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Background

Under United States Immigration law, individuals who have suffered persecution or who have reasonable fear of future persecution because of their religion, race, political opinion, nationality, or membership in a particular social group may be eligible to apply for asylum. The groundwork for asylum protections was laid by the 1951 United Nations Conventions Relating to the States of Refugees. It was implemented by the 1967 United Nations Protocol Relating to Status of Refugees. In the United States, Congress codified the protections for asylees and refugees with the 1980 Refugee Act.

Individuals who want to apply for asylum must be physically present inside the United States at the time of application. They must also be able to demonstrate past persecution or show well-founded fear of persecution in the future in their country of origin because of their race, religion, nationality, membership in a particular social group, or political opinion. To qualify for asylee status, the persecution must be perpetrated by the origin country’s government or by a group of people that the government is unable or unwilling to control. If the individual is able to relocate within the country of origin or was firmly resettled in another country, they may not be eligible for asylum in the United States. Asylum is considered a discretionary benefit, which may be affected by the adjudicator considering negative factors such as potential immigration or criminal law violations.

Being granted asylum brings a variety of significant benefits to the asylee. They cannot be removed from the United States unless they violate their status, commit a serious crime, or if the U.S. government can demonstrate that a “fundamental change in circumstances in the home country relating to the original claim…” has taken place and the asylee would no longer be in danger if they returned. Asylees immediately gain authorization to begin working, and they may apply to become a Lawful Permanent Resident (LPR) after they have held asylee status for one year. Within the first two years of being granted asylum, the asylee may also submit petitions to grant their spouse and unmarried children under 21 asylum status. Children must have been unmarried and under 21 when the U.S. government received the original asylum application from the principal applicant.

Affirmative asylum requests are adjudicated by the Department of Homeland Security (DHS), working through the U.S. Citizen & Immigration Services (USCIS). Asylum applications that are pending in removal proceedings are the jurisdiction of the Department of Justice (DOJ), through the Executive Office for Immigration Review (EOIR).

Jurisdiction Over Asylum Applications

There are two ways to apply for asylum, and the jurisdiction over the application changes depending on how it is done. Those who are not in removal proceedings are said to apply for asylum affirmatively, and their applications will be processed by the USCIS regardless of how they entered the United States or their current immigration status. Applicants who are denied by the USCIS and are found to be in the U.S. illegally will be referred to the immigration court for removal proceedings. Jurisdiction over asylum applications during removal proceedings shifts to the immigration court.

Few exceptions exist under this rule. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) grants the Asylum Office initial jurisdiction over asylum applications that are filed by any individuals who were previously classified as unaccompanied alien children, as long as that individual’s status has not been rescinded by the DHS. Unaccompanied alien children are those without legal U.S. immigration status, who have not reached 18 years of age, and who are without a legal guardian or parent in the United States. 6 U.S.C. § 279(g)(2). If the status is not rescinded, this jurisdiction still applies to those individuals who are no longer children, have been reunited with parents or legal guardians, and/or are in removal proceedings already. The TVPRA has been in effect since March 23, 2009.

Individuals arrested by the DHS or placed in removal proceedings in any way (such as by referral from USCIS) may apply for defensive asylum. This is filed through the immigration court and is used as a defense against removal proceedings from the U.S. The immigration court has exclusive jurisdiction over defensive asylum applications.

Legal Test for Asylum or Refugee Protections

According to the Immigration and Nationality Act (INS), individuals intending to apply for asylee status must meet the requirements of a legal test for asylum eligibility. Individuals who meet the definition of a refugee may also be granted asylum. Refugees are legally defined 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.”

INA §101(a)(42)(A). Individuals may also be eligible for asylum if they can demonstrate:

  • Well-founded fear
  • Of persecution
  • Inflicted by their origin country’s government or an entity the government will not or cannot control
  • On account of their race, religion, nationality, membership in a particular social group, or political opinion (the five protected grounds)
Legal Test for Well-Founded Fear

To demonstrate “well-founded” fear of persecution, individuals applying for asylum must show a reasonable possibility that they will be persecuted. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). If the applicant can demonstrate that there was government persecution, or persecution by an entity that will not or cannot be controlled by the government, based on one of the five protected grounds then that applicant has met the test and established grounds for well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1).

