Q : Are There Any Mandatory Bars to Establishing a Reasonable Fear of Persecution or Torture?There are no mandatory bars to establishing a reasonable fear of persecution or torture. As such, the asylum officer does not take into consideration the mandatory bars to withholding of removal when making reasonable fear determinations but may still elicit information regarding any potential bars to withholding of removal and document such information. If an individual is found to have a reasonable fear, however, the Immigration Judge will consider whether the individual is barred from a grant of withholding of removal. An individual may not be granted withholding of removal if he or she has persecuted others on account of race, religion, nationality, membership in a particular social group, or political opinion, has been convicted of a particularly serious crime, has committed a serious nonpolitical crime outside the United States, or there are reasonable grounds to believe that the individual is a danger to the security of the United States. See 8 CFR § 208.16(d) and INA section 241(b)(3)(B). Although certain mandatory bars apply to a grant of withholding of removal under the Convention Against Torture, no mandatory bars may be considered in making a reasonable fear of torture determination. Because there are no bars to protection under Article 3, an immigration judge must grant deferral of removal to an applicant who is barred from a grant of withholding of removal but who is likely to be tortured in the country to which the applicant has been ordered removed. Thus, if a bar applies, but the individual has established that he or she would be tortured in the country of return, the Immigration Judge will grant deferral of removal. See 8 CFR § 208.17.
Last updated:09/26/2008 | 