L-S-, 25 I&N Dec. 705 (BIA 2012)

Cite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
Matter of L-S-, Respondent
Decided February 17, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An asylum applicant who has established past persecution but no longer has
a well-founded fear of persecution may nevertheless warrant a discretionary grant
of humanitarian asylum based not only on compelling reasons arising out of the
severity of the past persecution, but also on a “reasonable possibility that he or she
may suffer other serious harm” upon removal to his or her country under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B) (2011).
(2) “Other serious harm” may be wholly unrelated to the applicant’s past harm and need not
be inflicted on account of race, religion, nationality, membership in a particular social
group, or political opinion, but the harm must be so serious that it equals the severity
of persecution.
(3) In determining whether an applicant has established a “reasonable possibility” of “other
serious harm,” adjudicators should focus on current conditions that could severely affect
the applicant, such as civil strife and extreme economic deprivation, as well as on the
potential for new physical or psychological harm that the applicant might suffer.
FOR RESPONDENT: Dorothy J. Harper, Esquire, St. Louis, Missouri
Chief Counsel
KENDALL CLARK, Temporary Board Member.
ADKINS-BLANCH, Board Member:
This case is before us on remand from the United States Court of Appeals
for the Eighth Circuit pursuant to an October 15, 2010, order granting the
respondent’s petition for review. Sholla v. Holder, 397 F. App’x 253 (8th Cir.
2010). It was last before us on February 26, 2010, when we upheld the July 8,
2008, decision of the Immigration Judge denying the respondent’s applications
for asylum, withholding of removal under section 241(b)(3) of the Immigration
and Nationality Act, 8 U.S.C. § 1231(b)(3) (2006), and protection under
the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,Cite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
1 Proceedings before the Immigration Judge in this matter were completed in St. Louis,
Missouri, where the case was docketed for hearing and where the hearing notice directed
the respondent to appear through video conference pursuant to section 240(b)(2)(A)(iii)
of the Act, 8 U.S.C. § 1229a(b)(2)(A)(iii) (2006). The Immigration Judge conducted the
hearing there remotely from Oakdale, Louisiana.
2 The respondent argued that conditions in Albania had not materially changed; he did not
set forth any new basis for an asylum claim. The respondent’s requests for withholding
of removal and protection under the Convention Against Torture, which were previously
denied, were not subject to the most recent remand from the Eighth Circuit and are no longer
before us.
G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.
A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States
Apr. 18, 1988) (“Convention Against Torture”), but granting him voluntary
departure.1 The record will be remanded to the Immigration Judge for further
The respondent is a native and citizen of Albania who has requested
asylum, maintaining that he was persecuted over many years in his country
on account of his political opinion. In a decision dated September 29, 2004,
an Immigration Judge found the respondent removable and denied his
applications for relief based on his persecution claim, finding that he failed
to establish past persecution and that, in any case, circumstances in Albania
had changed so that he no longer had a well-founded fear of persecution.
We affirmed the Immigration Judge’s decision in an order dated July 11, 2006.
In 2007, the Eighth Circuit granted the respondent’s petition for review and
remanded the record, finding that the mistreatment that the respondent had
experienced in Albania was of such severity that it amounted to persecution.
Sholla v. Gonzales, 492 F.3d 946 (8th Cir. 2007). Consequently, in an order
dated February 14, 2008, we remanded the record to the Immigration Court.
In his July 8, 2008, decision on remand, the Immigration Judge found that
in light of changed conditions in Albania, the Department of Homeland
Security (“DHS”) had rebutted the presumption that the respondent had
a well-founded fear of future persecution based on his original persecution
claim, citing 8 C.F.R. § 1208.13(b)(1) (2008). The Immigration Judge also
held that the respondent did not independently have a well-founded fear
of future persecution.2
The respondent appealed, and on February 26, 2010, we upheld the
decision of the Immigration Judge. Although the respondent had requestedCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
3 As explained below, asylum granted in the absence of a well-founded fear of persecution
is sometimes referred to as “humanitarian” asylum. See Matter of Chen, 20 I&N Dec.