In addition, if the applicant can demonstrate a well-founded fear of possible future persecution by the government, or by an entity the government will not or cannot control, based on one of the five protected grounds then that applicant may be eligible for asylum. 8 C.F.R. § 208.13(b)(2); Ayele v. Holder, 564 F.3d 862, 868 (7th Cir. 2009).

Based on statements by the Supreme Court, the following are sufficient to establish well-founded fear:

  • “having a fear of an event happening when there is less than a 50% chance that it will take place, and
  • “establishing a 10% chance of being shot, tortured, or…otherwise persecuted.” Cardoza-Fonseca, 480 U.S. 421.
Definition of Persecution

Persecution is not strictly defined by either the INA or the regulations accompanying it. Federal courts and the Board of Immigration Appeals (BIA) use the broad definition of persecution as “the infliction of suffering or harm upon those who differ…in a way that is regarded as offensive.” Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988); Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

The Ninth Circuit’s definition of persecution is “an extreme concept, marked by the infliction of suffering or harm…in a way regarded as offensive.” Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004). Threats to freedom or life are uniformly defined as persecution. In many cases, physical abuse, even if it is not life-threatening, can be considered persecution. Permanent or serious injury is not required for persecution to be defined as legitimate. Matter of O-Z- & I-Z-, 22 I&N Dec. 23, 25-26 (BIA 1998).

Harassment and discrimination alone are not generally considered to be persecution. Khouassany v. INS, 208 F.3d 1096, 1100-1101 (9th Cir. 2000) (asylum denied to shop owner who was repeatedly brought to the office of secret police but never physically harmed); Wakkary v. Holder, 558 F.3d 1049, 1059-1060 (9th Cir. 2009) (Chinese Christian in Indonesia who was beaten by youths, robbed, and threatened suffered discriminating treatment but no evidence of persecution). But see Duarte de Guinac v. INS, 179 F. 3d 1156 (9th Cir. 1999) (reversing BIA finding of discrimination where Quiche Indians were physically abused by Guatemalan Army).

Government Actor

Applicants cannot be found to qualify for asylum unless the persecution originated from their origin country’s government, a quasi-official group, or any group or persons that the government is unable or unwilling to control. See Avetovo-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). Applicants may be able to establish eligibility for asylum by demonstrating persecution from a group, or society at large, that is tolerated by the government (such as abusive spouses, paramilitary groups, or women performing female genital mutilation). They may also establish eligibility because of persecution caused by groups too powerful to be controlled by the government (such as guerilla groups, cartels, and gangs).

The Board of Immigration Appeals previously found an applicant to have established eligibility for asylum because of persecution from a non-government group even though government protection was not requested, based on the understanding that requesting governmental help would have placed the applicant in greater harm and the understanding that the government would have been unable or unwilling to control the group. Matter of S-A-, 22 I&N Dec. 1328, 1335 (BIA 2000).

The Nexus

Applicants must demonstrate that there is a strong connection between the persecution and at least one of the protected grounds of asylum (race, religion, nationality, political opinion, or membership in a particular social group). They are also required to show that the protected ground or grounds “was or will be at least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i). To meet this requirement of “one central reason”, applicants should clearly highlight all circumstantial and direct evidence to demonstrate a clear nexus between their persecution and the protected grounds

Providing evidence of a connection between persecution and the applicant’s protected grounds is not the same as establishing that the applicant holds that protected status. Establishing whether the applicant qualifies for one of the five protected grounds is a separate matter from connecting that belonging to the past or feared future persecution. For example, demonstrating that the applicant holds a particular political belief is not the same as demonstrating they were persecuted or have a reasonable fear of persecution based on that belief.

