U.S. immigration law allows a grant of asylum not only to people who have suffered past persecution, but also to applicants who suffered no persecution in the past but have a well-founded fear of future persecution. (See the Code of Federal Regulations, 8 C.F.R. § 1208.13(b).) This article will discuss what it means to have a well-founded fear of persecution.
Although persecution refers to harsh, severe, and offensive acts, it is not limited to some of the things that might first come to mind, such as torture, beatings, or other physical violence.
Someone can succeed with an asylum claim who, for example, was the subject of severe discrimination, harassment, or threats. Sometimes persecution can be shown by a cumulative combination of actions or threats that, by themselves, might be viewed as relatively minor. For more information, see What Counts as ‘Persecution’ When Applying for Asylum or Refugee Status.
If you can show that you suffered persecution—or even lower-level harm—in the past, it will make your task of proving the likelihood of future persecution much easier.
U.S. courts have said that for a person’s fear of persecution to be considered “well-founded,” it must be both:
In other words, the applicant should truly be afraid of returning, but that fear shouldn’t be out of proportion to reality.
As to the first prong, the applicant’s credible testimony is enough to show a genuine fear of harm. Of course, "credibility" itself can be an issue. The court will look at your demeanor, candor, and responsiveness, the inherent plausibility or accuracy of your account, whether your written and oral statements are consistent internally, with each other, and with other evidence on record, and so on. (I.N.A. § 208(b)(1)(B)(iii).)
Satisfying the second, objective prong of this two-part test can be even more challenging. If you are unable to prove persecution in the past (which would give rise to a rebuttable presumption of a well-founded fear of future persecution), you will need to show a good reason to fear future persecution.
This means providing credible (believable), direct, and specific factual evidence. That will likely involve submitting documents (such as human rights reports, newspaper articles, proof of relevant memberships or affiliations, and affidavits by experts) and credible and persuasive testimony (your own story). See Preparing Persuasive Documents for Your Asylum Application for more tips.
Fortunately, asylum applicants don’t have to prove that persecution is guaranteed to await them upon return. In fact, one court said that, “[E]ven a ten percent chance of persecution may establish a well-founded fear.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001); see also Halim v. Holder, 590 F.3d 971, 977 (9th Cir. 2009. In a case called Matter of Mogharrabi, 19 I&N Dec. 439 (B.I.A. 1987), a four-part test was developed to assess applicants' claims based on future persecution.
If you have been specifically targeted for persecution, this will greatly strengthen your case. For example, asylum applicants have provided evidence that they were threatened or followed, placed on a death list, received individual warnings, knew of colleagues being killed, and so forth. Similarly, acts of violence toward family members and friends can help establish a well-founded fear of future persecution, if there’s a connection between the reason they were targeted and the reason you fear the same.
If you cannot show that you were individually targeted, the next best thing is to show a pattern or practice in your home country of persecution of a group of persons similarly situated to you.
Although a fear of future persecution can be sufficient for asylum, this doesn’t relieve applicants of the burden to show that their likely persecution will be based on or motivated by their race, religion, nationality, membership in a particular social group, or political opinion.
Put another way, it is not enough to show that the applicant’s home country is a frightening place, perhaps due to civil strife or widespread random violence. You still need to show how such conditions are likely to affect your specific situation, or the "nexus" between your characteristics and the persecution.
The more serious and widespread the threat of persecution to the group with which you are identified or of which you are a member, the less individualized the threat of persecution you need to show.
Additional information can be found on the Asylum & Refugee Status section of Nolo’s website. Also, a good attorney can improve your chances of obtaining asylum. The attorney can help you highlight the most compelling portions of your claim, overcome any negative information, prepare the paperwork and supporting documents, help you prepare to testify, and appear with you, either at the Asylum Office interviews or in Immigration Court proceedings.
You might also be interested in reading Applying for U.S. Asylum: How Much Will It Cost?. Fortunately, asylum is an area where you'll find a lot of help from volunteer attorneys or nonprofit (charitable) organizations serving immigrants and refugees.
In order to be granted this status, an immigration judge or asylum officer must determine that you meet the definition of a refugee. That requires first convincing them that you have suffered harm, or you fear harm, that is so severe that it can be considered persecution.
The next step is to convince the immigration judge or asylum officer that this persecution occurred specifically because of your race, nationality, religion, membership in a particular social group, or political opinion—that is, one or more of the five grounds specified in the Immigration and Nationality Act (I.N.A.) at Section 208.13.
This article will discuss how to identify and establish the crucial connection, or nexus, between the persecution and one or more of the five grounds.
Establishing “nexus” involves answering the question “Why?” It’s not enough to show the mere fact that you suffered or fear persecution in your home country: You must also show the grounds upon which this persecution was directed at you. You're trying to outweigh any perception that what you faced was random or impersonal. You must demonstrate that the persecutor's main motivation or reason for attempting to harm you was on account of at least one of the five grounds noted above.
One way to determine the motivation of the persecutor is to take a look at what they said to you. Take, for example, a young man from Mexico. Four armed men kidnap him from a shopping mall. They say, “We are X-Gang and we know your father is the mayor.” Here we see that the persecution (kidnapping) occurred on account of the man’s relationship to his father (membership in a particular social group) or on account of a political opinion that was imputed to him because of his father. Since both grounds are specified under the immigration law, the applicant can be considered a refugee.
Let’s look at the same kidnapping example with a slight change: A young man from Mexico is kidnapped by four armed men outside a shopping mall. The kidnappers say, “We are X-Gang and we saw you buy those expensive sneakers. We want the sneakers and all your money.” Here we see that the persecution (kidnapping) occurred because X-Gang wanted the sneakers and money. There is no nexus to any ground specified under the I.N.A. and the asylum applicant would not be considered a refugee.
You will not have to prove that one (or more) of these grounds is the sole reason the persecutor was or is motivated to harm you, but you will have to prove that it is a central reason for the harm.
Think about your case as a series of steps: If you have suffered or fear harm that is so severe it can be considered persecution, you have fulfilled step one. Step two is to establish the nexus—to tie the persecution to one of the five grounds.
Asylum claims are decided on a case-by-case basis, meaning that the asylum officer or immigration judge will look at the individual facts of the case and apply the law to those facts. With that in mind, here are some examples where nexus can be established:
If you submitted an affirmative application for asylum and are appearing before an asylum officer, you might receive some help with establishing nexus. Unlike immigration judges, asylum officers have an affirmative duty to gather all information about nexus. This means that they must ask questions to determine whether the persecution the applicant suffered or fear has a tie to at least one of the five grounds.
Regardless of this affirmative duty, you have the burden of proving that there is a nexus between the persecution and one of the five grounds. When deciding whether you have met your burden, the judge or officer looks at what a reasonable person would believe. Showing a nexus can be tricky. For example, you would not be able to establish nexus if the military forcefully conscripted you only because you were a young man. There is nothing unique or personal about young men being conscripted.
Consider consulting with an immigration lawyer experienced in asylum and refugee law for help in preparing and presenting your case. The lawyer can provide great value in helping research your country situation, suggest which aspects of your claim are strongest, prepare your written statement, and accompany you to Asylum Office interviews or court hearings.
]]>But what is persecution according to U.S. immigration law? It’s been clear from the early days of legal recognition of refugee status that people who move to a different country for reasons of mere convenience or economic betterment are not “refugees.” But beyond that, the matter gets a harder to pin down, as addressed in this article.
The word “persecution” comes straight from U.S. immigration law, which mentions it in its definition of “refugee.” (See the Immigration and Nationality Act at I.N.A. Section 101(a)(42).) However, the law does not give any separate definition of persecution, nor specifically list the types of harm that will be considered.
There's one exception, from a relatively new section of the law added in 1996: people who have been or fear being “forced to abort a pregnancy or to undergo involuntary sterilization, or . . . persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program” meet the definition of refugee. (This amendment was aimed primarily at mainland China with its one-child policy).
In most cases, however, individual applicants will need to prove that what they suffered or fear should be viewed as persecution, drawing on court decisions initiated by previous applicants. Seemingly acknowledging the lack of specificity regarding this concept, the Ninth Circuit Court of Appeals said, “Persecution covers a range of acts and harms,” and “[t]he determination that actions rise to the level of persecution is very fact-dependent.” (See Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000).)
On the other hand, the Seventh Circuit noted that, “actions must rise above the level of mere ‘harassment’ to constitute persecution.” (See Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000).) And the First Circuit added that the experience “must rise above unpleasantness, harassment and even basic suffering.” (See Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000).)
Persecution can definitely include harms that aren't physical, or immediate threats to one's life or freedom. (See INS v. Stevic, 467 U.S. 407 (1984); Surita v. INS, 95 F.3d 814 (9th Cir. 1996.).
The above definitions aren’t very satisfying. More often, it helps to look at what actual types of harm have been recognized by U.S. immigration authorities and courts as forms of persecution. These include:
Some applicants might need to show a combination of actions against them if none by themselves was serious to fit traditional understandings of persecution.
The persecution should have come from either your country’s government or other authorities or groups that the government is unable to control, such as guerrillas, warring tribes or ethnic groups, or organized vigilantes.
Whether women who decided to leave an abusive spouse qualify for asylum has been a matter of debate and legal reversals. For women who live in a male-dominated country where their rights are unprotected, the decision to leave an abusive spouse and a country that wouldn't protect them can arguably be viewed as a political opinion or an indication that they're part of a particular social group. Such arguments have led to asylum approvals, but the law on this goes back and forth, so consult an attorney before trying it.
What if you don't know who, exactly, was persecuting you? No rule says you have to be able to identify your persecutor. What you will have to do is explain is what exactly happened, and provide enough detail to establish the persecutor's motive.
The persecution must have been based on at least one of five grounds: your race, religion, nationality, political opinion, or membership in a particular social group. It will be crucial to your case that you figure out which of these categories you fit into, and show a connection (“nexus”) between the persecution and one of them.
For a more in-depth analysis of whether what you suffered or fear amounts to persecution, consult an experienced immigration attorney. And for more information on U.S. asylum law, see the Asylum & Refugee Status section of Nolo’s website.
