threat to the [applicant]’’) (internal

quotations and citation omitted). This

rule proposes new language at

§ 208.15(b) that would require an

applicant to show that the protected

characteristic is central to the

persecutor’s motivation to act.

Consistent with current law, this

language allows for the possibility that

a persecutor may have mixed motives.

It does not require that the persecutor be

motivated solely by the victim’s

possession of a protected characteristic.

It does, however, require that the

victim’s protected characteristic be

central to the persecutor’s decision to

act against the victim. For example,

under this definition it clearly would

not be sufficient if the protected

characteristic was incidental or

tangential to the persecutor’s

motivation.

A refugee is traditionally an

individual as to whom the bonds of

trust, loyalty, protection, and assistance

existing between a citizen and his

country have been broken and have

been replaced by the relationship of an

oppressor to a victim. Inherent in the

concept of refugee status is the principle

that an individual requires international

protection because his country of origin

or of habitual residence is not safe for

him, or cannot protect him, because of

persecution on account of one of the

five grounds specified in the definition

of ‘‘refugee.’’ See, e.g., Matter of Acosta,

19 I. & N. Dec. at 234–35; 1 A. GrahlMadsen, The Status of Refugees In

International Law 97, 100 (1966). The

proposed language that the protected

characteristic of the refugee be central to

the persecutor’s motivation is thus

supported by the purposes of the 1951

Convention.

The proposed language also

incorporates the doctrine of ‘‘imputed

political opinion’’ into the regulation.

Under this doctrine, an applicant may

establish persecution on account of

political opinion if he or she can show

that the persecutor was or is inclined to

persecute because the persecutor

perceives the applicant to possess a

particular political opinion, even if the

applicant does not in fact possess such

an opinion. See, e.g., Sangha v. INS, 103

F.3d 1482, 1489 (9th Cir. 1997). The

proposed language provides that an

applicant may satisfy the ‘‘on account

of’’ requirement by showing that the

persecutor acts against him or her ‘‘on

account of the applicant’s race, religion,

nationality, membership in a particular

social group, or political opinion, or on

account of what the persecutor

perceives to be the applicant’s race,

religion, nationality, membership in a

particular social group, or political

opinion.’’ Thus, this language codifies

the existing doctrine of imputed

political opinion, as well as the existing

administrative interpretation that this

doctrine also extends to the protected

grounds other than political opinion.

In re R–A–

The proposed new language in

§ 208.15(b) is intended to address

analytical issues that have arisen in the

context of some claims based on

domestic violence, and in particular in

the Board’s decision in In re R–A–,

Interim Decision 3403 (BIA 1999). In

that case, the Board denied asylum to a

Guatemalan woman who had been the

victim of severe domestic violence by

her husband in Guatemala and who

feared that she would be at risk of

continuing violence if she returned

there. Certain elements of the Board’s

analysis in this case affect the ‘‘on

account of’’ inquiry in asylum and

withholding cases in general, and the

‘‘particular social group’’ cases

especially. This rule sets forth a

modified statement of the principles

governing the ‘‘on account of’’ inquiry.

The applicant in In re R–A– presented

alternative claims of persecution on

account of political opinion (the

applicant’s opposition to male

domination) and on account of

membership in a particular social group

(defined as ‘‘Guatemalan women who

have been intimately involved with

Guatemalan male companions, who

believe that women are to live under

male domination’’). Id. at 10–14. The

Board found that the applicant’s

husband did not seek to harm her either

on account of her political opinion or on

account of her membership in a

particular social group. Id. at 14.

The Board’s analysis of the political

opinion claim is consistent with longstanding principles of asylum law and

is not altered by this rule. The Board

reasoned that the abuse in this case was

not on account of the applicant’s

political opinion because there was no

evidence that the applicant’s husband

was aware of the applicant’s opposition

to male dominance, or even that he

cared what her opinions on this matter

were. Rather, he continued to abuse her

regardless of what she said or did. Id. at

13–14. This portion of the decision is

consistent with the Supreme Court’s

reasoning in Elias-Zacarias, supra, and

with the Board’s own precedent that

harm is not on account of political

opinion when it is inflicted regardless of

the victim’s opinion rather than because

of that opinion. See Matter of Chang, 20

I. & N. Dec. 38, 44–45 (BIA 1989),

superceded on other grounds, Matter of

X–P–T–, 21 I. & N. Dec. 634 (BIA 1996).

The Board’s particular social group

analysis in In re R–A–, however,

requires some clarification. The Board

found that the violence in this case was

not ‘‘on account of’’ the applicant’s

membership in the particular social

group asserted—essentially Guatemalan

women intimately involved with

abusive Guatemalan men.3 Id. at 17. The

Service argued, and the Board agreed,

that there was no indication that the

applicant’s husband would harm any

other member of the asserted particular

social group. In other words, there was

no evidence that he would seek to harm

other women who live with other

abusive partners. Id. This was an

important factor in the Board’s decision

that the harm in that case was not on

account of membership in a particular

social group. The Board did consider

other factors in reaching its conclusion

that no nexus had been shown between

the husband’s violence and the claimed

particular social group. However, the

Board’s reasoning on this point could be

construed to foreclose the possibility of

satisfying the ‘‘on account of’’

requirement when the persecutor does

not seek to harm other members of the

asserted particular social group.

