Can Asylum Applicant Claim Discrimination as Persecution?

For asylum purposes, discrimination may constitute persecution in limited circumstances, either by itself, when it carries particularly severe consequences, or by cumulative effect.

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The United States provides asylum and refugee protection for people who have been or may become victims of persecution in their home country due to their political opinion, religion, race, nationality, or membership in a particular social group. This protection gives them the opportunity to live and work in the U.S. and to become permanent U.S. residents (green card holders) after one year.

Although the word “persecution” has no exact definition in U.S. immigration laws, court decisions suggest that it generally refers to inflictions or serious threats of physical, psychological, or economic harm by one’s own government or by groups whom one’s government is either unwilling or unable to control. This typically takes the form of attacks or threats on a person’s life, freedom, or bodily integrity – with or without serious injuries.

In addition, discrimination may also constitute persecution in limited circumstances, either by itself when it carries particularly severe consequences, or by cumulative effect when it is combined with other negative factors (factors which need not individually rise to the level of persecution).

Severe Discrimination by Itself May Count as Persecution

Discrimination can be broadly defined as the unequal (favorable or unfavorable) treatment of people based on categorized differences in their views or characteristics.

In this broad sense, discrimination could be understood as an implicit element in almost any asylum case (since, when people are targeted on account of their membership in a group, this seems to logically entail that members of other groups are not subject to the same treatment).

However, in the asylum context, discrimination is often defined narrowly, to refer to types of circumstances that ordinarily fall short of persecution. For example: This refers to circumstances when members of a particular race are denied equal access to justice, education, housing or public services, or when members of a particular religion are denied equal accommodation of their practice, or when individuals with a particular gender identity or sexual orientation are denied equal law enforcement protection. In these types of situations, discrimination by itself may constitute persecution only if it carries particularly severe consequences for the victim – in particular, when its practical effect is to offend or weaken basic principles of human rights or human dignity.

Thus, if your country’s government passed a law somehow denying members of your racial group access to employment in certain lucrative domestic industries, this discriminatory measure – albeit abhorrent – might not suffice to make you eligible for asylum. By contrast, if the practical effect of such a law were to make it very difficult for you to earn a livelihood, then you would have a stronger claim of persecution.

Discrimination Plus Other Factors May Add Up to Persecution

Even when a particular type of discrimination does not by itself carry sufficiently severe consequences, still it may rise to the level of persecution when its instances are repeated over a long period of time, or when it is combined with other types of discrimination or other types of harm or danger (which need not by themselves amount to persecution).

There is no exclusive list of such other types of harm or danger. However, they would likely include prior mistreatment of the asylum applicant by his or her government (or by groups outside the government’s control). For example: If, in addition to your children being denied equal access to secondary education solely on account of your family’s ethnic group, you were regularly harassed by government officials while also being denied equal access to courts, medical care, and decent housing, then you could probably make a reasonable claim of persecution by cumulative effect.

Other similar harms might include: vandalism of your property, violations of your privacy, violence or threats against your family members or associates, as well as passport denials, extortion, and other forms of economic or psychological pressure.

Moreover, environmental factors such as civil strife and generalized insecurity – which are ordinarily excluded from definitions of persecution – could also be considered in the totality of circumstances to transform a case of mere discrimination into one of persecution. Thus, for example: If, during a period of intense civil strife, you were arbitrarily denied equal law enforcement protection simply on account of your membership in a particular group, then you might be able to mount a reasonable asylum case.

Consult an Attorney

Convincing an immigration officer or judge that a particular type of discrimination amounts to persecution is likely to be particularly difficult – in both principle and practice. First, in principle: As outlined above, under current interpretations of the law, discrimination will rise to the level of persecution only in extraordinary and complex cases – that is, in cases that naturally demand a sophisticated understanding of the law. Second, in practice: Even assuming the officer or judge were satisfied with the legal argument, evidence in support of the claim might have to be more subtle or more voluminous than is ordinarily expected in asylum cases.

For these reasons, if you believe that you have been discriminated against to such an extent, or under such a set of circumstances, as would amount to persecution, then you would probably benefit from obtaining the assistance of an experienced immigration attorney.

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