A good attorney might improve your chances of proving persecution and obtaining asylum. The attorney can help you highlight the most compelling portions of your claim, overcome any negative information, prepare the paperwork and supporting documents, help you prepare to testify, and appear with you, either at the Asylum Office or in Immigration Court. Fortunately, asylum is an area where you'll find a lot of help from volunteer attorneys or nonprofit (charitable) organizations serving immigrants and refugees.
]]>The membership in a “particular social group” (“PSG”) category is the most difficult of the five grounds to define, and is the subject of many legal arguments. Here, we'll discuss:
Different U.S. Asylum Officers and Immigration Judges view the "PSG" concept in various ways. However, a PSG is generally understood as an identifiable group of people viewed by their government or the persecutor as a threat. It is also often described as a group sharing a common characteristic that is so fundamental to their individual identities that the members cannot—or should not be expected to—change it. (See, for example, Matter of Acosta, 19 I&N Dec. 211, 233-34 (B.I.A. 1985).)
Another way that the U.S. government commonly expresses this definition is that the group is:
Broadly speaking, a PSG is normally composed of persons who have a similar background, social status, lineage, experiences, or habits. The shared, immutable characteristic might be something the person was born with (such as gender, color, clan, ancestry, or family ties), or it might be a shared experience in their past (such as former property ownership, widowhood, or former gang or military conscription).
PSG affiliation doesn't need to be voluntary, as in a group that they actually, officially joined. Members don't even have to know each other. Then again, membership can be voluntary, as with women who refuse to comply with gender-specific laws on what they must wear.
There's no size minimum or limit on a PSG, but extremely narrow or broad definitions are unlikely to succeed. After all, most societies don't actively persecute groups of just a few people; and it's rare (but not unheard of) to see persecution of the majority of a country's citizens.
PSGs that have frequently been recognized by the U.S. government include tribes or ethnic groups, social classes (such as educated elites), family members of dissidents, occupational groups, LGBTI persons or those perceived as such (lesbian, gay, bisexual, transgender, and intersex), child soldiers, members or former members of the police or military (who might be targeted for assassination), and, in some cases, disabled persons and women.
What if your home government mistakenly views you as a member of a PSG and persecuted you because of that? You could still claim asylum on that basis, even if you are not actually a member of a PSG.
In relatively recent years, the U.S. government began to recognize persecution based on gender as a PSG. This allowed women to gain asylum based on having undergone (or fearing that they'll be forced to undergo) cultural practices such as female genital cutting/mutilation, Islamic dress code requirements, forced marriage, or domestic violence.
(In 2018, then-Attorney General Jeff Sessions, a Trump appointee, took steps to undermine the possibility of asylum based on domestic violence in a case called Matter of A-B.; however, the Biden Administration later overruled this decision.)
A group is more likely to be considered a PSG if it is perceived as a unique collection of people in its own society, and if its unique defining trait is not merely subjective. For example, while members of “poor” or “rich” classes might be easily perceived as such, that trait cannot be objectively defined. Therefore, it would be hard to prove the existence of a PSG based solely on that trait.
On the flip side, a group of women who are rape victims of militants in their home country is objectively definable, but such women are not easily identified as such by others in their home country. Hence, they are also unlikely to form a PSG. On the other hand, owning one’s own business in a socialist country that forbids private commerce is both easily observable to others, and objectively defined. Therefore, that might constitute a PSG.
Note that what is a PSG in one country, for purposes of asylum, might not be a PSG in another country. For example, married women who are abused by their partners in El Salvador, cannot leave those relationships, and cannot obtain help from the police have been found to form a PSG, whereas married women in Canada who are in abusive relationships are not a PSG. That is because different legal protections and different cultural expectations allow for very different treatment of such women in those two countries.
Because the PSG category is poorly defined, you might be able to create new arguments of why you should be considered a member of a new PSG. If that is what you'll need to do, definitely seek the help of an attorney.
Because it can be hard to predict whether your claim will fit within the definition of a PSG, if possible, you should argue that you should also be granted asylum based on your persecution on account of another protected ground. This might be, for example, based on your religion or political opinion. You aren't limited to choosing just one. Basing your asylum application on your persecution on account of more than one ground, if warranted, can significantly increase your chances of winning asylum.
An experienced immigration attorney can be hugely helpful in analyzing and preparing an asylum case. The attorney can, for example, gather supporting documents from independent sources, link you up with medical professionals (to confirm whether you experienced something like rape, torture, or genital mutilation), evaluate the strength of your asylum claim and basis for persecution, draft affidavits, prepare witnesses, prepare legal arguments, and accompany you to in-person interviews or court hearings.
If you're low-income, also see How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.
]]>This article discusses the concept of “race,” the forms of racial “persecution” that trigger protection, and the proofs that might be needed in order to apply for U.S. asylum or refugee status.
The notion of “race” is difficult to define. It is a scientifically obsolete social concept that divides people according to broad and somewhat arbitrary lines of ancestry, geographic origins, and/or other similar attributes, as often inferred from people’s apparent physical traits (such as skin color, hair texture, facial features, and body size or shape).
Race occasionally overlaps with more distinct group identities (such as nationality or ethnicity), which themselves can provide alternative grounds for asylum or refugee status. However, perhaps more often than not, racial categories tend to combine various cultural groups into larger identities—be they defined by the groups themselves or (as in most cases) by other people.