As an evidentiary matter, it often

would be reasonable to expect that a

person who is motivated to harm a

victim because of a characteristic the

victim shares with others would be

prone to harm or threaten others who

share the targeted characteristic. Such a

showing should not necessarily be

required as a matter of law, however, in

order for an applicant to satisfy the ‘‘on

account of’’ requirement. In some cases,

a persecutor may in fact target an

individual victim because of a shared

characteristic, even though the

persecutor does not act against others

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules 76593

who possess the same characteristic. For

example, in a society in which members

of one race hold members of another

race in slavery, that society may expect

that a slave owner who beats his own

slave would not beat the slave of his

neighbor. It would nevertheless be

reasonable to conclude that the beating

is centrally motivated by the victim’s

race. Similarly, in some cases involving

domestic violence, an applicant may be

able to establish that the abuser is

motivated to harm her because of her

gender or because of her status in a

domestic relationship. This may be a

characteristic that she shares with other

women in her society, some of whom

are also at risk of harm from their

partners on account of this shared

characteristic. Thus, it may be possible

in some cases for a victim of domestic

violence to satisfy the ‘‘on account of’’

requirement, even though social

limitations and other factors result in

the abuser having the opportunity, and

indeed the motivation, to harm only one

of the women who share this

characteristic, because only one of these

women is in a domestic relationship

with the abuser.

To allow for this possibility, this rule

provides that, when evaluating whether

an applicant has met his or her burden

of proof to establish that the harm he or

she suffered or fears is ‘‘on account of’’

a protected characteristic, ‘‘[b]oth direct

and circumstantial evidence may be

relevant to the inquiry.’’ The rule

further provides that ‘‘[e]vidence that

the persecutor seeks to act against other

individuals who share the applicant’s

protected characteristic is relevant and

may be considered but shall not be

required.’’

In every asylum or withholding case,

of course, it remains the applicant’s

burden to establish that the specific

persecutor involved in her claim is

motivated to act against her because of

her possession or perceived possession

of a protected characteristic. As this rule

underscores, both direct and

circumstantial evidence may be relevant

to this determination. As in any asylum

or withholding case, evidence about the

persecutor’s statements and actions will

be considered. In addition, evidence

about patterns of violence in the society

against individuals similarly situated to

the applicant may also be relevant to the

‘‘on account of’’ determination. For

example, in the domestic violence

context, an adjudicator would consider

any evidence that the abuser uses

violence to enforce power and control

over the applicant because of the social

status that a woman may acquire when

she enters into a domestic relationship.

This would include any direct evidence

about the abuser’s own actions, as well

as any circumstantial evidence that such

patterns of violence are (1) supported by

the legal system or social norms in the

country in question, and (2) reflect a

prevalent belief within society, or

within relevant segments of society, that

cannot be deduced simply by evidence

of random acts within that society. Such

circumstantial evidence, in addition to

direct evidence regarding the abuser’s

statements or actions, would be relevant

to determining whether the abuser

believes he has the authority to abuse

and control the victim ‘‘on account of’’

her status in the relationship.

Further, a claim involving domestic

violence in which the applicant has

satisfied the ‘‘on account of’’

requirement remains subject to the full

range of generally applicable

requirements under the asylum and

withholding laws. For example, as in

any other case, the fear of future abuse

cannot be speculative, it must be ‘‘wellfounded.’’ A woman who is not in an

abusive relationship, for example,

would not have a ‘‘well-founded’’ fear of

domestic violence even if there is a high

incidence of domestic violence in her

country of origin. The harm feared must

be serious enough to constitute

persecution; isolated incidents of

discrimination or lesser forms of harm

would not qualify as persecution. As in

any asylum or withholding case in

which the persecutor is not the state

itself, the applicant would have to show

that the state is unwilling or unable to

protect her. Generally, an applicant’s

claim based on domestic violence will

rest on personal experiences not

addressed in general country conditions

information. General country conditions

information may, however, support

such a claim. The applicant should

come forward with testimony regarding

her personal experience, and, if

available, documentary evidence

relating to her claim.

This rule will also affect the analysis

of asylum or withholding claims made

by alleged abusers. A perpetrator of

domestic violence serious enough to be

persecution, who has abused the victim

because of the victim’s membership in

a particular social group, would be

barred from seeking asylum under

section 101(a)(42) of the Act. 8 U.S.C.

1101(a)(42). The Service will consider

ways to identify these individuals. Of

course, if removable, these individuals

would normally be entitled to a full

hearing prior to removal, during which

all evidence relevant to eligibility could

be presented and considered. This will

allow the government to protect our

asylees and residents against

persecutors.

Membership in a Particular Social

Group

Once an applicant has established

that the harm he or she has suffered or

fears is ‘‘on account of’’ the

characteristic asserted, the applicant

must establish that the characteristic

qualifies as race, religion, nationality,

membership in a particular social group,

or political opinion. Membership in a

particular social group is perhaps the

most complex and difficult to

understand of these five grounds. There

is relatively little precedent about the

meaning of ‘‘a particular social group,’’

and that which exists has at times been

subject to conflicting interpretations.

