TABLE OF CONTENTS
To be statutorily eligible for asylum, an applicant bears the burden of establishing that they are a refugee, which requires a showing of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA §§ 101(a)(42)(A), 208(b)(1)(A); 8 C.F.R. §§ 1208.13, 1240.8(d). If eligibility is established, asylum may be granted in the exercise of discretion. INA § 208(b)(1)(A); INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).
An applicant requesting asylum bears the evidentiary burden of proof and persuasion in connection with any application under INA § 208. Under the REAL ID Act, after considering “the totality of the evidence, and all relevant factors,”
As a threshold matter, an applicant must prove by clear and convincing evidence that their asylum application was filed within one year of the date of their last arrival into the United States. INA § 208(a)(2)(B); 8 C.F.R. § 1208.4(a)(2). If the applicant files after the one-year deadline, they must show to the satisfaction of the Court that they qualify for an exception to the filing deadline. Id.
To establish past persecution, an asylum applicant must demonstrate that they suffered persecution in their country of nationality on account of a protected ground, and that they are unable or unwilling to return to, or avail themself of the protection of, that country because of such persecution. INA §§ 101(a)(42)(A), 208(b)(1)(B); 8 C.F.R. § 1208.13(b)(1). “Persecution is the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground,” and includes “non-life-threatening violence and physical abuse.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (internal quotation marks and citations omitted). Moreover, persecution must be inflicted by either the government or by a person or entity the government is “unwilling or unable to control.” Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). When evaluating whether persecution has occurred, events must be considered cumulatively. Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).
Aliyev v. Mukasey, 549 F.3d 111 (2d Cir. 2008) We have held that asylum claims are subject to mixed-motive analysis: "The protected ground need not be the sole motive: `the plain meaning of the phrase "persecution on account of the victim's political opinion," does not mean persecution solely on account of the victim's political opinion.'" Uwais v. U.S. Att'y Gen., 478 F.3d 513, 517 (2d Cir.2007) (quoting Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994)). "Where there are mixed motives for a persecutor's actions, an asylum applicant need not show with absolute certainty why the events occurred, but rather, only that the harm was motivated, in part, by an actual or imputed protected ground." Id. at 517 (citing Matter of S-P-, 21 I. & N. Dec. 486, 494-95 (B.I.A.1996)).
If past persecution is established, a regulatory presumption arises that the applicant has a well-founded fear of future persecution on the basis of their original claim. *See *8 C.F.R. § 1208.13(b)(1).
The U.S. Department of Homeland Security may rebut this presumption if it establishes by a preponderance of the evidence that the applicant’s fear is no longer well-founded due to a fundamental change in circumstances or because the applicant could avoid future persecution by relocating to another part of the country and that it would be reasonable to expect them to do so. 8 C.F.R. § 1208.13(b)(1)(i)-(ii).
To establish a well-founded fear of future persecution, the applicant must establish both that they have a subjective fear of persecution and that the fear is objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
The applicant’s credible testimony may satisfy the subjective component. Id. at 178; see also Diallo v. INS, 232 F.3d 279, 286 (2d Cir. 2000).
To meet the objective element of the test, the applicant need only show that such fear is grounded in reality; that is, they must present “reliable, specific, objective” evidence that their fear is reasonable. Ramsameachire, 357 F.3d at 178. The applicant’s fear may be well-founded even if there is “only a slight, though discernible, chance of persecution.” Diallo, 232 F.3d at 284 (citing Cardoza-Fonseca, 480 U.S. at 431).
To demonstrate that their fear of persecution is objectively well-founded, an applicant must provide evidence:
(1) that [they] ha[ve] a belief or characteristic that a persecutor seeks to overcome by means of some mistreatment, that the persecutor has the (2) capability and (3) inclination to impose such mistreatment, and (4) that the persecutor is, or could become, aware of the applicant’s possession of the disfavored belief or characteristic.
Kyaw Zwar Tun v. INS, 445 F.3d 554, 565 (2d Cir. 2006).
An applicant is not required to provide evidence that they would be “singled out individually” for persecution in the country of removal if they establish that, in the country from which they are seeking asylum, “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 that the applicant is included in and identifies with that group, such that their “fear of persecution upon return is reasonable.” 8 C.F.R. § 1208.13(b)(2)(iii); see also Shao v. Mukasey, 546 F.3d 138, 150 n.6 (2d Cir. 2008) (“Pattern-and-practice analysis affords a petitioner who cannot credibly demonstrate a reasonable possibility that he will be targeted as an individual for future persecution an alternative means to demonstrate that his fear of persecution is objectively reasonable.”).
To establish eligibility for asylum based upon a pattern or practice of persecution, an applicant must demonstrate that the persecution against the group in which they are included is “systemic or pervasive.” Matter of A-M-, 23 I&N Dec. 737, 741 (BIA 2005).