Introduction to Series of Articles on "Economic Persecution" Decisions



In order to qualify for asylum, an alien must have been persecuted or have a reasonable fear of persecution in his or her home country on one of five protected grounds. In order for an alien to qualify for withholding of removal, his or her life or freedom must be threatened in his or her home country on one of the same five protected grounds. One way in which an alien may be “persecuted” is through “economic deprivation.” In this article, we will provide a brief overview of the different standards on for economic persecution and then provide links to our full articles examining specific Board of Immigration Appeals (BIA) and Federal appellate court decisions. Before looking at specific decisions, please see our comprehensive article on the development of the adjudicative standards for economic persecution claims since 1961 [see article].

To learn about asylum generally, please see our full article [see category]. To learn about withholding of removal, please see our introductory article on the subject [see article].

Different Standards

Before examining cases, it is important to note the different standards that have dominated economic persecution adjudications over time. We discuss the development of these rules in detail in our full article on the subject [see article]. Here, we will note the standards that we will reference in many of the forthcoming decisions in brief.

Dunat v. Hurney, 297 F.2d 744 (3d Cir. 1961) [PDF version]

The Third Circuit held: “The denial of an opportunity to earn a livelihood in a country such as the one involved here is the equivalent of a sentence to death by means of a slow starvation and one the less final because it is gradual.” 297 F.2d at 746.

Dunat was followed by the United States Court of Appeals for the Seventh Circuit in Soric v. Flagg, 303 F.2d 289 (7th Cir. 1962) [PDF version]. Here, the Seventh Circuit described the Dunat standard as follows:

Economic sanctions so severe as to deprive person of all means of earning a livelihood may amount to physical persecution…” 303 F.2d at 291.

Both Dunat and Soric examined “economic persecution” in the context of the pre-1965 version of the old section 243(h) which provided for withholding of deportation. This statute required the establishment of “physical persecution.” The term “physical” was removed from the statute in 1965. The “physical” requirement does not exist in either the asylum or withholding of removal statutes of today. Nevertheless, despite the change in statutory language and new cases on the issue, the Dunat standard remained relevant for years to come. Dunat was finally recognized as superseded by statute by the Third Circuit itself in Li v. Attorney General of U.S., 400 F.3d 157 (3d Cir. 2005) [PDF version].

Kovac v. Immigration and Naturalization Service, 407 F.2d 102 (9th Cir. 1969) [PDF version]

The Ninth Circuit held in Kovac that “[A] probability of deliberate imposition of substantial economic disadvantage upon an alien for reasons of race, religion, or political opinion is sufficient to confer upon the Attorney General the discretion to withhold deportation.” 407 F.2d at 107.

Kovac addressed the post-1965 version of the old section 243(h), which only required the establishment of “persecution” on a protected ground rather than “physical persecution.” Kovac was cited to more often than Dunat over the ensuing years, although the Federal circuit courts and the Board itself continued to employ different standards when weighing claims of economic persecution,

Matter of Laipenieks, 18 I&N Dec. 433 (BIA 1983) [PDF version]; Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) [PDF version]; and Matter of T-Z-, 24 I&N Dec. 163 (BIA 2007) [PDF version].

In Matter of Laipenieks, 18 I&N Dec. at 457, the BIA explained that persecution may be based on the “imposition of severe economic disadvantage or the deprivation of liberty, food, housing, employment, or other essentials of life.”

Echoing Matter of Laipenieks, Matter of Acosta, 19 I&N Dec. 222 (BIA 1985), held that “[persecution] could also consist of economic deprivation or restrictions so severe that they constitute a threat to an individual's life or freedom.”

The Board would not formally adopt Matter of Laipenieks and Matter of Acosta as its standard for considering claims of economic deprivation until 2007 when, in Matter of T-Z-, it clarified the standard governing the issue. In Matter of T-Z-, the Board held that the “[n]onphysical forms of harm, such as the deliberate imposition of severe economic disadvantage or the deprivation of liberty food, housing, employment, or other essentials of life, may amount to persecution.”

Although the Board's standard in Matter of T-Z- is similar to the Kovac standard, it requires the imposition of “severe” economic disadvantage instead of “substantial” economic disadvantage. The Board considered this standard to be more stringent [see section]. However, the Board's standard in Matter of T-Z- is less stringent than the Dunat standard in that the applicant “need not demonstrate a total deprivation of livelihood or a total withdrawal of all economic opportunity in order to demonstrate harm amounting to persecution.” 24 I&N Dec. at 173. In Mirzoyan v. Gonzales, 457 F.3d 217, 222 (2d Cir. 2006) [PDF version], the Second Circuit had recognized that certain cases that would be denied under one standard may be granted under a less strict standard.

Structure of Articles in the Series

In three articles, we will examine the economic persecution rules as applied to facts in the Board of Immigration Appeals and the First through Eleventh Circuit Courts. In each article, we will examine several precedential decisions regarding economic persecution in the asylum and withholding contexts. In each description, we will identify the ground on which the economic persecution was based and the alien's country of nationality. Because of the different standards that have been applied over time, we will also clarify which standard the court in question relied upon, where applicable.

It is important to note that each case is examined on its own merits. An outcome in any one case does not guarantee a specific outcome in a future case, even if the underlying facts appear to be similar.

The following are our full articles on the subject:

Board of Immigration Appeals Decisions [see article]
First, Second, Third, Fourth, and Fifth Circuit Decisions [see article]
Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuit Decisions [see article]

Before examining the three articles on specific decisions, we would like to remind you to also see our full article on the development of adjudicative standards for economic persecution claims [see article].