By Attorneys Robert L. Reeves and Eric Welsh
The United States is obligated under international law to admit eligible refugees and asylees to the United States when that person’s life or freedom is in jeopardy in their home country as set forth below. Even so, the relief of asylum is not easily awarded. Although asylum is recognized as a basic human right, American immigration laws make the process of applying for asylum demanding and difficult.
In accord with Article 1A of the United Nations Convention Relating to the Status of Refugees, the U.S. Immigration & Nationality Act (“INA”) defines a “refugee” as a person “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 or persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 101(a)(42). “Well-founded fear” is generally understood to require that the applicant personally fear the harm, and that this fear is “objectively reasonable,” meaning that the person deciding the asylum application agrees that the applicant has good cause to fear harm. If the applicant has been persecuted in the past, this past persecution raises a presumption that the applicant will be persecuted in the future.
In addition, an individual applying for asylum must establish that the persecutors are persons acting under government authority (e.g., police, military) or persons that that government has been unable or unwilling to control (e.g., guerilla militants).
An applicant for asylum must prove that the harm feared (or the harm actually experienced) rises to the level of “persecution,” which does not have a strict definition, but has been described by the Ninth Circuit Court of Appeals as “an extreme concept, marked by the infliction of suffering or harm […] in a way regarded as offensive.” Li v. Ashcroft (2004). The applicant need not establish that he or she suffered one particular incident that rises to the level of “persecution,” but rather may show that a series of events that individually may fall short of “persecution” are, considered together, an act of long-term “persecution.” Recently, the Ninth Circuit reversed an Immigration Judge’s denial of asylum for failure to consider the “cumulative harm” to an applicant from Mongolia who had suffered multiple personal confrontations with communist Secret Police, and had been threatened over a period of years with assault, imprisonment, and rape. Javhlan v. Holder (2010). The court found that these threats and the mental anguish that they caused the applicant rose to the level of “persecution.”
Even if the applicant has suffered “persecution” at the hands of the government or forces the government is unable or unwilling to control, the applicant must still establish that the persecutors were motivated to harm the applicant because of one of the protected grounds—race, religion, nationality, political opinion, or membership in a particular social group. The INA states that the protected ground (race, religion, etc.) must be “at least one central reason” for persecuting the applicant. INA § 208(b)(1)(B). Random criminal harms suffered by an individual do not provide a basis for asylum. For example, an individual that is mugged and beaten for money but not because of the individual’s race, religion, or other protected basis, may not qualify for asylum.
The applicant for asylum bears the burden of proving that he or she deserves a grant of asylum. An immigration judge or asylum officer must decide whether an applicant’s testimony is credible, and the judge or officer can make a credibility determination on the basis of the applicant’s demeanor, candor, responsiveness, consistency with prior statements, and the general plausibility of the applicant’s claim. The immigration judge or the officer can request corroborating evidence, even if the judge finds that the applicant is credible. For example, if an applicant claims that he or she suffered a severe beating, the judge may require the applicant to produce medical evidence of treatment or other proof of injury.
Asylum is a complex and thorny area of immigration law that requires extensive credible evidence and careful legal analysis. In addition to the issues discussed, there are several other bars to asylum that must be analyzed, and alternative relief should be considered as well. If you believe you may have a claim for asylum because of past persecution or a fear of persecution in your native country, you should consult with an experienced immigration attorney to assist you in analyzing your claim and applying for relief.
