N-M-A

Interim Decision #3368

In re N-M-A-, Applicant

Decided October 21, 1998

U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals

(1) Under 8 C.F.R. § 208.13(b)(1)(i) (1998), where an asylum applicant has shown that he has
been persecuted in the past on account of a statutorily-protected ground, and the record reflects
that country conditions have changed to such an extent that the asylum applicant no longer has
a well-founded fear of persecution from his original persecutors, the applicant bears the burden
of demonstrating that he has a well-founded fear of persecution from any new source.

(2) An asylum applicant who no longer has a well-founded fear of persecution due to changed
country conditions may still be eligible for a discretionary grant of asylum under 8 C.F.R. §
208.13(b)(1)(ii) only if he establishes, as a threshold matter, compelling reasons for being
unwilling to return to his country of nationality or last habitual residence arising out of the
severity of the past persecution.

(3) The applicant failed to establish compelling reasons arising out of the severity of the past
persecution for being unwilling to return to Afghanistan where he suffered beatings during a
month-long detention and the disappearance and likely death of his father.

Robert B. Jobe, Esquire, San Francisco, California, for the applicant
James S. Stolley, Jr., Assistant District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU,
FILPPU, COLE, MATHON, JONES, GRANT, and SCIALABBA, Board
Members. Concurring and Dissenting Opinions: ROSENBERG, Board Member;
GUENDELSBERGER, Board Member, joined by SCHMIDT, Chairman.
FILPPU, Board Member:

The applicant, a native and citizen of Afghanistan, has appealed from
the Immigration Judge’s decision of July 10, 1995, denying him asylum and
withholding of exclusion and deportation under sections 208 and 243(h) of

1 Since amendments made by the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546 (enacted Sept. 30, 1996)
(“IIRIRA”), are not applicable here, the statutory citations in the text above refer to the Act
as it existed prior to the signing of the IIRIRA.

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the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h)
(1994).1 The applicant has also filed a motion to remand the record for
further proceedings based on changes in country conditions in
Afghanistan that have arisen since the time of his hearing. The
Immigration and Naturalization Service has filed an opposition to the
applicant’s motion to remand. The appeal will be dismissed, and the
motion to remand will be granted.

I. ISSUES AND FINDINGS

As per our regulatory authority, our review is de novo with regard to
issues on appeal, unless otherwise noted, e.g., as with credibility determi-
nations by Immigration Judges, which are given deference. See generally
Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The principal issue
before us on appeal is the scope of the regulatory presumption of 8 C.F.R.
§ 208.13(b)(1)(i) (1998). The dispositive issue in the motion to remand is
the effect of the new conditions in Afghanistan in relation to the applicant’s
fear of religious persecution. We address each issue in turn.
But before we turn to the questions raised by this case, it is appropriate
to add a cautionary note. On June 11, 1998, a proposed rule was published
in the Federal Register. If adopted as proposed, that rule would make mean-
ingful changes in the regulatory language we address today. See 63 Fed.
Reg. 31,945-50 (1998). Importantly, our reading of the existing regulations
should not be seen as an indication of how we might construe the language
of the proposed rule.
We return to the case at hand. The current regulatory presumption of 8
C.F.R. § 208.13(b)(1)(i) provides that an applicant who has established that
he has suffered past persecution on account of a statutorily-protected
ground will be presumed to have a well-founded fear of future persecution
unless a preponderance of the evidence establishes that conditions in the
applicant’s country of nationality or last habitual residence have changed to
such an extent that the applicant no longer has a well-founded fear of future
harm if he were to return. We hold that 8 C.F.R. § 208.13(b)(1)(i) (1998)
sets forth an evidentiary presumption and that the presumption is extin-
guished by changed conditions in the applicant’s country revealing that the
particular threat, which led to the past harm, no longer exists. Accordingly,
once an applicant has demonstrated that he has suffered past persecution on
account of a statutorily-protected ground, and the record reflects that coun-
try conditions have changed to such an extent that the applicant no longer
has a well-founded fear of persecution from his original persecutors, the
applicant bears the burden of demonstrating that he has a well-founded fear
of persecution from any new source.

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We also find that the applicant did not sufficiently demonstrate at the
hearing that he has a well-founded fear of harm from the Jamiat faction or
any other Afghan mujahidin faction on account of a statutorily-protected
ground. We further determine that the applicant did not meet his burden of
proving compelling reasons arising out of the severity of his past persecu-
tion for his unwillingness to return to Afghanistan, such that he may be
granted asylum on the strength of past persecution alone. 8 C.F.R. §
208.13(b)(1)(ii) (1998).
In his motion to remand, the applicant argues that the rise of the Taliban
in Afghanistan gives him both new and continuing fears of harm on account
of his political opinion and his religious beliefs. We first acknowledge that
the applicant has met the regulatory requirements of providing evidence of
changed circumstances arising in Afghanistan which is material and was
not available at the prior hearing. 8 C.F.R. § 3.2(c)(3) (1998). The Service,
however, argues that the applicant has failed to provide any evidence other
than generalized country conditions. We disagree. In addition to consider-
able documentation regarding the Taliban’s dominance of Afghanistan, the
applicant has provided an affidavit detailing his religious views and his con-
cerns about the Taliban’s control in Afghanistan. While we conclude that
the applicant has not established that he has a well-founded fear of perse-
cution on account of his actual or imputed political opinion, we do find that
he has a made an adequate showing that he has a well-founded fear of harm
on account of his religious views such that a remand for further proceedings
is appropriate.

II. FACTS

At his hearing, the applicant testified to having suffered persecution
in Afghanistan in 1989 during the mujahidin’s struggle to overthrow the
communist-supported government. In October 1988, the communist
secret police (KHAD) came to the applicant’s home in the middle of the
night and kidnaped his father, who had been providing clothing and med-
ical supplies to the Jamiat party, a mujahidin faction. The applicant relat-
ed that he had not seen his father since that night and that he assumed his
father was dead. Two weeks after his father’s disappearance, the KHAD
returned to the family’s home in the middle of the night and searched the
residence. The KHAD told the applicant that the search was routine, but
the applicant discovered the next day that no other homes in the neigh-
borhood had been searched. Shortly after his father’s disappearance, the
applicant agreed to distribute anti-communist flyers on behalf of the
Jamiat party. In 1989, the KHAD again returned to his home to conduct
another search. During this search, the KHAD found one of the flyers in
the applicant’s home.

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The applicant testified that after the KHAD found the flyer they took
him to a small house where he was questioned about the contraband flyer,
his family, and his educational background. He was detained for approxi-
mately 1 month and was beaten periodically by the KHAD. The applicant
described being hit and kicked during questioning, as well as deprived of
food for 3 days. He lost consciousness and was hospitalized while under
KHAD custody. He related that his entire body was covered with bruises
and that he had a deep wound on his right leg. He escaped from the hospi-
tal with the assistance of his father’s friend and fled to Pakistan, where he
stayed for 6 weeks recovering from his injuries before coming to the United
States. He testified that he is afraid to return to Afghanistan because of the
ongoing fighting and because he is now culturally different from his fellow
Afghans.
The Immigration Judge denied relief to the applicant because he found
that the country conditions in Afghanistan had changed to the extent that the
communists no longer posed a threat to the applicant. The Immigration
Judge found that the applicant’s fear of harm from the Jamiat party was
unreasonable because the applicant had previously assisted them. Instead,
the Immigration Judge found that the applicant’s fear of returning to
Afghanistan was based on the factional civil war plaguing Afghanistan. The
record contains a 1995 Department of State profile of asylum claims and
country conditions for Afghanistan, which discloses that the situation in
Afghanistan changed dramatically in April 1992 when the communist
regime of President Najibullah was toppled by a coalition of mujahidin
forces. Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of
State, Afghanistan-Profile of Asylum Claims & Country Conditions (Jan.
1995) [hereinafter Profile]. The coalition forces took control of the capital
and proclaimed an amnesty for all the former regime members except the
deposed president. In October 1992, Burhanuddin Rabbani of the Jamiat
faction was elected president for a 2-year term. The Profile discusses the
lack of control that the central government has been able to wield over the
factional fighting that then persisted among the armed militia groups. But
the Profile makes it clear that the “civil war . . . between the resistance fight-
ers and communist or pro-communist central governments . . . no longer
exists.” Profile, supra, at 4.
The new evidence submitted by the applicant in his motion to remand
reveals that the Taliban now controls at least three-fourths of Afghanistan.
The Taliban, or student militia, first appeared on the scene in Afghanistan
in 1994. The nucleus of the Taliban military force consists of former
mujahidin fighters and Afghan students from conservative Islamic schools.
The Taliban has imposed its ultraconservative views of Islam on the Afghan
population by requiring the males to attend prayer at the mosque, to grow
beards, and to wear the traditional Islamic garb. Women have been prohib-
ited from working, attending school, and going out in public without a male

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relative. The Taliban has established Islamic courts and enforces its control
through strict and brutal adherence to its religious edicts and criminal
codes. Violations of these edicts and codes are punished summarily and
severely. Typical punishments include stonings, beatings, and public execu-
tions.

III. ARGUMENTS ON APPEAL

At the asylum hearing, the applicant conceded and the record reflected
that the applicant’s persecutors, the communists, were no longer in power
in Afghanistan. On appeal, the applicant acknowledges that the
Immigration and Naturalization Service met its burden of demonstrating
that the government in Afghanistan has changed since the applicant left
Afghanistan. The applicant argues, however, that the Service has only met
the first part of its burden.2 He asserts that the Service must also show that
the applicant no longer has a well-founded fear of persecution upon return
to Afghanistan. The applicant argues that the Service did not meet its bur-
den of showing that he no longer has a well-founded fear of persecution
from rival political groups. In particular, the applicant argues that because
he suffered past persecution on account of a protected ground at the hands
of the communists, the burden shifts to the Service to show that he no
longer has a well-founded fear of future persecution from any of the
mujahidin factions. Also, in his motion papers, he argues that the Service
must make its showing as to the Taliban as well. We find, however, that once
the presumption of a well-founded fear of harm has been rebutted, the
applicant has the burden to demonstrate the reasonableness of his fear from
any potential new source of harm.
The applicant argues in the alternative that he has established that he
has a well-founded fear of persecution from the various mujahidin factions
because of an actual and imputed political opinion. He also argues that the
regulation controlling discretionary grants of asylum is invalid because it
conflicts with the Act, case law from the United States Court of Appeals for
the Ninth Circuit, and congressional intent. Finally, the applicant argues
that, even under a strict interpretation of the applicable regulation, he qual-
ifies for a discretionary grant of asylum. We find these arguments unper-
suasive.

2
The regulations do not explicitly place the burden on the Service to show that coun-
try conditions have changed. In Matter of H-, 21 I&N Dec. 337, at 346-47 (BIA 1996),
we stated that as “a practical matter, it will be the Service’s burden to rebut the presump-
tion, whether by adducing additional evidence or resting upon evidence already in the
record.”

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IV. REGULATION GOVERNING THE
APPLICANT’S ASYLUM CLAIM

An applicant is eligible for asylum under section 208 of the Act if he
can establish that he suffered past persecution or that he has a well-found-
ed fear of future persecution on account of a protected ground. Prasad v.
INS, 47 F.3d 336, 338 (9th Cir. 1995). According to the regulation at issue,
8 C.F.R. § 208.13(b) (1998),
The applicant may qualify as a refugee either because he or she has suffered actual
past persecution or because he or she has a well-founded fear of future persecution.

