News & Insights

What is the Burden of Proof?

In U.S. immigration law, the burden of proof refers to the responsibility of the asylum seeker to demonstrate that they meet the legal requirements for asylum. This is a critical concept outlined in the Immigration and Nationality Act (INA) at INA § 291; 8 U.S.C. § 1361. It means the applicant must provide sufficient evidence to show they qualify for asylum and are not inadmissible under any U.S. immigration laws.

How Does This Apply to Asylum Seekers?

To meet the burden of proof, an asylum seeker must:

Prove Eligibility for Asylum:

• Show they meet the definition of a refugee under U.S. law (INA § 208; 8 U.S.C. § 1158).
• A refugee is someone who cannot return to their home country because of past persecution or a well-founded fear of future persecution based on race, religion, nationality, membership in a particular social group, or political opinion.

Provide Evidence:

Submit credible, detailed, and consistent evidence to support their claim. This may include:

• Personal testimony detailing their experiences and fears of persecution.
• Supporting documents such as identity papers, police reports, medical records, or witness statements.
• Evidence of country conditions, such as human rights reports, to corroborate claims of persecution.

Demonstrate Admissibility:

• Prove that they are not barred from receiving asylum due to criminal activity, fraud, or other statutory disqualifications.

Key Points to Understand:

• Legal Standards: U.S. law requires that asylum seekers prove their eligibility by a “preponderance of the evidence” or, in some cases, demonstrate a “well-founded fear” of persecution.
• Role of the Immigration Judge or Asylum Officer: These officials evaluate the credibility of the applicant’s story, the evidence presented, and how well it aligns with the legal requirements for asylum.

Intellectual, Historical, and Constitutional Foundations:

The U.S. asylum system is rooted in international law, particularly the 1951 Refugee Convention and its 1967 Protocol. These agreements established the obligation to protect individuals fleeing persecution. U.S. statutes and regulations incorporate these principles, creating a legal framework for granting asylum to those in need.

How to Meet the Burden of Proof:

• Understand the Requirements: Review U.S. asylum laws, particularly INA § 208 and § 291, and related regulations.
• Prepare Thoroughly: Gather evidence and ensure it is consistent, detailed, and credible.
• Seek Legal Guidance: Consult an experienced immigration attorney to help navigate the complexities of asylum law.