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Refugee & Immigrant Program
Overview of Asylum Law
March 2001 Update
Introduction
Asylum is the vehicle through which the US provides protection to aliens who are physically present in this country and who are in danger of persecution if forced to return to the countries from which they fled. The basic idea of asylum is protection, so a grant of asylum allows the persecuted individual to remain here in safety regardless of whether s/he has any other legal means for staying in the country.
Asylum can be brought either as an affirmative application by someone who has not been apprehended by INS, OR as a defense in removal proceedings.
I. Sources of Law for Asylum and Withholding of Removal
A. Statutory Sources
1. Asylum
To be granted asylum, one must meet the US definition of refugee (based on 1951 Convention/1967 Protocol). INA 101(a)(42)(A), 8 USC § 1101(a)(42)(A):
any person who is outside of 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 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.
The 1996 Illegal Immigration Reform and Immigrant Responsibility Act amended the refugee definition to include individuals who resist coercive population control methods. The provision deems these individuals to be persecuted or to possess a well-founded fear of persecution on account of political opinion. No more than 1,000 individuals per year may be admitted under this provision.
Asylum is discretionary under US law. INA § 208(a), 8 USC § 1158(a). Individuals have the right to seek asylum pursuant to Article 14(1) of the Universal Declaration, but have no right to receive asylum.
2. Withholding of Removal
US law also contains the remedy of withholding of removal (INA § 241(b)(3), 8 U.S.C. 1231
The Attorney General may not remove an alien [with certain exceptions] to a country if the Attorney General decides that such aliens life or freedom would be threatened in such country because of race, religion, nationality, membership in a particular social group, or political opinion.
Withholding is a mandatory remedy which requires a higher standard of proof than asylum. An application for asylum is automatically considered a request for withholding as well. A grant of withholding prohibits INS from deporting the individual to the specific country of persecution, but the individual may be deported to another country where they would not face such persecution.
B. Other Sources of Asylum Law
- Asylum regulations (8 CFR §§ 208 et seq.)
- BIA and Appellate Court decisions (IJ/EOIR - BIA - 8th Cir)
Note: The BIA publishes a select number of decisions as precedent decisions. BIA decisions are controlling precedent for asylum unless a federal court overrules. A federal appellate court decision is the rule for that jurisdiction.
- Decisions of Immigration Judges in the Executive Office of Immigration Review.
- Subsidiary sources: UNHCR Handbook and INS Basic Law Manual
II. Elements of US Asylum Law
A. Checklist for Refugee Definition
B. Well-founded Fear
The person must actually fear returning to his or her country, and there must be an objective basis for that fear.
Subjective component - relates to individuals state of mind. Person should demonstrate the s/he genuinely feels fear. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). General dissent or disagreement with a government or the desire for more personal freedom or an improved economic situation, without more, does not satisfy this element.
Objective component - fear must be based on facts. It must be well-founded. INS v. Stevic, 467 U.S. 407 (1984) The applicant should present specific facts through objective evidence or credible testimony. These facts should lead one to conclude that a reasonable person in the applicants circumstances would fear persecution. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987)
Burden of Proof:
- Asylum
In Cardoza-Fonseca, the Supreme Court held that an asylum applicant need only establish that "persecution is a reasonable possibility". The Court stated "one can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." As little as a 10% chance of persecution could constitute a well-founded fear.
- Withholding of Removal
(previously known as Withholding of Deportation) Withholding is a mandatory remedy which requires a higher standard of proof than asylum.
To obtain withholding, the applicant must prove a "clear probability" (or greater than 50% chance) of persecution.
C. Persecution
1. Definition
Persecution is defined as "a showing that harm or suffering will be inflicted upon [the alien] in order to punish her for possessing a belief or characteristic the persecutor seeks to overcome." Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir. 1986)
Definition in Proposed Social Group Regs: The infliction of objectively serious harm or suffering that is experienced as serious harm or suffering by the applicant, regardless of whether the persecutor intends to cause harm.
Harm must be more than harassment. Clearly threats to life and freedom (genocide, slavery, torture, prolonged detention) constitute persecution. Rape, beatings, non-life-threatening violence and physical abuse have also been recognized as forms of persecution.
