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Matter of L-S-, Respondent

Decided February 17, 2012

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An asylum applicant who has established past persecution but no longer has

a well-founded fear of persecution may nevertheless warrant a discretionary grant

of humanitarian asylum based not only on compelling reasons arising out of the

severity of the past persecution, but also on a “reasonable possibility that he or she

may suffer other serious harm” upon removal to his or her country under 8 C.F.R.

§ 1208.13(b)(1)(iii)(B) (2011).

(2) “Other serious harm” may be wholly unrelated to the applicant’s past harm and need not

be inflicted on account of race, religion, nationality, membership in a particular social

group, or political opinion, but the harm must be so serious that it equals the severity

of persecution.

(3) In determining whether an applicant has established a “reasonable possibility” of “other

serious harm,” adjudicators should focus on current conditions that could severely affect

the applicant, such as civil strife and extreme economic deprivation, as well as on the

potential for new physical or psychological harm that the applicant might suffer.

FOR RESPONDENT: Dorothy J. Harper, Esquire, St. Louis, Missouri

FOR THE DEPARTMENT OF HOMELAND SECURITY: Jerry A. Beatmann, Assistant

Chief Counsel

BEFORE: Board Panel: ADKINS-BLANCH and GUENDELSBERGER, Board Members;

KENDALL CLARK, Temporary Board Member.

ADKINS-BLANCH, Board Member:

This case is before us on remand from the United States Court of Appeals

for the Eighth Circuit pursuant to an October 15, 2010, order granting the

respondent’s petition for review. Sholla v. Holder, 397 F. App’x 253 (8th Cir.

2010). It was last before us on February 26, 2010, when we upheld the July 8,

2008, decision of the Immigration Judge denying the respondent’s applications

for asylum, withholding of removal under section 241(b)(3) of the Immigration

and Nationality Act, 8 U.S.C. § 1231(b)(3) (2006), and protection under

the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, adopted and opened for signature Dec. 10, 1984,

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G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc.

A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States

Apr. 18, 1988) (“Convention Against Torture”), but granting him voluntary

departure.1 The record will be remanded to the Immigration Judge for further

proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Albania who has requested

asylum, maintaining that he was persecuted over many years in his country

on account of his political opinion. In a decision dated September 29, 2004,

an Immigration Judge found the respondent removable and denied his

applications for relief based on his persecution claim, finding that he failed

to establish past persecution and that, in any case, circumstances in Albania

had changed so that he no longer had a well-founded fear of persecution.

We affirmed the Immigration Judge’s decision in an order dated July 11, 2006.

In 2007, the Eighth Circuit granted the respondent’s petition for review and

remanded the record, finding that the mistreatment that the respondent had

experienced in Albania was of such severity that it amounted to persecution.

Sholla v. Gonzales, 492 F.3d 946 (8th Cir. 2007). Consequently, in an order

dated February 14, 2008, we remanded the record to the Immigration Court.

In his July 8, 2008, decision on remand, the Immigration Judge found that

in light of changed conditions in Albania, the Department of Homeland

Security (“DHS”) had rebutted the presumption that the respondent had

a well-founded fear of future persecution based on his original persecution

claim, citing 8 C.F.R. § 1208.13(b)(1) (2008). The Immigration Judge also

held that the respondent did not independently have a well-founded fear

of future persecution.2

The respondent appealed, and on February 26, 2010, we upheld the

decision of the Immigration Judge. Although the respondent had requested

1

Proceedings before the Immigration Judge in this matter were completed in St. Louis,

Missouri, where the case was docketed for hearing and where the hearing notice directed

the respondent to appear through video conference pursuant to section 240(b)(2)(A)(iii)

of the Act, 8 U.S.C. § 1229a(b)(2)(A)(iii) (2006). The Immigration Judge conducted the

hearing there remotely from Oakdale, Louisiana.

2

The respondent argued that conditions in Albania had not materially changed; he did not

set forth any new basis for an asylum claim. The respondent’s requests for withholding

of removal and protection under the Convention Against Torture, which were previously

denied, were not subject to the most recent remand from the Eighth Circuit and are no longer

before us.

