asylum

The Basics of Applying for Asylum: Persecution in Asylum Lawn

This is piece is part of an ongoing series entitled “The Basics of Applying for Asylum” presented by the Law Office of Hamid Yazdan Panah.

The right to Asylum is guaranteed by the 1951 United Nations Convention Relating to the Status of Refugees and implemented in the 1967 United Nations Protocol Relating to the Status of Refugees.  The United States Congress codified refugee and asylee protection in the year 1980 by passing the Refugee Act.

An important point to remember is that asylum is discretionary, which means that an applicant may not be entitled to asylum, and may have their petition denied even if they are eligible. In exercising their discretion, a judge or asylum officer may take into account a number of factors, including violations of the law, including immigration fraud, as well as criminal acts.
The Immigration and Nationality Act (INA) sets forth the following criteria for asylum eligibility. An individual who meets the international definition of a refugee may qualify for asylum. A refugee is defined as:

 “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, 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.”

In order to be eligible for asylum, an applicant must show at least one of two things:

1.  Past persecution

2.  A “well-founded fear of persecution” 

This past persecution, or fear of future persecution must be based on the five enumerated grounds which include.

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

Accordingly, a member of a ethnic minority that has undergone a systematic genocide in their home country may qualify for Asylum. Also a student who fears to return to his home country after the new government began to crackdown on the political party that he is affiliated with may also qualify for asylum.

It is essential to understand that the applicant must either demonstrate past persecution that they themselves experienced, or must prove why he may face future persecution if they were to return to his country, regardless of whether he or she has experienced any persecution.  An individual may also discuss both grounds, if they have experienced past persecution and are afraid of future persecution as well.

Persecution 

The Board of Immigration Appeals (BIA) has broadly defined persecution as “the infliction of suffering or harm upon those who differ…in a way that is regarded as offensive.” (See Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988).

Threats to a persons well being, life, or freedom are almost always found to be persecution. Physical abuse is also normally found to be persecution.  Also, being subjected to various types of harm that by themselves would not amount to persecution may be considered persecution when they are considered in the aggregate.  These include such things as arbitrary interference in a persons privacy, relegation to substandard dwellings, social and political exclusion, and other forms of direct and indirect pressure.

The persecution must come from either the government, or a group that the government cannot or will not control. An example of this may be systematic abuse by members of the military against a specific political group, or a lack of police protection for battered women. It can also include groups like guerrilla forces, death squads and other paramilitary organizations. In some cases family members which practice child abuse, or female genital mutilation may also be deemed persecutors.

Well Founded Fear of Persecution – The Legal Test

In order to demonstrate a well-founded fear, an individual must demonstrate both a subjective and objective fear of persecution.
This basically means that they must demonstrate that they themselves have a (subjective) fear based on their own understanding, knowledge and experience. They must also show that they have an (objective) fear, based on facts, evidence, and information that is generally known and accepted by the public.

In order to satisfy the subjective requirement the applicant must show that they actually have a fear of returning to their country.

In order to satisfy the objective element, an asylum applicant need only show a reasonable possibility be persecuted. 

The United States Supreme Court has determined that the following is sufficient to establish a well founded fear.

1. “having a fear of an event happening when there is less than 50% chance that it will take place, and

2. “establishing a 10% of being shot, tortured, or [being] otherwise persecuted.”
-See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987)

The applicant can do this in two ways.  (see Matter of Mogharrabi)
1. Present specific facts through objective evidence or through persuasive, credible testimony,
2. Show that given the evidence presented, a reasonable person would experience a fear of persecution.

In Matter of Mogharrabi, the BIA set forth the following four elements which an applicant for asylum must show in order to establish a well-founded fear of persecution:

1. The applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort.

2. The persecutor is already aware, or could become aware, that the applicant possesses this belief or characteristic.

3. The persecutor has the capability of punishing the applicant.

4. The persecutor has the inclination to punish the applicant.

Past Persecution

It is important to establish and document past persecution. If an applicant can show that he was persecuted against in the past, there is a presumption of future persecution. The government than has a burden to rebutting this presumption, and may do this by arguing that the conditions in the country have changed, or other such arguments. This presumption relates only to the fear of harm based on facts that gave rise to the original persecution. So a person cannot claim that the fear future persecution based on a completely different ground of past persecution.

The government may also defeat the well founded fear of persecution by demonstrating that the applicant could relocate to another area of the country in order to escape persecution.

For a complete guide on this issue check ImmigrationEquality. As always it is best to consult with an immigration attorney or local non profit to assess whether you or a loved one may qualify for asylum.

The Basics of Applying for Asylum: Persecution in Asylum Law

This is general information and is not intended as legal advice. Individuals filing for Asylum should obtain legal assistance from a private attorney or non-profit. If you have any question contact an Asylum Attorney or send Hamid Yazdan Panah an email using the contact form below.