Common examples of “races” might include, for example, “black” people of Sub-Saharan African descent, “white” people of European descent, Native Americans (indigenous peoples of the Americas), and many other continental and sub-continental groups.
Whatever your personal situation and background, if you are claiming persecution on the basis of race, you should focus not on establishing the objective existence of your or your persecutor’s race, but rather on demonstrating your persecutor’s subjective belief in the existence of your supposed race—whether mistaken or not.
The word “persecution” broadly refers to serious threats or infliction of physical, psychological, or economic harm by one’s own government or by groups whom the government is either unwilling or unable to control.
Accordingly, racial persecution can occur when such harm is aimed at an individual mainly on the basis of perceived membership in a racial group. For example: If, as a member of an African tribe in Darfur, you survived an attack by the Janjaweed (an Arab militia that was accused of perpetrating genocide against members of your group), then you could likely qualify for race-based asylum or refugee protection in the United States.
In addition, you can claim racial persecution even when you have not been individually targeted, if your home society’s norms or laws create a climate of racial discrimination so severe that it threatens or violates basic principles of human rights or human dignity.
For example, if members of your group have been denied basic rights of citizenship in your home country because of their race (as South Africa’s black population was during the country’s apartheid era), then you may, in principle, qualify for asylum or refugee status in the United States. (Note, however, that, in practice, immigration judges and officers might expect you to show that the racist climate has had an especially harsh negative personal impact on you.)
Similarly, if you and your romantic partner have not been allowed to marry in your country because of laws against “mixed-race” relationships, you might also qualify for protection.
Finally, note that, although racial minorities might be more vulnerable to racial persecution (as in the case of persons of Jewish descent in Nazi Germany), the reverse is sometimes true. Indeed, as was the case during apartheid in South Africa, racial minorities sometimes dominate (and can therefore persecute) racial majorities.
Proving that a person was perceived as belonging to a particular race will be easy in some cases (especially when the person’s race can be readily identified based on physical traits). In other cases, applicants for asylum or refugee status should highlight the language used to refer to their perceived group in their home society, and describe the group’s history in sufficient detail.
Ideally, applicants should be able to find evidence of both the existence of their particular racial category and the existence of racial persecution against their group documented in news media articles and country reports (such as, for example, the U.S. State Department’s Country Reports on Human Rights Practices). However, when such documents are unavailable, applicants can still move forward with their case, and should focus on providing detailed testimony on their specific experiences and risks of persecution (with the assistance of witnesses, if possible).
Ultimately, applicants will need to make sure that they establish the required causal link (or “nexus”) between their perceived race and their persecution—meaning they will need to prove that the former is the main cause (or one of the main causes) for the latter. For example: If, as an indigenous citizen of Guatemala, you have been repeatedly shaken down and beaten up by corrupt local police officers who, in the process, have also called you racist epithets, then you might have to prove—among other things—that the racial abuse you suffered was not simply incidental.
An experienced immigration attorney could help you spot and address potential strong points as well as difficulties in your application for asylum. The attorney can be helpful in gathering supporting documents from independent sources, linking you up with medical professionals, drafting witness affidavits, preparing witnesses to testify in person, and accompanying you to in-person interviews or immigration court hearings. Also see How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.
]]>The harm must be serious enough to be considered persecution, and the persecution or fear must be directly tied to at least one of five grounds mentioned in the U.S. Immigration and Nationality Act: race, religion, nationality, membership in a particular social group, or political opinion. When making your claim you can argue that your persecution is tied to more than one ground.
This article will discuss whether your “political opinion” could, realistically, be among those grounds.
Political opinion is more than just what political party you support, though this might be a reason why you were persecuted or fear persecution. If you are a member of a political party and the persecutor is a member of a different political party, you can argue that the persecution you suffered or fear is on account of your political opinion.
Political opinion can also take other forms, however, such as:
The next step after deciding whether your political opinion might have been among the reasons you were persecuted is to figure out how you are going to prove that, as discussed next.
Requesting asylum in the United States involves much more than filling out Form I-589 and saying, “I was persecuted.” When you put together the paperwork for your asylum claim, and eventually present your live testimony, it is very important to recall the details of the events that happened to you—either the past persecution or the things that happened to make you fear future persecution. Details should include things like names, dates, and full descriptions of the events leading up to and including your persecution.
Whether you file your asylum claim affirmatively with U.S. Citizenship and Immigration Services (USCIS) or defensively with the Immigration Court, you will have to provide evidence to demonstrate your claim. For example, someone claiming persecution based on union membership could present their union card, affidavits from fellow union members who faced persecution, statements from scholars or experts who know about your country's persecution of union members, reports from human rights observers as to the type of persecution taking place in your country, and so on. (See Preparing Persuasive Documents for Your Asylum Application.)
The I-589 application for asylum gives you space to explain your claim and prompts you to provide written details and records about what you experienced.
Once at the asylum interview or at your immigration court hearing, you will provide oral testimony corroborating the information on the application, and be given the opportunity to expand on your account of being persecuted based on your political opinion in detail. Before presenting this oral testimony, the asylum officer or judge will ask you to raise your right hand and take an oath, swearing that your testimony will be true and correct to the best of your knowledge.