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“humanitarian” asylum, the Immigration Judge did not consider the request.3

However, we did address that issue in our decision, finding that such relief was

not warranted. Citing Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA

2008), and Matter of Chen, 20 I&N Dec. 16 (BIA 1989), we stated, “The

record does not support a finding that the respondent has suffered an atrocious

form of persecution which results in continuing pain similar to that found

in cases where asylum has been granted despite no finding of future

persecution.”

Upon review of our last decision, the Eighth Circuit upheld the

determination that conditions in Albania had changed to a sufficient extent that

the respondent would no longer have a reasonable fear of persecution. The

court remarked, however, that the Board’s “summary denial” of humanitarian

asylum left it in doubt as to whether we had considered all of the factors

relevant to such a claim. See Sholla v. Holder, 397 F. App’x at 255 (citing

Abrha v. Gonzales, 433 F.3d 1072, 1076 (8th Cir. 2006) (holding that relevant

factors for humanitarian asylum include the degree of the harm suffered,

the length of time over which the harm was inflicted, and evidence

of psychological trauma resulting from the harm)). Consequently, the Eighth

Circuit granted the respondent’s latest petition for review and remanded the

record to us.

II. RESPONDENT’S CLAIM

The facts, as previously found, concern the respondent’s account of how

he and his family were imprisoned by the Communist-era Albanian

Government in an internment camp between 1980 and 1981 on account of the

respondent’s criticism of the communist system then present in his country.

The respondent described austere conditions in the camp, which involved

3

As explained below, asylum granted in the absence of a well-founded fear of persecution

is sometimes referred to as “humanitarian” asylum. See Matter of Chen, 20 I&N Dec.

16 (BIA 1989); see also Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008). Under

8 C.F.R. § 1208.13(b)(1)(iii), humanitarian asylum may be granted—only to an applicant

who suffered past persecution—when

(A) The applicant has demonstrated compelling reasons for being unwilling

or unable to return to the country arising out of the severity of the past persecution;

or

(B) The applicant has established that there is a reasonable possibility that

he or she may suffer other serious harm upon removal to that country.

(Emphasis added.)

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spending long hours at hard labor and having to live in a barracks while

interned. What drinking water was available was often of poor quality. The

respondent asserted that prisoners were constantly supervised and were not

permitted to communicate with each other. He described how being labeled

a “dissident” caused him difficulty obtaining work after his release, although

he did eventually secure a hard-labor job at a stone quarry.

The respondent explained how he joined an Albanian democratic movement

in 1990 and became a member of the Democratic Party in Kucova in 1991.

Three of his brothers were active in the movement as well. The respondent

related that secret police warned him against engaging in democratic political

activities and that they threatened him with disappearance. Socialist Party

members also threatened him physically. According to the respondent, in May

1997, he was beaten unconscious by unknown individuals on account of his

political activity, and in June 1997, he was again beaten by a police officer and

a civilian police employee. The respondent endured another similar beating

later that month. After the Socialist Party won the election that subsequently

ensued, the respondent’s employment was terminated.

The respondent also described difficulties that his politically active

brothers experienced, including the 1998 bombing of one brother’s house and

the bombing of his other brother’s store later that year. According to the

respondent, during the election season of 2000, masked men carrying machine

guns shot at his apartment, wounding his son in the leg. Police supposedly

told the respondent they would investigate, but no actions were taken. The

respondent’s three politically active brothers were reportedly granted asylum

in the United States.

When this case was last before the Immigration Judge in 2008, both the

DHS and the respondent submitted additional country condition information,

and the respondent proffered more testimony relating to his request for

humanitarian asylum. The respondent indicated that his children remained

in hiding in Albania with their grandparents. He acknowledged that Albania

held parliamentary elections in 2005 and that members of the Democratic

Party, which he had supported, won the prime minister’s office and obtained

a majority of the seats in the country’s single-house parliament. The

respondent asserted, however, that there would be no place for him to live

in Albania. He believed that his former political opponents were still there

and remained armed, and he recalled the mistreatment and death threats

he had received from the secret police. The respondent also claimed that

he experienced fear, panic attacks, depression, and sleep problems, along with

nightmares about his experiences in Albania. He provided evidence that

he had been prescribed the psychotropic medications Haldol, benztropine, and

temazepam.

