Claiming Asylum If You Fear, But Haven’t Experienced, Persecution in Your Country

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.

If you are in the U.S. because you fled your country out of fear of persecution—even though nothing terrible actually happened to you before you left—you might still be able to apply for the remedy known as “asylum.” If approved, you will receive a work permit (EAD) and the right to remain in the U.S. and apply for a green card and, eventually, U.S. citizenship.

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.

First, Are You Sure You Didn’t Suffer Past 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.

What's Meant by Well-Founded Fear of Persecution

U.S. courts have said that for a person’s fear of persecution to be considered “well-founded,” it must be both:

  • subjectively genuine, and
  • objectively reasonable.

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.

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 your 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.

Applicants Must Still Meet Other Standards for Asylum

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.

For more information, see the Asylum & Refugee Status section of Nolo’s website.

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