Asylees are refugees who are at a land border or point of entry in the US. According to INA §208(a), asylees must qualify as refugees, meaning that they have to prove a well-founded fear of persecution based on a protected ground. Persons interdicted in the high seas may not qualify for asylum.
The person’s nationality has to be determined before asylum can be granted. Like in Urgen v. Holder, 768 F.3d 269, 272-74 (2nd Cir. 2014), where statelessness alone is not enough to qualify for asylum. But if statelessness is the basis for persecution, then it qualifies, such as in Stserba v. Holder, 646 F.3d 964 (6th Cir. 2011).
The Definition of Persecution
In Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985), persecution is explained as a threat to the life or freedom of or an infliction of harm on people who differ. Harm need not be physical to be noted as persecution, such as in Borca v. INS, 77 F.3d 210, 215-17 (7th Cir. 1996). Permanent or serious physical injury is also not required to establish persecution, much like in Matter of O-Z & I-Z, 22 I&N Dec. 23, 25-26 (BIA 1998).
The government in the country of nationality must also be unable or unwilling to protect the applicant, such as in the case of Kamar v. Sessions, 875 F.3d 811, 819-20 (6th Cir. 2017).
The persecution must be based on protected grounds, which are:
- National Origin
- Political Opinion
- Membership in a Particular Social Group
The applicant must prove that the persecution was based on one or more of the abovementioned grounds, much like in the case of INS v. Elias-Zacarias, 502 US 478 (1992). There needs to be a nexus between the persecution and the protected ground. However, the applicant does not have to show that the persecutor acted with ill intent, as told in Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996).
This protected ground requires an active and specific opinion or belief but does not require active participation in rallies or organized functions. Under this category, the immigration judge considers the evidence relating to the country of citizenship, such as in Mandebvu v. Holder, 755 F.3d 417, 428-32 (6th Cir. 2014).
Neutrality may not be enough to show persecution as stated in Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985). A political opinion may also be imputed, meaning that the persecutor assumes the political opinion because of a close relationship, like in the matter of INS v. Elias-Zacarias, 502 US 478 (1992). An applicant, however, does not have to show that she holds the actual opinion.
Membership in a Particular Social Group
This category includes members of a group that holds a common immutable characteristic that could not be changed, as stated in Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985), and must be defined with particularity, as per Matter of M-E-V-G, 26 I&N Dec. 227 (BIA 2014). The group members have a characteristic that sets them apart, much like in Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014).
A family could also qualify as a particular social group, as discussed by Matter of L-E-A-, 27 I&N Dec. 40 (BIA 2017). There must be a nexus between the family unit and the harmed to prove eligibility based on a family unit.
In Matter of E-A-G-, 24 I&N Dec. 591, 595-96 (BIA 2008), the Board has denied social group protections based on past criminal activities because they are not immutable. The Attorney General has also referred to himself a case to determine whether harm by private entities to social groups qualifies an applicant for asylum, as such in Matter of A-B-, 27 I&N Dec. 227 (AG 2018).
Social Groups the Federal Court Recognizes
The social group must be cognizable and articulated to the immigration judge and the Board would not remand a casa e for determination of a new social group, as in Matter of W-Y-C & H-O-B, 27 I&N Dec. 189 (BIA 2018).
- Members of a Clan
- Domestic Violence Victims
- HIV/AIDS Victims
- Mental Illness or disability
- Gang Membership
- Witnesses and Family Members
In mixed motive cases, the applicant must show that a protected ground was one central reason for the claimed persecution, as indicated in INA §208(b)(1)(b)(i).
There will be a presumption of future persecution if an applicant establishes past persecution. As per 8 CFR §§ 208.13(b)(1)(i)(A) and (B), the government may rebut such a finding if 1) there was a fundamental change in circumstances or 2) the applicant may relocate within the country to avoid persecution.
Once a showing of past persecution is shown, the immigration judge must make such a finding, much like in the case of Antipova v. US Atty. Gen., 392 F.3d 1259 (11th Cir. 2004).
An applicant does not have to show subjective fear, nor does he/she have to show that there was a pattern of persecution, as per 8 CFR § 208.13(b)(ii)(3). Once past persecution is shown, then there will be a presumption of future persecution, as indicated in 8 CFR § 208.13(b)(1)(ii). Such a finding would also show that a person’s life would be threatened for purposes of withholding removal, as explained in INA §241()(3).
When the government rebuts future persecution, an applicant may still qualify for asylum based on past persecution under humanitarian asylum, as per 8 CFR §208.13(b)(1)(iii)(A). Like in Matter of Chen, 20 I&N Dec. 16, 21 (BIA 1989, where humanitarian asylum is not an independent claim for preservation purposes.
An applicant may also qualify for asylum if he or she would face other serious harm upon removal, as indicated in the 8 CFR § 208.13(b)(1)(iii)(B) and Matter of L-S-, 25 I&N Dec. 705 (BIA 2012). Past persecution does not require persecution if the applicant’s testimony is credible.
Well-Founded Fear of Future Persecution
An applicant who does not show past persecution may still qualify for asylum if they can show that there is a possibility of future persecution, as per INA §101(a)(42). The applicant must show that a reasonable person similarly situated would fear persecution, such as in Matter of Barrera, 19 I&N Dec. 837, 845 (BIA 1989). As indicated in 8 CFR §208.13(b)(2)((i)(B), the quantum of proof may be less than 10% possibility.
Components of Fear
Fear has both subjective and objective components. The persecutor does not need to present to be aware of the offending characteristic but that he will become aware, such as the case of Eduard v. Ashcroft, 379 F.3d 182, 192-93 (5th Cir. 2004).
Additionally, the applicant does not have to show that he fled the country because of persecution but that he has a claim now, much like in the case of Wiransane v. Ashcroft, 366 F.3d 889, 899 (10th Cir. 2004). Disclosure of asylum status to the applicant’s country may raise an independent claim of asylum, as per 8 CFR§ 1208.6(a).
Individuals do not need to show that they will be singled out if they can establish a pattern that the persecutor targets the group specifically. Even if there was no showing of a pattern, a person may still qualify if he or she is a member of a disfavored group, such as in Sael v. Ashcroft, 386 F.3d 922, 925-30 (9th Cir. 2004). A person would not qualify if relocation is reasonable, like in Shah v. Holder, 758 F.3d 32 (1st Cir. 2014).
Determining Whether Relocation Is Reasonable
As per 8 CFR §208.13(b)(3), the following are the criteria where the relocation of an applicant is reasonable:
- The person would be harmed in the place of relocation
- Ongoing civil strife in the country
- Administrative, economic, or judicial infrastructure
- Geographical limitations
- Social and cultural restraints
Mandatory Denial of Asylum
The US Congress has established bars to asylum, where United States Citizenship and Immigration Services (USCIS) may not grant asylum but an immigration judge must hold an evidentiary hearing regarding the bar. As per INA §§208(a)(2) and (b)(2), these bars include:
- Persecution of others under INA §208(b)(2)(A)(i)
- Particularly serious crime INA §208(b)(2)(A)(ii)
- Serious nonpolitical crimes INA §208(b)(2)(A)(iii)
- Danger to the security of the United States INA §208(b)(2)(A)(iv)
- Terrorism related inadmissibility grounds INA §208(b)(2)(A)(v)
- Firm resettlement INA §208(b)(2)(A)(vi)
- Safe third country under the US-Canada Agreement
- Previous asylum applicants under INA §§208(a)(2)(C)-(D) unless there are changed circumstances
- One-year time limit INA §§208(a)(2)(B), (D) unless there are changed or extraordinary circumstance