Shifting Burden of Proof for Asylum in Immigration Court

Representing a refugee before an Immigration Judge (IJ) in removal proceedings gives rise to an advantageous form of relief from removal – asylum. One of the main obstacles in removal proceedings is that the Respondent carries the burden of proof to establish eligibility for relief. This burden may be quite onerous depending on your client’s circumstances. But if your client came to the U.S. as a refugee, applying for asylum before the IJ can level the playing field by shifting the burden to the government to prove the case is not meritorious. This can be a high hurdle for the government depending on which country your client is from.

In applying for asylum in Immigration Court, the Respondent has the initial burden to show that she is a refugee. The Respondent must proof past persecution or a well-founded fear of future persecution in their country of nationality. The Respondent’s own testimony is sufficient evidence to meet this burden. Additionally, showing that your client was previously approved for refugee status is easy and adds probative evidence to the claim. Once your client establishes past persecution, well-founded fear of persecution on the basis of the original claim is presumed.

This presumption shifts the burden to the government to prove by a preponderance of the evidence that there has been a fundamental change in circumstances in the alien’s country of nationality or that the respondent can avoid future persecution by relocating to another part of the country of nationality. If the country is still experiences the strife that brought the alien to the United States in the first place, the government may be unable to meet this burden. The Department of State’s country reports are excellent resources to determine whether such strife is still ongoing.