Qualifying for Asylum Based on Persecution for Your Race

When persecutors against against people perceived to belong to a particular race, this can give rise to an asylum claim in the United States.

By , Attorney · Florida Coastal School of Law

Under U.S. immigration law, if you have been persecuted or you fear being persecuted in your home country on the basis of race, then you can qualify for asylum or refugee status in the United States. (See 8 U.S.C. § 1158.) This would allow you to live and work in the country, and would make you eligible to apply for permanent residence (a green card) after one year.

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.

What Counts as "Race" Under U.S. Immigration Law

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.

What Counts as Racial "Persecution" Under U.S. Immigration Law

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 You Were (or Might Become) a Victim of Racial Persecution

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.

Getting Legal Help

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.

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