16 (BIA 1989); see also Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008). Under
8 C.F.R. § 1208.13(b)(1)(iii), humanitarian asylum may be granted—only to an applicant
who suffered past persecution—when
(A) The applicant has demonstrated compelling reasons for being unwilling
or unable to return to the country arising out of the severity of the past persecution;
(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.
(Emphasis added.)
“humanitarian” asylum, the Immigration Judge did not consider the request.3
However, we did address that issue in our decision, finding that such relief was
not warranted. Citing Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA
2008), and Matter of Chen, 20 I&N Dec. 16 (BIA 1989), we stated, “The
record does not support a finding that the respondent has suffered an atrocious
form of persecution which results in continuing pain similar to that found
in cases where asylum has been granted despite no finding of future
Upon review of our last decision, the Eighth Circuit upheld the
determination that conditions in Albania had changed to a sufficient extent that
the respondent would no longer have a reasonable fear of persecution. The
court remarked, however, that the Board’s “summary denial” of humanitarian
asylum left it in doubt as to whether we had considered all of the factors
relevant to such a claim. See Sholla v. Holder, 397 F. App’x at 255 (citing
Abrha v. Gonzales, 433 F.3d 1072, 1076 (8th Cir. 2006) (holding that relevant
factors for humanitarian asylum include the degree of the harm suffered,
the length of time over which the harm was inflicted, and evidence
of psychological trauma resulting from the harm)). Consequently, the Eighth
Circuit granted the respondent’s latest petition for review and remanded the
record to us.
The facts, as previously found, concern the respondent’s account of how
he and his family were imprisoned by the Communist-era Albanian
Government in an internment camp between 1980 and 1981 on account of the
respondent’s criticism of the communist system then present in his country.
The respondent described austere conditions in the camp, which involvedCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
spending long hours at hard labor and having to live in a barracks while
interned. What drinking water was available was often of poor quality. The
respondent asserted that prisoners were constantly supervised and were not
permitted to communicate with each other. He described how being labeled
a “dissident” caused him difficulty obtaining work after his release, although
he did eventually secure a hard-labor job at a stone quarry.
The respondent explained how he joined an Albanian democratic movement
in 1990 and became a member of the Democratic Party in Kucova in 1991.
Three of his brothers were active in the movement as well. The respondent
related that secret police warned him against engaging in democratic political
activities and that they threatened him with disappearance. Socialist Party
members also threatened him physically. According to the respondent, in May
1997, he was beaten unconscious by unknown individuals on account of his
political activity, and in June 1997, he was again beaten by a police officer and
a civilian police employee. The respondent endured another similar beating
later that month. After the Socialist Party won the election that subsequently
ensued, the respondent’s employment was terminated.
The respondent also described difficulties that his politically active
brothers experienced, including the 1998 bombing of one brother’s house and
the bombing of his other brother’s store later that year. According to the
respondent, during the election season of 2000, masked men carrying machine
guns shot at his apartment, wounding his son in the leg. Police supposedly
told the respondent they would investigate, but no actions were taken. The
respondent’s three politically active brothers were reportedly granted asylum
in the United States.
