Do You Need to Have Actually Been Harmed to Get Asylum?

A well-founded fear of persecution can be enough to base an asylum claim on.

If you are in the U.S. because you fear persecution in your home country—even if nothing terrible actually happened to you before you left, or if conditions there got worse after you left—you may still be able to apply for the remedy known as “asylum.” If approved, you will receive a work permit 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 asylum not only to people who have suffered past persecution, but also to those who suffered no persecution in the past but have a well-founded fear of future persecution. (See the Code of Federal Regulations at 8 C.F.R. § 1208.13(b).) This article will discuss what it means to have a well-founded fear of persecution.

It is typically easier to prove a case involving actual past persecution, because it creates a rebuttable presumption that you have a well-founded fear of future persecution. But a case based on fear alone is possible to win. To evaluate whether your fear is objectively reasonable, however, your claim will be considered in light of a four-part test developed by the Board of Immigration Appeals (B.I.A.).

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. 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.

Showing That Your Fear of Future Persecution Is Well-Founded and Reasonable

U.S. courts say 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 to the home country, but that fear shouldn’t be out of proportion to reality. Credible testimony is enough by itself to show a genuine fear of harm.

Satisfying the objective prong of this two-part test takes more work. 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:

  • 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's 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? A persecutor who has since been sent to prison, 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?

Make sure to 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. Provide 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).

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.

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.

Fortunately, asylum applicants don’t have to prove that persecution is guaranteed to await them upon return. As one court said, “[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) and INS v Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207 (1987).

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.

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 five grounds: either your race, religion, nationality, membership in a particular social group, or political opinion. (See Why Were You Persecuted? Proving the "Nexus" or Motivation in an Asylum Claim” 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 grounds—perhaps because you’re just one of many people living in the middle of a conflict zone—you 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 approved.

In cases where war or natural disaster is the cause of your fear (which ordinarily isn't enough to win asylum by itself), 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.

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. And because asylum can be complicated to understand and to navigate, consider consulting with an experienced immigration lawyer.

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