In a follow up decision to last month's opinion in Rodriguez-Molinero v. Lynch, Judge Posner has again eviscerated the evidentiary requirement that an applicant prove a greater than 50% chance of harm.  Though Rodriguez-Molinero arose in the context of a Convention Against Torture application, and this decision arose in the context of a withholding of removal application, the Court reiterated its belief that the "more likely than not" standard cannot be literally interpreted to require a greater than 50% chance of harm.

"Against all this it can be argued that while the evidence indicates danger to Gutierrez-Rostran if he is returned to Nicaragua, it does not indicate that he is “more likely than not” to be persecuted if he is sent there, which the Supreme Court in INS v. Stevic held is the standard of proof for withholding of removal. That of course is the normal civil standard of proof. But it can’t be taken literally in the immigration context. In an ordinary civil case there are witnesses, lay and/or expert, on both sides of the case, and likewise documentary evidence. But in the usual withholding-of-removal case, including this case, the only evidence is presented by the alien—and the immigration judge appears to have deemed that evidence credible. 

What is missing in a case like this are data that would enable a rational determination of whether there was a greater than 50 percent probability that the alien would lose his life or his freedom if removed to his country of origin. The first step in such an inquiry would be to define the endangered group (obviously not all the Nicaraguans who voted for PLC or PLI candidates) and the second to determine what percentage of them have lost their life or freedom at the hands of the Sandinistas, and also whether that percentage is growing or declining (or not changing). The immigrant is required to present evidence that he faces a significant probability of persecution if he is removed to his country of origin, and Gutierrez-Rostran did present such evidence, as we have seen. He could not be expected to quantify the probability of his being persecuted or killed should he be removed to Nicaragua. The data that would enable such quantification appear not to exist, because to be reliable they would have to specify all persons who had characteristics similar to those of the applicant for withholding of removal and how many of them had been killed or persecuted because of those characteristics. If such data do exist somewhere, the immigration authorities or the State Department may have access to them, but there is no indication of that."

Once again, Judge Posner is very astute in recognizing the realities of Immigration Court and limitations on an applicant's ability to provide evidence.

The full test of Gutierrez-Rostran v. Lynch can be found here: