The Internal Flight Alternative: Additional Hurdle or Ralistic Option?-The United States' Aproach

The Internal Flight Alternative: Additional Hurdle or Realistic Option?

The United States' Approach

Ruth Khalastchi*

Governments are increasingly introducing restrictions into their asylum policies, laws and practices with the aim of reducing the number of refugees resettled in their territory. The Parliamentary Assembly of the Council of Europe, in its Recommendation 1440 (2000), cautioned against the growing "climate of hostility towards refugees, asylum seekers and other persons in need of international protection in Europe".1 It noted the use of restrictive policies and practices, including the restrictive interpretation of international refugee law and in particular the definition of the term "refugee".2

The trend towards tighter immigration controls is also reflected in the policy and practice of the United States. On 5 January 2001, the US introduced amendments3 to the Department of Justice regulations4 implementing the provisions of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), governing asylum claims.5 The amendments aim, inter alia, to provide new guidelines on the exercise of discretion in determining an applicant's eligibility for asylum when that applicant has been found to meet the definition of refugee based on past persecution. This includes consideration of the asylum-seeker's ability to avoid persecution in his or her home country by relocating to another area of that country ("internal relocation").6

The concept of "internal relocation", most commonly referred to as the Internal Flight Alternative (IFA)7 allows a host state to deny asylum when it determines that the asylum-seeker did not exhaust all possibilities of reaching safety in an area within his or her own country before seeking international protection. Governments are using IFA to justify restricting access to the refugee status determination procedure,8 as well as to deny asylum as part of the determination procedure. Accordingly, in assessing whether an asylum-seeker's fear of persecution is "well-founded", some national courts are focusing on whether the claimant can avail him or herself of a safe place in the country of origin.9

That the practice of considering IFA within the refugee status determination procedure is logical and acceptable is not disputed. In some cases, meaningful protection in a different area of the country may indeed be available to an asylum-seeker, for example, in situations where the individual is being persecuted by a non-governmental entity acting independently of any governmental control or support, and that persecution is proven to be localized. The problem stems however from the lack of uniform and principled application of IFA and its increasingly routine use to deny asylum to an applicant who cannot produce enough evidence to negate the possibility of an internal flight alternative.

This paper looks at the approach to IFA in the United States. It begins with a general overview of the IFA rule. It then considers relevant US case-law and new provisions on internal relocation in recently amended Immigration and Naturalization Service (INS) regulations governing the adjudication of asylum claims. It questions the usefulness of codifying IFA, which ultimately will only serve to create an additional and onerous hurdle within the refugee status determination procedure. The introduction of IFA into INS regulations now means that immigration judges and adjudicators will need to consider this issue in almost all cases, even in cases where the agent of persecution is the government. While in such cases the new rules place the burden of proving the existence of an IFA on the INS, it is argued that even the possibility of an IFA has no place in the determination procedure when the agent of persecution is the government or an entity supported by the state.

Similarly, IFA should not apply to cases involving gender-based persecution, where it is highly unlikely that the victim is able to find protection in an area where the individual non-state actor would not be able to find her. In the preamble of a recently proposed rule focusing on “social group” (and, particularly, gender-based persecution), the INS acknowledged its intention to revisit the IFA rule for certain non-state actor situations. The agency asked for comments, acknowledging that, when domestic violence forms a basis for a persecution claim, the refugee claimant may encounter particular difficulties finding meaningful protection from her persecutor anywhere in the country.10

In sum, the increasingly restrictionist trend adopted by the US, 11 evidenced in particular by the codification of the IFA rule, will only serve to undermine the refugee determination procedure by increasing the hurdles and burdens on both the claimant and the adjudicators, in circumstances which might not necessarily be warranted and helpful. The amendments introduced into the INS regulations might have more appropriately codified the situations where IFA should not apply.

The so-called IFA rule has developed in a somewhat ad hoc manner through international and national jurisprudence,12 academic analyses13 and governmental and intergovernmental policy statements.14 The rule has given rise to problems of interpretation and application by national courts.15 The IFA rule is not specifically defined in the 1951 Convention relating to the Status of Refugees (the Convention),16 or the 1967 Protocol Relating to the Status of Refugees,17 and no official international guidelines exist to ensure uniform application amongst states.

