An Introduction to Asylum Law - ABA YLD 101 Practice Series

By Ilissa M. Gould

Asylum, and other related forms of relief, can be a very confusing area of law for those just starting out in immigration practice. Asylum cases form only a small percentage of the cases heard by Immigration Courts - in fiscal year 2006, Immigration Courts around the country received 54,432 asylum cases, and 58,040 were completed. 1 However, the cases can be time-consuming and challenging, and quality representation by a conscientious attorney can make a world of difference for the asylum applicant. And, whether one is an immigration practitioner or working on a pro bono basis, representing an asylee can have tremendous rewards for the attorney, both personally and professionally.

To give a brief overview, the Refugee Act of 1980 was passed in order to provide fairness and a uniform process to determine who is a refugee. There are millions of refugees in the world. Overseas refugees are also known as offshore refugees. They are people who fled their countries of origin and made their way to refugee camps, or are still in their home countries. Either way they need to go somewhere safe, like the United States, Canada or other refugee-receiving nations. Onshore refugees are known as asylum seekers: individuals who have already made their way to the U.S. and are seeking asylum. Both offshore refugees and onshore asylees have to meet the same definition of "refugee, " found in § 101(a)(42) of the Immigration and Nationality Act:

"any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. "

So every asylee is also a refugee. Additionally, asylum is available both to those fleeing persecution based on their political activities (the most common popular perception of asylum) and those fleeing other forms of persecution. 2

Seven nationalities were among the top ten nationalities granted asylum each year during the five-year period from 2002 to 2006: China, Colombia, Haiti, Albania, India, Indonesia, and Armenia.

  1. Asylum
    Aliens apply for asylum in two ways. First, many apply "affirmatively, " completing an asylum application and filing it with a Department of Homeland Security (DHS) Asylum Office. Others file "defensively " by requesting asylum before an Immigration Judge after they are already in removal proceedings. Aliens who file affirmatively with DHS, but whose requests for asylum are denied after an interview, may be placed in removal proceedings and referred to the Immigration Court for further adjudication. Claims for asylum and withholding of removal, which will be discussed briefly infra, are heard concomittantly. Generally aliens apply for both forms of relief, and frequently apply for protection under the United Nations Convention Against Torture ("CAT ") as well. The evidence presented in court is the same, though additional evidence may be necessary to support a CAT claim.

    There are some mandatory bars for asylum, though other forms of relief, such as withholding of removal or protection under the CAT, may be available to some individuals who are otherwise barred from receiving asylum:
    1. Any alien who ordered, incited, assisted, or otherwise participated in the persecution of others is barred from receiving asylum in the United States
    2. Any alien who has been convicted of a particularly serious crime in the US is barred
    3. Any alien who is found to pose a danger to national security, or who is a terrorist, is barred
    4. Any alien who firmly resettled in a third country between leaving their country of origin and arriving in the United States is barred.
    Additionally, all applicants must apply for asylum within one year of arriving in the United States, or else their claim is barred. There are two exceptions. First, changed circumstances - for example, there was a coup while the alien was in the United States, his or her personal circumstances changed, etc. Second, extraordinary circumstances - the alien has a serious physical or mental impairment, was provided ineffective assistance of counsel, death or serious impairment of a close family member, status as a minor, etc.

    In applications for asylum, withholding of removal, and withholding of removal under the CAT, the Court generally must make a threshold determination of the alien's credibility. Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998). An applicant's own testimony is sufficient to meet her burden of proving her asylum claim if it is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis of her fear. 8 C.F.R. § 1208.13(a). Testimony is not considered credible when it is inconsistent, contradictory with current country conditions, or inherently improbable or implausible. Matter of S-M-J-, 21 I&N Dec. 722, 730 (BIA 1997).

    In an asylum adjudication, the applicant bears the burden of establishing statutory eligibility, which requires a showing of past persecution or well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA § 101(a)(42)(A). Uncorroborated testimony that is credible, persuasive, and specific may be sufficient to sustain the burden of proof to establish a claim for asylum. See INA § 208(b)(1)(B)(ii); 8 C.F.R. § 1208.13(a). The Board of Immigration Appeals ("BIA " or "the Board ") has recognized the difficulties an asylum applicant may face obtaining documentary or other corroborative evidence to support her claim of persecution. Matter of Dass, 20 I. & N. Dec. 120,124 (BIA 1989). However, where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant's claim, such evidence must be provided as long as the applicant has the evidence or can reasonably obtain it. INA § 208(b)(1)(B)(ii). If such evidence is unavailable, the applicant must explain its unavailability and the immigration judge must ensure that the applicant's explanation is included in the record. Matter of S-M-J-, 21 I&N Dec. 722, 724 (BIA 1997). The absence of such corroboration may lead to a finding that an applicant has failed to meet his burden of proof. Id. at 725-726.

    Courts hold that persecution contemplates harm or suffering that is inflicted upon an individual because the individual possesses some belief or characteristic that the persecutor finds offensive, will not tolerate, and seeks to overcome in the individual by a means of punishment of some sort. Persecution within the INA does not encompass all treatment that society regards as unfair, unjust, or even unlawful or unconstitutional; generally, the treatment must be severe. The persecution also must be country-wide.

    Most laymen, when contemplating asylum, imagine that individuals are always fleeing persecution that has already occurred. However, the INA contemplates grants of asylum to individuals who cannot return to their home countries due to a well-founded fear of future persecution. An applicant for asylum demonstrates a well-founded fear if she presents specific facts establishing that she has actually been the victim of persecution. Evidence of past persecution raises a rebuttable presumption that an alien has reason to fear future persecution. This presumption may be rebutted by proving by a preponderance of the evidence that conditions in the country have changed to such a degree that there is little likelihood of present persecution. The burden is on the Department of Homeland Security to make a showing of changed country conditions. A common example would be an election resulting in a change of government.

    However, failure to establish past persecution does not preclude an alien from establishing a well-founded fear of future persecution; rather, it merely means she is not entitled to the same presumption. The legal standard is something less than "more likely than not. " The Board of Immigration Appeals has held that fear is well-founded if "a reasonable person in the applicant's circumstances would fear persecution. " A reasonable possibility of suffering persecution, in other words, meaning less than a 50% chance.

    A well-founded fear of persecution must be both subjectively genuine and objectively reasonable. The standard for proving a "well-founded fear of persecution " is the "reasonable person test. " To demonstrate a subjective fear of persecution, an applicant must demonstrate that her "fear has some basis in the reality of the circumstances and is validated with specific, concrete facts, " and is not "mere irrational apprehension. " The objective component requires that "a reasonable person in similar circumstances would fear persecution on account of " one or more of the protected grounds. An alien therefore must show some degree of likelihood that she may be persecuted. This is determined on a case-by-case basis.

    In addition to demonstrating past persecution and/or a well-founded fear of future persecution, asylum applicants must demonstrate that the persecution was or would be
    on account of race, religion, nationality, membership in a particular social group, or political opinion. This is generally called the "nexus " requirement. Even treatment that is regarded as "morally reprehensible " is not "persecution " within the meaning of the Act unless it occurs "on account of " one of the five enumerated grounds. While the applicant need not show conclusively what the motive for the persecution would be, or that the persecutor would be motivated solely by a protected ground, the applicant must produce evidence from which it is reasonable to conclude that the harm would be motivated, at least in part, by an actual or imputed ground. When the claim is based on such a pattern or practice directed toward a particular group, the applicant must establish her own inclusion within the group. 8 C.F.R. 1208.13(b)(2)(iii).

    Race and nationality claims are infrequent. The International Religious Freedom Act of 1998 created the Office on International Religious Freedom. This Office helps create annual Department of State Human Rights reports and a separate Annual Report on International Religious Freedom, used to help adjudicate religion-based asylum claims.

    Political opinion cases are much more common. Asylum applicants frequently claim that they have been persecuted based on political opinions they actually hold, as evidenced by their participation in political parties, student movements, demonstrations, etc. There is also an accepted doctrine in asylum law that recognizes "imputed political opinion " - the asylum applicant may not actually hold a certain political opinion, but she is persecuted because others believe that she does (perhaps because her family members are politically active, or because she was at the wrong place at the wrong time.)

