Claiming Asylum When Persecution Didn't Come From the Government

If the government is unable or unwilling to control a persecutor, this may support an asylum claim.

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Anyone who applies for asylum or refugee status in the U.S. because of having been persecuted in the home country or fearing persecution upon return will need to explain who was doing the persecuting.

In the classic asylum case, the persecutor will have been the government of that country, or its agencies, military, or law enforcers. For example, they may perhaps have imprisoned an applicant for dissent or taking part in demonstrations, taken military action against peasants who organized a cooperative, or forced abortions and sterilizations upon women in order to enforce a policy of population control.

But what if the persecutor(s) were not members of the government? It is still possible to prove a case for asylum or refugee status, if you can show that the person or group is one that the government is “unable or unwilling to control.”

This language is not found in the immigration statute itself. It comes from  various cases from the courts and the Board of Immigration Appeals, or B.I.A., for example, Matter of Villalta, 20 I.&N. Dec. 142, 147 (BIA 1990). The idea is that even if the government wasn’t directly responsible for the actions of the persecutors, it knowingly tolerates them or gives them its “imprimatur,” or is simply unable to provide effective protection from them.

Non-Government Groups That Qualify as Persecutors Under U.S. Asylum Law

The Villalta case provides a good example of what is meant by a group that the government can’t or won’t control. The applicant’s family was targeted by Salvadoran “Death Squads,” a paramilitary group whose connections to the government were not then clear, perhaps involving both civilians and members of the military, but whose aim was to annihilate suspected political opponents. The B.I.A. stated in the Villalta opinion that “The Salvadoran government, at a minimum, appears unable to control” these death squads.

Other examples of persecutors that seem to operate with tacit government approval include clans in Somalia (as in Matter of H-, 21 I.&N. Dec. 337 (BIA 1996)); Azeris who threatened and harmed ethnic Armenians in Azerbaijan (Andriasian v. INS, 180 F.3d 1033, 1042-43 (9th Cir. 1999)); the Provisional Irish Republican Army (PIRA), a violent offshoot of the paramilitary Irish Republican Army (IRA) that sought to protect the Catholic population from the British Army and bring about Irish unification and independence (Mcmullen v. INS, 58 F.2d 1912 (9th Cir. 1981); and even family members insisting that a child undergo the traditional practice of female genital mutilation (Matter of Kasinga, 21 I.&N. Dec. 357 (BIA 1996).)

The applicant does not need to provide evidence that the government actually had any direct involvement with or conspired with the persecutor or group in question, though it would certainly help the case if they could. The applicant should also either show that he or she sought help from the government, and it was refused or not followed up on; or provide an explanation for not having sought such help. If, for example, a young woman in Pakistan says that she didn’t go to the police because she’d heard from other women that they’d been raped or harassed by male police officers, that might provide a reasonable explanation.

Non-Government Groups That Aren’t Persecutors Under U.S. Asylum Law

The classic example of a perpetrator of harm that would NOT be recognized as representing government tolerance or lack of control is a common criminal. This would fall into the category of where a government simply has “difficulty . . . controlling private behavior,” as is true of most governments when combatting crime. Unfortunately, this also means that sometimes when the applicant received anonymous threats, or even suspects that the person who attempted the harm was acting out of political motives but can't prove it, will be denied asylum. (See, for example, Hasalla v. Ashcroft, 367 F.3d 799, 804 (8th Cir.2004).)

Other types of harm or persecution may not work to support an asylum claim if there's insufficient evidence of government tolerance. For example, in the case of Valioukevitch v.  I.N.S., 251 F.3d 747 (2001), the court found that, although Orthodox Christian students at the applicant’s school in Belarus may have harassed him for being a Baptist, the fact that the school expelled some of them shows that this activity was not condoned by  officials.  

For more information on asylum, see the "Asylum & Refugee Status" page of Nolo's website. And for assistance with an asylum claim, consult an experienced immigration attorney.

by: , J.D.

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