(1) Past Persecution. An applicant shall be found to be a refugee on the basis of past
persecution if he or she can establish that he or she has suffered persecution in the past
in his or her country of nationality or last habitual residence on account of race, reli-
gion, nationality, membership in a particular social group, or political opinion, and that
he or she is unable or unwilling to return to or avail himself or herself of the protec-
tion of that country owing to such persecution.

(i) If it is determined that the applicant has established past per-
secution, he or she shall be presumed also to have a well-founded
fear of persecution unless a preponderance of the evidence estab-
lishes that since the time the persecution occurred conditions in
the applicant’s country of nationality or last habitual residence
have changed to such an extent that the applicant no longer has a
well-founded fear of being persecuted if he or she were to return.
(ii) An application for asylum shall be denied if the applicant
establishes past persecution under this paragraph but it is also
determined that he or she does not have a well-founded fear of
future persecution under paragraph (b)(2) of this section, unless
it is determined that the applicant has demonstrated compelling
reasons for being unwilling to return to his or her country of
nationality or last habitual residence arising out of the severity
of the past persecution. If the applicant demonstrates such com-
pelling reasons, he or she may be granted asylum unless such a
grant is barred by paragraph (c) of this section.

A. Analysis of the Regulatory Language

Our analysis of the language of 8 C.F.R. § 208.13(b)(1)(i) leads us to
the conclusion that the regulation serves as an evidentiary presumption
founded on the probability of a past event being indicative of a future event.
See McCormick on Evidence § 343, at 454 (John William Strong, ed., 4th
ed. 1992). As such, it provides an evidentiary link between the actual past
persecution that an applicant has suffered and any well-founded fear of

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future persecution. The presumption is based on the possibility that a per-
secutor, once having shown an interest in harming the applicant, might seek
to harm the applicant again should the applicant be forced to return within
the persecutor’s reach. Because it is foreseeable that a persecutor would
continue to be interested in one of his victims of persecution, the regulation
removes the burden from the applicant to show that he may suffer persecu-
tion again at the hands of his past persecutor. Thus, once the applicant has
shown that he has suffered past persecution on account of a protected
ground, the record must reflect that the applicant no longer has a well-
founded fear of persecution from his past persecutor. Accordingly, if the
record reflects that country conditions relating to the past persecution have
changed to such an extent that the applicant no longer has a well-founded
fear of harm from his original source of persecution, the evidentiary pre-
sumption is extinguished, and the burden returns to the applicant to estab-
lish his well-founded fear of persecution from any new source.3
The evidentiary presumption rationale of 8 C.F.R. § 208.13(b)(1)(i)
makes sense in the larger context of asylum law. Asylum is a prophylactic
protection for those who might face future persecution.4 See Marquez v.
INS, 105 F.3d 374 (7th Cir. 1997). In Marquez, the court noted that asylum
is designed not to remedy the past, but to protect those who might suffer
future persecution. The rationale for looking at past persecution is that the
“past serves as an evidentiary proxy for the future.” Id. at 379; see also Guy
S. Goodwin-Gill, The Refugee in International Law 23 (1983) (stating that
the “applicant for refugee status, however, is adducing a future speculative
risk as the basis for a claim to protection”). While a finding that an asylum
applicant has suffered past persecution may be sufficient to meet the statu-
tory refugee definition, the determination that an applicant may not be sub-
jected to future persecution may well result in the denial of relief. INS v.
Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987).
The evidentiary link between past persecution and the well-founded
fear of future persecution is also contemplated in the 1951 United Nations
Convention Relating to the Status of Refugees, adopted July 28, 1951, 189

3
The regulations currently limit the rebutting of the presumption of a well-founded fear
of persecution to the situation where country conditions have changed. 8 C.F.R. §
208.13(b)(1)(i).
4
The language of the Immigration and Nationality Act also contemplates the loss of
refugee status once country conditions have changed. Under section 208(b) of the Act, asy-
lum may be terminated when the Attorney General determines that country conditions have
changed to such an extent that the asylum applicant no longer meets the definition of a
refugee under section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1994).
5
The United States is not a signatory to the 1951 Convention, but in 1968, the United
States acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6223, T.I.A.S. No. 6577 (“Protocol”). Except for the temporal limitations of

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U.N.T.S. 150 (entered into force Apr. 22, 1954) (“Convention”).5 Article 1C
of the Convention provides for the various situations in which an individual
will cease to be considered a refugee. In particular, Article 1C(5) states that
an individual cannot “refuse to avail himself of the protection of the coun-
try of his nationality” if “the circumstances in connexion with which he has
been recognized as a refugee have ceased to exist.” (Emphasis added.)
Thus, the Convention provides the link between the circumstances of the
past persecution and the applicant’s refugee status given changed country
conditions. See also Atle Grahl-Madsen, 1 The Status of Refugees in
International Law 176 (1966) (“[I]f a person has experienced persecution,
that may be considered prima facie proof to the effect that he may again
become a victim of persecution should he return to his home country, so
long as the regime which persecuted him prevails in that country.” (second
emphasis added)).
The requisite link between the past persecution and the past persecu-
tor is also found in Matter of Chen, 20 I&N Dec. 16 (BIA 1989), where
we held that when an applicant has established past persecution on
account of a protected ground, the Service ordinarily will have to present,
as a factor militating against the favorable exercise of discretion, evidence
that there is little likelihood of present persecution . . . such as where the
government from which the threat of persecution arises has been removed
from power. Thus a rebuttable presumption arises that an alien who has
been persecuted in the past by his country’s government has reason to fear
similar persecution in the future.

Id. at 18 (emphasis added) (footnote omitted).

In Matter of Chen, we found that the asylum applicant had established
that the harm he suffered in China during the Cultural Revolution on
account of his religion rose to the level of past persecution. We further
found that country conditions in China had changed to such an extent that
the applicant no longer had a well-founded fear of persecution on account
of his religion. The burden then returned to the applicant to show that he
had a well-founded fear of future persecution. We found that the applicant
had not met his burden of establishing a well-founded fear of persecution.
Id. at 21.

B. Applicant’s Interpretation of the Regulatory Language

the Convention, which are not relevant for our purposes, Article I of the Protocol directly
incorporates the definition of a refugee (and the provisions pertaining to the cessation of
refugee status) by reference to Article 1 of the Convention.

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The applicant argues for the use of an alternative interpretation of the 8
C.F.R. § 208.13(b)(1)(i) presumption that we would describe as more of a
“compassionate” than an evidentiary presumption. The applicant contends
that, as a compassionate presumption, the regulations should be read to pro-
vide that an applicant who has suffered past persecution should have a less-
er burden in establishing his asylum claim precisely because he has suffered
past persecution. According to the applicant, once he has shown past perse-
cution, the burden shifts to the Service to demonstrate that he no longer has
a well-founded fear from any source, including any potential persecutors
who have surfaced as possible threats since the time of his departure from
his country.
We believe that the applicant’s interpretation of the regulatory pre-
sumption under 8 C.F.R. § 208.13(b)(1)(i) could lead to incongruous
results. The applicant’s interpretation could place the burden on the Service
to negate the possibility of persecution where past persecution was suffered
decades ago or arose from circumstances substantially different from those
presently claimed. For example, under the applicant’s interpretation, a vic-
tim of past political persecution, inflicted by a regime that was overthrown
20 years ago, could allege fears of religious persecution arising from a con-
version of faith occurring very recently during a visit to the United States.
Even if the applicant continued to live safely in the country of persecution
for the 20 years after the persecutory act, the burden would be on the
Service to prove that this claimant does not now have a well-founded fear
arising out of this entirely new and unrelated ground. This would be a bur-
den not shown to have been contemplated by the 1951 Convention, the
Immigration and Nationality Act, or our case law. We therefore reject the
applicant’s interpretation of the regulatory language.6
Our holding today does not stand for the proposition that any change
in a regime automatically reverts the burden of proof back to the appli-
cant to show that he has a well-founded fear of persecution from the
changed regime or its successor. Nor does it substitute for careful analy-
sis of the facts of each applicant’s individual circumstances. See
Vallecillo-Castillo v. INS, 121 F.3d 1237 (9th Cir. 1997); Osorio v. INS,

6
The concurring and dissenting opinion of Board Member Guendelsberger, among other
things, compares the language of 8 C.F.R. § 208.13(b)(1)(i) to the Government’s burden of
proof in other areas, such as denaturalization, expatriation, and rescission of adjustment pro-
ceedings. In these other areas, however, the burden is on the Government to revoke rights or
benefits previously granted. As noted in Schneiderman v. United States, 320 U.S. 118, 125
(1943), “[R]ights once conferred should not be lightly revoked.” Under the regulation at issue
here, no status has yet been conferred on the asylum applicant, and the comparison advanced
by the dissent is simply unfounded. See also 8 C.F.R. § 208.22(e) (1998) (requiring the Service
to show, by a preponderance of evidence, that the regulatory requirements have been met to
revoke a grant of asylum in proceedings before an Immigration Judge or this Board).

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99 F.3d 928, 932-33 (9th Cir. 1996); see also 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. 135, at 31
(Geneva, 1992) [hereinafter Handbook] (“‘Circumstances’ refer to fun-
damental changes in the country, which can be assumed to remove the
basis of the fear of persecution.”) For example, a despot may be ousted
from the seat of government, yet still wield considerable influence and
pose a threat to the applicant, or the new leadership may harbor the same
animosities as the old. This type of change of government would not
rebut the presumption that an asylum applicant no longer has a well-
founded fear. Instead, the record would have to reflect that circumstances
had changed to such an extent that the applicant no longer has a well-
founded fear of persecution arising from the conditions that led to the
past harm. 8 C.F.R. § 208.13(b)(1)(i).

V. APPLICATION OF THE REGULATORY PRESUMPTION

Applying our interpretation of the regulations to the facts of this case,
we first find that the harm that the applicant suffered rose to the level of
past persecution. Accordingly, under 8 C.F.R. § 208.13(b)(1)(i), the
record must reflect that conditions in Afghanistan have changed to such
an extent that the applicant no longer has a well-founded fear of persecu-
tion from the communists. We find that the record does reflect such a
change.
The 1995 Department of State Profile contained in the record discuss-
es the dramatic changes that have occurred in Afghanistan since the 1992
overthrow of the communist-supported government of President Najibullah.
The Profile characterizes the ongoing civil war mainly as a “struggle among
wholly opportunistic militia commanders for power in a post-war
Afghanistan.” Profile, supra, at 3. The Profile clearly states that the “pri-
mary condition which gave rise to the flight of some 5 million Afghans
from their homeland—a civil war since 1978 between the resistance fight-
ers and communist or pro-communist central governments of varying
Marxist-Leninist hues—no longer exists.” Id. at 4. The Profile also states
that some parts of Afghanistan, particularly those in the west, are “non-con-
flictive.” Id. at 6. Relying on the Department of State Profile and the appli-
cant’s concessions, we find that the country conditions have changed to
such an extent in Afghanistan that the applicant no longer has a well-found-
ed fear of harm from the members of the former communist government
within the contemplation of INS v. Cardoza-Fonseca, supra, and Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987). Consequently, the applicant
bears the burden of proof respecting new sources of possible persecution.

