Asylum Based on Fear of Future Persecution: The Four-Part Qualifying Test

A reasonable fear of what may happen can qualify you for asylum in the U.S. -- if you can pass the Mogharrabi test.

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Some asylum applicants have not experienced any persecution in their country in the past, yet fear returning there. Others left home before the harm they experienced rose to the level of persecution. Regardless of the reasons you left, you may be eligible to apply for asylum in the United States if you are now afraid to go home. To evaluate whether your fear is reasonable, however, your claim will be evaluated according to a four-part test developed by the Board of Immigration Appeals (BIA).

Is Your Fear of Future Persecution Truly Well-Founded?

To win a grant of asylum based on future persecution, it’s not enough to say, “I’m afraid.” You must demonstrate that you have a well-founded fear of persecution if you return to your country. This means a one in ten chance that you will actually suffer the persecution you fear (See INS v Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987)).

To decide whether your fear is indeed well founded, the government officials considering your case will look at the following four factors:

  • Do you possess, or does a persecutor believe that you possess, a characteristic that a persecutor wishes to overcome? This characteristic can be any trait you have that is the cause of a persecutor’s interest. It’s okay if that characteristic arose after you came to the U.S. — for example, you became an outspoken critic of your government, you have seen headlines saying that the political party of which you were a member is newly being targeted for persecution, or you developed HIV.
  • Is a persecutor aware or could a persecutor become aware that you possess this characteristic? Even if your characteristic – such as being a member of an ethnic or religious minority, or being homosexual -- is public knowledge, make sure you show this fact in your asylum application and testimony.
  • Does the persecutor have the capability of persecuting you? An incarcerated persecutor, for example, cannot harm you.
  • Is the persecutor inclined to persecute you? For example, has the persecutor made threats, or taken action against people who possess similar characteristics to you?

You’ll want to take a careful look at your situation to see whether it fits these four factors (specified in Matter of Mogharrabi, 19 I&N Dec. 439 (B.I.A. 1987)). Then make sure you include in your application and testimony all relevant information to show that, based on the above test, a reasonable person in your circumstances would fear persecution.

If, for example, you’ve secretly been a member of a religious minority that has been persecuted, and have no evidence to show that anyone realizes you’re part of that group, you would (in order to satisfy the second factor on the above list) want to highlight the reasons that a potential persecutor could find out – perhaps if someone has been threatening to expose you.

Can You Show a Nexus or Tie Between the Likely Persecution and One of Five Grounds?

Once you have established that you have a well-founded fear of persecution, you must tie that fear to one of the five grounds mentioned in the Immigration and Nationality Act: either your race, religion, nationality, membership in a particular social group, or political opinion. (See “Proving the "Nexus" or Reason for an Asylum Claimant's Persecution” for more on this particular requirement.)

If, for example, you have a well-founded fear of civil strife and you cannot tie the fear to any of the five enumerated grounds – perhaps because you’re just one of many people living in the middle of a conflict zone -- you are not a refugee and will not win asylum. If, on the other hand, you can successfully argue that you fear the civil strife specifically because of your clan or other affiliation, you might be found to be a refugee.

In cases where war or natural disaster is the cause of your fear, look carefully at whether you will experience persecution differently from others in your country. For example, are you afraid to return to Congo because the war is especially heavy in the village where everyone shares your nationality? If you can tie in one of the five grounds, you might have an asylum claim.

Asylum can be complicated to understand and to navigate. Consider consulting with an experienced immigration lawyer for help in filing any claim.

by: , J.D., LL.M.

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