Convention and the 1967 Protocol Relating to the Status of Refugees para.
196, at 47 (Geneva, 1992) (“Handbook”);
2
see also Sangha v. INS, 103 F.3d
1482, 1487 (9th Cir. 1997); Osorio v. INS, supra, at 1021-22. The “burden of
proof” is an evidentiary allocation of the proof necessary to establish some-
thing, often the dispositive factor, in a case or controversy.
3
It means that the
applicant is responsible for providing evidence to satisfy the applicable
“standard of proof” assigned to his or her claim.
The standard of proof applicable to an asylum claim is a “well-founded
fear of persecution” under section 208(a) of the Immigration and Nationality
Act, 8 U.S.C. § 1153(a) (1994). Thus, the applicant’s burden is to provide
evidence necessary to persuade the adjudicator he has a well-founded fear of
persecution, which is composed of two elements: a subjective ele-
ment—fear—and an objective element—that the fear is “well-founded.” See,
e.g., INS v. Cardoza-Fonseca, supra.
Credible testimony establishing the subjective fear and objective factors
that constitute the essential elements of a claim—that the fear is of a level of
harm that amounts to persecution, that the harm is on account of a protected
characteristic, that the persecutor could become aware or already is aware of
the characteristic, and that the persecutor has the means and inclination to
persecute—supports an inference that a reasonable person in the respon-
dent’s circumstances would fear persecution and, therefore, satisfies the
standard. See Matter of Mogharrabi, supra, at 446; Matter of Acosta, supra,
at 226.
We have held that an applicant’s testimony that is believable, consistent,
and sufficiently detailed to provide a plausible and coherent account of the
basis of the applicant’s alleged fear suffices to fulfill the burden of proof.
Matter of S-M-J-, supra, at 724 (citing Matter of Mogharrabi, supra at 446);
see also Turcios v. INS, supra, at 1402 (recognizing that an authentic refugee
1149
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2
The Handbook provides practical guidance to government officials as they are determining
refugee status under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, which was
enacted to bring United States refugee law into conformance with our international obligation
of nonrefoulement under the United Nations Convention Relating to the Status of Refugees,
July 28, 1951, 189 U.N.T.S. 137 (“Convention”), and the United Nations Protocol Relating to
the Status of Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S.
268 (“Protocol”). INS v. Cardoza-Fonseca, supra, at 436-37 (1987); Matter of Q-T-M-T-, 21
I&N Dec. 639 (BIA 1996) (Rosenberg, dissenting); Matter of Rodriguez-Palma, 17 I&N Dec.
465, 468 (BIA 1980).
3
The term “burden of proof” typically is used to encompass both the burden of production,
that is, who is expected to establish the requisite facts, and the burden of persuasion, that is, the
degree to which a fact finder must be persuaded based on the evidence presented. McCormick,
McCormick on Evidence § 341 (Edward M. Cleary ed., 3d ed. 1984); see also Karen Musalo,
Irreconcilable Differences? Divorcing Refugee Protections From Human Rights Norms, 15
Mich. J. Int’l L. 1179, 1200 (1994) (citing Fleming James, Jr. and Geoffrey C. Hazzard, Jr.,
Civil Procedure § 7.5 (3d ed. 1985)); Robert Belton, Burdens of Pleading and Proof in
Discrimination Cases: Toward a Theory of Procedural Justice, 34 Vand. L. Rev. 1205, 1206
n.3 (1981).