    One of the most contentious and confusing areas of asylum law involves what exactly constitutes a particular social group, and membership therein. The Supreme Court and BIA interpret the phrase "membership in a particular social group " to mean a group of persons who all share a common, immutable characteristic. The "common characteristic that defines the group ... must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences. Only when this is the case does the mere fact of group membership become something comparable to the other four grounds of persecution under the Act ... " Matter of Acosta, 19 I & N Dec. 211, 233 (BIA 1985). The common characteristic may be as innate as sex, color, or kinship ties, or as subtle as a shared past experience and it will be determined on a case-by-case basis. Id. factors to be considered in determining whether a particular social group exists include whether the group's shared characteristic gives the members the requisite social visibility to make them readily identifiable in society and whether the group can be defined with sufficient particularity to delimit its membership. Additionally, the group must not be indeterminate or too vaguely defined. Matter of C-A-, 23 I & N Dec. 951 (BIA 2006).
  2. Withholding of Removal
    Withholding of removal, in contrast to asylum, confers only the right not to be deported to a particular country rather than the right to remain in the U.S. INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). To establish eligibility for withholding of removal, an applicant must show that there is a clear probability of persecution in the country designated for removal on account of race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407 (1984). Such a showing requires that the applicant establish that it is more likely than not that she would be subject to persecution if returned to the country from which she seeks withholding of removal. INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). Thus, the standard for withholding of removal is more stringent than the standard for asylum. Stevic at 429-430. There is no discretionary element. Therefore, if the applicant establishes eligibility, withholding of removal must be granted. INA § 241(b)(3). Additionally, there is no statutory time limit for bringing a withholding of removal claim, so applicants who are barred from asylum because they did not timely file for asylum may still qualify for withholding of removal..
  3. The Convention Against Torture
    The Convention Against Torture ("CAT ") and implementing regulations provide that no person may be removed to a country where it is "more likely than not " that such person will be subject to torture. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/39/51 (Dec. 10, 1984); Pub. L. 105-277 (1998); 8 C.F.R. §§ 1208.16, 1208.17, 1208.18. The applicant for withholding of removal under the CAT bears the burden of proving that it is "more likely than not " that she would be tortured if removed to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). "Torture " is defined, in part, as the intentional infliction of severe pain or suffering by, or at the instigation of, or with the consent or acquiescence of a public official. 8 C.F.R. § 1208.18(a)(1). Acquiescence of a public official requires that the official have awareness of or remain "willfully blind to the activity constituting torture, prior to its commission, and thereafter breach her legal responsibility to intervene to prevent such activity. Torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions, unless such sanctions defeat the purpose of the CAT. 8 C.F.R. § 1208.18(a)(3). Finally, a pattern of human rights violations alone is not sufficient to show that a particular person would be in danger of being subjected to torture upon her return to that country; specific grounds must exist to indicate that the applicant will be personally at risk of torture. Matter of S-V-, 22 I. & N. Dec. 1306, 1313 (BIA 2000).

    In assessing whether the applicant has satisfied her burden of proof, the Court must consider all evidence relevant to the possibility of future torture, including: evidence of past torture inflicted upon the applicant; evidence that the applicant could relocate to a part of the country of removal where he is not likely to be tortured; evidence of gross, flagrant, or mass violations of human rights within the country of removal; and other relevant information on conditions in the country of removal. 8 C.F.R. § 1208.16(c)(3).

    An applicant who establishes that she is entitled to CAT protection shall be granted withholding of removal under the CAT unless she is subject to mandatory denial of that relief, in which case she shall be granted deferral of removal. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a). An applicant is subject to mandatory denial of withholding of removal under CAT if she participated in the persecution of others, if she was convicted of a particularly serious crime, if there are serious reasons to believe she committed a serious nonpolitical crime outside of the United States, or if there are reasonable grounds to believe she is a danger to the security of the United States. 8 C.F.R. § 1208.16(d)(2). Yet, an alien's criminal convictions, no matter how serious, are not a bar to deferral of removal under the Convention Against Torture. 8 C.F.R. § 1208.17(a).

Any opinions expressed herein are those of the author and do not necessarily represent the views of the United States government or the Department of Justice.


1For more information, see The United States Department of Justice, Executive Office for Immigration Review, FY 2006 Statistical Yearbook, available at: http://www.usdoj.gov/eoir/statspub/fy06syb.pdf

2There are no automatic grants of asylum with one exception, which was created by Congress in 1996 with the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). This law provides for asylum for anyone who has undergone a forced abortion or sterilization in China, or who has a well-founded fear that they, or their spouse, will be forced to undergo a forced abortion or sterilization.

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About the Author

Ilissa M. Gould is a Trial Attorney in the Appellate Division, Department of Justice, Office of Immigration Litigation. From 2006-2008 she worked as a Judicial Law Clerk and Attorney Advisor for the Executive Office for Immigration Review, at the Baltimore and York Immigration Courts, through the Attorney General's Honors Program. Ms Gould is a Vice Chair of the YLD International Law Committee, and has been a Government, Military, and Public Sector Lawyer's Committee Scholar. She received a Bachelor of Arts degree from the School of International Service at American University, and Juris Doctorate in 2006 from Washington University in St. Louis. Ms. Gould is a member of the Maryland Bar.

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