When this case was last before the Immigration Judge in 2008, both the
DHS and the respondent submitted additional country condition information,
and the respondent proffered more testimony relating to his request for
humanitarian asylum. The respondent indicated that his children remained
in hiding in Albania with their grandparents. He acknowledged that Albania
held parliamentary elections in 2005 and that members of the Democratic
Party, which he had supported, won the prime minister’s office and obtained
a majority of the seats in the country’s single-house parliament. The
respondent asserted, however, that there would be no place for him to live
in Albania. He believed that his former political opponents were still there
and remained armed, and he recalled the mistreatment and death threats
he had received from the secret police. The respondent also claimed that
he experienced fear, panic attacks, depression, and sleep problems, along with
nightmares about his experiences in Albania. He provided evidence that
he had been prescribed the psychotropic medications Haldol, benztropine, and
temazepam.Cite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
4 As a general matter, when a case is remanded to an Immigration Judge, unless
we specifically limit the scope of the proceedings below, the Immigration Judge reacquires
jurisdiction and may consider additional evidence concerning new or previously considered
relief if the requirements for submitting such evidence are met. See Matter of Patel, 16 I&N
Dec. 600, 601 (BIA 1978) (holding that a remand from the Board to an Immigration Judge
is effective for all matters deemed appropriate in the exercise of administrative discretion
“unless the Board qualifies or limits the remand [to] a specific purpose”); see also Bracic
v. Holder, 603 F.3d 1027, 1033 (8th Cir. 2010) (approving of Matter of Patel); Matter
of M-D-, 24 I&N Dec. 138, 141-42 (BIA 2007) (regarding the scope of the Immigration
Judge’s jurisdiction on remand for background checks). While we recognize the need for
judicial economy and appreciate the Immigration Judge’s attempt to correctly follow the
mandates of the prior remand orders from the court and this Board, he was not explicitly
constrained by those orders to abbreviate the application of the asylum regulations,
particularly when the respondent had specifically requested humanitarian asylum.
In finding that conditions had changed in Albania, the Immigration Judge
noted how power in the country had shifted to the respondent’s political party.
Persuaded by the State Department’s recent report on conditions in Albania,
the Immigration Judge found that there was no evidence of politically
motivated disappearances and no political prisoners, even though there
were occasional arbitrary arrests by the police. The Immigration Judge
concluded that the State Department’s report was more persuasive than some
contrary information submitted by the respondent. Compare Bureau
of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Albania
Country Reports on Human Rights Practices – 2007 (Mar. 11, 2008), available
at http://www.state.gov/j/drl/rls/hrrpt/2007/100544.htm,withAlbanian Human
Rights Group, Justice Initiative (2008). As noted above, the Immigration
Judge did not consider the respondent’s request for humanitarian asylum.4
We previously upheld the Immigration Judge’s determination regarding
changed country conditions—as they relate to the respondent’s original basis
for asylum—and that issue is no longer before us. Pursuant to the Eighth
Circuit’s remand, we now consider the respondent’s claim for humanitarian
In Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008), we held that
the regulatory framework of 8 C.F.R. § 1208.13(b)(1) must be followed
to properly evaluate an asylum claim. We addressed how, under the
regulation, the presumption of a well-founded fear arises when past
persecution has been shown and how the burden of proof then shifts to the
DHS to rebut the presumption. In this case, as noted above, we are at the stage
where the presumption has been rebutted based on changed conditionsCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
5 A “refugee” is defined as
any person who is outside . . . [his or her] country . . . 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.
Section 101(a)(42)(A) of the Act (emphasis added). Thus, the experience of past
persecution itself renders the respondent a refugee.
in Albania. We must therefore progress further through the regulation’s
provisions—beyond what was necessary to decide Matter of D-I-M-.
A. Humanitarian Asylum
We emphasize that every asylum applicant who arrives at this stage of the
analysis has demonstrated past persecution and thus has proven that
he or she is a “refugee.” Sections 101(a)(42)(A), 208(a)(1) of the Act,
8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1) (2006).5 However, not all refugees are
eligible to receive asylum in the United States. In particular, those for whom
the presumption of a well-founded fear has been rebutted and who have not
shown any other basis for a well-founded fear of persecution will not qualify
for asylum. See 8 C.F.R. §§ 1208.13(b)(1)(i)–(ii), (2). Nonetheless, because
the regulations provide additional avenues for asylum for an applicant who has
suffered past persecution but who no longer has a well-founded fear,
adjudicators—when presented with a case in this procedural posture—should
consider whether such an applicant is eligible for a humanitarian grant
of asylum under the provisions of 8 C.F.R. § 1208.13(b)(1)(iii)(A) or (B).