This rule sets out the requirements for

determining what qualifies as ‘‘a

particular social group,’’ clarifies the

relevance of past experience, and

provides a list of non-determinative

factors to be considered.

The key Board decision on the

meaning of ‘‘a particular social group’’

requires that members of the group

share a ‘‘common, immutable’’ trait.

Matter of Acosta, 19 I. & N. Dec. at 233.

This rule codifies this basic approach at

§ 208.15(C)(1), by providing that ‘‘[a]

particular social group is composed of

members who share a common,

immutable characteristic, such as sex,

color, kinship ties, or past experience,

that a member either cannot change or

that is so fundamental to the identity or

conscience of the member that he or she

should not be required to change it.’’

The crucial aspect of this definition is

that, to be immutable, the common trait

must be unchangeable or truly

fundamental to an applicant’s identity.

Gender is clearly such an immutable

trait, is listed as such in Matter of

Acosta, and is incorporated in this rule.

Further, there may be circumstances in

which an applicant’s marital status

could be considered immutable. This

would be the case, for example, if a

woman could not reasonably be

expected to divorce because of religious,

cultural, or legal constraints. Any

intimate relationship, including

marriage, could also be immutable if the

evidence indicates that the relationship

is one that the victim could not

reasonably be expected to leave. Thus,

this rule further provides in

§ 208.15(C)(1) that ‘‘[i]n determining

whether an applicant cannot change, or

should not be expected to change, the

shared characteristic, all relevant

evidence should be considered,

including the applicant’s individual

circumstances and country conditions

information about the applicant’s

society.’’

76594 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules

This rule also includes the principle

that the particular social group in which

an applicant claims membership cannot

be defined by the harm which the

applicant claims as persecution. It is

well-established in the case law that this

type of circular reasoning does not

suffice to articulate a particular social

group. See Gomez v. INS, 947 F.2d 660,

664 (2d Cir. 1991) (rejecting the

applicant’s claim to membership in a

particular social group of women who

have been previously battered and raped

by Salvadoran guerrillas). It is also

supported by Convention-based

understandings of the definition of

membership in a particular social group.

See, e.g., Islam v. Secretary of State for

the Home Department, 2 App. Cas. 629

(H.L. 1999) (United Kingdom) (‘‘It is

common ground that there is a general

principle that there can only be a

‘particular social group’ if the group

exists independently of the

persecution’’) (Lord Steyn).

Proposed § 208.15(c)(2) provides that,

‘‘[w]hen past experience defines a

particular social group, the past

experience must be an experience that,

at the time it occurred, the member

either could not have changed or was so

fundamental to his or her identity or

conscience that he or she should not

have been required to change it.’’ This

is consistent with current case law that

recognizes that past experiences can be

the basis for membership in a particular

social group. See Matter of Fuentes, 19

I. & N. Dec. 658, 662 (BIA 1988). The

regulatory language preserves the key

requirement from Matter of Acosta,

supra, that the trait defining a particular

social group must be a fundamental one,

which an individual should not be

required to change. In reality, of course,

no past experience can be changed, as

it has already occurred. But not all past

experiences should qualify as traits

which, if shared by others, can define a

particular social group for asylum and

withholding purposes. The experience

of joining a violent gang in the past, for

example, cannot be changed. At that

point in the past, however, that

experience could have been avoided or

changed. In other words, the individual

could have refrained from joining the

group. Certainly, it is reasonable for any

society to require its members to refrain

from certain forms of illegal activity.

Thus, for example, under this language,

persons who share the past experience

of having joined a gang would not

constitute a particular social group on

the basis of a past experience.

The requirement in § 208.15(C)(1) that

the persecution exist independently of

the harm is equally applicable to claims

of membership in a particular social

group based on past experience. At least

in theory, a shared past experience that

defines a social group could be harm

suffered by the applicant and other

group members in the past. In such a

claim however, the past harm that

defines the social group cannot be the

same harm that the applicant claims as

persecution. Rather, in order for

persecution to be ‘‘on account of’’

membership in such a group, the past

experience must exist independently of

the persecution. In fact, the past

experience must be the reason the

persecutor inflicted or is inclined to

inflict the persecution on the applicant.

Finally, the proposed language in

§ 208.15(C)(3) provides a non-exclusive

list of additional factors that may be

considered in determining whether a

particular social group exists. These

factors are drawn from existing

administrative and judicial precedent

on the meaning of the ‘‘particular social

group’’ ground. These precedents have

been subject to conflicting

interpretations, however, and this

provision resolves those ambiguities by

providing that, while these factors may

be relevant in some cases, they are not

requirements for the existence of a

particular social group.

The first three factors in this section

are drawn from the Ninth Circuit’s

decision in Sanchez-Trujillo v. INS, 801

F.2d 1571 (9th Cir. 1986). In that case,

the Ninth Circuit stated that ‘‘the phrase

‘particular social group’ implies a

collection of people closely affiliated

with each other, who are actuated by

some common impulse or interest,’’ id.

at 1576, and that ‘‘[o]f central concern

is the existence of a voluntary

associational relationship among the

purported members,’’ id. These factors

have often been interpreted as

prerequisites for the existence of a

particular social group in the Ninth

Circuit. The Ninth Circuit clarified the

significance of these factors in the

recent case of Hernandez-Montiel v.