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VI. APPLICANT’S OTHER ARGUMENTS ON APPEAL

A. Well-founded Fear of Persecution from the Mujahidin

On appeal, the applicant argues that, even if the burden reverts to him
to show that he has a well-founded fear of persecution from the mujahidin
factions, he has met that burden. At his hearing, the applicant argued that he
has a well-founded fear of persecution from the Jamiat party. The
Immigration Judge concluded that the applicant did not meet his burden of
proving that he has a well-founded fear of persecution from the same fac-
tion that he assisted during its fight to overthrow the communist-supported
government. The applicant stated that he fears persecution because he did
not cooperate with the Jamiat party. Yet, we note that it was precisely his
father’s and his own assistance to the Jamiat party that was the source of
their trouble with the communists. Accordingly, we find that the applicant
has not shown that his fear of harm from the Jamiat party is reasonable.
Matter of Mogharrabi, supra.
On appeal, the applicant further argues that he fears harm from other
mujahidin factions because they will impute a pro-Jamiat political opinion
to him. However, we find that the applicant has not met his burden of prov-
ing that his clandestine assistance in delivering flyers at night nearly 9 years
ago when he was 16 years old would lead a reasonable person in his cir-
cumstances to fear harm from unidentified mujahidin factions on account of
an imputed political opinion of being pro-Jamiat. We note that the applicant
was never a Jamiat member, nor does he claim to have taken any action
against any of the other mujahidin factions. His role in support of the Jamiat
party was to topple the communist regime. Moreover, we note that the
applicant has not been living in Afghanistan, nor has he taken any action
formally identifying himself with any of the mujahidin factions during the
past 9 years.
The applicant has not sufficiently demonstrated how other factions
would identify him as a member of the Jamiat faction or why they would
view him as an opponent. In fact, the applicant previously claimed that the
Jamiat faction would persecute him, presumably because he would not be
identified as a pro-Jamiat supporter. If the applicant truly believes that it is
unlikely that the faction that he assisted would recognize him as one of their
own, it seems unlikely that a different faction would impute a pro-Jamiat
opinion to him.
In support of his argument, the applicant relies on reports by Amnesty
International. One such report documents the civil strife gripping
Afghanistan at the time of the hearing and discusses the revenge killings
occurring among the various mujahidin factions. See Amnesty
International, Afghanistan-The Human Rights Crisis and the Refugees, AI
Index: ASA 11/02/95 (Feb. 1995) [hereinafter Amnesty International

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Report]. The applicant also relies on statements in this Amnesty
International Report that indicate that all sections of the population are at
risk and those most at risk are members of specific ethnic, religious, or
political groups in areas controlled by hostile warlords. However, the appli-
cant has not adequately demonstrated that his situation is “appreciably dif-
ferent from the dangers faced by all his countrymen.” Sarvia-Quintanilla v.
INS, 767 F.2d 1387, 1394 (9th Cir. 1985). Additionally, we note that the
1995 Department of State Profile reported that the “principal risk for a
returning Afghan would be random violence” and that highly visible lead-
ers of political factions are more likely to be targeted because of their polit-
ical opinion than those with lower visibility. Profile, supra, at 6. We do not
dispute the Amnesty International Report’s description of a violence-
plagued Afghanistan. Nor do we dispute the evidence of the revenge
killings occurring among the rival factions seeking to consolidate control
over Afghanistan. Rather, we find that the applicant has not met his burden
of proving that the various mujahidin factions might take reprisals against
him based on his brief and minor role in assisting the Jamiat party in defeat-
ing the communists 9 years ago. Matter of Mogharrabi, supra.
Additionally, on appeal the applicant argues that he has a well-founded
fear of persecution from the other mujahidin factions because they will
impute a pro-Western political opinion to him simply because he has lived in
the West and because he has sought asylum. The applicant has not provided
sufficient support for his argument that Afghans who have lived in the West
have been persecuted upon return to Afghanistan because they have been
viewed as having pro-Western ideas or because they have sought asylum. Nor
has he explained what would constitute “pro-Western ideas” that would be
inimical to the mujahidin. The applicant refers to an Amnesty International
Report that indicates Afghan asylum seekers could become the target of seri-
ous human rights violations upon return to Afghanistan. However, the appli-
cant does not provide any support for his argument that asylum seekers suf-
fer this harm because of an imputed political opinion, as opposed to the gen-
eralized civil strife that is afflicting Afghanistan. Nor has he explained how
any factions will know that he has been an asylum seeker in the United States.
Accordingly, we find that the applicant has not met his burden of proving that
the various mujahidin factions will impute a pro-Western political opinion to
him and persecute him for it merely because he has lived in the West or
because he has sought asylum. Matter of Mogharrabi, supra.

B. Discretionary Grant of Asylum on the Strength
of Past Persecution Alone

1. Analysis of 8 C.F.R. § 208.13(b)(1)(ii) (1998)

The applicant also argues on appeal that 8 C.F.R. § 208.13(b)(1)(ii)

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(1998) is not consistent with the Act. The applicant attacks the regulation’s
threshold requirement of “compelling reasons . . . arising out of the severi-
ty of the past persecution” for claims based on past persecution when there
is no current “well-founded fear” showing. See 8 C.F.R. § 208.13(b)(1)(ii).
The applicant contends that the Act does not limit discretionary considera-
tion to the severity of the past persecution. In his motion to remand, the
applicant also argues that he is entitled to a favorable exercise of discretion
because of the “totality of the circumstances” surrounding his asylum
claim.
First, we note that as an administrative body we are bound to uphold
agency regulations. Matter of Ponce de Leon, 21 I&N Dec. 154, at 158 (BIA
1996, 1997; A.G. 1997) (vacated on other grounds on remand from
Attorney General). Second, we find that the regulatory approach is consis-
tent with the Act and the 1951 Convention. Finally, we find that applying 8
C.F.R. § 208.13(b)(1)(ii) as a threshold requirement is generally consistent
with Ninth Circuit case law and our administrative precedent.
The Act gives the Attorney General discretion to grant asylum once the
asylum applicant has established that he is statutorily eligible. See section
208(a) of the Act. The United States Court of Appeals for the Ninth Circuit
has held that this is a “broad delegation of power, which restricts the
Attorney General’s discretion to grant asylum only by requiring the
Attorney General to first determine that the asylum applicant is a ‘refugee’”
under the Act. Komarenko v. INS, 35 F.3d 432, 436 (9th Cir. 1994). The
Attorney General has exercised that discretion in part by setting forth a
threshold regulatory requirement in cases where the asylum applicant satis-
fies the “refugee” definition solely because of past persecution. As 8 C.F.R.
§ 208.13(b)(1)(ii) is a regulation promulgated by the Attorney General, it
“has the force and effect of law as to this Board and Immigration Judges.”
Matter of Ponce de Leon, supra, at 158.
The language of 8 C.F.R. § 208.13(b)(1)(ii) also mirrors the language
of Article 1C(5) of the 1951 Convention. As an exception to the cessation
provision, Article 1C(5) of the 1951 Convention provides that the cessation
provisions “shall not apply to a refugee . . . who is able to invoke com-
pelling reasons arising out of previous persecution for refusing to avail
himself of the protection of the country of nationality.” The Handbook
explains that the “exception, however, reflects a more general humanitarian
principle” which could also be applied to refugees other than those limited
by the Convention. Handbook, supra, para. 136, at 31. The Handbook
acknowledges that an asylum applicant who “has suffered under atrocious
forms of persecution should not be expected to repatriate. Even though
there may have been a change of regime 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.” Id.
Additionally, the Ninth Circuit has applied the regulatory language of

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8 C.F.R. § 208.13(b)(1)(ii) as a threshold requirement. In Kazlauskas v. INS,
46 F.3d 902 (9th Cir. 1995), the court held that absent a well-founded fear
of future persecution, “asylum is warranted for ‘humanitarian reasons’ only
if [the applicant] demonstrates that in the past ‘[he] or his family has suf-
fered “under atrocious forms of persecution.”’” Id. at 906 (emphasis added)
(quoting Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993) (quoting
Matter of Chen, supra)), Additionally, our case law recognizes that an appli-
cant may, in select circumstances and as a matter of discretion, be granted
asylum solely on the basis of the severity of the past persecution. See Matter
of C-Y-Z-, 21 I&N Dec. 915, at 919 (BIA 1997); Matter of H-, 21 I&N Dec.
337, at 16 (BIA 1996); Matter of B-, 21 I&N Dec. 66, at 72 (BIA 1995),
Accordingly, we find that the threshold requirement of 8 C.F.R. §
208.13(b)(1)(ii) is consistent with the Act, the 1951 Convention, Ninth
Circuit case law, and our administrative precedent.. See Fook Hong Mak v.
7

INS, 435 F.2d 728 (2d Cir. 1970).

2. Application of 8 C.F.R. § 208.13(b)(1)(ii) (1998)

We turn to our case law for guidance to determine whether the appli-
cant has demonstrated compelling reasons arising out of the severity of his
past persecution for being unable or unwilling to return to Afghanistan. In
Matter of Chen, supra, the asylum applicant’s suffering began when he was
8 years old and continued until his adulthood. He endured physical, psy-
chological, and social harm. He was permanently physically and emotion-
ally scarred. In Matter of B-, supra, we found that where the applicant had
suffered 3 months’ detention in KHAD facilities, 10 months’ detention in
prison, and 4 months’ involuntary military service, in addition to suffering
sleep deprivation, beatings, electric shocks, and the routine use of physical
torture and psychological abuse, the persecution was so severe that his asy-
lum application should be granted notwithstanding the change of circum-
stances in Afghanistan.
As discussed above, the applicant here has met his burden of proving
that he suffered past persecution. However, to demonstrate that he is eligi-
ble for asylum on the basis of his past persecution alone, the applicant must

7
We recognized in Matter of H-, supra, that there are a variety of discretionary factors,
independent of the circumstances that led to the applicant’s refugee status, such as his age,
health, or family ties, which are relevant to the ultimate exercise of discretion. Contrary to the
arguments of the applicant’s claim in his motion and on appeal, under the current regulations,
these factors bear on the exercise of discretion in past persecution cases where a well-founded
fear of persecution is presumed to exist because country conditions have not been shown to have
changed or in cases where the “compelling reasons” requirement has been satisfied. Such fac-
tors, however, are not relevant in assessing whether the “compelling reasons” standard itself has
been met, unless they are shown in some respects to arise from the past persecution.

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also show that he belongs to the smaller group of persecution victims whose
persecution (including the aftermath) is so severe that the “compelling rea-
sons” standard has been met. 8 C.F.R. § 208.13(b)(1)(ii). In the present
case, the applicant has not testified to the severe harm and the long-lasting
effects of that harm as was evidenced in Matter of Chen, supra, and Matter
of B-, supra. We acknowledge the traumatic sequence of events that the
applicant witnessed and experienced from his month-long detention and
beatings and from the disappearance and likely death of his father.
However, given the degree of harm suffered by the applicant, the length of
time over which the harm was inflicted, and the lack of evidence of severe
psychological trauma stemming from the harm, we conclude that the appli-
cant has not shown compelling reasons arising out of the severity of the past
persecution for being unable or unwilling to return to Afghanistan.
Kazlauskas v. INS, supra; 8 C.F.R. § 208.13(b)(1)(ii).