Despite the lack of clear reference to IFA in international legal instruments, it is generally accepted that the concept is implicit in the definition of "refugee" found in article 1 (A) (2) of the Convention.18 In Rasaratnam v. Canada (Minister of Employment and Immigration), the Court held that "a determination of whether or not there is an IFA is integral to the determination of whether or not a claimant is a Convention refugee".19 Implicit in the Convention's definition of refugee is the underlying basis that international protection is required only to the extent that resort to national protection is impossible.20 Whether that national protection extends to the whole territory or only to part of it is immaterial. What is essential is the existence of what Professor J. Hathaway has termed "access to meaningful protection". As expressed by Hathaway: "[…] 'internal protection alternative' analysis should be directed to the identification of asylum-seekers who do not require international protection against the risk of persecution in their own country because they can presently access meaningful protection in a part of their own country. So conceived, internal protection analysis can be carried out in full conformity with the requirements of the Refugee Convention".21

The IFA rule essentially involves an analysis of the risks faced by the asylum-seeker in the proposed site of relocation, and an assessment of the individual's ability to effectively access and assimilate with others in that location. The analysis requires a consideration of both the individual's personal circumstances and the general situation in the country.22 A study on IFA at the University of Michigan Law School led to the publication in 1999 of a set of "guidelines" known as the Michigan Guidelines on the Internal Protection Alternative.23 These guidelines divide the analysis into three parts: (a) does the proposed site of internal protection afford the asylum-seeker a meaningful 'antidote' to the identified risk of persecution? (b) is the proposed site of internal protection free from other risks which either amount to, or are tantamount to, a risk of persecution? (c) do local conditions in the proposed site of internal protection at least meet the Refugee Convention's minimalist conceptualization of 'protection'? A pre-requisite is that the proposed site of internal protection is accessible to the individual i.e. "meaning access that is practical, safe and legal".24 The guidelines also emphasize that there ought to be "a strong presumption against finding an 'internal protection alternative' where the agent or author of the original risk of persecution is, or is sponsored by, the national government".25

In many jurisdictions, including the US, a core element of IFA involves a consideration of the "reasonableness" of the proposed relocation. For example, the New Zealand Refugee Status Appeals Authority has traditionally held that the question of "relocation" had to be addressed in terms of the following two-tiered analysis: (1) Can the refugee claimant genuinely access domestic protection which is meaningful; and (2) is it reasonable, in all the circumstances, to expect the claimant to relocate elsewhere in the country of nationality.26 More recently, however, the Authority has adopted the approach suggested by the Michigan Guidelines, and in doing so has concurred with Professor Hathaway that "[t]here is [therefore] no conceptual basis for the retention of the reasonableness analysis".27

Canadian jurisprudence has also situated the "reasonableness" criterion within a two-stage analysis: (1) "… the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an IFA exists";28 and (2) "… conditions in the part of the country considered to be an IFA must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant for him to seek refuge there".29 Later Canadian cases have interpreted the analysis in terms of an "undue hardship" test i.e. would it be unduly harsh to expect the claimant to move to another, less hostile part of the country?30 This interpretation has also been adopted by the United Kingdom.31 In R v Secretary of State for the Home Department, ex parte Robinson, the UK Court of Appeal noted that "the use of the words 'unduly harsh' fairly reflects that what is in issue is whether a person claiming asylum can reasonably be expected to move to a particular part of the country".32

In an attempt to give substance to the reasonableness criterion,33 the United Nations High Commissioner for Refugees (UNHCR) explained in a 1995 position paper that the test would "in addition to security aspects […] require that basic civil, political and socio-economic human rights of the individual […] be accepted". In a 1999 position paper, UNHCR expands on the relevant considerations: "the claimant's personal profile34 [and] the country's particular political, ethnic, religious and other makeup will be important". As to the country profile, "[e]lements which should be taken into account may include: the existence and legality of government-sponsored population transfer programmes; government policies of segregation or other limitations on freedom of movement and choice of residence; and numbers, ethnicity, religion and related features of others already in the area in question, and the area's absorption capacity".35

Case-law has also shaped the content of the reasonableness criterion.36 For example, in the above-mentioned UK case, ex parte Robinson, the Court held that "[i]n determining whether it would not be reasonable to expect the claimant to relocate internally, a decision-maker will have to consider all the circumstances of the case, against the backcloth that the issue is whether the claimant is entitled to the status of refugee. Various tests have been suggested. For example, (a) if as a practical matter (whether for financial, logistical or other good reason) the 'safe' part of the country is not reasonably accessible; (b) if the claimant is required to encounter great physical danger in traveling there or staying there; (c) if he or she is required to undergo undue hardship in traveling there or staying there; (d) if the quality of the internal protection fails to meet basic norms of civil, political and socio-economic human rights".37 The Australian Federal Court has also emphasized that "if the expectation of relocation is to be regarded as reasonable, there must be satisfaction of the basis norms of civil, political and socio-economic human rights in that relocation. In that regard the Tribunal would have to consider the age of the applicant; his ability to resume life with his family as a free person and not as a person moving from one hiding place to another; and his ability to be able to sustain himself and his family with dignity".38

Storey notes that "[i]n some decisions, however, the criterion has almost appeared to take on a free-standing role and has created considerable confusion".39 He refers to the decision of the Court of Appeal of New Zealand in Butler v. Attorney General, 40 wherein the Court stated: "Rather than being seen as free standing, the reasonableness test in the relocation context must be related to the primary obligation of the country of nationality to protect the claimant […] The reasonableness element must be tied back to the definition of 'refugee' set out in the Convention and to the Convention's purposes of original protection or surrogate protection for the avoidance of persecution….". Similarly, Hathaway and Foster note that "while superficially liberal, the 'reasonableness' test in practice allows decision-makers to assess the asylum-seeker's alternatives in light of their own view of what constitutes 'reasonable' behaviour".41 They argue that such subjectivity is prone to "arbitrariness" and "wide inconsistency between jurisdictions", and accordingly reject the reasonableness test in favour of the principles and approach provided in the Michigan Guidelines.42 As noted above, the New Zealand authorities have been the first to welcome and adopt such an approach.

