By: Karlo I. J. Dizon, Esq.
Our previous posts discussed how an applicant for asylum must establish, as a threshold matter, her country of nationality, or if stateless, her country of last habitual residence. After making that showing, the applicant must then demonstrate she is “unable or unwilling to return to . . . that country because of persecution or her well-founded fear of persecution[.]”1
Courts have not considered an applicant’s willingness to return to the persecuting country as, by itself, a factor that determines whether the applicant qualifies for asylum. Instead courts might see the applicant’s voluntary return to that country as connected to the strength of her allegations of past persecution or well-founded fear of future persecution. Alternatively, courts might view the applicant’s return as relevant to her credibility.
Voluntary return may weaken claims of past persecution or fear of future persecution
An applicant’s return to her persecuting country may strengthen or weaken her claim that she underwent past persecution, or that she has a well-founded fear of persecution if she were to return to that country again.2 As the Eleventh Circuit Court of Appeals explained: “An asylum applicant’s voluntary return to his or her home country is a relevant consideration in determining whether the asylum applicant has a well-founded fear of future persecution. Voluntary returns to a home country may weaken or undermine an applicant’s claim of persecution. De Santamaria v. U.S. Attorney General, 525 F.3d 999, 1011 (11th Cir. 2008) (citing Ngarurih v. Ashcroft, 371 F.3d 182, 188-89 (4th Cir. 2004); Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir. 2001)).
Other federal courts of appeal have been in accord with that view. See Loho v. Mukasey, 531 F.3d 1016, 1018 (9th Cir. 2008) (“It is well established in this court that an alien’s history of willingly returning to his or her home country militates against a finding of past persecution or a well-founded fear of future persecution.”); Toloza-Jimenez v. Gonzales, 457 F.3d 155, 161 (1st Cir. 2006) (finding that an applicant who applied for asylum in the United States in 2003 based on persecution from Colombia from 1986 onwards “strongly indicated she ha[d] no fear of persecution” when she traveled twice to the U.S. in 1996 and 2001, and returned to Colombia each time, without applyihg for U.S. asylum).
But at least one federal court of appeals has reached a contrary conclusion, finding that an applicant’s return to her persecuting country does not negate her assertion of fears of future persecution. In Kone v. Holder, 596 F.3d 141 (2d Cir. 2010), Kone was a citizen of Côte d’Ivoire who sought asylum based on past persecution—on the grounds of female genital mutilation, as well as religious, ethnic, and political persecution—and also based on her well-founded fears of future persecution due to the likelihood her daughters would be forcibly subjected to genital mutilation if Kone returned to Côte d’Ivoire. Despite finding credible Kone’s accounts of her past persecution, the immigation judge (IJ) found Kone’s voluntary return trips to Côte d’Ivoire rebutted the presumption of her future persecution. Id. at 145.
The Second Circuit Court of Appeals disagreed on review. It found that Kone’s past persecution entitled her by law to the rebuttable presumption of future persecution—and that presumption was not rebutted merely by Kone’s voluntary return to Côte d’Ivoire:
[The IJ] suggests the erroneous belief that voluntary return trips are sufficient, as a matter of law, to rebut the presumption of future persecution to which Kone is entitled. But this cannot be the case because the mere fact of such trips, standing alone, does not suggest either any fundamental change in circumstances or the possibility of internal relocation.
Kone v. Holder, 596 F.3d 141, 148 (2d Cir. 2010). In reaching that conclusion, the appeals court relied on a similar approach from the Ninth Circuit Court of Appeals. See Boer-Sedano v. Gonzales, 418 F.3d 1082, 1091 (9th Cir. 2005) (“We have never held that the existence of return trips standing alone can rebut this presumption.”).
Voluntary return may lead to finding of adverse credibility
Courts have also upheld immigration judges’ findings of adverse credibility where the IJ reached those findings at least in part due to the asylum applicant’s voluntary return to her persecuting country.2
In Loho v. Mukasey, 531 F.3d 1016 (9th Cir. 2008), Loho was an Indonesian citizen who sought asylum in the United States claiming persecution because of her Chinese ethnicity and Christian religion. See id. at 1017. Loho testified during her removal hearing that she had been attacked in Indonesia by assailants who said racial slurs; that her house was robbed by indigenous Indonesians; and that her workplace and church were damaged during riots against Indonesians of Chinese ancestry. Id. But she also testified that she visited family in the United States twice during that period of persecution—for two weeks and ten days, respectively—then voluntarily returned to Indonesia after each visit without applying for asylum. Id. When the IJ asked her to explain why she failed to seek asylum during those trips, Loho testified: “[T]he time was so short and I didn’t know about asylum.” Id. The IJ found Loho not credible and denied her asylum claim in part because of those voluntary returns. Id. The BIA affirmed that conclusion.
