Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 / Proposed Rules 31945

Commission, 43 State Street, P.O. Box

1058, Montpelier, Vermont 05601, (802)

229–2028 (fax).

For more information contact the

Compact Commission offices.

List of Subjects in 7 CFR Parts 1301,

1304 and 1306

Milk.

Codification in Code of Federal

Regulations

For reasons set forth in the preamble,

the Northeast Dairy Compact

Commission proposes to amend 7 CFR

Chapter XIII as follows:

PART 1301—DEFINITIONS

1. The authority citation for part 1301

continues to read as follows:

Authority: 7 U.S.C. 7256.

2. Section 1301.12 is revised to read

as follows:

§ 1301.12 Producer milk.

Producer milk means milk that the

handler has received from producers

and is physically moved to a pool plant

in the regulated area or is diverted

pursuant to § 1301.23(c) . The quantity

of milk received by a handler from

producers shall include any milk of a

producer that was not received at any

plant but which the handler or an agent

of the handler has accepted, measured,

sampled, and transferred from the

producer’s farm tank into a tank truck

during the month. Such milk shall be

considered as having been received at

the pool plant at which other milk from

the same farm of that producer is

received by the handler during the

month, except that in the case of a

cooperative association in its capacity as

a handler under § 1301.9(d), the milk

shall be considered as having been

received at a plant in the zone location

of the pool plant, or pool plants within

the same zone, to which the greatest

aggregate quantity of the milk of the

cooperative association in such capacity

was moved during the current month or

the most recent month.

3. In § 1301.23, paragraph (c) is

revised to read as follows:

§ 1301.23 Diverted milk.

* * * * *

(c) Milk moved, as described in

paragraphs (a) and (b) of this section,

from dairy farmers’ farms to partially

regulated plants having Class I

distribution in the regulated area in

excess of 35 percent in the months of

September through November and 45

percent in other months, of the total

quantity of producer milk received

(including diversions) by the handler

during the month shall not be diverted

milk. Such milk, and any other milk

reported as diverted milk that fails to

meet the requirements set forth in this

section, shall be considered as having

been moved directly from the dairy

farmers’ farms to the plant of physical

receipt, and if that plant is a nonpool

plant the milk shall be excluded from

producer milk. Milk moved, as

described in paragraph (a) and (b) of this

section, from a dairy farmer’s farm to a

plant located outside of the regulated

area, except a partially regulated plant

having Class I disposition in the

regulated area, that volume of milk shall

be excluded from producer milk.

PART 1304—CLASSIFICATION OF

MILK

1. The authority citation of part 1304

continues to read as follows:

Authority: 7 U.S.C. 7256.

2. Section 1304.2 is amended by

adding paragraph (c) to read as follows:

§ 1304.2 Classification of transfers and

diversions.

* * * * *

(c) Fluid milk products (not including

bulk transfers of skimmed milk and

condensed milk) transferred or diverted

in bulk from a pool plant to a plant

located outside of the regulated area,

except a partially regulated plant having

Class I disposition in the regulated area,

that volume shall be excluded from

producer milk. The milk excluded

pursuant to this paragraph shall be

prorated to all sources of milk received

at this plant.

PART 1306—COMPACT OVER-ORDER

PRODUCER PRICE

1. The authority for part 1306

continues to read as follows:

Authority: 7 U.S.C. 7256.

2. In § 1306.3 redesignate paragraphs

(d) through (f) as paragraphs (e) through

(g) and add new paragraph (d) to read

as follows:

§ 1306.3 Computation of basic over-order

producer price

* * * * *

(d) Beginning with the August 1998

pool, subtract from the total value

computed pursuant to paragraph (a) of

this section, an amount estimated by the

Commission for the purpose of retaining

a reserve for payment of obligations

pursuant to § 1301.13(e) of this chapter.

Surplus funds from this reserve shall be

returned to the producer-settlement

fund.

* * * * *

Dated: June 5, 1998.

Kenneth M. Becker,

Executive Director.

[FR Doc. 98–15547 Filed 6–10–98; 8:45 am]

BILLING CODE 1650–01–P

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 208

[INS Order No. 1865–97; AG Order No.

