What Counts as Persecution When Applying for Asylum or Refugee Status

Persecution can mean many more things than physical harm.

By , J.D.

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 would constitute "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 who move to a different country for reasons of mere convenience or economic betterment are not "refugees." But beyond that, the matter gets a harder to pin down, as addressed in this article.

How U.S. Courts Describe Persecution

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 has noted 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).)

Persecution can definitely include harms that aren't physical, or immediate threats to one's life or freedom. (See INS v. Stevic, 467 U.S. 407 (1984); Surita v. INS, 95 F.3d 814 (9th Cir. 1996.).

Types of Harm That Amount to Persecution

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:

  • physical violence: for example, beating, assault, handcuffing, rape or sexual abuse, female genital mutilation, electric shocks, invasive physical examinations, forced abortion or sterilization, forced labor, and so on, whether or not this caused serious injuries or long-term damage or required medical attention
  • torture: a severe human rights violation that may involve physical violence, deliberate infliction of mental harm, prolonged unlawful detention, rape and sexual violence, and so on
  • other violations of human rights: for example, genocide or slavery
  • threats of harm: particularly if the threatened harm is serious, caused emotional or psychological damage, or are credible, for example because the persecutor has already inflicted harm on the person or his or her family or others similarly situated
  • unlawful detention: punishment for a regular crime is not persecution, but if the person is detained without due process or formal charges or for discriminatory or political reasons, this may rise to the level of persecution, particularly if the detention was combined with mistreatment
  • infliction of mental, emotional, or psychological harm: this can include intimidation, surveillance, interference with privacy, long-term threats, or being forced to engage in conduct that is not physically painful or harmful but is abhorrent to the person's deepest beliefs
  • substantial economic discrimination or harm: for example, deliberate deprivation of food, housing, employment, or other life essentials, or ransacking, destruction, or confiscation of property
  • other discrimination or harassment: for example, passport denial, pressure to become an informer, or restrictions on access to education; also, some applicants might need to show a combination of actions against them if none by themselves was serious to fit traditional understandings of persecution.

Who Was the Persecutor?

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.

Whether women who decided to leave an abusive spouse qualify for asylum has been a matter of debate and legal reversals. For women who live in a male-dominated country where their rights are unprotected, the decision to leave an abusive spouse and a country that wouldn't protect them could arguably be viewed as a political opinion, or an indication that they're part of a particular social group. Many have been granted asylum on this basis. Under the Trump Administration, however, then-Attorney General Jeff Sessions reversed years of precedent to declare that immigrants fleeing domestic violence were in most cases ineligible for asylum. Biden's Attorney General Merrick Garland overruled the Sessions decision in 2021, however, returning asylum law to what it was before.

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 enough detail to establish the persecutor's motive.

Why Were You Selected for Persecution?

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.

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