INS, 225 F.3d 1084 (9th Cir. 2000). The

court held that its decision in SanchezTrujillo should be interpreted as

consistent with the Board’s decision in

Matter of Acosta and that the voluntary

associational test is an alternative basis

for establishing membership in a

particular social group. See 225 F.3d at

1093 n.6. Other circuits have not

applied this factor, and, instead have

simply relied on the Board’s

determination that the group must share

a ‘‘common, immutable’’ characteristic.

See, e.g., Fatin v. INS, 12 F.3d 1233,

1239 (3d Cir. 1993) (quoting Matter of

Acosta, 19 I. & N. Dec. at 233). In cases

arising outside the Ninth Circuit, the

Board has decided that a particular

social group may exist without reference

to these factors. See, e.g., Matter of

Toboso-Alfonso, 20 I. & N. Dec. 819,

820–21 (BIA 1990) (Cuban homosexuals

are a particular social group); Matter of

Kasinga, 21 I. & N. Dec. at 365 (young

women who belong to a specific

Togolese tribe and who oppose FGM are

a particular social group). To ensure

uniform and fair administrative

adjudications of particular social group

asylum claims, this rule clarifies that

the Department views the SanchezTrujillo factors as considerations that

may be relevant in some cases, but not

as requirements for a particular social

group.

Similarly, the next three factors in

this proposed section are drawn from

the Board’s decision in In re R-A-. In

that case, the Board found it highly

significant for ‘‘particular social group’’

analysis that the applicant had not

shown that the group she asserted ‘‘is a

group that is recognized and understood

to be a societal faction, or is otherwise

a recognized segment of the population,

within Guatemala,’’ or that ‘‘the victims

of spouse abuse view themselves as

members of this group.’’ Id. at 15. The

Board also focused on whether ‘‘it is

more likely that distinctions will be

drawn within the society between those

who share and those who do not share

the characteristic’’ at issue. Id. at 16.

This, of course, could be an important

inquiry in asylum and withholding

cases. The Board did not characterize

these elements as requirements,

however. This rule incorporates them as

factors, but confirms that they are

considerations, which, while they may

be relevant in some cases, are not

determinative of the question of

whether a particular social group exists.

In applying the factor at

§ 208.15(c)(3)(vi)—whether members of

a given group are distinguished for

different treatment—it would be

relevant to consider any evidence about

societal attitudes toward group members

or about harm to group members,

including whether the institutions of the

society at hand offer fewer protections

or benefits to members of the group than

to other members of society. In In re RA-, for example, evidence presented that

would be relevant to this inquiry

included the applicant’s testimony that

the police did not respond to her calls

for help, and that, when she appeared

before a judge, he told her that he would

not interfere in domestic disputes.

Further, the Board’s conclusion that

documentary country conditions

evidence indicates that ‘‘Guatemalan

society still tends to view domestic

violence as a family problem’’ would

also be relevant. This type of evidence

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules 76595

may be considered in determining

whether, because the applicant

possesses a particular characteristic,

harm inflicted on the applicant may be

tolerated by society while it would not

be tolerated if inflicted on members of

the society at large.

The Department has elected at this

point to propose that the relationship of

In re R-A- and domestic violence claims

to the definition of ‘‘refugee’’ be

addressed by articulating broadly

applicable principles to guide

adjudicators in applying the refugee

definition and other statutory and

regulatory provisions generally. The

Department has tentatively concluded

that this approach would be more useful

than simply announcing a categorical

rule that a victim of domestic violence

is or can be a refugee on account of that

experience or fear, or that persons

presenting such claims may be found

eligible for relief or granted relief as a

matter of discretion in certain specified

circumstances. The current proposal of

the Department would encourage

development of the law in the area of

domestic violence as well as in other

new claims that may arise. Asylum and

withholding cases are typically highly

fact specific. A case-by-case approach

would reflect that reality, and would

also leave the refinement of applicable

principles open to further development.

The Department is nonetheless seeking

comments on the relative merits of this

approach, and other possible

approaches, to providing for

consideration of domestic violence

claims as a basis for asylum and

withholding of removal.

This rule does not modify the

definition of ‘‘firm resettlement.’’ The

rule merely changes its placement to

§ 208.15(d) of the regulations.

Burden of Proof

Under U.S. law, a showing of past

persecution qualifies an applicant for

refugee status. Section 101(a)(42) of the

Act, (8 U.S.C. 1101(a)(42)). A showing of

past persecution is also strongly

indicative of the possibility of future

harm. Under the current regulations as

modified by the final rule on asylum

procedures published in conjunction

with this rule, a presumption of wellfounded fear applies to applicants who

qualify as refugees based on past

persecution. The presumption places

the burden on the U.S. government to

show by a preponderance of the

evidence that a refugee no longer has a

well-founded fear of future persecution.

The Department believes that this

allocation of the burden generally is

appropriate in light of the applicant’s

refugee status.