By contrast, in the United States, case-law and in particular recently amended INS regulations, make it clear that at the core of the IFA analysis is the consideration of whether or not it would be "reasonable" for the claimant to relocate within their country before seeking asylum in the US.

The US Board of Immigration Appeals (BIA or the Board) and the US Court of Appeals have traditionally addressed the issue of internal flight alternative in the context of a determination of whether a threat of persecution exists for an alien "country-wide".

Recalling its earlier cases,43 the Board in re C-A-L, Interim decision: 3305 (BIA 1997)44 reiterated that "an alien seeking to meet the definition of a refugee must do more than show a well-founded fear of persecution in a particular place within a country. He must show that the threat of persecution exists for him country-wide". In that case, the Board found that the claimant, who had served as a soldier in the Guatemalan army and was claiming persecution by the guerillas, failed to establish that he has a well-founded fear of country-wide persecution because he had been able to live safely for more than a year in different areas within Guatemala. In a dissenting opinion, the Chairman, however, cautioned against a quick and liberal application of the IFA test: "…the internal resettlement alternative must be carefully applied. It should not be a routine basis for denying protection to refugees just because they cannot produce evidence to negate every possibility of internal relocation. The test for the internal resettlement alternative is whether, under all the circumstances, internal resettlement is a reasonable possibility".

The Board has also consistently held that the burden of proving country-wide persecution falls on the applicant.45 In re A-E-M, Interim decision: 3338 (BIA 1998),46 the Board found that an alien who failed to rebut evidence from the United States Department of State indicating that the Shining Path guerrilla group operated in only a few areas of Peru, failed to establish a well-founded fear of country-wide persecution in that country.47

The US Courts of Appeals have generally endorsed the BIA's practice of applying a country-wide requirement in asylum cases.48 However, in a series of three Ninth Circuit decisions involving persecution of Sikhs in India by the national police force, the Court of Appeals rejected the country-wide requirement in cases where the asylum-seeker produced evidence of past persecution.

In Singh v Ilchert,49 the Court reversed the BIA's finding that "Singh had a burden to demonstrate country-wide persecution" and that because he was being persecuted in the Punjab area he could safely relocate to another part of India. The 9th Circuit CA held that:

"The BIA erred in requiring Singh to show a threat of country-wide persecution […] The BIA's decision is also contrary to INS regulations that provide that once an applicant has demonstrated that he suffered past persecution, there is a presumption that he faces a similar threat on return […] Under these regulations, once the applicant has established that he experienced persecution in the past, the only relevant question is whether conditions in the country have so changed that the threat no longer exists upon his return. There is no burden on the applicant to show that his past experience reflected conditions nationwide." 50

The Court noted however that although the threat of country-wide persecution was "not relevant" to determining asylum eligibility, "the reasonableness of an applicant's ability to relocate in his or her home country may be considered by the Attorney-General's exercise of discretion in granting or denying asylum as a form of relief". The Court also reaffirmed its opinion in a previous case involving the persecution of a Sikh citizen of India wherein that Court held that "it has never been thought that there are safe places within a nation when it is the nation's government that has engaged in the acts of punishing opinion that have driven the victim to leave the country" (Singh v. Moschorak).51

In the third case involving a Sikh being persecuted for political activities by the Indian police, Singh v Ilchert,52 the Court also reversed a decision of the BIA holding that Singh did not show a "well-founded" fear of future persecution because he did not establish the threat of country-wide persecution. The Court of Appeals reaffirmed that "[o]nce an applicant demonstrates past persecution, we presume a "well-founded" fear of persecution unless the INS can show by a "preponderance of the evidence" that the applicant can no longer have a "well-founded" fear of persecution […] If the INS cannot rebut the presumption of a "well-founded" fear of persecution, then the applicant will be found eligible for asylum". The Court also reiterated its previous holding that where the applicant has established past persecution "evidence that an applicant can reasonably relocate to another part of her home country can only be considered in determining whether to exercise discretion to grant or deny asylum to an eligible applicant", and that where the national government is the persecutor, the applicant is entitled to a presumption that the threat of persecution exists country-wide.53

