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Immigration Newsletter

The Fear of Persecution as a Basis for Asylum

Individuals present in the U.S. may apply for asylum, provided they meet the definition of a refugee and are not barred by law from applying for or being granted asylum. A refugee is generally defined as an individual who is able to establish inability or unwillingness to return to the country of one’s nationality, or the country where the individual resided, 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.”

“Persecution” and Asylum

The law does not define “persecution,” but courts have supplied guidance. One federal court of appeals defined it as the infliction of suffering or harm, under government sanction, on those who differ in a way regarded as offensive. The U.S. Supreme Court stated that it must be a “reasonable” fear of persecution. Minor disadvantages and trivial inconveniences typically do not constitute “persecution.”

Generally, the persecution must be perpetrated by the government or a semi-official group, or by persons or groups that the government is unwilling or unable to control. The following are actions that have been found to constitute “persecution”:

  • Physical violence such as rape, torture, assault, and beatings.
  • Threats of serious harm, especially when coupled with other mistreatment.
  • Prolonged detention, especially when coupled with threats or actual harm.
  • Mental, psychological, and emotional harm.
  • Substantial economic threats and deprivation that are a threat to life or freedom.
  • Severe and pervasive discrimination or harassment (lesser discrimination may be relevant, even if insufficient to constitute persecution).
  • Forced abortion or sterilization.

Past and Future Persecution

Eligibility for asylum may be based either upon past persecution or a “well-founded fear of future persecution.” The two can be linked; if past persecution is established, there is a presumption of a credible, well-founded fear of future persecution. The government may rebut the presumption and deny asylum upon a showing of any of the following, by a “preponderance of the evidence:”

  • There has been a change in circumstances such that the applicant can no longer have a well-founded fear of persecution; or
  • The applicant could avoid future persecution by moving to another part of the country and, under all circumstances, it would reasonable to expect the applicant to do so.

Subjective and Objective Fear of Persecution

An applicant for asylum has the burden of proving the credibility of the applicant’s fear of persecution to an Asylum Officer from the U.S. Citizenship and Immigration Services and/or an Immigration Judge. Evidence of the following is commonly introduced:

  • “Subjective fear,” that the applicant is actually afraid of persecution, which may be satisfied by credible, uncontradicted testimony from the applicant; and
  • “Objective fear,” i.e. that the fear is “well-founded,” based upon credible, direct, and specific evidence about the political, cultural, and social milieu in that country to support a reasonable fear of persecution. General civil strife and widespread violence have been held insufficient by themselves. The U.S. State Department publishes reports on conditions in various countries that are admissible as evidence for a showing of objective fear.

Establishing the Existence of Persecution in the Country of Origin

The fear must be persecution of the applicant personally or of a group to which the applicant belongs. Evidence by which this may be shown can include:

  • Actual personal persecution suffered by the applicant.
  • A pattern and practice of persecution aimed at similarly situated persons.
  • Membership in a group that has suffered under a pattern of persecution.
  • Acts of violence and persecution against the applicant’s family and friends, if the pattern of persecution is closely tied to the applicant (the execution of one family member does not necessarily establish persecution of the whole family).
  • Countrywide persecution, although asylum may still be denied if the applicant could escape such persecution by relocating to another part of the country.
  • Flight of the applicant and/or the applicant’s family to escape the persecution.

ConclusionThe grant of asylum is discretionary on the part of the Attorney General, who retains the power to make (or overrule) the final decision. Asylum may therefore be granted, even where a credible fear of persecution is not established. On the contrary, asylum may be denied even after a showing of well-founded fear, since establishing persecution only determines eligibility for, but not a right to, asylum. Therefore, a denial of an asylum application cannot effectively be appealed.

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