The final rule on asylum procedures

published in conjunction with this rule

broadens the evidence with which the

government can rebut the presumption

of well-founded fear. The presumption

can be rebutted by evidence of a

fundamental change in circumstances,

including country conditions

information, or a showing of a

reasonable internal relocation

alternative. The Department recognizes

that some cases involving past

persecution by non-government

persecutors may present questions about

whether the presumption of a wellfounded fear of future persecution is

appropriate. For example, to some

commenters, the presumption of

internal relocation may seem less

warranted in cases involving nongovernment actors, or especially in

those cases involving individual nongovernment actors, for which there may

be more reason to believe that the victim

could relocate. Some commenters may

believe that certain types of individual

non-government actor cases warrant a

presumption more than others and

should therefore be treated differently.

The Violence Against Women Office

of the Department of Justice has offered

the following observations about

domestic violence, based on its

experience in the U.S. as well as with

foreign governments and nongovernmental organizations:

It is our experience that domestic violence

manifests similar characteristics across all

racial, ethnic and socioeconomic groups, and

that many cultures have a variety of ways in

which they condone and perpetuate domestic

violence. See, e.g., Lori J. Heise, Violence

Against Women: The Hidden Health Burden

(World Bank Discussion Papers 1994);

Ending Violence Against Women, 27

Population Reports 5 (Johns Hopkins School

of Public Health, Dec. 1999) (summarizing

surveys from many countries discussing

domestic violence). See generally H.R. Rep.

103–395, at 25–28 (1993) (congressional

findings of fact about domestic violence).

First, in relationships involving domestic

violence, past behavior is a strong predictor

of future behavior by the abuser. See, e.g.,

United States Department of Justice,

Understanding Domestic Violence: A

handbook for Victims and Professionals.

Victims report patterns of abuse—rather than

single, isolated incidents—that tend to

include the repeated use of physical, sexual

and emotional abuse, threats, intimidation,

isolation and economic coercion. See, e.g.,

Anne L. Ganley, ‘‘Understanding Domestic

Violence,’’ in Improving The Health Care

Response to Domestic Violence: A Resource

Manual for Health Care Providers 15 (Debbie

Lee et al. eds., 1996). Second, both

domestically and internationally, domestic

violence centers on power and control over

the victim. See, e.g., Violence against Women

in the International Community, 7 Cardozo J.

Int’l & Comp. L. 205–318 (multiple authors

discussing violence against women

internationally). See generally Violence

Against Women: An International and

Interdisciplinary Journal (multiple volumes).

Consequently, when victims attempt to flee

the abusive relationship, or otherwise assert

their independence, abusers often pursue

them and escalate the violence to regain or

reassert control. See, e.g., United States

Department of Justice, Stalking and Domestic

Violence: The Third Annual Report to

Congress under the Violence Against Women

Act (1998); see also Barbara J. Hart, ‘‘The

Legal Road to Freedom,’’ in Battering and

Family Therapy: A Feminist Perspective 13

(Marsali Hansen & Michele Harway eds.,

1993) (citing a variety of studies on

separation violence). The risk of lethality to

the victim is typically greatest when she

attempts to escape the abuse and, in contrast

to other persecution cases where the

persecutor’s desire to harm the victim may

wane if the victim leaves, the victim’s

attempt to leave typically increases the

abuser’s motivation to locate and harm her.

See, e.g., Kerry Healey et al., Batterer

Intervention: Program Approaches and

Criminal Justice Strategies (United States

Department of Justice, National Institute of

Justice, Feb. 1998); 27 Population Reports 7

(discussing this issue in foreign countries);

Evan Stark & Anne Flintcraft, ‘‘Violence

Among Intimates: An Epidemiological

Review,’’ in Handbook of Family Violence

293 (Vincent B. Van Hasselt et al. eds., 1988);

Martha R. Mahoney, Legal Images of Battered

Women: Redefining the Issues of Separation,

90 Mich. L. Rev. 1, 64–65 (1991). Third,

because of the abuser’s intimate relationship

with the victim, he is likely to possess

important information about where the

victim could go or to whom she would turn

for assistance.

These observations seem to support

retaining the presumption of wellfounded fear of future persecution for

those applicants who have established

past persecution by an individual nonstate actor in the domestic violence

context. The Department recognizes

however, that this rule does not address

other types of individual, non-state

actor cases that may arise in the future.

Therefore, the Department solicits

suggestions as to whether it should

continue to maintain the presumption of

well-founded fear of future persecution,

including the presumption of internal

relocation, in cases involving

persecutors who are non-state actors.

The Department welcomes the views of

the public on the merits of the approach

proposed in this rule and will carefully

weigh all comments in articulating the

final rule.

In all cases of past persecution the

government may rebut the presumption

of well-founded fear of future

persecution. The Department recognizes

that, especially if the general rule

concerning burden of proof is retained

for cases involving individual non-state

actors, some of the new types of claims

76596 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules

based on persecution by individuals

may present a question of production of

evidence useful to rebuttal that may be

uniquely in the hands of the applicant

claiming persecution. Moreover,

whether or not the burden of proof is

retained in this context, the Department

has concluded that it would be

appropriate to codify long-standing

principles of law relating to the

applicant’s burden of production in

asylum and withholding cases. For

example, in the domestic violence

context, an applicant’s claim will rest

on direct evidence regarding her

experiences with the persecutor that are

not addressed in general country

conditions information. Circumstantial

evidence, such as general country

conditions information also may

support such a claim. Under current

case law, evidence relating to the

applicant’s personal experiences or

personal knowledge of the likelihood of

future harm should be provided by the

applicant if reasonably available, or an

explanation should be given as to why

such information was not presented.