We note that an asylum applicant, such as the respondent, bears the burden
of proof to show that either form of humanitarian asylum is warranted.
Specifically, the regulation provides that an applicant who has already shown
past persecution may still be granted asylum, even when the presumption
of a well-founded fear of future persecution has been rebutted, by establishing
either: (1) that he has “compelling reasons,” arising out of the severity of the
past persecution, for being unable or unwilling to return to his country under
§ 1208.13(b)(1)(iii)(A); or (2) that there is a “reasonable possibility” that
he may suffer “other serious harm” upon removal to his country under
§ 1208.13(b)(1)(iii)(B). See also Ben Hamida v. Gonzales, 478 F.3d 734,
740-41 (6th Cir. 2007) (stating that to establish eligibility under either prong,
the applicant must first show that he or she suffered persecution on account
of a protected ground). A grant of asylum under either approach is consideredCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
6 This provision for humanitarian asylum was first included in the regulations in 1990
following our decision in Matter of Chen. See Aliens and Nationality; Asylum and
Withholding of Deportation Procedures, 55 Fed. Reg. 30,674, 30,683 (July 27, 1990)
(codified at 8 C.F.R. § 208.13(b)(1)(ii) (1991)). The UNHCR Handbook likewise
recognized that there are situations where a person may have been subjected to very serious
persecution in the past and therefore will not cease to be a refugee, even if fundamental
changes have occurred in the country of origin.
It is frequently recognized that a person who—or whose family—has suffered under
atrocious forms of persecution should not be expected to repatriate. Even though
there may have been a change of régime in his country, this may not always produce
a complete change in the attitude of the population, nor, in view of his past
experiences, in the mind of the refugee.
Office of the United Nations High Commissioner for Refugees, Handbook on Procedures
and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967
Protocol Relating to the Status of Refugees para. 136, at 31 (Geneva, 1992).
to be a form of humanitarian asylum, but each is distinct. We will consider
each of these forms of asylum in turn.
B. Asylum Based on Severity of Past Persecution
We have previously considered the form of humanitarian asylum currently
set forth in 8 C.F.R. § 1208.13(b)(1)(iii)(A), involving “compelling reasons”
arising out of the severity of the past persecution, which is the first basis for
the Eighth Circuit’s remand in this case.6 For example, in Matter of Chen,
20 I&N Dec. at 21, we stated that even though the applicant did not have
a well-founded fear of persecution, his genuine subjective fear of returning
to his country, his history of mistreatment in the People’s Republic of China,
and the mistreatment and death of his father there were relevant considerations
to his claim. The applicant’s suffering began when he was 8 years old and
continued until his adulthood. He endured considerable physical,
psychological, and social harm, as a result of which he was permanently
physically and emotionally scarred. Based on these humanitarian factors, we
concluded that asylum should be granted in the exercise of discretion.
Similarly, in Matter of B-, 21 I&N Dec. 66, 72 (BIA 1995), we found that
humanitarian asylum was appropriate where an applicant had been imprisoned
for political reasons for some 13 months under “deplorable” conditions. The
applicant faced the routine use of various forms of physical torture and
psychological abuse, including beatings and electrical shocks, inadequate diet
and medical care, and the integration of political prisoners with criminal andCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
7 We recognize that there may have been independent reasons why a claim of asylum based
on the potential for “other serious harm” was not pursued or considered in these cases.
mentally ill prisoners. We recognized that these experiences were likely
exacerbated by his separation from his family and the fact that his missing
father’s fate was unknown.
In Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998), we noted that
“asylum is warranted for ‘humanitarian reasons’ only if [the applicant]
demonstrates that in the past [he] or his family has suffered under atrocious
forms of persecution.” Id. at 325 (alteration in original) (quoting Kazlauskas
v. INS, 46 F.3d 902 (9th Cir. 1995)) (internal quotation marks omitted). In that
case we declined to extend asylum on a humanitarian basis to an applicant who
had experienced a month-long detention and beatings and had the knowledge
that his father who had disappeared was likely dead. Instead, we found that
the applicant had not demonstrated compelling reasons for being unable
or unwilling to return to his country in light of the degree of harm suffered, the
length of time over which the harm was inflicted, and the lack of evidence
of severe psychological trauma stemming from the harm. Id. at 326. This
approach, which was the only form of humanitarian asylum available when
these cases were decided, is now embodied in 8 C.F.R. § 1208.13(b)(1)(iii)(A).
More recently, in Matter of S-A-K- & H-A-H-, 24 I&N Dec. at 46, we found
the applicants eligible for humanitarian asylum under this provision because
they had suffered “an atrocious form of persecution that results in continuing
physical pain and discomfort.” The claimants in that case had undergone
female genital mutilation in Somalia with aggravating circumstances.
Prior to the regulatory change adding § 1208.13(b)(1)(iii)(B), discussed
below, adjudicators would generallyend their analysis of humanitarian asylum
here, considering whether to exercise discretion to grant relief if the requisite
severity of past harm had been shown. However, even after 2001 when the
“other serious harm” provision in the regulation went into effect, adjudicators
and the parties have not always focused on this second avenue for
humanitarian asylum. See, e.g., Precetaj v. Holder, 649 F.3d 72, 75 (1st
Cir. 2011) (parenthetically noting the “other serious harm” provision
as an alternative basis for humanitarian asylum, but citing law that predated
it and discussing only relief based on the severity of past persecution);
Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200-01 (11th Cir. 2009) (noting
both provisions of the regulation but applying only § 1208.13(b)(1)(iii)(A));
Ngarurih v. Ashcroft, 371 F.3d 182, 190 (4th Cir. 2004) (noting both the
“compelling reasons” and “other serious harm” avenues for humanitarian
asylum, but focusing only on the former).7 While such cases may offerCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
Moreover, even after the “other serious harm” provision was added to the regulation, it
might not have been construed as a second basis for humanitarian asylum, per se. However,
the regulation sets forth this provision as an equivalent alternative to the traditional Matter
of Chen or “compelling reasons” approach, and we interpret it as a separate basis for
humanitarian asylum.
8 As we indicated in Matter of S-M-J-, 21 I&N Dec. 722, 725 (BIA 1997), “[A]n asylum
applicant should provide documentary support for material facts which are central to his or
her claim and easily subject to verification . . . . If the applicant does not provide such
information, an explanation should be given as to why such information was not presented.”
We also note that adjudicators do not necessarily need to decide if there are “compelling
reasons” to grant humanitarian asylum before considering if a grant of relief is warranted
under § 1208.13(b)(1)(iii)(B) based on “other serious harm.” Asylum applicants who
suffered past persecution should be able to state whether they are pursuing humanitarian
asylum under either or both provisions. However, if relief is denied on one basis, the other
should also be considered.
guidance under § 1208.13(b)(1)(iii)(A), they do not address the “other serious
harm” aspect of § 1208.13(b)(1)(iii)(B).
C. Asylum Based on a Reasonable Possibility of
“Other Serious Harm”
If an Immigration Judge determines that an asylum applicant has not
demonstrated “compelling reasons” to grant humanitarian asylum, there
remains the additional avenue for relief under 8 C.F.R. § 1208.13(b)(1)(iii)(B)
based on a “reasonable possibility” of “other serious harm.” As with the
“compelling reasons” provision of the regulation, the applicant bears the
burden of proof to show why asylum should be granted on this basis in the
exercise of discretion.8
To date, there has been little legal guidance interpreting the meaning
of “other serious harm” under the regulation. Prior to the 2001 change that
added this provision, the regulation already permitted asylum grants for
“compelling reasons” based on the severity of past persecution, that is, the
so-called “Chen grants.” See Asylum Procedures, 65 Fed. Reg. 76,121,
761,33 (final rule Dec. 6, 2000) (effective Jan. 5, 2001); see also 8 C.F.R.
