MC Exam

What were some of the changes in the asylum program enacted by IIRIRA?

After 1996, expanded the refugee definition, Coercive population control with political opinion, One year filing date, Expedited removal, reasonable fear determination, CF screening interview

Where is a grant in the absence of well-founded fear placed in the focused legal analysis?

After analyzing (and finding) past persecution (SMPL), analyzing nexus (on account of), and well-founded fear of persecution was rebutted. then VI.B.1.b.i. Exercise Discretion to Grant Based on Past Persecution in the Absence of Well-Founded Fear.

1Dependents: What type of adjudication is made for the included dependent?

The spouse and children of an alien granted asylum may be granted the same status, exception of firm resettlement, and or if they are already in status

What is meant by "standard of proof?"

The standard of proof refers to the degree or level of proof, required to prove a given fact. The standard of proof refers to the amount of evidence or level of proof that specifies how convincing or probative the evidence must be to meet the burden of proof

What are required characteristics of the testimony section of an assessment or NOID?

The summary of testimony is a summary of the material facts of the applicant's claim. All material facts necessary to construct the legal analysis should be described in the testimony component of the assessment or NOID. Material facts not stated in the summary of the testimony should not be introduced in the context of the legal analysis.

COI: When is it necessary to cite country condition information in your decision?

When relied upon in making a decision

What type of situations would be considered a changed circumstance?

personal and country circumstance- Changed country condition, law, recent political activism outside the country of feared persecution, religious conversion, change of status etc..

What is the standard to establish a credible fear of persecution?

"Significant possibility"

What 3 major provisions on Credibility did the REAL ID Act add to the INA

"totality of the circumstances, and all relevant factors" in every credibility determination; listing of factors to Detail, consistency, plausibility, candor, demeanor, responsiveness; Evaluation of credibility concerns on adverse credibility issues do not need to "go to the heart of the claim" to be considered in the overall determination.

What section of the INA are the mandatory bars to asylum found in?

- INA §208(b)(2)(A)(i)-(vi)

What type of situation would be considered an extraordinary circumstance?

- Serious illness or mental or physical disability, Ineffective assistance of counsel (IAC), Maintenance of TPS, lawful status, or parole until a reasonable period before filing an asylum application, Initial attempted submission of application was timely

What are the elements of the definition of torture?

- Severity of the harm, in persecutor control and custody, specific intent to inflict severe suffering.

Which cases are subject to the one-year filing rule?

Affirmative asylum (non-UAC) with a one-year filing date on or after April 16, 1998

When is an application for asylum within the jurisdiction of the asylum program?

Affirmative asylum applications (not defensive applications) , Unaccompanied Alien Children (UAC)

Who has the burden of proof to establish asylum eligibility?

- The applicant

What are the six statutory mandatory bars to receiving asylum status?

1. persecutor bar 2. Conviction of a particularly serious crime, 3. serious nonpolitical crime outside US, 4. danger to the security of the United States, 5. participation in terrorist activities or status as a representative of certain terrorist organizations (TRIG), 6. Firm resettlement

What are the two ways by which the presumption of WFF can be overcome?

A fundamental change in circumstances; The applicant could avoid persecution by relocating to another part of his or her country (internal relocation)

What is a refugee sur place?

A person who was not a refugee when he or she left his or her country, but who becomes a refugee at a later date

What is the definition of a particular social group? What must be addressed in order to determine that an applicant is a member of a "particular social group?"

An applicant who is seeking asylum based on membership in a particular social group must establish that the group is (1) composed of members who share a common immutable characteristic, (2) socially distinct within the society in question, and (3) defined with particularity.

When can an applicant's testimony be considered credible?

An applicant's testimony is credible if it is detailed, consistent, and plausible.

What is the definition of a refugee?

Any 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 well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

If the applicant meets the definition of a refugee: Does a grant of asylum necessarily follow? NO and Why or why not?

Applicant could be subject to mandatory bars; AO can deny as a matter of discretion

What factors must an AO consider when determining whether an individual is barred as a security risk?

Applicant is a danger to the security of the United States.

What factors must an AO consider when determining whether an individual is barred from receiving asylum as a persecutor?

Applicant is persecuting others based on Nexus, level of harm and involvement, under duress

What are some of the characteristics of good notes?