More recently, in Mazariegos v. Office of the U.S. Attorney General,54the Court of Appeals for the Eleventh Circuit distinguished the reasoning of the Ninth Circuit court in the above-mentioned Singh cases as being "limited to instances of past persecution by the foreign government rather than persecution by a guerilla group or other non-governmental force". The case involved a Guatemalan citizen who applied for asylum in the US on the ground that he had a well-founded fear of persecution due to his political beliefs. He contended that he had been persecuted and feared that he would be again by guerrillas because of his service in the army during Guatemala's civil war. The BIA denied the application on the basis of the country-wide requirement. The Court of Appeals upheld the BIA's decision, holding that "where the alleged persecutors are not affiliated with the government, it is not unreasonable to require a refugee who has an internal resettlement alternative in his own country to pursue that option before seeking permanent resettlement in the United States, or at least to establish that such option is unavailable". The Court considered that Mazariegos' arguments, including "that the guerrillas who assaulted him eight years ago operated throughout the entirety of Guatemala and are poised to attack him again whenever he may go in the country is not backed by specific proof in the record and is presented at too high a level of abstraction". The Court held, despite evidence he provided that the guerrillas had killed his brother in 1998 in a case of mistaken identity, that "this evidence falls short of undermining the persuasive facts supporting the BIA's finding that Mazariegos does not presently face a threat of persecution throughout Guatemala".

By contrast, in Manzoor v. INS,55 also decided in 2001, the Court of Appeals for the First Circuit, held that the BIA had erred by requiring the applicant "to establish that his well-founded fear of future persecution was country-wide after he had shown that he was persecuted in a particular region". In this case however there was evidence of some possible involvement of the government. The petitioner, a Pakistani and member of a political group the Mohajir Quami Movement (MQM), claimed that he was being persecuted for his political beliefs by a faction of that group, the Haqiqi who had split from the main MQM. He further maintained that the Pakistani government collaborate with, and provide support to, the Haqiqi faction, a fact confirmed by State Department reports. Despite finding that Manzoor had demonstrated persecution on account of his political beliefs, the BIA denied the petitioners request for asylum as he could not demonstrate country-wide persecution. The Court of Appeals referring to INS regulations in force when the BIA denied Manzoor's claim held that there was nothing in the regulations to supports the Board's finding that an applicant who has established a well-founded fear of persecution must go on to prove that the threat was country-wide. The Court held that the burden fell on the INS to show that the applicant could reasonably avoid persecution by relocating to another part of the country. It noted also that "a recent amendment to the regulations appears to explicitly allocate the burden of proof to the INS".

The need to demonstrate country-wide persecution; in other words, to negate the possibility of internal relocation, has become increasingly enshrined in the case-law. The Courts appear to be setting a stringent test on applicants in discharging the burden of proof on internal relocation. The cases, however, indicate a clearly differentiated approach to governmental persecution as opposed to persecution by non-governmental entities, a factor that is made explicit in recent amendments to INS implementing regulations.

Under US statutory provisions (Section 208 of the Immigration and Nationality Act (the Act))56 eligibility for asylum is demonstrated once an applicant shows that he or she meets the definition of "refugee" under the Act57 by establishing past persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.58 Once refugee status is established a grant of asylum is determined by the Attorney General in the exercise of discretion.

Consistent with the Act, INS implementing regulations provide that an asylum-seeker who establishes that he or she has suffered past persecution qualifies as a refugee.59 The regulations then describe how the Attorney General is to exercise discretion with respect to an alien who qualifies as a refugee on the basis of past persecution. The regulations also provide that an asylum-seeker who establishes past persecution shall be presumed to have a well-founded fear of future persecution. Where however the applicant's fear of future persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is well-founded.

In 200160 amendments were introduced into INS regulations providing new guidelines on how the Attorney General's discretion should be exercised in cases where past persecution is established, and on the kind of evidence that can be considered in determining whether an asylum-seeker has a well-founded fear of future persecution. The amendments also introduced new factors that could be considered in the determination of whether to grant asylum when an applicant has established past persecution but no longer has a well-founded fear of future persecution.

Prior to the introduction of the amendments, "changed country conditions" was the exclusive basis for rebutting the presumption of a well-founded fear of persecution once past persecution has been established.61 The current regulations now significantly broaden the scope of evidence available to rebut the presumption. The INS needs to show "by a preponderance of the evidence" either that there has been "a fundamental change in circumstances"62 in order to overcome the presumption or that "the applicant could avoid future persecution by relocating to another part of the applicant's country of nationality […] and under all the circumstances, it would be reasonable to expect the applicant to [relocate]".63 The internal relocation provision applies equally to situations where the applicant is trying to establish a well-founded fear of persecution.64 As regards the standard of reasonableness, the regulations provide that:

"208.13 (b)(3) Reasonableness of internal relocation: […] adjudicators should consider, but are not limited to considering, whether the applicant would face other serious harm in the place of suggested relocation; any ongoing civil strife within the country; administrative, economic, or judicial infrastructure; geographical limitations; and social and cultural constraints, such as age, gender, health and social and familial ties. Those factors may or may not, be relevant, depending on all the circumstances of the case, and are not necessarily determinative of whether it would be reasonable for the applicant to relocate."