2164–98]

RIN 1115–AE93

Executive Office for Immigration

Review; New Rules Regarding

Procedures for Asylum and

Withholding of Removal

AGENCY: Immigration and Naturalization

Service; Executive Office for

Immigration Review, Department of

Justice.

ACTION: Proposed rule.

SUMMARY: This rule proposes to amend

the Department regulations that govern

asylum and withholding of removal.

The amendments focus on portions of

the regulations that deal with cases

where an applicant has established past

persecution or where the applicant may

be able to avoid persecution in his or

her home country by relocating to

another area of that country. In the

current regulation, these portions set out

restrictive guidelines about how the

Attorney General’s discretion should be

exercised in cases where past

persecution is established and about

what kind of relevant evidence can be

considered in determining whether an

applicant has a well-founded fear of

future persecution. This rule is intended

to establish new guidelines about these

issues. The rule continues to provide

that, in cases where the applicant has

established past persecution, the

Attorney General may deny asylum in

the exercise of discretion if it is

established by a preponderance of the

evidence that the applicant does not

face a reasonable possibility of future

persecution in the applicant’s country of

nationality or, if stateless, the

applicant’s country of last habitual

residence. In this regard, however, the

rule has been changed to make clear that

the asylum officer or immigration judge

may rely on any evidence relating to the

likelihood of future persecution. The

rule makes similar changes to

regulations regarding withholding of

deportation. The rule also identifies

new factors that may be considered in

the exercise of discretion in asylum

cases where the alien has established

past persecution but may not have a
31946 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 / Proposed Rules

well-founded fear of future persecution.

The rule further provides that the

asylum and withholding standards

require a showing that a risk of harm

exists throughout the country in

question.

DATES: Written comments must be

submitted on or before July 13, 1998.

ADDRESSES: Please submit written

comments in triplicate to Director,

Policy Directives and Instructions

Branch, Immigration and Naturalization

Service, 425 I Street, N.W., Room 5307,

Washington, D.C. 20536. To ensure

proper handling, please reference INS

No. 1865–97 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:

Christine Davidson, Senior Policy

Analyst, Asylum Division, Immigration

and Naturalization Service, 425 I Street,

N.W., Washington, D.C. 20536, Attn:

ULLICO Bldg., 3rd Floor, (202) 305–

2663; Margaret M. Philbin, General

Counsel, Executive Office for

Immigration Review, Suite 2400, 5107

Leesburg Pike, Falls Church, Virginia

22041, (703) 305–0470.

SUPPLEMENTARY INFORMATION: Section

208 of the Immigration and Nationality

Act (Act) provides that an alien may be

granted asylum in the discretion of the

Attorney General if the Attorney

General determines that such alien is a

refugee within the meaning of section

101(a)(42)(A) of the Act. Under this

section, a refugee is defined as:

[A]ny person who is outside any country

of such person’s nationality or, in the case of

a person having no nationality, is outside any

country in which such person last habitually

resided, and 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 wellfounded fear of persecution on account of

race, religion, nationality, membership in a

particular social group, or political opinion

* * *

Although this provision is based on

the refugee definition found in the 1951

Convention Relating to the Status of

Refugees (as modified by the 1967

Protocol Relating to the Status of

Refugees), it differs slightly from the

international definition by providing

that a person may qualify as a refugee

on the basis of past persecution alone,

without having a well-founded fear of

future persecution. Nevertheless, the

fact that a person is a refugee does not

automatically entitle the person to

asylum. The Attorney General must

determine whether the person warrants

a grant of asylum in the exercise of

discretion. INS v. Cardoza-Fonseca, 480

U.S. 421, 428 n.5 (1987); 8 CFR 208.14

(a) and (b).