Applicant name, Alien number, officer name, date of interview, page number. Detailed, concise, record applicant's testimony almost verbatim. Notes should also include non-verbal communication, the applicant's tone, action (crying).

If an applicant presents a fraudulent document, what must be considered in making a credibility determination?

Applicant's asylum claim may indicate lack of credibility with fraudulent document. But, fraudulent documents may establish the elements of a claim on purpose of escaping immediate danger from the alien's country of origin or resettlement, or other.

1. When a persecutor is motivated to harm an applicant for more than one reason, to what degree must it be established that the persecutor be motivated by the applicant's possession or imputed possession of a protected characteristic in order for the applicant to be eligible for asylum?

At least "one central reason" standard.

What issues regarding interviewing survivors of torture must an AO keep in mind during the interview?

Make Applicant feel safe, be in control, and be flexible, Torture always rises to the level of persecution.

Internal Relocation: What should be considered when determining whether an applicant can relocate internally to avoid future persecution?

COI, Countrywide scope of feared persecution; Determine if an applicant's relocation, under all circumstances, would be reasonable; Who is the persecutor?

What are the two types of circumstances that may lead to an exception to the one-year filing rule?

Changed circumstances or Extraordinary circumstances

What is the standard of proof required to establish that an applicant filed within one year after the last arrival?

Clear and convincing evidence standard

When an applicant is stateless, persecution and well-founded fear are analyzed with respect to what country?

Country of last habitual residence

When writing a decision for a case where religion is the basis of claim, what must be cited?

DOS Annual Report on Religious Freedom

What factors are specifically listed in the REAL ID Act as being factors that may be considered in making a credibility determination?

Detail, Consistency, Plausibility, Demeanor, Candor, Responsiveness, analytical framework: identify credibility, determine relevance, and notify applicant of credibility concern to determine reasonableness of explanation.

What is the definition of fraud for purposes of an asylum adjudication?

Fraud is defined as a willful misrepresentation of the truth or concealment of a material fact in order to obtain a benefit for which one would otherwise not be qualified.

Represented applicants: What form(s) must be completed when an applicant is represented at the interview?

G-28

If a gender-based restriction in the applicant's home country does not rise to the level of persecution, how might it be relevant in an asylum adjudication?

Gender-based restriction is also relevant in determining internal relocation

Internal Relocation: When can it be presumed that relocation would not be reasonable?

Government or government-sponsored persecutor

Structure of the assessment of NOID: In what order should the components of the written decision be addressed?

I. Biographic/Entry or Arrival/Immigration Status Information; II. Basis of Claim; III. Analysis of Prohibition Against Filing for Asylum; IV. Summary of Testimony; V. Analysis of Credibility/Evidence Assessment; VI. Focused Legal Analysis; VII. Analysis of Bars/Discretionary Factors; VIII. Decision

What are the procedures if the applicant's attorney is not present?

Inform the right to have a representative present at the interview. If the interviewee wishes to proceed, the interviewee must sign a waiver form, If the interviewee does not wish to proceed, reschedule the interview.

What is the asylum program policy on confidentiality?

Information about and contained in an asylum application or credible/reasonable fear determination is protected from disclosure to third parties without written consent of the applicant or the Secretary of Homeland Security.

If the persecutor is a non-government entity, what must be established?

Is the government is unwilling or unable to control the persecutor? Additionally, consider if internal relocation is possible

What factors should you consider when a claim is based on a generally applicable law in the applicant's home country that interferes with or restricts the practice of the applicant's religion?

Is the law neutral in intent?, Is the law neutrally or unequally enforced?, How does the persecutor view those who violate the law?

What are some of the differences between the NOID and the referral assessment?

NOID are sent when In lawful status and allows for rebuttal.

What is done if the attorney at the interview is different from the attorney of record?

New a G-28

If the applicant meets the definition of a refugee: Does a grant of asylum necessarily follow?

No

What are some of the main elements of the 1995 asylum reform?

No automatic work permit, Created referral process, Removed the right to rebut in most cases, Decision no longer mailed in most cases, Removed authority to adjudicate requests for withholding of deportation in most cases

Plausibility: When may you conclude that an applicant's testimony is implausible?