VII. APPLICANT’S ARGUMENTS IN SUPPORT OF
HIS MOTION TO REMAND

In his motion to remand, the applicant appears to continue his argument
that the Service has failed to rebut the presumption that he no longer has a
well-founded fear of harm from any source. However, his motion can also
be construed to argue that even if the Service has rebutted the presumption,
the applicant has sufficiently demonstrated that he has a well-founded fear
of persecution from the Taliban. We find that remanding the proceedings is
appropriate to further develop the applicant’s claim that his religious beliefs
and practices are in conflict with the fundamentalist approach of the
Taliban. While we are not persuaded to remand proceedings based upon the
applicant’s fear of harm from the Taliban arising from his actual or imput-
ed political opinion, he is not foreclosed from presenting evidence at a new
hearing regarding his political opinion claim or any other issues that the
Immigration Judge may conclude are relevant. Accordingly, we make no
findings regarding the ultimate merits of the applicant’s asylum claim as set
forth in the motion.

VIII. CONCLUSION

The record reflects that ordinary Afghan residents face a variety of dan-
gers arising from the internal strife in Afghanistan. We recognize that the
applicant would be subject to these same dangers. Whether great or small,
many of these risks are the risks of the ordinary person in an area experi-
encing civil war or political upheaval. The applicant’s arguments on appeal

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ultimately fail, however, because he does not qualify for relief on the basis
of past persecution alone. At his new hearing, the applicant will have the
opportunity to demonstrate that he currently has a well-founded fear of per-
secution as that term has been interpreted by our precedent decisions. See
Matter of Mogharrabi, supra.
ORDER: The appeal is dismissed.
FURTHER ORDER: The motion to remand is granted, and the
record is remanded for further proceedings consistent with this opinion.

Vice Chairman Mary Maguire Dunne did not participate in the decision in
this case.

CONCURRING AND DISSENTING OPINION: Lory D. Rosenberg, Board
Member

Distilled down to its basics, the majority opinion selectively invokes
international refugee protection law in an effort to restrict granting asy-
lum under domestic law. While I have no objection to granting the appli-
cant’s motion to remand for consideration of additional evidence for pru-
dential reasons, I disagree with the reasoning relied on by the majority,
both as it may affect the applicant on remand and as it inevitably will be
applied to the future asylum claims made by other individuals.
Therefore, I dissent from the majority’s dismissal of the applicant’s orig-
inal appeal.
In dissenting, I am in agreement with the points made in the dissenting
opinion of Board Member John Guendelsberger, joined by Board Chairman
Paul W. Schmidt, and I will not reiterate their critique of the majority’s
interpretation of the regulation pertaining to past persecution as positing an
“evidentiary,” as opposed to a “humanitarian,” presumption. Additionally,
however, I find there to be other aspects of the majority decision that war-
rant an articulated response.
First, I believe that the majority acts ultra vires in limiting the reach of
the regulations, and that the restrictions it imposes are contrary to the statute
and the international law upon which the statute is founded. Second, I find
that the majority’s interpretation of how to determine a claim based on past
persecution is at odds with our own precedent, which recognizes that the
Immigration and Naturalization Service bears the burden of rebutting the
presumption that a refugee who has been persecuted in the past has a well-
founded fear of persecution, and that asylum is a humanitarian form of
relief. Third, I conclude that the majority’s interpretation of the impact of
past persecution in this case is inconsistent with the rulings of the Supreme
Court and the United States Court of Appeals for the Ninth Circuit, in which
this appeal arises.

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I. BACKGROUND AND CIRCUMSTANCES OF
PAST PERSECUTION

The applicant in the instant case is a refugee who suffered past perse-
cution at the hands of the former Soviet-aligned government in Afghanistan
on account of his support for democracy and freedom of religion.
Specifically, the past persecution he suffered entailed his having experi-
enced the kidnaping and disappearance of his father, and the forcible
searches of his family home, ultimately leading to his own capture, deten-
tion, interrogation, and torture over a prolonged period.
The applicant’s moderate religious and democratic political leanings as
a practicing Moslem who believes firmly in individual freedom, as well as
his family identity, led to his association with the Jamiat faction of the
mujahadin and activities that resulted in his being persecuted. Similarly,
both his religious and political leanings—Moslem and pro-democracy—
made him identifiable to those holding different allegiances, and indis-
putably motivated the specific persecution he experienced in the past.
In resisting the former Soviet-supported government, the applicant, like
his father before him, was associated with the Jamiat, which was part of a
broad coalition of Islamic anti-Soviet factions, known as the mujahadin. It
was this faction that his father had been assisting before he was kidnaped
by the former secret police, known as the KHAD. It was this faction whose
literature was found in the applicant’s house by the KHAD. And, it was this
faction that the applicant was assisting in distributing flyers that caused him
to be taken into custody, detained, interrogated, and tortured by the KHAD
for more than a month.
Present circumstances in Afghanistan reflect that conditions have
changed since the time of the applicant’s persecution. However, while the
overthrow of the former Soviet-supported government in 1992 by the muja-
hadin led to the election of a member of the Jamiat faction for a 2-year term,
it left the country subject to intense factional fighting based on the religious
and political hostilities among the armed Islamic militia groups that once
constituted the mujahadin. Since 1994, the Taliban, an ultra-conservative,
extremist religious faction composed of some members of certain of the
militia that once constituted the mujahadin, has seized control of the major-
ity of the country. According to relevant reports of the Department of State,
Afghanistan today is no closer to a constitutional democracy, and there is
probably less respect for human or civil rights and tolerance of religious
freedom under the Taliban, than under the previous Soviet-supported gov-
ernment that persecuted the applicant.
The severity of the past persecution experienced by the applicant
includes the loss of his father, who was taken by the KHAD from the fam-
ily home in 1988, and was never seen again. It also includes the detention,
interrogations, and beatings of the applicant over a 1-month period, and the

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questioning sessions during this period in which he was hit and kicked, and
on at least one occasion, deprived of food for 3 days. It also includes the
fact that, as the result of this intense persecution and torture, the appli-
cant’s body was entirely covered with bruises, that he suffered a deep
wound in one leg, that he lost consciousness during interrogation and was
hospitalized while in KHAD custody, and that when he was able to escape
from the hospital, he required another 6 weeks of hospitalization. The
severity of his past persecution also underlies his present fear of returning
to Afghanistan because of the continued factional fighting, and because of
the indisputable persecutory treatment meted out by the Taliban against
proponents of democracy, religious moderation, and individual freedom,
such as the applicant.

II. THE PRINCIPLES OF ASYLUM AND ISSUES AT STAKE

I view the matter before us as raising the broad issue of how we con-
strue our commitment to afford both discretionary asylum protection, and
mandatory non-refoulement, to a refugee who has demonstrated that he or
she already has suffered persecution.1 Specifically, shall we restrict con-
sideration for discretionary asylum and limit our duty not to return a victim
of past persecution to those cases in which the identical agent of persecu-
tion and the identical event or threat that caused the refugee’s flight contin-
ue to exist?
Is requiring a refugee who already has been persecuted to prove and
reprove that he or she continues to be a refugee, as defined in section
101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)
(1994), what was intended by Congress when it enacted the Refugee Act of
1980, Pub. L. No. 96-212, 94 Stat. 102, and incorporated the provisions of
the 1967 United Nations Protocol Relating To the Status of Refugees
(“Protocol”), into domestic law?2 See sections 208, 241(b)(3)(B) of the Act,
8 U.S.C. §§ 1158, 1231(b)(3)(B) (Supp. II 1996). Is that how the Supreme
Court understood Congress’ codification of the Convention and Protocol in
the Refugee Act of 1980 when it compared “the broad class of refugees and

1
Although the applicant persists in asserting the contentions he raised on appeal, I ques-
tion the need for the majority’s extensive elaboration of the application of the regulation to
the applicant’s original claim, given our decision to remand his case to the Immigration
Judge.
2
United Nations Protocol Relating to the Status of Refugees, opened for signature Jan.
31, 1967, 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267 (entered into force Oct. 4,
1967; for United States Nov. 1, 1968). The Protocol itself incorporated by reference the pro-
visions of the 1951 United Nations Convention Relating To the Status of Refugees, adopted
July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) (“Convention”).

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the subcategory entitled to § 243(h) relief”? Cardoza-Fonseca v. INS, 480
U.S. 421, 441 (1987) (citing INS v. Stevic, 467 U.S. 407, 428 n.22 (1984)),
Is this what the court contemplated when it specified that section 208(a)
“gives the Attorney General the authority to grant the broader relief to
refugees . . . [and] corresponds to Article 34,” which requires only that the
applicant “show that he or she is a ‘refugee’. . . . No further showing that
he or she ‘would be’ persecuted is required.”? Id. at 441; see also Carvajal-
Munoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984).
What part should recognition of volatile or fluctuating circumstances of
political power in a given country play in our adjudication? How do basic
factors of political, gender-based or religious dissidence or difference, and
the continued or consistent intolerance for such dissidence or difference by
an original or successor governments affect the refugee’s status as a
refugee? More fundamentally, do the cessation clauses in the Convention,
on which the majority purports to rely for the restrictions they read into the
regulation, actually call for the termination of refugee status where there
has been a substitution of the “original persecutor” or the “particular
threat.” See Convention, supra, art. 1C(5)(referring to “circumstances in
connexion with which he has been recognized as a refugee have ceased to
exist” (emphasis added)); cf. 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. 135, at 31 (Geneva, 1992)
[hereinafter Handbook].
By interjecting into our application of the existing regulation—and our
precedent—new and narrowing concepts that require evidence of the con-
tinuation of a “particular threat” from an “original persecutor” as opposed
to a “new source,” the majority has acted to restrict access to asylum based
on past persecution to refugees in whose countries “conditions” have been
absolutely static. These restrictions have not been authorized by either
Congress or the Attorney General, and they do not comport with global con-
ditions in the latter decades of the 20th century. Cf. section 208 of the Act.
As Board Member Guendelsberger has illustrated in his dissenting
opinion, there is no regulatory mandate and no evidentiary principle requir-
ing the Board to reach the interpretation adopted by the majority, and, as I
discuss below, there is no Board or Federal precedent warranting such an
interpretation. The majority does not provide any policy or prudential justi-
fication for the interpretation they adopt, which I find to be contrary to our
decisions in Matter of Chen, 20 I&N Dec. 16 (BIA 1989), which prompted
8 C.F.R. § 208.13(b)(1998) being promulgated by the Attorney General,
and Matter of H-, 21 I&N Dec. 337 (BIA 1996), which addressed the appli-
cation of the regulatory presumption based on past persecution. See also
Matter of C-Y-Z-, 21 I&N Dec. 915 (BIA 1997); Matter of B-, 21 I&N Dec.
66 (BIA 1995).

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As a practical matter, the questions before us are twofold. First, what
factors are relevant in determining whether to deny asylum protection—by
definition a humanitarian form of discretionary relief from deportation and
removal—to a refugee who has been persecuted in the past? Second, what,
if anything, will the Board require of the Immigration and Naturalization
Service—the prosecuting party in the adversarial setting in which the
Immigration Judges and the Board adjudicate requests for asylum—before
declining to treat a refugee who has suffered past persecution, as a refugee?