On appeal, the Ninth Circuit Court of Appeals upheld the IJ’s adverse credibility determination because Loho took “minimal steps” to investigate her opportunities for escaping persecution while in the United States:
We are persuaded that Loho’s two voluntary returns to her home country support the IJ’s adverse credibility finding even though she was not specifically aware of the possibility of applying for asylum. What cuts against Loho’s credibility is not that she failed to submit an asylum application during her previous visits, but that after leaving her home country for the safety of the United States, Loho took minimal steps to investigate the availability of some means of avoiding a return to the country she claims to have feared.
Id. at 1017. Cf. Jie Cui v. Holder, 712 F.3d 1332, 1337 (9th Cir. 2013) (“[The applicant’s] ability to travel to Mexico, his lack of efforts to then enter the United States, and his voluntary decision to return to China go to the heart of his asylum claim because they undermine his assertions that he feared persecution.”).
At least one other federal circuit court of appeals has recognized that voluntary return may be an appropriate factor for the IJ to consider when determining an applicant’s credibility. See Apouviepseakoda v. Gonzales, 475 F.3d 881, 893 (7th Cir.2007)) (finding that, where the alien previously had entered and left the United States on three occasions after claiming to have endured severe incidents of past persecution, the IJ was not “compelled to believe that . . . return trips [to the applicant’s home country] are what a person in dire fear of persecution . . . would do”); but see Tarraf v. Gonzales, 495 F.3d 525, 534 (7th Cir. 2007) (“Although we have recognized that return travel might be an appropriate factor weighing against an alien’s credible fear, each case must be considered in light of its own specific facts.”). The Second Circuit Court of Appeals, however, has emphasized that “a more nuanced consideration of circumstances” is necessary before an IJ relies on an applicant’s voluntary return when determining the applicant’s adverse credibility. See Kone v. Holder, 596 F.3d 141, 150 (2d Cir. 2010) (“In short, it is not enough for the agency simply to find that return trips undermine an applicant’s credibility; a more nuanced consideration of the circumstances surrounding such returns is required.”).
- These factors draw from the statutory definition of refugee: “[A]ny person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]” See INA §101(a)(42); 8 USC §1101(a)(42); 8 C.F.R. 208.13(b)(1).
- Under INA §101(a)(42), a person granted refugee status (and correspondingly, asylum status) must show past persecution or a well-founded fear of future persecution. See INA §101(a)(42). An applicant may succeed on an asylum claim based on past persecution alone—termed as “humanitarian asylum”—if she can also demonstrate: (1) compelling reasons for being unwilling or unable to return to the country arising out of the severity of the past persecution; or (2) a reasonable possibility that she may suffer other serious harm upon removal to that country. 8 CFR 208.13(b)(1)(iii). Once the applicant shows past persecution, she has the rebuttable presumption of a well-founded fear of future persection. 8 CFR 208.13(b)(1).
- Generally speaking, the BIA accords “a high degree of deference” to the IJ’s adverse credibility findings. See In re A-S-, 21 I&N Dec. 1106 (BIA 1998). Courts, meanwhile, might be “extremely deferential” to an IJ’s adverse credibility determination. See Wang v. INS, 352 F.3d 1250, 1257 (9th Cir. 2003).
Table of Authorities
- 8 USC §1101(a)(42)
- INA §101(a)(42)
- 8 C.F.R. 208.13(b)(1)
- Apouviepseakoda v. Gonzales, 475 F.3d 881 (7th Cir.2007)
- De Santamaria v. U.S. Attorney General, 525 F.3d 999 (11th Cir. 2008)
- Hakeem v. INS, 273 F.3d 812 (9th Cir. 2001)
- In re A-S-, 21 I&N Dec. 1106 (BIA 1998)
- Jie Cui v. Holder, 712 F.3d 1332 (9th Cir. 2013)
- Kone v. Holder, 596 F.3d 141 (2d Cir. 2010)
- Loho v. Mukasey, 531 F.3d 1016 (9th Cir. 2008)
- Ngarurih v. Ashcroft, 371 F.3d 182 (4th Cir. 2004)
- Tarraf v. Gonzales, 495 F.3d 525 (7th Cir. 2007)
- Toloza-Jimenez v. Gonzales, 457 F.3d 155 (1st Cir. 2006)
- Wang v. INS, 352 F.3d 1250 (9th Cir. 2003)