Persecution & Asylum Law

Overview of U.S. Asylum Law & Persecution

Protection of refugees fleeing persecution is the heart of the U.S. Asylum Law. Essentially, one applies for asylum from persecution that he or she faces in his or her native country. A “refugee” is defined in the Immigration and Nationality Act (INA) 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.

An applicant, seeking asylum from persecution in their home country, may apply for asylum if he or she is “physically present in the United States”, or at the border, and may qualify as a refugee either because of having suffered past persecution on account of a protected ground, or because of having a well-founded fear of future persecution, again on account of a protected ground. It is important to know that although anyone retains the right to seek asylum from persecution, not everyone will be granted asylum. Asylum allows one to remain in the United States lawfully with employment authorization. An asylee may be eligible for permanent residence after one year if he or she meets certain criteria. Therefore asylum, as an immigration benefit is not easily attained.

An applicant bears the burden of proof of establishing that he or she is eligible for asylum. This includes any and all evidence of persecution in their native country. Indeed, this requirement has been codified in Section 101(a)(3) of the REAL ID Act, which is applicable to all applications, filed on or after May 11, 2005.

An applicant alleging past persecution has the burden of establishing that:

1. his treatment rises to the level of persecution;
2. the persecution was on account of one or more protected grounds; and
3. the persecution was committed by the government, or by forces that the government was unable or unwilling to control.

Persecution & Asylum Law

Persecution and asylum law allows one to seek asylum from the persecution that they have suffered in their home country. Many countries persecute people based on various characteristics individually and systemically. U.S. asylum law helps persecuted people or groups to achieve freedom from the persecution they undergo and live a much better life in the United States. In order to be granted asylum in the United States, one must first establish that persecution exists.

What Is Persecution And How Do I Establish Persecution

The purpose of this article is to flesh out the complex and elusive term of persecution.

The term “persecution” is not defined by the INA, but it is generally held to be an “extreme concept”, marked by the infliction of suffering or harm in a way regarded as offensive. Persecution covers a wide array of acts and harms, and the determination of what arises to the level of persecution is very fact-dependent.

Forms of persecution

Physical violence

Rape, torture, assault, beatings, arrests and other forms of physical violence or sadistic and degrading treatment have consistently been treated as persecution. That said, the absence of serious bodily injury or long-term effects does not necessarily diminish the validity of a claim.

Torture As Another Form Of Persecution

Torture in itself is disproportionately harsh, and it is inherently and impermissible severe, and therefore such conduct reaches the level of persecution.

Threats

Specific threats of serious harm, especially in combination with actual violence, menacing or other mistreatment may constitute persecution. “threats on one's life, within a context of political and social turmoil or violence, have long been held sufficient to satisfy a petitioner's burden of showing an objective basis for fear of persecution” . Such threats may not be vague or speculative, and the applicant needs to be able to attribute the threats to a particular source. “What matters is whether the group making the threat has the will or the ability to carry it out”.

Detention

Detention and confinement may constitute persecution, when coupled with other harm or violence.

Mental, emotional and psychological harm

Physical harm is not required for a finding of persecution, but it has been long held by the Courts that persecution “may be emotional or psychological, as well as physical”. Emotional trauma, anguish and suffering, suffered by the applicant for asylum may support a finding of persecution.

Substantial economic deprivation

Substantial economic deprivation that constitutes a threat to life or freedom may constitute persecution. Here, the absolute inability to support oneself or one's family is not required, but a “deliberate imposition of substantial economic disadvantage” must be shown. In order to prove, that substantial economic deprivation rises to the level of persecution, the applicant must show that the harm suffered is more than generalized economic disadvantage.

Discrimination and harassment

Persecution generally is more than “mere discrimination, as offensive as it may be”. In extraordinary cases, severe and all-encompassing discriminatory measures can amount to persecution. However, discrimination, in combination with other harms, may be sufficient to establish persecution.

Cumulative effect

Problems and ill-treatments that might not individually rise to the level of persecution may support an asylum claim. The tribunal shall take into account the “totality of the circumstances” in deciding whether a finding of persecution is warranted.

“where an asylum applicant suffers physical harm on more than one occasion, and … victimized at different times over a period of years, the cumulative effect of harms is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of persecution”
“the combination of economic pressure, physical violence and threats against petitioner and her close associates, and the restrictions on the petitioner's ability to practice her religion cumulatively amount to persecution”

A subjective intent of the persecutor to harm or punish an applicant is not required for a finding of persecution.

There is a multitude of additional factors, critical in adjudication of asylum claims, which may affect the finding of whether or not an applicant was persecuted in the past, or holds a well-founded fear of future persecution. One of such factors is the age of the victim of persecution. Injuries to a family are always considered in an asylum case where the events that form the basis of the past persecution claim were perceived when petitioner was a child. Even an infant can be a victim of persecution, even if he has no present recollection of the events.