Consistent with the statute, the

current regulations provide that an

applicant who establishes that he or she

has suffered past persecution qualifies

as a refugee. 8 CFR 208.13(b)(1). The

regulations go on to describe how the

Attorney General will exercise

discretion with respect to a person who

qualifies as a refugee on the basis of past

persecution. The regulations first

provide that such person shall be

presumed to have a well-founded fear of

future persecution unless a

preponderance of the evidence

establishes that, since the time of the

persecution, conditions in the

applicant’s country of origin have

changed to such an extent that the

applicant no longer has a well-founded

fear of persecution. 8 CFR

208.13(b)(1)(i). The regulations further

provide that an applicant who has

established past persecution, but does

not have a well-founded fear of future

persecution, will be denied asylum

unless the applicant demonstrates

compelling reasons for being unwilling

to return to his or her country of origin

arising out of the severity of the past

persecution the applicant has suffered.

8 CFR 208.13(b)(1)(ii).

Since the promulgation of these

regulations in 1990, important questions

have arisen about the meaning of 8 CFR

208.13(b)(1)(i) and (ii). For example,

some have questioned the relevance of

paragraph (b)(1)(i) regarding the

presumption of a well-founded fear of

future persecution to be accorded an

applicant who has suffered past

persecution if such applicant already

qualifies as a refugee. Others have

expressed confusion about which party

bears the burden of proof in showing

whether the presumption identified in

paragraph (b)(1)(i) has been overcome.

Others have interpreted this paragraph

to preclude consideration of evidence

other than changes in country

conditions in cases where the applicant

has established past persecution.

Paragraph (b)(1)(ii) also created

ambiguity as to whether an applicant

who has established past persecution

also bears the burden of establishing a

well-founded fear of future persecution

in order to be granted asylum. Recent

decisions by the Board of Immigration

Appeals (BIA or Board) and by the

Federal courts have interpreted these

regulatory provisions and highlighted

the need to change them.

This rule leaves intact the important

principle that an applicant who has

established past persecution on account

of one of the five grounds is a refugee.

It also continues to provide that a

person who has established past

persecution on account of race, religion,

nationality, membership in a particular

social group, or political opinion shall

be presumed to have a well-founded

fear of future persecution on account of

these same grounds. This presumption

is relevant to whether the applicant

warrants a grant of asylum in the

exercise of discretion. The rule then

makes clear that, in cases where the

applicant has established past

persecution, the application shall be

referred or denied if it is established by

a preponderance of the evidence that

there is not a reasonable possibility of

future persecution against the applicant

on account of one of the five grounds,

unless paragraph (b)(1)(iii) applies. This

approach is consistent with

longstanding principles articulated in

case law. See Matter of Chen, 20 I&N 16

(BIA 1989).

In cases involving past persecution,

we propose to maintain the use of a

presumption and, for cases in

immigration proceedings, the shifting to

the Government of the burden of proof

for rebutting the presumption. This

burden-shifting fits well within the

context of immigration court

proceedings, with separate litigants

appearing before an independent

decisionmaker. Where an applicant

establishes past persecution before an

asylum officer during a non-adversarial

asylum interview, it will be incumbent

on the officer to elicit from the applicant

or otherwise gather evidence bearing on

future persecution and to evaluate

whether a preponderance of the

evidence indicates that the applicant no

longer faces a reasonable possibility of

persecution.

This rule also makes clear that, in

determining whether there is a

reasonable possibility of future

persecution, the asylum officer or

immigration judge may rely on any

evidence relating to the possibility of

future persecution against the applicant.

This is an important change in light of

the recent Board decision in Matter of

C–Y–Z, Intertim Decision #3319 (BIA

1997), which raises questions about how

the existing regulation should be

interpreted. In that decision, the Board

addressed the case of an applicant who

had suffered past persecution and was

therefore entitled under the existing

regulation to the presumption of a wellfounded fear of future persecution. the

Board interpreted 8 CFR 208.13(b)(1)(i)

to preclude the consideration of any

factors other than changed country

conditions in determining whether the

presumption of a well-founded fear was

rebutted. In Matter of Chen, however,
Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 / Proposed Rules 31947

which the existing regulatory provisions

were intended to codify, the Board

stated that, in cases where an applicant

establishes past persecution, asylum

may be denied as a matter of discretion

if there is little likelihood of future

persecution. To avoid any uncertainty

about whether there is tension among

the existing regulation, Matter of Chen,

and Matter of C–Y–Z, we are changing

the regulation so that it clearly allows

consideration of any evidence, or lack

thereof, bearing on future persecution in

such cases. Administrative

determinations under this rule, of

course, remain subject to review by the

Board of Immigration Appeals under

current regulatory and statutory

provisions.