III. PAST PERSECUTION AND REFUGEE STATUS

In Matter of Chen, supra, at 18, we recognized:
[I]t is clear from the plain language of the statute that past persecution can be the basis
for a persecution claim, and the case law has acknowledged this, if not focused on it.
See Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988); Blanco-Comarribas v. INS, 830
F.2d 1039, 1043 (9th Cir. 1987); cf. INS v. Cardoza-Fonseca, supra, at 1218. Similarly,
Immigration and Naturalization Service Operations Instruction 208.4 and the Service
Worldwide Guidelines for Overseas Refugee Processing (“Guidelines”) recognize that
past persecution and a well-founded fear of persecution are alternative methods of
establishing eligibility for refugee status. The Guidelines specifically point out that
“where a person claims to have been persecuted, he need only establish that objec-
tive fact . . . .”

(Emphasis added.) This Board holding, which I note cites two decisions of
the Ninth Circuit, comports with the Supreme Court’s recognition that
an alien must only show that he or she is a “refugee” to establish eligibility for relief.
No further showing that he or she “would be” persecuted is required. Thus, as made
binding on the United States through the Protocol, Article 34 provides for a precatory,
or discretionary, benefit for the entire class of persons who qualify as “refugees . . . .”

Cardoza-Fonseca v. INS, supra, at 441.
Furthermore, despite recent scrutiny of United States’ asylum policy,
no recent legislative enactment has purported to modify the principle that a
refugee who has demonstrated past persecution is presumed to have a well-
founded fear of persecution in the future and should be granted protection
unless the presumption has been rebutted by evidence of a change in coun-
try conditions to such an extent that a reasonable person in the applicant’s
circumstances no longer would have a fear of persecution. In fact, focusing
on the forced family planning policies of China, Congress enacted legisla-
tion furthering that principle. See, e.g., section 101(a)(42)(B) the Act, as
amended by Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, Division C of Pub. L. No. 104-208, § 601, 110 Stat. 3009-546,
3009-689 (“IIRIRA”) (“[A] person who has been forced to abort a preg-
nancy or to undergo involuntary sterilization, or who has been persecuted

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for failure or refusal to undergo such a procedure or for other resistance . .
. shall be deemed to have been persecuted on account of political opinion .
. . .”(emphasis added)).
In particular, there has been no legislative enactment specifying that the
presumption of persecution is rebutted simply because there may have been
a substitution of the refugee’s original or specific persecutor. Congress’
enactment of related legislation, subsequent to the recent articulation of an
administrative interpretation of our treatment of past persecution in Matter
of Chen, supra, Matter of B-, supra, and Matter of H-, supra, suggests the
absence of any intent contrary to the agency’s existing interpretation. See
Lorillard v. Pons, 434 U.S. 575, 580 (1978) (stating that “Congress is pre-
sumed to be aware of an administrative or judicial interpretation of a statute
and to adopt that interpretation when it re-enacts a statute without change,”
citing Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8 (1975); NLRB
v. Gullett Gin Co., 340 U.S. 361, 366 (1951); National Lead Co. v. United
States, 252 U.S. 140, 147 (1920); 2A C. Sands, Sutherland on Statutory
Construction § 49.09 (4th ed. 1973)).

A. Administrative Presumption of a Well-Founded
Fear of Persecution

The applicant is not merely an asylum “applicant”—he is a refugee
according to international law and to our own statutory definition codified
at section 101(a)(42) of the Act. See Desir v. Ilchert, 840 F.2d 723, 729 (9th
Cir. 1988) (stating that “past persecution, without more, satisfies the
requirement of § 101(a)(42)(A), even independent of establishing a well-
founded fear of future persecution” and “‘[n]o further showing that he or
she ‘would be’ persecuted is required.’ See Cardoza-Fonseca, 107 S. Ct. at
1218; see also, 767 F.2d at 1453 (citing Carvajal-Munoz v. INS, 743 F.2d
562, 574 (7th Cir. 1984)”); Matter of Chen, supra. As a refugee, the appli-
cant is within that “broad class” of persons who qualify as “refugees,” and,
at a minimum, he may be granted asylum as a matter of discretion. INS v.
Stevic, supra at 428, n.22 (emphasis added); 8 C.F.R. § 208.13(b) (“The
applicant may qualify as a refugee . . . because he or she has suffered past
persecution . . . .” (emphasis added)).
In addition, some forms of past persecution also trigger a presumption
that the applicant is entitled to withholding of deportation, which is manda-
tory. If an applicant’s “‘life or freedom was threatened in the proposed
country of deportation, . . . it shall be presumed that [her] life or freedom
would be threatened on return to that country.’” Surita v. INS, 95 F.3d 814,
821 (9th Cir. 1996) (emphasis added) (quoting 8 C.F.R. § 208.16); 8 C.F.R.
§ 208.16(b)(2) (1998).
The regulations specify that refugee status is presumed to continue
“unless a preponderance of the evidence establishes that since the time the

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persecution occurred conditions . . . have changed to such an extent that the
applicant no longer has a well-founded fear of being persecuted if he or she
were to return.” 8 C.F.R. § 208.13(b)(1)(i); see also 8 C.F.R. §
208.16(b)(2). As a refugee whose life and freedom was threatened when he
was seized, detained, interrogated, and tortured, the applicant is presumed
by the regulations to be subject to future persecution. Even if the likelihood
of future persecution is weaker than it was at the time he was persecuted, he
remains a refugee. If conditions have changed to the extent that the pre-
sumption that he has a well-founded fear of persecution has been rebutted
by a preponderance of the evidence, a refugee such as the applicant may be
entitled to asylum as a matter of discretion. 8 C.F.R. § 208.13(b)(1)(ii).
In Osorio v. INS, 99 F.3d 928 (9th Cir. 1996), the Ninth Circuit stated:
Under Matter of Chen, “a rebuttable presumption arises that an alien who has been
persecuted by his country’s government has reason to fear similar persecution in the
future.” Interim Decision 3104 at 4; see Prasad v. INS, 83 F.3d 315, 318 (9th Cir.
1996), If that presumption is not rebutted, the petitioner is eligible for asylum. Only if
the presumption is rebutted must a petitioner demonstrate “severe” past persecution
or other humanitarian reasons of the kind that the IJ insisted upon. Matter of Chen,
Interim Decision 3104 at 4.

Id. at 932 (emphasis added) (footnote omitted).

1. Burden of Proof

If a refugee such as the applicant is to benefit from the so-called pre-
sumption of a well-founded fear of persecution for a fleeting moment in
administrative adjudication time, we should honor his status as a refugee
until and unless it has been shown that he has no reason to fear similar per-
secution. Certainly, it is unreasonable to charge the beneficiary of such a
presumption with the responsibility for demonstrating that the circum-
stances giving rise to his status have changed to the extent that he no longer
is a refugee. The majority’s equivocal disclaimer regarding the fact that the
Service bears the burden of rebutting the presumption that a once persecut-
ed refugee remains a refugee is plainly contrary to our decision in Matter of
Chen, supra, at 18, in which we stated, “Where past persecution is estab-
lished by the applicant, the Service ordinarily will have to present, as a fac-
tor militating against the favorable exercise of discretion, evidence that
there is little likelihood of present persecution . . . .” (Emphasis added), Cf.
Matter of N-M-A-, 22 I&N Dec. 318-19, at 5 n.2 (BIA 1998).
Consequently, “[a]s a practical matter, it will be the Service’s burden
to rebut the presumption, whether by adducing additional evidence or rest-
ing upon evidence already in the record.” Matter of H-, supra, at 15-16; see
also Matter of R-, 20 I&N Dec. 621, 631 (BIA 1992) (Dunne dissenting)
(“On the contrary, pursuant to 8 C.F.R. § 208.13(b)(1)(i) (1992), once past

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persecution is established, an alien is presumed to have a well-founded fear
of future persecution if he were to return to his homeland, and the burden
is on the Immigration and Naturalization Service to show otherwise by a
preponderance of the evidence.” (emphasis added) (citing Singh v. Ilchert,
801 F. Supp. 313, 322 (N.D. Cal. 1992))). Furthermore, in Matter of C-Y-Z-,
supra, we stated:
The applicant need not demonstrate compelling reasons for being unwilling to return
resulting from the severity of the past persecution unless the presumption under 8
C.F.R. § 208.13(b)(1)(i) has been rebutted by the Service. See 8 C.F.R. §
208.13(b)(1)(ii); see also Matter of H-, supra, at 15-16. The regulatory presumption
may be rebutted only by a showing, by a preponderance of the evidence, that since
the time the persecution occurred, conditions in the applicant’s country have changed
to such an extent that the applicant no longer has a well-founded fear of persecution if
returned to his home country. Matter of H-, supra.

Id. at 5-6 (emphasis added).
Contrary to the impression left by the majority’s equivocation, there is
little procedural mystery or ambiguity created by the fact that the regula-
tions do not spell out specifically that the burden to rebut the presumption
of persecution is on the Service. In contested asylum proceedings, the
Service represents the United States—the signatory country to the
Convention and Protocol—whose obligations to an individual who is a
refugee by virtue of having been persecuted in the past are being deter-
mined under domestic law. As the Ninth Circuit stated in Surita v. INS,
supra, at 821,
To rebut this presumption, the INS must show, “by a preponderance of the evidence,
that ‘since the time the persecution occurred conditions in the applicant’s country . . .
have changed to such an extent that the applicant no longer has a well-founded fear of
being persecuted if . . . [she] were to return.’” Singh, 69 F.3d at 378 (quoting 8 C.F.R.
§ 208.13(b)(1)(i)); see also In re H-, Int. Dec. 3276, 1996 WL 291910 at *8-11 (BIA
May 30, 1996),

Moreover, despite the majority’s implication that the existing regula-
tion might require some other entity to bear the burden of rebutting the pre-
sumption that a once-persecuted refugee has a well-founded fear of perse-
cution, pending regulations proposed by the Attorney General make clear
that this is not a controversial point in her mind, nor in the view of the
Service, which is not only the “party” who would bear the burden in pro-
ceedings before us, but is party to composing and promulgating the regula-
tions. The explanatory information to the proposed regulations states, with-
out hesitation, that
[i]n 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 bur-
den of proof for rebutting the presumption.

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63 Fed. Reg. 31,945, 31,946 (1998)(emphasis added). Although it is con-
tained in a prospective statement, reference to the Attorney General’s view
of where the burden lies provides strong guidance, and to my mind, should
place that issue to rest. See, e.g., Matter of Q-T-M-T-, 21 I&N Dec. 639
(BIA 1996) (relying on Congress’ specification of provisions for withhold-
ing of removal that were applicable prospectively, to determine the exercise
of discretion in currently applicable provisions for withholding of deporta-
tion).