Of course, you will still need to convince the asylum officer or immigration judge that what you claimed happened to you really happened to you. Throughout your testimony, the asylum officer or judge will be assessing your “credibility”—that is, whether you can be counted on to tell the truth. Some people present cases that are mostly fake, as USCIS knows and keeps watch for. (See How USCIS Spots Fraud in an Asylum Application.)
The best way to demonstrate your credibility is to provide clear, consistent details about your claim. If you say that you are a political activist with the CYZ party, for example, you must know the details about the CYZ party and the details about what happened to you in your country.
Asylum law is complicated and compiling a winning case difficult. It is a good idea to hire an immigration attorney experienced in asylum and refugee law for help in preparing and presenting your case.
]]>The emphasis on the word “perceived” highlights the fact that people can become targets of political persecution not just for the opinions they actually hold, but also for opinions that their persecutors falsely attribute (or “impute”) to them, whether by mistake or otherwise.
This article discusses the different ways in which political opinions can be imputed, and how persecution on such a ground can be proven for purposes of applying for asylum.
“Political opinion” refers to a broad category of attitudes that people might have on matters that concern their state, their government, or their society. Such attitudes might be deliberately expressed through a variety of behaviors: for example voting, party membership, union membership, issue advocacy, or even everyday commentary on public affairs.
When not deliberately expressed, political opinions can nonetheless be inferred (rightly or wrongly) from people’s behavior, or even from their associations and personal characteristics. In fact, political opinions are sometimes wrongly inferred from accidental circumstances. Such imputed political opinions could form a basis for political persecution and thus asylum (see examples below).
(Also, for a broader look at common examples of political persecution, see Claiming Asylum Based on Persecution on Account of Political Opinion.)
Political opinions can be imputed to people on the basis of their oral and written statements, as well as other forms of expression, such as musical compositions or works of art. Although such expressions might not be clearly about politics, they can nonetheless be interpreted by others as political.
For example, a novelist could be persecuted for allegorically criticizing her country’s leaders in one of her books. A musician could be accused of playing “bourgeois” music in a communist country. Even if both insist that their works have been misinterpreted, the authorities' harsh response can indicate imputed political opinion.
In addition, political opinions can be imputed to people on the basis of other types of actions; even ones that are not meant to express anything at all. For example, under a totalitarian regime, a person could be persecuted simply because government agents falsely suspect him of being a dissident or even a spy, solely based on his unusual habits or lifestyle.
A political opinion can also be imputed to people based on who they associates with (or are associated with). That might include friends, colleagues, neighbors, family members, and members of the person's other social groups, or even mere acquaintances.
For example, a business owner could be persecuted for employing a political activist on staff, even if the latter’s functions involve no political matter. Likewise, a country’s government could target children of a prominent member of the opposition, even though the children themselves have never been involved in politics.
Political opinions can also be imputed to people based on their personal characteristics or background, including their race or region of origin.
For example, a country’s government could suspect members of an ethnic minority of sympathizing with rebel forces during a civil war, even if this suspicion is unfounded in some individual cases.
Finally, political opinions can be mistakenly imputed to people simply by accident. In a case of mistaken identity, for example, a person could be persecuted for simply sharing the same name as the government’s intended target. Or a village could be mistakenly thought to have provided support to guerrillas, and be persecuted on that basis.
“Persecution” broadly refers to serious threats or inflictions 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. Proving persecution for imputed political opinion requires showing a causal link between one’s persecution and the persecutor’s beliefs and perceptions. This can be difficult, especially when persecutors do not explicitly describe or announce the motivations behind their actions.
In such situations, victims should try to show that their case fits an established pattern of persecution against similarly situated persons in their home country. Evidence for this might be found in news media articles as well as reports by human rights organizations and government agencies; the U.S. State Department’s Country Reports on Human Rights Practices, for example. Also see Preparing Persuasive Documents for Your Asylum Application.
In particular, when an asylum applicant has not suffered past persecution but fears the possibility of being persecuted in the future based on a political opinion that might be imputed on the basis of associations or personal characteristics, the applicant will likely be expected to show that other persons who are similarly situated were targeted on the same ground in the past. Otherwise, immigration officers and judges might deem the person's asylum claim too speculative.
So, for example, if your father was persecuted as a political dissident in Guinea, but your mother and siblings still live there freely, then you could have a harder time establishing a well-founded fear of persecution by association with your father. By the same token, if other family members have been targeted, it would strengthen your case.
The assistance of an immigration attorney could significantly improve any asylum case’s chances of success. The attorney can help you highlight the most compelling portions of your claim, overcome any negative information, prepare the application and supporting documents indicating a pattern of persecution based on the same political opinion as has been imputed to you, help you prepare to testify, and appear with you, either at the Asylum Office or in Immigration Court.
Fortunately, asylum is an area where you'll find a lot of help from volunteer attorneys or nonprofit (charitable) organizations serving immigrants and refugees.