We have also used the phrase ‘‘no

reasonable possibility of future

persecution’’ in lieu of the phrase ‘‘little

likelihood of present persecution’’ used

by the BIA in Matter of Chen in defining

the standard of proof that the

Government must meet to deny asylum

in such cases. The ‘‘reasonable

possibility’’ language is consistent with

the Supreme Court’s and the

Department’s regulatory interpretation

of the well-founded fear standard. See

INS v. Cardoza-Fonseca, 480 U.S. at

440; 8 CFR § 208.13(b)(2). We believe it

is appropriate, therefore, to restate the

reasonable possibility standard as the

one that the Government must apply to

determine whether a favorable exercise

of discretion may be unwarranted in

cases where applicants have established

past persecution.

The rule also amends 8 CFR

208.13(b)(1)(ii) regarding discretionary

grants of asylum in circumstances

where a victim of past persecution no

longer has a well-founded fear of

persecution. The existing regulation

allows that an applicant who has

suffered past persecution, but who has

no well-founded fear of future

persecution, may be granted asylum in

the exercise of discretion only if the

applicant demonstrates compelling

reasons for being unwilling to return to

his or her country ‘‘arising out of the

severity of the past persecution’’ for

such a grant. In Matter of H-, Interim

Decision #3276 (BIA 1996), the Board

specifically addressed the exercise of

discretion in cases where an applicant

has established past persecution but has

no well-founded fear of future

persecution. The Board noted earlier

decisions indicating that general

humanitarian factors, unrelated to the

circumstances that led to refugee status,

such as age, health, or family ties,

should also be considered in the

exercise of discretion. One possible

interpretation of this portion of the

Board’s decision is that it authorizes the

granting of asylum based on factors

other than ‘‘compelling reasons arising

out of the severity of the past

persecution’’ to an applicant who has

established past persecution but who

has no well-founded fear of future

persecution. In order to avoid any

possible tension between this reading

and the current regulation, which

allows a grant of asylum only when

there are compelling reasons related to

the severity of the past persecution, we

are amending the regulation.

The Department recognizes, however,

that the existing regulation may

represent an overly restrictive approach

to the exercise of discretion in cases

involving past persecution, but no wellfounded fear of future persecution. The

Department believes it is appropriate to

broaden the standards for the exercise of

discretion in such cases. For example,

there may be cases where it is

appropriate to offer protection to

applicants who have suffered

persecution in the past and who are at

risk of future harm that is not related to

a protected ground. Therefore, the rule

includes, as a factor relevant to the

exercise of discretion, whether the

applicant may face a reasonable

possibility of ‘‘other serious harm’’ upon

return to the country of origin or last

habitual residence. See Matter of B-, Int.

Dec. #3251 (BIA 1995) (citing both the

current civil strife in Afghanistan and

the severity of the past persecution

suffered by the applicant as grounds for

a discretionary grant of asylum, despite

of conclusion that the applicant no

longer has a well-founded fear of

persecution in that country). As with

any other element of an asylum claim,

the burden is on the applicant to

establish that such grounds exist and

warrant a humanitarian grant of asylum

based on past persecution alone.

By ‘‘other serious harm,’’ we mean

harm that may not be inflicted on

account of race, religion, nationality,

membership in a particular social group,

or political opinion, but such harm

would have to be so ‘‘serious’’ as to

equal the severity of persecution. We

would not expect, for example, that

mere economic disadvantage or the

inability to practice one’s chosen

profession would qualify as ‘‘other

serious harm.’’ We believe that this

emphasis on the applicant’s risk of

future harm is consistent with the

protection function of the 1951

Convention Relating to the Status of

Refugees, which governs the

international legal obligations

implemented through the domestic

asylum and withholding laws.

