Government vs. Non-Government Persecutor: What's the Difference for Your Asylum Claim?

The types of evidence you'll need to provide will vary depending on who persecuted you: a state actor or a non-state actor.

One of the first issues that comes up when someone applies for asylum in the U.S. is, who was -- or might, in the future, be -- the persecutor? You do not necessarily have to prove persecution by a state actor in order to claim asylum, but you will have to prove some different things if someone outside the government was the source of your difficulty.

This article will look at both what you have to prove when the persecutor is a member or employee of your government (a state actor) and what, by contrast, you have to demonstrate when the persecutor is someone outside of the government (a non-state actor).

By way of background, to be eligible for asylum, an Immigration Judge or Asylum Officer must decide that a person is a refugee. Refugees must have either suffered persecution in the past or have a well-founded fear of persecution in the future on account of one of five grounds: either race, religion, nationality, membership in a particular social group, or political opinion (Immigration and Nationality Act or “I.N.A.” Section 101(a)(42)).

Applying for Asylum When the Persecutor Works for the Government

If the harm you experienced or fear was caused by anyone working for the government, it is likely that your persecutor is a state actor. Here are some examples of state actors:

  • the police
  • a politician
  • the military, or
  • judges.

People in such positions of power or authority are often uniquely able to inflict persecution, such as soldiers or police offices targeting those in opposition parties, cadres carrying out forced abortions and sterilizations, and even government officials arresting people for worshiping according to their religion.

If your persecutor works for the government, you’ll need to show that he or she is not harming you for personal reasons that have nothing to do with any of the five grounds mentioned above. In most cases, it is clear that government employees are considered state actors.

The Government’s Power Is Presumed to Extend Throughout Your Country

If the government or an official is the persecutor, you do not have to prove that you could live safely somewhere else in your country. The persecution you suffered or fear is considered to exist throughout your country.

This can be helpful if you live in a country that is made up of many islands, like Indonesia or the Philippines. If, for example, the police persecuted you in Cebu, you should not have to explain why you couldn’t live safely in Palawan. Since the persecutor is the state, the persecution is presumed to be countrywide.

Non-State Actor—The Persecutor Does Not Work for the Government

Many people claim asylum based on having been harmed by, or fearing harm by non-state actors. For example, a Baptist may claim persecution by nationalists; a gay or lesbian person may claim persecution by uncontrolled street gangs; or an abused spouse may claim persecution by her abuser.

If the persecutor is a non-state actor, one of the most important things that you have to show the immigration judge or asylum officer is that your government would not or could not protect you, no matter where you were to go in your country. Here are some questions you should be able to answer:

  • Did you report any incidents to the police?
  • How did the police respond?
  • Did the police take a report? If no, why not? If yes, did they make an arrest?
  • If you are a domestic violence victim who didn’t call the police, would the police have intervened had you called them?
  • Were you afraid to call the police?

Perhaps your country has a law forbidding the type of harm you experienced or fear, but the government does not enforce the law. For example, your country might have a law against female circumcision when in reality almost 95% of the girls in your country are circumcised. Or, your country might have a law against forced marriage, but an ongoing cultural practice in which young girls are still married to older men by their families.

In such a cases as these, you would want to find statistics and reports that show that the government is unwilling or unable to protect you even though a law forbidding the persecution exists. Many international and smaller organizations make these types of reports. You can also look at newspaper articles or the State Department Reports on Human Rights Practices.

It is very important to submit such proof with your application for asylum. A judge or officer may research whether your country has a law to protect you but will not necessarily look at whether the government actually protects you in your country.

How Far Does Your Non-State Persecutor’s Power Extend?

Unlike situations involving a government persecutor, you will, with a non-state persecutor, have to prove that you could not find safety somewhere else in your country. If, for example, the Gamaat Islamia is beating you in Alexandria because you are a Coptic Christian, the U.S. decision-maker in your asylum case will ask whether the problem couldn’t have been avoided by your moving to another street or another city, such as Cairo.

You should explain why it would not be reasonable for you to move to another city. If you believe the Gamaat could find you in another city and you wouldn’t be safe anywhere in your country, provide reports that show the Gamaat is connected throughout Egypt. If, for example, you are a single woman with no family ties elsewhere and your culture prevents you from surviving on your own, you should provide country conditions information to explain and justify your decision to leave your country rather than to relocate inside your country.

A lawyer who has experience with asylum law can be a good resource. It is a good idea to consider consulting with a lawyer when putting together an asylum claim.

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