Explainer Series: Persecution

Asylum has been in the headlines in the last several years. While it is a popular topic in the media, it often is discussed without understanding the broader legal context or requirements.

For this reason, the Immigration Clinic strives to help the public better understand asylum through this series of blog posts about the basics of asylum law. These posts are not legal advice regarding any one asylum seeker’s claim, or the chances of any person or group of people winning asylum. Rather, these posts are meant to help explain just some of the complexities facing asylum seekers.

What is Persecution?

In order to qualify for asylum, asylum-seekers must show that they have been persecuted or have a well-founded fear of persecution.1 Persecution is the “threat to the life or freedom of, or the infliction of suffering of harm upon, those who differ in a way regarded as offensive.”2 Immigration judges are instructed to consider all of the harm that someone has suffered cumulatively in order to determine whether or not someone has suffered persecution.3 Persecution goes beyond mere harassment.4 Acts that may rise to the level of persecution include rape,5 beatings, death threats,6 and extortion.7

Several Circuit Courts across the country, including the Fourth Circuit which covers Virginia, require immigration judges to consider an asylum seeker’s age when determining whether or not harm rises to the level of persecution.8 This is because children could be harmed differently than adults, or be harmed by circumstances that would not cause severe harm to an adult.9

Who Can Be a Persecutor?

In order to qualify for asylum, an asylum seeker must have been harmed or fear harm by (1) their government or (2) an individual or group that their government is unable or unwilling to control.10 Many cases where the government is the persecutor involve harm by the police or military.

When the persecutor is not the government, an asylum seeker must prove that their country’s government is “unable or unwilling” to control the persecutor. Asylum law recognizes that governments can have difficulty controlling nonstate actors without being rendered “unable or unwilling” to control them.11 However, where a government does try to control the private actors, the “efficacy of those efforts” is then evaluated.12 Examples of common nonstate actor groups that cause people to flee their countries include the Mungiki in Kenya,13 MS-13 and M-18 in Central America,14 cartels in Mexico,15 and Boko Haram in Nigeria.16 Importantly, there are individuals who the government may be unable or unwilling to control. This most often comes up in cases of domestic violence, where abusers harm their victims with impunity, or in cases of female genital mutilation/cutting.

Asylum seekers must prove through country conditions evidence and expert testimony that their country’s government is unable or unwilling to protect them from these nonstate actors, whether it is a group or individual. If an asylum seeker is unable to prove this to the judge’s satisfaction, their asylum case will be denied, regardless of the severity of the harm that they suffered.

Does Someone Have to Prove That They Have Suffered in the Past and Fear Future Persecution?

If an asylum seeker proves that they have suffered past persecution, they are presumed to have a well-founded fear of future persecution.17 However, this doesn’t mean that the case is over. The Government can rebut this presumption by showing either that (1) there has been a fundamental change in circumstances, or (2) it is reasonable for the asylum seeker to relocate within their country of origin.18

There are many changes in circumstances which would make it possible that someone would not have a reasonable fear of future persecution. For example, imagine if a political activist came to the United States from a country under a harsh dictatorship. This activist was well-known in their home country for speaking out against the dictator. As they are in the process of applying for asylum, the dictatorship falls, and their country becomes a democracy. It is possible that the government could prove that circumstances have changed such that the activist no longer has a well-founded fear of future persecution, now that the dictator is no longer in power. Whether or not the government would win on this argument is heavily dependent on the conditions in the country, such as who is now in power and the current government’s connections to the former dictator.

Similarly, the government may argue that, although the asylum seeker has suffered harm that rises to the level of persecution, it is reasonable for them to relocate within their country of origin.19 This argument does not apply when the persecutor is the government, only because an asylum seeker cannot escape their government no matter where they move in their country. In cases involving non-state actors, this is a critical analysis. Immigration judges must conduct a two-part analysis: (1) whether there is another part of the country where the applicant could move and be free from persecution, and, (2) under all of the circumstances, it is reasonable for them to do so.20

In the first prong, immigration judges consider factors such as practical or legal barriers which would prevent someone from moving to a region of the country that is safer.21 One consideration that judges will often make is the size of the applicant’s home country. While in the United States, many of us are used to a large country in which we can move, that simply isn’t the case everywhere around the world. Some asylum seekers’ home countries are roughly the size of, or even smaller than, some U.S. states. For example, Guatemala is slightly smaller than Pennsylvania.22 This small size may make it difficult for someone to escape their persecutors.

In the second prong of the test, immigration judges consider a variety of circumstances that would play a factor in an individual’s ability to relocate. Circumstances that are considered include age, gender, medical conditions, where the applicant’s family lives, or any other social or cultural constraints.23

Like all aspects of asylum law, these rebuttals to the presumption of a well-founded fear of persecution are highly dependent on the facts of an asylum seeker’s case and the conditions in their home country.

What if Someone Hasn’t Suffered Any Harm?

An asylum seeker does not have to have been harmed in order to qualify for asylum. An asylum seeker can demonstrate that they have a well-founded fear of future persecution. They must still demonstrate that they fear persecution at the hands of their government or someone that the government is unable or unwilling to control.