In cases in which the applicant has not established past persecution, the applicant shall bear the burden of establishing that it would not be reasonable for him or her to relocate, unless the persecution is by a government or is government-sponsored. In cases in which the persecutor is a government or is government sponsored, or the applicant has established persecution in the past, it shall be presumed that internal relocation would not be reasonable, unless the Service establishes by a preponderance of the evidence that, under all the circumstances, it would be reasonable for the applicant to relocate. …"

The INS has justified the amendments on the basis that they reflect the approach taken by the Board and the Courts and are consistent with international instruments and guidance in the UNHCR Handbook. While somewhat of an improvement on the language initially proposed by the INS in 1998,65 the new changes nevertheless mark a significant departure from previous policy and practice. In particular, the new internal relocation rule, which will now need to be considered in most refugee status determinations, has codified an additional hurdle and, in many cases will mean the imposition of an onerous, and possibly insurmountable, evidentiary burden on asylum-seekers who must be prepared to show that an internal flight alternative is not available to them.

Moreover, while the regulations codify a presumption that an applicant's internal relocation would not be "reasonable" if he or she fears his or her national government, this presumption may be rebutted by the INS upon a showing that, “more likely than not,” it would be "reasonable" for the applicant to relocate. Firstly, this approach is not entirely consistent with US case-law, wherein the Ninth Circuit CA in the series of Singh cases mentioned above, held that the question of internal relocation does not arise in establishing asylum eligibility in circumstances where past persecution is established and the persecutor is the government.

Secondly, an analysis based on a "presumption that internal relocation would not be reasonable" for those who fear their national government is still too narrow an approach. There are situations, as demonstrated by the case of Manzoor mentioned above, where persecution is principally by a non-governmental entity, but the government also plays a role. Regional and local governmental authorities might also have country-wide ties.

Thirdly, as argued by authors such as Hathaway, Storey and Frelick, the inherent subjectivity associated with the "reasonableness criterion" has been shown to lead to arbitrariness and confusion within the refugee determination procedure. Moreover, while the Michigan Guidelines require that there be a “strong presumption” that IFA is not applicable when the persecutor is a state-actor, the new regulation allows INS to refute this presumption by merely showing a 51% probability that it would have been reasonable for the applicant to relocate. The Department of Justice might have, more appropriately, codified the clearer and more systematic framework of the Michigan Guidelines, an approach that reflects the "best practice" of state parties,66 and which has been acknowledged and adopted in at least one state.

The IFA analysis involves complex issues of fact and law. While relatively few US cases have involved a consideration of the "internal relocation" rule in the context of a showing that the fear of persecution extends "country-wide" for the applicant, it is now clear, in particular since the IFA rule has become firmly entrenched in INS regulations, that immigration judges and adjudicators will need to consider the rule in almost all cases before them. This will undoubtedly create an additional hurdle within the determination procedure. However, to the extent that IFA might present a realistic option, a systematic and fair approach to its application is imperative. The new amendments introduced into the relevant INS guidelines would have been more helpful had they drawn on the Michigan Guidelines, and situated the IFA analysis not within the "well-founded fear of persecution" test, but within the context of whether or not the asylum seeker can access "protection" that is "meaningful" in an another area within his or her home country.

Ultimately, it would be unfortunate if the increasingly wide application of IFA by national asylum systems ends up “solving” refugee problems by requiring the persecuted to become internally displaces persons (IDPs), who are not protected by the Refugee Convention and remain “trapped” within the countries where they have been persecuted. While not speaking directly to the issue of IFA, recent remarks by US Ambassador Richard Holbrooke reveal one of the most troublesome problems with widening the application of the IFA doctrine. In a statement to the United Nations Security Council on 13 January 2000, Ambassador Holbrooke said, "[…] I hope that all of us would recognize that what we must do is expand the definition of refugee - erode, if not erase, the distinction between a refugee and a person who is internally displaced. Deal with these problems […]".67

* LL.B., LL.M., volunteer attorney for the Hebrew Immigrant Aid Society (HIAS) in New York City. HIAS, which is celebrating its 120th anniversary in 2001, is the organized American Jewish community's international arm for rescue and migration. The author is grateful to Mark Hetfield, HIAS Director of International Operations, for his assistance in the preparation of this paper and for his comments and suggestions on earlier drafts. Comments, criticisms and suggestions for this draft paper are enthusiastically encouraged. Please e-mail them to hiasoverseas@yahoo.com .

1. See Parliamentary Assembly of the Council of Europe, Recommendation 1440 (2000) - Restrictions on asylum in member states of the Council of Europe and the European Union, Assembly debate on 25 January 2000 (3rd sitting) (see Doc. 8598, report of the Committee on Migration, Refugees and Demography) Official Gazette of the Council of Europe, January 2000.