The proposed rule would also amend

8 CFR 208.13(b)(2) to provide that, to

meet the well-founded fear standard, the

applicant must establish a reasonable

possibility of harm throughout the

applicant’s country of nationality or last

habitual residence. The Board and the

Federal courts have long acknowledged

the requirement of countrywide

persecution as an integral component of

the refugee definition, which cannot be

met if the applicant reasonably could be

expected to seek protection by

relocating to another part of the country

in question. See Matter of Acosta, 19

I&N Dec. 211,235 (BIA 1985), modified

on other grounds, Matter of Mogharrabi,

19 I&N Dec. 439 (BIA 1987); Etugh v.

INS, 921 F.2d 36, 39 (3d Cir. 1990);

Quintanilla-Ticas v. INS, 783 F.2d

955,957 (9th Cir. 1986). In the context

of a case involving only a fear of future

persecution, it is important to note that

the requirement of a reasonable

possibility of harm throughout the

country in question relates to the

applicant’s eligibility as a refugee, and

is not merely a factor to be considered

in the exercise of discretion.

This proposed rule emphasizes,

however, that an applicant should not

be denied asylum based on the fact that

he or she could avoid future persecution

be relocating within the country in

question unless it would be reasonable

to expect him or her do so. This

approach is consistent with the position

taken by the United Nations High

Commissioner for Refugees that ‘‘[t]he

fear of being persecuted need not always

extend to the whole territory of the

refugee’s country of nationality * * *.

[A] person will not be excluded from

refugee status merely because he [or

she] could have sought refuge in another

part of the same country [] if[,] under all

the circumstances, it would not have

been reasonable to expect him [or her]

to do so.’’ United Nations High

Commissioner for Refugees, Handbook

on Procedures and Criteria for

Determining Refugee Status ¶ 91 (1992).

The proposed rule provides that

internal relocation will not be

considered reasonable if there is a

reasonable possibility that the applicant

would face other serious harm in the

place of potential relocation. We intend

that this ‘‘other serious harm’’ standard

for determining when internal

relocation is not reasonable refers to the

same type of ‘‘other serious harm’’ that

may warrant a humanitarian grant of

asylum to an applicant who shows past

persecution but who has no wellfounded fear of future persecution. In

cases where the applicant has

established past persecution, the Service

would bear the burden of showing that
31948 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 / Proposed Rules

internal relocation is reasonable. In

cases where the applicant has not

established past persecution, it would

be the applicant’s burden to show that

he or she is at risk of persecution in the

country in question and that internal

relocation is not reasonable in order to

establish a well-founded fear of

persecution. Regardless of who bears the

burden of proof on the issue of internal

relocation, such burden requires

supporting such claims by documentary

evidence, if available, including

evidence on economic and regional

conditions that would provide an

objective context for the claim that

relocation is, or is not, possible.

As with other aspects of the refugee

definition, we expect that the Board and

the federal courts, as they interpret this

regulation in individual cases, will

provide guidance on the question of

when internal relocation is reasonable.

We would expect, however, that the

difficulties associated with an internal

relocation option would have to be

substantial to render relocation

unreasonable. Underlying our approach

to this issue is a recognition that the

principle of internal relocation is

intended to apply to cases where the

applicant does not need protection

abroad.

This proposed rule would also amend

8 CFR 208.16, governing entitlement to

withholding of removal, to be consistent

with amendments relating to asylum

eligibility. First, the rule would provide

that an applicant is eligible for

withholding of removal only if the

applicant establishes that it is more

likely than not that he or she would be

persecuted in the country of proposed

removal and that internal relocation is

not reasonable. Thus, as in the asylum

context, the rule requires that the

applicant must show that the threat of

harm exists countrywide to be eligible

for withholding, and further makes clear

that a withholding applicant must seek

protection through internal relocation

only if it is reasonable to expect him or

her to do so.