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In finding that conditions had changed in Albania, the Immigration Judge

noted how power in the country had shifted to the respondent’s political party.

Persuaded by the State Department’s recent report on conditions in Albania,

the Immigration Judge found that there was no evidence of politically

motivated disappearances and no political prisoners, even though there

were occasional arbitrary arrests by the police. The Immigration Judge

concluded that the State Department’s report was more persuasive than some

contrary information submitted by the respondent. Compare Bureau

of Democracy, Human Rights, and Labor, U.S. Dep’t of State, Albania

Country Reports on Human Rights Practices – 2007 (Mar. 11, 2008), available

at http://www.state.gov/j/drl/rls/hrrpt/2007/100544.htm, with Albanian Human

Rights Group, Justice Initiative (2008). As noted above, the Immigration

Judge did not consider the respondent’s request for humanitarian asylum.4

We previously upheld the Immigration Judge’s determination regarding

changed country conditions—as they relate to the respondent’s original basis

for asylum—and that issue is no longer before us. Pursuant to the Eighth

Circuit’s remand, we now consider the respondent’s claim for humanitarian

asylum.

III. ANALYSIS

In Matter of D-I-M-, 24 I&N Dec. 448, 450 (BIA 2008), we held that

the regulatory framework of 8 C.F.R. § 1208.13(b)(1) must be followed

to properly evaluate an asylum claim. We addressed how, under the

regulation, the presumption of a well-founded fear arises when past

persecution has been shown and how the burden of proof then shifts to the

DHS to rebut the presumption. In this case, as noted above, we are at the stage

where the presumption has been rebutted based on changed conditions

4

As a general matter, when a case is remanded to an Immigration Judge, unless

we specifically limit the scope of the proceedings below, the Immigration Judge reacquires

jurisdiction and may consider additional evidence concerning new or previously considered

relief if the requirements for submitting such evidence are met. See Matter of Patel, 16 I&N

Dec. 600, 601 (BIA 1978) (holding that a remand from the Board to an Immigration Judge

is effective for all matters deemed appropriate in the exercise of administrative discretion

“unless the Board qualifies or limits the remand [to] a specific purpose”); see also Bracic

v. Holder, 603 F.3d 1027, 1033 (8th Cir. 2010) (approving of Matter of Patel); Matter

of M-D-, 24 I&N Dec. 138, 141-42 (BIA 2007) (regarding the scope of the Immigration

Judge’s jurisdiction on remand for background checks). While we recognize the need for

judicial economy and appreciate the Immigration Judge’s attempt to correctly follow the

mandates of the prior remand orders from the court and this Board, he was not explicitly

constrained by those orders to abbreviate the application of the asylum regulations,

particularly when the respondent had specifically requested humanitarian asylum.

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in Albania. We must therefore progress further through the regulation’s

provisions—beyond what was necessary to decide Matter of D-I-M-.

A. Humanitarian Asylum

We emphasize that every asylum applicant who arrives at this stage of the

analysis has demonstrated past persecution and thus has proven that

he or she is a “refugee.” Sections 101(a)(42)(A), 208(a)(1) of the Act,

8 U.S.C. §§ 1101(a)(42)(A), 1158(a)(1) (2006).5 However, not all refugees are

eligible to receive asylum in the United States. In particular, those for whom

the presumption of a well-founded fear has been rebutted and who have not

shown any other basis for a well-founded fear of persecution will not qualify

for asylum. See 8 C.F.R. §§ 1208.13(b)(1)(i)–(ii), (2). Nonetheless, because

the regulations provide additional avenues for asylum for an applicant who has

suffered past persecution but who no longer has a well-founded fear,

adjudicators—when presented with a case in this procedural posture—should

consider whether such an applicant is eligible for a humanitarian grant

of asylum under the provisions of 8 C.F.R. § 1208.13(b)(1)(iii)(A) or (B).