§ 208.13(b)(1)(ii) (1991). Nonetheless, as the Supplementary Information
to the proposed regulation change states, the Attorney General found that
approach alone to be too limited:
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.Cite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
Executive Office for Immigration Review; New Rules Regarding Procedures
for Asylum and Withholding of Removal, 63 Fed. Reg. 31,945, 31,947
(proposed Jun. 11, 1998) (SupplementaryInformation) (emphasis added). This
was the rationale for adding the “other serious harm” language to 8 C.F.R.
§ 1208.13(b)(1)(iii). The changed regulation not only endorsed the approach
to humanitarian asylum that is based on the severity of past harm, but it also
made the consideration of a reasonable possibility of other serious harm
a specific, additional, and separate avenue for relief. Id. (citing the ongoing
civil strife in Afghanistan discussed in Matter of B-, 21 I&N Dec. 66,
as an example of “other serious harm”).
According to the Supplementary Information to the regulation, “other
serious harm” need not be inflicted on account of race, religion, nationality,
membership in a particular social group, or political opinion. 63 Fed. Reg.
at 31,947. However, such harm must be so serious that it equals the severity
of persecution. Mere economic disadvantage or the inability to practice one’s
chosen profession would not qualify as “other serious harm.” Id.
The “other serious harm” provision of the regulation differs in nature from
the “compelling reasons” provision. To be eligible for asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B), an applicant need not show that the harm suffered
in the past was atrocious. Instead, the inquiry is forward-looking. When
considering the possibility of “other serious harm,” the focus should
be on current conditions and the potential for new physical or psychological
harm that the applicant might suffer. While “other serious harm” must equal
the severity of persecution, it may be wholly unrelated to the past harm.
Moreover, pursuant to the regulation, the asylum applicant need only
establish a “reasonable possibility” of such “other serious harm”; a showing
of “compelling reasons” is not required under this provision. We also
emphasize that no nexus between the “other serious harm” and an asylum
ground protected under the Act need be shown.
Therefore, at this stage of proceedings, adjudicators considering “other
serious harm” should be cognizant of conditions in the applicant’s country
of return and should pay particular attention to major problems that large
segments of the population face or conditions that might not significantly
harm others but that could severely affect the applicant. Such conditions may
include, but are not limited to, those involving civil strife, extreme economic
deprivation beyond economic disadvantage, or situations where the claimant
could experience severe mental or emotional harm or physical injury.
Some circuit court cases have provided examples of situations that might
involve “other serious harm.” See, e.g., Pllumi v. Att’y Gen. of U.S., 642 F.3d
155, 162-63 (3d Cir. 2011) (cautioning, where the applicant claimed that
medical treatment in Albania was insufficient to treat his severe injuries,
that while countries’ differing health care standards were not a basis forCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
asylum,“it is conceivable that, in extreme circumstances, harm resulting from
the unavailability of necessary medical care could constitute ‘other serious
harm’”); Kone v. Holder, 596 F.3d 141, 152-53 (2d Cir. 2010) (stating that the
Board may consider on remand “whether the mental anguish of a mother who
was herself a victim of genital mutilation who faces the choice of seeing her
daughter suffer the same fate, or avoiding that outcome by separation from
her child, may qualify as such ‘other serious harm’”);Kholyavskiy v. Mukasey,
540 F.3d 555, 577 (7th Cir. 2008) (remanding for consideration of “other
serious harm” if the applicant’s psychiatric medications, which he needed for
functioning, might be unavailable in his country); Mohammed v. Gonzales,
400 F.3d 785, 801 (9th Cir. 2005) (remanding for consideration of possible
“other serious harm” in light of Somalia’s poverty; the decimation of the
applicant’s clan, which left female members like the applicant particularly
vulnerable; and serious ongoing human rights abuses, including the killing
of many civilian citizens in factional fighting); Belishta v. Ashcroft, 378 F.3d
1078 (9th Cir. 2004) (noting the applicant’s possible eligibility for relief under
§ 1208.13(b)(1)(iii)(B) where agents of the former Albanian regime—although
motivated solely by money—reportedly tried to take the applicant’s house,
threatened and harassed both her and her family, shot out her windows, and
left a bomb on her doorstep); cf. Boer-Sedano v. Gonzales, 418 F.3d 1082,
1090-91 (9th Cir. 2005) (finding that a gay man with Acquired Immune
Deficiency Syndrome (“AIDS”), who faced unemployment, a lack of health
insurance, and the unavailability of necessary medications in Mexico to treat
his disease, showed a likelihood of “other serious harm” to make relocation
within his country unreasonable when considered in the context of the “social
and cultural constraints” placed upon his particular social group).