This is well-established in the case law.

See Matter of S–M–J–, 21 I. & N. Dec.

722, 724 (BIA 1997)(en banc).

Furthermore, ‘‘where there are

significant, meaningful evidentiary

gaps, applications will ordinarily have

to be denied for failure of proof.’’ Matter

of Dass, 20 I. & N. Dec. 120, 124 (BIA

1989) (citing 8 CFR 208.5,

242.17(c)(1988)).

Being accorded the presumption of

well-founded fear does not relieve the

applicant of the burden of producing

testimony or documentation reasonably

available, especially evidence within

the knowledge of the applicant. Failure

to do so can be considered in (1) making

a factual determination that the

presumption has been rebutted, (2) in

credibility determinations, and (3) in

the exercise of discretion in granting

asylum. The inquiry of an immigration

judge or asylum officer considering

evidence relevant to a discretionary

grant of asylum or a grant of

withholding will normally include

factors relating to future persecution

even in cases where past persecution

has been shown. For example, the

adjudicator should make inquiries into

factors such as whether there has been

a fundamental change in circumstances,

the ability of the applicant to relocate,

the location and status of the persecutor

if known, and any evidence of a pattern

of pursuit by the persecutor. This is

consistent with the adjudicator’s ability

to consider all facts he or she deems

relevant to an asylum or withholding

claim.

Finally, this proposed rule adds

language to §§ 208.13(b)(1)(ii) and

208.16(b)(1)(ii) clarifying the procedural

handling of asylum and withholding

claims in cases where the government

has the burden of rebutting a

presumption of well-founded fear of

persecution or likelihood of future

threat to life or freedom. The final

regulations on asylum procedures

published in conjunction with this

proposed rule provide that, when an

applicant for asylum establishes that he

or she suffered past persecution, the

applicant will be presumed also to have

a well-founded fear of persecution,

unless a preponderance of the evidence

establishes that there has been a

fundamental change in circumstances

such that the applicant no longer has a

well-founded fear of persecution, or the

applicant could reasonably avoid future

persecution by relocating to another part

of the applicant’s country or, if stateless,

the applicant’s country of last habitual

residence. See 8 CFR 208.13(b)(1)(i). A

similar presumption applies to

applicants for withholding of removal.

See 8 CFR 208.16(b)(1) (upon showing

of past persecution, presumption arises

that it is more likely than not that

applicant will face future persecution,

unless a preponderance of the evidence

demonstrates fundamental change of

circumstances or that it would be

reasonable for the applicant to relocate

within the country of persecution).

Confusion has arisen concerning the

proper disposition of cases in which a

finding of no past persecution is

reversed on appeal. This rule will codify

a principle that, when an immigration

judge or the Board finds that the

applicant has failed to establish past

persecution, the question of

fundamental changed circumstances

and reasonable internal relocation shall

be deemed reserved, and the Service

shall not be required to present

evidence on fundamental changed

circumstances or reasonable internal

relocation to preserve the issues.

Accordingly, if the immigration judge’s

or Board’s finding of no past

persecution is set aside, the Service will

remain free on remand to present

evidence and argument on the question

of changes in country conditions or

internal relocation.

This rule is consistent with

established rules governing judicial

review of agency action and of civil

procedure. When a federal court reviews

final agency action such as a decision of

the Board:

[i]f the record before the agency does not

support the agency action, if the agency has

not considered all relevant factors, or if the

reviewing court simply cannot evaluate the

challenged agency action on the basis of the

record before it, the proper course, except in

rare circumstances, is to remand to the

agency for additional investigation or

explanation. The reviewing court is not

generally empowered to conduct a de novo

inquiry into the matter being reviewed and

to reach its own conclusions based on such

an inquiry.

Florida Power & Light Co. v. Lorion, 470

U.S. 729, 744 (1985). Similarly, in

ordinary civil litigation, absent a

contrary order in the particular case, if

a party moves for, or a district court

grants, summary judgment for a party on

one of a number of potentially

dispositive grounds, that ruling does not

mean that the party is abandoning or the

court is addressing sub silentio possible

alternative grounds of decision. And, if

that narrow grant of summary judgment

is reversed on appeal, the court of

appeals does not proceed to enter

summary judgment for the opposing

party on a ground that was not

addressed by the district court’s ruling.

Rather, the case is remanded for further

proceedings.

We have concluded that a similar

approach should be made explicit in the

context of immigration judge or Board

decisions finding an absence of past

persecution—the immigration judge’s or

Board’s silence on the question of

fundamental changed circumstances or

reasonable internal relocation should

not be considered an implicit resolution

of the question, and the case should be

remanded for the presentation of

evidence and a decision by the Board or

immigration judge in the first instance.

The contrary practice is not only

inconsistent with ordinary practice, but

encourages the Board, immigration

judges, and the Service to engage in

potentially wasteful expenditures of

resources litigating and deciding issues

that may not ever need to be resolved

in the proceeding if the initial finding

of no past persecution is sustained.