We note that an asylum applicant, such as the respondent, bears the burden

of proof to show that either form of humanitarian asylum is warranted.

Specifically, the regulation provides that an applicant who has already shown

past persecution may still be granted asylum, even when the presumption

of a well-founded fear of future persecution has been rebutted, by establishing

either: (1) that he has “compelling reasons,” arising out of the severity of the

past persecution, for being unable or unwilling to return to his country under

§ 1208.13(b)(1)(iii)(A); or (2) that there is a “reasonable possibility” that

he may suffer “other serious harm” upon removal to his country under

§ 1208.13(b)(1)(iii)(B). See also Ben Hamida v. Gonzales, 478 F.3d 734,

740-41 (6th Cir. 2007) (stating that to establish eligibility under either prong,

the applicant must first show that he or she suffered persecution on account

of a protected ground). A grant of asylum under either approach is considered

5

A “refugee” is defined as

any person who is outside . . . [his or her] country . . . and who is unable

or unwilling to return to, and is unable or unwilling to avail himself or herself of the

protection of 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.

Section 101(a)(42)(A) of the Act (emphasis added). Thus, the experience of past

persecution itself renders the respondent a refugee.

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to be a form of humanitarian asylum, but each is distinct. We will consider

each of these forms of asylum in turn.

B. Asylum Based on Severity of Past Persecution

We have previously considered the form of humanitarian asylum currently

set forth in 8 C.F.R. § 1208.13(b)(1)(iii)(A), involving “compelling reasons”

arising out of the severity of the past persecution, which is the first basis for

the Eighth Circuit’s remand in this case.6 For example, in Matter of Chen,

20 I&N Dec. at 21, we stated that even though the applicant did not have

a well-founded fear of persecution, his genuine subjective fear of returning

to his country, his history of mistreatment in the People’s Republic of China,

and the mistreatment and death of his father there were relevant considerations

to his claim. The applicant’s suffering began when he was 8 years old and

continued until his adulthood. He endured considerable physical,

psychological, and social harm, as a result of which he was permanently

physically and emotionally scarred. Based on these humanitarian factors, we

concluded that asylum should be granted in the exercise of discretion.

Similarly, in Matter of B-, 21 I&N Dec. 66, 72 (BIA 1995), we found that

humanitarian asylum was appropriate where an applicant had been imprisoned

for political reasons for some 13 months under “deplorable” conditions. The

applicant faced the routine use of various forms of physical torture and

psychological abuse, including beatings and electrical shocks, inadequate diet

and medical care, and the integration of political prisoners with criminal and

6

This provision for humanitarian asylum was first included in the regulations in 1990

following our decision in Matter of Chen. See Aliens and Nationality; Asylum and

Withholding of Deportation Procedures, 55 Fed. Reg. 30,674, 30,683 (July 27, 1990)

(codified at 8 C.F.R. § 208.13(b)(1)(ii) (1991)). The UNHCR Handbook likewise

recognized that there are situations where a person may have been subjected to very serious

persecution in the past and therefore will not cease to be a refugee, even if fundamental

changes have occurred in the country of origin.

It is frequently recognized that a person who—or whose family—has suffered under

atrocious forms of persecution should not be expected to repatriate. Even though

there may have been a change of régime in his country, this may not always produce

a complete change in the attitude of the population, nor, in view of his past

experiences, in the mind of the refugee.

Office of the United Nations High Commissioner for Refugees, Handbook on Procedures

and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967

Protocol Relating to the Status of Refugees para. 136, at 31 (Geneva, 1992).

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mentally ill prisoners. We recognized that these experiences were likely

exacerbated by his separation from his family and the fact that his missing

father’s fate was unknown.