No supporting evidence, inconsistent and unable to provide reasonable explanation.

Is political opinion the only ground that can be imputed to an individual?

No. Any of the protected characteristics can be imputed to an individual (race, religion, nationality, PSG, political opinion).

If an applicant's testimony is found to be not credible with regard to on fact, must his or her testimony be found to be not credible overall?

No. Credibility must be weighed in the totality of the circumstances.

Does a return to the country of feared persecution automatically defeat the claim?

No. Must ask why

Once a circumstance is established, does the applicant automatically establish an exception to the one year filing rule?

No. The applicant must file within a reasonable time of the changed circumstance or extraordinary circumstances.

When past persecution has been established: Who bears the burden of proof to rebut the presumption of well-founded fear?

Officer (The government (i.e. the asylum officer))

In a credible fear determination, how does an AO consider information regarding the mandatory bars to asylum?

Officers must elicit and make note of all information relevant to mandatory bars to asylum for IJ.

Which are most effective in an asylum interview, and why?

Open-ended questions

When may you consider non-binding circuit case law?

Outside jurisdiction Circuit Court decisions

By the statutory provision, persecution related to coercive population control is deemed to be on account of what protected ground?

Political opinion

When past persecution has been established: What is the standard of proof required for rebutting the presumption of a well-founded fear?

Preponderance of evidence

What is the standard of proof to establish that a circumstance exists?

Preponderance of evidence/satisfaction to the adjudication.

What are some examples of claims that might be considered gender-based asylum claims?

Rape and other sexual violence, FGM, Forced and early marriage, Domestic violence, Human trafficking, Slavery, Honor crime, Forced abortion, Bride burning

What is the standard of proof to establish a reasonable fear of persecution or torture?

Reasonable possibility standard

What standard of proof is used in an affirmative asylum adjudication of well-founded fear?

Reasonable possibility standard

What is presumed once an applicant establishes that he/she has been persecuted in the past?

Rebuttable presumption of well-founded fear of future persecution

Reasonable Delay: What time period should be considered when looking at the length of delay?

The applicant must have filed the asylum application within a reasonable period of time from the occurrence of the changed or extraordinary circumstances.

In order to be considered a changed circumstance, when must the event have occurred?

The applicant musts file his or her application within a reasonable time after the changed circumstance.

Who must be placed under oath at the asylum interview?

The applicant; the interpreter; dependent; the monitor

What factors must an AO consider when determining whether an individual is subject to a bar as a terrorist?

Relation to Terrorist Organization, Activities, use of weapon, etc with the intent to inflict harm to more than one person.

What are some of the provisions of IRFA?

Requires DOS to publish an annual report on religious persecution, Created Commission on International Religious Freedom, Officers must use the DOS Annual Report on Religious Freedom and other COI when analyzing claims for asylum or refugee status on account of religion, receive training on country conditions information and information on religious persecution, ensure interpreters do not display bias against a person's race, religion, nationality, membership in a particular social group, or political opinion, Creates new ground of inadmissibility - INA § 212(a)(2)(G) - for foreign gov't officials who have engaged in particularly serious violations of religious freedom, Studies the effect of expedited removal provision on asylum claims

Dependents: Who can be included as a dependent on an asylum application?

Spouse and children who are physically present in the United States may be included in the request for asylum. Children must be under 21 and unmarried at the time of filing.

What elements must be examined to determine whether the applicant has a well-founded fear of persecution?

Subjective - a genuine fear of persecution must be the applicant's primary motivation in seeking refugee or asylum status; Objective - applicant's fear must be based on facts that would lead a reasonable person in similar circumstances to fear persecution: PACI

What is binding case law for an asylum adjudication?

Supreme Court decisions, Circuit Court decisions based on jurisdiction, and BIA decisions

When must an AO switch to taking notes in the Question and Answer format?

Sworn Statement

Who has the burden of proof to establish that a circumstance exists?

The applicant

Reasonable Delay: What must be established before an AO can consider whether a delay in filing was reasonable?

The applicant must first establish an exception to the one-year filing deadline with changed or extraordinary circumstances.

What must be included in the credibility determination in the assessment/NOID?

The credibility determination is made after the summary of facts. If a negative credibility determination is made, the asylum officer must explain in the assessment or NOID the reasons for finding the applicant not credible.