The Five Protected Grounds for Asylum

There are widely accepted definitions for the first three protected grounds of asylum (race, religion, nationality). The final two grounds (political opinion and membership in a particular social group) are more broad and controversial in their legal application.
Race This term refers to “all kinds of ethnic groups that are referred to as ‘races’ in common usage.” United Nations High Commissioner on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 68 (1992) (UNHCR Handbook). An example of a race under this definition would be the ethnic Albanians and Chechens.
Religion Persecution based on religious belief can be evidenced by prohibition of private or public worship, religious instruction, or membership in a specific religious community. UNHCR Handbook ¶ 72. Any serious discrimination based on a person’s belief in a religion or membership in a religious community can sometimes be considered persecution because of religion.
Nationality This term may sometimes overlap with “race”, as it includes those with citizenship or membership in linguistic or ethnic groups. UNHCR Handbook ¶ 74.
Political Opinion The applicant’s actual and imputed political opinions may both be grounds for asylum protections. An “imputed opinion” is a political opinion that the persecutor believes a certain applicant holds, whether they do or not. The definition of a refugee was changed by the 1996 Illegal Immigration Reform and Responsibility Act (IIRIRA)(INA §101 (a)(42)(B). The definition specified that coercive population control programs that caused persecution to an individual, including forced abortions, forced sterilization, or fear of being persecuted upon refusal to participate may also be included under “political opinions”.
Membership in a Particular Social Group “Social group” is a purposely broad idea that includes “persons of a similar background, habit, or social status.” UNHCR Handbook ¶ 72. It’s generally understood that social groups are groups of people that share or define themselves by a certain set of characteristics, such as geographic location, age, ethnic background, sexual orientation, gender, class background, or family ties (e.g. members of an African clan). Based on the Board of Immigration Appeal’s definition, the members of said social group have to share common, immutable characteristics to be valid. Matter of Acosta, 19 I&N Dec.211, 233 (BIA 1985). The Ninth Circuit’s definition is broader, labeling a “particular social group” as a group united by voluntary membership or association, including former association, or a group united by innate characteristics which are fundamental to the members’ identity or conscience and which members cannot or should not be required to change. Hernandez-Montiel v. INS, 225 F.3d 1084, 1092-93 (9th Cir. 2000) (Mexican gay men with female sexual identities constituted a particular social group). This definition suggests that a particular social group must be a collection of people who are closely affiliated together or who are actuated by a common interest or impulse. Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir. 1986) (stating that a family is a “prototypical example” of a social group, but young, working-class urban males of military age are not a social group.) The BIA introduced a new set of criteria in 2007 that emphasized a social group’s need to have sufficient particularity and social visibility. Matter of S-E-G, 24 I&N Dec. 579, 588 (BIA 2008) (holding that young Salvadorans who have been subject to recruitment efforts by gangs, but have refused to join for personal, religious, or moral reasons, do not constitute a social group). Based on the mandate for social visibility, the shared characteristics of the group need to be generally recognizable for the community at large. Id. at 586. Based on the particularity mandate, the group must be able to be accurately described in a sufficient manner that would make their group distinct from others and recognized in society as a discrete class of people. The Ninth Circuit declined to reject the mandates of particularity and social visibility. Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013). However, the Court acknowledged that both the Ninth Circuit and the BIA had at times conflated the tests for social visibility and particularity. Id. at 1090-91. The Court further clarified that a particular social group is not required to be homogeneous, and it overruled precedent decisions previously accepted that had indicated otherwise. Id. at 1093-94. Finally, the Court noted that it believes the perspective most relevant for determining social visibility is that of the persecutor, although the BIA did not clearly define this. Id. at 1089-90. To date, the social groups that have been found to satisfy the test definition include: Somali females (Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005)); homosexuals (Matter of Toboso-Alfonso, 20 I&N Dec. 819 (BIA 1990)); Christian women in Iran who would not adhere to an Islamic dress code (Yadegar-Sargis v. INS, 297 F.3d 596, 603 (7th Cir. 2002)); Women abducted and confined by the FARC group in Colombia who escaped involuntary servitude (Gomez-Zuluaga v. Att’y Gen. of the U.S., 527 F.3d 330, 345-49 (9th Cir. 2008)); highly educated individuals (Ananeh-Firempong v. INS, 766 F.2d 621, 623 (1st Cir. 1985)); union members (Bernal-Garcia v. INS, 852 F.2d 144 (5th Cir. 1988)); and former members of the national police (Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988)). This list is non-exhaustive and does not include the full list of groups who qualify as a particular social group. In the case of Perdomo v. Holder, 611 F.3d 662 (9th Cir. 2010), the Ninth Circuit determined that the BIA made an error in its determination that women in Guatemala were unable to be considered a cognizable social group. The argument Ms. Perdomo presented is that she feared persecution in Guatemala based on being a young woman in the country when women in Guatemala are murdered at a high rate, with impunity. The Ninth Circuit further held that a group’s breadth and size does not preclude it from being a qualified social group, that the BIA failed to define the social group claim by both prongs of the Hernandez-Montiel definition, and that the decision by the BIA was inconsistent with previous rulings.

