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In the credible fear interview, the burden of proof to demonstrate credible fear is on the applicant. [6] There is no presumption in favor of credible fear. [7] The transcript of the credible fear interview is part of the applicant's asylum file and may be used by an Immigration Judge later when deciding whether to grant the applicant asylum. [1]
A "burden of proof" is a party's duty to prove a disputed assertion or charge, and includes the burden of production (providing enough evidence on an issue so that the trier-of-fact decides it rather than in a peremptory ruling like a directed verdict) and the burden of persuasion (standard of proof such as preponderance of the evidence).
Here, the legal burden of proof of removability falls on the prosecution. [2] [3] Regardless of the category, if the alien is claiming any relief from removal (such as asylum or cancellation of removal) the legal burden of proof for demonstrating eligibility for that relief falls on the alien. [3]
Applicants have the burden of proving that they are eligible for asylum. To satisfy this burden, they must show that they have a well-founded fear of persecution in their home country on account of either race, religion, nationality, political opinion, or membership in a particular social group. [53]
A legal burden is determined by substantive law, rests upon one party and never shifts. [5] The satisfaction of the evidential burden has sometimes been described as "shifting the burden of proof", a label which has been criticized because the burden placed on a defendant is not the legal burden of proof resting on the prosecution. [6]
The burden of proof is usually on the person who brings a claim in a dispute. It is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit , a translation of which in this context is: "the necessity of proof always lies with the person who lays charges."
Particularly serious crime in the Immigration and Nationality Act (INA) of the United States is a predecessor of the current aggravated felony. [1] [2] The term "particularly serious crime" was coined for the first time when the U.S. Congress enacted the Refugee Act in 1980.
The burden of proof issue is a difficult one which is somewhat mitigated by the fact that the court finds breaches in failures to investigate. Thus if a death occurs the state is obligated to investigate it, which it is unlikely to do where one of its agents is responsible, thus there is a breach.