2. Id. para. 3 (ii). In para. 6 (v) (c ), the Parliamentary Assembly "urges the member states to recognize systematically in their refugee status determination procedures […] that asylum seekers should not be required to demonstrate that they have exhausted all possibilities of reaching safety in an area within their own country (the so-called internal flight alternative) before seeking international protection".

3. Final Rule on Asylum Procedures, Federal Register: December 6, 2000 (Volume 65, Number 235) p. 76121 -76138.

5. IIRIRA, Public Law 104-208 (110 Stat. 3009). The IIRIRA significantly amended several parts of the Immigration and Nationality Act, including part 208.

6. On 11 June 1998, at 63 FR 31945, the Immigration and Naturalization Service published a Proposed Rule Regarding Past Persecution, Internal Relocation and Discretion (Past Persecution Rule) to change portions of 8 CFR 208.13 and 208.16.

7. Also known by other names such as the "internal protection principle", the principle of relocation/internal resettlement, and more recently as the "internal protection alternative": see J. C. Hathaway, "International Refugee Law: The Michigan Guidelines on the Internal Protection Alternative", Michigan Journal of International Law, vol. 21, 1999 p. 131 [hereinafter Hathaway 1999].

8. For example, a number of European States, such as Denmark, Germany and the Netherlands, have denied asylum to Iraqi refugees on the basis of the possibility of an internal flight alternative in northern Iraq. On 26 January 1998, the EU General Affairs Council adopted a 46-point Action Plan on the Influx of Migrants from Iraq and Neighbouring countries". Point 7 calls on the Council "in the light of the advice from UNHCR, to consider […] the possibility of identifying safe areas within the region of origin ("internal flight options"). See European Legal Network on Asylum (ELENA), research paper on "The Application of the Concept of Internal Protection Alternative", London, November 1998, up-dated in 2000, European Council on Refugees and Exiles, pp. 6, 29, 33 and 40 [hereinafter ELENA research paper]. See also for a critical analysis of UNHCR's advice regarding the possibility of an internal flight alternative in northern Iraq, Bill Frelick, "Down the Rabbit Hole: The Strange Logic of Internal Flight Alternative", World Refugee Survey, 1999 [hereinafter Frelick 1999].

9. For example, in July 1993 the United Kingdom introduced a rule, HC725 para 180L, now HC395 para 343, which states that an applicant may be refused "if there is a part of the country from which the applicant claims to be a refugee in which he would not have a well-founded fear of persecution and to which it would be reasonable to expect him to go"; see H. Storey, "The Way Ahead: United Kingdom Case Law on the 'Internal Flight Alternative' (IFA)", Refugee and Asylum Law: Assessing the Scope for Judicial Protection, International Association of Refugee Law Judges; Second Conference, January 1997; p. 180.

10. A Department of Justice proposed rule to provide guidance on the definitions of "persecution" and "membership in a particular social group" which has been published in conjunction with the final rule on asylum eligibility (supra. footnote 3) notes that "… when victims attempt to flee the abusive relationship or otherwise assert their independence, abusers often pursue them and escalate the violence to regain or reassert control", and that "[t]hese observations seem to support retaining the presumption of well-founded fear of future persecution for those applicants who have established past persecution by an individual non-state actor in the domestic violence context". Proposed rule on Asylum and Withholding Definitions, Federal Register: December 7, 2000 (Volume 65, No. 236) page 76588 - 76598.

12. For an analysis of the jurisprudence see H. Storey, "The Internal Flight Alternative Test: The Jurisprudence Re-examined", International Journal of Refugee Law, Vol. 10, No. 3, July 1998 (Oxford University Press) p. 499 [hereinafter Storey 1998] and ELENA research paper.

13. See, e.g. J. C. Hathaway, The Law of Refugee Status (Butterworths, Canada, 1991); G. S. Goodwin-Gill, The Refugee in International Law, (2nd edition, Clarendon Press, Oxford, 1996), G. de Moffarts, "Refugee Status and the 'Internal Flight Alternative'", in Refugee and Asylum Law: Assessing the Scope for Judicial Protection, International Association of Refugee Law Judges; Second Conference, Nijmegen, January 9-11, 1997, p.123.

14. See, e.g., Joint Position defined by the Council on the Basis of Article K.3 of the Treaty of European Union on the Harmonised Application of the Term "Refugee" in Article 1 of the Geneva Convention; March 1996; OJ 13 Mar. 1996 No. L63; see also United Nations High Commission for Refugees (UNHCR) position papers, "An overview of protection issues in Western Europe: legislative trends and positions taken by UNHCR", August 1995 and "Relocation Internally as a Reasonable Alternative to Seeking Asylum - (The So-Called 'Internal Flight Alternative' or 'Relocation Principle'), February 1999.

15. See Storey 1998, p. 500; J. C. Hathaway and M. Foster "Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination", background paper prepared for UNHCR's Global Consultations on International Protection, Round Table of Experts, Fall 2001 [hereinafter Hathaway & Foster 2001].