Asylum Claims Involving Gender Violence

There are many human rights abuses which women face that are gender-particular. This includes abuses such as domestic violence, rape, molestation, female genital mutilation or circumcision, honor killing, sexual slavery, forced marriage, or sexual harassment. It’s common for women to experience these types of persecution that fit into the five protected grounds, based on being part of a social group that relates to their gender. However, adjudicators will often reject social groups based on gender because they are viewed as too broad under current policies and they may cause a floodgate type situation.

In Matter of Acosta, 19 I&N Dec. 211(BIA 1985), a seminal case that involved membership in a broad particular social group, the BIA chose to define particular social groups as those with members who share a certain characteristic that they cannot or should not be required to change. During the same case, the BIA specifically mentioned gender as an example of a characteristic that is immutable and can be viable for the basis of a particular social group. Under the Acosta test, a person’s gender alone should be enough to label them as part of a particular social group. No requirements exist that groups should be narrowly defined or limited by number, as some other protected grounds for asylum may require.

The Acosta test is no longer the sole requirement by the BIA for establishing membership in a social group (see supra). However, in August of 2014 the BIA held that Guatemalan married women unable to leave the relationship may be considered a viable social group. Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). The BIA declined to address further questions about whether the broad group of Guatemalan women in general could be considered a particular social group. A-R-C-G-, 26 I&N Dec. at 395 n.16.

Past Persecution

If the applicant can establish that they have experienced persecution in the past, based on one of the protected ground, that was perpetrated by either the government or an entity the government could not or would not control, then that applicant will be considered to have a well-founded fear of facing persecution in the future. 8 C.F.R. §208.13(b)(1); Matter of Chen, 20 I&N Dec. 16 (BIA 1989). This will shift the responsibility to the government officers to establish based on preponderance of the evidence that the country of origin has undergone a change in conditions that would remove the circumstances for the applicant’s well-founded fear. They may also establish whether or not the fear would be avoided by the applicant relocating to another location in the country. 8 C.F.R. §208.13(b)(1)(i).

If the government is able to successfully demonstrate that the country of origin has significantly changed conditions or that it’s reasonable for the applicant to relocate internally to avoid the threat, there may be some so-called “humanitarian” protections warranting asylum status. These depend on the applicant demonstrating (a) compelling reasoning for their inability to return based on the severity of past persecution or (b) a reasonable possibility of facing future suffering or other serious harm. See 8 C.F.R. § 208.13(b)(1)(iii); Matter of L-S-, 25 I&N Dec. 705 (BIA 2012); Matter of S-A-K- & H-A-H-, 24 I&N Dec. 464 (BIA 2008); Chen, 20 I&N Dec. 16. In the second option, the “other serious harm” refers to harm that rises to the level of persecution, although it does not need to be based on the five protected grounds.

Internal Relocation

Even if an applicant has established a well-founded fear of persecution in the future based on persecution they have already suffered, it’s possible for the government to overcome that argument by demonstrating that the applicant would be able to prevent further persecution by relocating within their home country, and that relocation is possible and reasonable. 8 C.F.R. §208.13(b)(2)(ii). In cases where the applicant has not suffered persecution in the past, it is the applicant’s responsibility to show that they would not be able to avoid persecution by relocating, or that relocation is not reasonable. 8 C.F.R. §208.13(b)(3)(i). However, in cases where the home country’s government is responsible for the persecution, it’s presumed that relocation is unreasonable unless the government can show otherwise through preponderance of the presented evidence. 8 C.F.R. §208.13(b)(3)(ii).

The reasonability of proposed internal relocation is meant to be examined with regards to ongoing civil strife, geographical limitations, government infrastructures, and cultural or social constraints. 8 C.F.R. §208.13(b)(3).

