REFUGEE AND IMMIGRANT PROGRAM
Overview of Asylum Law

June 1998

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 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

• 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

Outside of country of origin

Well-founded fear of future persecution OR

Past persecution

Based on one of 5 grounds--

race
religion
nationality
membership in a particular social group
political opinion

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)

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) 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)

• Past persecution creates a rebuttable presumption of future persecution.
• INS may rebut the presumption with evidence of changed country conditions indicating that there is little likelihood of future persecution.
• BUT even if there is little likelihood of future persecution, asylum may still be granted for humanitarian reasons

E. Based on one of the five enumerated grounds

• None of the grounds are defined by statute
• Attorneys should argue all applicable grounds
• The connection between the persecution and the enumerated ground is critical.

1. Political Opinion

• most commonly invoked
• opinion about something government/persecutor doing or not doing
• persecutor must view the opinion as criticism it will not tolerate and seeks to overcome
• actions of persecutor must be motivated by the applicants possession of the requisite belief (INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812 (1992))

Imputed political opinion:

• opinion attributed to the applicant by the persecutor
• usually attributed by association
• can be erroneously attributed to applicant

Neutrality:

• political neutrality is considered a "political opinion" by BIA, in 9th Circuit
• have to show that decision to remain neutral was a conscious, affirmative choice and that persecution was on account of such neutrality

2. Social Group

Definition:

• membership in a group of persons all of whom share a common immutable characteristic such as sex, kinship, or, in some cases, former military leadership or land ownership. Matter of Acosta
• common characteristic must be one that the members of the group either cannot change or should not be required to change because it is fundamental to their individual identities or consciences.
• Examples include family, clan IN RE H-, Int. Dec. #3276 (BIA 1996) or tribal affiliations

Sexual orientation:

• homosexuals as social group Toboso-Alfonso, Int. Dec. #3222 (BIA 1990) (BIA precedent decision)

Gender-based claims

·         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

• Matter of D.V. - BIA precedent decision. Rape is persecution if based on one of the five enumerated grounds
• Matter of A & Z - Domestic abuse case that 1)looked at harm in terms of human rights norms; 2)government unwilling to control abusive husband; and 30 applicant considered member of social group challenging traditional practices in her society.
• In Re Kasinga - BIA precedent decision. Female genital mutilation case that stated that 1) FGM was persecution; 2) the government of Togo doesnt 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.
• 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. .

F. Ineligibility for Asylum

1. Statutory Bars

These grounds bar an applicant from seeking asylum:

• Firm resettlement (offered permanent residence, citizenship or some type of permanent resettlement)
• Persecution of others (ordered, incited, or assisted in the persecution of others)
• Criminal conduct
  1) convicted of aggravated felony
  2) convicted of particularly serious crime and danger to community (look at nature of conviction, circumstances of crime, sentence, and danger to the community)
  3) ineligible for withholding if there are "serious reasons for considering the alien has committed a serious nonpolitical crime outside the US" (dont 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 "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.