In Matter of N-M-A-, 22 I&N Dec. 312 (BIA 1998), we noted that

“asylum is warranted for ‘humanitarian reasons’ only if [the applicant]

demonstrates that in the past [he] or his family has suffered under atrocious

forms of persecution.” Id. at 325 (alteration in original) (quoting Kazlauskas

v. INS, 46 F.3d 902 (9th Cir. 1995)) (internal quotation marks omitted). In that

case we declined to extend asylum on a humanitarian basis to an applicant who

had experienced a month-long detention and beatings and had the knowledge

that his father who had disappeared was likely dead. Instead, we found that

the applicant had not demonstrated compelling reasons for being unable

or unwilling to return to his country in light of the degree of harm suffered, the

length of time over which the harm was inflicted, and the lack of evidence

of severe psychological trauma stemming from the harm. Id. at 326. This

approach, which was the only form of humanitarian asylum available when

these cases were decided, is now embodied in 8 C.F.R. § 1208.13(b)(1)(iii)(A).

More recently, in Matter of S-A-K- & H-A-H-, 24 I&N Dec. at 46, we found

the applicants eligible for humanitarian asylum under this provision because

they had suffered “an atrocious form of persecution that results in continuing

physical pain and discomfort.” The claimants in that case had undergone

female genital mutilation in Somalia with aggravating circumstances.

Prior to the regulatory change adding § 1208.13(b)(1)(iii)(B), discussed

below, adjudicators would generally end their analysis of humanitarian asylum

here, considering whether to exercise discretion to grant relief if the requisite

severity of past harm had been shown. However, even after 2001 when the

“other serious harm” provision in the regulation went into effect, adjudicators

and the parties have not always focused on this second avenue for

humanitarian asylum. See, e.g., Precetaj v. Holder, 649 F.3d 72, 75 (1st

Cir. 2011) (parenthetically noting the “other serious harm” provision

as an alternative basis for humanitarian asylum, but citing law that predated

it and discussing only relief based on the severity of past persecution);

Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200-01 (11th Cir. 2009) (noting

both provisions of the regulation but applying only § 1208.13(b)(1)(iii)(A));

Ngarurih v. Ashcroft, 371 F.3d 182, 190 (4th Cir. 2004) (noting both the

“compelling reasons” and “other serious harm” avenues for humanitarian

asylum, but focusing only on the former).7 While such cases may offer

7

We recognize that there may have been independent reasons why a claim of asylum based

on the potential for “other serious harm” was not pursued or considered in these cases.

(continued...)

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guidance under § 1208.13(b)(1)(iii)(A), they do not address the “other serious

harm” aspect of § 1208.13(b)(1)(iii)(B).

C. Asylum Based on a Reasonable Possibility of

“Other Serious Harm”

If an Immigration Judge determines that an asylum applicant has not

demonstrated “compelling reasons” to grant humanitarian asylum, there

remains the additional avenue for relief under 8 C.F.R. § 1208.13(b)(1)(iii)(B)

based on a “reasonable possibility” of “other serious harm.” As with the

“compelling reasons” provision of the regulation, the applicant bears the

burden of proof to show why asylum should be granted on this basis in the

exercise of discretion.8

To date, there has been little legal guidance interpreting the meaning

of “other serious harm” under the regulation. Prior to the 2001 change that

added this provision, the regulation already permitted asylum grants for

“compelling reasons” based on the severity of past persecution, that is, the

so-called “Chen grants.” See Asylum Procedures, 65 Fed. Reg. 76,121,

761,33 (final rule Dec. 6, 2000) (effective Jan. 5, 2001); see also 8 C.F.R.

§ 208.13(b)(1)(ii) (1991). Nonetheless, as the Supplementary Information

to the proposed regulation change states, the Attorney General found that

approach alone to be too limited:

The Department recognizes, however, that the existing regulation may represent

an overly restrictive approach to the exercise of discretion in cases involving past

persecution, but no well-founded fear of future persecution. The Department believes

it is appropriate to broaden the standards for the exercise of discretion in such cases.

7

(...continued)

Moreover, even after the “other serious harm” provision was added to the regulation, it

might not have been construed as a second basis for humanitarian asylum, per se. However,

the regulation sets forth this provision as an equivalent alternative to the traditional Matter

of Chen or “compelling reasons” approach, and we interpret it as a separate basis for

humanitarian asylum.