In light of these cases and the need to examine “other serious harm” factors
under the totality of the circumstances in a given situation, we conclude that
such determinations are most appropriately made on a case-by-case basis.
We cite the above cases as examples and do not necessarily endorse any
particular analysis or outcome.
D. Respondent’s Motion To Remand
We now turn to the case before us to address the respondent’s motion
to remand the record. He has raised an issue concerning his psychiatric
treatment—a question that should be first explored by an Immigration Judge.
The Eighth Circuit stated that we should not have ruled on the humanitarian
asylum claim without the benefit of a fully developed record relating
to that claim. The court further stated that the parties should be allowed
to supplement the record on remand. In any case, we note that further
fact-finding may generally be required to determine whether an applicantCite as 25 I&N Dec. 705 (BIA 2012) Interim Decision #3742
might experience “other serious harm” in his or her country of origin.
However, we have limited fact-finding authority in deciding appeals. See
8 C.F.R. § 1003.1(d)(3) (2011); see also Matter of S-H-, 23 I&N Dec. 462
(BIA 2002). Accordingly, subject to the provisions of the court’s order and
this decision, the respondent’s motion to remand will be granted.
On remand, the Immigration Judge should examine the respondent’s request
for a discretionary grant of humanitarian asylum in light of the severity of his
past persecution to determine whether he has shown “compelling reasons” for
being unable or unwilling to return to Albania. In this regard, relevant factors
include the actual length of the respondent’s internment in the early 1980s,
the severity of the conditions there, and the passage of time following
his release when he lived in his country without much incident until the late
1990s. Moreover, the nature, severity, and duration of the beatings and all
mistreatment that the respondent endured, as well as any aftereffects he may
now suffer, should be considered to determine if “compelling reasons” exist
for granting asylum, notwithstanding the rebuttal of the presumption
of a well-founded fear, as contemplated by 8 C.F.R. § 1208.13(b)(1)(iii)(A).
In addition to the respondent’s experiences in Albania, those of his politically
active brothers may be relevant to the inquiry regarding the severity of the
respondent’s past mistreatment, especially since they have each reportedly
been granted asylum. See Office of the United Nations High Commissioner
for Refugees, Handbook on Procedures and Criteria for Determining Refugee
Status Under the 1951 Convention and the 1967 Protocol Relating to the
Status of Refugees para. 136, at 31 (Geneva, 1992).
If the Immigration Judge finds that the respondent did not demonstrate
“compelling reasons” for granting asylum based on the severity of his past
persecution, he should also determine whether the respondent has established
a “reasonable possibility” that he will suffer “other serious harm” under
8 C.F.R. § 1208.13(b)(1)(iii)(B) in light of the considerations discussed above.
As we previously noted, further fact-finding in this regard may be necessary.
Under either of the regulatory provisions, the respondent has the burden
of proof to show that a grant of humanitarian asylum is warranted, including
whether discretion should be favorably exercised.
ORDER: The respondent’s motion to remand is granted.
FURTHER ORDER: The record is remanded for further proceedings
consistent with the foregoing opinion and the order of the Eighth Circuit and
for the entry of a new decision.