standard ("more likely than not"), rather than the correct "reasonable possibility" standard, to petitioner's well-founded fear of persecution.
Petitioner now seeks review by this Court on the grounds that the Board applied the incorrect standard of proof, the clear probability standard, when it required petitioner to prove that he would "more likely than not" be subject to persecution. Rather, petitioner urges that he need only prove that he has a well-founded fear of persecution that is a "reasonable possibility" if he is forced to return to Nigeria. In addition, the petitioner urges that the Board ignored the objective evidence in the record in support of his well-founded fear of persecution.
This Court has jurisdiction to hear this petition for review of the Board's decision pursuant to § U.S.C. section 1105a(b) of the Act.
B. Asylum and Withholding of Deportation Under the Act
A deportable alien who is currently in the United States may seek relief from deportation in two ways: asylum and withholding of deportation. See INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 94 L. Ed. 2d 434, 107 S. Ct. 1207 (1987). Under section 208(a) of the Act, the Attorney General may grant asylum to eligible aliens. See 8 U.S.C. § 1158(a). Under section 243(h) of the Act, the Attorney General must withhold deportation of an alien who establishes that if deported, his "life or freedom would be threatened" on account of one of many enumerated factors. See 8 U.S.C. § 1253 (h). While asylum and withholding of deportation are closely related, there are two crucial distinctions. See Osorio v. INS, No. 93-4115, slip. op. 2313, 2316-17 (2d Cir. Mar. 7, 1994).
First, the burden of proof that an alien is eligible for asylum is lower than the burden of proof for an alien who seeks withholding of deportation. See id. Asylum applicants must show a "reasonable possibility" of persecution under the "well-founded fear" standard of section 208. See Cardoza-Fonseca, 480 U.S. at 440; Osorio, slip op. at 2341. Applicants seeking withholding of deportation must establish the higher standard--a "clear probability of persecution"--to avoid deportation under section 243(h). See INS v. Stevic, 467 U.S. 407, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984).
Second, once an alien has proven eligible for either asylum or withholding of deportation, the granting asylum remains in the discretion of the Attorney General, while the withholding of deportation is required by statute. See id. For both asylum and withholding of deportation, the alien bears the burden of establishing eligibility. See id.
C. Standard of Review
Interpretations of law of the Board will be reversed if unreasonable. See Osorio, slip. op. at 2318. The Board's interpretation will be reversed if it appears, "from the statute or its legislative history," that the interpretation is contrary to the intent of Congress. See id.
The findings of fact of the Board are conclusive on this Court "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4). See Osorio, slip. op. at 2318. This Court must therefore uphold the Board's findings of fact regarding petitioner's eligibility for asylum under section 208(a) or withholding of deportation under section 243(h) if they are reasonably supported by substantial evidence on the record. See id. Findings of fact will be reversed only if "a reasonable fact-finder would have to conclude" otherwise. See id.; INS v. Elias-Zacarias, 117 L. Ed. 2d 38, 112 S. Ct. 812, 815 (1992).
Petitioner urges that both the legal conclusions and the factual determinations of the Board are in error.
1. Standard for Asylum
The Government will grant petitioner's request for asylum if he can establish that he is eligible for asylum and there are no significant reasons to deny him asylum. See 8 U.S.C. § 1158(a). Petitioner is eligible for asylum if he meets the definition of refugee as set out in section 101(a)(42)(A) of the Act. That section defines refugee as:
Any person who is outside any country of such person's nationality . . . and who 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, membership in a particular social group, or political opinion.
Section 102(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A).
Petitioner urges that he has a well-founded fear of persecution and is therefore entitled to asylum. Petitioner maintains that the Board incorrectly applied the higher "clear probability" standard, applicable only to withholding of deportation applications, to his asylum application.
To establish a well-founded fear of persecution, petitioner must establish (1) that he has "a fear of persecution [in Nigeria] on account of . . . political opinion," (2) that "there is a reasonable possibility of actually suffering such persecution if he were to return to [Nigeria]," and (3) that "he is unable or unwilling to return or to avail himself of the protection of [Nigeria] because of such fear." 8 C.F.R. § 208.13(b)(2). See also Osorio, slip op. at 2341-42.
A "reasonable possibility" of persecution is sufficient to establish well-founded fear of persecution. See Cardoza-Fonseca, 480 U.S. at 440. A reasonable possibility of persecution can be shown be establishing (1) the existence of a pattern or practice of persecution of people similarly situated on account of political opinion and (2) that petitioner is a member of that group. See Osorio, slip op. at 2342. The applicant's testimony, if credible, may be sufficient to sustain this burden of proof even without corroboration. See 8 C.F.R. § 208.13(a).
2. Standard Applied by the Board
It is not contested that petitioner's alleged fear is on account of his political opinion. Nor is it contested that petitioner is unwilling to return to Nigeria because of his alleged fear. What is contested is whether the Board applied the correct standard in evaluating that alleged well-founded fear. Petitioner asserts that the Board analyzed his asylum application under the clear probability standard applicable to withholding of deportation applications. Specifically, the Board dismissed petitioner's appeal from his denial of asylum because it concluded that petitioner had not established that more likely than not he would be subject to persecution if returned to Nigeria. See Board Decision, supra, at 4. The Supreme Court clearly rejected this standard in Cardoza-Fonseca, 480 U.S. at 449-50. See also Rasool v. INS, 758 F. Supp. 188, 191 (S.D.N.Y. 1991) ("It is now settled law that an alien need not demonstrate that it is more likely than not that he will be subject to persecution in order to satisfy the "well-founded fear" standard.").
It is clear to this Court that the Board's application of the clear probability standard to the asylum application was incorrect and unreasonable. The correct standard for asylum is whether there is a reasonable possibility that the applicant will be persecuted, such that the applicant has a well-founded fear of persecution. See Cardoza-Fonseca, 480 U.S. at 440. The "more likely than not" standard applied by the Board imposes a heavier burden on the asylum applicant than he must bear.
3. Evidence in Support of Petitioner's Application
In support of his application, petitioner presented both subjective and objective evidence of his well-founded fear. Petitioner has testified as to his pro-democracy activities with the NDR. He has described his dodging of arrest and the fates of other NDR members. Finally, he described his flight from the SSS. Documentary evidence corroborates his testimony. The Government offered no evidence to rebut this showing. The Board rejected this evidence as insufficient to support a grant of asylum under the clear probability standard. The evidence must be re-evaluated under the correct standard to see if it is sufficient to support a grant of asylum. This Court therefore remands the application to the Board for a re-examination of the evidence presented by petitioner under the correct standard of proof to establish a well-founded fear of persecution--the "reasonable possibility" standard.
The Order of the Board of Immigration Appeals is reversed. The matter is remanded to the Board of Immigration Appeals for action consistent with this Opinion and Order. The Court orders this case closed and directs the clerk to remove it from the active docket.
Dated: New York, New York
May 5, 1994
JOHN F. KEENAN
United States District Judge
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