Second, as is currently the case, the

rule affords the applicant a presumption

of a future threat to life or freedom on

account of race, religion, nationality,

membership in a particular social group,

or political opinion if the applicant

establishes that he or she has suffered

persecution in the past on account of

these same grounds. This rule also

provides an opportunity to rebut such a

presumption if it can be established that

the applicant no longer would face a

threat to life or freedom. The rule makes

an important change by indicating that

evidence other than changed conditions

in the country of proposed removal can

be taken into consideration in

determining whether the applicant

continues to face a threat to his or her

life or freedom in that country. This is

significant because, unlike asylum

determinations, where the Attorney

General has discretion to grant or deny

asylum to a person who qualifies as a

refugee, the Attorney General is

required to grant withholding of

removal to a person who establishes that

his or her life or freedom would be

threatened on account of race, religion,

nationality, membership in a particular

social group, or political opinion. The

current language in 8 CFR 208.16(b)(2)

appears to mandate a grant of

withholding of removal where an

applicant establishes that he or she has

suffered persecution in the past unless

there have been ‘‘changes in conditions’’

in the proposed country of removal.

Significantly, this language appears to

preclude consideration of other relevant

types of evidence, including whether

the applicant might safely relocate to a

different part of the same country, and

has been so construed by the courts. See

Singh v. Ilchert, 63 F.3d 1501, 1510–11

(9th Cir. 1995). We believe that this

result in Singh v. Ilchert, and in other

decisions interpreting this regulatory

provision, imposes unwarranted

restrictions on the Attorney General’s

ability to consider relevant evidence.

Under both domestic and international

law, the requirement of a countrywide

risk of persecution is an accepted

element of refugee protection standards.

Imposition of a regulatory restriction

that precludes consideration of internal

relocation options is inconsistent with a

basic principle of international refugee

protection: if an applicant is able to

avail himself or herself of protection in

any part of his or her country of origin,

such applicant should not ordinarily

need, or be entitled to, protection from

another country. This rule changes the

current regulation so that it clearly

authorizes consideration of internal

relocation options, as well as of any

other evidence relevant to the

possibility that an applicant would be at

risk of future persecution, in

determining whether an applicant has

shown a likelihood of persecution or

whether a presumption of a likelihood

of persecution is rebutted.

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 for the following reason: this

rule clarifies certain legal standards

involved in the adjudication of

applications for asylum and

withholding of removal; this

clarification will not affect small

entities.

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 one 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 804 of the Small

Business Regulatory Enforcement Act of

1996. 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 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, Immigration and

Naturalization Service, to be a

‘‘significant regulatory action’’ under

Executive Order 12866, section 3(f),

Regulatory Planning and Review.

Accordingly, this regulation has been

submitted to the Office of Management

and Budget for review.

Executive Order 12612

The regulation adopted herein 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

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Executive Order 12988—Civil Justice

Reform

This proposed rule meets the

applicable standards set forth in

sections 3(a) and 3(b)(2) of Executive

Order 12988.
Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 / Proposed Rules 31949

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. In § 208.13, paragraph (b) is revised

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 past

persecution shall also be presumed to

have a well-founded fear of persecution

in the future on account of one of the

five grounds mentioned above. 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.

(i) Discretionary referral or denial.

Except as provided in (b)(1)(iii) of this

section, the asylum application of an

alien found to be a refugee on the basis

of past persecution shall be, in the

exercise of discretion, referred or denied

by an asylum officer or denied by an

immigration judge if it is found by a

preponderance of the evidence that:

(A) the applicant does not face a

reasonable possibility of future

persecution in the applicant’s country of

nationality or, if stateless, the

applicant’s country of last habitual

residence on account of race, religion,

nationality, membership in a particular

social group, or political opinion; or

(B) the applicant could reasonably

avoid future persecution by relocating to

another part of the applicant’s country

of nationality or, if stateless, the

applicant’s country of last habitual

residence.

(ii) Burden of proof. In cases where an

applicant has demonstrated past

persecution under paragraph (b)(1) of

this section before an immigration

judge, the Service shall bear the burden

of establishing the requirements of

paragraphs (b)(1)(i) (A) or (B) of this

section.

