Section 241(b)(3)(A) of the INA provides that the Attorney General (“AG”) may not remove an alien to a country if the AG decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. INA §241(b)(3)(A). To make this showing, the applicant must establish at least a 10% probability of persecution for asylum and a “clear probability” of persecution, meaning that it is “more likely than not” that she will be subject to persecution on account of a protected ground if returned to the country from which she seeks withholding of removal. Cardoza-Fonseca, 480 U.S. at 421. “Persecution involves the infliction or threat of death, torture, or injury to one’s person or freedom.” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)(citing Kondakova v. Aschcroft, 393 F.3d 792, 797 (8th Cir. 2004)). The meaning of “persecution” contemplates harm or suffering inflicted upon an individual in order to punish him or her for possessing a belief or characteristic a persecutor seeks to overcome. See Matter of Acosta, at 223. In determining whether harm rises to the level of persecution, courts must consider all the incidents “in the aggregate.” Baharon v. Holder, No. 08-1700, 2009 WL 4061568 *4 (4th Cir. Nov. 24, 2009). Systematic mistreatment is considered persecution, while isolated incidents of harm generally are not. Id.
The applicant’s credible testimony alone may be sufficient to sustain this burden of proof. 8 C.F.R. § 1208.16(b). If an alien demonstrates that she has suffered past persecution in the proposed country of removal, the burden shifts to DHS to demonstrate that a fundamental change in circumstances has occurred in that country or that the applicant could safely relocate to another area in the proposed country of removal. 8 C.F.R. § 1208.16(b)(1). There is no discretionary element. Therefore, if the applicant establishes eligibility, asylum and withholding of removal must be granted. INA § 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim.
To determine whether an asylum applicant belongs to a particular social group, the BIA has focused on two things: (1) immutability; and (2) social visibility. Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985). In Matter of Acosta, the BIA defined persecution on account of membership in a particular social group and established that kinship ties alone can constitute a particular social group. Id. Several Circuit Courts have followed the BIA decision in Acosta and have found that family may qualify as a “social group” for purposes of asylum. In Lopez-Soto v. Ashcroft, the court stated “[w]e join our sister circuits in holding that ‘family’ constitutes a ‘particular social group’ under 8 U.S.C. 1101 (a)(42)” (Lopez-Soto v. Ashcroft, 383 F.3d 228, 235 (4th Cir. 2004). See also Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993) (“There can, in fact, be no plainer example of a social group based on common identifiable and immutable characteristics than that of the nuclear family.”); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) (“Perhaps a prototypical example of a ‘particular social group’ would consist of the immediate members of a certain family”).
To establish eligibility for asylum, the applicant must also establish the necessary casual connection between the persecution and the protected statutory ground. Al Najjar, 257 F.3d at 1287. The applicant must present “specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution on account of” a statutorily listed factor. Id. It is not necessary for an applicant to demonstrate that her possession of a protected characteristic is the sole reason that the persecutor seeks to harm her. Sanchez Jimenez v. US Att’y Gen., 492 F.3d 1223, 1232 (11th Cir. 2007) (it is well established in our case law that an applicant can establish eligibility for asylum so long as he can show that the persecution is, at least in part, motivated by a protected ground). The Supreme Court has stated that the asylum applicant does not have to provide direct proof of the persecutor’s motives. INS v. Elias-Zacarias, 502 US 478, 483-84 (1992).
Asylum applicants are protected against “persecution not only by government forces, but also by nongovernmental groups that the government cannot control.” Romero-Rodriguez v. US Att’y Gen., 131 F. App’x 203, 205 (11th Cir. 2005). The BIA has granted asylum to applicants who feared persecution by nongovernmental groups where the applicant has demonstrated that the government of their return country is unable to provide protection from the nongovernmental group. Matter of Kasinga, 21 I & N Dec. 357 (BIA 1996).