In order to show that their fear is well-founded, an asylum seeker must prove (1) that they subjectively have a fear of persecution, and (2) that this fear is objectively reasonable.24 In INS v. Cardoza Fonseca, the Supreme Court said that a fear can still be objectively reasonable if there is a one-in-ten chance of the harm actually happening.25 This means that asylum seekers don’t have to prove that it is more likely than not (generally thought of as a 51% chance of harm) that they will be persecuted. Former Immigration Judge Jeffrey Chase explained it this way:

“If a traveler is told that the flight she has booked has a 10 percent chance of crashing, the question isn’t whether it would thus seem unlikely under an objective analysis that that the plane would crash, or whether in fact the plane did actually crash, or whether those passengers that did board the same flight landed safely and went on with their lives without incident.  The question is whether based on the knowledge she possessed, was it reasonable for the passenger not to board the flight?  Of course, the answer is yes. The objective likelihood that all would be fine wouldn’t be enough to cause any of us to board the plane. Therefore, that slight risk of danger was enough to render the passenger’s subjective fear reasonable.”26

Demonstrating that an individual asylum applicant has a well-founded fear of future persecution is a detailed, individualized analysis that requires significant fact-finding and researching on the part of the attorney and the immigration judge.

Like all of asylum law, determining whether or not an asylum seeker has suffered past persecution, or has a well-founded fear of future persecution, is a complex and individualized analysis under current law.

This post is one in a series of posts about the basics of asylum law. To see more posts about asylum law, see the Asylum Explainer Series.

The procedures of applying for asylum are complex and daunting for those without an attorney. If you would like to support our efforts to represent immigrants in Hampton Roads, please consider donating to the Shainwald Immigration Law Clinic Fund. For more ways that you can help asylum seekers in Hampton Roads, visit our How You Can Help page.

[1] 8 U.S.C. § 1101(a)(42)(A).

[2] Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985).

[3] Matter of OZ & IZ, 22 I&N Dec. 23, 25-26 (BIA 1998); Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007); Paradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005); Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998); Qiu v. Holder, 513 F. App’x 354, 356 (4th Cir. 2013).

[4] Hernandez Avalos, 784 F.3d 944, 949 (4th Cir. 2015).

[5] Balachova v. Mukasey, 547, F.3d 374, 386-87 (2d Cir. 2008) (“[w]e have no doubt that rape is sufficiently serious to constitute persecution”); Matter of D-V-, 21 I&N Dec. 77, 79 (BIA 1995).

[6] Cardova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014); Matter of Z-Z-O-, 26 I&N Dec. 586, 589 (BIA 2015); Cortez-Mendez v. Whitaker, 912 F.3d 205, 209 n. (4th Cir. 2019).

[7] Olivia v. Lynch, 807 F.3d 53, 59 (4th Cir. 2015).

[8] See, e.g., Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004); Portillo Flores v. Garland, __ F.3d __ (4th Cir. 2021).

[9] Jorge-Tzoc v. Gonzales, 435 F.3d 146, 150 (2d. Cir. 2005).

[10] Matter of Pierre, 15 I&N Dec. 461, 462 (BIA 1975); Crespin-Valladares v. Holder, 632 F.3d 117, 128 (4th Cir. 2011). Cf. Rizal v. Gonzalez, 442 F.3d 84.

[11] Matter of McMullen, 17 I&N Dec. 542, 546 (BIA 1980).

[12] Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013).

[13] Factbox: Key Facts about Kenya’s Mungiki Gang, Reuters (March 6, 2009), https://www.reuters.com/article/us-kenya-gang-mungiki-sb/factbox-key-facts-about-kenyas-mungiki-gang-idUSTRE52537620090306.

[14] Tariq Zaidi, A Nation Held Hostage, Foreign Policy (Nov. 30, 2019), https://foreignpolicy.com/2019/11/30/el-salvador-gang-violence-ms13-nation-held-hostage-photography.

[15] Mexico Profile, InsightCrime, https://insightcrime.org/mexico-organized-crime-news/mexico.

[16] Boko Haram in Nigeria, Council on Foreign Relations, https://www.cfr.org/global-conflict-tracker/conflict/boko-haram-nigeria.

[17] Matter of Chen, 20 I&N Dec. 16 (BIA 1989).

[18]  8 C.F.R. §§ 1208.13(b)(1)(i)(A)-(B).

[19] 8 C.F.R. § 1208.13(b)(1)(i)(B).

[20] Matter of M-Z-M-R-, 26 I&N Dec. 28, 30 (BIA 2012).

[21] Id. at 34.

[22] Guatemala, CIA World Factbook (Apr. 27, 2021), https://www.cia.gov/the-world-factbook/countries/guatemala.

[23] Id. at 31.

[24] INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987).

[25] Id.

[26] Jeffrey Chase, When Does Fear Become “Well-Founded?”, Opinions/Analysis on Immigration Law (Oct. 25, 2019), https://www.jeffreyschase.com/blog/2019/10/25/when-does-fear-become-well-founded.