(iii) Discretionary grant. An applicant

who has suffered past persecution and

who does not face a reasonable

possibility of future persecution or who

could reasonably avoid future

persecution by relocating within his or

her country of nationality or, if stateless,

his or her country of last habitual

residence, may be granted asylum in the

exercise of discretion if:

(A) the applicant has demonstrated

compelling reasons for being unwilling

or unable to return to that country

arising out of the severity of the past

persecution; or

(B) the applicant has established that

there is a reasonable possibility that he

or she may suffer other serious harm

upon removal to that country, unless

such a grant of asylum is barred under

paragraph (c) of this section.

(2) Well-founded fear of future

persecution.

(i) An applicant has a well-founded

fear of persecution if:

(A) the applicant has a fear of

persecution in his or her country of

nationality or, if stateless, his or her

country of last habitual residence, on

account of race, religion, nationality,

membership in a particular social group,

or political opinion;

(B) there is a reasonable possibility of

suffering such persecution if he or she

were to return to that country; and

(C) he or she is unable or unwilling

to return to or avail himself or herself

of the protection of that country because

of such fear.

(ii) An applicant does not have a wellfounded fear of persecution if the

applicant could reasonably avoid

persecution by relocating to another part

of the applicant’s country of nationality

or, if stateless, the applicant’s country of

last habitual residence.

(iii) In evaluating whether the

applicant has sustained the burden of

proving that he or she has a wellfounded fear of persecution, the asylum

officer or immigration judge shall not

require the applicant to provide

evidence that there is a reasonable

possibility he or she would be singled

out individually for persecution if:

(A) The applicant establishes that

there is a pattern or practice in his or

her country of nationality or, if stateless,

his or her country of last habitual

residence, of persecution of a group of

persons similarly situated to the

applicant on account of race, religion,

nationality, membership in a particular

social group, or political opinion; and

(B) The applicant establishes his or

her own inclusion in and identification

with such group of persons such that his

or her fear of persecution upon return is

reasonable.

(3) Reasonableness of internal

relocation. For purposes of

determinations under paragraphs (b)(1)

(i) and (ii), and (b)(2) of this section, it

would not be reasonable to expect an

applicant to relocate within his or her

country of nationality or, if stateless, his

or her country of last habitual residence,

to avoid persecution if the asylum

officer or immigration judge finds that

there is a reasonable possibility that the

applicant would face other serious harm

in the place of potential relocation. In

cases where the persecutor is a national

government, it shall be presumed that

internal relocation would not be

reasonable, unless the Service

establishes that it would be reasonable

for the applicant to relocate. In cases

where the applicant has established past

persecution before an immigration

judge, the Service shall bear the burden

of establishing that it would be

reasonable for the applicant to relocate.

In cases where the applicant has not

established past persecution, the

applicant shall bear the burden of

establishing that it would not be

reasonable for him or her to relocate.

* * * * *

3. In § 208.16, paragraphs (b)(1),

(b)(2), and (b)(3) are revised to read as

follows:

§ 208.16 Withholding of removal.

* * * * *

(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 for the

same reasons if removed to that country.

This presumption may be rebutted if an

asylum officer or immigration judge

finds by a preponderance of the

evidence that:

(A) The applicant’s life or freedom

would not be threatened on account of

any of the five above-mentioned

grounds upon the applicant’s removal to

that country; or

(B) The applicant could reasonably

avoid a future threat to his or her life or
31950 Federal Register / Vol. 63, No. 112 /Thursday, June 11, 1998 / Proposed Rules

freedom by relocating to another part of

the proposed country of removal.

(ii) In cases where the applicant has

established past persecution before an

immigration judge, the Service shall

bear the burden of establishing the

requirements of paragraphs (b)(1)(i)(A)

or (B) of this section.