Future Fear Only Claims

In cases where the applicant has not suffered persecution in the past or if their fear of future persecution is rebutted during the case, it is up to the applicant to establish an independent, well-founded fear of persecution in the future. In these future-fear only cases, the applicant will still need to demonstrate the same things as any other asylum seeker: persecution perpetrated by the home country’s government or an entity the government will not or cannot control based on the protected grounds for asylum. However, in these cases the applicant must also demonstrate an objective and subjective fear of persecution, because the claim is only forward-looking. Cardoza-Fonseca, 480 U.S. 421; Ayele, 564 F.3d at 868.

To illustrate subjective fear, an applicant needs to show that they have a genuine fear to return to their home country. For the objective fear, they must show one of two things. First, an applicant may be able to show that there is a reasonable possibility (at least a 10% chance) that their home government or an entity that will not or cannot be controlled by the government will single them out individually for persecution because of one of the protected grounds. 8 C.F.R. § 208.13(b)(2)(iii); Ayele, 564 F.3d at 868. Second, an applicant may be able to establish a pattern or regular practice of persecution of individuals similarly situated in their home country based on one of the protected grounds. The applicant must further demonstrate their inclusion or identification with the group of regularly persecuted peoples such that they would have a reasonable fear of persecution upon returning home. 8 C.F.R. § 208.13(b)(2)(iii); Ayele, 564 F.3d at 868.

Most future persecution applicants base their asylum claims off of the possibility of being singled out for persecution rather than attempting to demonstrate a pattern or regular practice of persecution. Few cases of pattern or practice claims are successful because it can be difficult to demonstrate that a particular situation of persecution rises to the high level of a pervasive, systematic, or organized attempt to imprison, kill, or severely injure people belonging to a specific group. This is a necessary element to show that such a pattern of practice of persecution exists. Ingmantoro v. Mukasey, 550 F.3d 646, 651 (7th Cir. 2008). There is a high burden of proof for pattern or practice asylum claims that is difficult for most applicants to meet because if the court deems that individuals in a certain group are subject to a pattern of practice of persecution, all members of that same group will become eligible for asylum in the U.S. Ahmed v. Gonzales, 467 F.3d 669, 675 (7th Cir. 2006). However, a distinction must be made between pattern or practice asylum claims and claims that the individual applicant will be singled out and targeted based on being part of a particular social group.

Applicants claiming independent fear of persecution in the future will not be deemed eligible for asylum if relocation within their home country would prevent persecution and is considered reasonable based on all the circumstances of the case. 8 C.F.R. §208.13(b)(2)(ii). In cases where the perpetrator of the persecution is the home country’s government or an entity sponsored by the government, the court will presume internal relocation to be unreasonable. 8 C.F.R. § 208.13(b)(3)(ii).

Bars to Asylum

There are ten mandatory bars that will make an applicant ineligible for asylum. We have provided the list here, but you can get more information and detailed discussion about individual items by navigating to the Asylum blog page. We regularly post and update about issues concerning these asylum blocks.

  • Aliens who fail to file for asylum within their first year of arriving in the United States. Those who can demonstrate changed or extraordinary circumstances may be able to apply. (INA §208(a)(2)(B), 8 C.F.R. §§208.4, 208.34);
  • Aliens who are the perpetrators of persecution against others based on one of the protected grounds of asylum. (INA §208(b)(2)(A)(i));
  • Aliens who have firmly resettled within the meaning of 8 C.F.R. §208.15 (INA §208(b)(2)(A)(vi));
  • Aliens who have previously applied for asylum in the U.S. but were denied. (INA §208(a)(2)(C));
  • Aliens who have been convicted of aggravated felony crimes defined by immigration law (INA §208(a)(2)(B)(i)); see INA §101(a)(43) for a full list of crimes which match this description.
  • Aliens who have been convicted of “particularly serious crimes”. (INA §208(a)(2)(A)(ii));
  • Aliens who will pose some sort of threat or danger to United States security. (INA §208(a)(2)(A)(iv));
  • Aliens like those described in INA §212(a)(3)(B)(i)(I)-(IV), (VI), or §237(a)(4)(B) that are related to terrorist activities;
  • Aliens who have committed a “serious nonpolitical crime”. (INA §208(a)(2)(A)(ii));
  • Aliens who have the potential to be removed based on a multilateral or bilateral agreement from a third country, unless the U.S. Attorney General determines it to be in the national interest of the country to grant asylum. See INA §208(a)(2)(A).

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