Plausibility: In the asylum context, what is meant by implausible?

The facts asserted does not conform to the objective rules of reality. objectively impossible

What are the components of the Asylum Program's mission statement?

The mission of the Asylum Program is to offer protection to refugees in accordance with the laws of the United States and international obligations, while upholding the integrity of the program and national security of the United States.

What does it mean to be targeted for an "imputed" political opinion?

The persecutor believes the applicant possesses a protected characteristic (i.e. political opinion), and the persecutor is motivated to harm the applicant because of that imputed belief or characteristic.

Where would you find regulations pertaining to asylum law?

Title 8 of the Code of Federal Regulations (8 C.F.R)

What are the goals of an AO when interviewing?

To elicit the applicant's testimony; To complete the record; To assess credibility; To determine eligibility for relief; To determine any potential bars/inadmissibility

1Child, what accommodation should be made for the interview situation?

Trusted adult present

Who may have access to affirmative asylum notes?

USCIS, Interviewee and representative, Department of State, Immigration courts judges, Government trial attorneys (ICE), Other U.S. Government officials.

If it is established that the presumption of WFF is overcome by changed circumstances, is it possible for the applicant to receive asylum? (Grant in the absence of well-founded fear)

Yes. discretionary relief of humanitarian asylum based on the severity of the past persecution or the likelihood of suffering other serious harm. (See Matter of Chen)

How do we look at evidence submitted by a child in support of an asylum claim?

age and maturity level.

Internal Relocation: What should be considered when determining whether it is reasonable to require him or her to do so?

age, Other serious harm, - On-going civil strife, - Administrative, economic, or judicial infrastructure, - Geographic limitation, - Social and cultural constraints

What factors must an AO consider when determining whether an individual is barred for having been convicted of a particularly serious crime?

all aggravated felonies are, per se, particularly serious crimes, crimes of violence.

Internal Relocation: Who bears the burden of proof to establish relocation would not be reasonable?

applicant

What may be demonstrated by an applicant's return to the country of nationality?

applicant may not possess a genuine (subjective) fear of persecution or that the applicant's fear is not objectively reasonable.

What are some strategies and techniques for combating fraud?

background/security checks, FDNS, security vetting and program integrity, Programs and Integrity Branch; conduct overseas verifications and investigations, Coordination with other DHS components (ICE) , supervisory review

In a reasonable fear determination, how does an AO consider information regarding the mandatory bars to asylum?

bars does not apply (Withholding/CAT is mandatory relief)

Reasonable Delay: What is considered during the examination of whether the delay in filing was reasonable?

based on relevant factors for delay: age, education, when became aware of changed circumstance, injuries, illness, loss of status as considered reasonable for filing.

Which are the least effective, and why?

compound questions because it can lead to critical misunderstandings, loaded questions because it conveys bias or personal judgment, usually negative, of the interviewing officer, or it presupposes information or facts that have not been established.

When is an individual referred to the asylum office for a credible fear screening?

expedited removal who indicated fear of persecution or torture, or a fear of return to their home country, and are referred to asylum officers to determine whether they have a credible fear of persecution or torture.

Which bars to receiving asylum do not apply independently to dependents?

firm resettlement

Who can serve as an interpreter at an affirmative asylum interview?

fluent in English language, be at least 18 years of age, not be the applicant's attorney or representative, or a witness, be in status, not be representative or employee of another country where applicant is from.

What is meant by "burden of proof?"

legal standard being applied

What are the attorney's rights under 8 CFR § 208.9?

make a closing statement or comment on the evidence presented.

What should be considered when determining whether harm rises to the level of persecution?

severe and serious, suffered or feared rises to the level of persecution, no minimum, One serious incident or threat may constitute persecution, or there may be several incidents or acts, which considered together, constitute persecution

What are the two ways by which an applicant can establish that an application was filed timely?

the date of lasts arrival was within the applicable one-year period, or the applicant was outside the United States during the previous year immediately before the date of filing

When is an individual referred to the asylum office for a reasonable fear determination?

when reinstatement of a prior order of removal and applicant expresses a fear of returning to the country of removal, DHS refer the case to an asylum officer for a reasonable fear determination.