19. Rasaratnam v. Canada (Minister of Employment and Immigration) [1992] 1 FC 706 (CA).

20. See Hathaway 1999, p. 131 quoting the Supreme Court of Canada in Canada (Attorney General) v Ward [1993] 2 SCR 688, 709: "[t]he international community was meant to be a forum of second resort for the persecuted, a 'surrogate', approachable upon the failure of local protection…". See also Hathaway & Foster 2001, pp. 2 and 17.

22. In the Rasaratnam case (supra. footnote 19) at 709, the Court stated that, in order to conclude that an IFA existed, the Immigration and Refugee Board had to be satisfied "on a balance of probabilities that there was no serious possibility of the applicant being persecuted in Colombo, and that in all the circumstances including circumstances particular to him, conditions in Colombo were such that it would not be unreasonable for the Appellant to seek refuge there". [emphasis added]

25. Hathaway & Foster argue that to take the approach that an internal protection alternative (IPA) can never exist if the agent of persecution is the State is "too simplistic, as it fails to consider the different types of government entities and their varying capacity for nation-wider persecution". They recommend a middle ground approach "which takes into account the differences between levels of government, as well as divergences in the degree of governmental implication in the risk of being persecuted." Nevertheless "[w]here, for example, harm is threatened by the police or military of a country, or where the national government actively sponsors or supports the persecutory activities of a theoretically independent agent, there should be a strong presumption against finding an IPA. Indeed, the presumption against IPA in such circumstances may logically be defined as verging on irrefutable"; Hathaway & Foster 2001, pp. 32-33.

26. Refugee Appeal No. 135/92 Re RS (18 June 1993). See also Refugee Appeal No. 523/92 Re RS (17 March 1995) where the New Zealand Refugee Appeals Authority confirmed its two stage formulation.

27. Refugee Appeals No. 71684/99 (29 October 1999). See also Hathaway 1999, p. 140: "If the careful approach to identification and assessment of an 'internal protection alternative' proposed [in the Michigan Guidelines] is followed, there is no additional duty under international refugee law to assess the 'reasonableness' of return to the region identified as able to protect the asylum-seeker".

30. Thirunavukkarasu v. Canada (Minister of Employment and Immigration) [1994] 1 F.C. 589 (C.A.). 31. See Storey 1998, p. 513.

33. According to the UNHCR 1999 position paper "the viability of relocation as an alternative to flight depends also on the reasonableness of the proposed relocation in all the circumstances of the individual case" (supra. footnote 14). This is in conformity with UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status which, in an effort to clarify the Convention definition of "refugee" provides that: "a person will not be excluded from refugee status because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so." [emphasis added]

34. This includes the claimants: age, sex, health, family situations and relationships, ethnic and cultural group, political and social links and compatibility, social or other vulnerabilities, language abilities, educational, professional and work background, and any past persecution suffered and its psychological effects.

37. R. v Secretary of State for the Home Department and Immigration Appeal Tribunal, ex parte Robinson (supra. footnote 32) at para. 18.

38. Al-Amidi v Minister for Immigration & Multicultural Affairs, [2000] FCA 1081 (4 August 2000) at para. 18.

41. Hathaway & Foster 2001, p. 23. See also Frelick, 1999: "Reasonableness, as Alice no doubt would observe, depends on which side of the looking glass one is standing. Viewed from the host country perspective, the risks and dangers to asylum-seekers back in their far away countries may appear less threatening than they do from the perspective of persons who have directly experienced those conditions up close and who fear being sent back through the looking glass to experience them again".

43. See e.g. Matter of Acosta, 1985 BIA LEXIS 2, Interim Dec. 2986, 19 I. & N. Dec. 211, 235 (BIA 1985) ("An alien seeking to meet the definition of a refugee must do more than show a well-founded fear of persecution in a particular place or abode within a country - he must show that the threat of persecution exists for him country-wide."), modified on other grounds, Matter of Mogharrabi, Interim Dec. 3028, 19 I. & N. Dec. 439 (BIA 1987); Matter of Fuentes, Interim Dec. 3065, 19 I. & N. Dec. 658, 663 (BIA 1988). In Matter of R, Interim Dec. 3195, 20 I & N Dec. 621 (BIA 1992), the Board noted that these cases involved claims of nongovernmental persecution and held that "While the issue (of country-wide persecution) will ordinarily arise in these circumstances, it is not limited to such situations. The issue similarly can arise where governmental authorities or those with ties to the government cannot be adequately controlled in one particular area of a country, but individuals can live safely elsewhere in their country of nationality". Referring to paragraph 91 of the UNHCR Handbook, the Board also held that "Th[e] language reflects the concept that, while it is not "always" necessary to demonstrate country-wide fear, it is the exception, rather than the rule, that one can qualify as a refugee without such a showing".

