deSeguin Immigration Law llc
asylum in the United States
When you are seeking asylum, you have the burden to prove that you have a genuine fear of persecution (harm or suffering), that your fear is not only genuine but reasonable, that the harm or suffering would be inflicted on you either by your government or by a group your government cannot or will not control, that the harm or suffering amounts to persecution and not just harassment or discrimination, and that one central reason for the harm or suffering is based on your race, religion, nationality, membership in a particular social group, or political opinion. You must also show that you do not face any mandatory bars that prohibit a grant of asylum.
The Immigration and Nationality Act (INA) is the source of the statutory law regarding asylum. See INA § 208; 8 § CFR 208. To be eligible for asylum in the United States, an asylum seeker must be present in the United States and meet the definition of a refugee:
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. See INA § 101(a)(42)(A); 8 USC § 1101(a)(42)(a).
A place to breathe.
Political asylum provides protection, a place to breathe, a place to live. When granted, it puts you on the path to US citizenship. The requirements for asylum are based on the legal meaning of the terms in the refugee definition provided above.
Definition of Persecution
Persecution is not defined in the asylum law written by our Congress. The Board of Immigration Appeals broadly defined persecution to mean “harm or suffering that is inflicted upon an individual in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome.” Matter of Acosta 19 I&N Dec 211, 222 (BIA 1985). While mere harassment and discrimination do not amount to persecution, threats to life and freedom generally do. Physical abuse, beatings, torture, arrest, forced abortions, rape and genital mutilation often constitute persecution. Incidents of harm and suffering that do not, when viewed individually, rise to the level of persecution, may constitute persecution when considered cumulatively.
Well-founded Fear and Past Persecution
The well-founded fear element of the asylum case involves both a subjective and an objective component. To satisfy the subjective component, you, as an asylum seeker, must have a genuine fear of returning to your country. The objective component requires that your fear is reasonable under the circumstances. The BIA has stated that an asylum applicant must establish (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; and (4) the persecutor has the inclination to punish the applicant. Matter of Mogharrabi, 19 I&N Dec 439, 446 (BIA 1987); INS v Elias-Zacarias 112 US 812 (1982). That belief or charcteristic can be your religious beliefs, your political opinions, your race, nationality, or particular social group.
The US Supreme Court clarified that even “a 10% chance of being shot, tortured or otherwise persecuted” is sufficient to establish a well-founded fear. INS v Cardoza-Fonseca 480 US 421 (1987).
A well-founded fear of future persecution can also be established by showing past persecution. When you can establish you have suffered past persecution, you benefit from a rebuttable legal presumption of a well-founded fear of future persecution. 8 CFR §208.13(b)(1); Matter of Chen 20 I&N Dec 16 (BIA 1989) The burden then shifts to the government to show that conditions have changed sufficiently in your country such that your fear of future persecution is not well-founded or you would be able to escape the persecution by moving to another area of your country. 8 CFR § 208.13(b)(1)(i). However, even if the government is able to rebut the legal presumption, you may still qualify for asylum based on the severity of the past persecution or because you would face other harm (unrelated to the persecution) if you were to return to your country. 8 CFR § 208.13(b)(1)(iii).
The persecution asylum seekers fear must be either from their government or from a group their government will not or cannot control.
Asylum is not available to protect individuals from legitimate government prosecution for criminal activity, from the dangers of war or general civil strife, or from the threat of a purely personal vendetta or grudge. To be eligible for asylum, asylum seekers must show that race, religion, nationality, membership in a particular social group, or political opinion “was or will be at least one central reason” for the persecution. INA § 208(b)(1)(B)(I).
- Race: See UNHCR Handbook ¶ 68. Broad meaning. (ie: a Fulani in Mauritania.)
- Religion: Serious discrimination because of your membership in a particular religion or religious community may constitute persecution on account of religion. (A Christian in Iran; an Alevi in Turkey; an Ahmadi in Pakistan.)
- Nationality: See UNHCR Handbook ¶ 74. Includes not just citizenship, but may include ethnic or linguistic group and may overlap with race. (ie: Kurdish individual in Turkey, Iran, or Syria.)
- Political Opinion: Actual or “imputed”
- Social Group: This is a developing area of the law, some of which has been reversed by former US AG Jeff Sessions.
Certain asylum seekers, who might otherwise qualify for a grant of asylum, are refused asylum in the United States based on certain statutory bars. Even if you do not qualify for asylum, because of one of these mandatory bars, you might be eligible for protection under the Convention Against Torture or through Withholding of Removal.
- Asylum seekers who did not file within one year of arrival in the US, unless they can show changed or extraordinary circumstances that lead to their late filing, are barred from asylum. INA §208(a)(2)(B), 8 CFR §§ 208.4, 208.34.
- Asylum seekers who were previously denied asylum are barred from asylum, unless changed circumstances exist. INA § 208(a)(2)(C)
- Asylum seekers who participated in the persecution of others are barred from asylum protection. INA § 208(b)(2)(A)(i); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
- Asylum seekers convicted of a particularly serious crimes in the US are barred from asylum. INA § 208(a)(2)(A)(ii); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
- Asylum seekers who committed serious, nonpolitical crimes outside the US are barred from asylum. INA § 208 (a)(2)(A)(iii); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
- Asylum seekers who pose a danger to the security of the U.S. are barred from asylum. INA § 208 (a)(2)(A)(iv); 8 CFR §§ 208.13(c)(1), 1208.13(c)(1)
- Asylum seekers who are described in INA §212(a)(3)(B)(i)(I)-(IV), or (VI) or §237(a)(4)(B) – relating to terrorist activity and support are barred from asylum, except for certain waiver provisions.
- Asylum seekers who have been firmly resettled in another country prior to arriving in the United States are barred from asylum. INA § 208(b)(2)(A)(vi); 8 CFR §§ 208.13(c)(2)(i)(B), 208.15.
- Asylum seekers who may be removed to a safe third country pursuant to a bilateral or multilateral agreement. INA § 208(a)(2)(A).