Grey area:
1) According to the INS Basic Law Manual, persecution could also include: arbitrary interference with privacy, family, home, correspondence; relegation to substandard dwellings; exclusion from institutions of higher learning; enforced social or civil inactivity; passport denial; constant surveillance and pressure to become informant.
2) Economic disadvantage is not enough alone, but may be if severe (denial of opportunity to earn a livelihood) or if coupled with other evidence of persecution.
Determining whether certain mistreatment constitutes persecution also depends in part on the psychological/emotional make-up of the applicant as well as the circumstances of the particular case.
Cumulative incidents may constitute persecution even if each incident alone would not.
2. Individualized Persecution v. Pattern or Practice
Generally have to show applicant was singled out individually for persecution UNLESS can show a pattern or practice of persecution on account of any of the protected grounds against a group or category of persons similarly situated to the applicant and the applicant belongs to or is identified with the persecuted group, so that a reasonable person in the applicant's position would fear persecution
3. Governmental and Non-governmental Persecution
The persecutor must be a government actor or a non-governmental entity which the government is unable or unwilling to control.
Proposed regs would codify existing case law. The harm must be inflicted by a government or person or group that the government is unable or unwilling to control. Also adds that the adjudicator should consider whether a government takes reasonable steps to control infliction of harm and whether the applicant has reasonable access to state protection.
4. Civil War
Acts of war usually are not considered persecution UNLESS harm results from actions that are motivated by the applicant's political opinion (or another of the grounds for asylum).
5. Persecution v. Prosecution
The law is currently in state of flux regarding whether certain government activities constitute legitimate investigation and prosecution or persecution. However, federal courts have found that excessive punishment or punishment imposed without due process can constitute persecution when it is on account of one of the 5 grounds.
6. Country-wide Persecution
Final asylum regs (1/5/01) (8 CFR sec. 208.13(b)(2): If government not the persecutor, applicant must prove that internal relocation is unreasonable. Therefore, asylum applicant must show that persecution exists for him or her country-wide.
D. Past Persecution
Past persecution can establish eligibility for asylum, even without showing a likelihood of future persecution. This differs from international refugee law.
Matter of Chen, Int. Dec. No. 3104 (BIA 1989) sets forth shifting presumptions:
However, new asylum regs (8 CFR sec. 208.13(b)(1) make a number of restrictive changes including (a) If the applicants fear of future persecution is unrelated to the past persecution the applicant bears the burden of establishing the fear is well-founded. (b) the creation of additional grounds for discretionary denials of asylum in past persecution cases, including (i) where there has been a fundamental change in circumstances such that the applicant no longer has a well founded fear of persecution, and (ii) where internal relocation was reasonably possible. The humanitarian grant based solely on past persecution if person can demonstrate a reasonable possibility of other serious harm if returned.
E. Based on one of the five enumerated grounds
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None of the grounds are defined by statute
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Attorneys should argue all applicable grounds
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The connection between the persecution and the enumerated ground is critical.
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New social group regs would require applicant to establish that the applicants protected characteristic is central to the persecutors motivation to act against the applicant. (in contrast with current law that recognizes the persecutor may have mixed motives.
1. Political Opinion
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most commonly invoked
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opinion about something government/persecutor doing or not doing
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persecutor must view the opinion as criticism it will not tolerate and seeks to overcome
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actions of persecutor must be motivated by the applicant=s possession of the requisite belief (INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812 (1992))
Imputed political opinion:
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opinion attributed to the applicant by the persecutor
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usually attributed by association
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can be erroneously attributed to applicant
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codified in proposed regs as on account of what the persecutor perceives to be the applicants race, religion, nationality, membership in a particular social group or political opinion.
Neutrality:
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political neutrality is considered a Apolitical opinion@ by BIA, in 9th Circuit
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must show that decision to remain neutral was a conscious, affirmative choice and that persecution was on account of such neutrality
2. Social Group
Definition:
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Proposed regs based on Acosta: Social group composed of member who share a common immutable characteristic such as sex, kinship, or past expericence, that a member cannot change or that is so fundamental to the identity or conscience of the member that he or she should not be required to change it. Examples include family, clan In Re H-, Int. Dec. #3276 (BIA 1996), or tribal affiliations
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Proposed social group regs also list six factors which may be relevant but are not required: 1) Members of the group are closely affiliated; 2) Members are driven by a common motive or interest; 3) Voluntary associational relationship exists; 4) Societal faction or recognized segment of population; 5) Members view themselves as members; 6) Society distinguishes members of the group for different treatment or status.