If you were a victim of domestic violence in your country of origin, you may, under limited circumstances be eligible for asylum, provided that:
You would need to try to show how cultural or societal views prevalent in your home society regarding your and your persecutor’s respective social roles and statuses might explain not only why your government is unwilling or unable to protect you from domestic violence but also why you are a target of persecution on the applicable ground.
Thus, for example, if you are a woman (as most victims of domestic violence are), then, depending on the country where you are from (and perhaps also on the U.S. state where you live), you might be able to claim domestic violence-based persecution on the ground of your membership in a particular social group—a group that is largely defined by widespread perceptions of your gender’s proper domestic role and subordinate social status.
Women are more likely than men to be victims of domestic violence. This is because men are generally more likely to inflict or threaten physical harm upon women at an interpersonal level, and also because male-dominated societies often try to limit women’s social roles to the domestic sphere while systematically subordinating women's status, including in the justice system.
As a result, women might be forced to remain in an environment where their abuse will be tolerated and perhaps even expected. Consider, for example, societies where it is not considered criminal for a husband to sexually assault his wife, or societies where women are stoned to death in so-called “honor killings” by relatives. Nevertheless, women’s vulnerability to domestic violence does not, by itself, constitute a recognizable basis for membership in a particular social group.
Qualifying for membership in a particular social group can be legally complex. Usually, it means describing one’s group membership in terms of a characteristic that is difficult or impossible to change. It might also involve highlighting the group’s social visibility, as well as other factors.
Attorneys often try to make a case for domestic violence victims' group membership based on women’s inability to leave their domestic relationship, both personally and in terms of societal support or the lack thereof. In such a case, you would need to describe in detail the specific obstacles that would keep you from leaving, including specific acts or threats by your persecutor as well as specific ways in which your country’s laws or norms (especially on matters of marriage, divorce, or domestic hierarchy) would amplify the problem, for example because any police you complain to would offer no help.
Hence, for example, if you are a married woman from Afghanistan, then you could define your group as “married women from Afghanistan who are unable to leave their domestic relationship”—but not as “women from Afghanistan who are victims of domestic violence.”
In 2014, a woman from Guatemala used this strategy successfully before the Board of Immigration Appeals in a case called Matter of A-R-C-G- et al. (26 I&N Dec. 388 (B.I.A. 2014)). Having suffered regular and serious beatings, and attempted to get help from the police (who told her they wouldn't interfere with a marital relationship) the applicant repeatedly tried to leave and stay with her father. Her husband, however, sought her out and threatened to kill her if she did not return to him. On this basis, the B.I.A. found that the woman had defined a recognizable social group and was potentially eligible for asylum. (For technical reasons, however, the B.I.A. didn't actually grant asylum, but sent the case back to the Immigration Judge.)
Also, if you're applying affirmatively (not in removal proceedings), and feel uncomfortable explaining what you underwent in front of a male asylum officer, you might consider requesting a female officer.
Although “domestic violence” has no universal legal definition, this and related terms are usually understood to mean the threat or infliction of physical harm by one person on another in a family, intimate relationship, or household. (A household is a group of people who live together, whether or not they are related by blood, marriage, or adoption.)
A few examples include: A husband beating or raping his wife; parents threatening to beat their son or daughter; a mother-in-law beating her daughter-in-law; or foster parents sexually abusing their foster child.
Such violence could involve serious or persistent physical harm. However, it would still not amount to persecution on an applicable ground unless it was perpetrated by a person or group that the victim’s government cannot or will not control.
For example, if your father beat you for wanting to marry a person of a different race, but your home country’s government has proven unresponsive and unable to protect you, then you could qualify for asylum on the basis of race.
Likewise, if your father beat you for choosing to convert to a different religion (or for failing to comply with his orthodox interpretation of your common religion), but your home society considers such treatment to be a legitimate exercise of parental authority and, as a result, your government has proven unwilling to protect you (even turning you over to your father whenever you solicit its help), then you could qualify for religious asylum.
In either case, you should be ready to show that relocating to another part of the country would be too difficult. Under basic asylum eligibility rules, someone who can relocate and live safely within the another part of the home country will not be able to demonstrate a well-founded fear of persecution and will not be granted asylum in the United States.
Whether your children can be included in an asylum application (and therefore be granted asylum along with you) depends on their age, marital status, and location, as follows.
Given the difficulties in not just formulating but also proving the particularity of social groups, women seeking asylum for domestic violence based on their gender could greatly benefit from the assistance of a knowledgeable immigration attorney.
]]>Although U.S. law does not explicitly mention ethnicity as one of the five protected grounds, it is nonetheless well-established in U.S. law (based on judicial and administrative decisions) that asylum and refugee protection applies to persons who have been or might be persecuted due to membership in an ethnic group. The distinction between this ground and some of the others (such as race and nationality), however, is not always clear.
This article clarifies the use of ethnicity as a distinct category. It also discusses forms and examples of ethnic persecution that could trigger asylum and refugee protections, as well as common difficulties that applicants to these statuses might encounter in attempting to prove their case.
An ethnic group is a social group typically identified on the basis of shared cultural history; especially linguistic history. It is similar to, and sometimes considered synonymous with, a national group. However, nationality (broadly defined to refer not necessarily to a group’s actual or potential citizenship but rather to its shared political history or aspirations) is a more modern category, often associated with independent states.