2. Essence of the “Rebuttable Presumption”

Although the regulation as promulgated clearly is meant to realize our
commitments under international and domestic law, the majority’s reading
not only requires a refugee who would benefit from the regulatory “pre-
sumption” to first establish actual past persecution, but then—as a practical
matter—to prove that the same, “particular threat” that resulted in his prior
persecution at the hands of the same “original persecutor” has not ceased to
exist. The majority’s conclusion that evidence of a change in the “original
persecutor” or “particular threat” overcomes the presumption and obviates
a well-founded fear of persecution is in conflict with 8 C.F.R. §
208.13(b)(1), which contains no such limiting language.
If the majority purports to find that a previously persecuted refugee no
longer qualifies for that status and is not entitled to be considered for asy-
lum, it is essential that there be some evidence concerning how the alleged
changes in conditions affect that individual applicant. See Gonzalez v. INS,
82 F.3d 903, 911 (9th Cir. 1996); Acewicz v. INS, 984 F.2d 1056, 1062 (9th
Cir. 1993); Castillo-Villagra v. INS, 972 F.2d 1017, 1031 (9th Cir. 1992);
see also Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998). In order to con-
clude that a refugee already subjected to persecution does not benefit from
the presumption that he has a well-founded fear of future persecution, there
must be some evidence to indicate both that conditions have changed and
that the nature of those changes have diminished or extinguished the basis
for his fear to the extent that a reasonable person would not fear persecu-
tion. See also Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987) (hold-
ing that eligibility for asylum turns on a refugee’s opinion or status that is
known or could be known to the persecutor, for which he or she has expe-
rienced or could experience harm or mistreatment meant to change or extin-
guish that opinion or status). Such a determination requires an evaluation of
subjective and objective factors relevant to the possibility of harm rising to
the level of persecution, on account of race, religion, nationality, member-
ship in a particular social group, and political opinion, by persecutors who
represent the government or are outside the government’s control. Matter of
Kasinga, 21 I&N Dec. 357 (BIA 1996).

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Significantly, nothing in the Convention, the Handbook, or the inter-
pretations of the Ninth Circuit or the Board necessarily limit refugee status
to the continued existence of the same government that was in existence at
the time of the persecution suffered by the refugee in the past. The “cessa-
tion clause” on which the majority relies in attempting to justify its reading
of the regulation as being in accord with the 1951 United Nations
Convention Relating to the Status of Refugees and its interpretation by
international scholars, refers to “circumstances” in relation to which the
individual was recognized as a refugee. The term “circumstances” posits a
concept far more broad than the “particular threats” or “original persecu-
tors” language imposed by the majority.
The standard of “circumstances in connection with which [the refugee]
has been recognized” under Article 1C(5) of the 1951 Convention has been
interpreted as meaning, “fundamental changes in the country, which can be
assumed to remove the basis of the fear of persecution.” See Handbook,
supra, para. 135, at 31 (emphasis added), The concept of “fundamental
changes” that remove the basis of the applicant’s fear also is far more
expansive than the majority’s reference to an “original persecutor” or a
“particular threat.” See, e.g., Matter of O-Z- & I-Z-, 22 I&N Dec. 23 (BIA
1998) (recognizing that while the 1996 Department of State report acknowl-
edges that the present government speaks out against anti-Semitism, socie-
tal prejudices continued to exist and go unprosecuted).
In other words, cessation of a government policy that might have led to
persecution under one government—in this case, the brutal squelching of
efforts to achieve democracy and religious freedom under the Soviet-dom-
inated government—does not automatically establish proof that the threat
of such continued suppression does not continue under the current govern-
ment. See also Matter of Chen, supra, at 18, in which we granted asylum
based on the level of severity of the past persecution, and stated that given
a situation in which governmental authorities that had persecuted the appli-
cant’s family under a prior administration had changed, a refugee who “has
been persecuted in the past by his country’s government has reason to fear
similar persecution in the future.” (Emphasis added.) Similarly, in Gailius
v. INS, 147 F.3d 34, 36 (1st Cir. 1998), the First Circuit stated, “It is well
established that general changes in country conditions do not render an
applicant ineligible for asylum when, despite those general changes, there
is a specific danger to the applicant.” (Emphasis added.)
Even an outright change in government does not necessarily extinguish
a well-founded fear of persecution. According to the First Circuit, “Abstract
‘changed country conditions’ do not automatically trump the specific evi-
dence presented by the applicant. Rather, changes in country conditions
must be shown to have negated the particular applicant’s well-founded fear
of persecution.” Fergiste v. INS, supra, at 19 (citing Vallecillo-Castillo v.
INS, 121 F.3d 1237, 1240 (9th Cir. 1996); Osorio v. INS, supra); see also

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De La Llana-Castellon v. INS, 16 F.3d 1093, 1097-98 (10th Cir. 1994)
(finding it error for the Board to take administrative notice of changed con-
ditions without giving due regard for potential persecution from a group the
government cannot control).
The majority’s reliance on an unsupported reading of the international-
ly based cessation clause to narrow the presumption of persecution in the
future is unfounded.3 In the instant case, the applicant held a political opin-
ion that favored democracy, individual freedom, and the ability to practice
his religion without fear of repression or repercussions. The particular gov-
ernment that persecuted the applicant in the past was motivated to do so
because it wished to eliminate or squelch his opposition to the lack of
democracy and religious freedom typical of that totalitarian form of gov-
ernment. The current ruling forces wish to do the same.
The fact that the current forces that are likely to seek out the applicant
can count among their members persons who also opposed the former gov-
ernment has little bearing on the applicant’s well-founded fear of persecu-
tion. The plain, unrebutted facts are that the applicant continues to believe
in and express support for democracy and freedom of religion, and that the
present forces in control in Afghanistan—like the Soviet-backed govern-
ment before them—unquestionably are motivated to oppose and penalize
those who support democracy and freedom of religion. The applicant faces
persecution on the same basis that he did previously.
For example, in Matter of Izatula, 20 I&N Dec. 149, 153-54 (BIA
1990), the Board found that “[t]he Country Reports explain that in
Afghanistan, ‘[c]itizens have neither the right nor the ability peacefully to
change their government. Afghanistan is a totalitarian state under the con-
trol of the [People’s Democratic Party of Afghanistan], which is kept in
power by the Soviet Union.’” (Emphasis added.) Some 8 years later, the
current country report for 1997 indicates that “[t]here was no central gov-
ernment. The Pashtun-dominated ultra-conservative Islamic movement
known as the Taliban controlled over two-thirds of the country.”
Committees on International Relations and Foreign Relations, 105th Cong.,
2d Sess., Country Reports on Human Rights Practices for 1997 1605, 1605
(Joint Comm. Print 1998). It states in addition, “There is no constitution,
rule of law, or independent judiciary.” Id. As the Department of State rec-
ognizes, under the current “government” or faction currently in power,

3
In citing Atle Grahl-Madsen’s reference to “regimes” in his notable 1966 treatise, the
majority neglects to note that the context of that work was obviously limited to the immedi-
ate post-World War II cold war period, which preceded both the United States’ signing of the
1967 Protocol on the Status of Refugees, and the 1979 issuance of the Handbook on
Procedures and Criteria for Determining Refugee Status, which has been followed interna-
tionally and used as guidance in the United States. See, e.g., Cardoza-Fonseca v. INS, supra.

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“[t]he overall human rights situation is poor. Serious human rights viola-
tions continue to occur and citizens were precluded from changing their
government peacefully.” Id. at 1606 (emphasis added).
Nevertheless, the majority disregards the underlying basis for the appli-
cant’s opposition to the communist-backed government—his political opin-
ion favoring freedom of religion and democracy—and focuses on the fact
that there has been a change in government. The fact that the record reflects
that a change in government has introduced an arguably more virulent and
oppressive government, and that the applicant is known to that government
as an opponent of its goals, is similarly discounted. The majority sees only
that the government has changed in name.
This is contrary to the way in which the Federal courts have read the reg-
ulation. Although the majority cites Marquez v. INS, 105 F.3d 374, 378 (7th
Cir. 1997), for the proposition that asylum is intended to protect individuals
from future persecution, the decision in that case did not involve past perse-
cution involving detention and torture, but threats and the repossession of a
boat, which the Seventh Circuit concluded amounted not to past persecution
but to “bullying.”4 What is more, the majority neglects to acknowledge that
the court actually stated that a “victim of anti-Islamic or anti-Christian
oppression would not have a strong claim to asylum if the oppression was
clearly over—say, if a tolerant regime put an end to it and the victim could
return home safely.” Id. at 374 (emphasis added). The majority also over-
looks the court’s complete statement that “the past serves as an evidentiary
proxy for the future. . . . Yet, if the evidence shows that conditions . . . have
changed so dramatically as to undermine the well-foundedness of that fear,
that presumption disappears . . . .” Id. (emphasis added).
Moreover, as the Ninth Circuit emphasized in Osorio v. INS, supra,
although adequate evidence of changed country conditions that is properly
considered can rebut the presumption, the
IJ took only cursory notice of the changes in Nicaragua and did not undertake the type
of individualized analysis of Osorio’s situation that we have found necessary to refute
the presumption.” See Berroteran-Melendez v. INS, 955 F.2d 1251, 1257 (9th Cir.
1991), Failure to recognize the existence of a presumption in Osorio’s favor—much
less to rebut that presumption in an individualized manner—constitutes an abuse of
discretion requiring a remand.

I am at a loss as to why the majority would cite, as support for its position, this out-of-cir-
cuit decision in which the court soundly criticized the Board for the “jumble,” “disorganiza-
tion,” and “twisted reasoning” of our articulation of the two main issues, past persecution and
a well-founded fear of future persecution, which required a “highlighter and extensive anno-
tations in the margins [to] resolve the muddle.” Marquez v. INS, supra, at 378 (7th Cir. 1997).

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Id. at 932-33 (emphasis added).
Ignoring the natural reading of the regulation, the majority foreshortens
the application of our refugee and asylum law so that the established fact
of an individual’s past persecution only might have some bearing on our
consideration of how he or she might fare in the future because the agent of
persecution has changed. Yet, a “general change,” even a change in govern-
ment, is not necessarily a “fundamental change” in the circumstances in
connection with which the applicant became a refugee. The application of
such an interpretation of a “rebuttable presumption” bears little resem-
blance to today’s world in which state power and titular governments
change on a daily basis.