This rule, once final, will apply to all

cases currently pending before the

asylum office, the immigration courts

and the Board of Immigration Appeals.

Regulatory Flexibility Act

The Attorney General, in accordance

with the Regulatory Flexibility Act, 5

U.S.C. 605(b), has reviewed this

regulation and, by approving it, certifies

that this rule will not have a significant

impact on a substantial number of small

entities because this rule involves the

process for adjudication of certain

requests for asylum and withholding of

removal. This process affects

individuals and not small entities.

Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules 76597

Unfunded Mandates Reform Act of

1995

This rule will not result in the

expenditure by state, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any 1-year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

Small Business Regulatory Enforcement

Fairness Act of 1996

This rule is not a major rule as

defined by section 251 of the Small

Business Regulatory Enforcement Act of

1996. 5 U.S.C. 804. This rule will not

result in an annual effect on the

economy of $100 million or more; a

major increase in costs or prices; or

significant adverse effects on

competition, employment, investment,

productivity, innovation, or on the

ability of the United States-based

companies to compete with foreignbased companies in domestic and

export markets.

Executive Order 12866

This rule is considered by the

Department of Justice to be a

‘‘significant regulatory action’’ under

Executive Order 12866, Regulatory

Planning and Review. Accordingly, this

regulation has been submitted to the

Office of Management and Budget for

review.

Executive Order 13132

This rule will not have substantial

direct effects on the states, on the

relationship between the national

Government and the states, or on the

distribution of power and responsibility

among the various levels of government.

Therefore, in accordance with section 6

of Executive Order 13132, it is

determined that this rule does not have

sufficient federalism implications to

warrant the preparation of a federalism

summary impact statement.

Executive Order 12988

This interim rule meets the applicable

standards set forth in sections 3(a) and

3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

Under the Paperwork Reduction Act

of 1995, Pub. L. 104–13, all Departments

are required to submit to the Office of

Management and Budget (OMB), for

review and approval, any reporting or

recordkeeping requirements inherent in

a final rule. This rule does not impose

any new reporting or recordkeeping

requirements under the Paperwork

Reduction Act.

List of Subjects in 8 CFR Part 208

Administrative practice and

procedure, Aliens, Immigration,

Reporting and recordkeeping

requirements.

Accordingly, part 208 of chapter I of

title 8 of the Code of Federal

Regulations is proposed to be amended

as follows:

PART 208—PROCEDURES FOR

ASYLUM AND WITHHOLDING OF

REMOVAL

1. The authority citation for part 208

continues to read as follows:

Authority: 8 U.S.C. 1103, 1158, 1226, 1252,

1282; 8 CFR part 2.

2. Section 208.13 is amended by

revising paragraphs (b)(1) and

(b)(1)(ii)(B) to read as follows:

§ 208.13 Establishing asylum eligibility.

* * * * *

(b) * * *

(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 in the

applicant’s country of nationality or, if

stateless, 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. This 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. Although a presumption

of future persecution is raised by a

finding of past persecution, this does

not relieve the applicant of the burden

of producing testimonial evidence or,

where reasonably available to the

applicant, documentary evidence

relating to future persecution, including

to a fundamental change in

circumstances or the reasonableness of

internal relocation.

(i) * * *

(ii) * * *

(B) When the immigration judge or

Board finds that the applicant has failed

to establish past persecution, the

questions of fundamental changed

circumstances and reasonable internal

relocation shall be deemed reserved and

the Service shall not be required to

present evidence to preserve the issues.

If that finding is set aside, the Service

and the applicant shall be permitted on

remand to submit evidence and

argument on the questions of

fundamental changed circumstances

and reasonable internal relocation

before any ruling on these matters is

issued.

* * * * *

3. Section 208.15 is revised to read as

follows:

§ 208.15 Definitions.

(a) Persecution. Persecution is the

infliction of objectively serious harm or

suffering that is subjectively

experienced as serious harm or suffering

by the applicant, regardless of whether

the persecutor intends to cause harm.

Inherent in the meaning of the term

persecution is that the serious harm or

suffering that an applicant experienced

or fears must be inflicted by the

government of the country of

persecution or by a person or group that

government is unwilling or unable to

control. In evaluating whether a

government is unwilling or unable to

control the infliction of harm or

suffering, the immigration judge or

asylum officer should consider whether

the government takes reasonable steps

to control the infliction of harm or

suffering and whether the applicant has

reasonable access to the state protection

that exists. Evidence of the following are

pertinent and may be considered:

Government complicity with respect to

the infliction of harm or suffering at

issue; attempts by the applicant, if any,

to obtain protection from government

officials and the government’s response

to these attempts; official action that is

perfunctory; a pattern of government

unresponsiveness; general country

conditions and the government’s denial

of services; the nature of the

government’s policies with respect to

the harm or suffering at issue; and any

steps the government has taken to

prevent infliction of such harm or

suffering.