By contrast, ethnicity can be shared either within or across state and other political boundaries. For example, while many Kurds in Turkey and Iraq might have a strong desire for full political independence, few Quiché people living in Guatemala seem to have expressed such sentiments.
Ethnic groups are also often associated with racial categories (which are usually based on shared physical characteristics). This is because long lines of shared cultural history often run in close parallel with lines of shared ancestry and geographic origins. However, racial categories tend to be broader and vaguer, applying to multiple ethnic groups at the same time.
At the least, membership in an ethnic group would count as a form of membership in a particular social group, which, in the context of asylum and refugee law refers to people sharing some innate, unchangeable, or otherwise fundamental characteristic (such as native or ancestral language and others customs).
If you are claiming persecution on the basis of your perceived ethnic identity, you can always apply for protection under the “particular social group” category (though nationality or race might provide alternative grounds). Do not worry about the size or age of the group, or about the fact that you do not self-identify with it (if that’s the case). Focus instead on establishing your persecutor’s beliefs about the group.
The word “persecution” generally refers to serious threats or infliction 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.
There have been many examples of ethnic persecution throughout history. Genocides are the most dramatic; that is, systematic killings aimed at exterminating large numbers of people based on their membership in a particular group. (Such killings occurred, for instance, in Burma in 2016 and 2017, when the Burmese military committed planned atrocities against the Rohingya, in Rwanda in 1994, when Hutu militia targeted Tutsis, and in Germany during World War II, when the Nazi government targeted persons of Jewish descent, among others they deemed "undesirable.") Clearly, people who escape genocide are eligible for asylum or refugee status.
However, ethnic persecution need not take such radically violent forms to trigger asylum or refugee protections. As in cases of racial persecution, severe and persistent forms of ethnic discrimination (including denials of basic human rights, or even basic civil rights such as the right to vote) can also qualify victims for asylum or refugee status in the United States. Such discrimination need not be explicitly aimed at hurting the affected group; proving that the negative impact or enforcement of a seemingly neutral law falls disproportionately on the group may suffice, although this can be a harder case to make.
Nor need the persecution be widespread. If you have been beaten, threatened, or otherwise individually targeted by government agents or other groups based on your ethnicity, you could focus on describing the particular circumstances of your case. Nonetheless, evidence of a larger pattern of persecution would strengthen your case.
As in all cases of people seeking asylum or refugee status, claims of persecution based on ethnic group must establish a causal link (or “nexus”) between the ethnic identity and the persecution. This can be straightforward in some cases. However, in others—particularly situations involving civil strife—proving that the harm suffered was not incidental or random can be unexpectedly difficult.
For example, if, during a civil war, you have been caught in a cross-fire, or you have participated in the conflict (as a belligerent, regardless of whether or not you have persecuted anyone else), you might not be eligible for asylum or refugee status.
In addition, although, in most cases where group identity is the basis for an asylum or refugee claim, such identity need only exist in the eye of the persecutor, an argument could be made that, unlike other categories such as race and religion (which both defy rigorous definition), ethnicity is subject to more objective identification. This could mean, in practice, that less well-known ethnic group identity claims are somewhat less likely to be recognized.
Finally, you should expect a somewhat more difficult case if claiming persecution based not on your misclassification as a member of a particular ethnic group, but rather based on your association in other ways with members of the group. (This might apply in cases of interethnic dating, for example.)
An experienced immigration attorney can be hugely helpful in evaluating the strength of your asylum claim based on ethnicity, drafting affidavits, preparing witnesses, and accompanying you to in-person interviews or court hearings. Also see Applying for U.S. Asylum: How Much Will It Cost? and How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.
]]>This article will focus on whether your sexual orientation—that is, whether you identify as gay, lesbian, transgender, bisexual, intersex, genderqueer, non-binary, asexual, or otherwise fall into the category often called LGBTQIA—could match one of these five grounds. The best bet is usually to claim membership in a particular social group as the basis for an asylum claim, though it's important to remember that you can choose more than one ground.
(For more information on basic eligibility for asylum, see Asylum or Refugee Status: Who Is Eligible? and 8 U.S.C. § 1158.)
First, let's clear up a matter of word usage. The word "refugee" is a broad one when it comes to who the United States will offer protection to. But procedurally, a refugee is only someone who applies for protection from overseas, through the United Nations High Commissioner for Refugees (UNCHR), and who is then assigned to the United States.
Applying for asylum is the only option for someone who is already in the United States, whether they arrived legally, such as with a visa, or illegally, such as by crossing the border without permission.
No, we're not talking about a party or group of friends here. A "social group" is the most expansive of the five grounds for asylum, and many categories of people can fit within its definition. It is largely up to you to name or define the group you claim to belong to. The immigration judge or asylum officer will look at whether the members of the group you are crafting have an immutable characteristic: in other words, have a trait that either cannot be changed or one that is so fundamental to who they are that they should not be required to change it (see Matter of Acosta, 19 I&N Dec. 211 (B.I.A. 1985)).