(2) Future threat to life or freedom. An

applicant who has not suffered past

persecution may demonstrate that his or

her life or freedom would be threatened

in the future in a country if he or she

can establish that it is more likely than

not that he or she would be persecuted

on account of race, religion, nationality,

membership in a particular social group,

or political opinion upon removal to

that country. Such an applicant cannot

demonstrate that his or her life or

freedom would be threatened if the

asylum officer or immigration judge

finds that the applicant could

reasonably avoid a future threat to his

or her life or freedom by relocating to

another part of the proposed country of

removal. In evaluating whether it is

more likely than not that the applicant’s

life or freedom would be threatened in

a particular country on account of race,

religion, nationality, membership in a

particular social group, or political

opinion, the asylum officer or

immigration judge shall not require the

applicant to provide evidence that he or

she would be singled out individually

for persecution if:

(i) The applicant establishes that in

that country there is a pattern or

practice of persecution of a group of

persons similarly situated to the

applicant on account of race, religion,

nationality, membership in a particular

social group, or political opinion; and

(ii) The applicant establishes his or

her own inclusion in and identification

with such group of persons such that it

is more likely than not that his or her

life or freedom would be threatened

upon return to that country.

(3) Reasonableness of internal

relocation. For purposes of

determinations under paragraphs (b)(1)

and (b)(2) of this section, it would not

be reasonable to expect an applicant to

relocate within a country to avoid

persecution if the asylum officer or

immigration judge finds that there is a

reasonable possibility that the applicant

would face other serious harm in the

place of potential relocation. In cases

where the persecutor is a national

government, it shall be presumed that

internal relocation would not be

reasonable, unless the Service

establishes that it would be reasonable

for the applicant to relocate. In cases

where the applicant has established past

persecution before an immigration

judge, the Service shall bear the burden

of establishing that it would be

reasonable for the applicant to relocate.

In cases where the applicant has not

established past persecution, the

applicant shall bear the burden of

establishing that it would not be

reasonable for him or her to relocate.

* * * * *

Dated: June 5, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98–15590 Filed 6–10–98; 8:45 am]

BILLING CODE 4410–10–M

CONSUMER PRODUCT SAFETY

COMMISSION

16 CFR Part 1616

Proposed Technical Changes;

Standard for the Flammability of

Children’s Sleepwear: Sizes 7 Through

14; Correction

AGENCY: Consumer Product Safety

Commission.

ACTION: Proposed technical changes;

correction.

SUMMARY: This document corrects a

table in a proposed rule published in

the Federal Register of May 21, 1998,

regarding technical changes to the

flammability standard for children’s

sleepwear. The table showing the

distance from the shoulder for upper

arm measurement for sizes 7 through 14

inadvertently omitted some fractions.

This correction provides the complete

and correct table. Due to the minor

nature of this correction the

Commission does not intend to extend

the comment period for the proposed

rule. However, if a commenter believes

that additional time is necessary to

comment due to the error, he/she may

request an extension.

FOR FURTHER INFORMATION CONTACT:

Margaret Neily, Project Manager,

Directorate for Engineering Sciences,

Consumer Product Safety Commission,

Washington, D.C. 20207; telephone

(301) 504–0508, extension 1293.

Correction

In proposed rule FR Doc. 98–13026,

beginning on page 27877 in the issue of

May 21, 1998, make the following

correction. On page 27884, correct the

table that follows Diagram 1 to read as

follows:

Distance from shoulder (G) to (H) for Upper Arm Measurement for Sizes 7 through 14

7 8 9 10 11 12 13 14

11.4 cm 11.7 cm 11.9 cm 12.5 cm 12.8 cm 13.1cm 13.7cm 14.2cm

41⁄2′′ 45⁄8′′ 43⁄4′′ 47⁄8′′ 5′′ 51⁄8′′ 53⁄8′′ 55⁄8′′

Dated: June 4, 1998.

Sadye E. Dunn,

Secretary, Consumer Product Safety

Commission.

[FR Doc. 98–15492 Filed 6–10–98; 8:45 am]

BILLING CODE 6355–01–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

23 CFR Part 655

[FHWA Docket No. FHWA–98–3644]

RIN 2125–AE38

Revision of the Manual on Uniform

Traffic Control Devices; Part II—Signs

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Notice of proposed amendments

to the Manual on Uniform Traffic

Control Devices (MUTCD); request for

comments.

SUMMARY: The MUTCD is incorporated

by reference in 23 CFR part 655, subpart

F, approved by the Federal Highway

Administrator, and recognized as the

national standard for traffic control on

all public roads. The FHWA announced

its intent to rewrite and reformat the

MUTCD on January 10, 1992, at 57 FR