[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Proposed Rules]
[Pages 31945-31950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15590]


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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.

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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

[[Page 31946]]

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 well-founded 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 well-founded 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,

[[Page 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 Sec. 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 well-founded 
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 para. 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 well-founded fear of future persecution. In cases where the 
applicant has established past persecution, the Service would bear the 
burden of showing that

[[Page 31948]]

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 foreign-
based 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.

[[Page 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 Sec. 208.13, paragraph (b) is revised to read as follows:


Sec. 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 well-founded 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 well-founded 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 Sec. 208.16, paragraphs (b)(1), (b)(2), and (b)(3) are 
revised to read as follows:


Sec. 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

[[Page 31950]]

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