(b) On account of the applicant’s

protected characteristic. An asylum

applicant must establish that the

persecutor acted, or that there is a

reasonable possibility that the

persecutor would act, against the

applicant on account of the applicant’s

race, religion, nationality, membership

in a particular social group, or political

opinion, or on account of what the

persecutor perceives to be the

76598 Federal Register / Vol. 65, No. 236 / Thursday, December 7, 2000 / Proposed Rules

applicant’s race, religion, nationality,

membership in a particular social group,

or political opinion. In cases involving

a persecutor with mixed motivations,

the applicant must establish that the

applicant’s protected characteristic is

central to the persecutor’s motivation to

act against the applicant. Both direct

and circumstantial evidence may be

relevant to the inquiry. Evidence that

the persecutor seeks to act against other

individuals who share the applicant’s

protected characteristic is relevant and

may be considered but shall not be

required.

(c) Membership in a particular social

group.

(1) A particular social group is

composed of members who share a

common, immutable characteristic, such

as sex, color, kinship ties, or past

experience, that a member either cannot

change or that is so fundamental to the

identity or conscience of the member

that he or she should not be required to

change it. The group must exist

independently of the fact of persecution.

In determining whether an applicant

cannot change, or should not be

expected to change, the shared

characteristic, all relevant evidence

should be considered, including the

applicant’s individual circumstances

and information country conditions

information about the applicant’s

society.

(2) When past experience defines a

particular social group, the past

experience must be an experience that,

at the time it occurred, the member

either could not have changed or was so

fundamental to his or her identity or

conscience that he or she should not

have been required to change it.

(3) Factors that may be considered in

addition to the required factors set forth

in paragraph (b)(2)(i) of this section, but

are not necessarily determinative, in

deciding whether a particular social

group exists include whether:

(i) The members of the group are

closely affiliated with each other;

(ii) The members are driven by a

common motive or interest;

(iii) A voluntary associational

relationship exists among the members;

(iv) The group is recognized to be a

societal faction or is otherwise a

recognized segment of the population in

the country in question;

(v) Members view themselves as

members of the group; and

(vi) The society in which the group

exists distinguishes members of the

group for different treatment or status

than is accorded to other members of

the society.

(d) Firm resettlement. An alien is

considered to be firmly resettled if, prior

to arrival in the United States, he or she

entered into another country with, or

while in that country received, an offer

of permanent resident status,

citizenship, or some other type of

permanent resettlement unless he or she

establishes:

(1) That his or her entry into that

country was a necessary consequence of

his or her flight from persecution, that

he or she remained in that country only

as long as was necessary to arrange

onward travel, and that he or she did

not establish significant ties in that

country; or

(2) That the conditions of his or her

residence in that country were so

substantially and consciously restricted

by the authority of the country of refuge

that he or she was not in fact resettled.

In making his or her determination, the

asylum officer or immigration judge

shall consider the conditions under

which other residents of the country

live, the type of housing made available

to the refugee, whether permanent or

temporary, the types and extent of

employment available to the refugee,

and the extent to which the refugee

received permission to hold property

and to enjoy other rights and privileges,

such as travel documentation including

a right of entry or reentry, education,

public relief, or naturalization,

ordinarily available to others resident in

the country.

4. Section 208.16 is amended by

revising paragraphs (b)(1) and

(b)(1)(ii)(B) to read as follows:

§ 208.16 Withholding of removal under

section 241(b)(3) of the Act and withholding

of removal under the Convention Against

Torture.

* * * * *

(b) * * *

(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 that paragraph (b)(1)(i)(A) or

(B) of this section applies. 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. Although a

presumption of future persecution is

raised by a finding of past persecution,

this does not relieve the applicant of the

burden of producing testimonial

evidence, or where reasonably available

to the applicant, documentary evidence,

relating to future persecution, including

to a fundamental change in

circumstances or the reasonableness of

internal relocation.

(i) * * *

(ii) * * *

(B) When the immigration judge or

Board finds that the applicant has failed

to establish past persecution, the

questions of fundamental change in

circumstances and reasonable internal

relocation shall be deemed reserved and

the Service shall not be required to

present evidence to preserve the issues.

If that finding is set aside, the Service

and the applicant shall be permitted on

remand to submit evidence and

argument on the questions of

fundamental change in circumstances

and reasonable internal relocation

before any ruling on these matters is

issued.

* * * * *

Dated: November 22, 2000.

Janet Reno,

Attorney General.

[FR Doc. 00–30602 Filed 12–6–00; 8:45 am]

BILLING CODE 4410–10–P

DEPARTMENT OF LABOR

Occupational Safety and Health

Administration

29 CFR Part 1910

[Docket No. H–052G]

Occupational Exposure to Cotton Dust

AGENCY: Occupational Safety and Health

Administration (OSHA), Labor.

ACTION: Proposed rule; request for

comments.

SUMMARY: OSHA is proposing to amend

the Cotton Dust Standard to add batch

kier washed cotton to the types of

washed cotton granted partial

exemption from the Cotton Dust

Standard, because those methods greatly

reduce the risk of byssinosis when that

cotton is spun and woven. This

amendment is based on the

recommendation of the industry/

government/union Task Force for

Byssinosis Prevention and supported by

published studies and government,

union, and industry experts.

Because OSHA believes the

amendment is not controversial, the

Agency is issuing it as a direct final rule

published in the Final Rules section of