8

As we indicated in Matter of S-M-J-, 21 I&N Dec. 722, 725 (BIA 1997), “[A]n asylum

applicant should provide documentary support for material facts which are central to his or

her claim and easily subject to verification . . . . If the applicant does not provide such

information, an explanation should be given as to why such information was not presented.”

We also note that adjudicators do not necessarily need to decide if there are “compelling

reasons” to grant humanitarian asylum before considering if a grant of relief is warranted

under § 1208.13(b)(1)(iii)(B) based on “other serious harm.” Asylum applicants who

suffered past persecution should be able to state whether they are pursuing humanitarian

asylum under either or both provisions. However, if relief is denied on one basis, the other

should also be considered.

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Executive Office for Immigration Review; New Rules Regarding Procedures

for Asylum and Withholding of Removal, 63 Fed. Reg. 31,945, 31,947

(proposed Jun. 11, 1998) (Supplementary Information) (emphasis added). This

was the rationale for adding the “other serious harm” language to 8 C.F.R.

§ 1208.13(b)(1)(iii). The changed regulation not only endorsed the approach

to humanitarian asylum that is based on the severity of past harm, but it also

made the consideration of a reasonable possibility of other serious harm

a specific, additional, and separate avenue for relief. Id. (citing the ongoing

civil strife in Afghanistan discussed in Matter of B-, 21 I&N Dec. 66,

as an example of “other serious harm”).

According to the Supplementary Information to the regulation, “other

serious harm” need not be inflicted on account of race, religion, nationality,

membership in a particular social group, or political opinion. 63 Fed. Reg.

at 31,947. However, such harm must be so serious that it equals the severity

of persecution. Mere economic disadvantage or the inability to practice one’s

chosen profession would not qualify as “other serious harm.” Id.

The “other serious harm” provision of the regulation differs in nature from

the “compelling reasons” provision. To be eligible for asylum under 8 C.F.R.

§ 1208.13(b)(1)(iii)(B), an applicant need not show that the harm suffered

in the past was atrocious. Instead, the inquiry is forward-looking. When

considering the possibility of “other serious harm,” the focus should

be on current conditions and the potential for new physical or psychological

harm that the applicant might suffer. While “other serious harm” must equal

the severity of persecution, it may be wholly unrelated to the past harm.

Moreover, pursuant to the regulation, the asylum applicant need only

establish a “reasonable possibility” of such “other serious harm”; a showing

of “compelling reasons” is not required under this provision. We also

emphasize that no nexus between the “other serious harm” and an asylum

ground protected under the Act need be shown.

Therefore, at this stage of proceedings, adjudicators considering “other

serious harm” should be cognizant of conditions in the applicant’s country

of return and should pay particular attention to major problems that large

segments of the population face or conditions that might not significantly

harm others but that could severely affect the applicant. Such conditions may

include, but are not limited to, those involving civil strife, extreme economic

deprivation beyond economic disadvantage, or situations where the claimant

could experience severe mental or emotional harm or physical injury.

Some circuit court cases have provided examples of situations that might

involve “other serious harm.” See, e.g., Pllumi v. Att’y Gen. of U.S., 642 F.3d

155, 162-63 (3d Cir. 2011) (cautioning, where the applicant claimed that

medical treatment in Albania was insufficient to treat his severe injuries,

that while countries’ differing health care standards were not a basis for

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asylum,“it is conceivable that, in extreme circumstances, harm resulting from

the unavailability of necessary medical care could constitute ‘other serious

harm’”); Kone v. Holder, 596 F.3d 141, 152-53 (2d Cir. 2010) (stating that the

Board may consider on remand “whether the mental anguish of a mother who

was herself a victim of genital mutilation who faces the choice of seeing her

daughter suffer the same fate, or avoiding that outcome by separation from

her child, may qualify as such ‘other serious harm’”); Kholyavskiy v. Mukasey,

540 F.3d 555, 577 (7th Cir. 2008) (remanding for consideration of “other

serious harm” if the applicant’s psychiatric medications, which he needed for

functioning, might be unavailable in his country); Mohammed v. Gonzales,

400 F.3d 785, 801 (9th Cir. 2005) (remanding for consideration of possible

“other serious harm” in light of Somalia’s poverty; the decimation of the

applicant’s clan, which left female members like the applicant particularly

vulnerable; and serious ongoing human rights abuses, including the killing

of many civilian citizens in factional fighting); Belishta v. Ashcroft, 378 F.3d

1078 (9th Cir. 2004) (noting the applicant’s possible eligibility for relief under

