If you have left your home country and are seeking protection within the U.S. as an asylee or refugee, you will need to show that the harm you faced in that country, or fear you will encounter if you go back there, constituted or constitutes “persecution.”
But what is persecution according to U.S. immigration law? It’s been clear from the early days of legal recognition of refugee status that people move to a different for reasons of mere convenience are not “refugees.” But beyond that, the matter gets a harder to pin down, as addressed in this article.
The word “persecution” comes straight from U.S. immigration law, which mentions it in its definition of “refugee.” (See the Immigration and Nationality Act at I.N.A. Section 101(a)(42).) However, the law does not give any separate definition of persecution, nor specifically list the types of harm that will be considered.
The exception is that (in a relatively new section added in 1996), the law states that people who have or fear being “forced to abort a pregnancy or to undergo involuntary sterilization, or . . . persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program” meet the definition of refugee. (This amendment was aimed at mainland China with its one-child policy).
In most cases, however, individual applicants will need to prove that what they suffered or fear should be viewed as persecution, drawing on court decisions initiated by previous applicants. Seemingly acknowledging the lack of specificity regarding this concept, the Ninth Circuit Court of Appeals said that, “Persecution covers a range of acts and harms,” and “[t]he determination that actions rise to the level of persecution is very fact-dependent.” (See Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000).)
On the other hand, the Seventh Circuit notes that, ““actions must rise above the level of mere ‘harassment’ to constitute persecution.” (See Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000).) And the First Circuit added that the experience “must rise above unpleasantness, harassment and even basic suffering.” (See Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000).)
Another important case from the Ninth Circuit described persecution as “an extreme concept, marked by the infliction of suffering or harm … in a way regarded as offensive.” (See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004).)
The above definitions aren’t very satisfying. More often, looking at what actual types of harm have been recognized as forms of persecution helps. These include:
The persecution should have come from either your country’s government or other authorities or groups that the government is unable to control, such as guerrillas, warring tribes or ethnic groups, or organized vigilantes.
Women who suffered persecution or who have a well-founded fear of persecution because they decided to leave an abusive spouse may have a claim for asylum. If you live in a male-dominated country, the decision to leave an abusive spouse or leave the country may be viewed, under U.S. immigration law, as a political opinion. You will need to demonstrate that the police in your country could not or would not protect you, for example by gathering any police reports you made as well as more general reports (for example, from newspapers or human rights organizations) or expert affidavits about conditions in your country with regards to the treatment of women.
What if you don't know who, exactly, was persecuting you? No rule says you have to be able to identify your persecutor. What you will have to do is explain is what exactly happened, and provide as much detail as possible.
The persecution must have been based on at least one of five grounds: your race, religion, nationality, political opinion, or membership in a particular social group. It will be crucial to your case that you figure out which of these categories you fit into, and show a connection (“nexus”) between the persecution and one of them.
For a more in-depth analysis of whether what you suffered or fear amounts to persecution, consult an experienced immigration attorney. And for more information on U.S. asylum law, see the Asylum & Refugee Status section of Nolo’s website.