3. Practical Application of the Presumption by the Majority

As to the many asylum-generating countries in today’s world, the
majority’s interpretation is one that will result in almost inevitable defeat
of any asylum claim in which the applicant has experienced persecution
in the past. As a practical matter, the majority’s interpretation ignores the
fact of past persecution and alleviates any burden on the Service to
demonstrate that, as to this particular individual, persecutory conditions
that triggered past persecution continue to exist. Instead, unless condi-
tions have been absolutely static, the majority’s reading essentially ren-
ders meaningless the regulatory language that conditions must have
changed “to such an extent” that the refugee no longer has a well-found-
ed fear of persecution. The burden is unlawfully thrown back upon the
applicant, contrary to the regulation and the case law interpreting it. Cf. 8
C.F.R. § 208.13(b)(1)(i); Fergiste v. INS, supra; Handbook, supra, para.
136, at 31 (stating that “[e]ven though there may have been a change of
regime . . . , this may not always produce a complete change in the atti-
tude of the population, nor, in the view of his past experiences, in the
mind of the refugee”).
Suppose the applicant was a single female who lobbied against gov-
ernment-sponsored forced sterilization of women who were employed pro-
fessionally by men who were not their husbands, and, as a result, she was
persecuted and sterilized by the government. If a different government
came into power and decreed that sterilized professional women should be
forced into prostitution for government leaders, should the applicant be
treated as a person who had nothing to fear under the “new regime,” or as
an individual who had to prove her case anew? I think not.
Or, suppose that the “particular threat” issued by the government was
to stop publishing an opposition newspaper, and the applicant closed the
newspaper down, but continued to protest the totalitarian government by
posting pro-democracy leaflets and participating in pro-democracy demon-
strations. Would his compliance with the “particular threat” or his flight

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immediately after receiving the threat negate his well-founded fear of per-
secution? Cf., e.g., Vera-Valera v. INS, 147 F.3d 1036 (9th Cir. 1998);
Gonzales-Neyra v. INS, 122 F.3d 1293 (9th Cir. 1997), amended, 133 F.3d
726 (9th Cir. 1998) (finding past persecution and a well-founded fear of
persecution following the refugee’s flight from the country after receiving a
“particular threat”—the burning down of his video store and his own
destruction), I think not.
In each of the preceding examples, persecution would have been estab-
lished on the basis of the applicant’s opinion or status. The governmental
authority—even if it changed, or even if the applicant complied with one
particular threat—would remain motivated to subject the applicant to per-
secution because the characteristic that triggered the original persecution
did not change. In the present situation, although the original government
that persecuted the applicant is no longer intact, this change in conditions
has not resulted in a change in circumstances in which those believed to
advocate free and democratic political and religious expression are no
longer subject to persecutory treatment.5 Certainly, the mere substitution of
the governing regime in Afghanistan cannot be found determinative of the
likelihood the applicant will face future persecution, as the change in
regime has not changed—and may have escalated—the likelihood of sup-
pression and oppression of those favoring democracy and religious free-
dom, such as the applicant.
The majority’s reading into the regulation of an “individual persecu-
tor” and a “particular threat” requirement would cut off refugee protec-
tion even under a purportedly modified standard such as that found in the
proposed regulations. See 63 Fed. Reg. at 31,946 (“[T]he asylum officer
or immigration judge may rely on any evidence relating to the possibility
of future persecution against the applicant.” (emphasis added)). It is
important to note that the proposed regulation appears to broaden the cir-
cumstances in which country conditions per se have not changed, i.e., the
government remains intact or continues to persecute dissidents, but asy-
lum still can be denied because of a change in other circumstances that
overcome the presumption of a well-founded fear of persecution. Yet, the
proposed regulations do not expand the bases for denial of asylum in a
situation in which the government has changed, but conditions have not
improved or have worsened.
Realistically, refugee status—at least under our law as it exists
today—cannot and should not be obliterated by technical requirements such
as those the majority seeks to institute here. In the case before us, even if we
overlook the fact that it is the Service that must rebut the fact that a once-per-

5
Although there is now no official, recognized government, this does not foreclose asy-
lum. See Matter of H-, supra.

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secuted refugee who is a proponent of democracy and freedom of religion has
a basis to fear persecution under current conditions in Afghanistan, the con-
ditions and circumstances in Afghanistan support finding affirmatively that
the applicant continues to have a well-founded fear of persecution.

B. Discretionary Asylum Based on the Severity of Past Persecution

In Matter of H-, supra, at 347, we attempted to distinguish the
Service’s burden related to rebutting the presumption of future persecu-
tion from the applicant’s “burden of establishing that the favorable exer-
cise of discretion is warranted,” citing Matter of Pula, 19 I&N Dec. 467
(BIA 1987), and Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984). We stat-
ed that “[i]n exercising discretion, the Board has considered it appropri-
ate to examine the totality of the circumstances and actions of an alien in
his or her flight from the country where persecution is feared.” Matter of
H-, supra, at 347. In the event that an individual who has established that
he is a refugee based on past persecution is shown not to have a well-
founded fear of persecution, the determination whether to grant asylum
falls within the exercise of discretion that we engage in when determining
whether or not to grant asylum. Matter of Chen, supra; see also Surita v.
INS, supra.
The Ninth Circuit recognizes that in determining whether asylum
should be granted based on the severity of past persecution, the circum-
stances surrounding the persecution may provide an independent humani-
tarian ground for granting asylum. See Osorio v. INS, supra, at 932 (con-
sidering the “Chen doctrine” to allow granting asylum on the basis of severe
past persecution or for other humanitarian reasons). In Rodriguez-
Matamoros v. INS, 86 F.3d 158, 161 (9th Cir. 1996), the court emphasized
our conclusion in Matter of Chen, supra, that,
[w]hile the likelihood of future persecution is a factor to consider in exercising dis-
cretion in cases where an asylum application is based on past persecution, asylum may
in some situations be granted where there is little threat of future persecution.
Moreover, as with any case involving the exercise of discretion, all other factors, both
favorable and adverse, should also be considered, with recognition of the special con-
siderations present in asylum cases.

See also Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996).
The Ninth Circuit’s understanding of the “special considerations” con-
stituting a factor in determinations based solely on past persecution is con-
sistent with the proposed regulations just issued by the Attorney General, in
which she explains that “the existing regulation may represent an overly
restrictive approach to the exercise of discretion in cases involving past per-
secution but no well-founded fear of persecution.” 63 Fed. Reg. at 31,947.
Indicating that “[t]he Department believes it is appropriate to broaden the

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standards for the exercise of discretion in such cases,” id., the proposed reg-
ulation goes on to include consideration that a refugee who faces “a rea-
sonable possibility of serious harm,” harm that would be “so ‘serious’ as to
equal the severity of persecution,” might warrant a discretionary grant of
asylum. Id.
I note specifically that the proposed regulation cites Matter of B-,
supra, a decision of the Board involving a refugee from Afghanistan who
suffered persecution under the previous Soviet-supported government but
was granted asylum based on both the severity of past persecution and the
current civil strife in that country, as an example of how the “broadened”
proposed regulation might apply. In addition, I note that the Ninth Circuit
has chastised the Board more than once concerning the need to refer to its
decision in Desir v. Ilchert, supra, and not to limit asylum grants based sole-
ly on past persecution to the level of atrocious treatment present in Matter
of Chen, supra. See Lopez-Galarza v. INS, supra; Kahssai v. INS, 16 F.3d
323 (9th Cir. 1994).
In Kahssai, the Ninth Circuit emphasized that in assessing the severity
of past persecution, the fact that the particular circumstances in Matter of
Chen constitute “a sound example of asylum based on past persecution does
not mean that it established the applicable standard for evaluating all such
asylum claims.” Kahssai v. INS, supra, at 329 (Reinhardt, concurring) (not-
ing that the “BIA’s narrow focus on the atrocities described in Chen is in
disregard of this court’s decision in Desir v. Ilchert”), Relevant factors
include experiences such as the “‘beatings, imprisonment, and assaults by
government security forces for the purpose of extortion,’” as well as other
equally serious forms of persecution that need not involve physical harm,
but that adversely affect personal, religious, or gender-based identity. Id.
(quoting Desir v. Ilchert, supra, at 724).
Given these factors, although not addressed by the majority, I would
also grant asylum based on the severity of past persecution and the human-
itarian considerations present in the instant case. The applicant’s mistreat-
ment was not unlike that experienced by the applicant in Matter of B-,
supra. Each refugee was apprehended, detained, interrogated, tortured, and
held in jail by the Soviet-backed government in Afghanistan for a signifi-
cant period of time. Each experienced the mental anguish of his father being
captured by the KHAD and never being heard from again. Each would face
the possibility of equally serious harm under the current conditions of civil
strife—or in the applicant’s case—Taliban faction dominance, in
Afghanistan. In Matter of B-, supra, at 72, we concluded:
Moreover, the applicant’s experiences during his detention and imprisonment must
have been exacerbated by his ignorance of his father’s fate and his separation from the
rest of his family. Therefore, given the persecution which the applicant suffered for
such a long period, and the current civil strife in Afghanistan, we conclude that the
applicant warrants a grant of asylum.

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Although the applicant was in jail for 1 month rather than 13 months,
the time the refugee in Matter of B- was detained, being subjected to inter-
rogation and torture over such a period not only constitutes a severe form of
persecution, but resulted in the applicant’s suffering a significant injury that
required a lengthy period of hospitalization. In addition, he faces being
returned, not merely to conditions of civil strife, but to domination by an
avowed ultra-conservative Islamic force to whom his moderate Moslem
beliefs and democratic leanings would be considered sacrilege and treason.
See also Desir v. Ilchert, supra. Therefore, I conclude that the applicant’s
experience was of “comparable severity” to that suffered by the applicant in
Matter of B-, supra, and that granting asylum is warranted in his case.
Lopez-Galarza v. INS, supra; Kahssai v. INS, supra, at 329.

IV. CONCLUSION

Neither the terms of the Convention and Protocol, their interpretation
by the Handbook, nor the statute or the language of the regulation contain
any of the explicit, additional restrictions that the majority attempts to
impose in this case. The regulation—which does little more than embody
our precedent as articulated under Matter of Chen, supra—requires a show-
ing that the change in conditions has been “to such an extent that the appli-
cant no longer has a well-founded fear of being persecuted.” 8 C.F.R. §
208.13(b)(1)(i). Furthermore, the regulatory requirement that conditions
have changed is not satisfied by showing a change in government alone. At
a minimum, under controlling Ninth Circuit law, to rebut the presumption
that the applicant has a well-founded fear of persecution, the Service must
demonstrate that country conditions are such that the individual applicant
can return to his country in safety and without facing a likelihood of harm.
The majority would limit asylum to only those refugees who appear
likely to experience in the future the very same harm they experienced in
the past, at the same level they experienced it in the past, at the hands of the
same persecutor. Were this a reasonable or appropriate restriction, the
statute, the regulation and the standards we apply would be quite different.
Such an interpretation impermissibly alleviates the burden on the Service
and turns the whole notion of a rebuttable presumption on its head. Notably,
it is contrary, not only to existing readings of the current regulations which
do not restrict asylum based on past persecution to the continued likelihood
of a “particular threat” from an “original persecutor,” but is at odds with
regulations proposed by the Attorney General.
Finally, the majority disregards the applicant’s eligiblity for asylum as
a matter of discretion based on the comparable severity of the past persecu-
tion he suffered. Consequently, I dissent.