§ 1208.13(b)(1)(iii)(B) where agents of the former Albanian regime—although

motivated solely by money—reportedly tried to take the applicant’s house,

threatened and harassed both her and her family, shot out her windows, and

left a bomb on her doorstep); cf. Boer-Sedano v. Gonzales, 418 F.3d 1082,

1090-91 (9th Cir. 2005) (finding that a gay man with Acquired Immune

Deficiency Syndrome (“AIDS”), who faced unemployment, a lack of health

insurance, and the unavailability of necessary medications in Mexico to treat

his disease, showed a likelihood of “other serious harm” to make relocation

within his country unreasonable when considered in the context of the “social

and cultural constraints” placed upon his particular social group).

In light of these cases and the need to examine “other serious harm” factors

under the totality of the circumstances in a given situation, we conclude that

such determinations are most appropriately made on a case-by-case basis.

We cite the above cases as examples and do not necessarily endorse any

particular analysis or outcome.

D. Respondent’s Motion To Remand

We now turn to the case before us to address the respondent’s motion

to remand the record. He has raised an issue concerning his psychiatric

treatment—a question that should be first explored by an Immigration Judge.

The Eighth Circuit stated that we should not have ruled on the humanitarian

asylum claim without the benefit of a fully developed record relating

to that claim. The court further stated that the parties should be allowed

to supplement the record on remand. In any case, we note that further

fact-finding may generally be required to determine whether an applicant

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might experience “other serious harm” in his or her country of origin.

However, we have limited fact-finding authority in deciding appeals. See

8 C.F.R. § 1003.1(d)(3) (2011); see also Matter of S-H-, 23 I&N Dec. 462

(BIA 2002). Accordingly, subject to the provisions of the court’s order and

this decision, the respondent’s motion to remand will be granted.

On remand, the Immigration Judge should examine the respondent’s request

for a discretionary grant of humanitarian asylum in light of the severity of his

past persecution to determine whether he has shown “compelling reasons” for

being unable or unwilling to return to Albania. In this regard, relevant factors

include the actual length of the respondent’s internment in the early 1980s,

the severity of the conditions there, and the passage of time following

his release when he lived in his country without much incident until the late

1990s. Moreover, the nature, severity, and duration of the beatings and all

mistreatment that the respondent endured, as well as any aftereffects he may

now suffer, should be considered to determine if “compelling reasons” exist

for granting asylum, notwithstanding the rebuttal of the presumption

of a well-founded fear, as contemplated by 8 C.F.R. § 1208.13(b)(1)(iii)(A).

In addition to the respondent’s experiences in Albania, those of his politically

active brothers may be relevant to the inquiry regarding the severity of the

respondent’s past mistreatment, especially since they have each reportedly

been granted asylum. See Office of the United Nations High Commissioner

for Refugees, Handbook on Procedures and Criteria for Determining Refugee

Status Under the 1951 Convention and the 1967 Protocol Relating to the

Status of Refugees para. 136, at 31 (Geneva, 1992).

If the Immigration Judge finds that the respondent did not demonstrate

“compelling reasons” for granting asylum based on the severity of his past

persecution, he should also determine whether the respondent has established

a “reasonable possibility” that he will suffer “other serious harm” under

8 C.F.R. § 1208.13(b)(1)(iii)(B) in light of the considerations discussed above.

As we previously noted, further fact-finding in this regard may be necessary.

Under either of the regulatory provisions, the respondent has the burden

of proof to show that a grant of humanitarian asylum is warranted, including

whether discretion should be favorably exercised.

ORDER: The respondent’s motion to remand is granted.

FURTHER ORDER: The record is remanded for further proceedings

consistent with the foregoing opinion and the order of the Eighth Circuit and

for the entry of a new decision.

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