Sexual orientation:
Gender-based claims
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Fatin v. INS - 12 F.3d 1233 (3rd Cir. 1993) stated in dicta that Iranian women who refuse to conform to gender-based persecution government=s gender-specific laws and social norms could be a social group
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Matter of D.V. - BIA precedent decision. Rape is persecution if based on one of the five enumerated grounds
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In Re Kasinga - BIA precedent decision. Female genital mutilation case that stated that 1) FGM was persecution; 2) the government of Togo doesn=t protect women and children from FGM; and 3) applicant was a member of a particular social group made up of women of her tribe who have not undergone FGM and who oppose the practice.
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Matter of Offei - (IJ, Philadelphia Jan. 13, 1998) Immigration Judge found that women of Ghana who have been subjected to or face being subjected to the practice indentured sexual slavery (Trokosi) and who oppose the practice constitutes a particular social group. The Judge granted asylum to Offei since she possessed a well-founded fear of persecution based on her prior enslavement.
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Also cases granting asylum based on discriminatory social norms, honor killings, and forced marriage/polygamy.
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Matter of R-A- - BIA precedent decision reversing asylum grant to Guatemalan woman fleeing domestic violence. Attorney General Reno vacated decision and remanded to BIA for reconsideration once social group regs final. Proposed social group regs make it clear that domestic violence can be grounds for asylum if government unwilling or unable to protect individual from persecution.
F. Ineligibility for Asylum
1.Statutory Bars
These grounds bar an applicant from seeking asylum:
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Firm resettlement (offered permanent residence, citizenship or some type of permanent resettlement)
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Persecution of others (ordered, incited, or assisted in the persecution of others)
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Criminal conduct
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convicted of aggravated felony
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convicted of particularly serious crime and danger to community (look at nature of conviction, circumstances of crime, sentence, and danger to the community)
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ineligible for withholding if there are Aserious reasons for considering the alien has committed a serious nonpolitical crime outside the US@ (don't need conviction)
2. Discretionary Bars
Even if applicant has a well-founded fear of persecution, asylum may be denied as a matter of discretion. In the absence of adverse factors, asylum should be granted. Applicant should present evidence supporting the favorable exercise of discretion.
3. One-year Filing Deadline
Beginning on April 1, 1998, asylum-seekers are required to apply for asylum within one year of arrival in the US. INS regulations provide that Athe one-year period shall be calculated from the date of the alien's last arrival in the United States or April 1, 1997, whichever is later.@ 8 CFR 208.4(a)
Exceptions to the deadline may include Achanged circumstances@ (country conditions or changes in objective circumstances relating to eligibility) and Aextraordinary circumstances@ beyond the applicant's control which lead to a failure to file within the time period.
Final asylum regs (8 CFR sec. 208.4) make some clarifications and improvements, including confirming that applicants who had lawful status or parole qualify for filing deadline exception.
V. Other Forms of Relief When Asylum is Not an Option
In cases when an individual is ineligible or barred from applying for asylum, relief may be available under withholding of removal or Article 3 of the Torture Convention.
A. Article III, Convention Against Torture
In November 1994, the United States became a full party to the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Torture Convention) (Opened for signature February 4, 1985, G.A. res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984), modified in 24 I.L.M. 535 (1985)). Article 3 of the Torture Convention prohibits the United States from returning ("refouler") a person to a country where there are substantial grounds for believing that the person may be in danger of torture.
Article 3 differs from asylum and withholding of removal in several ways. First, there are no exceptions to this form of relief if there is evidence that the person will more likely than not be subjected to torture. Second, the torture does not have to be on account of "race, religion, nationality, membership in a particular social group or political opinion. Third, the torture must be carried out by a government or an individual who is acting on behalf or with the acquiescence of the government (this has not discouraged practitioners from bringing cases where the persecutors are nongovernmental actors). Finally, Article 3 focuses on the likelihood that the person will be tortured in the future.
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