U.S. courts have found sexual orientation to be a recognizable social group, specifically saying that homosexuals and transgender people constitute a social group for purposes of claiming asylum. Some of the early decisions on this include Matter of Toboso-Alfonso, 20 I&N Dec. 819 (B.I.A. 1990), Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997), and Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000)).
Later cases have continued to uphold or follow this "social group" finding, such as Ayala v. U.S. Attorney General, 605 F.3d 941 (11th Cir. 2010), which concerned a Venezuelan gay, HIV-positive man; Todorovic v. U.S. Atty. Gen., 621 F.3d 1318 (11th Cir. 2010), which concerned a Serbian gay man; Doe v. Att’y Gen. of the U.S., 956 F.3d 135 (3d Cir. 2020), which concerned a gay man from Ghana; and Xochihua-Jaimes v. Barr, 962 F.3d 1175 (9th Cir. 2020), concerning a lesbian woman from Mexico.
This is not to say that all cases of LGBTQIA-based asylum result in approval; just that the denials are usually based on issues such as failure to prove the facts alleged, or failure to prove other important elements of an asylum claim, such as a that a violent event wasn't a one-time concern, in a country where the police normally protect gay people as much as anyone else, and where there's no reason to fear future persecution.
None of the U.S. court cases to date have upended the core finding that an LGBTQIA identity can be considered a social group for asylum purposes.
Depending on which immigration judge or asylum officer you meet with, proving that you fit somewhere within the LGBTQ definition can be challenging. You'll want to submit copies of any relevant documents with your application for asylum and bring the originals to the hearing or interview. (See Preparing Persuasive Documents for Your Asylum Application.)
These documents might include, for example, a new birth certificate after sexual reassignment, a marriage certificate that demonstrates you are married to someone of the same gender, photos of you at events with your partner(s), or membership cards for relevant organizations or known gay clubs or bars. You can also submit sworn affidavits from people who know you or with whom you've been partnered.
The immigration judge or asylum officer will likely question you about whether you are truly lesbian, gay, or whatever sexual orientation or identity you have claimed. These questions should be meaningful without being inappropriate. All questions should be specific for your case and not generalized.
For example, if you testify that you are living openly in your country and that you are active in the gay community, it would be reasonable for you to, when asked to, name gay rights organizations, publications, or certain clubs in your area. If you testify that you have been living a closeted life in your country, you would not necessarily be able to name these organizations or clubs—but should be ready to explain or show how that affected your life.
If you were loud and proud about your identity, whether that meant volunteering for a gay rights group, leading a pride parade, or writing media articles or social media posts that were widely viewed, you could be viewed as having expressed a political opinion. If the authorities in your country viewed that opinion as offensive and persecuted you accordingly (or you reasonably fear they will do so in the future), that too could be a ground upon which to base your asylum claim.
See Claiming Asylum Based on Persecution on Account of Political Opinion for more information.
Mere harassment or personal affronts, such as a classmate calling you names or family members refusing to invite your partner to celebrations, probably won't be enough to support an LGBTQ-based asylum claim.
As discussed in What Counts as Persecution When Applying for Asylum or Refugee Status, you will need to show more serious physical or emotional harm, such as threats of violence, severe discrimination, or unwanted medical or psychiatric treatment, including efforts to "cure" you of your identity.
Assuming you can prove that your known membership in the LGBTQ community makes you a member of a particular social group, you will have to show that the persecution you suffered or fear is on account of this. Provide details about what happened to you on your application for asylum (Form I-589) and during your in-person testimony. Completely describe incidents you experienced, including names, dates, and why you believe the harm is tied to your being gay, lesbian, transgender, or something related.
Don’t forget to submit country-condition information to show that homosexuals and/or transgender persons are persecuted in your country. You can submit copies of any laws, reports of incidents in newspapers, or statistics compiled by organizations. Have a look at the U.S. Department of State Country Reports on Human Rights for information that might support your claim. Nonprofit organizations dedicated to LGBTQIA rights, such as Immigration Equality, also offer helpful materials on country conditions.
Your application, documents, and testimony will be assessed for detail, consistency, and plausibility. If the judge or officer finds that you have presented a coherent, detailed, consistent, and plausible story that explains how your past persecution or well founded fear of future persecution was on account of your sexual orientation, you can be granted asylum even without specific proof or documents.
The opposite is also true, however. If the asylum officer or judge doesn't believe what you're saying, your claim can be denied. For more on how to prepare, and on demonstrating your credibility, see Chances of Winning a Grant of Asylum in the U.S.
If you've determined that you'd like to apply for asylum because you are afraid to return to your country of origin owing to persecution you fear or experienced there, you'll find an overview of the application procedure in How to Prepare an Affirmative Asylum Application.
Don't delay. U.S. law requires that you submit this within one year of entering the United States, though exceptions do exist, particularly for changed circumstances. If, for example, your country recently passed a law criminalizing homosexual behavior, or you have just realized or acted upon your true identity, those could be grounds for a late submission of your Form I-589 for asylum.
It is always a good idea to consult with an immigration attorney when thinking about filing an application for asylum. There are even immigration attorneys who specialize in serving people within the LGBTQ community. And if you're low-income, be sure to read How to Get a Lawyer to Represent You Pro Bono (Free) in Immigration Court Removal Proceedings.
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