Qualifying for Asylum Based on Persecution of Your Ethnic Group

Although ethnic identity isn't named as one of the five legal grounds for persecution that warrant asylum protection, it's closely related, and has been recognized as a potential ground as well.

By , Attorney · Florida Coastal School of Law

U.S. immigration law provides asylum and refugee protection for people who have been or might be persecuted in their home country based on one or more of five grounds: political opinion, religion, race, nationality, or membership in a particular social group. (See 8 U.S.C. § 1101(a), I.N.A. § 101(a).) Asylees and refugees are allowed to live and work in the United States, becoming eligible for permanent residence (also known as a green card) after one year.

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.

What Is an Ethnic Group?

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.

What Is Ethnic Persecution?

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.

Difficulties in Proving Ethnic Persecution for Asylum Purposes

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.)

Getting Legal Help

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.

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