REFUGEE AND IMMIGRANT PROGRAM
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
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 persons 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.
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
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.
II. Elements of US Asylum Law
A. Checklist for Refugee Definition
Outside of country of origin
Well-founded fear of future persecution OR
Based on one of 5 grounds--
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:
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 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.
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)
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.
1) Persecution could also include (from INS Basic Law Manual): 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.
4. Civil War
Acts of war usually are not considered persecution UNLESS harm results from actions that are motivated by the applicants 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 response to one of the 5 grounds.
6. Country-wide Persecution
Asylum applicant must show that persecution exists for him or her country-wide. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) The critical factor is ability of persecutor to carry out its threat throughout the country. Some courts have presumed the ability of governmental entities to persecute nationwide.
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)
E. Based on one of the five enumerated grounds
1. Political Opinion
Imputed political opinion:
2. Social Group
· Fatin v. INS - 12 F.3d 1233 (3rd Cir. 1993) stated in dicta that Iranian women who refuse to conform to gender-based persecution governments gender-specific laws and social norms could be a social group
F. Ineligibility for Asylum
1. Statutory Bars
These grounds bar an applicant from seeking asylum:
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 "the one-year period shall be calculated from the date of the aliens last arrival in the United States or April 1, 1997, whichever is later." 8 CFR 208.4(a)
Exceptions to the deadline may include "changed circumstances" (country conditions or changes in objective circumstances relating to eligibility) and "extraordinary circumstances" beyond the applicants control which lead to a failure to file within the time period.
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.