With no fear of continued persecution, can I claim asylum based on other serious harm I might face?

If you can show past persecution, your asylum case might be granted on humanitarian grounds even with no fear of future persecution.

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Question

I am a citizen of El Salvador and I escaped to the U.S. from my country in 1993 after being captured by guerrillas fighting the civil war. I applied for asylum in 1995 and the Asylum Office didn't grant me, but instead referred my case to Immigration Court. After many delays, I am scheduled for a hearing with an Immigration Judge. Because the war in my country has been over for a long time I am not afraid of persecution in El Salvador. However, I am afraid I will be harmed by violent gangs if I return to my country, especially since these gangs target people who return from the United States.

Answer

If you have suffered past persecution in your country, an Immigration Judge (or Asylum Officer) can grant humanitarian asylum even if you do not have a well founded fear of future persecution. To win asylum without fear of future persecution you have to prove that you may suffer “other serious harm” if you return to your country. See Section 208.13(b)(1)(iii)(B) of the Immigration and Nationality Act.

There are three things you have to prove to win asylum this way:

  • that you suffered persecution in the past on account of one of five grounds: either your race, religion, nationality, membership in a particular social group, or political opinion
  • that you fear “serious harm” in your country, and
  • that you deserve asylum because you have a good character.

In short, after proving that the harm you suffered in your country on account of your race, religion, nationality, membership in a particular social group or political opinion was serious enough to be considered persecution, you have to prove that there is a reasonable possibility that you will suffer serious harm if you return to your country.

This serious harm does not have to be related to the persecution you suffered in the past. Importantly, the serious harm you fear does not have to be on account of one of the five grounds. Other serious harm can include things like natural disasters and criminal activity. The judge or officer should look at the current conditions in your country and any physical or psychological harm you might suffer if you return. (See Matter of L-S-, 25 I&N Dec 705 (B.I.A. 2012).)

It is important to explain to the judge why you are afraid. You should submit documents (such as news reports, expert witness statements, and reports by human rights organizations) showing the country conditions in El Salvador, particularly any information that show how violent the gangs are in El Salvador and documents that show why you fear becoming a target. If you know anyone who was harmed after returning to El Salvador try to get an affidavit from them explaining what happened. (For more information, see Nolo's article on "Preparing Persuasive Documents for Your Asylum Application.")

The last thing you will have to show the judge is that you deserve asylum. The judge will look at positive factors such as your family, employment, and even community activity. He or she will balance these positive factors with any adverse ones such as arrests. The judge or officer will grant you asylum if your positive factors outweigh any negative ones.

It is a good idea to consult with an experienced immigration attorney who can help you present your case to the judge.

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