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CONCURRING AND DISSENTING OPINION: John W. Guendelsberger,
Board Member, in which Paul W. Schmidt, Chairman, joined

I respectfully concur in part and dissent in part.
I agree that the record in this case should be remanded for additional
evidence. I disagree with the majority’s approach to allocation of the bur-
den of proof on remand.
I dissent from the majority’s holding that the regulation at 8 C.F.R. §
208.13(b)(1)(i) (1998) applies only to well-founded fears that have some
connection to the past persecution. The regulatory language requires that
once past persecution has been established, the Immigration and
Naturalization Service must produce evidence that the “applicant no longer
has a well-founded fear of being persecuted if he or she were to return.” Id.
The regulatory language does not limit the Service’s burden to those fears
that relate to the previous sources of persecution.
The majority characterizes the regulation at issue as an “evidentiary
presumption” based on past persecution. It then concludes that the only sen-
sible construction of the regulation is to limit its applicability to well-found-
ed fears directly arising from the past persecution. This analysis begs the
question whether the regulation may also have a humanitarian purpose.
Shifting the burden to the Service affords an additional measure of protec-
tion in very close cases to those asylum applicants who have already
demonstrated past persecution. See Medina v. California, 505 U.S. 437, 449
(1992) (stating that the allocation of the burden of proof is significant in the
“narrow class of cases where the evidence is in equipoise”). Affording an
additional measure of protection against erroneous decisions in such cases
is a rational and humanitarian approach to asylum adjudication.
The majority claims that its analysis of 8 C.F.R. § 208.13(b)(1)(i) is
based on the forward-looking posture of asylum law. However, this position
overlooks the well-established principle that victims of past persecution are
eligible for asylum in a number of situations without regard to well-found-
ed fear of future persecution. As noted in the concurring opinion in Matter
of Chen, 20 I&N Dec. 16 (BIA 1989):
It bears emphasizing in addition that at the time the Convention came into effect, the
majority of the refugees covered by the Convention were victims of past persecution
in Europe, which persecution clearly had ceased with the defeat of the Axis powers. It
is thus apparent to me that the historical underpinnings of the Convention, from which
the Refugee Act of 1980 receives its genesis, would have to be totally ignored if one
were inclined to adopt the position that present likelihood of persecution is also
required where past persecution has been established.1
1
The regulation at issue in this case, first promulgated in 1990, partly adopted and part-
ly modified the approach to past persecution which was outlined by the Board in Matter of
Chen, supra. The Chen decision made clear that proof of past persecution alone established

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Id. at 24 (Heilman, concurring). Another more recent example of the eligi-
bility for asylum based on past persecution is the expansion of the defini-
tion of the term “refugee” to include a person who has been forced to abort
a pregnancy or to undergo involuntary sterilization without reference to
whether the alien has a well-founded fear of future persecution. See section
101(a)(42) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42)
(Supp. II 1996).
Additionally, the majority relies upon wording in the cessation clauses
in the 1951 United Nations Convention Relating to the Status of Refugees,
adopted July 28, 1951, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954),
in support of its narrow interpretation of 8 C.F.R. § 208.13(b)(1)(i). It does
so, however, without also examining the termination provision of section
208(c)(2) of the Act, 8 U.S.C. § 1158(c)(2) (Supp. II 1996), and its imple-
menting regulations. Section 208(c)(2)(A) provides that asylum, once
granted, may be terminated if the Attorney General determines that the alien
is no longer a “refugee” within the meaning of section 101(a)(42), “owing
to a fundamental change in circumstances.” The implementing regulation
specifies that before the Service may terminate a grant of asylum made
under the jurisdiction of an Immigration Judge for changed circumstances,
“the Service must establish, by a preponderance of the evidence” that “the
alien no longer has a well-founded fear of persecution upon return due to a
change of country conditions in the alien’s country of nationality or habit-
ual residence.” 8 C.F.R. §§ 208.22(a)(3), (e) (1998). This directive for ter-
mination of asylum closely parallels the language found in 8 C.F.R. §
208.13(b)(1)(i). Were the majority rationale to be applied in termination
proceedings, the Service’s burden would be narrowly confined to demon-
strating that the particular source of the past persecution had disappeared. I
cannot agree that the Service would meet its burden in a termination pro-
ceeding by showing only that the regime in control at the time of the appli-
cant’s grant of asylum was no longer in existence. An equally important
aspect of the well-founded fear issue is the nature and stability of the new
regime and how the asylee will be characterized and perceived by that

eligibility for asylum. The Board noted that in such cases the question of the likelihood of
present persecution remained relevant to the exercise of discretion in granting asylum. In
specifying guidelines for how such discretion should be applied, the Board noted that “a
rebuttable presumption arises that an alien who has been persecuted in the past by his coun-
try’s government has reason to fear similar persecution in the future.” Id. at 18. The Board
then noted that “there may be cases where the favorable exercise of discretion is warranted
for humanitarian reasons even if there is little likelihood of future persecution.” Id. at 19
(referring to paragraph 136 of The Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees (Geneva, 1988) [hereinafter Handbook].

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regime. If the alien comes forward with evidence of fear of persecution
under the new regime, the termination regulation, as well as the regulation
at issue in this case, places upon the Service the ultimate burden of proof as
to well-founded fear.
The majority’s reliance on the Convention and Handbook is inapposite
and misleading. The Convention’s 5th cessation clause at Article 1C, which
contains the “connexion” language relied upon by the majority, has no bear-
ing on allocation of burden of proof. Nor does the Handbook provision at
paragraph 135 provide any guidance as to placement of the burden of proof
in determining whether the reasons for granting refugee status continue to
exist. Nothing in the Convention, Protocol, or Handbook requires a shift of
the burden from the alien to the Government in application of the cessation
provisions. The Act or regulations could just as well have imposed a con-
tinuing burden upon the alien, when called upon, to demonstrate continuing
qualification as a “refugee.” The Attorney General, however, determined
that once refugee status has been established, it will not be terminated
unless and until the Service can prove that changed conditions have elimi-
nated fear of persecution. 8 C.F.R. § 208.22. This allocation of the burden
of proof reflects a judgment concerning allocation of risk of error between
litigants. The applicant presenting an initial claim must produce evidence
that establishes that he meets the definition of refugee. Once awarded, the
burden is placed upon the Service to show that the status is no longer justi-
fied.
Similar shifts in burden of proof are applied in many other areas of
immigration law in the event that revocation of a status or privilege is
sought. An applicant for naturalization, for example, has the burden of
demonstrating that he meets all the requirements for citizenship. In a denat-
uralization proceeding, however, the burden of proof shifts to the
Government and the standard is also elevated beyond that of a preponder-
ance of the evidence. See Schneiderman v. United States, 320 U.S. 118, 124
(1943) (“To set aside such a grant the evidence must be ‘clear, unequivocal,
and convincing’—‘it cannot be done upon a bare preponderance of evi-
dence which leaves the issue in doubt.’” (quoting United States v. Maxwell
Land-Grant Co., 121 U.S. 325, 381 (1887)). Likewise, in rescission of
adjustment of status, the Government bears the burden of proving ineligi-
bility for adjustment by clear, unequivocal, and convincing evidence. See,
e.g., Waziri v. INS, 392 F.2d 55 (9th Cir. 1968); Matter of Suleiman, 15 I&N
Dec. 784 (BIA 1974), Also, in expatriation cases when the citizenship
claimant proves either his birth in the United States or acquisition of his cit-
izenship through naturalization, the burden shifts to the Government to
demonstrate by clear, unequivocal, and convincing evidence that the indi-
vidual committed a voluntary act of expatriation. Mitsugi Nishikawa v.
Dulles, 356 U.S. 129 (1958); Gonzales v. Landon, 350 U.S. 920 (1955).
Thus the shifting of the burden of proof in termination of asylum cases is

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not at all unusual, and there is little justification for narrowly applying the
burden shift to just those aspects of persecution upon which the original
grant of asylum was based. The nearly identical language of the 8 C.F.R. §
208.13(b)(1)(i) burden shift should also not be artificially constricted to
apply only to fears arising from the past persecution.
Although no decision has directly addressed the question of the scope
of the 8 C.F.R. § 208.13(b)(1)(i) burden shift, a number of courts and this
Board have noted that the burden is on the Service. Recently, in Matter of
H-, 21 I&N Dec. 337 at 346 (BIA 1996), this Board held:

To overcome the regulatory presumption, the record must reflect, by a preponderance
of the evidence, that since the time the persecution occurred, conditions in the appli-
cant’s country of nationality . . . have changed to such an extent that the applicant no
longer has a well-founded fear of being persecuted if he or she were to return to that
country. 8 C.F.R. § 208.13(b)(1)(i), As a practical matter, it will be the Service’s bur-
den to rebut the presumption, whether by adducing additional evidence or resting upon
evidence already in the record.

See also Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997) (stating that the
Service bears the burden to rebut the 8 C.F.R. § 208.13(b)(1)(i) presump-
tion by a preponderance of the evidence); Osorio v. INS, 99 F.3d 928 (9th
Cir. 1996).
The limitation the majority proposes could have easily been included in
the regulatory formula had that been intended. Notably, the very next sub-
section of the regulation, 8 C.F.R. § 208.13(b)(1)(ii), includes language lim-
iting that clause’s applicability to compelling reasons “arising out of the
severity of the past persecution.” (Emphasis added.) Thus, the drafters of
the regulation were perfectly capable of including limitations on the scope
of the evidentiary rules in asylum hearings. Had the drafters meant to sim-
ilarly limit the scope of the regulation here at issue to “fears arising out of
the past persecution,” they would have so specified.2 This Board should be
particularly cautious when imposing limitations upon procedural or eviden-
tiary regulations which afford safeguards to aliens seeking asylum. See INS
v. Errico, 385 U.S. 214, 225 (1966) (indicating that doubts as to the correct
construction of the statute should be resolved in the alien’s favor even when
interpreting provisions related to relief from deportation); see also INS v.

2
The explanatory language in the final Rules and Regulations, which included the lan-
guage of 8 C.F.R. § 208.13(b)(1)(i) for the first time, placed the Service’s burden in very
broad terms: “If the applicant establishes past persecution, the burden is then on the govern-
ment to show (by a preponderance of evidence) that conditions have changed so substantial-
ly that the applicant would not have a well-founded fear if he were to return.” Asylum and
Withholding of Deportation Procedures, 55 Fed. Reg. 30,674, 30,678 (1990) (Supplementary
Information) (now codified at 8 C.F.R. § 208.13(b)(1)(i)).

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Cardoza-Fonseca, 480 U.S. 421, 449 (1987) (noting the “longstanding prin-
ciple of construing any lingering ambiguities in deportation statutes in favor
of the alien”); Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (stating that
any doubts regarding the construction of the Act are to be resolved in the
alien’s favor); Matter of Tiwari, 19 I&N Dec. 875 (BIA 1989).
The majority holds that the 8 C.F.R. § 208.13(b)(1)(i) presumption
requires the Service to prove only that “the particular threat” no longer
exists, i.e., that the applicant no longer has a well-founded fear from “his
original persecutors.” At other parts of the decision, the majority suggests
that the Service’s burden would not apply in the case of “any new source”
but then qualifies this statement by noting that it would not apply if the new
leadership harbored the “same animosities” as the old. What we are left
with, in place of the regulation’s bright-line rule regarding burden of proof
once past persecution is demonstrated, is an ambiguous preliminary assess-
ment of the “relationship” of well-founded fear to the past persecution. This
adjustment of the plain regulatory language needlessly complicates the
workings of the regulatory presumption and removes an evidentiary protec-
tion that was afforded to all aliens who have suffered past persecution.
In the instant case, it is undisputed that the applicant was terrorized by
the communist secret police because of his assistance to one of the
mujahidin factions. First, his father was taken by the secret police in the
middle of the night and subsequently “disappeared.” Second, the applicant
was arrested and detained for approximately 1 month. During this deten-
tion, the applicant was beaten so severely that he lost consciousness and
was hospitalized. Since his departure from Afghanistan, that country has
been devastated by a brutal civil war in which the various factions of the
mujahidin are attempting to destroy each other in order to gain control of
the country.
While it is clear that the communists who persecuted the alien are no
longer in control, the applicant has produced evidence that indicates that he
may have a well-founded fear of persecution from other sources who con-
tinue in the political and military struggle for control of Afghanistan. The
Immigration Judge below imposed the burden upon the applicant to show
that he currently faces a well-founded fear of persecution from the warring
factions in Afghanistan. I would find, for the reasons stated above, that the
Service has the burden to demonstrate that the applicant’s claimed fears of
persecution in Afghanistan are not well founded. I would therefore remand
this case for proper allocation of the burden of proof under 8 C.F.R. §
208.13(b)(1).

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