45. Note the dissenting opinion of the Chairman in re C-A-L, (id.): "a refugee who fears persecution from a nongovernmental body should produce some evidence regarding the internal resettlement alternative. However the burden of proof is shared. Once the respondent has made some showing on the internal resettlement alternative, the Immigration and Naturalization Service also should provide evidence on the viability of the alternative".

47. In a dissenting opinion however, Rosenberg, Board Member, on the issue of IFA noted that: "There is no presumption that the absence of affirmative evidence demonstrating that the prosecutor operates nationwide means there is no basis for the victim to have a well-founded fear of persecution […] Even were there is some basis to conclude that persecution would be confined to a local area or when the persecutor is a nongovernmental force, consideration must be given to whether that authority has the inclination and ability to persecute the alien throughout the home country".

48. See Etugh v. INS, 921 F. 2d 36, 39 (3rd Cir. 1990) (no prima facie case for asylum where applicant "failed to allege that he would be persecuted beyond the limited vicinity of his hometown… The scope of persecution [he] alleges is not national…"); Cuadras v. INS, 910 F. 2d 567, 571 n.2 (9th Cir. 1990) (noting that the possibility of internal relocation may be considered in determining a well-founded fear of persecution); Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986) (rejecting asylum claims for aliens who could avoid geographically-localized danger by settling in a different part of the country because "even if [aliens] would face some danger in their hometown … deportation to [their country of origin] does not require [them] to return to the area of the country where they formerly lived"); Albeno-Alarcon v. INS, 2000 US App. LEXIS 1058, (9th Cir. 2000) ("In cases where the BIA is determining whether a well-founded fear of future persecution has been made out, the Ninth Circuit has allowed the burden of proof to be placed on the applicant to show country-wide danger").

50. Id. p. 1511-12. The Fifth Circuit has also deviated slightly from the BIA's approach by ruling that where the foreign government is the alleged persecutor, the INS rather than the asylum-seeker bears the burden of showing that no threat exists country-wide (Abdel-Masieh v INS, 73 F.3d 579, 587 (5th Cir. 1996)).

60. On 5 January 2001 amendments to the Department of Justice regulations implementing the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which governs asylum claims, came into effect. The IIRIRA significantly amended several parts of the Immigration and Nationality Act, including part 208. By Final Rule on Asylum Procedures, Federal Register: December 6, 2000 (Volume 65, Number 235), amendments were made to various parts of the regulations, including section 208.13 Establishing Asylum Eligibility and Section 208.16 Withholding of Removal. See also Proposed Rule on past persecution published in the Federal Register on June 11, 1998, at 63 FR 31945.

61. The regulations, as promulgated in 1990, provided that an applicant who establishes that he or she has suffered past persecution shall be presumed to have a well-founded fear of future persecution unless a preponderance of the evidence establishes that, since the time of the persecution, conditions in the applicant's country of origin have changed to such an extent that the applicant no longer has a well-founded fear of persecution. The regulations further provided that an applicant who has established past persecution, but does not have a well founded fear of future persecution, will be denied asylum unless the applicant demonstrates compelling reasons for being unwilling to return to his or her country of origin arising out of the severity of the past persecution the applicant has suffered (8 CFR 208.13 (b) (i) and (ii)).

62. Section 208.13 (b) (1) (i) (A). According to the INS, the notion of "fundamental change in circumstances" would include "other changes in the circumstances surrounding the asylum claim, including a fundamental change in personal circumstances, […] so long as those changes are fundamental in nature and go to the basis of the fear of persecution" (See Final Rule, supra. footnote 60).

63. Section 208.13 (b) (1) (i) (B). Although IIRIRA was silent on IFA policy, the Department of Justice decided to include a provisions on IFA in its final rule implementing the Act.

65. The 1998 proposed amendments (Proposed Rule on Past Persecution, supra. footnote 60) provided that in cases where past persecution was established the applicant shall be referred or denied asylum if it is established by a preponderance of the evidence that there is not a reasonable possibility of future persecution against the applicant. The rule also proposed to amend the provision regarding the discretionary grant of asylum in circumstances where a victim of past persecution no longer has a well-founded fear of persecution. In this case, the applicant must demonstrate compelling reasons for being unable or unwilling to return to his or her country, or that that there is a reasonable possibility that he or she may suffer other "serious harm." The proposed rule also introduced the notion of "internal relocation" unless "there is a reasonable possibility that the applicant would face other serious harm in the place of potential relocation". The INS noted in the proposed rule that "In the context of a case involving only a fear of future persecution, it is important to note that the requirement of a reasonable possibility of harm throughout the country in question relates to the applicant's eligibility as a refugee and not merely a factor to be considered in the exercise of discretion".

67. Statement by Ambassador Richard C. Holbrooke, US Permanent Representative to the United Nations, on "Promoting Peace and Security: Humanitarian Assistance to Refugees in Africa", Security Council, January 13, 2000.